to that of the Sovereign of the Wrong-doer and there Impleads him and prays for Justice If a Frenchman kill a Frenchman one Alien another upon the Land of England the Fact is committed within the local Ligeance of the King of England and against the Peace and Protection of his Crown and therefore triable before his Courts But if two Englishmen be under the Pay and Service of the French King and one of them Kill the other aboard a French Man of War within the 4 Seas The French King's Judicature will have the Conusance of the Crime as done within his Ligeance and against the Peace and Protection of his Crown Thus stands the matter of Fact as to the Marine Jurisdiction and thus it has been for many Ages but yet there is an ancient President which seems to impugn something that has been said and not to take notice of it were to report things unfaithfully and therefore I crave leave to examine it 'T is a Bundle or Roli in the Tower of London Superscribed De Superioritate Maris Angliae Jure Officii Admiralitatis in codem Record I can scarce call it 〈…〉 cap. 27 for 't is not any Judicial Act or Monument of a Court of Record and it may be read as 't is transcribed at large by Lord Chief Justice Cake and by Mr. Selden who highly insists upon it I shall abbreviate it truly and in short the Case was this A League had been concluded betwixt Edward the First of England and Philip the Fair of France Of the 〈…〉 in which it was Covenanted that each should defend the others Rights and Neither relieve the other's Enemy After this a War ensued betwixt Philip and the Earl of Flanders whom Edward secretly savoured Whereupon Reyner Grimbald who was General at Sea for the King of France took several Ships both of England and of other Nations Trading to Flanders and confiscated Ships and Goods and imprison'd Persons as carrying Relief to an Enemy Upon which and other Complaints Commissioners were appointed by both Kings call'd in the Roll writ in Norman French Auditours Deputez per les Roys d'Engleterre de France a redresser les dammages faits The Plaintiffs who were of several Nations appear by their Procurators or Attorneys before the said Commissioners and joyn all together in one Bill or Libel as being all involv'd in one Common Cause In the Rehearsal of the said Libel 't is alledg'd that Whereas the Kings of England by reason of the said Kingdom from time to time whereof there is no Memory to the contrary have been in peaceable Possession of the Sovereign Dominion of the Sea of England and of the Isles of the same by Ordaining of Laws c. And whereas 't is Covenanted in the League lately made betwixt the two Kings that each should Defend the others Rights Franchises and Liberties c. Monsieur Reyner Grimbald Commander of the Fleet of the King of France who Names himself Admiral of the said Sea being Commissioned by that King to serve him in his Wâ—â— against Flanders hath contrary to the said League wrongfully assumed the Office of the Admiralty in the said Gea of England upon Pretence of the said Commission taking the People and Merchants c They pray that the Persons Ships and Goods so taken may be delivered to the Admiral of the King of England to whom the Counsance of the whole Matter of Right appertain'd He who shall read more at large in the places before quoted the magnificent Attributes given to the Kings of England of their being peaceably possess'd time immemorial of the Sovereign Dominion of the Sea of England by ordaining Laws and Statutes Prohibiting Arms and Armed Vessels taking Sureties and giving Safeguards and ordaining all other things necessary to the Preservation of Peace and Right amongst all People passing upon that Sea c. will at first view be ready to cry out suimus Troes fuit Ilium We were English men England was and yet perhaps no need of such Exclamation At first reading it seem'd to me at some distance like a Stone Wall athwart my way and no possibility of passing farther but when I examined it more nearly I found it but a Silken Curtain of specious words drawn artificially before the Eye and easie to be put back by the hand 1. First it is to be noted that all this is but a Plaidoyé a Plea or Action a Supplicatory Libel or Bill of Complaint No definitive Sentence or Arrest nothing that did pass in rem Judicatam This alone were there nothing more is sufficient to abate the intrinsick Value of it The Roll makes no mention of any decision given by the Delegates upon any the Matters contain'd in the Libel and either none was given which seems most probable and those Controversies decided some other way or the Roll is left imperfect 2. Though the Interessents of several Nations as Danes Germans Hollanders c. suffered Dammages by the Seisures of Grimbald in like manner as the English did and therefore joyn'd with them in the same Libel yet the Libel was penn'd by English Council as is manifest by the Address or Direction oâ— it A vous Seigneurs Auditeurs Deputez To you Lords Auditors deputed Par les Roys d'Engleterre de France by the Kings of England and France where England has the preference of Order to France contrary to the style of Neutral Nations of that Age. 3. The Allegation of the Kings of England having been time immemorial in the peaceable Possâ—ssion of the Sovereignty of the Sea was not made by the French Delegates in the Name of the King their Master but by English Advocats in favour of their Clients Cause The French King had Commission'd Grinthald to exercise Jurisdiction at Sea by Arresting and Confiscating Ships and Goods and Imprisoning Persons for carrying Relief to the Earl of Flanders his Enemy by which Commission Grimbald justified himself for doing such Acts as were manifestly repugnant to the peaceable Possession of the said Sovereign Dominion on the part of England If the King of France had acknowledged the Admiral of England the only competent Judge of thingâ— done and committed upon the Sea of England why did he together with the King of England depute Auditors or Delegates for determining those Matters then in Controversie 4. The Art in penning the said Libel is remarkable it affirms the Marine Jurisdiction of the Admiral of England but it does not except against a Power in the King of France to constitute an Admiral with the like Jurisdiction and that upon the Sea towards Flanders 〈…〉 For 't is certain that the Crown of France had Admirals before the time of Philip the Fair. 'T is true that great Body of the Kingdom of France had been cantoniz'd and divided after the manner of the German Nations into many Franca Fâ—uda as they â—ali'd them Free Fees which are supreme and independent Sovereignties only the persons of those
order to a rateable Composition to be paid yearly into the Chequer of England And King Charles the First in the 12th Year of his Reign An. 1636 published another Royal Proclamation to the same Tenour also By which Acts those two Kings kept up the continual Claim of the Crown of England to a sole and appropriate Fishery in the British Seas and consequently to the Sovereignty and Dominion thereof but neither of those publick Edicts obtain'd from any of our Neighbours their due and just Effect Thus stands the Case of the Fishery And thus I have gone over all the chief Branches of the Sovereignty The Reasonableness of a Limited Fishing and have faithfully related the Matter of Fact and how the Practice is and has been betwixt us and our Neighbours in reference to them all not so fully indeed and amply as I might but sufficiently to my purpose who design'd not a Volume but an Abstract There is still one thing behind concerning the Fishery which I shall mention and so conclude 'T is by way of Temperament or Relaxation and yet without renouncing any thing 't is a medium betwixt grasping at All and holding Nothing 't is what would greatly accommodate England if it can be obtain'd or if a proper Season presented for offering at it I say a Season or fit Conjuncture For what in Natural Philosophy amongst Chymists is a just degree of heat necessary to the Production of all great and admirable Effects that in Politicks amongst Statesmen is a fit Conjuncture The Temperament or Expedient which I mean is briefly this A Limited Fishing not a Licensed but a Limited one without License This hath both a Foundation of solid Reason to support it and is back'd also with Presidents and Authorities sufficient to vindicate it from the Imputation of a new Project The Reasonableness of it may be thus shewn The Sovereignty of any Sea and the Right of the sole Fishing in it are so intimately connexed yea so coessential one to the other that he who Controverts the one will infallibly Dispute and Opiniastre the other but he who acknowledges one of them will by a necessary consequence yield both And yet 't is a thing undoubted and never brought into Question by any but that every Prince whose Country adjoyns to the Sea and whose Shores are indented with Bayes Creeks Havens and Rivers has some portion of the Sea belonging to him in property as an accession of the Land or appendant to it or rather incorporated with it like Veins and Arteries integral Parts of the same Body The forementioned King James Vâ—dâ—sis Mar. Claus l. 2. cap. 22. in the second Year of his Reign An. 1604 caused a Sea-Chart to be published describing all the Coasts round England by streight Lines drawn from one Promontory or Foreland to another and all that was intercepted and included within those Lines was called the King's Chambers and Royal Ports And in the Proclamation published the same time and which refers to the said Sea-Chart they are called The Places of the King's Dominion and Jurisdiction and all Hostilities betwixt Foreigners in War one with another but in Amity with England forbidden within those Precincts Our Law also makes a considerable difference betwixt Havens Rivers Creeks and Bayes and the Altum Mare or High Sea for the first are reckoned infra Corpus Comitatus as the Law-Phrase is Parts and Members of the Counties of England and all Pleas of Contract and other things done there are triable by Verdict and determinable at Common Law. V. Co. Jurisd of Courts cap. 22. But the Court of Admiralty holds Plea and Conusance of all things done upon the High Sea as being out of the Body of any County and consequently from whence no Jury can be returned for Trial of Issues If there be no certain Standard in Nature whereby to ascertain the precise Boundaries of that peculiar Marine Territory I am now speaking to which belongs to every Prince in Right of his Land yet by Treaty and Agreement they may easily be reduced to certainty For as to the Judgment and Opinion of private Persons we cannot fetch from thence any true measure for though they all agree unanimously that there is something due of Right yet they vary in the Quantum or How much Bald. ad L. de rer Dom. Baldus reckons One hundred Miles at Sea as the District of the adjacent Land. Bodin affirms it for a received Law amongst Nations That the Prince Bed. de Repub l. 1. c. 10. whose Country abuts upon the Sea should have sixty Miles Jurisdiction from the Shore and that it was so adjudged in the Case of the Duke of Savoy Another Doctor will tell us That so much of the Sea appertains to the Land as far as a Man can see from Shore in a fair day But this will not serve our turn For if a Man may see from Dover to Calais I suppose the like may be done from Calais to Dover and whose shall the Sea be betwixt Therefore the surest way is to prescribe the Limits of Fishing betwixt Neighbouring Nations by Contract and not by the less certain measure of Territory For if no Bounds be fixed how many Inconveniences and what a licentious Extravagance may such a Liberty run into Why may not the Dutch as formerly they have done dredge for Oysters upon the Coasts of Essex within the Fisheries of private persons and within Streams and Waters appertaining to particular Mannors by Grants from the Crown Why may they not fish within the mouth of the Thames Or within our Creeks Havens and Rivers as far as Salt Water flows Or to the first Bridge if they will please to stop there Is it reasonable that there should be no distinction as to fishing betwixt Native and Alien Why then do they challenge to themselves those smaller Seas and Inlets within the Vly and Texel and all other Streams which breaking in at a streight Neck or Isthmus of Land form Peninsula's of Waters and in the nature of standing Lakes are inclosed within the Banks of those Low-Countries The States there farm out the fishing of the South Sea or Zuyder and other Streams to their own People and Subjects under the Reservation of a Yearly Rent to be paid therefore and consequently exclude all others from it I hint these things only to shew the Reasonableness of a Limited Fishing and as to the Authorities by which it is strengthened I shall touch upon them also It was anciently Covenanted betwixt the Crown of Scotland and the Netherlands that they should not Fish within Fourscore Miles from the Scottish Shoars My Author is Welwood a Scotch Lawyer in a little Tract of his which I have read De Dominio Maris in the Third Chapter His words are Non possum praeterire quod ante Saeculum hoc post cruentissimam ex occasionibus Maritimis discordiam inter Scotos Batavosque res in hunc modum compâ—sita fuit
Licensed and Entered according to Order OBSERVATIONS CONCERNING THE DOMINION AND SOVEREIGNTY OF THE SEAS BEING An ABSTRACT of the MARINE AFFAIRS of England By Sir PHILIP MEDOWS Knight In the SAVOY Printed by Edw. Jones and sold by Samuel Lourdes against Exeter Change in the Strand and by Edward Jones in the Savoy 1689. TO THE READER THE Dominion of the Sea as 't is most apt to be made the fair Colour and specious Pretence to a War betwixt England and Holland when the Real Causes of such War are hidden and remote so nothing will so effectually preserve a lasting Union between Them by hindering the Root of Discord from growing again as a true Knowledge and right Understanding of that Matter About which there are many Traditional Mistakes and Popular Errors too currant among Vs and such as are not of a simple and innocent Nature but very dangerous and of evil Consequence The Consideration whereof gave the first occasion to the following Discourse which was Composed several Years since was Read and Presented to His late Majesty King Charles the Second and well accepted by Him and has since remained a Manuscript in the hands of several Persons of Quality And though it might receive a new Turn and Air more accommodate to the Present State of things and though the Time when it was written the Person for whom and the Niceness of the Subject it self obliged the Author to more of Caution and Reserve than perhaps would now be needful yet He was not willing to make any Alterations in it chusing rather to speak the Language of Truth than of Times for what was once True is always so though not always equally fit to be made Publick But surely now if ever 't is seasonable to remove all Obstacles and Impediments out of the way of a good Understanding between the two Nations when their most intimate Union and Conjunction is not only as at other Times highly expedient but absolutely necessary THE PREFACE SHEWING THE Author's Design THE following Discourse may possibly upon a slight and superficial view seem to have some tendency towards the diminution of the Rights of England and consequently the enlargement of those of other Governments but upon a serious and deliberate Perusal there will not appear any just Ground for such Imputation 'T is doubtless very commendable in a Subject if he can with sound Judgment and convincing Reason advance the Pretensions of his Sovereign amongst Foreign Nations If it be the part of a good Judge Ampliare Curiam t is much more of a good Subject Ampliare Coronam For we all shine in the Glory of the Crown that is over us and even private persons have something of Lustre reflected on them from the Honour and Grandeur of the Monarchy under which they live Upon which account Mr. Selden has excellently well deserv'd of the Publick by heightning the Sea-Sovereignty of the Crown of England in his Learned Book entituled Mare Clausum a Treatise so comprehensive of what can be said on that Argument that he who should now write of the same would certainly incur the old Censure of writing an Iliad after Homer But if all the Claims and Pretensions of the Crown of England supported by the Authorities and Allegations produced in that Book shall be vouch'd as the proper Standard and Measure of Right and Wrong betwixt Us and other Nations if the Controverting thereof by Them shall be esteemed by Us as an Invasion and Usurpation and consequently the just cause and foundation of a War If what is well written must be fought for too not being to be gain'd but by a longer Tool than a Pen the King of England will unavoidably be cast upon this haâ—d Dilemma either of being involved in endless and dangerous Quarrels with all his Neighbours abroad or of having his Honour and Reputation prostituted at home as tamely suffering the best Jewels of his Crown to be ravished from it and the Regalities thereof transmitted to him from his most noble Progenitors to be usurp'd by Foreigners Nor does the Mischief cease here for in case he should at any time enter into a War for the more vigorous asserting and maintaining those Pretensions and they not be included in the Terms and Conditions of the following Peace the Inference will be this That he was so far worsted in the War as to be constrained to buy a Peace if not by a total abandoning of them yet at least by a temporary Recession from those Pretensions Let me add one Consideration more If a War betwixt England and any other Kingdom or State be grounded and stated upon a Sea-Dominion by help of this Advantage an Enemy will gain the Weather-gage of us and derive from it a considerable Benefit to himself Hoc Ithacus velit A Dutch-man will desire no better For by this means we shall disoblige and disaffect all our Neighbours to our Cause and Quarrel at such a time when we most need their Friendship and Assistance This will awaken Fears and Jealousies and strongly alarm them to an early securing of their own Navigation and Commerce against those who would impropriate the Seas They will not so much regard the Justice of our Cause as the Consequents of our Success and will be sure to range themselves with Heart or Hand or both as occasion shall require on that side to which they shall be invited by a common and complicate Interest It will not be a War betwixt this Prince and That betwixt Holland and England but betwixt the Continent and an Island and the Question will be briefly this Whether the Island shall have the Sea to her self or whether the Continent shall have share with her As this is consonant and agreeable to Reason to suppose that it will be so so 't is verified by Experience that in Fact it has been so We need look back no farther than the Year 1665. England was then in open War with Holland and as previous thereto the Parliament granted a Royal Aid the end whereof is publickly declared in the Preamble of the Act An. 16 17 Car. II. viz. To equip and set out to Sea a Royal Navy for the Preservation of His Majesties ancient and undoubted Sovereignty and Dominion in the Seas This was exactly calculated for the Meridian of England it serv'd to inspire our Captains and Officers with Honour to animate our Seamen with Courage to dispose the whole Body of the People with Chearfulness and Unanimity to undergo so mighty a Supply answerable to the Greatness of the Undertaking But it serv'd not to so good Effects beyond Sea as soon appeared for the Balance of Success had no sooner inclined to England by that signal Victory obtain'd under the happy Conduct of His then Royal Highness over the Dutch Fleet An. 1665. commanded by Lieutenant-Admiral Opdam but France stood over to Holland Denmark was following and had the War continued and the Series of Success not been interrupted
from him is to set a Superiour over him and to exercise Jurisdiction within his Territory without an Authority derived from him is to King it in another's Kingdom to set up Co-ordinate Supremes within one Realm in Matters of the same Civil Cognisance Which is as much a Contradiction as to affirm many Infinits for as the Infinity of one makes all others finite so the Supremacy of one makes all others Subordinate Thirdly From a Right of Fishing within those Seas without special Licence first obtained from the Lord of the Seignory and under such Conditions and Considerations as he shall think fit The reason is because this is the Patrimonial Property of his Crown and the Fishery is in a manner all the profit that his great Sea Territory yields him The Dominion of the Sea without an appropriate Fishing is as if a Vineyard should be a Property but the Grapes common Or like an Estate or Possession of Land vested in one to the use of another 27. H. 8. cap. 10. and such we had many here in England till a good Statute executed the Possession to the use and so conjoyn'd what ought not to have been divided Nor can it be alledg'd that a promiscuous Fishing in the Sea is of no damage to the Proprietor for admitting the multitude of Fish to be so great as to suffice all Mens use which is not always true yet this will abate the price of the Market for Sale nor can the Fishery be Farm'd out if occasion be at so good advantage For so we read that the Eastern Emperour let out to Farm the Fishing in the Aâ—gaean Sea near Byzondium Niceph. Greg. l. 9 at the yearly Rent of Ten thousand Crowns and sometimes more I am sensible that what I have already said and part of what follows will be thought by some to run too much into the Niceties of Law and School and that 't is a Thread spun too sine But without the help of such a Thread how sine soever it may seem we shall wander without end in a Labyrinth of Phrases and sorms of Speech we shall lose Things in the ambiguity of Words and mistake Shadows for Substance He who affirms a Sea-Dominion and by it understands any thing less than Property embraces a Cloud for Jâ—â—â— To ride actual Master at Sea with a well â—quipp'd Fleet or to have such a Plenty of Naval Stâ—res in constant readiness as shall be sufficient to answer aâ— Occasâ—ons is not the Dominion of the Sea This is â—ower not Property though the Property and Honour toâ— especially of an Island Prince are best secured and supported by such â—ower Neither is the Honour of the Flag and of requiring Foreign Ships to lower their Sails and do a Reverence any part of the Dominion of the Seas nor has any relation to it as I shall shew presently Much less do such usual Expressions and Words as these the British Seas the Sea of England Our Seas import any legal Dominion but only denote a Geographical Description as Mare Flandricum Mare Nermannicum Mâ—re Arâ—mericum Mare Aquitanicum and a hundred others do And nothing more usual than for Seas to receive their Denominations from the Shoars they rowle upon and Our Seas are the Seas which rowle upon our Shoars But that which occasions the ordinary and most frequent Mistake is the word Dominion it being equivocal and of a doubtful sense as the Latin words Impertum and Dominium likewise are For sometimes they are taken strictly and legally denoting Property and thus Imperium and Dominium are the same with publick and private Property according to that of Seneca Seâ—de Beneâ— l. 8. c. 5. Râ—x emnia possidet Imperio singuli Dominio The King possesses all by his Sovereignty and yet particular Persons have their private possessions too But then again sometimes they are taken loosely and Historically denoting Power only and Command as Pompeio datum est Imperium maris intra Herculis columnas The Roman People gave Imperium Maris to Pompey the Command of the Sea not the Property of it They Commissioned him their Admiral or General at Sea as far as the Streights Mouth Thus some of the Roman Emperors were intitled Terrae Marisque Domini Lords or Despots of Sea as well as Land so is Vespasian called by Josephus And yet they were but Lords in Power not in Property Jure naturali communia sunt omnium aer aqua profluens Mare Inst de Rer. Div. Par. 1. for by the very Text of the Roman Law as it was afterwards compiled by Justinian the Sea is accounted as common as the Air and that by natural Right And thus some Men understand no more by Dominion of the Sea than what our usual Sea-phrase imports to ride Master at Sea or of the Sea. But 't is one thing to be Master of it in an Historical and Military sense by a Superiority of Power and Command as the General of a Victorious Fleet is another thing to be Master of it in a legal sense by a possessory Right as the ture Owner and Proprietor of it is In like manner we say of a General at Land that he is Master of the Field Master of it in Power not Owner of it in Title Property is a fix'd and permanent Right a man may lose his Seisin and yet retain his Title an Usurper is no Owner but Power is flitting and transitory and so soon as the Possession is lost the Power is gone If we confound Power and Property Potestas Proprietas by a promiscuous use of the one for the other the Dominion of the Sea will be like that of our Cornishmens Ball at one of their Hurlings 't is his who can catch it so long as he can keep it till another gets it from him I shall add one Quotation more out of the Roman Story not wholly unworthy observation 〈◊〉 Anâ—â—â— 4. Tacitus says Italiam utroque mari duae classes Misenum apud Ravennam praesidebant Two Fleets guarded Italy on both Seas one at Misenum the other at Ravenna Sueton. Vit. 〈◊〉 And Suetonius ascribes the first Institution thereof to Augustus Classem Miseni alteram Ravennae ad tutelam superi inferi Maris collocavit The Fleet at Misenum was for the safety of the Upper Sea towards Gaul and Spain Westwards the other at Ravenna was for the safety of the Lower Sea towards Epirus and Greece Eastwards Our Kings in England have so exactly followed this Model of Augustus that one would think they had copied from his Original Has Italy an upper and lower Sea So has England Our upper Sea is that Northwards betwixt England and Germany Our lower Sea that South Westward betwixt England and France Had the Roman Emperors their distinct Fleets one for each Sea Our Kings had their distinct Admiralties one for the North and another for the South reckoning North and South from the mouth of the River Thames Their
Dover And the Dutch Fleet put out in like manner upon the North-East Sea and fought the Spanish Fleet in the Downs 'T is true that Sir John Pennington who then commanded the English Guard endeavoured to hinder them from sighting so near the Ports to the disturbance of the Security and Protection of them and troubling the Commerce and Entercourse of the King's Lieges and Allies But no Complaint made either then or afterwards of the two Fleets of War entering the Seas aforesaid parcel of the Dominion and Territory of the Crown of England without a special License first ask'd and obtain'd And it would be Time mispent to recount how often either Spaniards French or Dutch have entred these Seas with armed Fleets and Convoys as their Occasions obliged them freely without leave and without controul I speak not here of the private Notices and Intimations which one Prince may in friendly manner give another to satisfy him of the reason of any extraordinary Military Preparations and of the clearness of his Intentions towards him But of a formal previous Leave to be ask'd and obtain'd by a Foreign Prince or State before they put out to Sea upon the Maritime Territory of the Crown of England in a Warlike Equipage In the year 165â— The States General gave publick Notiâ—e by their Ambassadors here in England that they had Resolved to fit out to Sea an extraordinary Fleet of One hundred and fifty Men of War besides those in present Service for the Security and Preservation of their Navigation and Commerce They did not ask leave to do it but first resolv'd upon it and then gave Notice and they pretended this Notice was an Argument of their Sincerity and good Will in order to prevent all misunderstandings and finister interpretations But they in England understood it otherwise and resented it as a Bravado and Insult I Pass now to the second Incident of the Sovereignty Of the Marine Jurisdiction and the Laws of Oleron Videsis Vs Corstumâ—s de la Mer printed at Boâ—â—deaux 1661. to Examine the Matter of Fact as to that viz. The Marine Jurisdiction 'T is commonly affirm'd by English Writers that our King Richard the First the French give a different accompt did in his return from the Holy Land make and declare certain Marine Laws for the better Regulation of Commerce which from the place of their first Publication were call'd the Laws of Oleron A small Island scituate in the Bay of Aquitain and a Member of that great and wealthy Dutchy which was in the actual Possession of King Richard as his maternal Inheritance for it came to his Father Henry the Second by Marriage with Elianor Daughter and Heir of William Duke of Aquitain And by the way it may be noted that this Dutchy either in whole or part continued in the Possession of the Kings of England by ten Descents to the 32d of Henry the Sixth near 300 years though that of Normandy continued but five Descents and ended in King John. But whether these Laws were Published as aforesaid by King Richard or whether about Sixty years after as some Printed Editions would have them is not an Enquiry pertinent to this place Be it admitted those Laws were Published by King Richard who was actual Duke both of Aquitain and Normandy and in right of the latter Lord on both sides the English Channel The great entercourse betwixt his English and French Subjects and those of his Allies required a certain Rule of Sea-Laws for the more speedy and impartial Determination of all Controversies which might occasionally arise These Laws of Oleron as to the main of them are but a transcript of the old Rhodian Laws with some new Additions and Amendments accommodated to the practice of that Age and the Customs of the Western Nations who thereupon might readily conform to them as to a common Standard and Measure like a Law of Nations for the more equal distribution of Justice amongst the People of different Governments But to infer from hence an Universal Monarchy at Sea and that King Richard in right of his Imperial Crown of England and Ducal Crowns of Nâ—rmandy and Aquitain did as sole or Supreme Legislator for the Marine authoritatively impose Sea-Laws upon the People and Subjects oâ— other Nations is but a strained inference The Romans were far enough from yielding a Sea-Sovereignty to the little Republick of Rhodes and yet were so well satisfied with the Equity of their Sea-Laws that they not only conform'd to them Lab. 11. Dâ—â—â—l but incorporated them into the Body of their Digest And as the Rhodian Laws obtain'd in the Mediterranean and the Laws of Oleron in the Western and English Seas So the Laws of Wisbuy a Town scituate upon the little Isle of Gotland in the Eastern part of the Baltick formerly under Denmark now under the Crown of Sueden call'd from thence Leges Wisbuicenses Pâ—â—k in 〈…〉 Tit. Diâ— Cod. 〈…〉 p. 19â— were received by the general consent of the Northern Traders as a common measure for all Nautick Assairs to the Northwards of the Rhine and throughout the whole Baltick That the Sea is within the Jurisdiction of the King of England is a matter unquestionable not at home only but amongst all Nations His Admiral has and ever had through a long series of Ages the Conusance of all Contracts Pleas and Querrels made upon the Sea out of the Body of any County of England Which Power is inlarged by the Statute of 15 R. 2. cap. 3. to Death and Mayhem upon great Ships in the main Stream of great Rivers And by the Statute of 28. Hen. 8. cap. 15. a Court of Commission may be held under the great Seal Coram Admirallo c. to hear and determine all Treasons Felonies Robberies c. done or committed upon the Sea. But then 't is evident and undeniable also that the Neighbouring Kingdoms and States who border upon the Sea have their distinct Admiralties likewise and have long since had where their Subjects and People receive sinal Sentence in all Maritime Causes without exception of any Seas or without Appeal to the Admiralty of England as the last resort or as having Supream Conusance of all things done and committed in and upon the Brittish Seas If a French or Dutch Vessel take a Pirat of what Nation soever who has committed a Robbery upon the English Seas they do not remit him to the Admiralty of England as to the sole Tribunal of the place where the Fact was done to receive Sentence there but they carry him before their own Judicatories and judge him as an Enemy of Mankind by the Law of Nations If one Foreigner does any Injury to another be it Fraud or Violence upon the British Seas the Party injured makes not his Complaint to the Admiralty of England as the proper Court and as having the sole Juridical Conusance of his Plea but resorts to the Jurisdiction of his own Sovereign or
stands on both sides upon an equal foot both Lords equally giving and taking an undisturb'd Liberty for their respective Tenants This I humbly conceive is good Evidence that the Fishery lies common to both Mannors Suppose again this Lake to be the Sea and the two Mannors to be two Kingdoms and the Case will still be the same None of our Leagues and Treaties made either with the House of Burgundy or with the House of Austria since the Union of those two Houses or with the States General since their disunion from both have ever reserved to the Crown of England any Annual Payment Fee-Farm or Consideration for their liberty of Fishing in our Seas A certain Sum was never agreed an uncertain one could never be demanded And yet Sir John Boroughs in his Book of The Sovereignty of the British Seas says That Philip the Second King of Spain obtain'd of Queen Mary his Wise License for his Subjects to fish upon the North Coasts of Ireland they paying yearly for the same One thousand Pounds Sterling which was accordingly paid into the Exchequer of Ireland But instead of an Authentick Record he vouches only the hearsay of Sir Edward Fitton Son to Sir Henry Fitton sometime Treasurer of Ireland who he says had often testified it This may the rather be suspected of mistake Annal. Eliz. An. 1602. because Mr. Cambden relates how that Queen Elizabeth having sent four Ambassadors whereof one was Principal Secretary of State and not lightly to be supposed ignorant of such an Affair to treat at Bremen with the Ambassadors of Denmark upon Complaint of that King 's forbidding Foreigners the freedom of Fishing betwixt Norway and Iseland both appertaining to the Crown of Denmark The Queen's Ambassadors openly affirmed that the Kings of England had in no time forbid the freedom of Fishing in the Irish Sea albeit they were Lords of both Banks The said Mr. Cambden in his description of the North-Riding of Yorkshire speaking of Scarborow-Castle says That the Hollanders and Zelanders take wonderful Quantities of Herring upon this Coast Cùm veniam priùs veteri instituto ex hoc Castro impetraverint Whereas they were wont by ancient Use to ask leave first of the Castle For says he the English always gave leave to Fish reserving that Honour to themselves but slothfully resigning the Profit to others But all this while he quotes no Authority neither nor directs us to any Original Record where we might consult the plain Truth of the Case Perhaps what he Historically calls Asking Leave was but giving notice of their Arrival and acquainting the Governor who they were and what their Business was upon the Coasts lest under the disguise of Fishermen Pirats and Enemies might privily hide themselves And probably he by his Civilities to the Fishermen might make some Perquisits and Profits to his Place by permitting them as occasion required to dry their Nets ashore to fetch Victual or fresh Water from Land to fish within the Havens and Bays where commonly the best fed Fish are taken But 't is not likely that the Governor of Scarborow had so indefinite a Power as to enable him to give leave upon bare Asking without any further Condition or Consideration to all Foreigners to fish at pleasure within the Royalties of the Crown However 't is too manifest That no Prince nor State did ever pay to the Crown of England any yearly Sum of Money or other valuable Consideration for the Liberty of their Subjects Fishing upon the Seas of England for had such Sum been paid it would have passed into the Accompt of the Exchequer as a Branch of the Royal Revenue and there remain upon Record As for the Case of my Lord of Northumberland in the Year 1636 that 's extraordinary and will not pass for a President The Dutch Busses were then required by the English Admiral to take Licences from him for Fishing in the Northern Seas and to pay moderate Rates for the obtaining those Licences which they did to redeem themselves from the forcible Molestations of a well-appointed Fleet. So that this was the Compulsory Act of private Persons not the Voluntary Act of the States-General who were so far from consenting to what was done that they made Remonstrances and Complaints of this Proceeding by their Ambassadors here in England And as it appears not by the Records of the Exchequer That any Recompence was given by Foreigners for Liberty of Fishing within our Seas so neither does it appear by any the publick Treaties That the Subjects of any Foreign Prince should ask leave for so doing by Stipulation and Contract though they were sure to have it without paying any thing only by the bare asking to keep in memory a perpetual Acknowledgment of a beneficiary Grant derived from the Crown of England as Supream Lord of the Fee. On the contrary the Treaties caution for a Liberty of Fishing absque licentia without any Leave or Licence first to be ask'd And yet England has ask'd leave and covenanted so to do of a foreign Crown I would not have mentioned this had it been a Secret but 't is a thing publick and in Print By Treaty made and concluded in the Year 1490 betwixt Henry the Seventh of England and John the Second King of Denmark which Treaty was afterwards renewed betwixt our Henry the Eighth and their Christiern the Second Anno 1523. it was mutually covenanted That the Liegemen Merchants and Fishermen of England should Fish and Traffick upon the Northern Sea betwixt Norwey and Iseland V. Cambd. Annal ad An. 16â—0 but under a Proviso of first asking leave and renewing their Licences from seven Years to seven Years de Septâ—unio in Septennium from the Kings of Denmark and Nâ—rwey and their Successors they are the words of the Treaties But as Navigation enlarged and England grew more opâ—lent in Trade and posent at Sea all this is gone into utter disuse and discontinuance and the Kings of England may with better Right prohibit the Subjects of Denmâ—k from passing the English Sea or Channel without special Licence first obtain'd than the Kings of Denmark can the Subjects of England from passing the Northern Sea betwixt Dâ—â—â—ark and Iseland There is a Record 〈…〉 which Mr. Selden quotes out of a Parliament Role of King Richard the Second is very remarkable 'T is a Grant in Parliament of an Imposition according to certain Rates and Proportions upon all Vessels Passing or Fishing within the Admiralty of the North viz. Upon the Sea Northwards from the Mouth of the Thames The Rates were as follow 1. To take of every Ship going and coming upon that Sea Six Pence a Tun for the Voyage 2. To take of every Vessel Fishing for Herring Six Pence a Tun by the Week 3. To take of Vessels Fishing for other Fish Six Pence a Tun for every Three Weeks 4. Of Ships laden at Newcastle with Coals Six Pence a Tun for every Three Months 5. To take of all