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 Dominion of the Sea, as it belonged to private persons under the Roman Em∣pire, together with that Sanction esta∣blished 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 patrimo∣nie of the State, wherein a private Dominion is proved, no less then in that of particular persons. More∣over, 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 of Citizens, for the conveniencie of larger▪ Fish-ponds, bringing the Sea into their grounds, made it their own, and became Masters thereof with as good a Title as they had to their adjacent Land. There beeing (saith a Varro) two kindes of Fish-ponds, one of Fresh, the other of salt water; the former sort are ordinarie and little worth, such as our Countrie Fish-ponds that are supplied with water by little streames; but those salt∣water-Ponds are to bee found in the possessions of Noble∣men, and are supplied by the Sea as well with Fish as water; yet they yield more delight then profit, the filling of those Ponds beeing commonly the draining of the Owners purs. Now what was this, but to becom proprietaries of the Sea, so far forth as it was derived, or in∣closed in their possessions?

And b Columella, who lived in the time of Clau∣dius, relate's that the Romanes in antient times for the most part used none but in-land Fish-ponds, storing them with Spawners of the larger size; presently adding; Not long after that good husbandrie was laid aside, when the wealth and luxurie of the succeeding age made inclosures of the Ocean and Seas themselvs. And the

yearly Revenue of such Demains, which bordered upon the Sea, was advanced by those Ponds or In∣closures of the Sea as well as by any Lands, Lakes▪ or Vineyards appertaining thereunto. The same Colu∣mella discoursing hereupon, hath this passage, But see∣ing the custom of the times hath so far prevailed, that these things are not onely in use, but have gotten the reputation of magnificent and noble contrivances, wee also, least wee should seem morose and importune reprovers of so long and settled a practice, will show what profit may redound from them to the Lord of the Manor; how hee may rais an incom by the Sea, if having made a purchase of Islands or Lands bordering upon the Sea, hee cannot reap the fruits of the Earth, by reason of that barrenness of the soil which usually is near the Shore. So that wee see the Revenues of a Manor were improved by managing the Sea, as well as Land; and the Possessor was counted Lord of the one no more then of the other.

This usual right of Dominion over the Sea is mentioned also by c S^t Ambrose; For the serving of their prodigious luxurie (saith hee) the Earth by digging of chan∣nels is forced to admit the Ocean, for the making of artificial Islands, and bringing litle Seas into their own possessions. They challenge to themselvs large portions of the Sea by right, and boast that the Fishes, like so many bond-slaves, have lost their former libertie, and are subjected to their service. This Creek of the Sea (saith one) belong's to mee, that to another; Thus great men divide the Elements among themselvs.

For Examples, there are the Fish-ponds of Lucullus; famous for his expensiveness in this kinde: Hee, hav∣ing made way through a Mountain near Naples, inclo∣sed the Sea and became master of those water-courses which d Plutarch call's Sea-Courses and Chases for the

breeding of Fish. Whereupon Pompey the Great, in mer∣riment (saith e Paterculus) was wont to call Lucullus the gowned Xerxes, in regard that by damming up of Chanels and digging down Mountains, ••ee took the Sea into the Land. The same Lucullus (saith f Plinie) digging down a Mountain near Naples at greater charge then hee built his Villa, took an arm of the Sea into his Manor, which gave occasion to Pompey the Great, to call him the gowned Xerxes. The same conceit in Plutarch is attributed to Tubero the Stoick. That concerning Xerxes is ve∣ry famous

g Hoc terrae fiat; hâc Mare, dixit, eat:

Here run the Sea, hee said; There, let firm Land bee made;

When hee commanded the Sea to bee brought round about the Mountain Athos. h And Valerius saith of Caius Sergius Orata, That hee might not have the serving of his palate depend upon the pleasure of Neptune, hee con∣trived Seas of his own, intercepting the waves with his trenches, and so inclosing divers sholes of Fishes with dams, that what tempestuous weather soëver happened, Orata's Table was never unfurnished with varietie of Dishes. The same libertie was used upon the Formian shore by Apollinaris, of whose Fish-pond Martial i speak's,

Si quando Nereus sentit AEoli regnum, Ridet procellas tuta de suo Mensa. Piscina Rhombum pascit, & Lupos vernas.

When winds do Lord it o're the Sea, & fright The Fisher, his Table laugh's at their spight; By its own private store secur'd from need, While captiv'd Pikes and Turbot's Fish∣ponds breed.

All the varietie of Fish which the wider Sea afforded, Apollinaris had readie at hand in his Fish-pond; which was nothing els but the Sea let in from the shore into his possession.

Contracta pisces AEquora sentiunt, Jactis in altum molibus.—

Such dams are cast into the main, The Fish for want of room complain.

So saith Horace: and in another place,

k Caementis licèt occupes Tyrrhenum omne tuis Mare Ponticum.

—though thou thy walls do rais Through all the Tuscan and the Pontick Seas.

And saith Salust; m To what purpose, should I relate those things which cannot seem credible to any, but those who have been eie-witnesses; how Mountains have been removed by severall private persons, and Seas brought into their places? Of this sort, were the Fish-ponds of n Philippus, Hor∣tensius, and others, all made by taking in the Sea. Moreover, wee finde that Soveraigntie and Domi∣nion over the Sea, hath been somtimes conferred by the Patents of Princes. The Emperor Trajan, when hee endowed the Citie of Tharsus with Immunities and Privileges, besides the Territorie of Land lying about, added also a grant of Jurisdiction and Dominion over the river Cydnus and the adjacent Sea, as may bee seen in Dion o Chrysostom. And it is very probable, that the Maritimate rights of Neocesarea p, which Theodorus Balsamon saies, were compiled by the Metropolitan of that Citie, had respect unto the like Original: as also those privileges in the Sea, which the Emperor Com∣nenus

granted to a great number of Monasteries, accord∣ing to the same Author.

The ancient Lawyers also are not silent, as touching the Dominion of particular persons in the Sea. q Paulus, one of greatest note among them, declare's himself ex∣presly thus; Verily, whensoëver a proprietie in som part of the Sea belong's to any person, that person may sue out an inter∣dict of uti possidetis, in case hee bee ••indred from the exercise and enjoyment of his right; becaus this matter concern's a private, not a publick caus; seeing the suit is commenced for the en∣joying of a right which ariseth not from a publick but pri∣vate Title. For, interdicts are proper to bee used in private cases, not in publick. Nothing could have been more plainly spoken, to show, that, beyond all controversie, hee admit's a private Dominion in the Sea, even of single persons. Yea, Ulpian himself, who was so fondly inclined to favor the opinion of a perpetual communitie of the Sea, doth sufficiently acknowledg, that common practice and received custom was for the other part. r 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 fowl∣ing, 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, al∣though 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 subjecti∣on 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 unal∣terable 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 exer∣cise a privilege of Fishing for Tunies, without his permission. Whereupon, s 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 King∣dom; 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 Gero∣nian Farm, as hee himself saith expresly in the same place. But the opinion of Ulpianus for a perpetual com∣munitie of the Sea, was so entertained as authentick by the Lawyers of the Eastern Empire, that there was no 〈1 page duplicate〉〈1 page duplicate〉

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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 t (which be∣fore 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 pri∣vate 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 u 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 Tre∣spass 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, be∣caus 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 ap∣prove'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 man∣ner, had a Title grounded upon a very clear Right. Therefore, saith hee, wee decree that every man possess his vesti∣bula 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 there∣of 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 Ma∣nors, were called 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, Sea-Courts or Entries, nor did this sanction of Leo serv onely for the ratification of former Titles, founded either upon par∣ticular possession, or any other, but ordained in ge∣neral, 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; x 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 with∣out 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 parti∣cular owners to have their Epoches or Pens for fish (which the y later Greeks call T 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉) 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 z three hundred sixtie-five Cubits if so bee the breadth of Land could convenient∣ly permit. And such an equal distance was observ∣ed on both sides, that a direct line from each Epoche to the extremitie of the Vestibulum or Entrie was ex∣tended 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 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, and 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, which may bee translated locarium, for the price which was paid for hire of a Stall, Shop or Farme, is called in a 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 pub∣lick decrees, enacting it, and repealing as unjust what∣soëver 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 un∣der 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.

Notes

• a

  De re Ru∣stica, lib. 3. cap. 1••.
• b

  De re Ru∣sticâ, lib. 8. cap. 16. •• 1••.
• c

  Hexa••mer. lib. cap. 5. 10. & lib. de Na∣buthe cap. 3.
• d

  In Lucull••.
• e

  Histor. lib. 2.
• Xerxem togatum.
• f

  Plin Nat. Histor. lib 9. cap. 54.
• g

  Epigramm. Vet. lib. 2.
• h

  Lib. 9. cap. 30.
• i

  Lib. 10▪ Epigr 30.
• k

  Lib. 3. od. 1. & 24.
• m

  In Conju∣rat. Catilinae.
• n

  Varro, de re Rusticâ, lib. 3. cap. 3.
• o

  Orat. 34.
• p

  In Concil. Chalcedon. can. 4. & in can. 12. Sy∣nod. 7.
• q

  Lib. 1▪ 〈…〉〈…〉 Injuriis.
• r

  •• 13 〈◊〉〈◊〉 de 〈…〉〈…〉
• s

  In Cupidin•• juris perito. cap. 9. §. 3.
• t

  Eclog. lib. 53. tit. 6. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. seu de Pisca∣toribus.
• u

  Leo Impe∣rator in No∣vel 56.
• 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
• x

  Prochir. Juris, lib. 2. tit. 1.
• y

  Michaël Athaliates, Pragmatic. tit. 95.
• z

  Leonis Novella 57. 102. 103. 104. & Athaliates lo∣co jam citato.
• a

  Varro de lingua latina. Et de Topi∣atico videlis Jac. Cujaci∣um Observat. lib. 14. cap. 1.