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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
cause_n	justice_n	king_n	law_n	4,449	5	4.8812	4	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A59088	Of the dominion or ownership of the sea two books : in the first is shew'd that the sea, by the lavv of nature or nations, is not common to all men, but capable of private dominion or proprietie, as well as the land : in the second is proved that the dominion of the British sea, or that which incompasseth the isle of Great Britain is, and ever hath been, a part or appendant of the empire of that island writen at first in Latin, and entituled, Mare clausum, seu, De dominio maris, by John Selden, Esquire ; translated into English and set forth with som additional evidences and discourses, by Marchamont Nedham.; Mare clausum. English	Selden, John, 1584-1654.; Nedham, Marchamont, 1620-1678.	1652 (1652)	Wing S2432; ESTC R15125	334,213	600

THERE IS NO MEMORIAL TO THE CONTRARY HAVE BEEN IN PEACEABLE POSSESSION OF THE SOVERAIGN LORDSHIP OF THE SEA OF ENGLAND AND OF THE ISLES WITHIN THE SAME with power of making and establishing Laws Statutes and Prohibitions of people as well of other Domin●●ns as their 〈◊〉 passing through the said Seas and the Saveraign Guard thereof And also 〈…〉 all manner of Cognisance in Causes and of doing right a●d Iustice to high and low according to the said Laws Sta●u●es Ordinances and Prohibitions and all other things which may appertein to the exercises of Soveraign Iurisdiction in the places aforesaid And whereas A. de B. deputed Admiral of the said Sea by the King of England and all other Admirals appointed by the said king of England and his Ancestors heretofore kings of England of a●●●al and complaint made of them to their Soveraigns the kings of England in default of Iustice or for evil Iud●●●n● a●d especially of making Prohibitions doing Iustice and taking surety of the peace of all manner of people using arms in the said Sea or carrying S●●ps otherwise furnished and ●et forth th●● Merchant-men use to bee a●d in all other points where a man may have reasonable caus to suspect them of Robbery or other ●…uors And whereas the Masters of the Ships of the said kingdom of England in the absence of the said Admiral have been in peaceable possession of taking cognisance and judging of all A●●ions don in the said Sea between all manner of people according to the Laws Statutes Prohibitions and Customs And whereas in the first Article of the League lately made between the said Kings in the Treatie upon the last peace at Paris there are comprised the words here following in a Schedule annexed to these Presents But that which follow 's is not written in a Schedule annexed but in the same Parchment from whence it may perhaps bee conjectured that these are not so much the very Libels themselvs which were exhibited to the Commissioners or Auditors as antient Copies taken from the Original as also from this that the name of the Admiral is set down A. de B. which two first Letters do not agree with the name of any one that wee can finde in Record to have been Admiral of England at that time First it is concluded and accorded between Us and the Agents and Procurators aforesaid in the names of the said Kings that the said Kings shall from this time forward becom to each other good true and faithful friends and bee aiding to one another against all men saving the Church of Rome in such manner that if any one or more whosoever they bee shall intend to disturb hinder or molest the said Kings in the Franchises Liberties Privileges Rights and Customs of them and their Kingdoms They shall bee good and faithful friends to each other and aiding against all men living and readie to die to defend keep and maintein the Franchises Liberties Privileges Rights and Customs aforesaid Except on the behalf of the said King of England John Duke of Brabant in Brabant and his heirs descending from him and the daughter of the King of England and except on the behalf of our Lord the said king of France the excellent Prince Monsieur Albert king of Almaign and his heirs kings of Almaign and Monsieur John Earl of Henault in Henault and that the one shall not bee of Counsel nor aiding where the other may lose life member estate or honor Monsieur Reyner Grimbald Master of the Navie of the said king of France who call's himself Admiral of the said Sea beeing deputed by his aforesaid Lord in his war against the Flemings did after the said League made and confirmed against the tenor and obligation of the said League and the intent of them that made it wrongfully assume and exercise the office of Admiraltie in the said Sea of England above the space of a year by Commission of the said king of France taking the people and Merchants of the kingdom of England and of other places passing through the said Sea with their Goods and committed them so taken to the prison of his said Lord the king of France and delivered their Goods and Merchandises to the Receivers of the said king of France by him deputed in the Ports of his said kingdom as forfeited and due unto him to remain at his Judgment and award And the taking and deteining of the said people with their said goods as also his said Judgment award for the forfeiture acquest of them he hath iustified before you Lords Auditors in writing by virtue of the autoritie of his said Commission of Admiraltie aforesaid by him usurped after this manner and during a Prohibition or Restraint generally made and proclaimed by the king of England in right of his Dominion according to the tenor of the third Article of the League aforesaid which contain's the words above-written requiring that hee may thereupon bee acquitted and discharged of the same to the great damage and prejudice of the said king of England and of the Prelates Nobles others above-mentioned Wherefore the said Procurators in the names of their said Lords do pray your Lordships Auditors that you would caus due and speedie deliverance of the said people with their Goods and Merchandises so taken and deteined to bee made to the Admiral of the said king of England to whom the cognisance of the same of right apperteineth as is before expressed So that without disturbance from you or any other hee may take cognisance thereof and do what belong's to his office aforesaid And the said Monsieur Reyner bee condemned and constrained to make satisfaction for all the said damages so far forth as hee shall bee able and in his default his said Lord the king of France by whom hee was deputed to the said office and that after satisfaction given for the said damages the said Monsieur Reyner may bee so duly punished for the violation of the said League that his punishment may be an example to others in time to com So far the Libel of so many Nations manifestly acknowledging the Soveraigntie and Dominion of our Kings over the Sea and thereupon demanding protection for themselvs And whereas no mention is made of this thing in the Histories either of the French English or others it is no wonder since the proceedings of Courts of Judi●a●ure are very seldom set down in Histori●● But wee understand by the French Historie that this Gri●bald was Gov●●●or of the French Navie at the very same time Paulus AEmiliu● writing of Philip the Fair saith Hee hired sixteen Gallies from Genoa ●ver which Reyner Grimbald was Governor or Commander Hee sailing about by Sea infested the Sea-Coast of Flanders Regimerus Regin●rus or Reynerus Grimbaldus is one and the same man and among the Genoêses there is an eminent Family of that name But becaus hee was a Foreiner and Mercenarie therefore it seem's Joannes Feronius left

that Libel by so many Nations Moreover truly it is worthie observation that about the very same time to wit a little before the making of the League the King of England did homage to the French King for the Dutchie of Aquitain the Earldom of Pontois and other Provinces that hee held in France that hee was also wholly deprived of them som time before by decree of the Parlament of Paris yea and that about one hundred years before King John was outed of Normandie and yet afterward that the King of England now and then regained a possession of it and that before the time of the League and of the publication of this Libel which serv all to this end that wee may observ that when the aforesaid famous controversie arose about the use and Soveraigntie of the Sea flowing between France and Britain and the absolute Dominion thereof was asscribed by so many Nations upon a Title derived time out of minde to the King of England and his Predecessors yet in the mean time no title at all was pretended in right to their possession either of Normandie or Aquitain whereupon a Dominion of any part of the Sea might in any sort bee grounded but claimed upon the sole right of the English Empire And it appear's evident by the thing it self that the things complained of by those Nations in the Libel were don by that Governor of the French Navie chiefly in the Sea near the shores of France and Flanders which were in hostilitie with each other And so certainly they all unanimously affirm that the whole Sea whereof they speak is under the Dominion of the King of England and that upon the sole Account and right of the English Empire And as for Grimbald hee did not defend himself either by a pretence of any Dominion of the King of France or by disproving of that Prescription whereupon the English Title depend's as a thing not declared according to Truth or antient Right nor did hee at all pretend that the Right which the Kings of England had in the Sea borde ring upon France did belong to them either upon the account of Normandie or any other French Province whatsoêver as Fiduciarie Clients or Vassals of the King of France though it had been convenient and very seasonable for him to have alleged all these Particulars if the Truth had been so indeed Whereby also that is not a little confirmed whereof wee discoursed before about taking the names of the shore over against us in the later Commissions of the Office of high Admiral of England for limits onely of the Sea-Dominion of the Kings of England and of the Province thereof under their protection Moreover also about seven years before the exhibiting of the aforesaid Libel to the Commissioners when as the King of France by reason of divers heinous injuries don to his Subjects by the English in this Sea required that the King of England as hee was the Fiduciarie Client or Vassal becaus of Aquitain and other Provinces that hee held under him in France should bee questioned not onely for wrong don but also for his right to those Lands which hee held and bee summoned to appear in the Parlament of Paris the matter beeing set down at large in the Letter of Summons hee inserted nothing therein whereby hee might seem to arrogate any Sea-Dominion at all to himself or diminish that which belong'd to the King of England as you may see in I lorilegus who hath set down an entire Copie of them in his Annals The same Autor also speaking of the same Time saith At that time there was neither Lord nor Law over the Sea men but what every man was able to catch or snatch hee called his own which plainly denote's an extraordinarie Licence or of Depredation and infesting the Sea yet so to bee understood that in the mean time the incomparable power of the English in Shipping which guarded their Dominion by Sea according to the Custom of their Ancestors was chiefly signified thereby the King very freely permitting his Subjects to use depredations by Sea as long as the war continued For Florilegus himself relate's that great numbers both of French and Spaniards were then taken at Sea by the English Yea and about that time Thomas of Walsingham write's that either a French or Norman Navie of two hundred Sail which roved about this Sea to rob the English were overcom by a Fleet of sixtie English Ships and brought into England There is also another antient Autor of the same time when these affairs were acted who saith That in the Month of May MCCXCIV there fell out a Quarrel between the Sea-men of the Cinque-Ports of England and the Sea-men of France and it was determined by a fight at Sea wherein the English with a Fleet of one hundred Sail took two hundred Ships of France and drowned or killed almost all the Sea-men of France for which caus Philip King of France endeavored to take away Gascoign from the King of England Others there are likewise that have other expressions touching these things whereby it is easie to collect what is meant by that of Florilegus when hee saith that there was neither Lord nor Law over Sea-men at that time that is to say the King of England had let the reins loos to his Subjects as Moderator of this Sea and this hee did that they might not onely restrain his enemies but them also that should reliev his enemies in any manner whatsoêver or that should use the Sea otherwise than at his pleasure who was Lord thereof But as concerning the like acknowledgment made singly and apart by the Flemings of the Dominion of the Kings of England over the Sea I shall Treat by and by after that I have in the next place set before you the Libel it self in its own that is the Norman Tongue as it stand's recorded in the Tower of London A Copie or Transcript of the Libel or Bill of Complaint mentioned in the former Chapter CHAP. XXVIII IN the Archives of the Tower of London where Records of above four hundred years are kept there is a bundle of Parchments which contein som affairs relating to the times of Henrie the Third and of Edward the First and Third The first contein's an agreement made between Edward the First and Guy Earl of Flanders touching their Ships bearing of Colors about this Sea to the end that they might bee the more easily known Then there are annexed three either Originals or Copies of the said Libel written at the same time For as it seem's the several Procurators of those Nations that were parties in the Complaint had their several Libels though expressed in the name of all together So that one is endorsed thus De Baiona as if that Libel had been exhibited singly by the men of Bayonne but the title run's thus De Superioritate Maris Angliae Jure Officii Admirallatûs in eodem

them above other Nations but since they break out like an Inundation and with a drawn Sword declare prodigious Principles of Enmitie against the Rights and Liberties of England it is presumed a thing unquestionable that due Defences ought to be made till they bee reduced within their antient Limits For if they should bee permitted in the least to Lord it at Sea as they want not will and advantages and have given you experience of their encroaching and ambitious temper so it 's to bee feared they would bee ever seeking opportunitie to impose a Lord upon you by Land May you go on therefore Right honorable as you have begun and do and the God of Heaven go along w th you upon terms of honor Justice in such a way that men may understand as you will do no wrong at what rate they must offend you Not onely our eies but the eies of all the world are fixt upon the carriage and conduct of this noble enterprise by Sea when you have acquitted your selvs there as no doubt you will do having alreadie given the same demonstrations of wisdom and courage that you have don by Land your Wars through God's blessing will at once bee ended It will draw such a reverence repute to your affairs that men will beware how they provoke you and your worst enemies despair of any future opportunitie The late Engagements Successes of your Fleets at Sea have shewn that the great God hath owned you there That hee hath not left you destitute of means That the old English bloud sens of honor run's still in the veins of your Sea-men and thereby given you to understand that hee who hath appeared so gloriously for you in the midst of wondrous difficulties by Land will also manifest his wonders in the Deep to make a final Accomplishment of the good VVork by Sea and beeing himself alone invested with the absolute Soveraigntie of Sea Land bee pleased to continue you and your Successors his Lievtenants in both for the establishment of this Common-wealth in a plenarie possession of its Rights and Liberties to all Posteritie I am in my praiers and endeavors RIGHT HONORABLE Your Honor 's most humble and faithful Servant Marchamont Nedham November 19. 1652. THE AUTHOR'S PREFACE SOm things there are that I thought fit here to forewarn the Reader part whereof may bee necessarie even for those who are in other things very well instructed The rest likewise not unprofitable for them who while they salute Books by the way are wont through a customarie vice of temeritie to stumble in the verie Threshold Those things concern either the place of such Testimonies as are alleged or som Circumstances of the Sea-Dominion which is proved or the Title of the Work Among Testimonies besides such as are in Print and Manuscripts reserved in private men's Libraries there are not a few especially in the second Book brought out of Records or publick Monuments whose credit I suppose every indifferent Judg of matters will as once the Senate of Rome did allow better than other Witnesses at least if there bee any difference and therefore full Those which lie in private men's Libraries you will finde where they are kept in the Margin If omitted there they are in my own But as to the Testimonies taken often out of publick Records som likewise have the Place either of the Archive or Rolls or the name of the Record-keeper's Office so noted in the Margin that thereby you may know immediately where to finde them But som of these Records that are very frequently cited have no place at all nor any name of the Record-keeper expressed but the King for the most part and the Year besides the name of the Court-Roll are only noted As many as are of this kinde do relate som to those years that pass betwixt the beginning of the reign of King John and the end of Edward the Fourth others to those years that succeed down to our time They which are of the former sort having no place nor name of the Record-keeper noted are kept in the Archive of the Tower of London but those of the latter sort in the Chappel of the Rolls It had been too slight a matter to have signified thus much here to such as are acquainted with our English Records becaus by the very name of the Court-Roll as Rotulorum Patentium Rotulorum Clausorum Rotulorum Parl●mentariorum Rotulorum Franciae Vasconiae Alemanniae and others of that kinde which are Records belonging to the English Chancerie and by the name of the King the very place also of the Records is sufficiently known But it is necessarie to premise this in the first place as well for the sakes of my own Countrie-men who have been Strangers to the Rolls as in the behalf of Foreiners to the end that if either of them perhaps have a minde exactly to consult the Original of any testimonie thence alleged they might when the Places are so described the more conveniently do it themselvs at their own leasure if present or if absent obtein it by the assistance of friends For the Record-keepers who have a special care to preserv them safely do usually give admittance at seasonable hours to all that pleas to consult them and have them so placed as Justinian commanded concerning the Records of the Empire 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that they may easily bee found by them that search As to what concern's the aforesaid circumstances of Sea-Dominion whereas there are two Propositions here so far as the term may bee born in things of a civil nature made evident 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 it is not to bee conceived that any other kinde either of Causes or Effects of Sea-Dominion are here admitted than such as have been of the Dominion of an Island Continent Port or any other Territorie whatsoëver or Province which is wont to bee reckoned in the Royal Patrimonie of Princes Nor that a less Dominion of the Sea than of the Land is derived from the nature of the Law received among Nations about the acquiring of Dominion and of Justice it self as from the Causes nor that the Effects thereof are any other than what are variously subservient to Compacts Agreements Leagues and Treaties Constitutions or Prescriptions of servitudes and other things of that nature in the same manner as the effects of Dominion by Land And therefore hee said well of old Nunc jam cessit Pontus Omnes Patitur leges The Seals now made appropriate And yield's to all the Laws of state That is to say all which are admitted in any other kinde of Territories according to the difference of things persons

forbid men passage in the common Road without som just caus which must bee determined in an Imperial Diet nevertheless it is wrested by som to prove a freedom of Navigation at Sea For that happen'd by a particular Law agree'd upon by the Estates of the Empire who themselvs also are subject to a Diet But other Nations that are under several and distinct Soveraignties have not as yet made any such Agreement that there should alwaies bee a libertie of Passage to and fro nor have they like the Germanet and others within their Dominion referr'd themselvs unto an Umpire to determine the business An Answer to that Objection concerning the uncertain fluid nature of the Sea and its continual Alteration It is proved that Rivers also and the adjoyning Aër which are more fluid and uncertain may becom appropriate CHAP. XXI BUT they say that the very Nature of the Sea render's it unfit for privat Dominion both becaus it is ever in Motion and in no wise remain's the same as also becaus a convenient matter as well as Instruments are wanting therein to make a distinction of Bounds without which private Dominions cannot well consist yea and becaus by reason of its vast and spatious Body it is alwaies sufficient for all As to what concern's its fluid Nature are not Rivers and Fountains much more in a perpetual Flux or Motion Rivers alwaies run forward wherewith the Sea beeing compared it seem's to stand immovable as saith Strabo And Eustathius saith that Homer therefore call's the Sea by the name of a standing Pool becaus it run's not forward as Rivers do but is very stable And another saith the Sea stands without Motion as it were som dull heap of matter that Nature could not bring to perfection But suppose wee grant it bee so fluid as is usually said of the most Northernly Seas and Channels yet certainly the Channels and places out of which the waters flow remain ever the same though the waters themselvs do shift and change continually Nor yet can it be supposed that the Right of private Dominion over Rivers is any whit prejudiced thereby In the Romane-Germane Empire Rivers according to the Civil Law are of publick use yet they are reckoned in the Emperor 's private Patrimonie and among the Rights or Roialties belonging to his Exchequer so that either the Emperor or others by his Grant have in like manner a yearly Revenue out of the Fisheries in them Upon which accompt it come's to pass that they of Lombardy and other particular People throughout Italy enjoie all the Rivers of their Territories as proper and peculiar to themselvs by Prescription as wee are told by Caepola Nor is any thing more common then an asserting of the private Dominion of Rivers as well as their Banks in the Laws of Spain France Poland and Venice and in a word of all Nations whose Customs are known to us Nor as to what concern's this Objection fetch 't from the fluid Constitution of the sea is there any difference in nature between a greater and a lesser a private and a publick River Even Ulpian himself concerning Rivers saith There is no difference between a private River and other private Places And Martianus If a man hath fish't all alone many years in a Corner of a publick River hee may hinder any other from using the same Libertie Moreover oftentimes heretofore in the Romane Empire Rivers were made over as well as other Parts after the manner of Lands assigned Siculus Flaccus saith In som Countries even the Rivers themselvs are assigned out by measure But in som the subcesive or remanent part onely is left out unassigned and yet it is excepted out from the parts assigned as belonging still onely to the river it self After the same manner also Aggenus Urbicus For it was never conceived that the Rivers were otherwise acquired by the People or Emperor of Rome then the adjoyning Lands accordding to that of the river Danubius speaking to the Emperors Danubius penitis caput occultatus in oris Totus sub vestrâ jam Ditione fluo Et quà Dives aquis Scythico solvo ostia Ponto Omnia sub vestrum flumina mitto Jugum Danubius I whose Fountain few do know Now wholly under your Dominion flow And when full-charg'd run to the Euxin sea I make all Rivers to you Tribute pay Wee know that an Island newly sprung up in a river as also a Chanel that is deserted is even by antient Custom common to such as upon the Bank of any river do possess Lands that are not limited that is to say after the manner of Lands or Possessions unless there bee som special Law or Custom to the contrary And touching the Division of such an Island according to the nature of several Lands situate near one Bank or both Bartolus in Tiberiade hath written long since but of later time Joannes Buteo Baptista Aymus Antonius Maria Joannes Gryphiander and others Therefore in that case a Proprietie of the Chanel and so of the River even of that which according to the Civil Law is of publick and common use as well as of a Field that hath a common Thorow-fare was common before to the Owners that had Lands lying on both sides By the same reason almost an Island newly sprung up in any sea that never was possessed by any and whatsoêver shall bee built upon it become's his that first enter's it by occupation For the Chanel and that Sea at first belong'd to all men in general But by virtue of that Universal Compact or Agreement before mentioned whereby things not yet possessed were to becom the Proprietie of him that should first enjoie them by Occupation hee that shall so possess them by Occupation receiv's the Island and Building as it were by a Surrender of Right from former Owners Seeing therefore that a Proprietie and private Dominion of Rivers hath been every where acknowledged why should it not bee acknowledged in like manner that there may bee Owners of any Sea whatsoëver Since the fluid nature of water can no more hinder a Dominion in the one then in the other Yea the Rivers themselvs are onely lesser Seas as also the Fenns and Lakes even as the Sea it self as to its fluid Constitution is no other then a River Fen or Lake differing onely in bigness from the rest And so it hath been taken by the Antients In the very storie of the Creation all the Gatherings together of the waters are called Seas which hath been observed also by the Fathers to this purpose There are also very eminent examples in holy Scripture touching the two Lakes of Asphaltites and Tiberias both which are equally called Seas Asphaltites is by Pliny Ptolomy Josephus Solinus and Vitruvius tearm'd a Lake But by Moses the salt Sea and by most of the late Writers the dead Sea Tiberias is in like manner by the Antients and also

by S t Luke called a Lake by the other Evangelists a Sea as also in the Syriack and Arabick Translation of S t Luke And Aristotle saith that about the Mountain Caucasus there is a Lake or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 but the neighbouring People call it a Sea Hee speak's of the Lake Maeotis which by reason of that abundance of Waters which it dischargeth through the Cimmerian Bosphorus into the Euxin Sea is by the Antients called Mother of the Sea or Mother of the Euxin Sea From whence also it was the opinion of som that Maeotis stood in the same relation unto Pontus Propontis and the AEgean Sea as the Ocean doth to the Mediterranean Oceanúnque negant solas admittere Gades They do deny that Cadiz Streight Alone admit's the Ocean 's Freight As Lucan saith concerning it But Agathia tell 's us that in Justinian's daies it was called The little Sea And saith Festus Avienus to Probus Thou did'st question mee if thou dost remember about the situation of the Maeotick Sea By which means it hath happen'd that even at this day it is called Mar delle Zabach and Mar della Tana So seven Lakes of the River Po in Italy are usually tearmed Seven Seas And wee read in Cassiodorus that Addua a River of Cisalpin Gallia emptie's it self into the Lake called Lago di Como as into its proper Sea Hence it is that in Hesychius and Suidas a Lake or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 denote's the Ocean and Sea and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or a River the Ocean it self Nor is it in this place impossible that a River should contend with the Sea However otherwise it hath been used as a Proverb of such as strive with men mightier then themselvs Also in Homer 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The depth of a deep Lake is used for the depth of the Sea And in another place hee put 's 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a very fair Lake in stead of the Sea as it is observed also by Olympiodorus Yea som of the Antients have said that the Ocean it self is one of those four huge Rivers which spring out of such a Hell or such a deep Gulf as som feign to bee found towards the North the other three beeing imprisoned in secret Passages of the Earth Moreover Lucan call's the British Ocean Incerti stagna profundi An unstable deep standing pool And in barbarous Latin the word Mariscus as a Diminutive of Mare the Sea is used in many Places for a Marsh or Lake under which notion also it hath been Translated into som other Languages beeing varied according to their divers forms of Expression Other observations have been made by others to the same purpose So then both in Substance Nature and Name the Seas Rivers and other Bodies of Waters so far as concern's the Point in question are all the same that whatsoêver may bee said of these may bee applied in like manner also to the other save that there may som difference bee alleged onely from the largeness of the one and the narrowness of the other which in the Point of Dominion as it relate's to Possession is of no account Add moreover that the usual Objection touching their fluid Nature or the continual shifting of Waters in the Chanel doth here no more prejudice the caus of Dominion and Possession then the fluid nature of the Aër doth the Dominion and Possession of that space which confine's a Hous from the Foundation upward That space seem's as a Chanel to the whirling Aër whereof notwithstanding hee according to the Civil Law is the undoubted Owner who possesseth the Ground and Building Hereupon Servitudes have been imposed against the rearing of Houses higher then ordinary also against hindring of Light or Prospect and other of that kinde in the very ambient Aër So that where a Prohibition of a new Building hath issued Pomponius saith the Aër ought to bee measured as well as the Ground And it is evident that the Aêr is his who is owner of the plot of ground So that as to that saying of Paulus that a Tree growing in the very Confine betwixt two Lands is common to the Owners on both sides for so much as grow's in the ground of either Joannes Buteo discoursing of the Division of the fruit of such a Tree saith wee must suppose the ground to bee the Aër it self that is spread over the ground which hee measureth by direct lines from the outmost boughs And therefore surely wee are owners of the ground hous and space which wee possess in several as owners that every one for his best advantage may freely and fully use and enjoy his own bordering Aër which is the element of mankind how flitting so ever it bee together with the space thereof in such a manner and restrain others thence at pleasure that hee may bee both reputed and settled owner thereof in Particular Much less then doth the fluid nature of Waters which is far less then the other in any wise hinder an ownership or Dominion over them And even those things which naturally are thus flitting do notwithstanding in a Civil sens remain ever the same as the ship of Theseus a Hous or a Theatre which hath been so often mended and repaired that there is not so much as one part or plank left of the first building But they which make use of so frivolous a subtiltie as this to oppose a Dominion of the Sea should bee turned over to the Philosophers especially Heraclitus and Epicharmus whose Doctrine was that every thing is so changed altered and renewed every moment that nothing in the world continue's at this instant the same that it was in the instant immediately going before No man saith Seneca in imitation of Heraclitus is the same in the Morning that hee was the day before Our Bodies are hurried like Rivers Whatsoëver thou see'st run's with time Not one of all those things that are visible continue's I even whil'st I speak of these Changes am changed my self It was seriously affirmed also by Heraclitus that not onely the same River could not receiv a man twice but also that the same man could not enter twice into the same stream So that to cast all into Heraclitus his River became an usual Proverb to express a continued and perpetual change of every thing from it self But let such as dream that the fluid inconstant nature of the Sea disprove's the private Dominion of it entertain the same opinion if they pleas with these men of things that fall under a Civil consideration and then they must of necessity grant also that themselvs are not Owners or Possessors either of Land Houses Clothes Monie or any other thing whatsoêver An Answer to the Objections touching the defect of Bounds and Limits in the Sea as also concerning its magnitude and inexhaustible abundance CHAP.

hee allow to them in his own State and if his Imperial Majestie within his own State upon the Land will not yield that the subjects of the Republick shall go which way they list but coustrain's them to pass by such places onely where Custom is to bee paid hee cannot with justice demand that his subjects may pass by or through the Sea of the Republick which way they list but ought to content himself that they go that way onely which shall best stand with the commoditie of those who have the Dominion over it and if his Majestie caus Custom to bee paid upon his Land why may not the Venetians likewise do it upon their Sea Hee demanded of them if by the Capitulation they would have it that the Emperor was restrained or hindred from taking of Custom and if not why would they have the Venetians tied thereunto by a Capitulation which speak's of both Potentates equally with the same words Hee shewed by particular Narration that from the Peace of Venice 152● until that present the Emperor had increased his Customs to the grievance of the Venetian's subjects in victuals and Merchandise which passed from the one State unto the other insomuch as that which formerly paied but one was now increased in som to 16 and in others to 20. and hee instanced in iron and other commodities which were wont to pay little or nothing were now raised to such an excessive Custom as proved much to the damage of the Venetians besides they were forced to pass onely by such places where they should pay Custom out of which to pass it was Contra banda and their goods confiscated And if his Majestie think 's it lawful to do what it pleaseth within his own estate without breaking of the Capitulations hee cannot think that the Venetians doing but the same should contrarie thereunto any waies offend Hee added that in every Peace established betwixt two Princes after a war it is necessarie that their subjects may live and trade together not to the excluding of Customs although there bee excluded the violences hostilities and other impediments of trade which were formerly used in time of war neither is the autoritie of the one or other Prince thereby taken away or restrained by Sea or by Land At the force and clearness of this discours the Austrians remained as it were in a trance looking one upon another insomuch that Chizzola judging it not to bee necessarie to dwell longer upon this passed to the proof of the presupposed truth viz. That the Republick had the Dominion of the Sea and said that the proportion was most true that the Sea was common and free but yet no otherwise that could bee understood then as it is commonly said The high-waies are common and free by which is meant that they cannot bee usurped by any private person for his sole proper service but remain to the use of everie one not therefore that they are so free as that they should not bee under the protection and government of som Prince and that every one might do therein licentiously all that which it pleased him either by right or wrong forasmuch as such licentiousness or Anarchie is abhorred both of God and nature as well by Sea as by Land That the true libertie of the Sea exclude's it not from the protection and superioritie of such as maintain it in libertie nor from the subjection to the laws of such as have command over it rather necessarily it include's it That no less the Sea then the Land is subject to bee divided amongst men and appropriated to Cities and Potentates which long since was ordained by God from the beginning of mankinde as a thing most natural which was well understood by Aristotle when hee said that unto Sea or maritim Cities the Sea is the Territorie becaus from thence they take their sustenance and defens a thing which cannot possibly bee unless part of it might bee appropriated in the like manner as the Land is which is divided betwixt Cities and Governments not by equal parts nor according to their greatness but as they have been or are able to rule govern and defend them Bern is not the greatest Citie of Switzerland and yet it hath as large a Territorie as all the rest of the twelv Cantons together And the Citie of Norimberg is very great and yet the Territories thereof hardly exceed the walls And the Citie of Venice for many years was known to bee without any possession at all upon the firm Land Upon the Sea likewise certein Cities of great force and valor have possessed a large quantitie thereof others of little force have been contented with the next waters neither are there wanting Examples of such who notwithstanding they are Maritim yet having fertile Lands lying on the back of them have been contented therewith without ever attempting to gain any Sea-dominion Others who beeing aw'd by their more mightie neighbors have been constrained to forbear any such attempt for which two causes a Citie notwithstanding it bee Maritim may happen to remain without any possession of the Sea Hee added that God did instant Principalities for the maintenance of Justice to the benefit of mankinde which was necessarie to bee executed as well by Sea as by Land That S. Paul said That for this caus there was due to Princes Customs and Contributions that it should bee a great absurditie to prais the well governing regulating and defens of the Land and to condemn that of the Sea that if the Sea in som parts for the ampleness and extreme distance thereof from the Land was not possible to bee governed and protected that proceeded from a disabilitie and defect in mankinde as also there are deserts so great upon the Land as it is impossible to protect them witness the many sandie parts of Africa and the immens vastities of the new world And as it is a gift of God that a Land by the Laws and publick power bee ruled protected and governed so the same happen's to the Sea that those were deceived by a gross equivocation who said that the Land by reason of its stabilitie might bee governed but not the Sea for beeing an unconstant element no more then the aër forasmuch as if by the Sea and the Aër they intend all the parts of those fluent elements it is a most certein thing that they cannot bee governed becaus whilst a man serv's himself with any one part of them the other escape's out of his power but this chanceth also to Rivers which cannot bee reteined But when it is said to rule over a Sea or River it is not understood of the Element but of the site where they are placed The water of the Adriatick Sea continually run's out of it neither can it all bee kept in and yet it is the same Sea as well as the Tiber Po or the Rhine are the same Rivers now which they were 1000 years past And this is that which