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.

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 in∣structed. 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 〈1 page duplicate〉〈1 page duplicate〉

〈1 page duplicate〉〈1 page duplicate〉

(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 a 1.1 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 Te∣stimonies 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 Of∣fice so noted in the Margin, that thereby you may know immediately where to finde them. But som of these Records (that are very frequently ci∣ted) 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 be∣twixt 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 Parl••∣mentariorum, Rotulorum Franciae, Vasco∣niae, 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 ex∣actly to consult the Original of any testimonie thence alleged, they might, when the Places are so described, the more conveniently do it them∣selvs at their own leasure, if present, or, if ab∣sent, obtein it by the assistance of friends. For, the Record-keepers (who have a special care to preserv them safely) do usually give admit∣tance, at seasonable hours, to all that pleas to consult them, and have them so placed (as b 1.2 Ju∣stinian commanded concerning the Records of the Empire) 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, that they may easily bee found by them that search.

As to what concern's the aforesaid circum∣stances of Sea-Dominion, whereas there are two Propositions here (so far as the term may bee born in things of a civil nature) made evi∣dent; 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 Em∣pire; 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 sub∣servient 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 c 1.3 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 dif∣ference 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 d 1.4 hee, would have the regi∣ment of Sea and Land bee in thy power. There are other Passages of the same kinde in antient Authors, whereby the Domi∣nion 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 ef∣fects or causes of the Dominion of this should bee different from that of the o∣ther. But this, I suppose, is sufficiently manifest to the more intelligent sort of men, without any Advertisement; though it bee neces∣sarie for such as too rashly, without any regard

had to the interposition of Leagues and Treaties, Agreement, or Law, dare boldly affirm som∣times, that the caus of Sea-Dominion con∣sist's onely in the strength of powerful Fleets, somtimes also of such as belong to e 1.5 Pirates; but the effect in restraining all others simply and perpetually.

But the Title of the Book need's a defence al∣so among som, whose palate I hear it doth not pleas very well. They would not have, forsooth, the Mare Clausum here handled, as an asser∣tion 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 Navigati∣on. Every man know's, that from the third of the Ides of f 1.6 November until the sixt of the Ides of March, or betwixt som other g 1.7 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 Sum∣mer-season, it was called Apertum Open, that is to say, more apt and convenient for shipping. According to which sens it was said by h 1.8 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 reprove∣able. 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 spe∣cial Right supervening, hee may lawfully re∣strain 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 un∣navigable by the Law of Nature, as saith Ve∣getius. 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 se∣parated 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 shut∣ting, as wee say de Januis oculisve clausis of gates or one's eies beeing shut, clauso ag∣mine, or as it is in that of i 1.9 Lucan,▪

Brachia nec licuit vasto jactare Pro∣fundo; Sed Clauso periere Mari.—

(which is spoken of the Seamen's beeing co∣ver'd with the keel of their ship turned upward) but also it very often signifie's that which is con∣sequent 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 k 1.10 Vir∣gil to Jupiter;

Quid Tro••s potuere? quibus tot funera passis Cunctus ob Italiam Terrarum Claudi∣ditur Orbis.

Clauditur Orbis, the World shut; that is to say a free use of the world is forbidden them, or not permitted. And l 1.11 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 m 1.12 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, Ceria∣lis plead's to the Treveri and Lingones. Ex∣cept 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 Clau∣súmve, Nothing is separate or shut. Many other passages there are of that kinde. Plinie also saith of the Seas themselvs, n 1.13 Interiora Maria Clauduntur ut portu, the inner Seas are shut as in a Haven. And the same Author in o 1.14 another, saith, Mare Tyrrhenum à Lucrino molibus seclusum, the Tyrrhen Sea was secluded or shut apart by Piles from the Lucrine. And p 1.15 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 Empe∣ror, but that they freely used depredation therein. In a word, that which is said by q 1.16 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 r 1.17 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 * 1.18 Centuries in the Assignations of

the antient Romans did so touch one ano∣ther, that it might bee known thereby, how far the right of the possession of particular persons did extend, as you may see in s 1.19 Hy∣genus. 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 eminent Limit like a Mound: But any kinde of ima∣ginarie Line, by streight Lines, crooked windings and Turnings and Angles, hath taken place in the designation of private Domi∣nions, or in the shutting or inclosing of a thing possessed in a civil acception (as it was usual among the Antients in those Fields which were termed Agri Occupatorii and Arci∣finii) as well as any eminent and continued Limit or Mound whatsoëver. From whence it came to pass, that in the Assignations of Colonies, they called those places Clausa and Extraclusa whose Limits ••ere divided onely by such kinde of Lines. t 1.20 Julius Fron∣tinus saith; That Field my bee called Ager extraclusus which lie's within the bordering Line and the Centuries, and therefore ex∣traclusus, becaus it is closed with the border∣ing line beyond the limits. So the Territories,

assigned as well in the Colonies at this day car∣ried into America, as in that prodigious gift of Pope Alexander VI in the former Age, which is bounded by an imaginarie Line from the u 1.21 Artic to the Antarctic Pole, are closed by Lines of Longitude and Latitude drawn through the degrees of Heaven, that they may bee possessed in a private manner. So the Greek Sea, which is within the Cyanean and Che∣lidonian Islands, was by x 1.22 Agreement shut and prohibited by the Athenians to the Persian Emperor. So the Sea flowing about is shut or closed within the compass of the Royal Patri∣monie of the British Empire. Other passages there are every where of the same kinde. But I enlarge my self too much in a thing so mani∣fest. Therefore I forbear to light a Candle to the Sun. Farewel Reader. From the Inner Temple, IV November MDCXXXV.

Notes

• a 1.1

  Marcellus, l. 9. ff. tit. de Probati∣onibus.
• b 1.2

  Novel Con∣stit. 15. cap. 5. § 2.
• c 1.3

  Seneca in Mede••, Act. 2.
• d 1.4

  Prologo.
• e 1.5

  Videsis Lud. Servin. in placit. tom. 2. pag. 260.
• f 1.6

  Vegetius, de Re Mili∣tari, lib. 4. cap 39.
• g 1.7

  l. 3. C. tit. de naufra∣giis, & l. 3. tit ••od. in Cod. Theo∣dosiano; Jul Ferret. de R. Nava∣li, lib. 11. § 2. & 3.
• h 1.8

  Ad Quin∣ctum Fra∣trem, lib. 2. Epist. 5.
• i 1.9

  Pharsal. 3.
• k 1.10

  AEneid. 1.
• l 1.11

  Lib. 4. Eleg. 10.
• m 1.12

  Historiar. 4. ••▪
• n 1.13

  Hist. Nat. •• lib. 2. cap. 9.
• o 1.14

  Ibid. lib. 36. cap. 15.
• p 1.15

  Histor. 2.
• q 1.16

  Hexaemer. lib. 5. ca. 10.
• r 1.17

  De Re Rustica, lib. 8. cap. 16.
• * 1.18

  A Cen∣turie 2•••• Ac••••s
• s 1.19

  Lib. de Li∣mitibus Constituen∣dis.
• t 1.20

  Lib. de Li∣mitibus Agrorum.
• u 1.21

  Laërtius Cherubi∣nus, Bullar. ••om. 1. pag. 393. Hiero∣nym. de Monte Brix∣iano, lib. de sinious re∣gundis, cap. 7. ••8.
• x 1.22

  Plutarch. vitâ Cimo∣nis.