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
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
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