ut Batavi imposterum abstinerent ab oris Scoticis ad Octuaginta saltem Milliaria Here the distance from the Shoars of Scotland which Foreigners were to observe in their Fishing is set very large no less than Fourscore Miles In the Second year of King James Commissioners were appointed and authorized under the Great Seals of England and Scotland to Treat and Conclude an Union betwixt the two Kingdoms Spetisâ—â—â—d's Hist of Scotland p. 483. And in the Articles for Regulating Trade betwixt them it was amongst other things mutually agreed That the Fishing within the Fryths and Bays of Scotland and in the Seas within Fourteen Miles distance from the Coasts of that Realm where neither English nor other Strangers have used to Fish should be reserved and appropriated to Scotchmen only And so reciprocally on the part of England Scotchmen to abstain from Fishing within the like Distances off the Coasts of England But if English and Scots who though the two Kingdoms be sui Juris and independent one upon another are tied together in the same Common Bond of Allegiance to one and the same Prince be excluded from Fishing within Fourteen Miles from each other Coasts how much more reasonable is it that Aliens and Foreigners should be obliged to keep the like Distances King James finding that his foremention'd Proclamation in the Seventh year of his Reign for a licensed Fishing was not seconded by a suitable Compliance on the part of the Neighbouring Nations did about Nine years after by way of Expedient propose a limited Fishing instead thereof For thus I find it in a Letter from Secretary Naunton to the Lord Carlton English Ambassador at the Hague bearing Date January 21th 1618. He acquaints him how the King had by him the said Secretary desired of the Commissioners of the States then residing at London that they would write to their Superiours to Publish a Placart Prohibiting any their Subjects to Fish within Fourteen Miles of His Majesties Coasts that Year or any time after until Order be taken by Commissioners authorized on both sides for a final setling of the main Business And the said Ambassador was Commanded to make the like Instance and Declaration to the States General in the Name of his Master I am apt to believe this Distance of Fourteen Miles was the rather pitch'd upon as the regulated Measure which had been agreed upon betwixt the Commissioners of both Kingdoms in the 2d of the King as I said before I have done with the Authorities and for the better Elucidation of what I have said shall briefly sum it up into a fictitious Article supposed to be made betwixt England and Holland TO Maintain a due Distinction betwixt Natives and Foreigners in Fishing upon the Coasts of their respective Sovereigns And to prevent the manifold Inconveniences which occasionally arise by a promiscuous and unlimited Fishing 'T is mutually Covenanted Concluded and Agreed That the People and Subjects of the United Netherlands shall henceforth abstain from Fishing within any the Rivers Fryths Havens or Bays of Great Britain and Ireland or within the Distance of _____ Leagues from any Point of Land thereof or of any the Isles thereto belonging under the Penalty and Forfeiture of all the Fish that shall be found Aboard any Vessel doing to the contrary and of all the Nets Vtensils and other Instruments of Fishing The like Distances and under the same Penalties to be kept and observed by the Subjects of His Majesty of Great Britain and Ireland from any of the Coasts belonging to the United Netherlands But beyond those Precincts and Limits That the People and Subjects on both Sides be at freedom to use and exercise Fishing where they please without asking or taking Licences or safe Conducts for so doing and without the let hindrance or molestation one of another Saving always the Ancient Rights of the Crown of England and that nothing herein contained be interpreted or extended to any Diminution or Impeachment thereof But that they remain in the same Force and Vertue as before this Agreement The Article is Penn'd indifferently on both Sides and so much the better because the equality of it is an Argument of its Equity yet I could instance in several benefits which would redound to England from such an Article were it pass'd into an Agreement but they are not proper to be mention'd in this place and therefore I shall here conclude with this brief Apology That what I have written is for the Justice and Honour of the Government the Conservation of the Publick Peace the Maintenance of an inviolable Amity with our Allies and is most humbly submitted to better informed Judgments ERRATA Page 25. Line 3. read 1599. FINIS
Licensed and Entered according to Order OBSERVATIONS CONCERNING THE DOMINION AND SOVEREIGNTY OF THE SEAS BEING An ABSTRACT of the MARINE AFFAIRS of England By Sir PHILIP MEDOWS Knight In the SAVOY Printed by Edw. Jones and sold by Samuel Lourdes against Exeter Change in the Strand and by Edward Jones in the Savoy 1689. TO THE READER THE Dominion of the Sea as 't is most apt to be made the fair Colour and specious Pretence to a War betwixt England and Holland when the Real Causes of such War are hidden and remote so nothing will so effectually preserve a lasting Union between Them by hindering the Root of Discord from growing again as a true Knowledge and right Understanding of that Matter About which there are many Traditional Mistakes and Popular Errors too currant among Vs and such as are not of a simple and innocent Nature but very dangerous and of evil Consequence The Consideration whereof gave the first occasion to the following Discourse which was Composed several Years since was Read and Presented to His late Majesty King Charles the Second and well accepted by Him and has since remained a Manuscript in the hands of several Persons of Quality And though it might receive a new Turn and Air more accommodate to the Present State of things and though the Time when it was written the Person for whom and the Niceness of the Subject it self obliged the Author to more of Caution and Reserve than perhaps would now be needful yet He was not willing to make any Alterations in it chusing rather to speak the Language of Truth than of Times for what was once True is always so though not always equally fit to be made Publick But surely now if ever 't is seasonable to remove all Obstacles and Impediments out of the way of a good Understanding between the two Nations when their most intimate Union and Conjunction is not only as at other Times highly expedient but absolutely necessary THE PREFACE SHEWING THE Author's Design THE following Discourse may possibly upon a slight and superficial view seem to have some tendency towards the diminution of the Rights of England and consequently the enlargement of those of other Governments but upon a serious and deliberate Perusal there will not appear any just Ground for such Imputation 'T is doubtless very commendable in a Subject if he can with sound Judgment and convincing Reason advance the Pretensions of his Sovereign amongst Foreign Nations If it be the part of a good Judge Ampliare Curiam t is much more of a good Subject Ampliare Coronam For we all shine in the Glory of the Crown that is over us and even private persons have something of Lustre reflected on them from the Honour and Grandeur of the Monarchy under which they live Upon which account Mr. Selden has excellently well deserv'd of the Publick by heightning the Sea-Sovereignty of the Crown of England in his Learned Book entituled Mare Clausum a Treatise so comprehensive of what can be said on that Argument that he who should now write of the same would certainly incur the old Censure of writing an Iliad after Homer But if all the Claims and Pretensions of the Crown of England supported by the Authorities and Allegations produced in that Book shall be vouch'd as the proper Standard and Measure of Right and Wrong betwixt Us and other Nations if the Controverting thereof by Them shall be esteemed by Us as an Invasion and Usurpation and consequently the just cause and foundation of a War If what is well written must be fought for too not being to be gain'd but by a longer Tool than a Pen the King of England will unavoidably be cast upon this haâ—d Dilemma either of being involved in endless and dangerous Quarrels with all his Neighbours abroad or of having his Honour and Reputation prostituted at home as tamely suffering the best Jewels of his Crown to be ravished from it and the Regalities thereof transmitted to him from his most noble Progenitors to be usurp'd by Foreigners Nor does the Mischief cease here for in case he should at any time enter into a War for the more vigorous asserting and maintaining those Pretensions and they not be included in the Terms and Conditions of the following Peace the Inference will be this That he was so far worsted in the War as to be constrained to buy a Peace if not by a total abandoning of them yet at least by a temporary Recession from those Pretensions Let me add one Consideration more If a War betwixt England and any other Kingdom or State be grounded and stated upon a Sea-Dominion by help of this Advantage an Enemy will gain the Weather-gage of us and derive from it a considerable Benefit to himself Hoc Ithacus velit A Dutch-man will desire no better For by this means we shall disoblige and disaffect all our Neighbours to our Cause and Quarrel at such a time when we most need their Friendship and Assistance This will awaken Fears and Jealousies and strongly alarm them to an early securing of their own Navigation and Commerce against those who would impropriate the Seas They will not so much regard the Justice of our Cause as the Consequents of our Success and will be sure to range themselves with Heart or Hand or both as occasion shall require on that side to which they shall be invited by a common and complicate Interest It will not be a War betwixt this Prince and That betwixt Holland and England but betwixt the Continent and an Island and the Question will be briefly this Whether the Island shall have the Sea to her self or whether the Continent shall have share with her As this is consonant and agreeable to Reason to suppose that it will be so so 't is verified by Experience that in Fact it has been so We need look back no farther than the Year 1665. England was then in open War with Holland and as previous thereto the Parliament granted a Royal Aid the end whereof is publickly declared in the Preamble of the Act An. 16 17 Car. II. viz. To equip and set out to Sea a Royal Navy for the Preservation of His Majesties ancient and undoubted Sovereignty and Dominion in the Seas This was exactly calculated for the Meridian of England it serv'd to inspire our Captains and Officers with Honour to animate our Seamen with Courage to dispose the whole Body of the People with Chearfulness and Unanimity to undergo so mighty a Supply answerable to the Greatness of the Undertaking But it serv'd not to so good Effects beyond Sea as soon appeared for the Balance of Success had no sooner inclined to England by that signal Victory obtain'd under the happy Conduct of His then Royal Highness over the Dutch Fleet An. 1665. commanded by Lieutenant-Admiral Opdam but France stood over to Holland Denmark was following and had the War continued and the Series of Success not been interrupted
other Crowns as if no Crown had Ligeance at Sea but that of England only or as if no Foreigner aboard his own Vessel within any the four Seas were within the Ligeance of his own natural Sovereign for this is manifestly repugnant to daily Fact and Experience as we shall see anon when I come to the Question of Fact. As to that other Expression of the Seas Co. in Constaâ—â— Case ut supra being parcel of the Crown of England the forementioned Author in the place before cited expounds his meaning to be That 't is parcel of the Inheritance of the Crown of England Thus Jetsam Flotsam and Lagan appertain to the King by his Prerogative Goods thrown over-board to lighten a Ship in distress by Weather are called Jetsam Goods of a wreck'd Ship floating upon the Waters are call'd Flotsam Goods sunk with a Cork or Buoy tied to them to direct to the place are called Lagan or Ligan All these Goods if the Ship perishes and no Owner can be proved belong to the King in right of his Crown as treasure trove and estrais at Land do and all Derelicts whose Property is lost the Law adjudges them to the King as Owner paramount Also Royal Fishes Co. Rep. 7. Case de Swans f. 16. as Whales Sturgeons c. taken by the King's Subjects on the Seas of England appertain to the King by his Prerogative but no mention made in any of our Law-Books of an Appropriate Fishing exclusive of the People and Subjects of other Princes and States I have mentioned these Passages which occur in the Books of our Municipal Laws because though of excellent use and undeniable verity when fitly applied to what they are design'd and intended yet if misapplied to the Case of the Dominion of the 4 Seas as it stands betwixt England and other Nations they may and do occasion Error and Mistake Those Books handle Cases betwixt Subject and Subject and sometimes betwixt Crown and Subject but not betwixt Crown and Crown I mean betwixt England and other Kingdoms Matters of this Nature must be look'd for in the publick Treaties and Transactions of State betwixt our Kings and foreign Princes or in a long peaceable Possession which we call Prescription and these I shall examine by and by Thus far I have endeavoured to clear the true Notion of Sea-Dominion neither extending it to impeach the free Navigation and Commerce of peaceable Traders due to them of natural Right and by the Law of Nations notwithstanding such Dominion Nor yet making it a Verbal Notion only consisting in words and forms of Speech without any real Fruit and Effect but have instanced in three weighty things as the inseparable Incidents of it I should now proceed to the Matter of Fact but forasmuch as some without Examination take it for granted that the accustomed Salutation at Sea by the Flag and Topsail is an Act of Recognition and Acknowledgment of the Sovereign Dominion of the Sea inherent in that Prince to whom such Salutation is performed I shall crave leave to examine this in the first place CHAP. III. What the Salutation at Sea by the Flag and Topsail signifies and whether it has any Relation to the Dominion of it THE Salutation at Sea by the Flag and Topsail was never Covenanted in any the publick Treaties betwixt England and other Nations but in those with the United Netherlands only And never in any of them till the year 1654. And I am inclinable to believe that there were particular Reasons why it was then covenanted partly because at that time the Royal Dignity of England was debased and disguised under the obscurer Name of a Protectorat and they who had not refused it to an anciently Crowned Head might make some scruple to do it to a new Republick And partly because that War began upon a Dispute for the Honour of the Flag I cannot say it was the sole Cause of the War but it was the first occasion of it For whilest Blake was in Dover Road with the English Fleet Tromp with double the number of Ships but not equal in goodness stood over from the Coast of Calice directly towards him and came up close with him with his Flag alost Jacks and Pâ—ndants slying and all the Bravery he could display May 1652. Blake was too stout to brook the Affront and so in plain English the two Generals sell together by the Ears neither of them knowing how soon he might be called to a severe accompt by his Superiours for what he had done But they justified themselves by casting the blame one upon the other and thus the Servants Quarrel soon became the Masters and both Nations engaged in a sierce War Which ended in 165â— and in the 13th Article of the Preaty of Peace then conâ—luded to prevent the like Disputes for the suture it was Covenanted That the Ships of the United Provinces as well thâ—se siâ—â—ed for Wâ—r as others which hould meet in the British Seas any the 〈◊〉 of War of England should shrike their Flag and lowâ—r their Tepsail in such manner as had been any time practised 〈◊〉 under any former Government But whereas some think that this was prejudicial to England to take that by Coveâ—ant which they held before by prescripâ—ion I am not so clear in that Opinion For what stood before upon the soot of Courtesy or of Custom at the best was now confirmed by a supervening Contrast and passed into a National Law founded upon mutual Consent And from the Treaty in 165â— it passed into that made at Westminster by His late Majesty in 1662 and from thence into that made at Breda in 1667 in which as in the former the Flag and Topsail are expresly covenanted for in the British Seas But by a later Treaty viz. 1673. instead of the British Seas there is an enlargement to the Seas betwixt Cape Finisterre to the middle point of the Land Van Staten in Norwey Here 't is to be observed that in the forementioned Treaties the Salutation by the Flag and Topsail is no where said to be an acknowledgment of the Soveraignty of the Crown of England in and over the British Seas nor so much as intimated or implied but on the contrary as it were on purpose to prevent such a Construstion 't is expresly said to be a Respect The words of the Treaty 1673 are thâ—se In acknowledgment of the King of Great Britain 's Right to have his Flag respected They i. e. the Dutch shall strike their Flag and lower their Topsail in the same manner and with the same respect as hath at any time or in any place been formerly practised 'T is true it has been offered at to make this Respect pass into an Acknowledgment of Sovereignty but it was but an Offer and so vanish'd for in the Project or Concept of 27 Articles delivered in the year 165â— by the then English Commissioners to the Dutch Ambassadors in the 15th Article it was