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A59088 Of the dominion or ownership of the sea two books : in the first is shew'd that the sea, by the lavv of nature or nations, is not common to all men, but capable of private dominion or proprietie, as well as the land : in the second is proved that the dominion of the British sea, or that which incompasseth the isle of Great Britain is, and ever hath been, a part or appendant of the empire of that island writen at first in Latin, and entituled, Mare clausum, seu, De dominio maris, by John Selden, Esquire ; translated into English and set forth with som additional evidences and discourses, by Marchamont Nedham.; Mare clausum. English Selden, John, 1584-1654.; Nedham, Marchamont, 1620-1678. 1652 (1652) Wing S2432; ESTC R15125 334,213 600

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THERE IS NO MEMORIAL TO THE CONTRARY HAVE BEEN IN PEACEABLE POSSESSION OF THE SOVERAIGN LORDSHIP OF THE SEA OF ENGLAND AND OF THE ISLES WITHIN THE SAME with power of making and establishing Laws Statutes and Prohibitions of people as well of other Domin●●ns as their 〈◊〉 passing through the said Seas and the Saveraign Guard thereof And also 〈…〉 all manner of Cognisance in Causes and of doing right a●d Iustice to high and low according to the said Laws Sta●u●es Ordinances and Prohibitions and all other things which may appertein to the exercises of Soveraign Iurisdiction in the places aforesaid And whereas A. de B. deputed Admiral of the said Sea by the King of England and all other Admirals appointed by the said king of England and his Ancestors heretofore kings of England of a●●●al and complaint made of them to their Soveraigns the kings of England in default of Iustice or for evil Iud●●●n● a●d especially of making Prohibitions doing Iustice and taking surety of the peace of all manner of people using arms in the said Sea or carrying S●●ps otherwise furnished and ●et forth th●● Merchant-men use to bee a●d in all other points where a man may have reasonable caus to suspect them of Robbery or other ●…uors And whereas the Masters of the Ships of the said kingdom of England in the absence of the said Admiral have been in peaceable possession of taking cognisance and judging of all A●●ions don in the said Sea between all manner of people according to the Laws Statutes Prohibitions and Customs And whereas in the first Article of the League lately made between the said Kings in the Treatie upon the last peace at Paris there are comprised the words here following in a Schedule annexed to these Presents But that which follow 's is not written in a Schedule annexed but in the same Parchment from whence it may perhaps bee conjectured that these are not so much the very Libels themselvs which were exhibited to the Commissioners or Auditors as antient Copies taken from the Original as also from this that the name of the Admiral is set down A. de B. which two first Letters do not agree with the name of any one that wee can finde in Record to have been Admiral of England at that time First it is concluded and accorded between Us and the Agents and Procurators aforesaid in the names of the said Kings that the said Kings shall from this time forward becom to each other good true and faithful friends and bee aiding to one another against all men saving the Church of Rome in such manner that if any one or more whosoever they bee shall intend to disturb hinder or molest the said Kings in the Franchises Liberties Privileges Rights and Customs of them and their Kingdoms They shall bee good and faithful friends to each other and aiding against all men living and readie to die to defend keep and maintein the Franchises Liberties Privileges Rights and Customs aforesaid Except on the behalf of the said King of England John Duke of Brabant in Brabant and his heirs descending from him and the daughter of the King of England and except on the behalf of our Lord the said king of France the excellent Prince Monsieur Albert king of Almaign and his heirs kings of Almaign and Monsieur John Earl of Henault in Henault and that the one shall not bee of Counsel nor aiding where the other may lose life member estate or honor Monsieur Reyner Grimbald Master of the Navie of the said king of France who call's himself Admiral of the said Sea beeing deputed by his aforesaid Lord in his war against the Flemings did after the said League made and confirmed against the tenor and obligation of the said League and the intent of them that made it wrongfully assume and exercise the office of Admiraltie in the said Sea of England above the space of a year by Commission of the said king of France taking the people and Merchants of the kingdom of England and of other places passing through the said Sea with their Goods and committed them so taken to the prison of his said Lord the king of France and delivered their Goods and Merchandises to the Receivers of the said king of France by him deputed in the Ports of his said kingdom as forfeited and due unto him to remain at his Judgment and award And the taking and deteining of the said people with their said goods as also his said Judgment award for the forfeiture acquest of them he hath iustified before you Lords Auditors in writing by virtue of the autoritie of his said Commission of Admiraltie aforesaid by him usurped after this manner and during a Prohibition or Restraint generally made and proclaimed by the king of England in right of his Dominion according to the tenor of the third Article of the League aforesaid which contain's the words above-written requiring that hee may thereupon bee acquitted and discharged of the same to the great damage and prejudice of the said king of England and of the Prelates Nobles others above-mentioned Wherefore the said Procurators in the names of their said Lords do pray your Lordships Auditors that you would caus due and speedie deliverance of the said people with their Goods and Merchandises so taken and deteined to bee made to the Admiral of the said king of England to whom the cognisance of the same of right apperteineth as is before expressed So that without disturbance from you or any other hee may take cognisance thereof and do what belong's to his office aforesaid And the said Monsieur Reyner bee condemned and constrained to make satisfaction for all the said damages so far forth as hee shall bee able and in his default his said Lord the king of France by whom hee was deputed to the said office and that after satisfaction given for the said damages the said Monsieur Reyner may bee so duly punished for the violation of the said League that his punishment may be an example to others in time to com So far the Libel of so many Nations manifestly acknowledging the Soveraigntie and Dominion of our Kings over the Sea and thereupon demanding protection for themselvs And whereas no mention is made of this thing in the Histories either of the French English or others it is no wonder since the proceedings of Courts of Judi●a●ure are very seldom set down in Histori●● But wee understand by the French Historie that this Gri●bald was Gov●●●or of the French Navie at the very same time Paulus AEmiliu● writing of Philip the Fair saith Hee hired sixteen Gallies from Genoa ●ver which Reyner Grimbald was Governor or Commander Hee sailing about by Sea infested the Sea-Coast of Flanders Regimerus Regin●rus or Reynerus Grimbaldus is one and the same man and among the Genoêses there is an eminent Family of that name But becaus hee was a Foreiner and Mercenarie therefore it seem's Joannes Feronius left
had without leav of the Lord or Possessor There was also a very antient Custom used in the Fast that when great Kings having designs to bring any Nations under their power commanded the pledges of Empire and Dominion to bee deliver'd to them they were wont to demand Water and Earth together That is to say there quired them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to bring earth and water and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to prepare Earth and Water They conceived that their Dominion of the Sea as well as the Land was signified by such a kinde of pledg or token Thus Darius demanded Earth and Water from Indathyrsus King of the Scythians Thus Xerxes from the Lacedemonians and thus both of them from the People of Coos which is witnessed by the Coans themselvs in a publick Decree or Epistle in answer to Artaxerxes his most imperious demand that Hippocrates should bee rendred up to him wherein the Coans slighting the threats of that great King decreed that what hazzard soêver they might seem to run Hippocrates should by no means bee rendred They added also to that Decree 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 c. How that when his Predecessors Darius and Xerxes had by their Letters demanded Earth and Water the people of Coos did in no wise yield it forasmuch as they were satisfied that those who had sent unto them were mortal as well as other men And in the Greek Copies of the Historie of Judith Nabuchodonosor beeing about to denounce War against the neighbor-Nations saith expresly the form of submission which hee expected was that they should provide for him Earth and Water Unless they conceiv themselvs to bee Lords of the Waters as well as the Land I do not well see wherefore they should demand Earth and Water as tokens of universal Dominion Moreover also Achmes Ben Seirim an Arabian writing of the Sea saith that according to the Doctrine of the Indians Persians and Egyptians in expounding of dreams If any one in a dream seem to himself to bee made Lord of the Sea hee shall bee heir of the whole Kingdom and shall reign Add hereunto that Oracle of Delos concerning the Sea-Dominion of the Athenians The men of Athens offering sacrifice in Delos a Boy that drew water to wash their hands poured Fish out of the pot together with the water Hereupon this Oracle was delivered by the Priests 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That they should becom Lords of the Sea The Autor is one Semus an antient Writer in Athenaeus where Phylarchus also relate's how that when Patroclus a Captain of Ptolomie the son of Lagus had sent fish and fresh figs together unto King Antigonus and those that stood by were in doubt what was meant by that present Antigonus said hee himself very well apprehended what might bee the meaning of Patroclus For saith hee either Patroclus mean's That wee must get the Soveraignty or Dominion of the Sea or els gnaw figs. Or that hee must seem slothful and effeminate or becom Lord of the Sea Therefore hee made no doubt touching private Dominion of the Sea And there also the Glutton in Antiphanes the Comedian saith it is neither profitable for life nor to bee endured That som of you should claim the Sea as peculiar to themselvs and spend much monie upon it but no victual for Navigation not so much as a bit Add also that of Theocritus touching the Dominion of Ptolomeus Philadelphus King of Egypt over the Sea as well as the Land 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Hee is Lord of much Land and also of much Sea And a little after hee speak's of the Pamphilian Lycian and the inner part of the remaining Sea that the whole Sea and Land and Rivers were subject to King Ptolomie Also Philo Judeus saith let not Princes glory in that they have conquer'd many Nations or that they have brought all the rivers and Seas so exceeding vast both in Number and magnitude under their power Moreover though Isocrates in his Oration concerning Peace seem's to hint that the Sea-Dominion and Soveraignty which the Athenians endevored to maintain brought many mischiefs upon them and also that it somtimes occasioned them to use Tyrannie against the Neighbor-Cities of Greece yet hee dispute's it as a thing that may com into examination under the account of profitable and unprofitable and by accident of unjust but hee doth not in anie wise endeavor to prove it unjust from the nature of the thing it self Yea in another place hee sufficiently commend's that Dominion though not all things in preserving it And the same Autor saith expresly of both Cities the Lacedemonian and Athenian It hapned that both Cities did enjoy a Command of the Sea which when either of them held they had most of the other Cities obedient thereto Wee read also a dispute in Aristotle concerning a Communion or common enjoyment of the Sea to wit whether it may bee convenient or not for a well order'd City whether it were better it should remain common to all men so that no man might in any wise bee denied passage traffick merchandise and fishing Or that the use of it may bee so restrained that it might bee received into the Dominion of any Citie so as to exclude forreiners Hee dispute's this point whether it bee profitable or unprofitable but question 's it not at all as unjust having been abundantly instructed out of the Customs of the Nations round about touching a propriety of the Sea as well as the Land Also his Scholar Alexander the Macedonian beeing victorious in the East prepared for an expedition against Europe that Hee might becom Lord of the whole Land and Sea as saith the Emperor Julian And truly among the People of Greece especialy such as border'd upon the Sea and others of that nature in the East to hold supreme power and Soveraigntie above others and to enjoy a Soveraigntie of the Sea were acoounted almost one and the same thing Nor did they conceiv that could bee obteined without this From whence arose that Council of Themistocles which Pompey the great also followed at Rome Qui mare teneat eum necesse esse rerum potiri c. Hee which can possess the Sea must need 's have Command of all So also saith Jsaac Casaubon upon Polybius To have Dominion of the Sea which is expressed by the Greeks 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is wholly and ever hath been a great strengthning and as it were a pledg of extraordinarie power Therefore the old writers of Chronicles among the Grecians seeing before the institution of the Olympiads there was no Sovereign power of any People of Greece in beeing upon whose actions a knowledg of times might bee grounded therefore among the other times that they made use of for the computing of times they omitted not that particular but carefully kept an accompt of those People who had once enjoyed a Dominion of the Sea and
com the Hollanders should keep at least fourscore miles distance from the Coasts of Scotland And if by accident they were driven near through violence of weather they paid a certain Tribute at the Port of Aberdene before their return where there was a Castle built and fortified for this and other occasions and this was duly and really paid still by the Hollanders within the memorie of our Fathers until that by frequent dissentions at home this Tribute with very many other Rights and Commodities came to nothing partly through the negligence of Governors and partly through the boldness of the Hollanders So you see how limits were by agreement prescribed heretofore in this Sea to the Fishing of Foreiners But the more Northerly Sea which lie's against Scotland was for the most part in subjection heretofore to the Norwegians and Danes who were Lords of the Isles there So that the people of the Orcades speak the Gothish Language to this day Robertus de Monte tell 's us that hee who was called King of the Isles was possest of XXXII Islands in that Sea above four hundred and sixtie years ago paying such a Tribute to the King of Norway that at the succession of every new King the King of the Isles present's him ten marks in Gold and make's no other acknowledgment to him all his life long unless another King succeed again in Norway And Giraldus Cambrensis writing of these things saith that in the Northern Sea beyond Ulster and Galloway there are several Islands to wit the Orcades and Inchades or Leucades which som would have to bee the Hebrides and many other over most of which the Norwegians had Dominion and held them in subjection For although they lie much nearer to other Countries yet that Nation beeing more given to the Sea usually preferr's a Piratick kinde of life above any other So that all their Expeditions and Wars are performed by Sea Fight This hee wrote in the time of Henrie the second So that somtimes those Sea-Appendants of the Dominion of Britain in the Northern parts were invaded by Foreiners Hence also it is that Ordericus Vitalis speaking of Magnus the son of Olaus King of Norway saith hee had a great power in the Isles of the Sea which relate's unto the time of William the Second King of England The same Ordericus also saith that the Orcades Finland Island also and Groênland beyond which there is no other Countrie Northward and many other as far as Gothland are subject to the King of Norway and wealth is brought thither by shipping from all parts of the world So wee have here a clear description of the Dominion of the Norwegians heretofore as well in this neighboring Sea of Scotland as in the more open But in after time when as by agreement made between Alexander the third King of Scots and Magnus the fourth of Norwaie as also between Robert Bruce King of Scotland and Haquin of Norwaie it was concluded touching these Isles that they should bee annexed to the Scotish Dominion this could not bee don but there must bee a Cession also of that Sea-Dominion which bordered round upon the Coast of Norwaie Yet the Norwegian King possessed it for the most part and afterwards the Dane by an union of the two Kingdoms of Denmark and Norwaie until that Christiern the first King of Norwaie and Denmark upon the marriage of his daughter Margarite to James the third King of Scotland made an absolute Surrender of these Islands and in the year of our Lord MCDLXX transferr'd all his right both in the Isles of Orcades and Shetland and the rest lying in the hither part of the Northern Sea upon his Son in law and his Successors And as concerning this business I shall here set down the words of Joannes Ferrerius who was indeed Native of Piedmont but supplied with matter of Historie out of the Records of Scotland by Henrie Sainclair Bishop of Ross. Moreover in the Deucaledonian Sea toward the North-East there are the Isles of Orcades seated next to the Coast of Scotland whereof onely twentie eight are at this daie inhabited and above an hundred miles beyond the Orcades towards Norway are the Shetland Isles in number eighteen which are at this daie inhabited and in subjection to the King of Scotland concerning which there was a great quarrel in former Ages between the Scots and Danes yet the Dane kept possession All these Islands did Christiern King of Denmark peaceably surrender together with his daughter in marriage to James King of Scots until that either hee himself or his posteritie paid to the Scotish King or his Successors in lieu of her Dowrie the summe of fiftie thousand Rhenish Florens which were never discharged to this daie For so much I my self have seen and read in the Deeds of marriage betwixt Ladie Margarite daughter of the King of Denmark and James the third King of Scotland drawn up and fairly signed with the Seals of both Kingdoms Anno Dom. 1468. c. But afterwards when Ladie Margarite beeing Queen had been delivered of ber eldest son James Prince of Scotland the Danish King willing to congratulate his daughter's good deliverie did for ever surrender his right in the Islands of the Deucaledonian Sea to wit the Isles of Orcades Shecland and others which hee deliver'd in pledg with his daughter upon her marriage to the Scotish King I hear the deeds of this surrender are kept among the Records belonging to the Crown of Scotland And so at length those Isles and the Dominion of this Sea returned to the Kings of Scotland which they enjoy at this day The Kings of Scotland have a pledg of Dominion also in this Sea that is to say Tributes or Customs imposed upon Fisher-men for Fishing of which by the way you may read in their Acts of Parlament Touching that Right which belong's to the King of Great Britain in the main and open Sea of the North. And the Conclusion of the Work CHAP. XXXII COncerning that Neighboring Sea which is a Territorie belonging to the Scots I have spoken in the former Chapter But I must not omit to treat here of that Sea which stretcheth it self to a very large extent toward the North washing the Coasts of Friesland Island and other Isles also under the Dominion of the King of Denmark or of Norway For even this Sea also is asscribed by som to the King of Great Britain Albericus Gentilis applying that of Tacitus The Northern Coasts of Britain having no Land lying against them are washt by the main and open Sea you see saith hee how far the Dominion of the King of Great Britain extend's it self toward the South North and West As if almost all that which lay opposite to the Isles of Britain in the open Sea were within the Dominion of the King of Great Britain And concerning the Northern Sea also which reacheth there to parts unknown the very same