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
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
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
enjoy to himself as a Reward the benefit of his own Skill and Labour Then were Houses built Fields sown with Corn Vineyards planted and the manner of Living heightned by progressive Steps and Gradations from the plain state of simple Necessity to a degree of Convenience from Convenience to Delight from Delight to Luxury But forasmuch as the wide Sea is not capable of Cultivation or Improvement by Art or Industry it may therefore be reasonably supposed never to have been impropriated by consent but left to its Primitive and Natural Communion If it be objected That sundry People and Nations have been Lords of several Seas as the Athenians Carthaginians Rhodians and Romans To that will be replied That this was Force and Empire without Property an Usurpation not a Right and that an armed Conqueror by the same Rule that he dispossesses what is proper may impropriate what is common only with this difference That 't is extensively more unjust to debar many from their common Right than to disseize a single person of his private Inheritance I shall not enter upon the Merits of the Cause as not being to my purpose but as to the forementioned Argument how plausible soever it concludes fallaciously as if that which is but Causa una one Cause were Causa unica the only Cause whereas there may be other Reasons and Considerations besides that of encouraging Industry why Communion was chang'd into Property and those equally extendible to Sea as well as Land. Possibly the consent of some Nations may devest themselves of a joint Right and invest it in one in order to a publick Benefit And this is the best part of that Title which the Venetian has to the Gulph which being a particular and remarkable Case it will not be amiss briefly to touch upon it in the following Paragraph The Ottoman Power extending it self into Europe Of the Dominion of the State of Venice in the Gulph to the subversion of the Eastern Empire conquering all Greece with Macedon and Epirus and penetrating to the very Banks of the Gulph almost within sight of Italy The Italian and other Neighbouring Princes to interpose the best Skreen they could betwixt themselves and the near approaching Danger did by a concurring Interest impatronize the Venetian in the Gulph who by reason of their potency in Shipping and the immediate Concern of their own imminent Peril were the most proper State to be made the Bulwark of Christendom at Sea. Flav. Blend Dicad 2. â—8 Thus the Pope by the Ceremony of a Ring wedded their Duke every Year to the Adriatick And in the General Council of Lions in the presence of the Ambassadors of several Princes upon Complaint made against the Venetians for laying Impositions upon all Ships sailing within the Gulph Judgment was given in favour of the Republick upon consideration of their guarding that Sea against the Courses of the Pirats and Saracens And the Neighbouring Princes would not so much as send a Galley without asking leave of the Senate which respect was so providently managed by that wise Council the better to assert their Marine Sovereignty That sometimes they would give leave under some Restrictions and Conditions as in the case of the Sister of Ulâ—d sâ—â—â—â— King of Naples Joan. Palat. de Domin Mar. l. 2. c. 6. sometimes they denied leave as in the case of Maâ—y Sister of Philip King of Spain in the year 16â—0 whom the Senate would not permit to be Transported from Nâ—â—lâ—â— to Trieste in the Galleys of Spain but in those only of the Republick But 't is to be considered also that the Gulph oâ— Venice is not a wide Sea or Ocean nor a streight or narrow Sea called in Latin Fretum but a Sinus a Bay or Gulph closed at one end in the bottom whereof the City of Venice is scituate upon several small Isles or Insulets The Seas of England are of a different Nature and Condition they are open both above and below and they are the midway-passage betwixt all the Northern and Southern Nations The Wares and Merchandises of Muscovy Poland Sweden Denmark Norway Germany and the Netherlands are conveyed by Shipping to France Spain Italy the Levant c. and so back again from the South to the North through the North-East Sea betwixt England and Germany and the Western Channel betwixt England and France which shews of what Influence and Import this Dominion on the part of England is to the rest of the World. CHAP. I. What is meant by the Dominion and Sovereignty of the Seas and what the true Notion or Idea of it is BEfore I proceed it will be necessary first to explain the Terms what is meant by Dominion what by Sovereignty and what by the Seas lest we lose things in Words and take up with Names instead of Realities By Dominion is to be understood Property for so is that word Dominion always taken in its legal sense or a Right of possessing and using any thing as ones own and of excluding all others from a promiscuous and equal use thereof That is mine which is so mine as 't is not anothers eodem modo in the same manner as 't is mine And this Property is twofold either Publick or Private for Proper is not opposed to Publick but to Common Publick Property excludes Communion amongst Nations Private Property Communion amongst Persons For as particular Mannors and Tenements divided by their respective Bounds and Buttles are the private Property of particular Persons which they possess privatively of other persons So Countries and Territories like greater Mannors divided each from other by Limits and Borders are the publick Property of Nations which they possess exclusively one of another The whole Territory of England is the publick Property of the English Nation and this Property excludes Aliens or all born out of the King of England's Liegeance from taking real Inheritances or holding Lands and Tenements any where in England The Supreme Rule and Jurisdiction in and over this Territory is that which we call Sovereignty and is the publick Property of the King in Right of his Crown of England He is sole Lord of this great Mannor and all the Lands in England are holden either mediately or immediately of him And as he is Head and Chief Ruler he bears within him the Person of the whole Nation and thus all England is his Territorial Property And the Royal Demeans and Possessions annexed to the Crown as the publick Revenue thereof and as distinct from the private Possessions of particular Persons are his Patrimonial Property He has them in his publick and politick Capacity as King not in his private and natural as an individual Person for Kings as well as Subjects may have Possessions in a private Right as the King of Egypt who bought the Lands of his Subjects for Corn He had not those Lands in Right of his Crown as King for he was King before he had them I have done with those two
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
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
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
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