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
by the Fatalities of the Plague Fire and other Accidents by occasion whereof a Peace intervened there had at that time been as formidable a Confederacy and Conjunction formed against England An. 1508. as that at Cambray against Venice To remedy the said Inconveniences and obviate the like I thought it useful in the following Discourse carefully to distinguish betwixt the Question of Right and the Question of Fact betwixt the Pretensions of the Crown of England and the Possessions of it betwixt what it has continually Claim'd and Demanded as an ancient Right and what it has been actually seised of by a long peaceable and uninterrupted Enjoyment which implies a Consent and Acknowledgment on the part of other Nations The later of these is the true Touchstone of Wrong and Injury for what has been anciently claim'd may have been as anciently denied and so remain Lis pendens a Question undecided But what has been peaceably Enjoyed and thereby passed into an acknowledged Right afterwards to detain or controvert is a manifest Injury and Usurpation And by this we shall easily discern whether the Crown of England maintains its Ground or whether it has lost any thing of what it formerly had by new Encroachments and Disseisins such as may furnish Matter for a just Resentment and Vindication In the mean time the Pretensions of the Crown stand as they did what they were that they now are no diminution of them no derogation from them 'T is Courage in a Nation strenuously to maintain their own and 't is Justice rightly to distinguish their own and the best Temper of Government is neither to do a Wrong nor take it I thought it needful also to examine the accustom'd Salutation at Sea by the Flag and Top-sail and to endeavour to clear the true significancy and import of it and the rather because it has been the occasion of Spilling much Blood in Europe within these Forty Years last past and may be of the Effusion of more if a timely Remedy be not applied to so growing an Evil which is almost become a Common Make-bate betwixt the Europaean Nations And all this partly by over-straining a fine Thread and laying greater weight upon it than it will bear but chiefly for want of a certain and determinate Regulation for whil'st Sea-Captains are by the generality of their Instructions referred only to former Use and Custom and what that is not distinctly known many Irregularities and Indiscretions ensue not unlike to those of some Gallants at Land who think it a Point of Honour to quarrel for the way or justle for the Wall with all they meet but with this difference these do it only to the endangering their own Persons but the others to the engaging their Masters many times in unnecessary Feuds and Disputes This is the Mark at which the following Discourse is levell'd and by these Measures it has been guided And the whole Design of it tends to this to prevent needless Quarrels and such as are stated to Disadvantage abroad and to justifie our King's Reputation against Censure and Reflection at home That whil'st He preserves the publick Peace His Honour may not be impeach'd nor yet His Honour of which He has so quick a sense be made use of through mistaken Appearances to imbroil his Peace But be left free to Steer an even Course betwixt the tender Regards of the one and the prudential Considerations of the other In order to which Design it was necessary for me to remove some Obstacles and Impediments as I found them in my way To clear the true Notion of Dominion and Sovereignty in all the chief Branches and Dependencies of it To trace Matters of Fact through the National Treaties made betwixt our Kings and other Princes To vindicate some Passages in our Books and Rolls from Mistakes and Misapplications And all this without any Vanity of refuting Mr. Selden who if he has extended the Rights of the Crown of England to the wrong of other Princes Viderint ipsi let them look to it whose concern it is But merely in prosecution of the Design of a Discourse which besides that it Asserts the Honour of our King by shewing in Fact as to Sea-Matters how He Maintains whatever his Ancestors have Enjoyed may as is humbly conceived be further serviceable for these two Ends First To put a stop to some popular Errors which prevail to the great Inconvenience of the King by continual Prompting and Exposing Him upon pretended Points of Honour to a perpetual Strife with all His Neighbours for things not safe to be insisted on never enjoyed nor likely ever to be obtain'd Secondly To pacify and allay those Jealousies which dispose Foreign Princes upon all Occasions to enter into Confederacies prejudicial to the Interests of England For as it has been the Policy of France in this last Age to lord Spain with an Imputation of affecting an Universal Monarchy So 't is the Practise of Holland to charge England with an Affectation of a Sea-Monarchy to the belief of which we too unwarily contribute And under this Covert the Dutch advance their own Designs as the French have done theirs under the former As to the Method of this Treatise it is divided into these Four General Heads I. WHat is meant by the Dominion and Sovereignty of the Seas and what the true Notion or Idea of it is II. What Things are incident to this Dominion and inseparably follow it III. What the Salutation at Sea by the Flag and Top-sail signifies and whether it has any relation to the Dominion of it IV. The whole Matter of Fact betwixt the Crown of England and Foreign Princes and States in the several Incidents of Sea-Dominion is distinctly examined and impartially reported These General Heads contain several Subdivisions concerning the Quatuor Maria. The Laws of Oleron The Roll in the Tower De Superioritate Maris The Fishery licens'd and limited c. OBSERVATIONS CONCERNING THE Dominion Sovereignty OF THE SEAS c. IT has been learnedly argued on both sides How Dominion was first introduced whether there be any just Dominion or Property in any Sea For in the Primitive and Natural State of Things antecedent to humane Fact and Consent Privata nulla Naturâ sed aut veteri occupatiâ—ne aut c. Cic. de Offic. l. 1. the whole Earth was common and undivided unto all Mankind but then as it was common so it was without culture Men living upon the spontaneous Productions of it in an easy and innocent but rude and simple manner Their Dwellings were Tents their Drink Water their Bread Roots and Nuts their Clothing the Bark of Trees or Skins of Beasts Wherefore to better the condition of Humane Life Nam propriae telluris herum Natura nec illum nec me nec quenquam fecit Hor. 2. Sat. 2. by the Encouragement of ingenious Arts and industry Consent either express or tacit introduced Occupancy and Property that every man might
Terms Dominion and Sovereignty I pass to the third and that is the Sea or Seas Whereby Sea is not to be understood such a collective Body of Waters singly and solely as Waters for the moveable inconstant Waters whither of Sea or River barely as such are not a capable Subject of Property but as Waters contain'd within a six'd and certain boundary and supported by a standing Bottom In the First Sense no Man goes twice into the same River in the Second a River is the same in a Succession of Ages And in this later Sense the Sea as it is a solid Alveus or Receptacle of Waters contained within a certain boundary is as truly and as properly Territory as the Land. 'T is Territorium à Terra from the standing bottom of Earth by which the Waters of it are supported and from the unmoveable Shoars of Earth within which those Waters are contained Having sufficiently explain'd the Terms if one now should ask me What is meant by the Dominion and Sovereignty of the British Seas which the Kings of England are said to have continually claim'd in Right of their Crown of England I would Answer By Dominion is meant the publick Property of those Seas as part of the Territory of their Realm of England and consequently all other Princes and People excluded not from all but from an equal use of them By Sovereignty is meant that sole Supreme Rule and Jurisdiction which the Kings of England Successively have over the whole Realm of England of which those Seas are a Part. If he should further ask me how does this Right in the Crown of England appear and by what proofs is it evidenced I would refer him to Mr. Selden whose Proofs and Arguments whether they come up to the height of such a Dominion as I have here described which they ought to do or else will fall short of the Mark is not for me to say I leave that to the Judgment of his Reader wishing they were so convincing and demonstrative that all other Nations as well as our own would rest satisfied therewith But if he asks me of matter of Fact whether the Kings of England have for any long time been in the actual and peaceable Possession of such Dominion as a Right acknowledg'd by the express or implied consent of other Nations this I shall examine by and by But whereas I hinted before that the Dominion of the Crown of England in the British Seas did not exclude other Princes and States from all use but from an equal use of those Seas this needs a little Explication In order to which 't is to be considered that as all Property first began by Humane Fact and Consent antecedent to which was Communion So in this consent was implied a Reservation and benign Exception of such use as might be of great benefit to others without any considerable Damage to the Proprietor A River as a Fishery is a private Dominion no Man may Fish there without the Owner's leave because it would be a diminution of his Profit If Navigable as a Way 't is Publick to all the Subjects of that Prince Quid proluâ—â—â—s aquas 〈◊〉 communis aq tarum 〈◊〉 Ovid. who is Lord of the Territory As 't is running Water 't is common to Man and Beast to Drink of it and Wash with it A Field is a private Property but the Market-Path over it is publick and when it was first made a Property it was with reservation of a Path. For Fields were not distinguish'd by Metes and Bounds to their respective Owners with design to confine every Man to his own home but with exception of Liberty to pass and repass in a harmless manner over each others Properties in pursuance of their lawful Occasions The Sea say we is the publick Property of the Crown of England but yet as 't is a Way 't is common to the peaceable Traders of all Nations A Path over a Field is of some damage to the Soil though compensated with a greater utility but a way over the Sea is of no damage to the Water and the Sea being a fluid Body is all Path where a Ship can Sail and a common Highway from one Nation to another And this is so far from being a damage to any that 't is highly beneficial to all for as there is no Man so Self-sufficient as not to need the continual help of another so neither is there any Country which does not at some time or other need the Growth and Productions of another Well then since 't is the Nature of Property in general so to make a thing mine as 't is not anothers eodem modo in the same manner as 't is mine And the Dominion of the Sea in one Prince does not exclude another from all use of it It may not be unfitly demanded what are those Proper Uses which are so peculiarly reserved to the Crown of England in right of such supposed Dominion as that all other Nations are excluded from them And this will lead me to the Second General Head which I proposed viz. CHAP. II. What Things are incident to the Dominion of the Sea and inseparably follow it I Answer these three Things 1. A Right of Excluding all foreign Ships of War from passing upon any the Seas of England without Special License for that purpose first obtain'd 2. The sole Marine Jurisdiction within those Seas 3. An appropriate Fishery First All Foreigners are Excluded by virtue of such Dominion from a general Liberty without first asking and obtaining special Licence of putting out upon the British Seas Ships sitted and Equipp'd for War when and in what Number they please The reason is plain because 't is the Territory of another Prince And to enter it without leave with an armed Force and in such Numbers as may justly occasion Fear and Suspition of Danger is a publick Hostility The Persians were restrain'd by Pact and League made with the Athenians from entring with armed Vessels within the Cyanean and Chelidonian Islands Plut pi Cim but had the Persians acknowledged the Territorial Property of those Seas to have been in the People of Athens there had been no need of such Pact for in the reason of the thing it self abstracted from Covenant it had been as much an Hostility to have entred those Seas with a Fleet of War as to have Landed an Army upon Attica for both were equally the Athenian Territory Secondly From the Juridical cognisance of all Causes Civil and Criminal for and concerning all Matters and Things done and committed in and upon those Seas the Persons whom those Causes concern there abiding The Reason is because Jurisdiction is an Essential and Inseparable part of the Sovereignty which a Prince has within his own Territory All Foreigners whil'st in it owe him a local Obedience and are triable by his Laws and before his Judicatories only as the sole Supreme Judge of the place And for any to Appeal
other Crowns as if no Crown had Ligeance at Sea but that of England only or as if no Foreigner aboard his own Vessel within any the four Seas were within the Ligeance of his own natural Sovereign for this is manifestly repugnant to daily Fact and Experience as we shall see anon when I come to the Question of Fact. As to that other Expression of the Seas Co. in Constaâ—â— Case ut supra being parcel of the Crown of England the forementioned Author in the place before cited expounds his meaning to be That 't is parcel of the Inheritance of the Crown of England Thus Jetsam Flotsam and Lagan appertain to the King by his Prerogative Goods thrown over-board to lighten a Ship in distress by Weather are called Jetsam Goods of a wreck'd Ship floating upon the Waters are call'd Flotsam Goods sunk with a Cork or Buoy tied to them to direct to the place are called Lagan or Ligan All these Goods if the Ship perishes and no Owner can be proved belong to the King in right of his Crown as treasure trove and estrais at Land do and all Derelicts whose Property is lost the Law adjudges them to the King as Owner paramount Also Royal Fishes Co. Rep. 7. Case de Swans f. 16. as Whales Sturgeons c. taken by the King's Subjects on the Seas of England appertain to the King by his Prerogative but no mention made in any of our Law-Books of an Appropriate Fishing exclusive of the People and Subjects of other Princes and States I have mentioned these Passages which occur in the Books of our Municipal Laws because though of excellent use and undeniable verity when fitly applied to what they are design'd and intended yet if misapplied to the Case of the Dominion of the 4 Seas as it stands betwixt England and other Nations they may and do occasion Error and Mistake Those Books handle Cases betwixt Subject and Subject and sometimes betwixt Crown and Subject but not betwixt Crown and Crown I mean betwixt England and other Kingdoms Matters of this Nature must be look'd for in the publick Treaties and Transactions of State betwixt our Kings and foreign Princes or in a long peaceable Possession which we call Prescription and these I shall examine by and by Thus far I have endeavoured to clear the true Notion of Sea-Dominion neither extending it to impeach the free Navigation and Commerce of peaceable Traders due to them of natural Right and by the Law of Nations notwithstanding such Dominion Nor yet making it a Verbal Notion only consisting in words and forms of Speech without any real Fruit and Effect but have instanced in three weighty things as the inseparable Incidents of it I should now proceed to the Matter of Fact but forasmuch as some without Examination take it for granted that the accustomed Salutation at Sea by the Flag and Topsail is an Act of Recognition and Acknowledgment of the Sovereign Dominion of the Sea inherent in that Prince to whom such Salutation is performed I shall crave leave to examine this in the first place CHAP. III. What the Salutation at Sea by the Flag and Topsail signifies and whether it has any Relation to the Dominion of it THE Salutation at Sea by the Flag and Topsail was never Covenanted in any the publick Treaties betwixt England and other Nations but in those with the United Netherlands only And never in any of them till the year 1654. And I am inclinable to believe that there were particular Reasons why it was then covenanted partly because at that time the Royal Dignity of England was debased and disguised under the obscurer Name of a Protectorat and they who had not refused it to an anciently Crowned Head might make some scruple to do it to a new Republick And partly because that War began upon a Dispute for the Honour of the Flag I cannot say it was the sole Cause of the War but it was the first occasion of it For whilest Blake was in Dover Road with the English Fleet Tromp with double the number of Ships but not equal in goodness stood over from the Coast of Calice directly towards him and came up close with him with his Flag alost Jacks and Pâ—ndants slying and all the Bravery he could display May 1652. Blake was too stout to brook the Affront and so in plain English the two Generals sell together by the Ears neither of them knowing how soon he might be called to a severe accompt by his Superiours for what he had done But they justified themselves by casting the blame one upon the other and thus the Servants Quarrel soon became the Masters and both Nations engaged in a sierce War Which ended in 165â— and in the 13th Article of the Preaty of Peace then conâ—luded to prevent the like Disputes for the suture it was Covenanted That the Ships of the United Provinces as well thâ—se siâ—â—ed for Wâ—r as others which hould meet in the British Seas any the 〈◊〉 of War of England should shrike their Flag and lowâ—r their Tepsail in such manner as had been any time practised 〈◊〉 under any former Government But whereas some think that this was prejudicial to England to take that by Coveâ—ant which they held before by prescripâ—ion I am not so clear in that Opinion For what stood before upon the soot of Courtesy or of Custom at the best was now confirmed by a supervening Contrast and passed into a National Law founded upon mutual Consent And from the Treaty in 165â— it passed into that made at Westminster by His late Majesty in 1662 and from thence into that made at Breda in 1667 in which as in the former the Flag and Topsail are expresly covenanted for in the British Seas But by a later Treaty viz. 1673. instead of the British Seas there is an enlargement to the Seas betwixt Cape Finisterre to the middle point of the Land Van Staten in Norwey Here 't is to be observed that in the forementioned Treaties the Salutation by the Flag and Topsail is no where said to be an acknowledgment of the Soveraignty of the Crown of England in and over the British Seas nor so much as intimated or implied but on the contrary as it were on purpose to prevent such a Construstion 't is expresly said to be a Respect The words of the Treaty 1673 are thâ—se In acknowledgment of the King of Great Britain 's Right to have his Flag respected They i. e. the Dutch shall strike their Flag and lower their Topsail in the same manner and with the same respect as hath at any time or in any place been formerly practised 'T is true it has been offered at to make this Respect pass into an Acknowledgment of Sovereignty but it was but an Offer and so vanish'd for in the Project or Concept of 27 Articles delivered in the year 165â— by the then English Commissioners to the Dutch Ambassadors in the 15th Article it was
Equipp'd for War over the Seas of England Whether any Sovereign Prince or State having occasion to enter upon any the Seas of England with Men of War either in entire Fleets or as Convoys to Merchants have first asked leave so to do of the King of England as the Supreme Lord of the Territory I have often met with a Traditional Story both in Discourse and in Printed Pamphlets that Queen Elizabeth having intelligence that Henry the 4th of France had a design to encrease the Naval Strength of his Kingdom and to Equip a considerable Fleet of War not only for the Mediterranean but for the Seas also toward England She sent to bid him desist from it That the Queen might request him not to put out upon these Seas with an unusual Fleet as that which might occasion Jealousie in her Subjects and oblige her to an extraordinary Expence in Arming proportionably and consequently tend to weaken the Amity and good Assurance betwixt the two Crowns I say that she might do this for I do not find that she did it is neither morally impossible nor wholly disagreeable to the practice amongst Princes But that she did pro Jure interdict and forbid him so doing as an Intrenchment and Invasion of her Right by entring with an Armed Force upon the Territories of her Crown without her leave for this I shall suspend my belief till better Vouchers be produced 'T is too common amongst Men first to form their Opinions and then to seek their Proofs and some rather than not find them will devise them There is another currant Story of the same alloy That Queen Elizabeth seized in the Bay of Cascais in Portugal Sixty Laden Ships belonging to the Hans Towns of Germany and afterwards consiscated both Ships and Goods For having presumptuously pass'd over her Seas without first obtaining her Royal Permission In this several Mistakes are complicated together one in Law and two in Fact. That in Law is this supposing the Dominion of the Seas to have been universally acknowledged as the Queens undoubted Right yet ought not the Hanseaties who were Friends and peaceable Traders and pursuing their lawful Occasions to have been consiscated for not a king leave of Passage over these Seas had there been nothing more in the case because they needed not in Law so to have done No more than a Market-man needs ask leave of the Owner to pass his Field over which the Market Path lies The two Mistakes in Fact are these 1. The said Sixty Sail of Ships did not in Fact pass the Seas of England 〈…〉 15.9 〈…〉 lib. 95. and therefore could not be consiscated upon that accompt Mr. Cambden our faithful Annalist says expresly and so does Thuanus too That they pass'd on the North of Scotland by the Occades Hebrides and great Western Ocean on the backside of Ireland a long and dangerous Passage to avoid being intercepted in the Channel by the Queens Ships 2. The sole Reason why they were confiscated was this because they carried Goods of Contrabanda Prohibited Goods viz. Corn which at that time Spain wanted and Naval Provisions to the relief of an Enemy who at that time was preparing a new Fleet for the Invasion of England in revenge of the Disgrace he had received the year before viz. in 88. And this they did contrary to the Queens Proclamation and Monitory Letters to the Hans Towns whereby she forbad them to supply Spain her declared Enemy with such Provisions under the Penalty of forfeiting Ships and Goods Thus the Dutch in the year 1652. when by their Interest and Influence in the Court of Denmark they had caus'd an English Fleet of above Twenty Merchant men Laden with Pitch Tar Flax Hemp and other Naval Stores to be Arrested in the Sound supposing that England with whom they were then in War would be Distressed for want of sâ—â—n Provisions They Published a Placart forbidding all in general to Import into England any the aforesaid Materials upon pain of confiscation thereof as being a Relief to an Enemy in things they particularly wanted for prosecuting the War against them I enquire not here Quo jure by what Right the Dutch did this and whether it was not a Violation of the free Commerce of Neutral Nations But I only instance in the Fact as parallel with what the Queen did Nay the States did far more than what the Queen did comes to for they in the Year 1599 almost in the Infancy of their Republick publish'd a Placart forbidding all Nations any Commerce with Spain not in this or that prohibited Commodity but in all Goods and Merchandizes whatsoever Grot. Host de Rebus Belg. lib. 8. pag. 372. Edâ—t Amstol Vetant populos quescunque â—llos commeatur resve alias in Hispaniam ferre They are the very words of Grotius in his Belgick Annals the eighth Book this by the way â—â—ly If we consult the publick Treaties which have been betwixt England and other Sovereigns concerning Sâ—â—ps of War passing these Seas we shall find the 〈…〉 have been as followeth The usual Covenants are 〈◊〉 have been That the Ships of War of either side may 〈◊〉 come into the Roads Havens and Rivers each of other provided they be not in such number as may occasion suspicion and therefore the number is ascertain'd and not to be exceeded unless to avoid imminent Danger and in such case notice to be given thereof For Example In the Treaty concluded at Madrid in the Year 1630 betwixt Charles the First of England and Philip the Fourth of Spain which Treaty was but a renewal of the former made with King James in the Year 1604 it is in the 9th Article agreed That it shall be lawful to have access unto each others Ports with Ships of War whether they shall arrive there either by force of Tempest or for necessary Repairs or for provision of Victuals so they exceed not eight when they come of their own accord nor stay longer than they shall have cause And when any greater Number shall have occasion of Access they not to enter the Port without the privity or consent of the King. This is the form of all the Treaties and Articles like to this have been agreed betwixt England and France and England and Helland but they are always reciprocal and as their Ships of War are restrained from access to the English Ports so are the English from access to theirs in equal manner And 't is to be noted that the Restraint is only from access to each others Ports but never any Restraint of Foreign Ships of War from entering in what Number they please the Seas of England Thus in the Year 1639 which was but nine Years after the Treaty aforementioned at Madrid a Spanish Fleet of above sixty Sail equipped for War entred the Western Channel without leave first asked bound for Ostend to supply the Spanish Netherlands with Men Munition and other Necessaries and pass'd the Channel to the height of
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
other Ships passing the Sea within the said Admiralty laden in Prussia Norwey Sconen or elsewhere in those parts Six Pence a Last for the Voyage Some Collect and Infer from hence I confess I cannot That King Richard by Assent in Parliament did impose these Rates not only upon Subjects but Foreigners for Trading and Fishing within the North-East Sea as part of the Territorial Property of the Crown Were it so it would be a matter of mighty weight and moment But 't is questionable whether those Words of Universality Chescun Nief chescun Vesseau for the Role is wrote in Nerman French every Ship and every Vessel ought not to be restrained to English Vessels only and not extended to those of Foreigners And if extended to Foreigners since the Grant is said to be made per l' Advis des Mâ—rchands de Londres des autres Mâ—rchands vers la North 't is worthy the considering whether those words Other Merchants towards the North are not in like manner to be extended to Foreigners as well as Natives that is to say to Hanseaticks and all other Merchants whether English or others dwelling or trading towards the North who having often occasion to pass and repass the Northern Sea at that time infested with Rovers advised the said Grant which Word implies a Request or Desire somewhat more than a bare Consent And what was this Impost for which they advised might be laid upon all their Ships and Vessels The Role tells us expresly That it was pur la garde tuition du Mier c. for the guard and Security of the Sea and of the Coasts of the Admiralty of the North with two Ships two Barges and two Ballengers armed and arrayed for War. And 't is most probable That not the King himself but private Persons Commissioned from him undertook at their own Expence to Equip and Arm the said Vessels for the Benefit of the Merchants and Security of their Commerce and by this rated Impost to be reimbursed their Charge and rewarded for their Service This may be collected from the first Article in the Role where there is an Exception of Ships laden with Merchandizes in Flanders bound for London and laden with Wool and Skins at London or elsewhere within the Admiralty of the North to be unladen at Calais of which Ships the Six Pence per Tun aforesaid was not to be required But then it follows Les quâ—ux Niefs les Gâ—rdeins de la diâ—e Mer ne serent tenus de les Conduire sans estre alloueâ— The Guardians of the said Sea were not obliged to give Convoy to those Ships without an Allowance in Consideration thereof So that upon the whole matter here is nothing that relates to the Dominion of the Sea for the Imposition upon the Ships and Merchandises was not Jure Corâ—â—e in Right of the Crown for passing over the Districts or Fishing within the Royalty of it but Ratione Oneris in Consideration of a Charge which some persons sustained and that by Contract to preserve and defend the Freedom and Security of Navigation and Commerce And it was very just and reasonable That what was undertaken for a common Good and Benefit should be supported and defrayed by a common Charge and Contribution The Role does not say That the Impost was granted to the King as an additional Revenue to his Crown but it was for the Guarders of the Sea to reimburse their Expence and recompense their Service And the Case is parallel with this Suppose the Hamburgers and other Hanseaties trading to the Streights who have very small or no Convoy of their own and apprehensive of the Courses of the Rovers of Africa the Turks and Moors should contract with the King of France or others Commissioned from him to supply them with Convoy from the Mouth of the Streights till they are arrived at the respective Ports whither they are bound and in Consideration thereof to give so much a Tun upon every Ship so Convoy'd This would have no relation to any Sovereignty in the Crown of France in and over the Mediterranean Sea but would be a particular Contract only a Quid pro Quo something to be done and something to be received in Consideration of so doing There want not Examples in History of those who have exacted Tribute upon all passing certain Seas adjacent to their Territories and yet not as proprietary Lords of those Seas neither but only as Protectors and Defenders of the Navigation thereof Plin. l. 19. lib. 6. cap. 22. Thus the Romans imposed a Tax upon all Ships sailing in the Erythraean or Red Sea towards the Maintenance of a Maritim Force for the repression of Piratical Excursions Demosth in Leptin And the Athenians did the same in the Hellespont Thus the Duties in the Sound payable to the Kings of Denmark began at first not on account of any Sovereignty over that Sea but because those Kings were at the Charge of maintaining continual Fires upon the Col and Annot and sloating Tuns or Buoys upon the Sands as a Direction to Merchants in that dangerous Entrance into the Baltick For which was antiently paid them at Cronenburg Castle in the Sound no more till new â—â—â—actions crept in then a Rose-noble for an empty Ship and if laden a Rose-noble more for her Lading Nor could any resuse Payment pretending that he had an able Pilot and needed not the Direction of the King's Fires for 't is not reasonable that the Contumacy of one or more particular Persons should frustrate or evacuate a publick Benefit In the Seventh Year of King James An. 1609 a Proclamation was published of high Importance inhibiting all persons of what Nation or Quality soever not being natural-born Subjects from fishing upon any the Coasts and Seas of Great Britain and Ireland and the Isles adjacent without first obtaining Licenses from the King or his Commissioners authorized in that behalf and those Licenses to be renewed yearly This was the first that ever I could meet with of this nature Not but that particular Fishermen of Diep Calais Bruges c. have sometimes both before and since taken Licenses here in England for their fishing but then they did it either as an abundant Caution or to gain an indefinite Liberty of fishing every where close upon the English Shores and within the Fryths Bays and Havens without fear of molestation and they did it ex proprio motu without the privity and knowledge of their Sovereigns and paid nothing for it to the Treasury of England only gave Fees and Gratuities to the Secretaries and others for dispatch of their Licenses But here is a Royal Edict or Law by way of premonition to all the Neighbouring Princes and States together with their Subjects to take Licenses of the King or his Commissioners for fishing upon any the Coasts and Seas of Great Britain the number of their Ships and Vessels together with their Tonnage to be specified in
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
Fleets were Ad tutelam maris says Suetonius for the safety of the Sea. Ours ad Custodiam say our Records for the Custody or safe keeping it from being infested by Pirates a Trade frequent in former Ages amongst the Northern People and consequently for securing the Navigation and Commerce of their Subjects and Allies The two Fleets did praesidere Italiam says Tacitus guard Italy as a Garison Town does a Frontier Ours were also called Naves Praesidiariae Garrison-ships to guard the open Shoars and Landing places of a large Island against the Hostile insults and descent of Foreigners They are our moveable Garrisons our floating Castles fifty of which will defend an Island better then five thousand standing one 's built round the Shoars Besides the two Admiralties of the North and South the Books of our municipal Laws make frequent mention of the Quatuor Maria the four Seas environing England to the East Of the 〈◊〉 Marit West North and South For England as distinct from Scotland is a Peninsula bounded on the North by an Isthmus of Land and the Northern Sea. And 't is observable that to be infra or intra quatuor Maria within the four Seas is in construction of our Law to be within the Kingdom of England and to be Extra quatuor Maria out of the four Seas is equipollent to being out of the Kingdom of England And 't is to be further noted that not only he who is upon the Land but he also who is upon the Sea is in our Law said to be intra Mare within the Sea because he has Sea still before him till he be arrived on the opposite Shoar and then and not till then he is Extra Mare out of the Sea or beyond it And when an Englishman is upon the other Shoar he is then within the Ligeance of another Prince and therefore out of the Kingdom of England but whilst upon the Sea he is within the Ligeance of his own Prince and therefore within the Kingdom of England For England is not always taken strictly for the Land of it in which sense the Isles of Jersey Guernsey and Mann are no part of England but sometimes comprehensively for all the Dominions of it and in Legal Understanding he is within the Kingdom of England who is within the local Ligeance of the Crown of England The use our Law makes of this Technical Phrase or Artisicial form of Speech intra or extra quatuâ—r Maria within or without the four Seas is this Partly to essoin or excuse Men from Appearance in Courts upon Writs of Summons for if it can truly be alledg'd That the Party summoned is Oultre la Mâ—â— beyond the Sea this is accepted as a good Eâ—loin to save his Desault But principally to be a certain and regulated Distance within which our Law will admit of some Presumptions which beyond that Distance it will not For Example If a Husband be within the four Seas Cok. on Lit. Sect. 399. and his Wiâ—e has Issue the Law presumes the Issue Legitimate and will admit of no proof to Bastardize the Child because within so little a distance Man and Wife might clandestinely come together and none can safely swear they did not but if the Husband be out of the sour Seas the Law is otherwise By the Statute of 18. Edw. 1. a Fine levy'd in the Common Bench concludes him who is within the sour Seas if he puts not in his Claim within a Year and a day because the Law presumes him near enough to have timely notice of so solemn an Act as a Fine is and if he suffers himself to be foreclosed for want of an Action or Entry imputes it to his own neglect By the Statute of 4. Hen. 7. cap. 24. the sorementioned Term of a Year and a day is enlarged to five Years And what in the Statute of Edw. 1. is said to be out of the four Seas is in this of Hen. 7. said to be out of the Realm as equipollent Phrases and signifying the same thing C. 〈◊〉 Rep. 〈◊〉 Case And it a Man be out of the Realm what day a Fine is levied though it be 〈◊〉 publick Act the Law supposes him not to have sufficient notice of a thing done within the Realm and therefore interposes an exception to the saving of his Right And this is all which our Law-Books mean when they say Co. on Littâ— Sect. 439. The Sea of England is within the Realm of England as in the place quoted in the Margin But whether the Sea be so within the Realm of England as to be part of the Territorial Property of it exclusively of all other Kingdoms and States that they meddle not with But to be within the sour Seas and to be within the Realm of England is as to some purposes in construction and intendment of our Law one and the same thing Our Law-Books have many other Phrases and Expressions of special use but yet do not reach the controverted point betwixt England and other Nations As where 't is said The Sea is of the Ligeance of the King and parcel of his Crown of England Le Mer est del Liegeance del Rey parcel de son Corone d'Engleterre Co. 5. Rep. Sir Hen. Corstable's Case 〈◊〉 108. Co. on Lattl Sect 439. And in another place 't is said The Sea of England is within the Ligeance of the King as of his Crown of England As to the King's Liegeance it stands thus in our Law All Natives or Natural-born Subjects or persons born within the King's Ligeance for these do tantamount wheresoever they are whether at Sea or Land in England or any Foreign Country quocunque sub Axe they still owe a Native or natural and inseparable Faith and Allegiance to their Liege-Lord the King. Whilst in England or upon the Seas besides their natural Ligeance they are within the local Ligeance of their own Sovereign an I under his immediate Protection and Defence But when within the Dominions of a Foreign Prince tho' as to persons they still retain Faith to their natural Sovereign yet as to place they are out of his actual Obedience and within the protection of another which draws Subjection along with it and makes them the temporary local Subjects of that other Prince And as this is the Case of English men abroad so is it of Aliens here in England A Child born at Sea in any of the King's Ships or other English Vessel Navigated by English Master and Crew is a Native if born upon the Land of England in any Fort or Town possess'd by an Enemy 't is born out of the â—ing's Ligeance and therefore an Alien Co. 7. Pep 〈◊〉 Case foâ— 6. But whereas 't is said the Sea is within the Liegeance of the Crown of England this is to be understood extensively of the Ligeance of the Crown of England that it reaches to Sea as well as Land not exclusively of the Ligeance of
even in reference to them A Foreign King when Ships of War of another Nation approach his Havens and come within reach of his Castles will expect and justly may that the Comer should salute him first the Guest or Stranger gives the first Salute to the Master of the House who thereupon Re-salutes him and bids him welcom And what does this Salutation signify be it by lowering Flag and Topsail or by firing Guns but that they are come Arm'd before his Doors only as Friends and without intention of doing him hurt But the peculiarity on the part of England consists in this England is an Island whose Frontier is the Sea whose Forts and Castles are the Ships of the Royal Navy which bear Analogy and Proportion to the Frontier Towns and Fortified Places of Inland Dominions and therefore when met within the Seas of England by the Ships of War belonging to any other Crowned Head these later ought not to approach the Ships of War of England who are in their Stations upon their Guard and Duty with a Flag aloft in a posture of Challenge and Desiance but do in their Course and Passage call to the Guard-ships of England to tell them They are Friends and what they cannot do by Words at that distance they do by mute Signs by striking their Flag or Topsail which in effect express those words And when they salute those Guarders by discharging their Guns it is in effect to tell them they were not charged against them and tho' they Steer their Course along the Coasts of an open Island yet they design no Hostility This is no diminution to the Majesty of any Monarch how great soever and were the Salutation thus stated with Crowned Heads it would be less controverted and the Crown of England lose nothing by it neither But if the Dutch perform this Ceremony as a Respect to a Crowned Head without relation to a Sea Sovereignty why not to France as well as England since they are equally Crown'd Heads and one has one Bank of the Channel and the other has the other And what shall then become of the peculiar Prerogative of the Crown of England This peculiarity on the part of England as an Island whose principal defence is at Sea I have touch'd already But as to the Dutch performing equal Respect at Sea to the Crown of France as to that of England I do not doubt but they will do it when required thereto And what Remedy is there against it unless by Contract for though I may not be covered when I will yet I may put off my Hat and be uncovered when and to whom I please The Dutch â—eer their Course by the Pole Star of Trade not by the Punctilio's of Honour And were this Construction put upon their striking their Flag to the Flag of England that it is a Recognition of a Sea-Sovereignty They would do the same to France the rather and not as a thing imposed but upon choiâ—e thereby to dispropriate and lay common what England would inclose as her Property Nor would it be a new thing for France to set up for the Honour of the Flag and Topsail Leo ab Aiâ—â— â—iâ—st p. 177. for it was expresly stipulated in the 12th Article of the League Offensive and Defensive made in the year 1635 betwixt Lewis the 13th and the States General that upon occasion of any Conjunction of the French and Dutch Fleets The Dutch Admiral should first Salute the French with Flag and Topsail and fire his Guns in such manner as had been practised towards the King of Great Britain upon the like Occasion And Henry the Second Lud v. 〈◊〉 vin 〈◊〉 II. Tom. 〈◊〉 and Henry the Third of France did both of them Publish their Royal Edicts one in the year 1555 the other in 1580 Commanding all Foreign Ships indefinitely I suppose Traders to lower their Top-sails to the Ships of War of France upon pain of seizure and confiscation and some Hamburgers were forcibly taken for not conforming to those Edicts But may not the present French King say what Caesar once did Sylla fecit non ipse faciam did the two Henrys do this in the faint times of their languishing Reigns and shall not I do it who can cover with Fleets of War the three Seas which cover the Coasts of France I have read somewhere in the French Memoires I think in those of the Duke de Sully that the whole Naval Strength of the Crown of France in the beginning of Henry the Fourth was about half a Dozen Ships of War such as they were at Brest and Rochel and about a Score of Gallies in the Mediterranean But this last named great King dressed a new Plan of the French Monarchy and drew out the Lines of it larger than before And though his great design was interrupted by at immature Death and by the succeeding Minority of his Son yet the great Cardinal I mean Richlieu resumed it again He first taught France that the French Flower-de-luces could grow at Sea as well as Land. He deck'd and adorn'd the losty Sterns of his new-built Ships with this Prophetick Inscription Florent quoque Lilia Ponto Having done with the Sea Salutation I come to the Fourth general Head under which CHAP. IV. The whole Matter of Fact between the Crown of England and Foreign Princes and States in the several Incidents of Sea-Dominion is distinctly Examined and impartially Reported I Am now upon a Question of Fact only how sar this Dominion and Sovereignty in the Seas has been acknowledged as a Right inherent in the Crown of England by any of the Neighbouring Nations either expresly in publick Treaties and Transactions of State or impliedly by an immemorial peaceable and uninterrupted Possession commonly called Prescription This I call the Question of Fact and distinguish it from that of Right to which 't is Subsequent For a Right to any thing in one is antecedent to the acknowledgment of it by another and though his non-acknowledgment may render it Controverted yet it may be a just Right and legal Claim notwithstanding The Right of the Crown of England to the Dominion of the Seas I meddle not with it stands as it did unmoveable like Terminus in the Capitol with a Cedo Nulli it gives place to none But the enquiry is whether in Fact it has been consented to by Foreign Nations by which Test we shall be able to discover whether the Crown of England has lost any thing in matter of Sea-Sovereignty which it formerly possess'd In order to which I shall distinctly handle and examine the three great and inseparable incidents of the Sovereignty which I before named 1. The Exciusion of Foreign Men of War from Passing upon any the Seas of England without special License for that purpose first obtain'd 2. The sole Marine Jurisdiction within those Seas 3. The appropriate Fishery I begin with the first and the Enquiry is Of the Passage of Foreign Ships
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
ut Batavi imposterum abstinerent ab oris Scoticis ad Octuaginta saltem Milliaria Here the distance from the Shoars of Scotland which Foreigners were to observe in their Fishing is set very large no less than Fourscore Miles In the Second year of King James Commissioners were appointed and authorized under the Great Seals of England and Scotland to Treat and Conclude an Union betwixt the two Kingdoms Spetisâ—â—â—d's Hist of Scotland p. 483. And in the Articles for Regulating Trade betwixt them it was amongst other things mutually agreed That the Fishing within the Fryths and Bays of Scotland and in the Seas within Fourteen Miles distance from the Coasts of that Realm where neither English nor other Strangers have used to Fish should be reserved and appropriated to Scotchmen only And so reciprocally on the part of England Scotchmen to abstain from Fishing within the like Distances off the Coasts of England But if English and Scots who though the two Kingdoms be sui Juris and independent one upon another are tied together in the same Common Bond of Allegiance to one and the same Prince be excluded from Fishing within Fourteen Miles from each other Coasts how much more reasonable is it that Aliens and Foreigners should be obliged to keep the like Distances King James finding that his foremention'd Proclamation in the Seventh year of his Reign for a licensed Fishing was not seconded by a suitable Compliance on the part of the Neighbouring Nations did about Nine years after by way of Expedient propose a limited Fishing instead thereof For thus I find it in a Letter from Secretary Naunton to the Lord Carlton English Ambassador at the Hague bearing Date January 21th 1618. He acquaints him how the King had by him the said Secretary desired of the Commissioners of the States then residing at London that they would write to their Superiours to Publish a Placart Prohibiting any their Subjects to Fish within Fourteen Miles of His Majesties Coasts that Year or any time after until Order be taken by Commissioners authorized on both sides for a final setling of the main Business And the said Ambassador was Commanded to make the like Instance and Declaration to the States General in the Name of his Master I am apt to believe this Distance of Fourteen Miles was the rather pitch'd upon as the regulated Measure which had been agreed upon betwixt the Commissioners of both Kingdoms in the 2d of the King as I said before I have done with the Authorities and for the better Elucidation of what I have said shall briefly sum it up into a fictitious Article supposed to be made betwixt England and Holland TO Maintain a due Distinction betwixt Natives and Foreigners in Fishing upon the Coasts of their respective Sovereigns And to prevent the manifold Inconveniences which occasionally arise by a promiscuous and unlimited Fishing 'T is mutually Covenanted Concluded and Agreed That the People and Subjects of the United Netherlands shall henceforth abstain from Fishing within any the Rivers Fryths Havens or Bays of Great Britain and Ireland or within the Distance of _____ Leagues from any Point of Land thereof or of any the Isles thereto belonging under the Penalty and Forfeiture of all the Fish that shall be found Aboard any Vessel doing to the contrary and of all the Nets Vtensils and other Instruments of Fishing The like Distances and under the same Penalties to be kept and observed by the Subjects of His Majesty of Great Britain and Ireland from any of the Coasts belonging to the United Netherlands But beyond those Precincts and Limits That the People and Subjects on both Sides be at freedom to use and exercise Fishing where they please without asking or taking Licences or safe Conducts for so doing and without the let hindrance or molestation one of another Saving always the Ancient Rights of the Crown of England and that nothing herein contained be interpreted or extended to any Diminution or Impeachment thereof But that they remain in the same Force and Vertue as before this Agreement The Article is Penn'd indifferently on both Sides and so much the better because the equality of it is an Argument of its Equity yet I could instance in several benefits which would redound to England from such an Article were it pass'd into an Agreement but they are not proper to be mention'd in this place and therefore I shall here conclude with this brief Apology That what I have written is for the Justice and Honour of the Government the Conservation of the Publick Peace the Maintenance of an inviolable Amity with our Allies and is most humbly submitted to better informed Judgments ERRATA Page 25. Line 3. read 1599. FINIS