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
Sovereigns under a Personal Obligation of Fealty to another The respective senâ—â—â—ry Princes were siduciary Homagers to the Kings of France but the Crown of France had no Regal Jurisdiction or Authority within those Frincipalities Thus the great Dakedoms of Aquitain and Normandy were under the Kings of England that of Britany was under a Duke of its own the Earldoms of Provence Tolose and â—anders acknowledged their own Sovereign Counts In those days the Crown of France had only a small Sea-Coast upon Picardy and some in the Mediterranean But in the time of Philip the Fair that Crown was in the actual possession of all Normandy and as the other Principalities became reincorporated into the Body of France from whence they had formerly been dismembred as now they all are excepting some part of Flanders that Kingdom as it enlarg'd it self to the Sea by the accession of many new Coasts so the Marine Jurisdiction thereof encreas'd proportionably I say the fore-recited Libel does not deny a Civil Power or Capacity in the Crown of France to create an Admiral and to invest him with Marine Jurisdiction But the Exception is partly against the Person of Grimbald and partly against his illegal Practises and Seisures contrary to the Alliance made betwixt the two Kings Now this Grimbald was a Foreigner and a Mercenary he was a Genoese whom the King of France had hired with several Gallies of that Republick to serve him in his War against Flanders The Plaintiffs in their Libel call him Maistre de la Navy du Roy de France Master or Commander of the French Fleet but would not vouchsafe him the Title of an Admiral only Que se dit estre Admiral that he call'd himself an Admiral and craftily reclaim the Conusance of their Cause from him as an incompetent Judge to the Admiral of England as an undoubted Authority and before whom they were sure to gain their Process I Have done with the Marine Jurisdiction Of the Fishery and proceed now to the third and last Incident of the Dominion of the Sea and which inseparably follows it and that 's the sole Fishing without which it would be a Property without Profit a Name without a Thing He who has the Soil or Ground has the Herbage and other Growth of it or else a Rent for it if others may freely depasture with him it is a Common The Enquiry is upon the Matter of Fact as to Fishing upon the Seas about England in which our publick Treaties made betwixt our Kings and other Sovereigns will be our best Direction And they stand thus All the ancient Treaties I could meet with concluded betwixt the several Kings of England and their old Confederates the Dukes of Britanny and Burgundy which in those Ages were the most powerful Neighbours they had at Sea are of the same tenour and run in the same form viz. They Covenant on both sides that their respective Subjects should freely and without the let or hinderance one of another fish every where upon the Seas without asking any Licenses Pasports or safe Conducts This is the General Form of them all For Example In the Treaty betwixt Edward the 4th of England and Francis Duke of Britanny the Article in the French of that time runs thus That the Fishermen both of the Kingdom of England and Dutchy of Britanny Purront peaceablement aller par tout sur Mer pour pescher gaigner leur vivre sans impeachement ouâ— disturber de l'une partie ou de l'autre sans leur soit besoigne sur ceo requirir sauf Conduct And the same form had been used before in the Treaty betwixt Henry the 6th and the then Dutchess of Burgundy Thus also in the famous Treaty called Intercursus magnus made in the Year 1495 betwixt Henry the 7th of England and Philip the 4th Archduke of Austria and Duke of Burgundy in the 14th Article 't is agreed Quod Piscatores utriusque partis poterint ubique ire Navigare per Mare secure piscari absque impedimento licentia seu salvo conductu And this form is also kept to in the Treaty made betwixt Henry the Eighth and Chaâ—les the Fifth Emperour and Duke of Burgundy In the time of Queen Elizabeth after that seven of the seventeen Provinces had set up distinct Sovereignties of their own they still enjoyed the same freedom of Fishing as they had done before when united with the House of Burgundy And in the Treaty made betwixt King James of England and Philip of Spain in the Year 1604 the ancient Treaties of Entercourse and Commerce betwixt the Kingdoms of England Scotland and Irelanâ— and the Dominions of the Dukes of Burgandy and Princes of the Low-Countries are reviv'd and reconsirm'd From whence it appears upon the whole Matter of Fact That the Kings of England in their Treaties with other Sovereigns not once or twice but in a Succession of Ages not by surprize but deliberately and when the business of the Fishery came under special consultation did not challenge to themselves the sole Right thereof exclusively of all others as being appropriated to the Crown of England For had they esteemed the Fishery the Property of their Crown and all Aliens excluded from it they would not have admitted the Subjects of Britanny and Burgundy to a promiscuous Fishing with their own Subjects without some valuable Consideration had been given for it or at least some License obtained as a beneficiary Grant derived from them or some Acknowledgment made by way of a Salvo Jure a Saving to the Right of the Crown or England Else it would be as unreasonable as if a Man should throw down the Inclosures of his own Ground and lay that common which before was his Property which is too gross a Reflection upon the Wisdom of those Ages And this may be further illustrated by a samiliar Instance Suppose here in England two great Mannors and betwixt them a large Lake of fresh Waters well stored with Fish and it can be proved That not only Time out of Mind the Tenants of the two Mannors have promiscuously fished therein but that also the Lords of both Mannors have in several Ages contracted each with other for a free Fishing without Leave or License to be first ask'd or obtain'd for their respective Tenants And in the Contract no Exception or Reservation is made of the Fishery as parcel of the Inheritance of one of the said Mannors nor any Words creating a Tenure whereby one should hold of the other nor expressing or implying that it was but a Temporary Sufferance that one of the Lords should share for a time in the Profits of the Fishing without any share in the Fee or Inheritance of it And this by the free Donation of the other commonly call'd De Gratia Speciali or for a valuable Consideration usually termed Quid pro quo or to hold by some small Acknowledgment of Tenure as of a Pâ—pper-Corn Yearly But the Contract
thus proposed That the Dutch Ships both Men of War and Merchants besides striking the Flag should suffer themselves to be visited if required and should perform all due Offices of Honour and Acknowledgment to England to whom the Dominion and Sovereignty of the British Seas of right appertain'd But this Article was rejected by the Dutch as were several other Proposals of a high nature for it was then urg'd and for some time insisted on that there should be a Coalition of England and the United Provinces into one and the same Republick not an Union only but an Adunation not a mere Coition into a stricter Bond and League of Friendship but a Coalition of both into one Government But this was rejected too as impracticable If the Question were only concerning the Antiquity of this Ceremony how long it has been practised amongst these Europaean Nations for it had a time when it first began and it does not obtain universally We have a Record in our Admiralty which would be pertinent to this purpose It is an Edict or Proclamation published by King John at Hastings in Sussex in the Second Year of his Reign near 500 Years since and is transcribed by Mr. Selden out of the Records of the Admiralty to the following purport Mar. Clauâ— l. 2. c. 26. That if any Ships or Vessels laden or unladen refused to lâ—wer their Sails at the Command of the King's Lieutenant or Admiral or of his Lieutenant then to be compelled to do it by fighting them and if taken their Ships and Goods to be confiscated as may be seen more at large in the place noted in the Margin But the Proclamation says not that this lowering their Sails was to be done as an acknowledgment of the King's Dominion in the Western Channel to which Sea it especially relates and yet none could have better required it than King John for he was at that time in actual possession both of England and Normandy and consequently was actual Lord of both Shores and might have reckoned the Channel as an Appendant and Accession to the Land and to have followed it as the Accessory does the Principal as he is Lord of the intermediate River who is Lord of both the Banks But as this Proclamation expresses no such thing so neither does the penning of it seem to incline that way For it mentions not Ships of War who as such ought the rather to be obliged to make such Acknowledgment as being most likely to dispute it but only Ships laden or unladen Nefs ou Vesseaulx charges ou voide referring to Merchants and Traders be their Ships light or freighted and these Merchant-men are to do it not at the Command of every body but au Commandement du Lieutenant du Roy ou de l'Admiral du Roy ou son Lieutenant at the Command of the King's Lieutenant or the King's Admiral or his Lieutenant intimating a personal Respect due to their Rank and Quality especially from simple Traders However 't is certain that this Honorary Respect or Civility call it what you will is no natural expression of a Subjection to a Sovereign for 't is not founded in Nature but in Institution and is a practise peculiar to the Western Nations and the modes of Respect are so various in different Countries that what in one is a Civility in another is a Rudeness And as it is no natural expression of Subjection so neither is it a necessary one as if it must necessarily signify that or nothing for lowering the Flag or Sails is but like uncovering the Head by vailing the Hat or Bonnet which amongst us 'T is so called in the Journal of King Edw. 6. wrote with his own hand the words are these The Flemings Men of War would have passed our Ships without vailing Bonnet which they seeing shot at them and drove them at length to vail Bonnet See pag. 11. of K. Edw. Journal in the 2d Part of Dr. Burnet's Hist of Reform is used as a Token of Subjection to our King of Respect to our Superiors of Civility to our Equals of Courtesy to our Inferiors Thus we see one and the same specifick Act of uncovering the Head as it relates to persons of different Orders and Degrees admits of divers Significations Some of our Sea-Captains tho' irregularly enough and for want of explicite Orders have required of the Dutch the Honour of the Flag and Topsail in the Mediterranean and Baltick where the Crown of England never pretended Sovereignty And as in the forementioned Treatise of 1673 't is particularly named a Respect so 't is covenanted to be done not only within the British Seas but every where betwixt the Capes Finister in Spain and Staten in Norway beyond the Limits of the Sea-Sovereignty of England and consequently has no relation to it Besides this Honour to the King's Flag is required from his own Subjects but 't is needless to require from them an acknowledgment of Sovereignty to whose benefit it redounds the import is that Foreigners would acknowledge it to whose Profit 't is opposed Well then if this Ceremony does not relate to an acknowledgment of a Sovereignty in the Sea what is it that it relates to And what is the true import and signification of it I answer it imports these two things 1. 'T is Cultus Superioris 't is a Reverence or Respect performed to a person of Superior Quality and Degree 2. 'T is Symbolum Pacis Amicitiae 't is a sign or symbolical expression of Peace and Friendship Sometimes it signifies both these together and sometimes but one of them according to the different degrees of the persons performing it but it always signifies one of them and never any thing more The Dutch and other smaller Republicks perform it both as a Respect to the Crowned Head of England and as a Salutation of Peace and Friendship also But Crowned Heads cannot perform it as to one of a Superior Order because they are in a parity and equality of Degree but they do it upon the later accompt only as 't is an expression of Peace and Amity The Dutch and others do not by the Flag and Topsail recognize the King of England as Sovereign of the four Seas nor acknowledge themselves thereby his local Subjects and their Persons Ships and Goods to be under his immediate Jurisdiction and Protection whilst in and upon those Seas but they acknowledge him as Praeeminent in Order and Quality not as Sovereign over them but as Superior to them in Dignity and Degree Were I to express it in Latin I would do it by that old Roman Phrase of Comiter Colere or Observare Majestatem They pay Honour or Respect to the Majesty of a Crowned Island And as to the Crowned Heads tho' they cannot as I said before pay Respect to a Superior because of the parity of their Degree yet as to the Sea-Salutation by the Flag and Topsail there is a peculiarity on the part of England