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

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that is Of the Superioritie or Soveraigntie of the Sea of England and the right of the Office of Admiraltie in the same as it is also in the said agreement between the King and the Earl of Flanders Also in one of the Libels to those words is added retinendis confirmandis All beeing very plainly written in the usual Character of that Age whereunto the matter relate's And there can bee no scruple touching the realitie and truth of them to any one that seeth them who is but a little acquainted with the antient writing and such kinde of Records I gave you the whole sens yea and partly the words before but now have thought fit to set down an entire Copie of the Libel as it was written at that time in the French or Norman Tongue which run's after this manner A vous Seigneurs Auditours Deputez per les Rois d' Engleterre de France a redresser les dammages faits as gentz de lour Roiaulmes des altres terres subgitz a leur seignuries per mier per terre en temps de Pees Trewes monstrent les Procurors des Praelatz et Nobles del Admiral de la mier d' Engleterre des Comminalties des Citties des Villes des Marchaunz Mariners Messagiers Peleringes de tous autres du dit Roiaulme d' Engleterre des autres terres subgits a in segnurie du dit Roy d' Engletterre d' aillours si comme de la Marine de Genue Cateloigne Espaigne Alemaigne Seland Hoyland Frise Denemarch Norway de plusours autres lieux del Empire que come LES ROYES D' ENGLETERRE PAR RAISON DU DIT ROYALME DU TEMPS D' ON T IL NY AD MEMOIRED DU CONTRARIE EUSSENT ESTE EN PAISIBLE POSSESSION DE LA SOVUEREIGNE SEIGNURIE DE LA MIER D' ENGLEIERRE ET DES ISLES ESTEAUNS EN YCELLE par ordinance establisement des lois estatutes defenses d armes des vesseaux autrement garnies que vesseaux de Marchandise et de seurté prendre et savegarde doner en tous cas que mestier serra et par ordinance de tous autres faits necessaries a la garde des pees droiture et equite entre toute manere des gentz taunt d' autre seignurie come leur propre par illeque's passanz et par soveraigne guarde et tote manere de conisance et Justice haute et basse sur les dites lois estatuts ordinances et defenses et par toutz aultres faitz queux à le governement de soveraigne seignurie appertenir purront es lieux avant ditz Et A. de B. Admirall de la dite mire deputez per le Roy de Engleterre et touz les autres Admiralls per meisme celui Roy d' Angleterre et ses Auncestres jadis Rois d' Engleterre eussent este in paisible possession de la dite soverein garde ove la conisance et Justice et toutz les aultres apertenances avantdites forspris en cas d' appell et de querele fait de eux à lour sovereigns Roys d' Engleterre de deffault de droit ou de malvais juggement et especialment par empechement metere et Justice faire seurte prendre de la pees de toute manere des gentz usaunts armes en la dite mier uo menans niefs aultrement apparallez ou garniez que n' appartenoit au nief Marchande et en toutz aultres points en queux home peut aver reasonable cause de suspection vers eaux de robberie ou des autres mesfaits Et come les Maistres des Neifs du dit Royalme d'Engleterre en absence des dits Admiralls eussent este en paisible possession de conustre et jugger des touz faicts en la dite mire entre toute manere des gentz solon● les lois estatuts et les defenses et Custumes Et come en le pimier article de l' Alliance nadgairs faite entre les dits Roys en les traitz sur la darrain pees de Paris soient comprises les paroles que ●ensujent en un cedule annexe à y●este At non in schedulâ annexâ sed in eâdem membranâ descriptum est quod sequitur unde non tam ipsos libellos qui cognitoribus edebantur quàm sive formulas eorum archetypas sive exemplaria descripta haec esse conjiciendum fortè est utì etiam ex eo quòd Admiralli Angliae nomen aliter ac per A. de B. non inseratur quae prima elementa non sunt nominis alicujus tunc temporis Angliae Admiralli in sacris Scriniis reperti Primierement il est traict accord entre nous les messagers les procurers susdits en nom des dits Roys que iceux Roys serront l'un à l'autre desores enavant bons vrayes loyaux amys eydans contre tout home sauve l' Esglise de Rome en tiele manner que si ascun ou plusieurs quicunques ils fuissent voloient depointier empescher ou troubler les dits royes es franchises es liberties privileges es drois es droitures eu es custumes de eux de leur royalmes q'ils seront bons loyaux amys aydans contre tout home que puisse viure morir à defendre gardir maintenir les franchises les liberties les privileges les droitures et les custumes desusdites Except pur le dit Roy d' Angletterre Monsieur Johan Du● de Braban en Brabant et ses heirs dessendans de lui et de la fille le roy d' Angleterre et excepte pur le dite nostre seigneur ●e roy de France l' excellent Prince Monsiur Aubert Roy d' Alemaigne et ces heirs royes d' Alemaine et Monsieur Johan Count de Henau en Henau Et que l'un ne serra en consail ne en aide ou l' autre perde vie membre estate ou honor Monsieur Reyner Grimbaltz Maistre de la Navie du dit Roy de France In English it run's thus To you our Lords Auditors deputed by the Kings of England and France to redress the wrongs don to the People of their Kingdoms and of other Territories subject to their Dominion by Sea and by Land in time of Peace and Truce The Procurators of the Prelates Nobles and of the Admiral of the Sea of England and of the Commonalties of Cities and Towns and of the Merchants Mariners Messengers Inhabitant strangers and all others belonging to the said Realm of England and the other Territories subject to the Dominion of the said King of England and of others under the Iurisdiction of the same As also of divers other Nations Inhabitants of the Sea-Costs of Genoa Catalonia Spain Almaign Zeland Holland Friesland Denmark and Norway and of divers other places of the Empire do declare That whereas THE KINGS OF ENGLAND By Right OF THE SAID KINGDOM FROM TIME TO TIME WHEREOF
is subject to the protection of Princes Hee asked the Austrians if their pretens were that the Sea should bee left without protection so that any one might do therein well or ill robbing spoiling and making of it un-navigable this would bee so absurd as hee durst answer for them no therefore hee concluded that by a necessarie consequence his Majestie would acknowledg that it should bee kept governed and protected by those unto whom it did appertein by divine disposition which if it were so hee desired to know if it seemed to them a just thing that such should do it with the expence of their own pains charges and bloud or rather that such should contribute towards it who did equally enjoy the benefit To this also hee durst answer for them that they would say the doctrine of S t Paul is too clear in the point not to allege matter of Law that all such who are under government and protection are thereby bound to pay Customs and Contributions And thereupon hee concluded that if the Republick were that Prince to whom it did appertein to govern and protect the Adriatick Sea it followed necessarily that whosoëver Navigate's it ought to bee subject to their laws in the same manner as such are who travel through a Countrie upon the Land From thence hee went on to shew that this Dominion over the Sea from time out of minde did belong to the Republick and thereupon caused to bee read out of an Abstract which hee had taken the Opinions of thirtie Lawyers who from the year 1300 until that present time did speak of the Dominion which the Republick had over the Sea as of a thing most notorious and of which even in their times the minde of man knew not the contrarie som of them affirming that the Republick had no less Dominion over the Sea then over the Citie of Venice others saying that the Adriatick Sea is the Territorie and demeasnes of the said Citie making mention of the lawful power which the Venetians had to establish laws over Navigaon and to impose Customs upon such as navigate those Seas and hee added that hee never read any Lawyer which ever said the contrarie And turning himself to R●picio hee said that if hee would not believ those Writers which testified that the Sea belonged to the Venetians whereof they had possession from time out of minde before the age wherein the Autors lived although they prove it not yet hee could not denie to receiv them for testimonies of such things which they saw and knew in their times and to hold them as witnesses far above all exception beeing famous men and dead so many years ago as they could not bee any waies interessed in the present differences And becaus more then 250 years were past from the time that the first Autors which hee alleged as witnesses hereof did write to the time of those which hee last cited in that behalf by their attestation it was sufficiently proved that for long time more then so many years the Republick hath commanded the Sea and therefore hee could not denie the immoveable possession thereof to the present Afterwards turning himself to the Judges hee praied them that upon the Autorities alleged they would bee pleased to listen unto a short consideration of his which hee did not doubt but would leav in them a full impression of the Truth And first hee desired them to consider that notwithstanding som of the aforesaid cited Autors speak with general words saying the Sea of the Venetians neither declaring the qualitie nor quantitie thereof yet others do specifie it using the name of the Gulf and others with terms more expressive saying the Adriatick Sea which clearly demonstrate's not onely the site but also the quantitie of the Sea possessed and so shewed that those who speak more expressively ought to clear the passages of those who write more generally according to the common precept that with clear places the more obscure are to bee illustrated Hee considered also that the divers manner of speaking of the same Doctors som deriving the Dominion of the Republick over the Sea from Custom som from prescription others from an induced subjection and others from a privilege did arise all out of this reason becaus as they were most assuredly informed of the possession and jurisdiction of the said Seas which they both saw and heard to belong to the Republick from time out of minde so they writing upon that matter not at the instance of any one but of their own proper motions and by way of Doctrine onely each one of them judged it most convenient to express the title of that jurisdiction som with one term som with another without coming to use the sole and true proper term as they would have don if they had been put to write for the interest of any one in which cases the Counsellors are alwaies conformable receiving from the person interested equally the like instructions Hee added that through the varietie of expressing themselvs the truth of the caus was no waies diminished but rather increased as S t Augustine saith speaking of the diversitie which is observed to bee betwixt the holy Evangelists becaus by the divers manner of expression used by the said Writers every one may rest assured that none of them did write nè pagato nè pregato neither paied nor praied In which cases they are never wont to varie from the single form prescribed unto them by the partie interessed but rather hee that shall well examine it shall see amongst the Doctors a wonderful concord in this one point most true that after the declination of the Constantipolitane Empire the Adriatick Sea was found to bee for many years abandoned as also many Islands and Cities of that State in such manner as it remained unguarded and without the protection and government of any Prince and under the jurisdiction of no bodie until by the Venetians who to receiv their livelyhood thereby were constrained to maintain it in freedom and thereupon taking it into their protection got thereby the government and dominion over it in like manner as by the law of Nature and of Nations the Land the Sea and other things which are not under the Dominion of any other com justly unto those who first get the possession of them by which reason the first Empires were founded as well upon the Land as at Sea and daily there are new ones in the same manner formed when any of them either through age or vice becoming weak wanteth force and sink's of it self The which costodie and government of the Sea so acquired the Republick hath daily advanced by the keeping of potent Fleets and greater Armadoes every day then other with the expence of a great deal of Treasure and the profusion of a world of bloud both of their Citizens and Subjects continuing without interruption in sight of all the world the said begun Dominion and custodie overcoming and removing all
their Sea and the Isles But their use of frequent Fithing though som write that the more Northerly Britains did never eat fish may bee collected upon this ground that the better and more Civil sort of them were wont to embellish the Hilts of their Swords with teeth of the bigger Fishes So saith Solinus They which endeavor to bee neat do burnish the hilts of their Swords with the teeth of such great Animals as swim in the Sea becaus they are as white and clear as Ivorie For the men take an extraordinarie pride in the brightness of their Arms. Now I suppose that without an extraordinarie abundance of such kinde of Animals which could not bee caught without great pains and numbers of Fishermen there could not have been matter enough of this kinde to serv for the triming of a most warlike Nation wherein it was a Custom for the Mother of every man-child to put the first Food that hee received into his mouth upon the point of its Father's Sword in token of a warlike disposition And the Mothers usual Blessings were to this effect that their Sons might die no other death then in War and Arms. I know these words of Solinus are commonly taken by Writers as if they had been spoken onely of the Inhabitants of Ireland wherein if I understand any thing they are plainly mistaken The words of Solinus in his Chapter concerning Britain are these The extremitie of the French Shore had been the utmost bound of the world did not the Isle of Britain deserv the name almost of another world For it is stretch't above 800 miles in length if so bee wee measure it as far as the utmost point in the North of Scotland where Ulysses once arrived as appear's by an Altar there with an Inscription upon it in Greek Letters It is encompassed with many considerable Islands whereof Ireland is next to it in bigness It is a barbarous Countrie by reason of the rude behavior of the Inhabitants otherwise of so rank a pasturage that unless Cattel bee somtimes driven from the Pastures they run a hazard by too much feeding There is no Serpent to bee found and but few birds The people are inhospitable and warlike And after a victorie they first take a draught of the bloud of the slain and then besmear their ●…s Right or wrong is all one to them A woman w●●n shee bring 's forth a male put 's its first food upon her ●…nds Sword and stealing it into the little ones mouth 〈…〉 the very point shee pronounceth her blessing according 〈…〉 the Custom of the Nation with this wish That hee may die no other death but in War and Arms. They that endevor 〈…〉 bee neat do burnish the Hilts of their Swords caetera 〈◊〉 it followeth above Hee treat's next of som ●…nds that lie about it as Thanet the Hebrides ●…es and Thule and as to what concern's their manners hee conclude's that Britain is inhabited in ●…t by barbarous people who from their childhood by artificial stripes of divers forms imprint the likeness of several living Creatures up and down their bodies As is sufficiently known out of Caesar and other Writers But now if those words which follow that brief description wherein the first mention of Ireland is made were to bee understood of the Irish not of the people of great Britain then it would follow there that Solinus forgetting what hee had proposed in the very entrance of his Discours passed immediately from great Britain unto Ireland and the neighboring Isles and that hee made not any mention of the Customs of its Inhabitants besides the striping of their skins with divers shapes and this at the latter end of the Chapter which I can not in any case believ Nor is it agreeable to the scope of his discours that Ireland should bee meant in this place as well as great Britain For of Britain hee saith It is encompassed with many considerable Islands whereof Ireland is next to it in bigness It is a barbarous Countrie by reason of the rude behavior of the Inhabitants c. Then this more large description of its manners and Customs which immediately followeth is no otherwise joined to the mention of Ireland in the Edition of Delrio and most of the rest which wee have followed in the place before-alleged And who seeth not that the beginning of that description and so what follow 's ought with much more reason to bee referr'd thus to Britain concerning which his purpose is to treat then to Ireland whose name is inserted onely by the way Nor doth that hinder at all which wee read there about Serpents I confess it to bee most true indeed if spoken of Ireland wherein there is no venemous Creature and fals if of Britain But yet even this also hath been believed of our Countrie of Britain and that in the clearer light of learning in time past As appear's not onely by the Books of Cardan de Subtilitate wherein hee denieth that Britain entertain's any such Creature but also out of Sealiger's Exercitations upon him who in like manner affirm's this and spend 's Discours to no purpose to finde out the reasons why Britain hath not any venemous Creatures which is strange indeed since hee wrote so eagerly against the other yea and both of them beeing very famous men and most expert Naturalists lived som time in Britain But errors of this kinde as wee see also in Solinus concerning Birds and Bees are not unusual among Writers And it was a common cours for a Roman Writer to attribute extreme Barbarism as Solinus doth in this place to such forreign Nations as were not in amitie with the Romans Now as to this passage which is found in som Editions It is encompassed with many considerable Islands whereof Ireland is next to it in bigness a barbarous Countrie becaus of the rude behavior of the Inhabitants c. as if the following words did by a continued sens and order relate unto Ireland it beeing indeed contrarie to the truth of som antient Copies and the most approved Editions arose I think upon this ground becaus it was falsly supposed by the vulgar that Ireland alone is treated of in som following Lines Notwithstanding even so also those words which follow the word bigness may as well and ought to refer unto Britain not unto Ireland Moreover also Tacitus saith expresly of the Irish of that Age The men in their dispositions and habits do not differ much from Britain But now that wee may return unto that trimming which was made of Fishes teeth Auxiliaries were wont as Caesar saith to bee supplied out of Britain in almost all those wars that the Gauls mainteined against the Romans And therefore it must bee said either that the Britains were for the most part an abject savage people yea and a dull slothful Generation which appear's to bee most fals or els it must bee conceived that the
all the Shipping together into one place from all parts to maintein the afore-said fight as Caesar saith expressly Therefore if the British Navie were called forth to their assistance as t is probable it was then questionless it was all lost before Caesar's arrival For the whole strength and Forces of the Veneti perished in that Sea fight Moreover also Peter Ramus speaking of that great tempest whereby Caesar's Ships were scatter'd up and down in this Sea with great hazard saith The Sea raised this Tempest as it were revenging the British bounds and disdaining to bear a new and strange Lord. As if hee had said that the Bounds of the British Empire were in the very Sea and the Sea it self angrie that it should bee transferr'd into the hands of any other Lord. But as to that which wee finde in a certain Panegyrist touching the time of Julius Caesar that Britain was not arm'd at that time with any Shipping fit for War by Sea it was spoken either in a Rhetorical way onely and highly to magnifie that Victorie of the Emperor Constantius Chlorus whereby having slain C. Allectus who had invaded Britain hee reduced the Island together with the Sea as is shewn hereafter or els it is to bee taken onely of the very time of Caesar's arrival Otherwise it is expressly contrarie to those reasons here alleged and grounded upon good Autors and therefore not to bee admitted for Truth But after that the Island was reduced under the Roman power doubtless the Britains were prohibited from having any Ships of war that they might bee the better held in obedience Which is the reason why Writers afterwards make mention of such onely as were made of Twigs That the Britains were Lords of the Northern Sea before they were subdued by the Romans And that the Sea and the Land made one entire Bodie of the British Empire CHAP. III. THat the Britains were Lords also at that time of the Northern or Deucalidonian Sea is a thing proved by sufficient Testimonie They called this part of the Sea Mario sui secretum The secret or Closet of their Sea Tacitus relating the Navigation of Julius Agricola into this part saith the Britains as it was understood by the Prisoners were amazed at the sight of his Navie as if upon thi● opening the Closet or secret part of their Sea there remained no farther refuge in case they were overcom And in that stout Oration of Galgacus the Caledonian wherein hee encouraged his Souldiers to fight Now saith hee the bound of Britain is laid open The secret part of their Sea or their Sea-Territorie in the North they called their bound Moreover saith the same Galgacus beyond us there is no Land and not the least securitie at Sea the Roman Navie beeing at hand giving them to understand that the Dominion hereof was to bee defended as was the Island as a thing acquired before Add also that among the Writers of that Age vincula dare Oceano and to subdue the Britains signified one and the same thing So that place of Lucan is to bee understood where hee reckon's what pompous Shew● and Triumphs might have usher'd Caesar into Rome had hee returned onely with Conquest over the Gauls and the North ut vincula Rheno Oceanóque daret celsos ut Gallia currus Nobilis flavis sequeretur mista Britannis What Stories had hee brought how the vast Main And Rhine hee by his Conquests did restrain The noble Gauls and yellow Britains tread Behind his loftie Chariot beeing led But for all that our Sea was not as yet subdued by the Romans Julius Caesar onely shewed the Island rather then deliver'd it into the hands of Posteritie neither was any part of it reduced under the Roman power before the Emperor Claudius his time nor the Soveraigntie of the Sea transferr'd into the hands of any other And although in Augustus his time Drusus Germanicus sailed through that part of the Sea which lie's betwixt the entrance of the River Rhine and Denmark and subdued the Fri●slanders nevertheless not any part of the Sea was added by that Victorie to the Roman Empire for the Britains held it all in possession they beeing not yet fully subdued Nor is it unworthie observation here that C. Caligula beeing near Britain and coming out of Germanie to the Coasts on the other side of our Sea as if saith Dio hee intended to make war in Britain and having drawn up his Armie made readie all his slings and other warlick Engines and given the signal or word for Battel no man knowing or imagining what his intent was hee on a sudden commanded them to fall a gathering of Cockles and fill their Laps and Helmets Then saying these Spoils of the Sea belong'd to the Capitol and Mount Palatin hee vaunted as if hee had subdued the Ocean it self At last for a token or Trophie of this mock-victorie hee rear'd a very lofty Tower hard by out of which as if it had been another Pharos Lights were hung forth by night for the direction of Sea men in their Courses the ruins whereof beeing not yet wholly demolished but for the most part overwhelm'd with water near Cattwiick and very seldom discover'd it is called by the Hollanders that dwell near it Britenhuis and L'Huis te Briten that is the British Hous or the British Tower Certain it is out of Suetonius that a Tower was raised by Caligula in that place yea and it is mainteined by divers learned men as Hadrianus Junius the Hollander William Camden our Countriman and Richardus Vitus that these were the ruins of the same Tower though others denie it as Ortelius Gotzius and Cluverius And they make a doubt both about the Original of the name and also its signification concerning which wee dispute not But am extremely mis-taken if Caligula by this Action of his did not so much neglect the conquest of Britain it self which hee hoped or at least thought of as seem to sport himself with the conceit of having found out so compendious a way of Victorie Hee carried the matter as if hee had had an intent to subdue Britain and supposed those Cockles which hee called Spoils of the Sea to bee Tokens of Sea-Dominion and as a most sure pledg of the British Empire Moreover it is upon good ground to bee conceived that there was one entire Territorie of the British Empire made up of the Land or continent of great Britain with the Isles lying about it and the Seas flowing between in their respective Channels which may bee collected both from that one single name of British comprehending an entire Bodie of such a kinde of Territorie as was shewn you before and also from hence that the very Sea it self is by Albategnius and som others described by the name of Britain in the same manner as the Island when as hee placeth Thule an Isle of the Sea in Britain That is to