charge Which indeed is a thing wee hear not of in later times but that so it was in the Reigns of King Henrie the third and Edward the first the Records of those times do testifie But afterwards the Universal Custodie of the Sea excepting onely what was extraordinarie was committed by our Kings to the high Admirals of England and to them alone or their Deputies and apperteineth unto them now by an unquestionable right But when any person is intrusted with that Guardianship or Custodie the possession and dominion of the King who intrust's or give 's him the Autoritie is comprehended in that Government or Command which also is confirmed by words most express and home to the business in hand that are to bee seen in a Libel or Bill of Complaint hereafter mentioned which was exhibited by a great number of the neighbor-Nations to the Commissioners of our Edward the first and Philip the fair King of France The Dominion of the English Sea asserted from those Tributes or Customs that were wont to bee imposed paid and demanded for the Guard or Protection thereof after the Norman Conquest CHAP. XV. COncerning the Tributes or Customs that were wont to bee imposed paid and demanded for the Guard of the English Sea there are very ample antient Testimonies all along since the Reign of the Normans And those things which have been alreadie mentioned touching the Guard of the Sea do not a little confirm it It is manifest that the Tribute imposed in the time of the English-Saxons for the Guard of the Sea which was called Danegeld of whose Original and use wee have alreadie spoken was wont now and then to bee paid heretofore under the Norman Kings After the words there cited out of the antient Dialogue touching the Exchequer about the paiment thereof before the Norman Conquest it immediately follow 's thus in the same Dialogue In his Reign that is to say the â—â—igâ— of William the first the Danes as well as other Robbert of Land and Sea restrained the Invasions of Enemies knowing this to bee true which is written When a strong man armed keep 's his hous hee possesseth his goods in peace For they were not ignorant that resolute and valiaâ—â— men would not let injuries pass unrevenged Therefore whereas the Laâ—d had paid it along time in the same King's Reign they were unwilling to pay that every year which had been exacted upon urgent necessitie in time of warr But yet they would not have it wholly cashiered becaus of sudden occasions Therefore it was seldom paid in his Reign or the Reign of his Successors that is onely then when they either had or suspected a warr with Foreiners And among the old Laws of England wee finde that William Rufus requiring aid of the Barons for the regaining of Normandie out of the hands of his brother Robert sirnamed Cortehole who was upon a Voiage to the Holy Land Danegeld was granted to him not established nor confirmed by a Law that is to say four shillings upon every Hide of Land which were paid for defending the Dominion by Sea For that was the intent and end of Danegeld according to its nature and original Moreover Roger Hoveden saith expresly that it was usually paid until the time of King Stephen Hee speaking of the promisses which hee made at the time of his Coronation saith Thirdly hee promissed that hee would remit Danegeld for ever that is two shillings upon an Hide which his Predecessors were went to take every year The same also is affirmed by Matthew Paris and Roger of Wendover out of whom the Chronicles set forth by Matthew until the nineteenth year of Henry the third or the year of our Lord MCCXXXV were wholly taken They say of King Stephen Tertiò vovit quòd Danegeld id est qualibet ydâ terrae duos solidos quos Antecessores ejus consueverant accipere in aeternum annis singulis condonaret So indeed wee read it in the Manuscript Books of this Matthew whereby the Printed ones are to bee amended who render it onely thus Tertiò vovit quòd Antecessores ejus accipere consueverant in aeternum annis singulis condonaret But this also is added by Hoveden These especially and divers other things hee promissed before God but kept none of them as wee are told likewise by Paris and Wendover So that this Tribute was wont to bee paid in the Reigns of William the first and the second Henrie the first and King Stephen also for the guard of the Sea And it appear's by the accompâ—s of the Exchequer that it was paid somtimes in the time of Henrie the second And after that it grew out of date another cours was wont to bee taken very frequently and used as the Custom of the Land that Pay and Provisions might not bee wholly wanting to maintain the Dominion of the Kingdom of England by Sea Mention is made touching this particular in the Court-Rolls of Edward the first Terrarum ad Custodiâ—â— Maris agistatarum that is of such Lands as were charged with a Paiment or Tribute for the guard of the Sea Wee know indeed also that it was in the same manner collected at that time under pretence of the Sea for the pay and maintenance of Land-Forces neer the Shore But certain it is that the Sea it self was guarded then with Naval-Forces as well as the Shore by Land-Forces and so that that Paiment belong'd either to the Sea it self or els to the Shore as well as the Sea Moreover Subsidies have been demanded of the people in Parlament Pour la salvation du Royalme de euâ— Mesines auxint de la Meer de la March dâ— Escoce de Gascoign des Isles that is for defence of the Kingdom the Sea belonging thereunto the Scotish Border Gasooign and the Isles Thus the Sea and its defence and Dominion is reckoned in an equal right and condition with that of the Kingdom the Borders and the Isles Several other instances there are of that kinde But that especially is to bee observed in this place which wee finde in the Parlamentarie Records of King Richard the second concerning a Tribute or Custom that was imposed upon every ship that passed through the Northern Admiraltie that is in the Sea which stretcheth it self from the Thames mouth along the Eastern shore of England towards the North-East for the pay and maintenance of the Guard or Protection of the Sea Nor was it imposed onely upon the ships of such Merchants and Fisher-men as were English but also by the same right in a manner upon those of any Foreiners whatsoëver no otherwise than if a man that is owner of a Field should impose a yearly Revenue or Rent for the libertie of Thorow-fare or driving of Cattel or Cart through his Field Paiment was made at the rate of six pence a Ton upon every Vessel that passed by except such ships onely as
that in it which may seem to import that hee call's himself King of the Ocean especially if you consider those words which wee finde somtimes among Germane Writers in the Title of Charls the fifth Emperor and King of Spain In the Preface to the constitution concerning publick Judicatories in the Empire hee is called King of the Canarie Ilands also of the Islands of the Indies and of the Continent and of the Ocean Archduke of Austria c. And in the Imperial Sanctions published in high Dutch Konig-under Jnsulen Canariae auch der Jnsulen Indiarum und Terrae firmae des Maers Oceant c. as you may meet with it at least six hundred times The word Ocean is added as if hee entitled himself King of the Ocean But this is a mistake for the same in Spanish is Rey c. de las Islas y terra firma del mar Oceano c. that is King of the Islands and of the Terra firma of the Ocean namely the Islands or Continents of or lying in the Ocean which Pope Alexander the Sixth gave to Ferdinand the Fifth King of Spain all of them lying Westward from the very first Meridian of those hee entitle's himself King not of the Ocean it self How far private Dominion over the Sea is admitted according to the Customs or opinion of the French CHAP. XVIII AS concerning Dominion of the Sea according to the Customs of the French som perhaps may seem to have met with verie ancient evidences thereof in those Officers deputed for the guard of the Sea-Coasts whom wee read of in the Statute-Books and in that Rotlandus Governor of the British that is the Aremorican shore mentioned in the life of Charle-maign by Eginhartus a Writer of that time But those dignities have relation not so much to the Sea it self as to the shore and Sea-Coast or the border of the Land confining with the Sea notwithstanding that Rotlandus is by the French-men of this and the former Age promiscuously styled Governor both of the Sea and Shore as if there were no difference But it cannot bee denied that Princes heretofore upon the Shore of Aremorica or Bretaign as the Veneti of whom wee spake before did upon the same Shore impose Custom upon Ships as for the use of the Road upon their Coasts and challenge to themselvs other Rights of the like nature called Nobilitates super navibus So it is to bee read in an ancient Record made in the time of Duke Alanus in the year MLXXXVII concerning Precedence of Place among the Nobles of Bretaigne In that Record the second place is assigned to the Viscount of S t Pol de Leon who as the very words of it are had verie many of those Customs called Nobilitates super navibus imposed on such as passed the Ocean upon the Coasts of Osismer or Leon which as it was said Budicius an antient King of Bretaign did give and grant to one of his predecessors upon Marriage in reward of the virtue fidelitie and valor of that Viscount but with the consent of the Prelates Counts Barons and Nobles of Bretaign What these Nobilitates were and whence they had their original is partly declared by Bertrandus Argentraeus somtime President of the Province of Renes where hee discourseth also of the right of giving Pass ports which they call brefs de conduicte at this time in use on that shore That saith hee whereas till then it had been a right peculiar to the Princes beeing given by way of Dowrie to the Barons of Leon of which wee have alreadie spoken out of the aforesaid Record remained an hereditarie and proper right to that Familie until Joannes Ruffus the Duke redeemed it for a vast sum of monie of Guynomarius Baron of Leon after that Peter Mauclerc of Dreux Duke of Bretaign had in vain attempted to re assume it by force of arms It had its original they say upon this occasion When our Princes and antient Kings considered the daily Shipwracks made upon that shore where there were many Rocks and but few Havens they made a Law that none should set to Sea without their leav Such as did set out paying a certain rate had passes and guides appointed them that were well acquainted with the Sea and Shores They that refused forfeited their ships with all their tackling and furniture thereof and if the Ship were cast away their goods also were confiscate They that had leav were in no danger of confiscation and if they suffered Shipwrack had libertie to recover as many of their goods as they could And these guides were paid their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Conduct-money which wee have mentioned elswhere called by them droit de salvage These Tickets or Passes are given out now as heretosore at a certain price And among other Revenues of the Exchequer they also were rented out to the Farmers of the Custom So far Bertrandus from whom Renatus Choppinus borroweth almost the very words But Petrus Berlordaeus Advocate of the Parlament of Reines tell 's us that the Custom of taking forfeiture in that manner of all shipwrack't goods was abolished there by an Edict in the year MDLXXXIII But in the mean time for so much as concern's any part of that Western Sea lying next the Shore these are manifest evidences either of Dominion or of subjection in the Sea which indeed sufficiently prove by the Customs of that people that the Sea is capable of Dominion Moreover upon occasion of these Passes there have been controversies raised somtimes between the Dukes of Bretaign and the Kings of England as may bee seen in certain memorials of the affairs of Bretaign which have relation to the times of our Richard the second and John the Fourth Duke of Bretaign But this wee know for certain that in the agreement made between our Edward the Fourth and Francis the second Duke of Bretaign in the year MCCCCLXVIII concerning mutual traffick and free passage to and fro for the subjects of each Nation during a truce of thirtie years there is an express proviso concerning Wrecks but such a one as left an equal right to both of them not altogether unlike that which for many ages hath been in use upon the English Shore No mention at all beeing made in the Articles of the Truce either of the right or use of these aforesaid Passes as beeing a thing in no wise admitted by the English But som modern Lawyers among the French do vainly affirm that their King is Lord not onely of a part of the Sea neighboring upon the Territorie of Bretaign but of the whole Sea that is adjoyning to any part of France and so of the British or English Sea also By which very Assertion of theirs they sufficiently declare their judgment that there may bee a soveraign over the Sea The King saith Charondas Caronaeus is supreme Lord of the Seas which flow about his
of so many famous Nations both antient and modern whereto wee shall add many other also when wee treat of the British Sea in the next Book nothing now I suppose hinder's why wee may not determine that the Sea is capable of Dominion as well as the Land not only by the Law Natural-Permissive but also by the Law both Civil and Common of divers Nations and in many places almost according to the Intervenient Law which in cases of this nature is the surest demonstration of the Natural-Permissive unless there remain any impediment in the objections which are next to bee handled An Answer to the Objection concerning Freedom of Passage to Merchants Strangers and Sea-men CHAP. XX. THe usual Objections as hath been more fully shewn before in the second Chapter are derived som from the Freedom of Commerce Travel and Passage pretended to bee common to all Som also from the very Nature of the Sea And others out of the Testimonies of Writers As to what concern's the first sort the Offices of humanitie require that entertainment bee given to Strangers and that inoffensive passage bee not denied them So Gratian out of Augustin saith It is to bee observed how the war of the Israêlites became just against the Amorites For they were denied an inoffensive Passage which ought in all equitie to lie open by the Law of humane Societie And Cicero saith It is an inhumane thing to denie Strangers the use of a Citie Verie many other Passages there are of that sort which seem to strengthen the Objection to wit as it relate's unto the Office of Humanitie not disturbed by war fear jealousie enmities or any other of the same kinde But what is this to the Dominion of that thing through which both Merchants and Strangers are to pass Such a freedom of Passage would no more derogate from it if so bee it were without question free and open to all upon that accompt then the allowing of an open waie for the driving of Cattel or Cart or passing through upon a journie or any other Service of that nature through another man's Field could prejudice the Ownership thereof Suppose it bee granted that by the Law of all Nations the Spaniards had a free Passage over the Pyrenean Mountains into France the French over the Alps into Italie the Italians into Germanie What doth this concern a Dominion of the Pyrenies or the Alps And for any man to allege here what is commonly talked of the lighting of one Candle by another of the not denying a common use of Water and other things of that nature it is plainly to give over the disquisition of Law and Right to insist upon that of Charitie At the request indeed of Asclepiades Bishop of the Citie of Chersonesus under the Emperors Arcadius and Honorius certain persons who had taught the barbarous people the Art of building ships whereof they were ignorant before were for Charitie 's sake freed from the pains of Prison and punishment And though the Art of those that taught them was no whit the less becaus of that skill which the Barbarians had gained yet by the Law it was death to communicate that Art unto them And at this day there are other instances of the same nature So that it in no wise diminisheth from any man's Right or Power to permit another to participate of what is his when hee himself loseth nothing thereof And that wee may determine this point in brief it is most evident from the Customs of all times that free Passage as they call it is wont ever to bee so limited by Princes in their Territories that it is permitted or prohibited according to the various concernments of the Publick Good and not otherwise Albericus Gentilis upon that Passage concerning the Amorites saith I am of the same opinion with Augustine in case there bee no fear of hurt and an assurance that no hurt may bee don Princes are concerned to bee warie and careful that they admit no such strangers or Commerce where pro re natâ the Common-weal may receiv any damage thereby Upon which ground also it is often provided in Leagues That it shall not bee lawful for either Partie to sail unto each others Ports Coasts or Harbors and this when neither of them hath any right to the waie by which they pass with such a number of ships or Men of War as may give a just occasion of any fear or jealousie that force is intended except leav bee first had of that Partie under whose Jurisdiction those Places are or unless they bee driven thither by Tempest or som other necessity to avoid a greater force or the danger of Shipwrack According to the fear or suspition of the Lord in possession and at his discretion all Merchants Strangers and Foreigners whatsoëver may bee prohibited unless som other special right or custom do intervene And Aristotle saith plainly Provision ought to bee made by Laws with whom subjects may or may not convers Bodin also saith well That the Laws of Commerce are contained in the particular Compacts and Agreements of People and Princes And in another place hee add's It is lawful to forbid a Foreigner from entring the Borders and also to force him out if hee have entred the Borders not onely if a War bee on foot but also in time of Peace that the manners of the Inhabitants may not bee corrupted by convers with Strangers But that Wars have been lawfully undertaken for a denial of Commerce unless the denial were given contrary to som antient League or unless that freedom depended upon som special Title to Commerce wee do as easily deny as any other man can affirm And though according to the opinion of Franciscus Victoria who also is followed chiefly by Joannes Solorzanus I. V. D. it bee affirmed that the Spaniard had a lawful Right to subdue the Indians becaus they denied Commerce and Entertainment yet they are in plain tearms opposed by Ludovicus Molina who will have no Nation or Common weal bound either with or without danger to it self to admit Commerce or Foreigners but in case of great and imminent necessitie or unless any League Agreement or som other special privilege do intervene But there are other pretences not a few which the Spaniards allege for the Con. quest of the Indies For they pretend also a Right of Discoverie primarie occupation Conversion to the Faith and other things of that nature besides the Donation of the Pope Of all which Solorzanus treat's at large And it is strange how the Spaniards should have a Right to acquire the Indies upon a denial of Commerce since it is very well known that both They and the Portugals do openly profess that they may lawfully prohibit Commerce in both the Indies Nor doth it prejudice the point at all that according to the Imperial Law no Prince nor any other holding Royalties by his Grant can
forbid men passage in the common Road without som just caus which must bee determined in an Imperial Diet nevertheless it is wrested by som to prove a freedom of Navigation at Sea For that happen'd by a particular Law agree'd upon by the Estates of the Empire who themselvs also are subject to a Diet But other Nations that are under several and distinct Soveraignties have not as yet made any such Agreement that there should alwaies bee a libertie of Passage to and fro nor have they like the Germanet and others within their Dominion referr'd themselvs unto an Umpire to determine the business An Answer to that Objection concerning the uncertain fluid nature of the Sea and its continual Alteration It is proved that Rivers also and the adjoyning Aër which are more fluid and uncertain may becom appropriate CHAP. XXI BUT they say that the very Nature of the Sea render's it unfit for privat Dominion both becaus it is ever in Motion and in no wise remain's the same as also becaus a convenient matter as well as Instruments are wanting therein to make a distinction of Bounds without which private Dominions cannot well consist yea and becaus by reason of its vast and spatious Body it is alwaies sufficient for all As to what concern's its fluid Nature are not Rivers and Fountains much more in a perpetual Flux or Motion Rivers alwaies run forward wherewith the Sea beeing compared it seem's to stand immovable as saith Strabo And Eustathius saith that Homer therefore call's the Sea by the name of a standing Pool becaus it run's not forward as Rivers do but is very stable And another saith the Sea stands without Motion as it were som dull heap of matter that Nature could not bring to perfection But suppose wee grant it bee so fluid as is usually said of the most Northernly Seas and Channels yet certainly the Channels and places out of which the waters flow remain ever the same though the waters themselvs do shift and change continually Nor yet can it be supposed that the Right of private Dominion over Rivers is any whit prejudiced thereby In the Romane-Germane Empire Rivers according to the Civil Law are of publick use yet they are reckoned in the Emperor 's private Patrimonie and among the Rights or Roialties belonging to his Exchequer so that either the Emperor or others by his Grant have in like manner a yearly Revenue out of the Fisheries in them Upon which accompt it come's to pass that they of Lombardy and other particular People throughout Italy enjoie all the Rivers of their Territories as proper and peculiar to themselvs by Prescription as wee are told by Caepola Nor is any thing more common then an asserting of the private Dominion of Rivers as well as their Banks in the Laws of Spain France Poland and Venice and in a word of all Nations whose Customs are known to us Nor as to what concern's this Objection fetch 't from the fluid Constitution of the sea is there any difference in nature between a greater and a lesser a private and a publick River Even Ulpian himself concerning Rivers saith There is no difference between a private River and other private Places And Martianus If a man hath fish't all alone many years in a Corner of a publick River hee may hinder any other from using the same Libertie Moreover oftentimes heretofore in the Romane Empire Rivers were made over as well as other Parts after the manner of Lands assigned Siculus Flaccus saith In som Countries even the Rivers themselvs are assigned out by measure But in som the subcesive or remanent part onely is left out unassigned and yet it is excepted out from the parts assigned as belonging still onely to the river it self After the same manner also Aggenus Urbicus For it was never conceived that the Rivers were otherwise acquired by the People or Emperor of Rome then the adjoyning Lands accordding to that of the river Danubius speaking to the Emperors Danubius penitis caput occultatus in oris Totus sub vestrâ jam Ditione fluo Et quà Dives aquis Scythico solvo ostia Ponto Omnia sub vestrum flumina mitto Jugum Danubius I whose Fountain few do know Now wholly under your Dominion flow And when full-charg'd run to the Euxin sea I make all Rivers to you Tribute pay Wee know that an Island newly sprung up in a river as also a Chanel that is deserted is even by antient Custom common to such as upon the Bank of any river do possess Lands that are not limited that is to say after the manner of Lands or Possessions unless there bee som special Law or Custom to the contrary And touching the Division of such an Island according to the nature of several Lands situate near one Bank or both Bartolus in Tiberiade hath written long since but of later time Joannes Buteo Baptista Aymus Antonius Maria Joannes Gryphiander and others Therefore in that case a Proprietie of the Chanel and so of the River even of that which according to the Civil Law is of publick and common use as well as of a Field that hath a common Thorow-fare was common before to the Owners that had Lands lying on both sides By the same reason almost an Island newly sprung up in any sea that never was possessed by any and whatsoêver shall bee built upon it become's his that first enter's it by occupation For the Chanel and that Sea at first belong'd to all men in general But by virtue of that Universal Compact or Agreement before mentioned whereby things not yet possessed were to becom the Proprietie of him that should first enjoie them by Occupation hee that shall so possess them by Occupation receiv's the Island and Building as it were by a Surrender of Right from former Owners Seeing therefore that a Proprietie and private Dominion of Rivers hath been every where acknowledged why should it not bee acknowledged in like manner that there may bee Owners of any Sea whatsoëver Since the fluid nature of water can no more hinder a Dominion in the one then in the other Yea the Rivers themselvs are onely lesser Seas as also the Fenns and Lakes even as the Sea it self as to its fluid Constitution is no other then a River Fen or Lake differing onely in bigness from the rest And so it hath been taken by the Antients In the very storie of the Creation all the Gatherings together of the waters are called Seas which hath been observed also by the Fathers to this purpose There are also very eminent examples in holy Scripture touching the two Lakes of Asphaltites and Tiberias both which are equally called Seas Asphaltites is by Pliny Ptolomy Josephus Solinus and Vitruvius tearm'd a Lake But by Moses the salt Sea and by most of the late Writers the dead Sea Tiberias is in like manner by the Antients and also
least allow such a Dominion VIII Som antient Testimonies of inferior note All the testimonies almost that are comprehended in this Division are indeed domestick but so publick and of so approved credit that hardly any thing can bee imagined which might give a clearer proof of possession whether Civil as they call it consisting in the act and intention of the minde or Natural which require's the presence of the Bodie As it will appear to any man that pleas to make enquirie Especially if hee add hereunto the judgment or acknowledgment of such Forein Nations whom it chiefly concerned whereof wee shall treat also by and by But of these things severally and in order That the Kings of England since the coming in of the Normans have perpetually enjoied the Dominion of the Sea flowing about them is in the first place proved from the Guard or Government thereof as of a Province or Territorie that is to say from the very Law of the English Admiraltie CHAP. XIV AS concerning the Guard or Government of this Sea there are three things therein that deserv special consideration 1. The bare mention and nature of the Guard of the Sea and of the Guardians or Admirals thereof in publick Records and Histories 2. The Tributes and Customs imposed demanded or accustomed to bee paid for and in consideration of the said custodie And lastly the tenor and varietie of Commissions belonging to this Guard and English Admiraltie or Government by Sea Since the coming in of the Normans there is frequent mention of a Guard or Government instituted for the defence and guarding of the Sea Here call to minde those observations touching this kinde of Guard which have been alreadie gathered out of that Record or Breviarie of England called Doomesday And King Henrie the first saith Florentius of Worcester gave order to his Butsecarli to guard the Sea and take care that no person from the parts of Normandie approach the English Coasts The same saith Roger Hoveden in the very same words almost save onely that the printed Copies err in putting Buzsecarlis for Butsecarlis These Butsecarli or Butescarles in the old English Language are Officers belonging to the Navie or Sea-souldiers as Hutesecarli were Domestick Servants or Officers in Court And that to guard the Sea here signified to secure the Sea it self not to defend the Sea-Coasts as somtimes though seldom it did with Land-forces plainly appear's out of Henrie of Huntingdon in whom it is clear that the persons who thus guarded the Sea were emploied by the King to make Warr by Sea against Robert Duke of Normandie who was then preparing an Expedition against England Now those publick Records are lost wherein the Roial Commissions for the delegation of this Command or Government were wont to bee registred all that space of time betwixt the coming in of the Normans and the Reign of K. John But from thence through all the succeeding ages unto this present time it is as clear as day that the Kings of England have been wont to constitute Governors or Commanders who had the charge of guarding the English Sea and were the Guardians or Governors thereof in the same manner as if it had been som Province upon Land First of all there were intrusted with the Government of the Sea or the Maritimae and Marinae the Maritime and Marine part of the Empire understanding by those words not onely som Countrie lying upon the Sea-Coasts but comprehending the British Sea it self though I confess it was not alwaies so such as were to guard and keep it under the title somtimes of Custodes Navium Guardians of the ships but more frequently Custodes Maritimae or Marinae in the sens aforesaid And in the time of Henrie the third Thomas de Moleton is styled Captain and Guardian of the Sea and hath autoritie given him to guard the Sea and the Maritim parts of the Eastern Shore In the same King's Reign also the Inhabitants of the Cinque-Ports are said to guard the Coast of England and the Sea So Hugh de Crequeur was Warden of the Cinque-ports and of the Sea in those parts Afterward the title of Guardians or Wardens very often changed into that of Admirals Edward the First saith Thomas of Walsingham for the keeping of the Sea divided his Shipping into three Fleets setting over them three Admirals namely over the Ships at Yarmouth and the road thereabout John de Botetort over those at Portsmouth William de Leyburn and over the Western and Irish Ships a certain Irish Knight Moreover also that John de Butetort is in the Records of that time styled custos Maritimae as were others also After this in the Reign of Edward the Second three Admirals of the three several Coasts of England saith Walsingham had the guarding of the Sea namely Sir John Oturvin Sir Nicolas Kyriel Sir John Felton Wee finde moreover in our publike Records that the principal end of calling a Parlament in the fourteenth year of Edward the Third was De Treter sur la gard de la pees de la terre de la Marche d'Escoce de la Meer i. e. That consultation might bee had concerning keeping the peace of the Land also of the Borders of Scotland and of the Sea The same regard they had to the defence of the Sea as of the Island or Land-Province giving us to understand that the Land and Sea together made one entire bodie of the Kingdom of England Other evidences of the same nature wee finde in the Records of Parlament of the same King's time or in the consultations of the estates of the Realm had about this matter that whilst they Treat indifferently De la saufegard de la terre concerning the safeguard or defence of the Land or Island and de la saufeguard de la Mere the safeguard of the Sea they seem sufficiently to declare beeing well inform'd by their Ancestors that the Dominion of this as well as of that did belong unto the Crown of England For the business debated by them was not onely how to provide a Navie to make resistance against their Enemies by Sea but for the guarding the Sea it self as well as the securing of the Isle and so for the maintaining the antient right of their King in both In the time of Richard the Second Hugh Calverlee was made Admiral of the Sea saith Walsingham and M r Thomas Percie joined in Commission with him to scour the Roades of the Sea for one year And in the Reign of the same King and likewise of the two succeeding Henries the Fourth and the Fifth debate was had in Parlament about the Guard of the Sea In the Reign of Henrie the Sixth the Guard of the Sea was with a numerous Navie Committed to Richard Earl of Salisburie John Earl of Shrewsburie John Earl of Worcester and James Earl of Wilts to whom was added Baron Sturton and afterward to John Duke
NEPTUNE to the COMMON-WEALTH of England 1 OF Thee great STATE the God of Waves In equal wrongs assistance crave's defend thy self and mee For if o're Seas there bee no sway My Godhead clean is tane away the Scepter pluckt from thee Such as o're Seas all sovereigntie oppose Though seeming friends to both are truly foes 2 Nor can I think my suit is vain That Land the Sea should now maintain since retribution's due And England hath great wealth possest By Sea's access and thereby blest with plenties not a few Which next the virtue of thy watchful eies Will her secure from forein miserles 3 Thy great endeavors to encreas The Marine power do confess thou act'st som great design Which had Seventh Henrie don before Columbus lanch'd from Spanish shore the Indies had been thine Yet do thy Seas those Indian Mines excell In riches far the Belgians know it well 4 What wealth or glorie may arise By the North-West discoveries is due unto thy care Th' adopting them with English names The greatness of thy minde proclaim 's and what thy actions are New Seas thou gain'st to the antient FOUR By Edgar left thou addest many more 5 If little Uenice bring 's alone Such waves to her subjection as in the Gulf do stir What then should great Britannia pleas But rule as Ladie o're all seas and thou as Queen of her For Sea-Dominion may as well bee gain'd By new acquests as by descent maintain'd 6 Go on great STATE and make it known Thou never wilt forsake thine own nor from thy purpose start But that thou wilt thy power dilate Since Narrow Seas are found too straight For thy capacious heart So shall thy rule and mine have large extent Yet not so large as just and permanent 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 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 Published by special Command LONDON Printed by William Du-Gard by the appointment of the Council of State and are to bee sold at the Sign of the Ship at the New-Exchange Anno Domini 1652. TO The Supreme Autoritie OF THE NATION The PARLAMENT of the Common-wealth of ENGLAND Right Honorable I Should not have presumed thus in the mid'st of so many great affairs to press into your presence did I not bring a Present in my hand most worthie of your acceptance It is that Learned and elaborate Work entituled MARE CLAUSUM A Piece so fully vindicating your Right of Soveraigntie over the Seas by the clearest evidences of Reason and Record from all Antiquitie that it stand's more impregnable against the Pens than the Island it self against the Attempts of Forein Nations It was written Originally in Latin for the asserting of this Right before all the world and how they have been convinced by it appear's hitherto by the universal Admiration that attend's it But considering what pitie it was that so rare a Jewel as this which hath drawn the envie of som few but the Approbation of All should lie so long lockt up in a Language unknown to the greatest part of that Nation whom it most concern's and how necessarie it is in this present Juncture to let the People have a clear understanding of their nearest interest and how that Right hath been received in all Ages which a strange People in this latter Age have been bold to undermine it was judged very requisite to unlock the Cabinet and expose the Jewel to the view of the whole Nation that they may prize it and apprehend not onely their own Interests and Concernments but how far wee and our Posteritie must stand indebted to the name and memorie of the noble SELDEN As for my self though it bee accounted one of the meanest Services to Translate yet when I consulted with my own Thoughts which way I might best express my dutie and affection to your present Caus and consider'd that little could bee said or collected upon this subject of the Sea which is not abundantly set forth in this irrefragable Treatise I conceived it a Task of no less importance than difficultie And now it is don if it were well don I should believ my self to have atteined no small happiness in having my name any way related to the Learned Autor who shall ever live like himself in this excellent Book as long as there is any memorie of Britain or of the Sea that flow's about it It was a work begun it seem's in the Reign of King James and then laid aside again for above sixteen years but afterwards revived alter'd and enlarged by the Learned Autor as hee saith in his Epistle at the command of the late Tyrant And as it was written for him so it was dedicated to him as beeing supposed one who was or ought to have been a fit Patron of the Dominion here asserted However this I finde that as hee seemed by his naval Preparations in the year 1635 to resent the many injurious usurpations of our unruly Neighbors and did in words also strenuously assert the Jurisdiction at Sea so hee set a value upon this Book as it 's main Evidence and in the 12 year of his Reign it was upon his special command deliver'd by the hands of Sir William Beecher one of the Clerks of his Council to the Barons of the Exchequer in open Court and by immediate Order of that Court it was placed among their publick Records where it remain's to this day Now had hee persisted with the same firm resolution in this honorable business of the Sea as hee did in other things that were destructive to the Nation 's interest the Netherlanders had been prevented from spinning out their long opportunitie to an imaginarie Claim of Prescription so that they would have had less Pretence to Act those Insolencies now which in former times never durst enter the Thoughts of their Predecessors The truth is too much easiness and indulgence to the Fathers and Grand-fathers of the present Generation was the first occasion of elevating them to this height of Confidence in pressing upon the Seas of England For who know's not with what tenderness and upon what terms they were first taken into the bosom of Queen Elisabeth yet they were no sooner warm but they shew'd their sting and proved the onely great vexation becaus deceitful friends to that excellent Ladie who in those Infant-daies was both Mother and Nurs of their ungrateful Republick Too
them above other Nations but since they break out like an Inundation and with a drawn Sword declare prodigious Principles of Enmitie against the Rights and Liberties of England it is presumed a thing unquestionable that due Defences ought to be made till they bee reduced within their antient Limits For if they should bee permitted in the least to Lord it at Sea as they want not will and advantages and have given you experience of their encroaching and ambitious temper so it 's to bee feared they would bee ever seeking opportunitie to impose a Lord upon you by Land May you go on therefore Right honorable as you have begun and do and the God of Heaven go along w th you upon terms of honor Justice in such a way that men may understand as you will do no wrong at what rate they must offend you Not onely our eies but the eies of all the world are fixt upon the carriage and conduct of this noble enterprise by Sea when you have acquitted your selvs there as no doubt you will do having alreadie given the same demonstrations of wisdom and courage that you have don by Land your Wars through God's blessing will at once bee ended It will draw such a reverence repute to your affairs that men will beware how they provoke you and your worst enemies despair of any future opportunitie The late Engagements Successes of your Fleets at Sea have shewn that the great God hath owned you there That hee hath not left you destitute of means That the old English bloud sens of honor run's still in the veins of your Sea-men and thereby given you to understand that hee who hath appeared so gloriously for you in the midst of wondrous difficulties by Land will also manifest his wonders in the Deep to make a final Accomplishment of the good VVork by Sea and beeing himself alone invested with the absolute Soveraigntie of Sea Land bee pleased to continue you and your Successors his Lievtenants in both for the establishment of this Common-wealth in a plenarie possession of its Rights and Liberties to all Posteritie I am in my praiers and endeavors RIGHT HONORABLE Your Honor 's most humble and faithful Servant Marchamont Nedham November 19. 1652. THE AUTHOR'S PREFACE SOm things there are that I thought fit here to forewarn the Reader part whereof may bee necessarie even for those who are in other things very well instructed The rest likewise not unprofitable for them who while they salute Books by the way are wont through a customarie vice of temeritie to stumble in the verie Threshold Those things concern either the place of such Testimonies as are alleged or som Circumstances of the Sea-Dominion which is proved or the Title of the Work Among Testimonies besides such as are in Print and Manuscripts reserved in private men's Libraries there are not a few especially in the second Book brought out of Records or publick Monuments whose credit I suppose every indifferent Judg of matters will as once the Senate of Rome did allow better than other Witnesses at least if there bee any difference and therefore full Those which lie in private men's Libraries you will finde where they are kept in the Margin If omitted there they are in my own But as to the Testimonies taken often out of publick Records som likewise have the Place either of the Archive or Rolls or the name of the Record-keeper's Office so noted in the Margin that thereby you may know immediately where to finde them But som of these Records that are very frequently cited have no place at all nor any name of the Record-keeper expressed but the King for the most part and the Year besides the name of the Court-Roll are only noted As many as are of this kinde do relate som to those years that pass betwixt the beginning of the reign of King John and the end of Edward the Fourth others to those years that succeed down to our time They which are of the former sort having no place nor name of the Record-keeper noted are kept in the Archive of the Tower of London but those of the latter sort in the Chappel of the Rolls It had been too slight a matter to have signified thus much here to such as are acquainted with our English Records becaus by the very name of the Court-Roll as Rotulorum Patentium Rotulorum Clausorum Rotulorum Parlâ—mentariorum Rotulorum Franciae Vasconiae Alemanniae and others of that kinde which are Records belonging to the English Chancerie and by the name of the King the very place also of the Records is sufficiently known But it is necessarie to premise this in the first place as well for the sakes of my own Countrie-men who have been Strangers to the Rolls as in the behalf of Foreiners to the end that if either of them perhaps have a minde exactly to consult the Original of any testimonie thence alleged they might when the Places are so described the more conveniently do it themselvs at their own leasure if present or if absent obtein it by the assistance of friends For the Record-keepers who have a special care to preserv them safely do usually give admittance at seasonable hours to all that pleas to consult them and have them so placed as Justinian commanded concerning the Records of the Empire 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that they may easily bee found by them that search As to what concern's the aforesaid circumstances of Sea-Dominion whereas there are two Propositions here so far as the term may bee born in things of a civil nature made evident The one That the Sea by the Law of Nature or Nations is not common to allmen but capable of private Dominion or proprietie as well as the Land The other That the King of Great Britain is Lord of the Sea flowing about as an inseparable and perpetual Appendant of the British Empire it is not to bee conceived that any other kinde either of Causes or Effects of Sea-Dominion are here admitted than such as have been of the Dominion of an Island Continent Port or any other Territorie whatsoëver or Province which is wont to bee reckoned in the Royal Patrimonie of Princes Nor that a less Dominion of the Sea than of the Land is derived from the nature of the Law received among Nations about the acquiring of Dominion and of Justice it self as from the Causes nor that the Effects thereof are any other than what are variously subservient to Compacts Agreements Leagues and Treaties Constitutions or Prescriptions of servitudes and other things of that nature in the same manner as the effects of Dominion by Land And therefore hee said well of old Nunc jam cessit Pontus Omnes Patitur leges The Seals now made appropriate And yield's to all the Laws of state That is to say all which are admitted in any other kinde of Territories according to the difference of things persons
times and the Law of War and Peace And so Valerius to the Emperor Tiberius The consent of men and gods saith hee would have the regiment of Sea and Land bee in thy power There are other Passages of the same kinde in antient Authors whereby the Dominion of Land and Sea is so conjoined that they would by no means have it divided in respect of each other or that either the effects or causes of the Dominion of this should bee different from that of the other But this I suppose is sufficiently manifest to the more intelligent sort of men without any Advertisement though it bee necessarie for such as too rashly without any regard had to the interposition of Leagues and Treaties Agreement or Law dare boldly affirm somtimes that the caus of Sea-Dominion consist's onely in the strength of powerful Fleets somtimes also of such as belong to Pirates but the effect in restraining all others simply and perpetually But the Title of the Book need 's a defence also among som whose palate I hear it doth not pleas very well They would not have forsooth the Mare Clausum here handled as an assertion of the Dominion of the Sea but to denote the time wherein the Seas were said to bee shut or closed by the Antients as not fit for Navigation Every man know's that from the third of the Ides of November until the sixt of the Ides of March or betwixt som other beginning and ending of such a kinde of winter-season the Sea was and was so called heretofore Clausum Shut as the rest of the time or in the Summer-season it was called Apertum Open that is to say more apt and convenient for shipping According to which sens it was said by Cicero while hee was in exspectation of Letters from his brother Quinctus Adhuc Clausum Mare scio fuisse I know the Sea hath been shut until now So that in this sens the Sirnames both of Clusius and Patulcius might rightly enough have been given to Neptune as well as Janus But yet though the Title had been taken from this Nation of the Seas beeing shut or closed it would not truly have been so reproveable For seeing it is in the power of an Owner so to use and enjoy his Own that without som Compacts of Agreement Covenants or som special Right supervening hee may lawfully restrain any others whatsoëver it cannot bee amiss for any one to say that the Seas which might pass into the Dominion of any person are by the Law of Dominion shut to all others who are not Owners or that do not enjoy such a peculiar Right in the same manner almost as that whereby in that Winter-season they becom unnavigable by the Law of Nature as saith Vegetius But truly there is another and far clearer meaning of the Title The simple sens of its terms doth denote that the Sea is so shut up or separated and secluded for private Dominion no otherwise than the Land or a Port by bounds limits and other Notes and circumstances of private Dominion and that by all kinde of Law that without the consent of the Owner and those special restrictions qualifications of Law which variously intervene vanish and return all others are excluded from a use of the same For most certain it is that Claudere to shut doth not only denote the mere simple Act of shutting as wee say de Januis oculisve clausis of gates or one's eies beeing shut clauso agmine or as it is in that of Lucan Brachia nec licuit vasto jactare Profundo Sed Clauso periere Mari. which is spoken of the Seamen's beeing cover'd with the keel of their ship turned upward but also it very often signifie's that which is consequent either to a denial of the free use of the thing shut as also the proprietie and Dominion of him that shut's it So saith Venus in Virgil to Jupiter Quid Troâ—s potuere quibus tot funera passis Cunctus ob Italiam Terrarum Claudiditur Orbis Clauditur Orbis the World shut that is to say a free use of the world is forbidden them or not permitted And Propertius Non Clausisset aquas ipsa Noverca suas Hee speak's of the sacred Fountains of Juno which were appropriate to the Female Sex as Owners and so prohibited to Hercules and all Males whatsoëver The Ambassador of the Tencteri speak's to the same sens also to the Agrippinenses in Tacitus VVee rejoice in your behalf that at length yee shall bee free among them that are free For to this day the Romanes had shut up the Rivers and Lands and in a manner the very Aër to hinder and restrain our Conferences and Meetings And in the same Author Cerialis plead's to the Treveri and Lingones Except Tributes saith hee Other things remain in common yee your selvs for the most part command our Legions yee rule these and other Provinces Nihil separatum Clausúmve Nothing is separate or shut Many other passages there are of that kinde Plinie also saith of the Seas themselvs Interiora Maria Clauduntur ut portu the inner Seas are shut as in a Haven And the same Author in another saith Mare Tyrrhenum à Lucrino molibus seclusum the Tyrrhen Sea was secluded or shut apart by Piles from the Lucrine And Tacitus tutum seclusum Mare the Sea was safe beeing secluded I hat Panegyrist also to Constantius saith of the Franks that robbed heretofore in a Piratick manner as well in the Mediterranean as the open Sea eventu temeritatis ostenderant nihil esse Clausum piraticae disperationi quo navigiis pateret accessus they made it appear by the event of their rashness that nothing could bee shut against the desperation of Pirates where there might bee an access for Shipping That is to say the Sea was not so shut against Pirates by the Roman Emperor but that they freely used depredation therein In a word that which is said by Ambrose possidere fretum spatia Maris sibi vendicare Jure Mancipii to possess a Narrow Sea and challenge spaces of the Sea by right of subjection is the very same with that of Columella Maria ipsa Neptunúmque claudere to shut the Seas themselvs and Neptune and so Mare Clausum is the Sea possessed in a private manner or so secluded both by Right and Occupation that it ceaseth to bee common that is being claimed by Right of subjection Upon this ground it was that those Angles were called Anguli Clausares whereby the Centuries in the Assignations of the antient Romans did so touch one another that it might bee known thereby how far the right of the possession of particular persons did extend as you may see in Hygenus Neither is it necessarie that what may bee rightly said in this sens to bee shut should bee shut or enclosed by som continued Fence or by a continued Tract of som
CHAP. XXXI Touching the Dominion of the King of Great Britain in the Scotish Sea especially toward the East and North. pag. 443 CHAP. XXXII 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 pag. 447 Amend the Errors thus PAg. 2. lin 31. read Question p. 15. l. 25. r. Hostages blot out Right p. 29. l. 2. also over all other p. 33. l. 7. r. Thus it is p. 38. l. 27. r. within the Creeks p. 49. l. 31. r. that of Neptune p. 53. l. 29. r. in any wise p. 56. l. 6. r. or which ibid. l. 14. r. translation p. 61. l. 2. r. hereto p. 64. l. 22. r. in the first p. 70. 31. r. they required p. 71. l. 9. r. Antigonus wittily replied that hee himself p. 74. l. 6. r. Counsel p. 75. l. 21. r. first ibid. l. 28. r. League that was p. 79. l. 28. r. Miscâ—um p. 82. l. 5. r. account ibid. l. 26. r. Theodosius p. 87. l. 13. r. that it cannot p. 94. l. 30. r. that servitude p. 95. l. 14. r. that servitude was imposed p. 95. l. 19. r. this servitude p. 98. l. 2. r. â—â—lls p. 105. l. 12. r. of p. 106. l. 10. r. or p. 123. l. 25. r. places according p. 129. l. 11. r. I run p. 142. l. 32. r. might bee p. 144. l. 11. r. Alciaâ—â—â— p. 156. l. 1. r. contemporatie p 161. l. 19. r. were it saith p. 163. l. 9. r. cotton p. 184. l. 12. r. Bacangâ— p. 189. l. 4. r. too much p. 190. l. 23. r. Their. p. 192. l. 27. r. trimming p. 203. l. 2â— r. I am p. â—â—â— l. 4. r. thrive p. 218. l. 30. r. throughout Britain p. 221. l. 6. r. throughout Britain p. 232. l. 17. r. at that time p. 243. l. 31. r. or strand p. 250. l. 28. r. Danemarc p. 255. in the margine r. Coâ—â—onianâ— p. 281. l. 12. r. Achilles Tatius p. 303. l. 29. r. entenâ— p. 306. l. 8. r. Office of our p. 315. l. 25. r. â—uisâ—es p. 316. l. 20. r. Guisâ—es and Amiens p. 317. l. 6. r. the opposite p. 322. l. 31. r. piece-meale p. 328. l. 24. r. Account p. 333. l. 14. r. Casarea p. 336. l. 2. r. so that it ibid. l. 5. r. knew ibid. l. 23. r. English by Norman p. 339. l. 16. r. the Islanders p. 384. l. 31. r. of a publick p. 413. l. 1. r. was his Plduciarie p. 448. l. 11. r. Feroâ— OF THE DOMINION OR Ownership of the Sea BOOK I. The Division of the Work and the Method of the first Book CHAP. I. THE Design beeing to treat of the Dominion or Ownership of the Sea incompassing the Isle of Great Britain as belonging to the Empire of the same two main particulars are chiefly to bee consider'd The one concern's matter of Law the other matter of Fact both of them beeing denominated as is usual from the major part For as the point of Law hath many things mingled with it which manifestly arise from matter of Fact so this of Fact comprehend's not a few which relate unto that of Law As to what concern's the point of Law this Question fall's chiefly under debate to wit Whether by Law the Sea bee capable of private Dominion or Proprietie And by matter of Fact is meant only such a collection of Testimonies or clear shewing forth of Evidences by which may bee proved and mainteined The long and continual conjunction with the British Empire of enjoiment and possession or lawful prescription whereupon as on a most strong Title the Dominion or Ownership of the same Empire herein may bee founded it beeing first made manifest that the Sea it self is not only not repugnant by any Law to Dominion or Ownership but every way capable thereof To each of these Particulars a several Book is allotted In the first is discussed matter of Law In the second that which concern's matter of Fact For except manifest proof bee made of the first point it will bee utterly in vain to discours about the second But for those things which are to bee handled in the first Book it seemed meet to observ such a Method as in the first place to lay open the Rise or Original ground of those Disputes that have occasioned this enquirie into the point of Law together with the Opinions of those men who denie that the Sea is capable of private Dominion or Ownership or that it may pass into the Proprietie of any one particular so as in the mean time to exclude it from beeing common to the rest of mankinde Next are premised som things for explaining the terms of the Questions that it may bee clearly thence understood as well what kinde of Mediums are to bee used as what the Thing is whereof wee intend to Treat lest by neglect of such a Cours wee bee perplex't with Doubts about the notion and acceptation either of the Terms themselvs or of the Subject in Controversie After this preparation thus duly made it is then demonstrated that not onely no kinde of Law whatsoëver rightly understood doth deny a Dominion over the Sea but that all kinds of Law even the most known and approved whereof there may bee any use in Disputes of this nature do acknowledg and allow a proprietie and private Dominion over the Sea as well as the Land Lastly the Objections usually brought against such Dominion or Ownership of the Sea are cleared and answered And with these wee shall now begin for the Method of the second Book is more conveniently put there before it What Occurrences seem to oppose the Dominion of Sea and what Arguments are wont to bee made against it CHAP. II. THe Arguments usually brought against the Dominion of the Sea are of three sorts Som are drawn from freedom of Commerce Passage and Travel Others from the nature of the Sea and a third sort from the Writings and Testimonies of learned men And as to what concern's the freedom of Commerce or Traffick and Travel this som men affirm to bee so natural that they say it can no where bee abolished by any Law or Custom yea and that by the Law of Nations it is unjust to denie Merchants or Strangers the benefit of Port Provisions Commerce and Navigation Adding moreover that wars have been justly commenced upon denial of Port Trade and Commerce And for proof they produce the example of the Megarans against the Athenians the Bononians against the Venetians and of the Spaniard against those of the West Indies for that the expedition of Spain against the Americans is pretended by very learned men to bee upon a just Ground becaus they denied them a freedom of Commerce within their Shores and Ports And in justification hereof They use that of Virgil as spoken out of the Law of Nations Quod genus hoc hominum quaeve hunc tam barbara morem Permittit
patria â—ospitio prohibemur Arenae What barb'rous Land this custom own 's what sort Of men are these Wee are forbid their Port. Now if such a Proprietie or Dominion of the Sea were admitted that men might bee forbidden the libertie of Navigation and Ports at the will of any Proprietor then say they it would bee an infringement of that Law of Commerce and Travel by them styled the Law of Nature which they would not have to bee indured Touching the second sort of Objections drawn from the nature of the Sea it self it is commonly alleged That the Sea is alter'd and shifted every moment and the state of it through a continued Succession of new waters alway so uncertain and remain's so little the same in all things the Channel onely excepted that it is impossible it should ever bee retained in the possession of any one Particular Moreover they say the nature of Possession consist's chiefly in a separation or distinction of Limits and Bounds but no such Materials or Instruments can possibly bee found in the Sea as that the Law for regulation of Bounds which hath a principal place in all Controversies about Dominion or Ownership may bee grounded thereupon They produce also a saying out of S t Ambrose speaking about the lurking-holes or holds of Fishes Geometram audivimus Thalassometram nunquam audivimus tamen Pisces mensâ—ras suas nôrunt I have heard of a Geometrician or one that could measure Land but never of a Thalassometrician one that could measure or lay out Bounds in the Sea and yet the Fishes know their own Bounds They are pleased likewise to insinuate what a world of Sea room there is that all Nations may have sufficient for watering fishing and Navigation And therefore that the peculiar Dominion thereof is by no means to bee appropriated unto any A third sort of Arguments lie's in those Testimonies that are drawn out of antient Writers partly out of old Poëts Divines and others writing of other subjects partly from such Lawyers as handle the matter purposely Of the first kinde is that of Gripus the Fisherman and Trachalio the Slave as they are brought upon the Stage by Plautus quarrelling about a Bag that was found in the Sea Gr. Mare quidem commune certò est omnibus Tr. Assentio Quî minùs hunc communem quaeso mihi oportet esse vidulum In Mari inventum est Commune est Gr. The Sea is common certainly to all Tr. True Why not this Bag to mee then too thou brawâ— It was found within the Sea Therefore common it must bee They produce likewise a piece of a supplicatorie speech of Latona to a rustick Rout in Lycia as it in Ovid Quid prohibetis Aquas usus communis Aquarum est Nec Solem proprium Natura nec Aëra fecit Nec tenues Undas In publica munera veni why hinder you said shee The use of Water that to all is free The Sun Aër Water Nature did not frame Peculiar a publick Gift I claim And that of Virgil too Littúsque rogamus Innocuum cunctis undâ—mque Aurâ—mque patentem Nothing but what is common wee implore Free Aèr and Water and a harmless shore Phaenicides saith also in Athenaeus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that the Sea is common To which may bee added that memorable saying of certain Jewish Rabbins who when they acknowledged Alexander to bee Lord of the whole world did it nevertheless with this Caution that they conceived hee had by his Conquests gained a Soveraigntie onely over the Earth or drie Land but none at all over the Sea it beeing subject onely to God himself as its sole Commander The words are these out of the Ebrew Non Dominabatur in Mari sed Deus O. M. Dominatur tà m in Mari quà m in Tellure Hee ruled not over the Sea but God Almightie is hee onely that rule 's by Sea as well as by Land The second kinde of Arguments here found among the Lawyers are of two sorts Naturali jure omnium communia sunt illa Aër Aqua profluens Mare per hoc littora Maris Item Nemo ad littus Maris accedere probibetur piscandi caussâ dum tamen villis aedificiis Monimentis abstineatur quia non Juris Gentium sicut Mare Idque Divus Pius piscatoribus Formianis Capenatis rescripsit By the Law of Nature the Aër Rivers the Sea and its Shores are common to all Also None are prohibited to use fishing upon the Shores as long as they meddle not with Lowns Buildings and Monuments in regard these are not common by the Law of Nations as is the Sea And this was prescribed by the Emperor Antonius Pius to the Fisher men of Formiae and Capena which are the very words used by Marcianus the Lawyer and by Justiâ—â—ion in his Institutions And Ulpian Mari quod Naturâ omnibus patet servitus imponi privatâ lege non potest The Sea beeing by Nature free for all cannot bee vassalised by any particular Law And in another place saith hee Mare commune omnium est litora sicut Aër Et est saepissime rescriptum non posse quem piscari prohiberi The Sea and Shores are common to all as the Aër And wee finde it very often prescribed or commanded by the Emperors that none bee prohibited from Fishing With which agree's also that saying of Celsus Maris esse usum communem omnibus hominibus ut Aëris A freedom of the Sea as well as of the Aër is common to all men In like manner som would have it that the Romane Emperor himself was Lord onely of the Land and not of the Sea for proof whereof they mention an Answer given by the Emperor Antoninus Se quidem mundi Dominum esse legem autem Maris That himself was Lord of the world but the Law of the Sea pretending this Answer of his to bee commonly understood as if hee refused to arrogate the Dominion of the Sea unto himself And in the Basilica or Laws of the Eastern Empire wee finde it thus written 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The Shores are within the power of all men So also saith Michaël Attaliates a man learned in the Laws of that Empire 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Som things are common to all as Aër Fountains the Sea Shores and Rivers And the summe is that som antient Lawyers of both Empires write that the Sea is common to all men by the Law of Nature and Nations which if it were truly proved either from the nature of the Sea it self or from either of those Laws then it could not possibly bee admitted that the Sea might becom the peculiar possession of any one unless a change were made of the Law of nature which is commonly said to bee altogether unchangeable or that the consent of Nations that have interest herein were obteined to admit of such a Dominion or Ownership And
therefore from thence they seem to hold that a Dominion over the Sea cannot bee atteined by any antient usage custom or prescription nor under any other pretence or title whatsoëver for faie they no Plea or Barr is to bee allowed against nature Nor as Papinian saith is a Prescription of long possession wont to bee admitted for the holding of such places as are publick and common by the Law of Nations And these antient Lawyers here mentioned are followed by no small Train of Interpreters though nevertheless there are not a few even of them who restrain and qualifie that antient opinion more waies then one touching the necessitie of a common Intercours and freedom at Sea as wee shall shew hereafter But of our modern Lawyers those that have appeared most forward in opposing a Right of Dominion over the Sea are onely two both indeed very eminent men but of unequal learning and elegancie of wit by name Fernandus Vasquius the Spaniard and Hugo Grotius the Hollander the former an honorable Counsellor to King Philip the 3. of Spain in his high Court of Exchequer The later was heretofore Advocate Fiscal of Holland Zeland and West-Friesland and most deservedly adorned with divers other honors in his own Countrie a man of an acute judgment and for his excellencie in all kinds of learning incomparable But Vasquius in his discours both of the Law of Nature and Nations as also concerning the Rights of Dominion Prescription and other things of that nature speak's to this effect From hence saith hee it appear's how little esteem is to bee had of their opinion who suppose that the Genoëses or Venetians may without injurie forbid others to sail through the Gulph in their respective Seas as if they could have laid claim to those Seas by Prescription which is not onely contrarie to the Imperial Laws above mentioned but also against the Primitive Law of nature and nations which cannot bee alter'd And that it is against this Law is evident becaus by the same Law not onely the Seas but all other immovable things whatsoëver were common And although in after-time that Law came to bee abolish't in part so far as concern's the Dominion and Proprietie of Lands which beeing enjoied in common according to the Law of nature were afterwards distinguish't divided and so separated from that common use yet it hath been otherwise and is still as to the Dominion of the Sea which from the beginning of the world to this present daie is and ever hath been in common without the least alteration as 't is generally known And though I hear many of the Portugals are of this opinion that their King hath had such an antient Title by Prescription in that vast Ocean of the West-Indies so that other Nations have no right to sail through those Seas and also that the ordinarie sort of our own Nation of Spain seem to bee of the same opinion that no people whatsoëver but Spaniards have any right to sail through that immens and most spatious Sea to those Indian Countries that have been subdued by the most mightie Kings of Spain as if they onely had a right by Prescription thereto yet all these men's opinions are no less vain and foolish then theirs who use to dream the same things of the Genoeses and Venetians The follie of which opinions appear's the more clearly even in this respect becaus neither of those Nations singly consider'd can prescribe ought against themselvs that is to saie neither the Republick of Venice against it self nor that of Genoa against it self nor the Kingdom of Spain against it self nor that of Portugal against it self for there ought ever to bee a difference between the Agent and Patient Much less can they prescribe ought to the prejudice of other Nations becaus the Law of Prescriptions is purely Civil Therefore such a Law can bee of no force in deciding Controversies that happen betwixt Princes or people that acknowledg no Superior For the peculiar Civil Laws of every Countrie are of no more value as to Forrain Countries and Nations or their people then if such a Law were not in Beeing or never had been â—nd therefore in Controversies of that nature recours must bee had unto the common Law of Nations Original or Secondarie which Law certainly did never admit of such a Prescription or usurpation of Title over the Sea Other matters hee hath of the same kinde beeing a very confident opposer of any peculiar Dominion over the Sea But in the year MD CIX it beeing the year after that large Treatie held at the Hage betwixt the Spaniard and the Hollander about freedom of Trade and Navigation to the East-Indies there was published that Book of Hugo Grotius entituled MARE LIBERUM or a discours concerning that Right which the Hollanders have to Trade in the Indies Wherein hee endeavor's first to prove that by the Law of Nations there ought to bee such a freedom of Navigation for all men whatsoëver which waie they pleas so that they cannot without injurie bee molested at Sea Next that the Atlantick and Southern Ocean or the Right of Navigation to the Indies is not nor indeed can bee any peculiar of the Portugalls forasmuch as the Sea saith hee according to the Laws and reasons already mentioned can in no wise becom the Proprietie of any one becaus nature not onely permit's but require's it should bee common Several other passages hee hath about this matter in his excellent Book De Jure Belli pacis of which more hereafter Thus much in brief concerning those arguments that are usually brought against the Dominion or Ownership of the Sea The next thing therefore is to explain the sens of the Question and its terms What is meant by the word SEA in the Question Also a division of the LAVV in order to the discours CHAP. III. AS to what concern's the present Question Whether the Sea bee capable of private Dominion wee take the word CAPABLE in the same sens as it was used by the Emperor Traian in an Epistle of his to his beloved Plinie Solum peregrinae civitatis capax non esse dedicationis quae fit jure nostro The soil of a strange Citie is not capable of such a dedication as is made by our Law Moreover wee shall explain what is meant by the SEA as also by those Terms of LAW and DOMINION By the SEA wee understand the whole Sea as well the main Ocean or Out-land Seas as those which are within-land such as the Mediterranean Adriatick AEgean or Levant British and Baltick Seas or any other of that kinde which differ no otherwise from the main then as Homogeneous or Similary parts of the same bodie do from the whole But the Law as it is the rule measure and pointing out of things lawful or unlawful fall's under a twofold consideration Fither as it is Obligatorie which is called also Preceptive or as it is Permissive
when it dived into the contemplation or debate of Religious matters it hath often been most deservedly restrained by certain set-Maxims Principles and Rules of holy Writ as Religious Bolts and Bars upon the Soul lest it should wantonize and wander either into the old Errors of most Ages and Nations or after the new devices of a rambling phansie And truly such a cours as this hath ever been observed in Religious Government But in such things as are meerly humane and so humane that they reflect only upon matters of dutie betwixt man and man and are not forbidden by any command of God of which kinde you cannot so much as imagine any thing more plainly to bee then a distinction of the Dominion of Territories and the manner thereof which is wholly grounded upon the consent of men that which shall bee permitted by the Law Natural is no less rightly determined by the Laws Placarts and received Customs of divers Ages and Nations both antient and modern then it may bee collected what every Clime will or will not bear by the diligent observation of Countries Shrubs Trees Plants and other things which belong unto the bodie of Husbandrie For as many Nations as have admitted such a private Dominion as wee inquire after whether by a Law Civil or Domestick of their own or by any Law common to themselvs and their neighbor-Nations are either to bee allowed competent Witnesses of the natural permissive Law so far as there is any use of it here or els it must bee said which I believ no man dream's that so many and those the more famous Nations have for so many Ages erred against Nature Concerning the Law Natural Justinian saith Quod Naturalis ratio inter omnes homines constituit id apud omnes populos peraequè custoditur vocatúrque Jus Gentium quasi quo Jure omnes Gentes utuntur What Natural reason establisheth among all men that is observed by all people alike and is called the Law of Nations as it were by a Law which all Nations use And Caius Jus Gentium ratione naturali inter omnes homines peraequè servatur The Law of Nations is by natural reason observed alike among all men But where are all Nations It is not yet discover'd how many there are much less upon what Customs they have agreed Nor is that in any wise found in the Customs of all those Nations that are discover'd which som notwithstanding imbrace as a part of the Law Permissive What have the midland Nations to do with that Law concerning the Confiscation of wrecks at Sea which hath been used by the English Britains Sicilians and som other Nations bordering upon the Sea The inslaving of Prisoners of War is grown out of date as a thing not permitted among Christian Nations which nevertheless is in use still among the Mahometans In vain therefore is a Rule and Direction sought here out of the Customs of all Nations but especially seeing som are not wanting who non foedera Legum Ulla colunt placidas aut Jura tenentia mentes Whom neither League nor lawful compact bindes Nor Laws that rule and pacifie men's mindes as hee saith of the Bebrycians That there have been som such Nations is expresly recorded also by Aristotle And Salust out of the mouth of Hiempsal saith concerning the Getuli and Libyans the antient Inhabitants of Africa Neque moribus neque Lege neque Imperio cujusquam regebantur They were ruled neither by Custom nor by Law nor by the command of any And in another place concerning the Aborigines Genus hominum agreste sine Legibus sine Imperio liberum atque solutum A rude sort of men without Laws without Government free and dissolute Therefore wee must have recours here unto the more civilized and more eminent Nations of the past and present Age and of such whose Customs wee are best acquainted with And among them truly not onely such as those very Nations whom it may chiefly concern here have ever highly esteemed but also those Nations who are concerned at present shall bee proved competent Witnesses But of the Testimonies that wee intend to use there is a twofold kinde Som are those which shew that a Soveraigntie and private Dominion of the Sea hath been by Historians and other Writers almost in all Ages acknowledged and granted to Princes People and others Other Testimonies there are which demonstrate out of Lawyers also by Leagues and Treaties and other particulars of that nature that such a Dominion of the Sea is in like manner agreeable unto Law Both which wee interweav as the order of Things direct's us But yet so that what matters either of Fact or Law do appertain unto the British Sea are wholly pretermitted in this collection of Testimonies with an Intent to dispose them apart in the second Book And so at length it will bee very clearly manifested together both what the Civil Law of Nations as also what the Common Law of divers Nations and lastly what the natural permissive Law which in this case is to bee drawn out of the Customs of Nations hath determined touching private Dominion of the Sea The manner whereby the Law Permissive touching private Dominion of the Sea may bee drawn out of the Customs of many Ages and Nations That there were Testimonies hereof manifest enough in the Fabulous Age. Also a word by the way touching the Mediterranean Sea in possession of the Romanes when the Command thereof was committed to Cneius Pompeius CHAP. VIII THe Ages out of whose Monuments and Actions the aforesaid Customs determinations and Decree's of People and Nations are to bee derived I divide into two parts Into the Fabulous Age and the Historical But wee do not according to Varro call that Fabulous which wholly preceded the beginning of the Olympiads but that which is obscured onely by the most antient Fables at least under a fabulous Representation The Historical beeing in the mean time divided into that which is more antient and comprehend's the Customs of such Empires and Common-wealths as expired som Ages past And into that which is modern and shew's the practice of those Nations in the present case which are now in Beeing But in applying our selvs unto the fabulous Age wee do not ground Arguments upon Fables as they are meer Fables but wee manifest Historical Truth out of the most antient Historians though wrap't up in the mysteries of Heathen Priests and Poëts For as Lactantius saith well even Those things which the Poëts speak are true but cover'd under a certain veil or Figure And yet they have so veiled the Truth with Fiction that the Truth it self might not take off from the common belief of the People They write that in the fabulous time afore-mentioned the Titans beeing subdued the Brother-Deities Jupiter Pluto and Neptune divided the world by Lot And that Heaven was allotted unto Jupiter Hell to Pluto the Sea to Neptune But omitting
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
hee freed the sea-Coast from Pirates and restored the Dominion to the people of Rome Moreover as touching the vast Sea-dominion of the Romane people Dionysius Halicarnass saith Rome is Ladie of the whole sea not onely of that which lie's within Hercules's Pillars but also of the Ocean it self so far as it is navigable This is indeed an Hyperbole But in the mean time a clear Testimonie of a very large Sea-dominion As also that of Appianus Alexandrinus The Romanes saith hee hold the Dominion of the whole Mediterranean Sea Other instances there are of the same nature But truly that expression of a very eminent man is not to bee admitted who saith of examples of that kinde that they do not prove a possession of the Sea or of a Right of Navigation For as particular private men so also people and Nations may be Leagues and Agreements not onely quit that Right which peculiarly belong's to them but that also which they hold in common with all men in favor and for the benefit of any one whom it concern's And for this hee referr's himself unto Ulpian who will have that Cessation of fishing for Tunies in the Sea of which more hereafter to bee derived from the Autoritie of som stipulation or Covenant not from any vassalage imposed upon the Sea Surely by such a kinde of distinction whereof Ulpian is indeed the Autor the same may bee said either of Dominion or vassalage as wee call it of every kinde If to occupie and enjoy in a private manner by Right to hinder and forbid others bee not Dominion it is nothing Moreover Cassandra in Lycophron prophesied that the people in Rome should have such a Dominion where shee attribute's to them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The Scepter and Monarchie both of Land and Sea Hereunto belong those things above mentioned touching the Command of Pompey held by Commission from the people of Rome as also those other which wee meet with now and then among writers concerning the Sea-Dominion of the Romans Suetonlus saith of Augustus Cesar Het placed one Navie at Mesinum and another at Ravenna to guard the upper and lower Sea But Aristides saith this Dominion was not limited to the Romans by certain Bounds as of old 〈◊〉 the Athenians but that it incompassed their Empire round like a girdle And Themistius speaking of the Emperor Theodosius the elder saith what would you say of him who is Emperor or Ruler of almost the whole Earth and Sea In like manner Procopius making mention of a Statue of a Romane Emperor holding a Citie in his left hand saith that the Statuarie's meaning was that the whole Land was subject to him as well as the Sea To the same purpose speak's Nicephorus Callistus in the Preface to his Ecclesiastical History And Julius Firmicus speaking of such persons who have in the Schemes of their Nativities the Moon encreasing in the thirtieth Degree of Taurus fortified with a friendly Aspect of Jupiter saith they shall possess the Dominions of Sea and Land whithersoëver they lead an Armie Oppianus saith to the Emperor Antoninus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Under thy Laws or Scepter the Sea role's And Fishes swim throughout thy Sea in sholes And Venus to Jupiter concerning the future Empire of the Romanes Certè hinc Romanos olim volventibus annis Hinc fore ductores renovato sanguine Teucri Qui Mare qui Terras omni ditione tenerent Pollicitus quae te genitor sententia vertit Hence Romans their Original should take In after-years thou once didst promise make And Leaders spring to rule both Land and Sea From Teucer's bloud what alter's thy decree From whence the same Poët in another place speak's of Augustus Caesar An Deus immensi venias Maris ac tua Nautae Numina sola colant tibi serviaâ— ultima Thule Téque sibi generum Tethys emat omnibus undis Or whether thou the God wilt bee Of the vast Sea and Thule's farthest shore Or thee alone the Sailors shall adore As Thetys Son-in-law with all her Seas Given for a dower c. And Claudian of Scipio Africanus Ergò seu patriis primaevus Manibus ultor Subderet Hispanum legibus Oceanum Then whether in revenge to 's Father's ghost Hee quell'd the Sea upon the Spanish Coast. Or what other business soêver hee did Ennius was still at his elbow In like manner Constantinus Monomachus is by John Bishop of Euchaïta in his Iambicks called indeed Emperor of the East but according to the custom of the Western Empire 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Lord and absolute Soveraign both of Land and Sea As also the Emperor Leo by Varadatus Terrae Marisque Dominus Lord of the Land and Sea So that in the Empire of Constantinople which followed the Customs of the Western the AEgean Sea it self was reckoned among the Provinces no otherwise then Samos Cyprus or other Islands or Territories of any kinde whatsoëver This appear's out of Constantinus Porphyrogennetus his Themata where also the Hellespont is expresly assigned to the Commander in chief of the AEgean Sea together with the Territories lying round about And truly the Customs out of this Sea were very great onely upon the accompt of Fishing Somtimes ten somtime twelv thousand Crowns were collected out of it yearly Wee learn this also out of a Decree whereby Andronicus Palaeologus one that kept the State of an Emperor but lived a chambering idle life within his Palace had for the victualling of himself and his retinue the yeerly profit of the fishing before Constantinople wont to bâ—e valued at that time at ten thousand Crowns as saith Nicephorus Gregoras The same is by som called Topiaticum Topicum it is named also Piscinica and Topice Moreover in the servey or breviarie of the Dignities of the East onely three Provinces are reckoned under the Proconsul of Asia after this manner These Provinces under-written are under the charge of that eminent person the Proconsul of Asia Asia The Isles Hellespont Their towred Diadems equal Stature majestie and wealth not differing at all seem to point out such an equalitie that neither of them can appear by this form of description to bee reckoned a part of another And so that Hellespont cannot in that place bee any other then the Sea it self or that Arm of the Sea flowing between which beeing thus joyned with the Isles to the Proconsulship of Asia upon one and the same account of Dominion the Provinces of Asia and Europe became in a civil sens either continual or contiguous Yea when there was no such distinction of Provinces the adjacent Isles and the Sea it self made one entire Provincial bodie also with the continent And hence it came to pass that the Isles of Italy were part of Italy as also of every Province and such as were divided from Italy by a small arm of the Sea as Sicily they were to bee
reckoned rather among the Provinces of the Continent The Seas lying between did not hinder but that one continued Territorie might bee made of the continent and the Isles And that also by the Autoritie of Ulpian who notwithstanding useth to say that the Sea is common to all men But of this hereafter in our Answers to the Objections The same Ulpian also in another place saith Si quis me prohibet in mari piscari vel everriculum c. If any man forbid's mee to fish in the Sea or to draw a Drag net which the Greeks call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 may I sue him or no at Law upon an action of Trespass Som there are of opinion that I may sue him upon a Trespass So Pomponius and many others say hee is in the same condition with him that hinder's one to wash in a publick Bath or to sit in a publick Theatre or to act sit and convers in any other place or put case there bee any one that permit's mee not to use that which is my own But the Antients allowed an Interdict to him that hired the Sea if so bee hee hired it in a publick manner For force by that Interdict is allowed that hee may enjoy what hee hath hired Therefore the Sea becaus it was possessed by the people was reckoned among publick things that is those things which are proper and peculiar to the people of Rome not common to all men after another manner then publick Baths Theatres and other things of that kinde And what doth to hire in a publick manner signifie in this place but to becom a hirer or Conductor of the Sea as the people was Lord thereof and Letter or Locator I suppose no man doth affirm that any thing may bee let for Rent or hired which may not so belong to one man that can not bee anothers But becaus publick Places by the Civil Law do serv for the uses of private persons therefore Pomponius and others were of opinion that there might have been here an action of Trespass Moreover it was an Edict of the Praetor That you do nothing in a publick place or cast any thing into it whereby it may bee endamaged Hereupon Ulpian saith against that man who hath cast a Dam or Pile into the Sea an Interdict is allowed him who perhaps may bee endamaged thereby But if no man sustain damage hee is to bee defended who build's upon the shore or cast's a Pile into the Sea If any man bee hinder'd from fishing or Navigation by Sea hee shall not have an Interdict nor hee likewise who may hee restrained from playing in the common Field or from washing in a publick Bath or from beeing a spectator in a Theatre But in all these Cases hee must use an Action of Trespass Therefore a Prohibitorie Interdict or Decree was to bee used when dams were cast into the Sea no otherwise then when damage was don to a Theatre Bath Court or any publick place whatsoëver To these things which manifestly belonged to the people of Rome and were not common to all men is the Sea everie way compared even by Ulpian himself There is also the same account made of the shores and Sea by those that speak for a Communitie of the Sea Nor are they said to bee less common by som who treat of them apart as by Neratius and Ulpianus But Celsus saith I think those shores do belong to the people of Rome over which the people of Rome have dominion But that which follow 's there that the use of the Sea is common to all as the Aër and that the Piles cast into it belong to him that cast them is plainly qualified and manifestly restrained to the manner of the Dominion of the people of Rome in the words immediately following where Celsus saith That is not to bee granted in case the use of the shore or Sea may by that means becom the wors Certainly if the former words were meant of such a Community or enjoyment common to all men as would not in any wise permit the Dominion or propriety of a particular person what mean's that then that the use may becom the wors For if a place should becom the proprietie of him that doth possess it in the same manner as that which had before been possessed by no man and no regard should bee had here of the Dominion or Right of another then it would bee no less lawful for him that should possess it to make the use thereof the wors to others for the benefit of himself then for him that shall settle in a Field that never was seized yet in the possession of any Therefore Celsus would have the Shores and Sea so to belong to the people of Rome that the condition of them as serving the uses of all private persons and that as hath been said according to the Civil Law and such qualifications as are added out of the Edicts of the Praetors and the like could not without injury bee made wors to the prejudice of the Commonweal Of the same minde is Scevola That by the Law of Nations men may build upon the shore if the publick concernment do not binder And Aristo quod Mari occupatum est fit publicum that which is possessed in the Sea becom's publick It passeth into the patrimonie of the people of Rome for so the word Publicum Publick doth signifie which the Greek Lawyers term 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or that which belong's to the people not equally common to all men by whom also the Sea it self is in that sens called Publick Other Instances there are of the same nature Whereby it is made manifest as well out of the determinations of Lawyers as the Transcripts of Leagues and Treaties and the writings of Historians Orators and Poëts that a Dominion of the Sea was in use among the Romans after the same manner as the Land The Dominion of the Sea as it belonged to private persons under the Roman Empire together with that Sanction established in the Eastern Empire whereby the perpetual community of the Sea which was pretended to by som beeing utterly abolished as a thing unjust the Dominion even of private persons therein is asserted CHAP. XV. WHat hath been delivered in the fore-going Chapter touching the Dominion of the Sea hath relation to the Dominion of the whole bodie of the Romane people that is to say to the publick patrimonie of the State wherein a private Dominion is proved no less then in that of particular persons Moreover there are to bee found among the Romane Customs very ample testimonies to prove that a proprietie in the Sea hath been instated also on particular men such to whom either the people or Emperor of Rome according to the Civil Law and Custom of the Romanes demised rented or made a grant of any part of their Sea within the Empire The rich and more magnificent sort
acknowledg that common practice and received custom was for the other part In case saith hee I forbid any man to Fish before my Hous or Roialtie what can bee said may hee sue mee upon an action of Trespass or no The Sea and the shores indeed are common to all as the Aër And it hath been declared that no man can bee prohibited from Fishing or fowling any otherwise then as hee may bee debarr'd from entring upon another man's ground Yet for a man to bee forbidden to Fish before my Hous or Royaltie is the common custom although grounded upon no Law Wherefore if any man bee prohibited hee hath for all that an Action of Trespass Hee grant's it was a received use and custom that subjection should bee thus imposed on the Sea and so a private Dominion thereof bee admitted but least hee should bee found unconstant to his espoused opinion of the communitie of the Sea hee hath presumed to declare it don without any Law or Justice Yet hee himself deliver's his judgment in another place thus The vender or seller of the Geronian Farm imposed such a condition on the Botrojan Farm which hee still kept in his hands that from that time forward no fishing for Tunies should bee used upon the Coast thereof although no private contract can lay a restraint upon the Sea which nature set's open to all Yet in regard honestie and faithful dealing in the agreement require that this Article of the sale bee observed the persons that are in present possession and they that succeed into the said Farm are obliged by the condition of the covenant or bargain In this case the owner of the Botrojan Farm renounceth his right of Fishing And Ulpian might as well have said that restraint or subjection was imposed upon that adjacent Sea as indeed it was but that hee was so unwilling to forgo his Opinion of the Seas unalterable communitie Moreover the purchaser of the Geronian Farm was so fully possessed of the Sea that lay before the Botrojan that by virtue of this subjection really imposed on that Sea-territorie the Owner of the Botrojan Farm could never after justly claim or exercise a privilege of Fishing for Tunies without his permission Whereupon Stephanus Forcatulus once Professor of the Civil Law at Tholose conclude's to the purpose That there is nothing to hinder but that the Sea though common to all may by publick decree bee subjected to a Prince by the same right that hee hold's his adjoyning Kingdom since the same thing may in a manner bee effected by virtue of a private compact Where by private compact hee mean's that concerning the Purchaser of the Geronian Farm as hee himself saith expresly in the same place But the opinion of Ulpianus for a perpetual communitie of the Sea was so entertained as authentick by the Lawyers of the Eastern Empire that there was no Law in force among them whereby an adjacent Sea might bee made appropriate or any man bee debarr'd the libertie of Fishing by the Owner of such Lands as border'd thereupon And if any one were debarr'd hee might have an Action of Trespass Which is manifest enough not onely in the Basilica which before the dismembring of them were a bodie of the Law of the Grecian or Eastern Empire but also by the Decrees established by the Emperor Leo by virtue of which that stale opinion of the communitie of the Sea beeing utterly cashiered as not agreeing with equitie that ancient one of the lawfulness of a possession and private Dominion in the neighboring Sea back't with the Autoritie of other eminent Lawyers was entertain'd again Moreover also it was so firmly ratified by an Imperial Sanction that from that time forward it passed over all the AEgean Sea without controul That Law saith that Eastern Emperor who reigned about the nine hundreth year of our Lord which so take's away the right of possessions bordering on the Sea as to make the Lord thereof liable to an Action of Trespass if hee prohibite others to Fish upon those Coasts in our judgment seem's to determine that which is not equitable or just Hee add's the reason becaus whatsoëver com's into the possession of any man by good and lawful Title whether by succession art and industry or any other way which the Law approve's there is no reason that other men should have the use and benefit thereof without the owners leav Thus the matter beeing duly examined hee judged that hee who held any part of the Sea in the aforesaid manner had a Title grounded upon a very clear Right Therefore saith hee wee decree that every man possess his vestibula or Seas lying before his Lands and bee master of them by an unquestionable right and that hee have power to keep off any persons whatsoëver that go about to enjoy the benefit thereof without his permission And in that which follow 's hee make's the Proprietie of Sea and Land altogether equal The Seas which laie thus in the face of Manors were called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Sea-Courts or Entries nor did this sanction of Leo serv onely for the ratification of former Titles founded either upon particular possession or any other but ordained in general that every man for the future should bee Lord of that neighboring part of the Sea which laie before or flowed by his Lands although hee had never been possessed thereof before In this very sens it is taken by Constantinus Harmenopulus a Judg of Thessalonica Touching Sea-Courts or Entries by Sea saith hee it is decreed in the thirtieth Novel of the Emperor Leo that every one bee master of that which is adjoyning to his Lands and that power bee given him to prohibit such as at any time go about to make any benefit of these Vestibulas or Entries without his permission Harmenopulus following a different order of the Novels call's that the thirtieth which in the printed Copies is the fiftie-sixth But now how much of the Sea directly forward did pass into the possession of the same person that was Lord of the adjoyning Lands either by antient custom or by virtue of this decree is not yet certainly known nor is it necessarie to our purpose but for latitude even as it were in a field those Vestibulas or Entries of the Sea were bounded by the same limits with the adjacent Lands And it was the custom for particular owners to have their Epoches or Pens for fish which the later Greeks call T 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is to saie Nets spread between stakes driven into the Sea but limited upon this condition that every Epoche should bee distant from the other three hundred sixtie-five Cubits if so bee the breadth of Land could conveniently permit And such an equal distance was observed on both sides that a direct line from each Epoche to the extremitie of the Vestibulum or Entrie was extended one hundred eightie two ells and a half but this
rule for limitation became useless after a ten years prescription The Lord of a Manor bordering upon the Sea improved his yearly Revenue by these as by other commodities which profit arising from those Entries is usually stiled by the Eastern Lawyers 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which may bee translated locarium for the price which was paid for hire of a Stall Shop or Farme is called in Latine locarium so that wee see private persons raised their topiatica or locaria that is their Rents out of the adjacent Sea And out of those Rents they paied to the Prince a yearly Tribute amounting to no inconsiderable summe as was shewed before levyed upon that accompt So that by the custom of the Eastern Empire not onely the Soveraigntie of a Prince which is the point in question but also the Dominion of private persons in the Sea beeing ratified by Autoritie of publick decrees enacting it and repealing as unjust whatsoëver gainsai'd it it was in use beyond all dispute above five hundred and fiftie years for so many are reckoned to the taking of Constantinople from the date of the aforesaid decree of Leo which concerned not onely Bosphorus in Thracia the Hellespont the AEgean and the narrower Seas but all those that were under the Dominion of the Emperor of Constantinople And this may serv to bee spoken of the more antient Historical Age or that which contain's the customs and Laws of Kingdoms and Common-weals that are long since exspired Touching the Dominion of the Sea according to the Customs of such Nations as are now in beeing First of the Adriatick Sea belonging to the Venetians the Ligustick to the Genoëses the Tyrrhen to the Tuscans and lastly of the Sea belonging to the Church or Pope of Rome CHAP. XVI IF wee take a view of later times or the Rights and Customs of Nations which at this present are in high repute and autoritie there is nothing that can more clearly illustrate the point in hand then the Dominion of the Adriatick Sea which the most noble Common-weal of Venice hath enjoyed for so many Ages The truth of this is every where attested and acknowledged not onely by Historians and Chorographers but by very many Lawyers Bartolus Baldus Angelus and a companie of above thirtie the most eminent among them unless they bee mis-reckoned by Franciscus de Ingenuis who saith hee counted so many in that Epistle of his to Liberius Vincentius written som years ago in defence of the Dominion of the Venetians over the Adriatick Sea in answer to Johannes Baptista Valenzola a Spaniard and Laurentius Motinus a Roman who as hee saith to gratifie the Duke of Ossuna Vice-Roy of Naples whose creatures they were wrote against the Right of Dominion which belong's to the Venetians by Sea Venice is commonly styled the Mistress of the Sea and the Queen of the Adriatick Sea though the Controversie ahout its Bounds bee not yet decided And Sannazarius write's thus of this Citie Viderat Adriacis Venetam Neptunus in undis Stare urbem toto ponere jura Mari. Neptune saw Uenice in the Gulf to stand Of Adria and all the Sea Command Nor doth this Dominion arise from any jurisdiction or protection over the persons of such as frequent the Sea as is imagined by som miserably carried away with the autoritie of Ulpian so often affirming that the Sea by the Law of nature is commnn to all men nor is it a qualified Dominion as saith Angelus Matthaeacius professor at Padua but this Sea doth so properly belong to the Venetians that it is not lawful for any other to use or enjoie the same without their permission forasmuch as they have right to prohibit any to pass to impose custom upon those whom they permit to do any other thing in order to the raising of benefit and advantage out of the water as any man may do in his proper possessions by Land As concerning Navigation in that Sea that it may bee prohibited at their pleasure and that by approved right wee have the testimonies of many Lawyers It cannot bee denied saith Angelus de Ubaldis but the Venetians and their Signiory for very many Ages have been and are in possession as it were of the aforesaid Gulf wherefore the Venetians by virtue of that antient possession which they have had so long and do yet enjoie may by putting a restriction into the form of their Covenants hinder the Genoëses or any other whatsoëver that shall offer to sail through their Gulf. The same saâ—e others also quoted by Benevenutus Straccha Antonius Peregrinus Marta Neopolitanus Julius Pacius Mantua Patavinus Franciscus de Ingenuis and Fulgentius Monachus Venetus who all have written more particularly and made it their business to assert the right of the Venetians And there are examples to bee produc'd which shew how Princes as well neighbors as others have made it their suit to the State of Venice to obtain leav to pass through that Sea which somtimes was granted and somtimes denied In the year 1399 December 12. Radulphus Earl of Otranto made a request to that State in the behalf of Uladislaus King of Naples and William Archduke of Austria that leav might bee granted to pass through the Adriatick Sea with Galleyes and other Ships to conveigh the Sister of the King out of Apulia to the Territories of the Archduke her husband which the Republick granted but with this condition that no person that had been banished from Venice or was guiltie of any capital crime against the State should bee taken aboard those Ships Which the Austrians imbarking at Trieste faithfully observed both in their voiage and in their return There are extant also two Letters wherein the Emperor Frederick the third in the years 1478 and 1479 desire 's of Giovanni Mocenigo Duke of Venice and of the State that leav might bee granted him to transport corn from Apulia through the Adriatick Sea Franciscus de Ingenuis make's mention of others to the same purpose written to the same Duke from the Kings of Hungarie And this they intreat as a matter of great favor for which they shall acknowledg themselvs obliged Matthias King of Hungarie in a Letter to Duke Mocenigo dated 1482. write's That whereas the State hath been wont to give leav to the Earls of Frangipanis and Zenga and others whose Territories laie upon the Sea Coasts every year to transport a certain store of corn from Apulia through that Sea hee desire 's that the same libertie might bee vouchsafed to himself who had now succeeded into the Dominion of the very same Countries And as touching the right which the Venetians had to impose custom on passengers as travelling through their peculiar Territorie there are frequent testimonies among the Lawyers Salicetus mentioneth a Decree of the Venetians that all who passed through the Sea should bring in their merchandise to
Venice and there paie custom And saith Bartholomeus Cepola The Venetians within their Dominion have several Roialties and Rights belonging to their Exchequer and de facto at least acknowledg no Superior so that they have power to impose Gabels to confiscate goods and commodities in the aforesaid Sea as well as in the Citie of Venice having as full jurisdiction in the Sea as in the Citie Antonius Peregrinus also who was advocate of the Exchequer at Padua after a large discours upon this subject the conclusion saith hee is this that the right of Fishing in the Adriatick Sea is one of the Roialties belonging to the Duke of Venice and therefore hee hath power to forbid permit and charge Gabels upon it Julius Pacius Marta and others both modern and antient treat at large of this particular And the reasons of som Neapolitans that are the most obstinate opposers of this right are onely drawn either from that opinion for so many Ages since exploded by the custom of Nations that the Sea is naturally common to all or from that chimera of the universal Dominion of the Roman Emperor Whereas Marta himself who was a Lawyer of Naples writes thus The Venetians are Lords of the Adriatick Sea the extent whereof is 80 miles reaching from that place heretofore called Aquae Graduatae unto the Town of Loreto seated now near the River Po. And Francisco di capoblanco a Neopolitan also confesseth that now the Rivers and Seas are passed into the hands of Lords and Patrons And in a Letter of Lewis the 2 d to Basilius Emperor of the East Nicetas Patricius is mentioned under this title The Protector of the Adriatick Sea And the Gulph saith Cardinalis Tuschus doth properly belong to the Venetians by virtue of a long prescription of possession as it hath been declared in an agreement made between the States of Venice and Genoa For confirmation whereof hee cite's Angelus and Jason But the first time they saie wherein custom was charged upon those that passed through the Adriatick Sea was the year 1263 when Lorenzo Tepulo was Duke of Venice The Republick of Genoa beeing distressed with war and famine and their neighbors not releiving them with provisions this Tepulo saith Flavius Blondus began to impose a new custom or to speak more plainly laie a Restraint upon those that sad'd through the Adriatick Sea For upon that occision a Law was made which remain's in force to this very dâ—ie that all who sailed between the Gulf de Quevera and the Promontory of Sola and Coast of Ravenna should com into Venice to paie Custom and if the Officers thought fit to unlade their Merchandise and Goods And an Officer was ordained for that purpose to scout daie and night with his Barks about the Coasts and Harbors of shores to see to the Observation of this Statute But above all wee must not pass by that Controversie which happened about this time between the people of Ancona and the Venetians in a general Councel at Lions the Anconitans complained that the Venetians had usurped the Sea and Custom and other things against all right Pope Gregorie the tenth referred the matter to the examination of the Abbot of Nervosia He rejected the allegations of the Anconitans as weak and wanting proof and by the Autoritie of the Pope saith the aforenamed Blondus commended to the Venetians the care of defending the aforesaid Coast of the Adriatick Sea against the Saracens and Pirats allowing them withal the rights of their Customs and Impost Whereat the Ambassadors which were then present did not interpose a word but the debate was thus determined with the approbation of all except the Complainants But the Dominion of Venice over that Sea is of far greater Antiquitie to signifie which they have an annual cerimonie instituted they say by Pope Alexander the third I mean the use of the Ring which every year upon Ascension daie the Duke in a solemn manner rowed in the Bucentoro accompanied with the Clarissimos of the Senate cast's into the midst of the water for the perpetuating saith Paulus Merula of their dominion over the Sea signifying by that love-token that hee betroth's the Sea to himself in the manner of a lawful Spous using such a form of matrimonie Wee take thee to our wedded wife O Sea in token of a true and perpetual Dominion What should hinder then but that wee may conclude that the Venetians were looked upon not onely by themselvs but by their neighbor Princes as Lords of that Sea by as unquestionable and full a title as of their Land and Citie There are other States also in Italy that have Maritim Rights of the same nature Princes saith Benedictus Bonius have right to laie impositions upon the Sea shores forasmuch as what nature â—ad left at libertie is brought by them into servitude and proprietie as the Tyrrhen Sea which is under the command of Pisa and Tus. canie the Adriatick of Venice the Ligustick of Genoa which is affirm'd in like manner by Angelus Baldus Cepola and others The Bishop of Rome also hath his Sea which is called likewise the Churches Sea The Bull intituled Coenae Domini which is wont to bee published every good Friday for the excommunication or Delinquents run's thus Item wee excommunicate and anathematize all Pirats Rovers and Robbers upon the sea thâ—se that haunt and infest our sea especiallie that part lying between the Mountain Argentaro and Terracina And Bartholomaeus Ugâ—inus a famous Lawyer saith that this Excommunication did involv Pirats Rovers or Robbers upon the Sea such as haunted the Churches sea especially that part lying between the Mountain Argentaro and Terracina The same is called by others the Pope's Sea And although a certain Autor would there by Our Sea have the whole Sea understood in all parts of Christendom yet it is the unanimous consent of the most famous Interpreters of that Bull as Tolet Suarez Ugolinus Antonius de Sousa and others that by that name is signified the Sea which is part of the peculiar patrimonie of the Pope Nay more then this som of those Autors now mentioned will have this curs of Excommunication to bee incurred not onely by committing piracie but by a harmless passage of Pirats through this sea it being all one as if a profanation or injurie were committed upon Church-land So that such a dominion over the sea is plainly avouched by the Canon Law And it is confirmed by what may bee gathered out of the gloss of that body If Herrings were taken upon an holy day a convenient part of them by the Canon Law are due to the next neighboring Churches There the gloss add's especially to those in whose Territories the Fish were caught By a Decree of a General Councel at Lions if the Pope dyed beeing out of the Citie the Cardinals are to meet for the Election of
Kingdom the ground whereof is this becaus the Universal right of all those things which were common either by the Law of nature or Nations is transferred into his Dominion And other passages hee hath much to the same purpose as also Stephanus Paschasius Ludovicus Servinus somtime Sollicitor general for the King Popellinerius and others If they speak of the Sea of Maâ—seille or Narbon wee shall not oppose them But as to what concern's the bodie of the Sea which lie's Northward or Westward of the French or that flow's between France and the Islands of great Britain for that which lie's Westward from them upon that crooked Shore or the gulf of Aquitaine doth indeed flow between the more Westerly Coasts of our British Isles and of France as well as that which lie's Northward from them flow's between England and Normandie they neither produce any Testimonies of Antiquitie nor indeed can they if they would Unless you will have that admitted which hath been cited out of Caesar concerning the Veneti of Aremoriça and that which wee said before of the Sea bordering upon that shore Both which indeed do rather import som service called heretofore Nobilitates super navibus then any kinde of Dominion But the soveraigntie of this Sea which flow's between them and us became absolutely appropriate to the Kings of England as wee shall make it appear in the next Book And the truth is if wee look upon the Customs most in use among the French or the Civil Law of that Nation there is nothing in it that derogate's from the antient communitie of the Sea but as to them it remaine's as yet not possessed but common to all men and therefore not to bee reckoned among the Revenues or Patrimonie of their Kings if so bee credit may bee given to that Treatise lately published of the Civil Romane and French Law by Thomas Cormerius Counsellor to Francis Duke of Anjou in his Parlament of Alençon The matter that it pretend's to treat of is the Romane Gallick Law There are in it the Customs of France decrees of Princes and Privileges often â—ntermingled But under the Title of things common â—o all hee make's the Sea and Shores common to all according to the antient Law of the Romanes as if in this matter it did exactly agree with the Law of France which certainly is an argument that the French have no Dominion over the Sea Nor must wee let it pass that somwhile since there were two Constitutions pretended to in France one of Henrie the Second the other of Henrie the Third wherein they required that the Ships of Forraigners which sailed through the Sea bordering upon France should strike their top-sail forsooth in acknowledgment of that Dominion the French had over the Sea But neither of them were autorized or as they speak simply verified by the Estates in Parlament yea nor so much as admitted into Custom Nay the later of them was plainly rejected as to any effect in Law And this the French Lawyers themselvs confess in a notable case between som Merchants of Hamburgh that were Plaintiffs and Michaël Butardus and others Defendants in a Parlament held at Tours in the time of Henry the Fourth But that cerimonie hath by most ancient right and custom been observed and paid to the ships of the Kings of England out of respect and in acknowledgement of their Dominion as is shewn in the following Book where wee treat of this particular more at large I know very well it was ordained by an Edict of the French King that one third part of all goods recovered out of the Sea should belong to the King another to the Admiral and the remainder to the Sea-men that found them And that the French do reckon very many Commanders in Chief at Sea or Admirals in a line somtime continued and somtime interrupted which for the most part they begin from the time of Philip the son of St. Lewis that is from the year MCCLXXXIV as is to be seen in Joannes Feronius Stephanus Paschasius and others But that division of goods recovered out of the Sea beeing simply considered doth prove any Dominion over the Sea no more then the Tenths of any Prizes taken from an Enemie at Sea which by the grant of the King also were allotted to the Admiral of the Navie Rights of this nature are grounded upon the consent of persons to wit subjects transferr'd unto the King not upon any title of Dominion whereby any Pretence may bee made to an acquiring of the Sea it self and they are paid no otherwise then Imposts or Customs in the importation or exportation of Merchandise But no man I suppose will imagin that from such Imposts or Customs upon Merchandise any proof may bee made of a Dominion over those passages through which the Merchants sail before they arrive Neither indeed was there any such custom as this in use among the French before the time of Francis the first that is to say plainly not beeing Lord of the Sea hee desired to bee and was made a Sharer of those goods which should bee drawn by his subjects out of any Sea whatsoëver Whereas the King of Great Britain by virtue of his Dominion over the Sea is wont to take as his own whatsoëver is left or lost in the sea besides other emoluments of the like nature and that by so ancient a right as for ought wee know bear 's a date no less ancient then the Kingdom it self And as for those Admirals of France they were no other then Chief Commanders of Navies and Persons and of the Forces by sea and Judicatories at home but not qualified as Presidents of a Sea-Province or Territorie as the Custodes ipsius Maris the Guardians of the sea among the English and the Admirals of England But more of this in the Second Book Nevertheless from what hath been alleged concerning the Customs Opinions or Constitutions among the French I suppose it sufficiently appear's that they do also acknowledg that private Dominion over the sea is not repugnant to the Law either of Nature or Nations which serve 's fully for the clearing of the point in question The private Dominion of the Sea according to the received Customs of the Danes the People of Norway the Swedes Polanders and Turks CHAP. XIX WEE finde clear Testimonies in the Customs of other Nations also of Europe touching private Dominion of the sea as the Danes the people of Norway the Polanders to whom may bee added also the Turks Wee have observed by the Tolls or Customs of Denmark and Norway what Revenue the King of Denmark raiseth out of the very Navigation of the Baltick Sea as is commonly known and what is paid out of the Roialtie of the Norwegian sea to the King of Norway who at this time is also King of Denmark For in the year MDLXXXIII Frederick the second King of Denmark and Norway made a
Grant of the use of the Northern or Norwegian sea for a certain time to our Merchants of the Muscovie Companie in such a manner as if hee had rented out any Land whereof hee stood fully seized and possessed Hee limited the Grant also with such conditions as hee thought fit The publick Instruments or Records about this Particular are yet extant whereby the King had an annual Tribute in recompence other Merchants were excluded and the Grant it self was to continue no longer then the Peace made between that King and the Moscovit Wee read also in the ancient Histories of Denmark of King Harald Hildetan that no man did presume to usurp a Domination in the Sea without his consent And that which follow 's next ought especially to bee taken notice of as to this Particular becaus the Empire of Land and Sea was once divided in the Republick of Denmark And Olo who afterwards was King succeeding his Father in the Dominion of the Sea vanquish't LXX Kings of the Sea by Sea-Fight Which things are written by Saxo Grammaticus and other also of that kinde And in the Treatie held at Koppenhagen betwixt Christiern the fourth of Denmark and Gustavus Adolphus of Swedland the King of Swedland renounceth the right Soveraigntie and Dominion of the Sea and the other Roialties by him formerly claimed over the said sea in Norway Norland and in the Jurisaiction of Wardhuisen But touching the Sea of Norway as it lie's more Northward wee shall add more at the latter end of the second Book Mention is made likewise of the Sea belonging to the Reâ—lm of Poland and the Dominion thereof in that Promise which was made by the French Ambassadors in the name of Henrie III of France when hee was elected King of Poland The aforesaid Ambassadors do promise in the name of the most illustrious King now chosen that assoon God willing as hee shall com to his Kingdom hee will at his own charge maintain a convenient Navie sufficient to defend the Ports and the Soveraigntie of the Sea belonging to the Kingdom and the Provinces adjoyning even to the utmost bounds of the whole Dominion of Poland as it is recorded by Janus Januszowskius in his Syntagma of the statutes of Poland But the Turkish Emperor who by Conquest succeeded in the right of the Emperors of Constantinople and so purchased both the AEgean and Euxin sea calling this the black the other the white sea is wont solemnly to intitle himself Lord both of the white and black sea as you may see in the League betwixt Achmet the Ottoman Emperor and Henry the IV. of France made above thirty years since and printed both in the French and Turkish Tongue Moreover in the same League the Turk grant's the French free leav to Fish and search for Coral in certain Streits and Creeks of the African Sea within his Kingdoms of Algier and Tunis And hee farther confirm's all that had been granted to them by his Predecessors for freedom of Fishing in those parts In like manner Coriolanus Cippicus relating the Actions of Pietrâ— Mocenigo General of the Venetians saith The Ottoman Emperor built two Castles very well fortified over against each other on both sides the Hellespont in its narrowest passage which hee stored with Ordnance of an extraordinary bigness and charged the Governors of the Castles to shoot and sink any ship that should endeavor to pass without leav Which is plainly to domineer over the Sea and agreeable to his Title of Lord of the white and black Sea Neither is that to bee sleighted here which wee finde in the Letters of David Emperor of Ethiopia or the Abassins to Emmanuël King of Portugal Hee entituleth him Lord of Africa and Guinee and the Mountains and Island of the Moon and of the Red Sea Arabia and Persia and Armutia great India c. Hee useth here an Hyperbole after the manner of the African Princes and attribute's those things to Emmanuël which were none of his But in the mean time hee admit's that hee might have been Lord of the Red Sea as well as of any other Territorie and that that Title doth not intrench upon the Law of Nature or Nations any more then this Now that wee may at length conclude this part touching the Dominion of the Sea as admitted among those things that are lawful and received into the Customs of Nations there are not onely very many Testimonies every where as hath been shewn you concerning it but nothing at all I suppose can bee found to impugn it in the Customs of those Nations that have been of any note in later times unless it bee where som of them that are Borderers upon the Sea-Dominions of others do strive to violate or infringe the Rights of their Neighbors under pretence of that Natural and perpetual communitie so often insisted on out of Ulpian by such Writers as too much prefer that obsolete Opinion before the Universal and most antient Customs of Nations Of which kinde truly the first Article of that League seem's to bee which was made above twentie or about thirtie years past betwixt the States of the United Provinces and som of the Hans-Towns as it was translated out of Low-Dutch by a Dutch-man to this effect That this Conjunction or Union ought not to bee intended for the offence of any but onely for the preservation and maintenance of the freedom of Navigation Commerce and Merchants in the Eastern and Northen Seas and also in all Rivers and Streams running into the Eastern and Northern Seas nor ought any other thing to bee meant in this place so that their Citizens and Subjects joyned in this League respectively may according to the Law of Nations use and enjoy the Liberties acquired and obtained together with the Rights Privileges and Customs received from their Ancestors throughout the Eastern and Northern Seas aforesaid and in the aforesaid Rivers Streams and waters without any Let or Impediment They promise also to aid each other in opposing any that should hinder such a freedom of Navigation in that Northern and Eastern Sea that is to say the Baltick and that which washeth the Coasts of Denmark Lituania Pomerania and the Dominions of the King of Poland where it seem's they pretend not onely Rights and Liberties peculiarly granted to them long since but also to the very Law of all Nations It is no hard matter to guess what the Intent of that League might bee For about that time the King of Denmark had raised his Toll in the Baltick Sea and in like manner the King of Poland within his Territories by Sea And that for the maintenance of that Dominion which they enjoyed which that kinde of League betwixt the States of the Hans Towns and United Provinces did seem to oppose But to pass over these things seeing a private Dominion of the Sea which is the point in Question is founded upon such clear Testimonies out of the Customs
by S t Luke called a Lake by the other Evangelists a Sea as also in the Syriack and Arabick Translation of S t Luke And Aristotle saith that about the Mountain Caucasus there is a Lake or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 but the neighbouring People call it a Sea Hee speak's of the Lake Maeotis which by reason of that abundance of Waters which it dischargeth through the Cimmerian Bosphorus into the Euxin Sea is by the Antients called Mother of the Sea or Mother of the Euxin Sea From whence also it was the opinion of som that Maeotis stood in the same relation unto Pontus Propontis and the AEgean Sea as the Ocean doth to the Mediterranean Oceanúnque negant solas admittere Gades They do deny that Cadiz Streight Alone admit's the Ocean 's Freight As Lucan saith concerning it But Agathia tell 's us that in Justinian's daies it was called The little Sea And saith Festus Avienus to Probus Thou did'st question mee if thou dost remember about the situation of the Maeotick Sea By which means it hath happen'd that even at this day it is called Mar delle Zabach and Mar della Tana So seven Lakes of the River Po in Italy are usually tearmed Seven Seas And wee read in Cassiodorus that Addua a River of Cisalpin Gallia emptie's it self into the Lake called Lago di Como as into its proper Sea Hence it is that in Hesychius and Suidas a Lake or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 denote's the Ocean and Sea and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or a River the Ocean it self Nor is it in this place impossible that a River should contend with the Sea However otherwise it hath been used as a Proverb of such as strive with men mightier then themselvs Also in Homer 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The depth of a deep Lake is used for the depth of the Sea And in another place hee put 's 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a very fair Lake in stead of the Sea as it is observed also by Olympiodorus Yea som of the Antients have said that the Ocean it self is one of those four huge Rivers which spring out of such a Hell or such a deep Gulf as som feign to bee found towards the North the other three beeing imprisoned in secret Passages of the Earth Moreover Lucan call's the British Ocean Incerti stagna profundi An unstable deep standing pool And in barbarous Latin the word Mariscus as a Diminutive of Mare the Sea is used in many Places for a Marsh or Lake under which notion also it hath been Translated into som other Languages beeing varied according to their divers forms of Expression Other observations have been made by others to the same purpose So then both in Substance Nature and Name the Seas Rivers and other Bodies of Waters so far as concern's the Point in question are all the same that whatsoêver may bee said of these may bee applied in like manner also to the other save that there may som difference bee alleged onely from the largeness of the one and the narrowness of the other which in the Point of Dominion as it relate's to Possession is of no account Add moreover that the usual Objection touching their fluid Nature or the continual shifting of Waters in the Chanel doth here no more prejudice the caus of Dominion and Possession then the fluid nature of the Aër doth the Dominion and Possession of that space which confine's a Hous from the Foundation upward That space seem's as a Chanel to the whirling Aër whereof notwithstanding hee according to the Civil Law is the undoubted Owner who possesseth the Ground and Building Hereupon Servitudes have been imposed against the rearing of Houses higher then ordinary also against hindring of Light or Prospect and other of that kinde in the very ambient Aër So that where a Prohibition of a new Building hath issued Pomponius saith the Aër ought to bee measured as well as the Ground And it is evident that the Aêr is his who is owner of the plot of ground So that as to that saying of Paulus that a Tree growing in the very Confine betwixt two Lands is common to the Owners on both sides for so much as grow's in the ground of either Joannes Buteo discoursing of the Division of the fruit of such a Tree saith wee must suppose the ground to bee the Aër it self that is spread over the ground which hee measureth by direct lines from the outmost boughs And therefore surely wee are owners of the ground hous and space which wee possess in several as owners that every one for his best advantage may freely and fully use and enjoy his own bordering Aër which is the element of mankind how flitting so ever it bee together with the space thereof in such a manner and restrain others thence at pleasure that hee may bee both reputed and settled owner thereof in Particular Much less then doth the fluid nature of Waters which is far less then the other in any wise hinder an ownership or Dominion over them And even those things which naturally are thus flitting do notwithstanding in a Civil sens remain ever the same as the ship of Theseus a Hous or a Theatre which hath been so often mended and repaired that there is not so much as one part or plank left of the first building But they which make use of so frivolous a subtiltie as this to oppose a Dominion of the Sea should bee turned over to the Philosophers especially Heraclitus and Epicharmus whose Doctrine was that every thing is so changed altered and renewed every moment that nothing in the world continue's at this instant the same that it was in the instant immediately going before No man saith Seneca in imitation of Heraclitus is the same in the Morning that hee was the day before Our Bodies are hurried like Rivers Whatsoëver thou see'st run's with time Not one of all those things that are visible continue's I even whil'st I speak of these Changes am changed my self It was seriously affirmed also by Heraclitus that not onely the same River could not receiv a man twice but also that the same man could not enter twice into the same stream So that to cast all into Heraclitus his River became an usual Proverb to express a continued and perpetual change of every thing from it self But let such as dream that the fluid inconstant nature of the Sea disprove's the private Dominion of it entertain the same opinion if they pleas with these men of things that fall under a Civil consideration and then they must of necessity grant also that themselvs are not Owners or Possessors either of Land Houses Clothes Monie or any other thing whatsoêver An Answer to the Objections touching the defect of Bounds and Limits in the Sea as also concerning its magnitude and inexhaustible abundance CHAP.
XXII THe Objection touching the defect of Limits and and Bounds follow 's next And truly where Dominions are distinguished nothing can bee more desirable then known and certain Bounds in every place Nor was it without caus that Terminus the God of Bounds was received heretofore among the Romanes for the God of Justice But the nature of Bounds is to bee consider'd either upon the Shores or in the open Sea And why Shores should not bee called and reputed lawful Bounds whereon to ground a distinction of Dominion in the Sea as well as Ditches Hedges Meers rows of Trees Mounds and other things used by Surveyors in the bounding of Lands I cannot fully understand Nor is Sylvanus any whit more a Guardian of Bounds then Neptune But yet a very learned man saith there is a Reason in nature why the Sea under the aforesaid consideration cannot bee possessed or made appropriate becaus possession is of no force unless it bee in a thing that is bounded So that Thucydides call s a Land unpossessed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 unbounded and Isocrates the Land possessed by the Athenians a Land bounded with Limits But liquid things becaus of themselvs they are not bounded cannot bee possessed save onely as they are conteined in som other thing after which manner Lakes and Ponds are possessed and Rivers also becaus they are conteined within Banks But the Sea is not conteined by the Earth it beeing of equal bigness or bigger then the Earth so that the Antients have affirmed the Earth to bee conteined by the Sea And then hee bring 's divers Testimonies of the Antients whereby it is affirmed more then once that the Sea is the girdle or Bond of this Globe of Earth and that fetching a compass it incloseth all the Parts thereof together and it is very often said by the Antients that the Land is conteined and bounded by the water or Sea as if the whole Earth made as it were one Island beeing surrounded by the Sea But admit it were to bee granted which I suppose neither that learned man nor any other will grant yet I do not well see why the thing conteining should not in truth bee bounded by the thing conteined as well as this by that May not a lesser bodie that is spherical or of any other form beeing conteined by a greater which is every way contiguous to it bee said to bound and limit the Concave of the greater Bodie as well as this to limit the Convex of the lesser But Julius Scaliger saith very well of the Sea and Land That the one is not so conteined by the other but that it may also contein Nor are they so disjoyned from each other but that they may both encroach upon each other and retire by Turns The Sea and Land mutually imbrace one another with crooked windings and turnings this with Peninsula's and Promontories butting forth and Creeks bending inward that working up its waves about all the Passages of its vast Bodie Thus it is evident that the one indifferently set's Bounds to the other no otherwise than Banks and Lakes or Rivers which also appear's more evident in the Caspian Sea that is encompassed with Land And in like manner in the Mediterranean before that Hercules or as the Arabians say Alexander the great did by cutting the Mountains let in the Atlantick Ocean through the streights of Cadiz And thereby it is made up one single Globe wherein divers Seas are bounded as well as the Isles or main Land as it is more clearly proved out of holy Scripture There the waters are gathered together and limited by their Places and Bounds And saith the Lord himself of the Sea I encompassed it with my Bounds and set Bars and Doors and said hitherto shalt thou com but no farther And in another place Hee gave unto the Sea his Bounds his Decree unto the waters that they should not pass their Bounds So that it cannot bee doubted every Sea hath its Bounds on the Shore as the Land it self Nor had I made mention of this Particular had I not found it impugned by so eminent a person And truly there is but a very little more difficultie to finde out Limits and Bounds in the main Sea for distinguishing of private Dominions Wee have high Rocks Shelvs Promontories opposite to each other and Islands dispersed up and down from whence as well direct Lines as crooked windings and turnings and angles may bee made use of for the bounding of a Territorie in the Sea Mille jacent mediae diffusa per aequora terrae Innumeri surgunt Scopuli montésque per altum A thousand Lands within the main do lie Rocks numberless and Mountains rise on high Throughout the deep The antient Cosmographers also reckon up the Seas of the world no otherwise then Towns Rivers Islands and Mountains as beeing no less distinguished from each other by their respective Bounds AEthicus saith Every Globe of Land hath XXX Seas CCCLXX Towns LXXII Islands LVII Rivers and XL Mountains c. After this also hee reckon's the Seas of the Eastern Western Northen and Southern Ocean one after another after the same manner as hee doth the Provinces and their Isles How truly I dispute not but in the mean time hee made no question but that the Seas are sufficiently distinguished by their Names and Bounds Add hereunto that useful invention of the sea-man's Compass and the help of Celestial degrees either of Longitude or Latitude together with the doctrine of Triangles arising therefrom Also in those Plantations that in our time have been carried out of Europe into America the degrees of Latitude and Longitude do serv the Proprietors in stead of Bounds which with as little difficultie are found in the Sea In like manner som would have had the Tropick of Cancer and the Equinoctial Line to have been the Bounds in the Sea for the limiting of that Agreement which was to have been made in the year MDCVIII between the States of the United Provinces and the Hous of Austria And in the late Agreement betwixt the Kings of Great Britain and Spain the Equinoctial Line is the bound appointed in the Sea Other Instances there are of the same nature Eor Sarpedon and Calycadnus two Promontories of Cilicia were designed as Bounds for distinguishing the Dominion of the Sea in that League made betwixt the Romanes and Antiochus King of Syria Also by Decree of the Emperor Leo of which wee have alreadie spoken the Fishing Epoches or Fish-pens that were by men placed in the Sea lying over against their Lands were limited to certain number of Cubits The case was the same likewise touching the Cyanean and Chelidonian Islands in the League made by the Athenians with the King of Persia which hath been mentioned also before Moreover Pope Alexander VI and his Cardinals or the King of Spain's Agents made no scruple touching Bounds of this
write's that Leo made a change against reason of Law And here especial care must bee taken to avoid that which som have presumed to affirm touching those most excellent Books of Justinian which make up an entire Bodie of the antient Law That the Law prescribed in those Books is not the Law onely of a Citie but even of Nations and nature and that the whole is so fitted unto nature that after the Empire was extinct though the Law was a long time buried yet it rose again and spread it self through all the world And therefore that it concern's even Princes although it was framed by Justinian for private persons As if the law natural and of Nations were to bee derived onely out of those Books For not to mention how that not onely very many Decrees and Custome's introduced in the Romane-Germane Empire it self and other places abroad have extremly alter'd many things conteined in those Books but also that wee finde divers Kings both of Spain and France have somtimes heretofore prohibited the use of them in any kinde within their Courts of Justice there are truly som things in the very Law of the Nations of Europe who receiv those Books and that upon very good ground both into their Schools and Courts so far as the particular Laws of their Kingdoms will permit I mean in their Law Common or Intervenient which are not grounded at all upon the Law of Justinian but have had their original from Customs quite contrarie thereto Prisoners of war are not now made slaves nor are the Laws concerning captivitie or Remitter upon return from Captivitie touching the persons of men in any use at all which notwithstanding take up a Title in the Digests Ships driven by wrack upon a Shore do by the Law of Justinian which is confirmed also in the Roman German Empire belong either to the former Owners or as things relinquished and unpossessed to the first Finders nor doth the Exchequer interpose any Claim whereas nevertheless according to the Law of divers Nations intervenient to themselvs and their Neighbors it bee most certain that those Ships are very often confiscated according to the varietie of Custom As among the English the Britains Sicilians som Borderers upon the Shores of Italie and others And although it bee accounted crueltie by som to persue profit upon so sad an occasion as it was also by the Emperor either Constantine or Antoninus who made a Law thereupon yea and though besides the Decree of the Lateran Councel the Bull Coenae Domini do blast those every year with Excommunication that plunder the goods of such as suffer Shipwrack in any Sea upon any pretence of Law or Custom whatsoêver yet the Custom of confiscation in this case derived not its Original from the rude and barbarous Ages but it flowed first from the most antient Maritim Laws of the Rhodians which were in use among the Grecians in their flourishing condition as shall bee shewn by and by and from thence was received by divers Princes Also when the Emperor's Ambassador as Bodin saith made complaint before Henrie the second King of France that two Ships beeing driven a Shore were seized by one Jordanes Ursinus and demanded a restitution of them Annas of Momorancie Master of the Hors made Answer that all things which had been cast upon Shore did by the Law of all Nations belong to such Princes as have commanded the Shores So far hath Custom taken place in this particular that Andraeas Doria did not so much as complain about those Ships that were cast upon the French Shore and made prize by the Admiral of France So far hee In like manner Whales and other Fish of extraordinarie bigness do not according to the known Law of England Portugal and other Nations belong to him that first seizeth them but either to the Exchequer or which is all one to such as the Prince shall grant a Royaltie of that nature Other instances might bee brought sufficiently to shew that the Law natural and of Nations is not wholly to bee drawn out of such Decrees or Determinations as are found in the Books of Justinian And so that what is there inserted touching a Communitie of the Sea doth not in any wise diminish the Autoritie of the received Customs of so many Ages and Nations But it is to bee observed that the Sea is said in those Books to bee common as the Aâ—r and as wilde Beasts are common As if indeed the neighboring Aâ—r it self could not pass into private Dominion as well as a River that is possels'â— and wilde Beasts that are taken Moreover those Antients do ordinarily conjoin a communitie of Shores and Ports not unlike to that which they teach of the Sea As if the very reason of the Dominion of Ports and Shores as they belonged either to the people of Rome or which is all one here to the Prince himself were not manifestly drawn as wee have expressly shewn alreadie out of Celsus from the Imposts and Customs which are frequent enough both in the Shores and Ports of the â—oman Empire and in the Books of Justinian as in many other places For as the paiment of that Tribute which is called Solarium à Solo and thence by the Greek Lawyers 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for an hous that is built upon the ground of the Common-weal or the publick ground was a sufficient Argument that the Common-weal or the Prince was Lord of the Soil so indeed also the Custom paid for the use of Ports manifested that there was the same kinde of Dominion over Them Also Ports themselvs are rightly supposed to bee a part even of the Continent as appear's in another place Moreover also Justinian appropriated the Hellespont to himself in such a manner that hee would not permit Merchants and Sea-men to enjoy a freedom of that Sea and the Ports but at an extraordinarie rate if wee may believ Procopius who was his comtemporarie and wrote his Affairs Nor did they imagine there was any difference betwixt the Dominion of the Sea and that over the Land or People who about 400 years since put this Inscription upon the Monument of the Emperor Frederick the second Qui Mare qui Terras Populos Regna subegit Who subdued the Sea the Land Nations and Kingdoms To wit in the Cathedral Church of Palermo in which place notwithstanding the Imperial Law flourished at that time as well as in the rest of the Roman-German Empire The sum of all is that those antient Lawyers do deliver many things carelessly touching this matter not onely such as thwart the most received Customs of Nations through almost all Ages but such also as do sufficiently contradict one another especially whilst they join the Shore it self and consequently the Ports together as it were in an equal state of Communitie So that they are equally
the Right of the Customers that is of the Exchequer whose Right is transferr d into their hands is asserted if it shall bee made appear that such a Law or Custom was in force at that time which Interpreters are not wont here to grant It is indeed certain enough according to the Imperial Law as wee have it now compiled in the Books of Justinian that Wrecks are reserved to the former Owners and so that both the Exchequer and the Customers are thence excluded Yea and that the Custom whereby they are confiscated is condemned by the received determinations of the Roman-German Empire as well as the Canon Law as wee hinted in the former Chapter But it is collected by manifest evidences that the Law or Custom for Confiscation of Wrecks was in force in the time of this Emperor Antoninus I mean Antoninus Pius who as Julius Capitolinus write's did in the establishing of this Law make use of Volusius Metianus the Lawyer out of whose Books the Petition and Answer here spoken of was transcribed into the Digests It is clear that almost all those Passages that wee finde in the Digests for reserving them to the former Owners were taken out of Paulus Callistratus and Ulpian who lived many years after this Antoninus There is somwhat also to this purpose out of Priscus Javolenus who lived at the same time with this Antoninus But this Emperor reigned XXII years and as appear's out of Javolenus hee did by Decree mitigate the rigor of Confiscation in this Case From which it might easily com to pass that under the same Emperor such a Law and Custom as wee have mentioned might bee in force and under the same it might either bee abrogated or the rigor of it abated The principal Constitution which according to the Book of Justinian would not have the Exchequer to interpose in this case is by Antonius Contius a very eminent Lawyer attributed to the Emperor Antoninus according to the Testimonie of an antient Book in Manuscript although the name of Constantine bee put before those that are published The words are these If at any time a Vessel bee driven a Shore by Shipwrack or if at any time it run aground it shall belong to the Owners My Exchequer shall not interpose it self For what right hath the Exchequer by another man's misfortune that it should seek after profit upon so sad an occasion Yea and Ulpian shew's that such a kinde of Constitution there was also under Adrian who was this man's Father by Adoption It is decreed so saith Ulpian that it may bee lawful for every man to recover his losses by Shipwrack freely and thus much was ordained by the Emperor Antoninus with the Emperor his Father There are in these very clear Evidences that about that time there was such a Law or Custom of Confiscation as wee have mentioned which wee know very well was wont to take place often even contrarie to the Autoritie of antient Decrees For it may bee concluded from the Shipwrack of Valgius or Victor related by Paulinus that it was in som use even under Theodosius the elder There are the like Examples upon the Shore of the Roman-German Empire And others may bee brought whereas notwithstanding som Laws were made to the contrarie Moreover also the antient Orators both Greek and Latin whilst they allege Examples about the stating of Questions in pleading do mingle this very Law or Custom about Shipwrack with other usual and antient Customs in the Greek and Roman Empire as a thing that was very frequently received Sopater and Syrianus in Hermogenem say The Law is that spoils which are found do belong to him that is General of the Army In like manner the Law is that Wrecks do belong to the Customers In a tempestuous Sea spoils are brought into Port. Hereupon ariseth a controversie about them between the Commanders and the Customers of the Customs In this case it beâ—ove's us not to vex our selvs in vain with reading of Laws but to look into the very nature of things For in truth the Question is whether the Goods bee now to bee called Spoils or Wrecks In like manner saith Curius Fortunatianus what is a simple definition when wee define a particular thing simply Put case that Wrecks do belong to the Publicans or Customers The bodie of a certain man that was lost by Shipwrack clothes and all beeing driven ashore was cover'd by the Sands The Customers came and drew it out Therefore they are guiltie of the violation of Sepulcre For here the Question is simply what it is to violate a Sepulcre Moreover that Volusius Metianus wrote that Petition and the Answer appear's in Libris Publicorum ex Lege Rhodiâ that is in his summarie of those Laws which belong either to the Exchequer or the Customers wherein also is conteined either the Law or Custom of Confiscation of Wrecks It suit 's very well with these Particulars that in that Answer of the Emperor Antoninus those words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 should bee rendred but that Law of the Sea or that Custom of the Sea which hee meant should bee so examined and determined according to the Rhodian Laws that in the mean time those Rhodian Laws should not bee of force if any Rescript or any Roman Law were against it And of what Autoritie Adrian's Decree was at that time whereof Ulpian speak's in the places before quoted perhaps it did not sufficiently appear no not to the Lawyers themselvs without a more curious examination whose assistance Antoninus made use of in his Answer But that wee may at length dispatch this particular no man whatsoâ—ver whether hee approve the common Translation or mine will I suppose unless hee renounce his own reason conceiv upon a due consideration of the whole matter that any denial is made of the Dominion of the Sea in that Answer or that the least Tittle can bee found in it against the Dominion thereof An Answer to the Opinions of modern Lawyers so far as they oppose a Dominion of the Sea especially of Fernandus Vasquius and Hugo Grotius CHAP. XXVI HAving thus refuâ—ed or upon good ground removed som Opinions of antient Lawyers which are usually alleged for the mainteining of a perpetual Communitie of the Sea it is no hard matter in like manner to wave the Autoritie of those of later time that oppose a Dominion For if wee consider the great number of those who whether they comment upon the bodie of Justinian or treat apart of this particular would not have us to recede from that natural Communitie wee shall finde plainly that they deal in the same manner as they that have pinn'd their Faith more then was meet upon the sleev of Ulpian or som other such antient Autor Unless wee conceiv that som of them did not so much explain the Law in this point as recite the opinions of Lawyers so far as they have
been by them deliver'd Just in the same manner as if a man should so discours upon Aristotle's Astronomie or the opinion of Thales touching the Earth's floating like a Dish in the Sea and that of the Stoâ—cks of its encompassing the Earth like a Girdle with that of the Antients concerning an extreme heat under the Equinoctial and other opinions of that kinde which are rejected and condemned by the observation and experience of Posteritie that hee might seem not so much to search into the thing it self as to represent the person of the Autor thereby to trace out his meaning onely for the discovering of his opinion But as the root beeing cut the Tree fall's so the Autoritie of those antient Lawyers beeing removed out of the way all the determinations of the modern which are supported by it must bee extremely weakned Now therefore as to what hath been formerly alleged out of Fernandus Vosquius it is grounded upon such Arguments as are either manifestly fals or impertinent For what is this to the purpose That the Sea from the beginning of the world to this present day is and ever hath been in common without the least alteration as 't is generally known Whereas the quite contrarie is most certainly known to those who have had any insight into the received Laws and Customs of Ages and Nations That is to say that by most approved Law and Custom som Seas have passed into the Dominion and partrimonie both of Princes and private persons as is clearly made manifest out of what hath been alreadie shewn you Moreover also hee would have prescription to ceas betwixt Foreigners in relation to each other and not to take place in the Law of Nations but in the Civil onely so that by his Opinion prescription should bee of no force between those as between two supreme states or Princes who are not indifferently subject to the Civil Law which admit's prescription then which not any thing can bee said or imagined more absurd Almost all the principal points of the Intervenient Law of Nations beeing established by long consent of persons using them do depend upon prescription or antient Custom To say nothing of those Princes whose Territories were subject heretofore to the Roman Empire and who afterwards became absolute within themselvs not onely by Arms but also by prescription which is every where admitted among the Laws of Nations whence is it that Prisoners of war are not now made slaves among Christians unless it bee becaus that Custom began to grow out of date som Ages since upon a ground of Christian brotherhood and by prescription ratified betwixt Nations Whence is it that the ransoms of prisoners are to bee paid som to the Princes and som to the Persons that take them As for instance when the ransom is not above ten thousand Crowns it goe's to him that took the Prisoner when it exceed's it is to bee paid to the Prince Becaus saith Nicolaus Boërius if it exceed as when any one hath taken a Duke a Count a Baron or any other great man then it belong's to the Prince and so it is observed in the Kingdoms of France England and Spain It hath by prescription of time been observed among Princes and so it became Law And truly to deny a Title of prescription wholly among Princes is plainly to abrogate the very intervenient Laws of Nations As for those other things mentioned by Vasquius concerning Charitie and the inexhaustible abundance of the Sea whereby hee make's a difference betwixt Rivers and Seas and other things of the like nature they have no relation at all to the point of Dominion as you have been sufficiently told alreadie In the next place wee com to the other to wit Hugo Grotius a man of great learning and extraordinarie knowledg in things both Divine and Humane whose name is very frequent in the mouths of men every where to maintein a natural and perpetual Communitie of the Sea Hee hath handled that point in two Books in his Mare Liberum and in that excellent work De Jure Belli pacis As to what concern's Mare Liberum a Book that was written against the Portugals about trading into the Indies through the vast Atlantick and Southern Ocean it contein's indeed such things as have been delivered by antient Lawyers touching communitiâ— of the Sea Yea and disputing for the Profits and Interests of his Countrie hee draw's them into his own partie and so endeavor's to prove that the Sea is not capable of private Dominion But hee hath so warily couched this subject with other things that whether in this hee did hit or miss the rest howsoëver might serv to assert the point which hee was to handle Moreover hee discourseth about the Title of Discoverie and primarie occupation pretended to by the Portugals and that also which is by Donation from the Pope And hee seem's in a manner either somtimes to quit that natural and perpetual Communitie which many Civil Lawyers are eager to maintein and hee himself in order to his design endeavored to confirm or els to confess that it can hardly bee defended For concerning those Seas that were inclosed by the antient Romans the nature of the Sea saith hee differ's from the Shore in this that the Sea unless it bee in som small part of it self is not easily capable of Building or Inclosure And put case it were yet even this could hardly bee without the hindrance of common use Nevertheless if any small part of it may bee thus possessed it fall's to him that enter's upon it first by occupation Now the difference of a lesser and a greaâ—er part cannot take place I suppose in the determining of private Dominion But in express words hee except's even a Bay or Creek of the Sea And a little after saith hee Wee do not speak here of an Iâ—-land Sea which in som places being streightned with Land on every side exceed's not the breadth even of a River yet 't is clear that this was it the Roman Lawyers spake of when they set forth those notable determinations against private Avarice But the Question is concerning the Ocean which Antiquitie called immense Infinit the Parent or Original of things confining with the Aër And afterwards hee saith The Controversie is not about a streight or Creek in this Ocean nor of so much as is within view when one stand's upon the shore A little farther also speaking of Prescription hee saith It is to bee added that their Autoritie who are of the contrarie opinion cannot bee applied to this Question For they speak of the Mediterranean Sea wee of the Ocean They of a Creek or Bay wee of the broad and wide Sea which differ very much in the point of Occupation And certainly there is no man but must conceiv it a very difficult thing to possess the whole Ocean Though if it could bee held by occupation like a narrow Sea or a Creek or as
the whole world was said to bee possessed at first by antient Princes it might even as well pass into the Dominion or Ownership of him that should enter upon it first by occupation Howsoêver there have been som others who by the same Rule distinguish in like manner the inner and neighboring Seas from the open Sea or main Ocean But it is by no means to bee omitted that they for whose sakes Hugo Grotius wrote that Book that is to say the Stateâ— of Holland did not unwillingly but rather as it seem's according to their own hearts desire give ear to the condemnation of that Opinion especially becaus it was owned by Grotius concerning a Communitie of the Sea and freedom of Fishing therein according to the Law natural and of Nations by the Embassador of James King of great Britain in a speech of his deliver'd openly in Holland and that others were gravely admonished from his misfortune not to maintein the like Of vvhich thing Grotius himself bear's vvitness I have labored saith hee as much as any to maintein the Right of Navigation to the Indies and for the preservation of Clothdressing in our Countrie But for the freedom of Fishing at Sea so much that Carleton the King of great Britain's Embassador beeing incited by my enemies to speak somwhat in publick against mee beeing at that time in Prison hee had no â—ing els to say but that I had begun to make som Discourses in defence of that freedom as a thing grounded upon the Law of Nations and Custom time out of minde whereas notwithstanding nothing had been said or written by mee upon that subject different from those things which the State 's Embassadors had mainteined in Britain in the year MDCX and our Ancestors before even for som Ages past And yet that Embassador said that others ought to bee terrified by the example of my misfortune from defending that Opinion It is true indeed that persons in power usually take a libertie to aspers men as they pleas when they are in question But these things were not spoken so much against Hugo Grotius as against that natural Right of Communitie at Sea injuriously pretended to which many men have defended more expressly and plainly then himself but none with so much learning and ingenuitie Nor did that Speech of the Embassador for ought wee know as things then stood displeas the States of Holland But in his Books de Jure Belli Pacis having indeed set down the reason of the original of private Dominion to bee upon this ground that those places which became peculiarly assigned were not sufficient for the maintenance of all men hee conclude's that the Sea becaus of its bigness and inexhaustible abundance beeing sufficient for all cannot bee appropriated to any Hee add's other things also touching the nature of the Seas not beeing distinguishable by Bounds of both which wee have said enough alreadie But at length hee betake's himself to the received Customs of Nations and speak's more then once concerning the proprietie or private Dominion of the Sea as of a thing somtimes to bee yielded without Controversie The Land saith hee and Rivers and any part of the Sea in case it com under the proprietie of som Nation ought to bee open for such as have need of passage upon just and necessarie occasions Afterwards also speaking of the proprietie of Rivers After this example saith hee it seem's that even the Sea may bee possessed by him that is Owner of the Land on both sides although it lie open either above as a Creek or above and below too as a streight or narrow Sea So that it bee not so great a part of the Sea that beeing compared with the Lands it cannot seem to bee any portion of them And that which is lawful for one Prince or People the same seem's lawful also for two or three if in the like manner they pleas to enter upon the Sea flowing between For so Rivers that flow between two Nations have been entred upon by both and then divided Hee allegeth other things also touching the Right of primarie occupation by Sea but so that for the most part hee contein's himself within Creeks and streights Hee saith that not by any natural Right or Reason but by Custom it came to pass that the Sea was not appropriated or that it could not lawfully bee entred upon by Right of Occupation And that the Custom beeing changed if there were any in the antient Law that might hinder a private Dominion of the Sea the reason of Communitie must bee changed also But that it hath been sufficiently changed appear's abundantly if I bee not deceived out of what wee have hitherto shewn you Yea the very Laws as well Civil as Intervenient of most Nations make abundantly to this purpose as it hath been proved Moreover that nothing may bee wanting to weigh down the Ballance therefore besides the opinions of the Civil Lawyers before alleged out of France Spain and Italie for a private Dominion of the Sea let this over and above bee added which is taken out of that sort of Lawyers also discoursing in general terms about the Sea I here give it you as it was composed by a Lawyer none of the meanest in the Roman-German Empire by name Regenerus Sixtinus who was indeed against private Dominion of the Sea The matter in question saith hee concerning the Sea and its Shore is whether as Rivers that are navigable and by which others are made navigable they may bee reckoned inter Regalia among the Prince's Roialties for whatsoëver is reputed a part of those Regalia or Roialties is as private or peculiar to Princes as that is to subjects which is their own for which caus the Revenues of the Exchequer are private after the same manner so also whether the Sea it self and its Shore bee comprised within those Regalia Cacheranus Decis 155. n. 81. Ferrarius Montanus de Feud lib. 5. c. 7. reckon's the regulation and the very dominion also of the Sea among the Regalia nor doth hee make any difference betwixt the Sea and a publick River Mynsingerus also Resp. 1. nu 162. Decad. 11. saith that the proprietie of the Sea is a part of those Regalia But Sixtinus himself discoursing upon this matter just as they do that are more addicted than they ought to the words of Ulpian and numbring up those Autors that are of the contrarie opinion conclude's thus But more true it is that a proprietie of the Sea and Shore is not by the Common Law to bee reckoned among the Regalia But upon due consideration of all those particulars which hitherto have been produced out of the Customs of so many Ages and Nations and as well out of the Civil as the Common or Intervenient Law of most Nations no man I suppose will question but that there remain's not either in the nature of the Sea it self or in the Law either
those Coins were made with the Inscriptions both of C. Carausius and C. Allectus â—MP C. CARAUSIUS P. F. AUG and â—MP C. ALLECTUS P. F. AUG But wee have placed here a counterfeit of that brass Coin which was made by Allectus that you may observ the three-oar'd Gally on the revers of it with the Inscription VIRTUS AUGUSTA whereby I conceiv hee gave to understand that this Empire of Britain chiefly depended upon the Dominion of the Sea flowing about it Touching the recovery of Britain thus together with the Sea there is also a notable Testimonie in that Panegyrick whereof som conceiv Mamertinus others Eumenius to bee the Autor O how great is this Victorie saith hee and worthie of innumerable Triumphs whereby Britain is recovered whereby the French are utterly destroyed whereby moreover those many Nations that were engaged in the same mischievous conspiracie are forced to a necessitie of yielding And lastly for our perpetual peace the Seas are scour'd and rid of Pirats Glory then O unconquerable Caesar hee speak's to Constantius Chlorus the afore-named Emperor that thou hast purchased another world and added to the Empire an Element greater then all the Earth by restoring the glorie of the Roman power by Sea Hee saith a greater Element in a rhetorical flourish in stead of the British Sea which hee thus expressly affirm's to have been recover'd together with Britain it self It is observable also that the Romans alwaies so spake concerning the Empires of Britain and of the Sea called by its name as inseparable Making mention likewise of that pest which consumed onely within the bowels of Britain or of the imminent danger then attending the Roman Empire It wâ—â— bounded saith hee with no mountain or river which was not secured by Guards at the place appointed But although wee shared in your valor and selicitie yet like a Ship it was exposed in every place â—o great terrors wheresoëver the Seas are spred or the winds do blow And a little after saith hee By this Victorie not onely your Britain is redeem'd from vassâ—lage but securitie of traffick restored to all Nations which might have run as great hazard at Sea in time of war as they gain benefit by peace Hee expressly call's the Government also of Allectus a Force of Rebellion by Sed and it appears saith hee that the â—ery Isâ—â— of Britain which had harbor'd a treason of so long continuance is mâ—de sensible of your Victorie by beeing restored unto it self Together with the Conquest of Britain it self all the strength of Shipping was lost which upon Allectus his usurpation in Britain must needs as a perpetual Concomitant of the Island have been of very great use against the Emperors But the Panegyrist goe's on In other parts indeed som things remain which yee may acquire as you pleas or see caus but beyond the Sea what was left except onely Britain which you have so recover'd that those Nations also which border upon that Island are wholly at your devotion There is no occasion to proceed farther except you design that which is impossible in nature to finde out the bounds of the â—ea What Nations are those here that border upon Britain except those that lie beyond-Sea whose Shores were conjoined with the British Empire as it was then accounted or with the Sea-bounds of the Province of Britain that is in the British Sea As the French and the other adjoining Nations For it is not to bee understood of those little Isles which are next to us their Inhabitants not beeing worthie the repute of Nations Not was it agreeable to the Majestie of a Panegyrick to aggrandâ—se the Emperor's glorie by such pettie things But by and by in the following Chapters wee shew that those Nations adjoining to the bounds of Britain or whose bounds are united to the bodie of the British Empire were those very Inhabitants of the continent of France whose Shores are contiguous to the bounds of the British Sea which in a civil sens was accounted a part of the Isle it self or Territorie united therewith For the Panegyrist proceed's thus to the explanation of those words By the means of thy Victories O Constantius most victorious Emperor all those parts that lay waste and desolate about the Countrie of Amiens and Beauvois and Troies and Langres now thrives again by the labor of the rude Husbandman In like manner Carolus Sigonius out of the same Autor saith By this victorie not onely Britain it self was recover'd but the Coasts of France also Spain Italie and Africa were freed from the perpetual incursions of Pirats That is to say by the taking in of Britain with the Sea and the naval strength that was its Guard not onely the neighboring but even the remotest Provinces bordering on the Sea were made secure and free seeing they were all threatned by this war or rather rebellion by Sea which might have raged and wandred as wide as the Ocean and into the streights of the Mediterranean Sea which are indeed the very words of the Panegyrick So that you see to restore or reduce Britain to recover it to suppress a Sea-Rebellion here and to scoure this Sea were esteemed under such a consideration that the one beeing don the other followed by reason of the inseperable Dominion of the British Isle and Sea together And when Britain was lost the Naval Forces of the Romans whereby the Sea was guarded were lost in like manner But when it was reduced even these also were reduced together with the Sea Touching the Dominion of the Southern and Eastern Sea as an Appendant of the British Empire from the time of Constantine the Great till the Romans quitted the Island That it was all under the Command of the Count of the Saxon Shore throughout Britain Also concerning the British Navie under the Romans CHAP. VI. IN the following Age the manner of Administration of Government beeing changed about the time of Constantine as the Pretorian Prefect of Gallia had a Deputie under him to order the Civil affairs of Britain and as the Magister Militum occidentis Hee that commanded the Militia of the West had an Officer under him called Comes Britanniarum Count of Britain and Dux Britanniarum Duke of Britain who commanded Forces for defence of the Midland parts of the Isle So the said Magister Militum was wont at his own discretion to appoint som person of eminent dignitie to bee his Substitute by the Title of Count of the Saxon Shore throughout Britain with Command over the Garrisons and Fortifications placed upon the South and Eastern Shore of Britain and over all that Sea which flow's between France Spain Holland Denmark and great Britain as over a part or bound not bounding but bounded by the British Empire no otherwise then as a distinct Province of the same Empire as most eminently appear's by the very Title of the Dignitie or Command For the Duke of Britain and Count of Britain were as the Count of
Tingitania the Count of Spain and very many others of the like kinde denominated from those Lands and Countries over which they were put in Command And such of these Dignities or Commands as were for defence of any Frontiers or Borders took name ever from the Borders Upon which account it is that among the Imperial Offices or Commands wee meet with Comes limitis AEgypti the Count of the Egyptian Border the Prefect of Euphrates the Prefect of the Bank of Danubius and the Count of Danubius and those to whom the Charge and Defence of the river Rhine was committed For these Rivers were Bounds or Limits of the Roman Empire And it is the opinion of learned men upon good ground that the Counts or Dukes of Rhine are meant by those words concerning the River of Rhine But as the Northern and Eastern Bounds of the Roman Empire were denoted by the names of the Rivers Danubius Rhine and Euphrates so clearly also the name or Limit of the Saxon Shore pointed out the Eastern and more Southerly bound of the British Empire or that which was reduced by the name of British as an entire bodie under the Roman power So that whatsoever reached as far as that Limit lay properly under the command of the Count of the Saxon Shore in Britain as Governor of the Sea-Territorie as an appendant of the Isle But that Territorie or Province subject to this particular Dignitie or Command reached through the very British Sea from the Shore of Britain to the Shores on the other side of the Sea or those which lie over against ouâ— Isle of Britain in France the Low Countries Holland and Denmark so that what Sea or Islands soever lay between near the British Shore appertained all to the Command of the aforesaid Coâ—â—â—t as to the charge of an Admiral belonging to a Province or Territorie Sub dispositione viri spectabilis Comitis litoris Saxonici per Britanniam Praepositus numeri Fortensium Othonae Praepositus Militum Tangricanorum Dubris Praepositus numeri Turnacensium Lemannis Praepositus equitum Dalmatarum Branodunensis Branoduno Praepositus equitum Stablesiani Garrianensis Gariannâ—nâ— Tribunus cohortis primae Vetasiorum Regulbio Praepositus Legionis II Aug. Rutupis Praepositus numeri Abuleorum Anderidae Praepositus numeri Exploratorum portu Adurni Officium autem habet idem Vir Spectabilis Comes hoc modo Principem ex officio Magistri Praesentalium à parte peditum Numerarios duos ut suprà ex officio supradicto Cornicularium Adjutorem Subadjuvam Regendarium Exceptores Singulares reliquos Officiales The names both of the Souldiers and Officers are to bee found in Pancirollus this beeing no place for a Commentarie to explain them to such Readers as are not well vers't in the Storie of the Roman Empire in its declining state But I shall give an account of their numbers as it is cast up by Pancirollus that you may the better know what those Garrisons were which were imploied at that time to guard this Seaappendant of the British Empire Under this Count saith hee was one Legion or Regiment perhaps of a thousand Foot and six Companies perhaps one thousand two hundred and two Troops of Hors almost two hundred The whole amount's to almost two thousand two hundred Foot and two hundred Hors. For Constantinus Porphyrogenneta write's that at this time there was a Regiment of a thousand Foot So hee Now the Ships and Souldiers belonging to the Navie are not mentioned in the Breviarie at least not by this name But as there were Troops of Hors disposed against the Landings of Enemies in case any should happen so there is no reason to doubt but that the Souldiers belonging to the Navie were listed in the Companies and Legion After which manner likewise Flavius Vegetius saith that at Misenus now called Monte Miseno and at Ravenna several of the Roman Legions continued with the Fleets that they might not bee at too great a distance from guarding the Citie and that they might as occasion required bee transported in Shipping to all parts of the world Hee reckon's those Souldiers belonging to the Navie among the Regiments of Foot or under their Name But in the mean time it is to bee observed that the most diligent Inquirers into the Roman affairs whilst they Treat of their Fleets do besides that of Ravenna and Miseno of which this latter lay nearest to France Spain Barbarie Africk Egypt Sardinia and Sicily the other was wont to sail in a direct cours to Epirus Macedonia Achaia Propontis Pontus the East Crete and Cyprus which are Vegetius his own words both of them beeing first instituted and appointed there by Augustus Caesar to guard the Provinces bordering upon the Sea with the Sea it self and called also Pretorian for the more reputation they do I say for the most part add onely two more that were set forth to Sea but of less account The one was placed at Friuli in that part of France called Gallia Narbonensis The other in the very Euxin Sea And it is for the most part agreed that the Romans had onely four constant or more eminent Fleets at Sea They do indeed rightly add also som other constant Fleets which belonged to Rivers as that of the Rhine and Danubius of which sort also may bee reckoned that belonging to Mysia called Maesica and another also belonging to Pannonia or Hungarie called Pannonica and others of the like nature But among these there were certain Barks or nimble Vessels call Lusoriae or Lusuriae in English wee may call them Flie-boats wherein they scouted out as far as the remotest Banks and the Castles built upon them to guard the Bounds of the Empire And under this notion the name of these Lusoriae was restored by Claudius Salmasius according to two Laws in the Code of Justinian which were before sufficiently corrupted And as in Rivers they for the most part used these Lusoriae or lesser Vessels so in the Sea they made use of Pinnaces the least whereof had single Ranges of Ores those that were a little bigger double Ranges and those of a middle size or proportion had three or four and somtimes five as wee are told by Vegetius But now notwithstanding that those diligent Inquirers into the defences and Fortifications of all sorts belonging to the old Roman Empire are wont when they mention any Navie of Britain to speak slightly or in terms obscure enough this nevertheless is most certain that there was among the standing Guards of the Romans not onely a particular Fleet of Pinnaces or light Vessels belonging to Britain wherewith they guarded this Sea whereof wee speak as an appendant of the Isle of great Britain but also that they had not any other Navie in the outer Sea or any Shipping at all upon the Sea-Coasts of Spain or France without the Mediterranean Sea At least it is no where mentioned by
two different Opinions Som would have the Shore of Britain it self or that which is on this side the Sea to bee called onely the Saxon in the naming of this Dignitie or Command Others would have it to bee both the Shore of Britain and all that Shore also which â—etche's a compass like a half Moon from the Western part of Denmark as far as the West of France and lie's over against Britain But truly they are both extremely mistaken The Autor of the former opinion is Guidus Pancirollus who write's that the Shore or Limit within the Island was so denominated from those Saxons who were called in hither by Vortigern King of the South part of Britain to his assistance The Saxons saith hee possessed part of the Island from whence a limit or bound that was rear'd over against them by one that was made Count was called Saxon. Then which nothing could have been more ignorantly spoken if you reflect either upon the thing it self or the cours of times For omitting this that in the Breviarie of Dignities it self no mention is made at all of a Saxon bound or Limit but of a Shore notwithstanding that Pancirollus in the Inscription of his Commentarie entitle's the Commander that wee speak of Count of the Saxon Limit throughout Britain the Breviarie was written in the Reign of Theodosius the yonger or in the year CCCCX as learned men do commonly agree That is to say of that time the frame of the whole Government of the Empire both in the East and West having been over-grown long before was with very great diligence digested as it were into one entire Book of Offices and Dignities But the Saxons as most of the Antients tell us came first into Britain in the year of our Lord CCCCXLIX But suppose what upon better consideration may perhaps bee allowed that their arrival ought to bee reckoned in the year CCCCXXVIII that is in the XXI year of the Reign of Theodosius the yonger yet in the mean time this is most certain which is here in the first place to bee observed that Britain was utterly abandoned by the Roman Governors before they were called in Doubtless they were as Gildas write's brought in by King Vortigern to drive back the Northern Nations the Picts and Scots not the Romans who had bidden farwel to the Island Neither had tho Romans or their Dukes or Counts any thing at all to do within the Isle with the Saxons So that it must needs bee gross ignorance in Histories and in the Calculation of time to set down any Saxon Limit or Saxon Shore in the Island it self whilst the Roman Empire flourished or had any kinde of Autoritie in this Countrie Nothing therefore is more evident then that the Shore lying on the other side of the Sea over against the South and Eastern Coast of Britain as wee described it before was called the Saxon in that Dignitie or Command Moreover also that Count of the Saxon Shore throughout Britain was far more antient and known by an addition thereto of the Sea Coast or of that Sea which was comprehended in the Roman jurisdiction throughout Britain or in the bodie of the British Province For Nectaridius was invested with this Dignitie in the time of Valentinian the first or about the year of our Lord CCCLXX as is testified by Ammianus Marcellinus where hee saith information was given by a Messenger that Britain was reduced to an extreme low condition by a barbarous Conspiracie and that Nectaridius Count of the Sea-Coast and Buchobaudes the Duke were surprized unawares by the craft of the Enemy Nor is any difference to bee imagined between the Dignitie of the Count of the Saxon Shore in this sens throughout Britain and that which the fore-named C. Carausius received at Boloigne in France to scour the Sea along the Coast of Belgica and Bretaigne which as Eutropius and Orosius say was infested by the French and Saxons For that even hee also had places of strength and Mansion-houses belonging to his Government in Britain appear's sufficiently upon this ground that when Maximianus had given order to put him to death hee immediately usurp't in Britain and reigned after for the space of seven years So the Governor here or Count of the Sea-Coast and the Count of the Saxon Shore beeing ever accounted the same held the sole Government of Britain and the Sea belonging thereto To whom also wee may add as differing onely in name not really the Prefect or Admiral of the British Navie under the Romans mentioned in the former chapter Wee confess indeed that the Duke of Belgica secunda and the Duke of the Countrie of Aremorica before-mentioned was by the verie nature of his place to afford supplies for the guarding the Sea and this Shore beyond Sea For they also as hath been observed had Garrisons seated upon this Saxon Shore But it is chiefly to bee observed here that these beyond-Sea-Dukes were according to the nature of their Dignitie or Office to take care not so much of the Shore or Sea as the Continent and that from thence as you see they took their names This from the Tract of Aremorica and Ebroicae which beeing extended through five Provinces Aquitania prima and secunda Senonia Lugdunensis secunda and Tertia which comprehend's the lesser Britain and Normandie conteined almost all that which was commonly called by the name of Gallia But the other had its name from Belgica secunda Nor was there one Count or Duke of the Midland Countrie and another of the Shore or Sea-Coast in Gaul But in Britain the Counts or Dukes of the midland parts and the Count of the Sea-Coast or Saxon Shore had distinct charges distinct Forces and the signal Ornaments of their Offices wholly distinct Just as if the Roman Emperors would have it signified by this very thing that as the Sea it self did by particular Right alwaies belong unto the Empire of the Island so the Sea-affairs and their protection to the British Command and Jurisdiction of the Saxon Shore or that beyond-Sea but that both the Dukes of the Continent or main Land of Gaul lying right before it were bound so to send relief as occasion should require against the Saxon Invasions that in the mean time the sole care of the sea it self as a particular Province given in charge lay upon him that was made Count of the Saxon shore throughout Britain And if any Duke or Count either of Aremorica or Belgica secunda was called by the name of Duke or Count of the Saxon shore as som would have it was don doutless upon this ground becaus the Saxon shore lying over against us on the other side of the sea did bound their Land-Government as it did also the Sea-Jurisdiction of the aforesaid Count throughout Britain Nor indeed is that other Opinion any more to bee admitted which saith That our British shore was at that time called Saxon
is made of the several Jurisdictions of those Counts which were under the Command of that eminent person entitled Magister Militum Praesentalis In the printed Copies of the Breviarie wee read it thus Sub dispositione viri illustris Magistri peditum Praesentalis Comites Militum infrà -scriptorum Italiae Africae Tingitaniae Tractûs Argentoratensis Britanniarum Litoris Saxonici per Britannias In the Edition both of Alciatus and Pancirollus it is read as wee render it here Militum infrascriptorum Yet doubless the word Limitum Limits ought to bee put in stead of Militum Souldiers For it is not agreeable to the nature of the Imperial Offices that the word Militum should bee admitted in that place And it appear's most certain by those things which follow that Italie Africa the Tract of Strasburgh Britain and the Saxon Shore had their respective Counts as Comites Limitum Counts of the Limits or Bounds no otherwise than those Territories which are added there next after as Mauritania Caesariensis Tripolis and other Provinces in like manner besides Britain which had their respective Dukes likewise by the name of Duces Limitum Dukes of the Limits But now both the Duke and Count of Britain had the very Shore of the Island for their Limit or bound And therefore seeing it is so what Limit had that Count relation to was who entitled of the Saxon Shore throughout Britain if you will not yield that hee took his Title from the Shore lying over against us There was a Duke and a Count of Britain simply so called besides a Vicarius or Deputie of Britain who governed the whole Island according to their several charges and wee finde in the Breviarie that both the Duke and the Count and the Deputie had for the signal Ornaments of their Offices the whole Island but in several Forms encompassed with the Sea even as the Count of the Saxon Shore had the Isle in like manner encompassed with Sea-Towns or Ports Also it is manifest by those which are set forth in the Breviarie of Dignities that the Deputie Duke and Count of Britain had the very Territories of the Isle for the Limits of their Government and so also that they extended themselvs to the very Shores every where throughout the Jurisdiction of the Romans So that also both the Duke and Count of Britain ought to have been entitled in like manner from the Saxon Shore as from a Limit or bound if the Shore of Britain had been called by this name at that time For wee plainly see that the Islands of Britain themselvs so far as the Isles about it are comprehended under that name are expressly described under the notion of Limits in that Catologue of Dignities relating to Limits which wee have cited out of the Breviarie Therefore from hence also it appear's that Limit which was the Saxon Shore is to bee reckoned without the Island and so in the Shore over against us or which lie's beyond Sea according to that which wee proved before in our Discours Nor truly is it to bee passed over without observation seeing there are very many signal Ornaments of Sea-Provinces and Jurisdictions as well as of those within Land pictured in the Breviarie and this according to the Form or Fashion received from those that had the supreme power by the principal Secretaries or others who drew up the Commissions That not only no Ornaments at all are found in the Dignities of the West wherein there is any Tract of the Sea except those which belong to the Government of Jurisdiction of Britain nor indeed in the Dignities of the East except the Counts of Egypt and Isauria both whose Ornaments had a Sea-border about them but also that the Sea was ever placed round about in the signal Ornaments belonging to the four several Governments or Jurisdictions of Britain that is to say that of the Deputie the Duke the Count and lastly the Count of the Saxon Shore throughout Britain Just as if the Romans would have had it signified thereby that no other Province at all nor any other Jurisdiction whatsoëver had either a Dominion of the Sea so amply conjoined mingled and as it were incorporated within it self or a protection and command of a Territorie by Sea Som Evidences concerning the Soveraigntie and inseparable Dominion of the Isle of Britain and the Sea belonging thereto out of Claudian and certain Coins of the Emperor Antoninus Pius CHAP. VIII FRom the Dominion of the British Sea as beeing continually united to the Island or an inseparable concomitant thereof as hath been alreadie shewn you proceeded as it is very probable those passages of Claudian who seldom speak's of the quieting recovering or subduing of Britain but hee add's also the Sea it self as that which did necessarily accompanie it Speaking in honor of the Emperor Honorius touching the original of his Family which was out of Spain he saith Cunabula fovit Oceanus Terrae dominos pelagique futuros Immenso decuit rerum de Principe nasci Hinc processit avus The Ocean rock't his Cradle It became Those who as Lords both Sea and Land should claim Of nature's mightie Prince deriv'd to bee From hence thy Grandsire had his pedegree That is to say Theodosius who after that Nectaridius Count of the Saxon Shore as is before related and Buchobaudes Duke of the Island were slain was sent into Britain by the Emperor Valentinian the first But that which Claudian saith concerning the affairs and actions of this Theodosius relate's very little to the Sea save that hee call's him Conquerer of the British Shore and adds that having vanquished the Saxon's hee washed the Orcades with their Bloud Which is plainly to bee understood of his scouring the British Sea that was wont to bee infested by the Saxons A little after also concerning Theodosius the son of this man or the Father of Honorius that is the Emperor Theodosius the first hee saith Sed laudes genitor longè transgressus avitas Subdidit Oceanum sceptris His Father did his Grandsir's worth transcend And brought the Ocean under his command Which without question relate's to the recoverie of Britain after the slaughter of Maximus at Aquileia who had tyrannically usurped the Soveraigntie of the Island The same Autor writing also in commendation of Flavius Stilico Tutor or Guardian of Honorius the yonger bring 's in Britain her self saying Stilico hath so fortified and secured mee ne Litore toto Prospicerem dubiis venturum Saxona ventis I could not see throughout the Shore or stand One Saxon readie to cross or'e and land That is to say hee rendred the Sea quiet and secure for mee hee hath guarded and kept it for mee hee hath driven away the Saxons from the use of it In another place also hee bring 's in the Goddess Pietie speaking to Honorius Quantum te principe possim Non longinqua docent domito quòd Saxone Tethys Mitior aut fracto secura Britannia Picto What
of Excester And in those daies it was usual to procure King's Letters commonly called in the language of the Law Protections whereby Privilege and exemption from all suits was granted to those that were emploied in this kinde of Guard or Defence of the Sea or that spent their time super salvâ custodiâ defensione Maris For the safeguarding and defence of the Sea as the form of the words hath it which wee frequently finde in the Archives Moreover in the Acts of Parlament of the same King's Reign mention is made of the safeguarding of the Sea or de la saufegard de la mier as of a thing commonly known and for which it was the Custom of the English to make as diligent provision as for the Government of any Province or Countrie And in the twentieth year of the same King the Commons preferr'd a Bill that a strong and well accomplished Navie might bee provided for the defence of the Sea becaus It is thought fit be all the Commens of this Land that it is necessarie the See be kept Verie many other passages there are to the same purpose Geoffrie Chaucer who lived in the time of Richard the Second and was a man verie knowing in the affairs of his Countrie among other most elegant and lively characters of several sorts of men written in the English Tongue describe's the humor of an English Merchant of that time how that his desire above all things is that the Sea bee well guarded never left destitute of such protection as may keep it safe and quiet Which hee speak's to set out the whole generation of Merchants in that age whose custom it was to bee sollicitous for traffick above all things and consequently about the Sea it self which would not afford them safe Voyages did not the Kings of England as Sovereigns thereof according to their Right and Custom provide for the securitie of this as a Province under their Protection The words of Chaucer are these His reasons spake hee full solemnely Shewing alway the encreas of his winning Hee would the See were kept for any thing Betwixe Middleborough and Orewel Orewel is an Haven upon the Coasts in Suffolk Middleborough is in Zealand The whole Sea that floweth between Britain and Zealand the English Merchants would have secured this they were wont solemnly and unanimously to pray for knowing that the Sea was part of the Kingdom and the Protection of them part of the dutie of the Kings of England For as concerning any Protection herein by any forrein Princes any farther then in their own Harbors or at the most within the winding Creeks between those Islands which they possessed upon the Coasts of Germanie or Gallia Belgica there is nothing as far as wee can finde to bee gathered from any Testimonies of former Ages In the succeeding Ages likewise there is frequent mention of this kinde of Guard Defence and Government of the same Sea as will hereafter more fully appear when wee com to speak of Tributes and of the tenor and varietie of the Commissions given to our Admirals But now it is to bee observed that both the name and nature of this Guard is very well known not onely by the use of the word both in the Imperial and Canon Law wherein it denotes that the Guardian ought to take a diligent care of that thing whereof hee is owner who doth either lend it or commit it to his over-sight but also by the common and obvious use which the English make of the same word in other Offices or Governments For in those daies of old when the title of Guardians or Wardens of the Sea was more usual there were appointed Wardens of the Ports even as at this day there are Wardens of the Counties who are those Commanders of Counties called Sheriffs and in the usual form and tenor of their Writ have custodiam comitatûs the Guard or Defence of the Countie committed to their charge Wardens or Keepers of the Marches or Borders Keepers of Towers or Castles Parks Houses and the like Yea and the Lord Lievtenant of Ireland was especially in the time of King John and Henrie the Third styled usually Warden or Keeper of Ireland and his Office or dignitie commonly called the Keepership of Ireland after the same manner as John Duke of Bedford and Humphrey Duke of Glocester whom Henry the fift during the time of his absence in France deputed to govern the Kingdom of England by turns were called Custodes Angliae Keepers of England as wee very often finde both in Histories and Records So Arthur Prince of Wales was made Keeper of England while Henry the seventh was beyond the Seas So Piers Gaveston was keeper of England while Edward the second remained in France So were others also in like manner The Governors also of the Islands of Jarsey and Garnesey and the rest that are situated in this Sea who now are styled Governors Keepers or Captains were in antient times called onely by the name of Guardians or Keepers This then beeing so what reason have wee to think that our Ancestors did not use the same Notion of Guardian or Keeper and of guarding or keeping in the name of the Guardian and the Guard of the Sea which they were wont to use in the Guard and keeping of the Island and in the other dignities or offices before mentioned Doubtless in all these the peculiar Dominion and Soveraigntie of him that conferr'd the Dignities is so clearly signified and included that his Dominion or Ownership of the thing to bee kept and guarded as well as Autoritie over the person dignified is plainly implied in this Title Nor is it to bee omitted that in antient times before the autoritie of the high Admirals of England was sufficiently established by our Kings and setled so distinct that the Command and Government of the Sea did belong onely to them the Governors or Keepers of the Provinces whom wee call Sheriffs of the Counties by virtue of their Office had also som Custodie or Command of part of that Sea which adjoined to their respective Provinces as of a part of the Kingdom of England Which truly to let pass other proofs is sufficiently evident by this that many times in those daies they who by the Common Law of the Land were wont as at this day to put in execution the Commands of the King in those places onely that were committed severally to their charge and custodie did do the same also in the Sea it self as well as in any Land-Province belonging to him from whom they received their autoritie For by virtue of their ordinarie power derived from the King and such as was founded upon the very same right by which they held the Government of the Countie or Province they did oftentimes remove the King's Ships and Fleets from one Port to another by Sea as through the Territorie of the Province that was committed to their
before been made Commander of the Fleets And hee was the first for ought wee know that was created in this manner But in the next Form of Commission the name of Picardie was left out So indeed in the fourth year of Henrie the Sixth or Anno Dom. MCDXXVI John Duke of Bedford was by Commission made Admiral of England Ireland and Aquitain That Form continued about 88. years or throughout the Reigns of Henrie VI Edward IV Richard III Henrie VII and the three first years of Henrie VIII And about that time ten others were in like manner made Admirals for the most part perpetual of England Ireland and Aquitain the last of which was John Earl of Oxon who was Commissionated in that Form in the first year of Henrie the Eight But there followed another alteration or addition of Titles in the fourth year of that King Anno Dom. MDXIII At that time Sir Edward Howard Knight son of Thomas Earl of Suâ—â—ie afterwards Duke of Norfolk was made Admiral of England Wales Ireland Normandie Gascoign and Aquaitain To which words Calais and the Marches thereof are added in the Commission of William Fitzwilliams who also was Earl of Southampton beeing appointed Admiral in the twentie eight year of King Henrie the Eight This Form of Commissions held in use afterward through the whole Reign of that Henry adding according to antient Custom the clauses touching Jurisdiction But in the beginning of Edward the Sixt Thomas Baron Seymour of Sudeley brother to Edward Duke of Somerset was made Admiral almost in the same words as that William Earl of Southampton inserting after the name of Calais Boloign and the Marches of the same After him followed John Earl of Warwick who was created by Edward the Sixt in the third year of his Reign our Admiral of England Ireland Wales Calais and Boloign and our Marches of the same of Normandie Gascoign and Aquitain as also Governor general over all our Fleets and Seas And in the same Commission hee is styled afterwards Great Admiral of England and Governor of our Fleets and Seas But after a while the name of Boloign being omitted the next high Admiral of England was created in the very same Form of words as is mentioned before in the beginning of the Chapter For in the same Form was William Baron Howard of Effingham Son of Thomas Duke of Norfolk made Admiral in the beginning of Queen Marie or Anno Dom. MDLIII And the Command or Government of those Seas as the principal charge of that Office or Dignitie is more notably expressed there as you may see than in the Commission of the Earl of Warwick From that time forwards the very same Form was kept alwaies as in the Commission of the high Admiralship granted to Edward Baron Clinton afterwards Earl of Lincoln in the Reign of Philip and Marie also in the Commission of Charls Baron of Effingham afterwards Earl of Nottingham in the time of Q. Elizabeth and of Charls Duke of York in the time of King James besides George Duke of Buckingham who enjoied the same Office or Command in the same words in the Reigns of James and Charls So that for above eightie years or thereabout that is from the beginning of Q. Marie the whole form as it is set down in the beginning of this Chapter was ever expressly reteined in the Commissions of the high Admiralship of England so far as they denote either the Countries or the Seas or the Dominion of the same But therein the Admiral is styled Governor General over all our Fleets and Seas just as John Earl of Warwick was likewise expressly appointed in general tearms under Edward the sixt or over our Seas aforesaid But what were those Seas or the Seas aforesaid They are in the fore-going words expressly called the Seas of our said Kingdoms of England and Ireland our Dominions and Islands of the same That is in plain tearms Mer d' Engleterre d' Ireland Gales or the Sea of England Ireland and Wales after which manner the Seas belonging to the Dominion of England are sometimes also described in our Laws which are called likewise now and then by our Lawyers Les quatre Miers d'Engleterre or the four Seas of England divided according to the four Quarters of the World So that in the most received form of this Commission after the beginning of Queen Marie's Reign out of which also the sens and meaning of former Commissions is to bee collected wee have a continual possession or Dominion of the King of England by Sea pointed out in express words for very many years And what wee have alreadie spoken by way of Collection out of these that followed the beginning of Marie touching the sens or meaning of former Commissions wherein a positive Command of the Sea is not expressed is truly to omit the thing it self which sufficiently intimate's as much of its own nature not a little confirmed upon this ground that hee also who before any express mention of our Seas took place in the form of the Commission of the high Admiralship was next preferr'd to the same dignitie was immediately after his Creâtion according to the whole Title of his Office as beeing the same title which indeed alwaies belonged to the Admirals of England styled Great Admiral of England and Governor General of the Navie and our Seas So verily Thomas Baron Seymour whom I mentioned before is styled Admiral of England in the Patent Roll granted to him by Edward the sixt It is proved by words plain enough in the form of the Commissions for the Government or command of the high Admiral of England from antient to the present time that the Sea for whose guard or defence hee was appointed by the King of England as Lord and Soveraign was ever bounded towards the South by the shore of Aquitain Normandie and Picardie CHAP. XVII BUT in the Form alreadie shewn which hath continued in use for so many years you see mention is made onely of the Seas of our Kingdoms of England and Ireland our Dominions and Islands belonging to the same as the Province for whose guard or defence the Admiral was appointed that is as wee have told you the English Irish and Welch Sea all which is conteined under the name of the British as it hath been observéd at the beginning of this Book Yet the names of Normandie Gascoign and Aquitain besides Calais are added which are Provinces seated upon the shore over against us As to what concern's them in this place they are either to bee considered in the same manner as if they had been alwaies held in subjection by the English from the time of the first mention of them in the Commission or as they have alreadie for som Ages past been out of their Jurisdiction But suppose in the first place that they had alwaies remained in the Jurisdiction and Possession of the English Questionless
Subjects and that at least som certain ships might in favor of the King's Majestie have leav granted them once a year at least during the Warr to carrie Provisions and that wee may bee able to certifie the King our Master how far wee in this case prevail But the Ambassadors had this Answer that the Queen cannot in reason bee induced to consent it should bee don as they desired And whereas you allege a supposal that both English and Netherlanders have Licence given them somtimes to transport Corn Wee to wit the Chief men of her Majestie 's Privie-Council who gave the Answer dare confidently affirm that never any such matter was granted by the Queen nor will shee ever incline to grant the like during the warr If the Queen had not in the opinion of the Danes as well as of the Hans-Towns before been Soveraign of the Sea-Territorie through which they were to pass to what end then was this so earnest a Petition and so imperious an Answer Here in this often iterated Petition no libertie is pretended besides that which depended upon the Queen's pleasure as Soveraign of the Passage For this caus also it was that John King of Sweden in that Letter of his sent to Queen Elisabeth in the year 1587. wherein hee desired leav for Olavus Wormaeus a Swede to carrie Merchandise into Spain acknowleged that hee must of necessitie Maritimas Reginae ditiones pertransire pass through the Sea-Dominions of the Queen which are the very words of the Letter Nor is it any new thing that this kinde of passage should bee denied to Foreiners For in very many of those Pass-ports that were granted to the Merchants of Neighbor-Nations by Edward the first during the warr between him and the French this claus is usually added upon condition that they neither conveie nor caus any thing to bee conveied to the French partie nor communicate any thing 〈◊〉 all to our Enemies there in any manner whatsoâ—ver as wee read it in the Records where are many others of the same kinde From hence it is that in the same King's instructions it is required that his Soveraigntie by Sea bee preserved with extraordinarie care and diligence as belonging to him by antient right as Arbiter and Moderator of the Laws or Customs and Persons of such as pass therein The words themselvs which signifie the same are these Especialment à retenir maintenir la Sovereigneté qe ses ancestres Royes d'Engleterre soloyent avoir en la dite Mier d'Engleterre quant à l'amendement declaration interpretation des lois per eux faits à Governer toutes Maneres des gentz passanz per la dite mier especially to retein and maintain the soveraigntie which his Ancestors the Kings of England were wont to have in the said sea so far as concerns the amendment declaration and interpretation of the Laws by them made to govern all manner of Nations passing through the said sea Hereunto also belong's that Commission of King John whereby hee required in very imperious terms that all kindes of ships whatsoëver which could bee found throughout the English Sea it beeing expressed by the general name of the Sea as flowing round about should bee staid and bee brought near his shores For it hath been a Custom in all Ages that the ships of any persons whatsoëver as well Strangers as Subjects may somtimes bee staid in the Ports But it was King John's intent that his whole Sea as well as the Ports themselvs should bee plainly signified in this Commission In witness whereof I here set down the Commission it self The KING to all the Sturemanni and Marinelli and Merchants of England that sail by Sea greeting Bee it known unto you that wee have sent Alanus Juvo de Sorham and Walter Stattun and Vincent de Hastings and Wimund de Winchelsey and others of our Barons of the Cinque-Ports and other our faithful Sturemanni and Marinelli of our Gallies to arrest all ships that they shall finde and them safely to bring with all that shall bee found in them into England And therefore wee command you that yee bee attending upon them in this business so that yee bee in England with all your Ships and Merchandises at such Port and Coast as they shall appoint you And if any shall attempt to resist them contrarie to our command you our Liege-men are required to assist them with all your strength as you tender your selvs and your chattels and peace and residence in our Land for you or any of your Generation Witness hereunto William Briwr at Lutegar the eight daie of Februarie These Sturemanni here do signifie Sea-Captains and Marinelli Sea-souldiers But to command that all ships should bee arrested throughout the Sea that is staid or taken and brought into England what els was it but undoubtedly to declare himself Lord of the Sea through which they passed Now let no man object that this Commission extended onely to the Ships of English men or of the Subjects of him that gave the Commission It is true indeed that the Commission before cited was sent and directed onely to the Sea-Captains Men of Warr and Merchants of England But yet it is manifest thereby that the four persons there named and others Barons of the Cinque-Ports and the rest that are added were obliged by the aforesaid Commands to arrest all the ships that they should finde throughout the Sea and bring them safely into England with all that should bee found in them But this part of the Commission was added as it plainly appear's that no English Sea-Captain or Souldier or Merchant whatsoëver might bee wanting in their assistance in staying the ships of Foreiners If anie one shall attempt to resist them contrarie to our command you our Liegemen are required to assist them with all your c. Our Liege-men in this place or they that ought to give assistance in making stay of ships are all the Sea-men and Merchants of England that sail up and down throughout this Sea They therefore whose ships were to bee staid did not com under the name of Liege-men or Subjects and that it so appear's to bee by the very Form of this Commission that there need 's not any thing more bee added touching this matter I suppose no man will doubt who take's it into his more serious consideration Nor do the words make mention of the ships of Enemies but of any whatsoëver as beeing deliver'd by a Soveraign Prince who was concerned at that time for his own occasion and at discretion to use not onely his own Sea-Territorie but also the ships sailing therein as well as those that were in Port. Wee finde a Commission of the like nature and which speak's to the same purpose in the time of King Edward the third wherein Command is given to make stay of all ships of ten Tuns and upward that should bee found in the South and Western Sea except som that
by the Court that the Exception was of no force for that Scotland was not within the Bounds and Limits of England So that within the four Seas and within the Realm signified one and the same thing from whence these terms out of the Realm and without the four Seas becom one and the same also To bee out of the Realm is very often repeated in this â—enâ— also by Littleton the most excellent of all our Law-Writers signifying no other thing than what hee renders it in another place by one who ala oustere le mere crossed the Sea or went beyond sea â—rom thence also it seem's to have proceeded that whereas with us among the several temporal excuses of Defendants who are summoned to appear in Court in our Law wee call them Essoins there are two alleged whereof the one is intitled de ultra Mare the other De Malo veniendi and this latter is allowed to him that is hindred by any kinde of misfortune whatsoever within the Seas or on this side of the more remote bounds of those Seas which belong to England but the former to him who live's without or beyond the Seas belonging to the English Empire From thence it seem's I say to have proceeded that in former times when there was a more frequent use in Court of this kinde of excuses a Defendant beeing absent in Ireland might lawfully make use of the latter form of Essoin but not of the former Nevertheless if through ignorance hee did make use of this it took on the nature of the latter that is wholly quitting all its own nature it depended upon this that the Defendant according to the more vulgar sensâ— or acception lived beyond-beyond-Sea For according to received Custom the nature of them both was such that when any one might lawfully use the former hee might also after a while likewise enjoy the benefit of the latter But in the said kinde of Essoins or Excuses the former not beeing lawfully made use of but yet turned into the latter by construction of Law lest it should becom of no use there was no place for the latter to the end it might not bee iterated contrarie to Custom The matter it self was thus decided in the time of K. Henrie the third as it is described by Henrie Bracton after this manner Esto saith hee quòd quis se Essoniaverit de Ibernia quasi de ultra Mare attornatur Essonium illud ad simplex Essonium de Malo veniendi ut coram Martino de Patteshul in Banco anno Regis Henrici Sexto de Gilberto Mariscallo Ceciliâ uxore ejus Allano de Hyda qui vocavit ad Warrantum Willielmum Mariscallum in Comitatu Pembroke qui se essoniavit de Ibernia non fuit allocatum postea fecit de hoc quòd aliud essonium de malo veniendi ad alium diem non fuit allocatum So much wee finde also in the antient Autor of that Book entitled Fleta Doubtless Ireland is no less seated beyond sea than either France or Spain unless you take that decision as relating onely to the Civil notion of this kinde of situation to wit that it is not situate beyond that Sea which is a part and Territorie of the English Empire but placed therein and comprehended under one and the same Supreme Power with England and so that an Excuse or Essoin de ultra mare is not in that kinde to bee admitted In the antient Records also concerning the Customs of our Court of Admiraltie wee read it was an usual Custom in the time of King Henrie the first who died Anno Dom. MCXXXVI and of other Kings both before and after him That if any man accused of a capital crime don by Sea beeing publickly called five times by the voice of the Crier after so many several daies assigned did not make his appearance in the Court of Admiraltie hee was banished out of England de mer appurtenant au Roy d Angleterre or out of the Sea belonging to the King of England for fourtie years more or less according to the pleasure of the Admiral Other particulars there are that relate hereunto about Actions for matters arising in this Sea that were wont to bee entred in express terms heretofore in the ordinarie Courts of our Common Law whoâ—e Jurisdiction was ever esteemed of such a nature that an Action instituted about a matter arising in any other place than within the bounds of the Realm was by the antient strict Law alwaies to bee rejected by them After which manner as it hath been a Custom now for many years that an action ought to bee rejected unless the matter have its rise within the Bodie as they call it of the Countie that is within som Province or Countie of the Island usually given in charge to certain Governors or Officers known to us by the name of Sheriffs So also is it in this Sea-Province belonging by the antient received Custom to the high Admiral or his Deputies not onely so far as concern's its defence and guard but also as to matter of Jurisdiction So that at length it is manifest that the Sea-Dominion of the King of England is without controversie admitted and asserted also both by the Determinations and Customs of the Law of the Land and by the express words of the Writs and Forms of the Actions themselvs Nor is that of any force at all to the contrarie which either our Countrie-man Bracton the Lawyer as hath been said or som others of late as well as antient time that are Followers of him but in too careless a manner while they set down the Institutions of our English Law have unadvisedly utter'd by the way touching that antient communitie of the Sea and of Fishing also in Rivers according to the Books of Justinian as if such a kinde of communitie were admitted in our Law Truly that which they have so let slip is not so much to bee taken as contrarie to the known Law of the Land in this particular for even Bracton himself as I have shewn hath divers other passages that signifie this Dominion of the King as it is to bee reckoned for som of the reliques of Ulpian or of the School of the Imperial Law too slightly and carelesly added by the way in writing And the like may bee said of one or two more of our Writers who after the manner of reasoning received for the most part in the Imperial Law touching the middle of a River and an Island risen therein do by the way but ignorantly make the middle of the Sea flowing between to bee the bound of this Sea-Dominion of our Kings Moreover the same may bee said likewise of the Commissioners of Queen Elisabeth who treating at Bremen with the Commissioners of Christiern the fourth King of Denmark about a freedom of Navigation through the Northern Sea object a perpetual communitie of every kinde of
to neglect their profit And in another Letter of the said Ambassador from the Hague to Secretarie Naunton of the 14 of Januarie 1618. Hee give 's him to understand That having been expostulated with but in friendly manner by certain of the States about his late Proposition as unseasonable and sharp they said they acknowledg their Commissioners went beyond their limits in their terms of Immemorial Possession and immuable Droict de Gens for which they had no order Then saith hee I desired them to consider what a wrong it is to challenge that upon right which these Provinces have hitherto enjoied either by connivence or courtesie and yet never without claim on his Majestie 's side c. In another Letter of Secretarie Naunton's to the Lord Ambassador Carlton of the â—1 of Januarie 1618. wee read thus AS I had dictated thus far I received direction from his Majestie to signifie to the State's-Commissioners here That albeit their earnest entreatie and his gracious consideration of the present trouble of their Church and State had moved his Majestie to consent to delay the Treatie of the great Fishing till the time craved by the Commissioners yet understanding by new and fresh complaints of his Mariners and Fishers upon the Coasts of Scotland that within these four or five last years the Low Countrie-Fishers have taken so great advantages of his Majestie 's Toleration that they have grown nearer and nearer upon his Majestie 's Coasts year by year than they did in preceding Times without leaving any Bounds for the Countrie People and Natives to Fish upon their Prince's Coasts and oppressed som of his Subjects of intent to continue their pretended possession and driven som of their great Vessels through their Nets to deter others by fear of the like violence from Fishing near them c. His Majestie cannot for bear to tell them that hee is so well perswaded of the Equitie of the States and of the Honorable respect they bear unto him and to his Subjects for his sake that they will never allow so unjust and intolerable Oppressions for restraint whereof and to prevent the inconveniences which must ensue upon the continuance of the same his Majestie hath by mee desired them to write to their Superiors to caus Proclamation to bee made prohibiting any of their Subjects to Fish within fourteen miles of his Majestie 's Coasts this year or in any time hereafter until order bee taken by Commissioners to bee autorised on both sides for a final settling of the main business His Majestie hath likewise directed mee to command you from him to make the like Declaration and Instance to the States there and to certifie his Majestie of their Answer with what convenient speed you may Thus far Secretarie Naunton to the Ambassador Now what effect the Ambassador's Negotiation with the States had appear's by a Letter of his from the Hague of the 6 of Februarie 1618 to King James himself where among other passages hee hath this I finde likewise in the manner of proceeding that treating by way of Proposition here nothing can bee exspected but their wonted dilatorie and evasive Answers their manner beeing to refer such Propositions from the States General to the States of Holland The States of Holland take advice of a certain Council residing at Delph which they call the Council of the Fisherie From them such an Answer commonly com's as may bee exspected from such an Oracle The way therefore under correction to effect your Majestie 's intent is to begin with the Fishers themselvs by publishing against the time of their going out your resolution at what distance you will permit them to Fish whereby they will hee forced to have recours to their Council of Fisherie that Council to the States of Holland and those of Holland to the States-General who then in place of beeing sought unto will for contentment of their Subjects seek unto your Majestie By these you may perceiv how earnestly the antient Rights of England were asserted and the old Claim made and renewed and a recognition made also in the Reign of that King by the Netherlanders themselvs though all proved to no purpose the King and his Council beeing afterward lull'd again into a connivence one way or other And it give 's sufficient caus to suspect that the men in Power at that time might bee charm'd with monie since it was a Quaere put by the Prince of Orange to the Ambassador Carlton in the heat of all the Controversie Whether the Freedom of Fishing might not bee redeemed with a summe of monie For turning over the Papers of Transactions of the Time immediately following I perceiv the dispute was let fall on a sudden and thereupon an opportunitie given the Netherlanders to encroach more and more every year upon the Seas and Shores of this island And so far they proceeded in this presumptuous Cours through the Toleration given them in the later end of the Reign of King James and the begining of the late Tyrant his son that at length they fell to a downright impeachment of our Rights not in words onely but by contemning the commands of the King s Officers prohibiting us free Commerce within our own Seas abusing and disturbing the Subjects at Sea and the King himself in his very Ports and Chambers and by many other actions of so intolerable a nature that in the year 1635 hee was awakened and constrained to see to the preservation of our Rights at Sea and give order for the setting forth of a powerful Fleet to check the audacious designs and attempts of those ungrateful Neighbors And the following year in prosecution of his purpose hee set forth this ensuing Proclamation entituled A Proclamation For restraint of Fishing upon His Majestie 's Seas and Coasts without LICENCE WHereas Our Father of Blessed memorie King James did in the seventh year of His reign of Great Britain set forth a Proclamation touching Fishing whereby for the many important reasons therein expressed all persons of what Nation or Qualitie soever beeing not His natural born Subjects were restrained from Fishing upon any the Coasts and Seas of Great Britain Ireland and the rest of the Isles adjacent where most usually heretofore Fishing had been until they had orderly demanded and obtained Licences from Our said Father or His Commissioners in that behalf upon pain of such chastisement as should bee fit to bee inflicted upon such wilful Offendors Since which time albeit neither Our said Father nor Our Self have made any considerable execution of the said Proclamation but have with much patience expected a voluntarie conformitie of Our Neighbors and Allies to so just and reasonable Prohibitions and Directions as are contained in the same And now finding by experience that all the inconveniences which occasioned that Proclamation are rather increased then abated Wee beeing very sensible of the premisses and well knowing how far â—ee are obliged in Honor to maintain the rights of Our Crown especially