An abridgement of all sea-lavves Gathered forth of all writings and monuments, which are to be found among any people or nation, upon the coasts of the great Ocean and Mediterranean Sea. And specially ordered and disposed for the use and benefit of all benevolent sea-farers, within his Majesties dominions of Great Brittain, Ireland, and the adjacent isles thereof. By William Welvvod, professor of the civill lawe.

TIT. XXVII.

Of the Community and Propri∣ety of the Seas.

HAving of late seene and perused a very learned, but a subtle Treatise (incerto authore) in∣tituled Mare liberum, contai∣ning in effect a plaine Pro∣clamation of a liberty com∣mon for all of all Nations, to fish indifferently on all kinde of Seas, and conse∣quently, a turning of un∣doubted

proprieties to a community; as the fift chap∣ter thereof at large discovers (wherein the unknowne Authour protesteth, that he may for his warrant use the authority and words of such old Writers as have beene esteemed most mighty in the understanding and judging upon the naturall condition of things here below) and the Discourse, being co∣vered with the maintenance of a liberty to saile to the Indians; I thought alwaies expedient by occasion of this argument of fishing con∣tained in my former Title,

by Gods grace, to occurre thereunto; as manifestly di∣rect, at least (in my weake sight) tending to the preju∣dice of my most worthy Prince and his subjects; and that not onely by arguments derived from the first verity of the nature of things, but also from his owne proofs, warrants, and their Au∣thors.

And yet before I goe any further, I cannot passe the Authour his ridiculous pre∣tence, in both Epistle and beginning of his Discourse; as for a liberty onely to saile on Seas: a thing farre

off from all controversie, at least upon the Ocean; speci∣ally, since passage upon land through all Regions Chri∣stian, is this day so indiffe∣rently permitted to all of all Nations, even to Turkes, Iewes, Pagans, not being professed enemies; and ther∣fore much lesse to be restrai∣ned on Sea in all respects. So that I cannot but perswade both my selfe, and other loy∣all subjects, that the said pre∣tence is but a very pretence; and so much the more to be suspected as a drift against our undoubted right and propriety of fishing on this

side the Seas.

Now remembring the first ground, whereby the Authour would make Mare I••herum, to be a position for∣tified by the opinions and sayings of some old Poets, Orators, Philosophers, and (wrested) Iurisconsults, that Land and Sea, by the first condition of nature, hath beene and should be com∣mon to all, and proper to none: against this I minde to use no other reason, but a simple and orderly reciting of the words of the holy Spi∣rit, concerning that first con∣dition naturall of Land and

Sea from the very beginning; at which time, God having made and so carefully to∣ward man disposed the foure Elements, two to swimme above his head, and two to lye under his feet: that is to say, the Earth and Water, both wonderfully for that effect ordered to the up-ma∣king of one and a perfect Globe, for their more mutu∣all service to mans use: accor∣ding to this, immediately af∣ter the creation, God saith to man,a 1.1 Subdue the earth, and rule over the fish: which could not be, but by a subdu∣ing of the waters also.

And againe, after the Floud, God saith, Replenish the earth:b 1.2 and for the bet∣ter performance hereof, God in his justice against the building of Babylon, scat∣tred man-kinde over all the face of the earth;c 1.3 there∣fore is it that Moses saith,d 1.4 These are the Iles of the Nati∣ons divided in their lands. So that hereby is evident that things here done, are not so naturally too common; sith God the author of na∣ture, is also as well author of the division, as of the cōposi∣tion: and yet howsoeuer,

in his justice as is said, yet in his mercy also and indulgent care, for the welfare and peace of mankinde. For those are sentences both vul∣gar and sure, set downe by the Romane Iurisconsults,e 1.5 Communio parit discordiam. Quod communiter possidetur, vitio naturali negligitur. Ha∣bet communio rerum gerenda∣rum difficultatem.f 1.6

Afterward, the earth, by the infinite multiplication of mankinde, being largely re∣plenished, and therefore of necessity thus divided▪ and things upon the earth not sufficient for the necessaries

and desires of man in every region, followed of force the use of trading vpon the seas; not onely for the ruling of the fish therein, according to the commandement given by the Creator at the begin∣ning, but also for transpor∣ting of things necessary for the use of man. For the which, and other causes a∣bove mentioned, the waters became divisible, and requi∣ring a partition in like man∣ner with the earth; accor∣ding to that of Baldus: Vide∣mus, de iure gentium, in mare esse regna distincta, sicut in ter∣ra arida.g 1.7

And thus farre have we learned, concerning the com∣munity and propriety of land and sea, by him who is the great Creator and authour of all; and therefore of grea∣ter authority and understan∣ding then all the Grecian and Romane Writers, Poets, Orators, Philosophers, and Iurisconsults, who-so-ever famous: whom the author of Mare liberum protests he may use and leane ••o without of∣fence.

Now, sith the weaknesse of this his first and principal ground doth this way ap∣peare; let any man judge

upon the truth of that which Cicero (his man) sets down,g 1.8 Sunt privata natur a nulla; and likewise of all other his au∣thors their opinions, for the fortification of an originall community of things.

It followeth to examine the chiefe warrants of Mare liberum; and to consider how farre they may beare forth to a common liberty for fi∣shing, on all seas indifferent∣ly.

The author cites Vlpian, a renowned Iurisconsult in∣deed, and Martian their sen∣tences; alleagingh 1.9 that Vlpian should say,i 1.10 Ante

aedes meas aut praetorium ut pis∣cari aliquem prohibeam, usur∣patum quidem est, sed nullo iu∣re, adeo ut contempta ea usur∣patione, iniuriarum agere po∣test. sz. prohibitus. That is to say, if I should forbid any man to fish before my house, he may mis-know such an u∣surpation, and intend action of injury against me, for a wrongfull staying him from fishing there.

But as I read,k 1.11 Vlpian his words are thus; Sunt qui pu∣tant iniuriarum me agere posse: that is, there are men who thinke, I may intend action, &c. It is true also, that Mar∣tian

saith, Nemo ad littus pis∣candi causa accedere prohibe∣tur. l 1.12 And yet neither of these two Iurisconsults, pro∣nounceth absolutely in these cases, but upon another high∣er warrant: and therefore Vlpian addes, Saepissime rescrip∣tum est n••c piscari, &c. prohi∣bere posse.m 1.13 That is, it is by writ most often answe∣red, &c. Which Martian ex∣pounds most clearely, when he saith, Nemo igitur ad littus maris piscandi causa accedere prohibetur; and subjoynes his warrant, Id{que} Divus Pius piscatoribus Formianis re∣scripsit: n 1.14 that is, No man

is forbidden to come to the sea side and fish; as the Em∣perour Divus Pius did write to the Fishers of Formian. So that you see the Emperours to have been warrants to these Lawyers, and their writ∣ten opinions, concerning the voyage of the sea.

Now, to passe the propri∣ety which hereby we see these Emperours did claime on the seas, I aske first, to whom did the Emperours write such resolutions? was it not to the professed sub∣jects of their owne Empire? and what? even the usage of the seas, and coasts of their

Empire, to be indifferently common to every one of their own subjects: and how? Iure gentium; that is, according to the law kept by all other nations, to every one of their own nation in like cases.

Moreover, albeit these and other Romane Law∣yers pronounce so, concer∣ning the community of the sea-shoare, and coast, that private men may build hou∣ses within the floud-marke, and appropriate them to themselves, according to that which Neratius writes, Quod in littore quis aedificat, eius fit:o 1.15 that is, what

a man builds on shoare, it be∣commeth his owne; yet up∣on this condition, Tamen de∣cretum praetoris adhibendum est ut id facere liceat, saith Pomponius:p 1.16 that is, provi∣ding the Praetor his decree be interponed thereunto; or that the Prince give grant, as Vlpian writes;q 1.17 Vel ut prin∣ceps concedat. As for the rem∣nant of these sorts of war∣rants alledged for Mare libe∣rum, sith they sing all one song for the common use to the people, and propriety to the Prince, if men will but onely marke them; I need not stay further upon them.

So that every man may see both the use of the word commune, and the meaning of Iure gentium among these Lawiers, whereupon this Mare liberum appeares so to be founded, that it cannot be shaken. For, commune, there is nothing else but pub∣lieum, q••asi populicum; signi∣fying a thing common for the usage of any of one sort of people, and not for all of all nations: according to that of Modestinus, Roma commu∣nis patria est.r 1.18

Neither yet doth that word, Iure gentium, meane a∣ny law set downe by com∣mon

consent of all nations; but onely notes the example of the law, or custome of o∣ther nations: as if they would say, the liberty of fishing on our seas, and of other doing there and at shoare, should be common to every one of the Romane Empire, like as the same is common to all of all other nations, on their seas, and their shoares.

Likewise, that of Placen∣tinus; Quod mare sit in nul∣lius bonis, nisi solius dei: that is, GOD is onely Lord of the sea; and so say we with King David, that the land

also is the Lords.s 1.19 But that of Faber,t 1.20 Mare esse in pri∣maevo iure quo omnia erant communia, I need no other∣wise to refute now, than I have done above alrea∣dy.

And these are the Authors and warrants whereupon Mare liberum inferres his conclusion; Demonstra∣tum igit ur nec populo, nec pri∣vato ius aliquod in mare competere posse, quum occupa∣tionem, nec natura, nec publici usus ratio permittat.u 1.21 Which, how it followeth upon the premisses, let men judge; sith neither these

his Authors make for him, neither yet the reason inser∣ted in the conclusion beares out; which is, quum occupa∣tionem nec natura, nec publici usus ratio permittat: that is, neither nature, nor the com∣mon need, suffers the sea to be acquired in property to a∣ny occupation.

For answer, first concer∣ning the nature of the sea, as supposed impossibly occupa∣ble or acquirable; Is this so thought because the sea is not so solid, as is the land, that men may trade thereon, as upon land? or that it is continually flowing to a••d

fro? Surely, that lacke of so∣lidity for man his trading thereon by foot, shall not hinder the solid possession of it, farre lesse the occupation and acquiring, if we will give to the sea, that which the Iu∣risconsults indulgently grant to the land, which also can∣not be denied. Paulus the Iurisconsult saith,x 1.22 Qui fundum possidere velit, non u∣tique omnes glebas eius circum∣ambulet, sed sufficit quamlibet partem eius introire, dum men∣te & cogitatione hac sit ut to∣tum possidere velit usque ad terminum: that is, it is not needfull for him who would

possesse himselfe in any part of the land, to goe about and tread over the same; but it is sufficient to enter-in up∣on any thereof, with a mind to possesse all the rest there∣of, even to the due marches. And what can stay this to be done on sea, as well as on land? And thus farre concer∣ning the solidity.

As for the flowing condi∣tion of the sea, howsoever it be liquid, fluid, and unsta∣ble, in the particles thereof, yet in the whole body, it is not so: because it keepes the prescribed bounds strictly enough,* 1.23 concerning the

chiefe place and limits there∣of.

VVhich discourse, gives us occasion of force to an∣swere to a scoffe cast in by the Author of Mare liberum, concerning the possibility also of marches and limits, for the division of the seas:y 1.24 Mundum dividunt (saith the fore••aid Authour of Mare liberum) non ullis limitibus, aut natura, aut manupositis, ••ed imaginaria quadam linea: quod si recipitur, & Geo∣metrae terras, & Astronomi coelum nobis eripient: that is, they divide the world, not by any marches,

put either by nature, or by the hand of man, but by an imaginary or fantastick line: which kinde of doing being embraced, the Geometers may steale away the earth, and the Astronomers the heavens from us.

It is true, that there are not in every part of the sea Iles sensible (as Gernsey is to Eng∣land in the narrow seas) or sands (as the Washes at the West seas of England) nor rockes, or other eminent and visible markes above water, for the designation of the bounds (or laying-out the limits) of the divisible parts

thereof: but GOD, who is both the distributer and first Author of the diuision and distinction of both land and sea, hath given an understan∣ding heart to man for the same effect, as well as for all other necessary actions wherein he hath to employ himselfe: so that to a very wonder, God hath diversly informed men by the helpes of the Compasse, counting of courses, sounding, and o∣ther waies, to finde forth, and to designe finitum in infinito; so farre as is expedient for the certaine reach & bounds of seas, properly pertaining

to any Prince or people.

Which bounds Bartolusz 1.25 hardily extends and allowes for Princes and people at the sea side, an hundreth miles of sea forth from their coasts, * 1.26 at least; and justly, if they exercise a protection & con∣servacy so far: and this reach is called by the Doctors, Districtus maris, & territori∣um. a 1.27 It is true, Baldusb 1.28 e∣steemeth potestatem, iurisdi∣ctionem & districtum, to be all one.

To conclude then, since Papinian writes in finalibus quaestionibus vetera monumen∣ta sequenda esse;c 1.29 what more

evident monuments for our King his right in the narrow seas, then these Isles of Gern∣sie? &c. And for the Eastern seas, direct from Scotland, what is more antiently no∣torious than that covenant twixt Scottish men and Hol∣landers, concerning the length of their approaching toward Scotland by way of fishing?

And thus farre through oc∣casion of answering to that alleadged impossibility, of acquiring the Sea by occu∣pation, because (as would appeare) of the unsolidity therof, for any foot treading.

It rests to touch the other cause naturall, for that other impossibility, which may be the continuall fluxe and in∣stability of the Sea; in such sort, that it would appeare not aye to be one and the selfe same body, but daily changeable. For answer, I must remember that which the Iurisconsult sets downe so prettily:d 1.30, Suppose (sayes he) a certaine Colledge of Iudges, or a Legion of Soul∣diers, or the particular parts of a Ship, or of a mans bo∣dy, should so continually and often be changed and altred, that none of that first

Colledge or Legion could be found alive, nor yet any part of the Shippe or body could be so certainly demon∣strate, that it might be affir∣med for the very same that it was at the first; yet if that Colledge or ••egion be in number full, and the ship or man whole and able in all the frame, they shall be accoun∣ted and esteemed not to be new, but to be the very same which they were at the be∣ginning: even so, however the sea many waies and hour∣ly changes, in the small parts thereof, by the ordinary rush on land, mixture with other

waters, swelling in it selfe, ex∣halation and backe receipts thereof by raine; yet since the great body of the Sea most constantly keepes the set place prescribed by the Creator, I see not in this re∣spect neither, wherefore the nature of the Sea should not yeeld to occupation and con∣quest. And thus farre concer∣ning Mare liberum his last and great conclusion, against all appropriation thereof by people or Princes. I call it his last great conclusion, be∣cause of other two passing before, whereof the first is this; Mare igitur proprium

alicuius fieri non potest, quia natur a iubet esse commune:e 1.31 and for what reason? Even because Cicero, Virgil, and Plautus have said so. To whom I could also assent concerning the great, huge, and maine body of the sea. His next conclusion is this; Est igitur mare in numero eo∣rum quae in commercio non ••unt, hoc est, quae proprij iuris fieri non possunt:f 1.32 that is, The Sea to be of that order of things, which cannot bee appropriate to any man. His warrants for his conclu∣sion also are the Romane Lawyers, whom I said to be

wrested by Mare liberum; and therefore must shew the same, contrary to his pur∣pose indeed. Martianus,g 1.33 as the Authour of Mare liberum largely grants,h 1.34 saith, that if any private man have him∣selfe alone, by any lawfull space of time sufficient for a prescription, kept and exer∣cised fishing in any ••reeke or nooke of Sea, which they call Diverticulum; hee may forbid all others to fish ther∣in: which Papinianusi 1.35 also confirmeth. The which, as I accept, so I would further demand of him. By what reason should a private man,

who hath no other care nor respect but to himselfe alone, be thus priviledged and pre∣ferred to a Prince? who not for himselfe; but for his peo∣ple also in common, yea and for the safety of all traders passing his coasts, with great charges and care protects and conserveth the Seas nee∣rest unto him: shall not this Prince be acknowledged, at least with the good which that Sea, conserved by him, offers so directly to him? And I pray you say, What lesse authority had Leo than the rest of the Romane Em∣perours, to grant to every

one in particular, having possessions at the Sea side, as much of the ••ea as was nee∣rest against their lands,k 1.36 with the fishings thereof? What then, shall not Princes be equalled, in these cases, with subjects? Or rather, have not all Princes a like right & power within their own precinct and bounds, as these Roman Princes had?

But now to draw neerer to the chiefe point of our pur∣pose, and so to the end there∣of: as I accepted Mare li∣berum his former large graunt, so now also doe I more heartily embrace the

next, which is this; When after these his conclusions, he had said in tanto Mari siquis piscatu arceret, insanae cupidi∣tatis notam non effugeret:l 1.37 he subjoynes according to that of Cicero,m 1.38 Quando sine detrimento suo quis potest alteri communicare in ijs quae sunt occupanti utilia & danti non molesta, quid ni faceret: and subjoynes afterward,n 1.39 Et si quicquam eorum prohibe∣re posset, puta piscaturam, qua dici quodammodo potest pis∣ces exhauriri: that is to say, If the uses of the Seas may bee in any re∣spect forbidden and stayed,

it should be chiefly for the fi∣shing, as by which the fishes may be said to bee exhaust and wasted; which, daily ex∣perience these twenty ye••res past and more, hath decla∣red to be over true: for wher∣as aforetime the white fishes daily abounded even into all the shoares on the Easterne coast of Scotland; now for∣sooth by the neere and daily approaching of the busse Fi∣shers the sholes of fishes are broken, and so farre scattered away from our shores and coasts, that no fish now can be found worthy of any paines and travels; to the im∣pover••shing

of all the sort of our home-fishers, and to the great damage of all the Na∣tion. Whereby, I see at last, the Author of Mare liberum not so addict to serve any mans particular desires, as to answer (forsooth) to his pro∣fession of the lawes, that is, to allow the proper right for every man and nation, and to hurt none; according to the three generall precepts of all lawes, set down by Caius,o 1.40 and after him by ••ribonia∣nus: p 1.41 Honestè vivere; alte∣rum non laedere; & ius suum cuique tribuere: whereof the second tryes and rules the

rest; according to the vulgar saying out of Pomponius,q 1.42 Neminem debere cum alterius damno locupletari: and that of Tryphonius,r 1.43 Ex aliena iactura lucrum haurire non o∣portet. And therefore I would meet him with his deserved courtesie; even to proclaime Mare liberum also: I meane that part of the maine Sea or great Ocean, which is farre removed from the just and due bounds above mentio∣ned, properly pertaining to the neerest Lands of every Nation. Atque ita esto mare vastum liberrimum.

Notes

• a 1.1

  Genes. 1. 28.
• b 1.2

  eod. c. 9. v. 1.
• c 1.3

  eod c. 11. v 8.
• d 1.4

  eod. c. 10 v. 5.
• e 1.5

  Vlp. l qui ne∣que. de reb eor. quisub ••utel.
• f 1.6

  l. pa••er. parag. duluss••••iè de leg. 2.
• g 1.7

  Ad legem 1▪ de rer. divis.
• g 1.8

  1. officior.
• h 1.9

  pagina 25.
• i 1.10

  l. iniuriarum. parag. ult. & parag. si quis de in iur.
• k 1.11

  d. p••rag. si quis.
• l 1.12

  l. 4. de. rer. divis.
• m 1.13

  d. parag. si quis in fin.
• n 1.14

  d. l ••. de rer▪ divis.
• o 1.15

  l. quod in lit∣tore. de aeq. rer. dom.
• p 1.16

  l. quamvis. de acq. rer dom.
• q 1.17

  l. prohibere. parag quod et si. Quod vi aut elam.
• r 1.18

  l. Roma. ad municipal.
• s 1.19

  Psalme.
• t 1.20

  Ad parag. lit∣torum inst. de rer. divis.
• u 1.21

  Pag. 28.
• x 1.22

  In l. possideri. de acquir. poss.
• * 1.23

  Psal. 104. 9.
• y 1.24

  Pag. 38.
• z 1.25

  insect. nullius in tractat. de insula.
• * 1.26

  Per l notio∣nem de verb. Sig.
• a 1.27

  Gloss in c. ubi periculum. pa∣rag. porro. de electionib. lib. 6.
• b 1.28

  m l. si testa∣mentum. de inst. & subst.
• c 1.29

  l. in▪ finalibus. com. divid.
• d 1.30

  In l propon••∣ba••ur. de iud.
• e 1.31

  Pag. 21.
• f 1.32

  Pag. 25.
• g 1.33

  l. si quisquam divers & temp. praescrip.
• h 1.34

  Pag. 24.
• i 1.35

  l. praescriptio de usu cap.
• k 1.36

  Novell. const. 102. 103. & 104.
• l 1.37

  pag. 30.
• m 1.38

  Off. 1.
• n 1.39

  pag. 35.
• o 1.40

  in l. iustitia. de rer. divis.
• p 1.41

  Parag iuris praecepta. de iust. & iur.
• q 1.42

  l. nem•• de reg. iur. & l. 14. de cond. indeb. & l. iu••e. de iure dot.
• r 1.43

  l. rescriptum de distract. pig.