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.

An Answer to such Testimonies as have faln from Writers treating of other subjects, and which are usually alleged against Do∣minion of the Sea. CHAP. XXIII.

IT remain's in the next place, that wee consider of what validitie the contrarie Opinions of Writers are whereof wee formerly made mention. As to what concern's those Passages of the Poêts, Plautus and Phaenicides; it is clear in Plautus, that the lewd slave Trachalio was but in jest with Gripus the Fisherman: Hee saith in general, that the Sea is common to all, which signifieth a Sea that never was possessed, as well as that which is necessarily and naturally common; and in that place, that, rather then this. Wherefore it may bee understood, that Fishing was common or not yet appropriated; that, is, that the people either of Rome or Greece, had such a Dominion over any kinde of Sea (for, by what hath been alreadie mentioned, it appear's both of them had a Dominion over som Sea before Plautus his time) that either of them might use their re∣spective Seas at their own pleasure, in hindling others from sailing through them, and removing such impediments of Trade and Commerce as should happen therein: And yet that hitherto they had

prohibited no man from fishing in that Sea (menti∣oned by Plautus and Phaenicides) in such a manner, but that the use of it might remain common either to Natives or Neighbors, as the use of a ground for feeding of Cattel; though there may indeed bee a particular Owner in possession, reserving the other Commodities of it to himself, as it often come's to pass. But afterwards also, especially in the Eastern Empire, or among the Greeks, it is clear out of what wee have alreadie shewn you, that a peculiar Right of Sea-fishing hath passed into the hands of private persons, as well as of Princes: So that such Expressions as these beeing applied against private Dominion of the Sea, soon vanish and com to no∣thing.

As to that passage out of Ovid, Quid prohibetis aquas? Why do yee forbid water? &c. (then which no∣thing is more usual in Disputes about this matter) it is not so much an Assertion of the communitie of waters, as a vehement and hyperbolical reproof of the inhumanitie of that rustick Rout in Lycia. Latona beeing thirstie and wearie, asked for a draught of water; and that out of a Lake. The barbarous people denie her; and therefore shee most deserved∣ly reprove's them. But shee doth it not more ear∣nestly, then Ampelisca in a Plautus did merrily, to Sceparnio a slave that denied her water;

Cur iu (inquit Ampelisca) aquam gravare amabò, quam hostis hosti commodat?

Why (saith Ampelisca) art thou so loth to let mee have water, which one stranger afford's another.

For, whatsoëver may bee afforded or communicated

without prejudice of the Owner, hee is concerned many times in humanitie to impact it to a meer stranger that asketh him. For, the word Hostis in that place signifie's a Stranger, as wee often finde among the b Antients; And it appear's also by the question of Sceparnio, whereby hee jeer's the wench,

Cur tu (ait ille) operam gravare mihi, quam civis civi commodat?

Why (saith hee) dost thou denie mee that help, one Citizen afford's another?

Here hee opposeth Citizen to Stranger. From the same Office of humanitie those particulars are derived; as not to denie running Water; to suffer one Fire, or one Candle to light another; and other things of that na∣ture, which are profitable to the Receiver, and not troublesom to him that give's or permit's the Favor. And upon this Rule of Moralitie onely, which is the Rule of Charitie, are those demands both of Latona and Ampelisca grounded. They denie not the private Dominion of waters: Neither Latona of the Lake (whose private Dominion is confess't by all) nor Ampelisca of the Well, from whence shee de∣manded water for the Priest of Venus. Moreover, those words of Latona are spoken concerning a Lake of little water; as Ovid sheweth in that place,

Fortè lacum mediocris aquae prospexit in imis Vallibus.—

By chance a little Lake shee did espie, Which in the Uallies far beneath did lie.

And after shee had said that shee came to claim a publick gift, shee add's,

Quae tamen ut detis, supplex peto.—

Which notwithstanding I humbly beg you would bestow.

Nothing in that place opposeth a Dominion of the waters, more then of any other things whatsoëver, whereto that saying of Ennius may have relation,

c Nihilo minùs ipsi lucet, quum illi accenderit,

His own light is not the less, when hee hath lent light to another.

And as Cicero tell's us, all things of the same kinde seem common to men. Which communitie not∣withstanding derogate's nothing at all from the Do∣minion here in Question, unless any will bee so unadvised as to affirm, that the Laws of friendship (wherein Philosophers say all things are common) with those of Charitie and Liberalitie, may overthrow private Dominion.

Nor is there any more weight in that which is objected out of Virgil. What is this to the purpose? Virgil, or Ilioneus speaking of the Tyrrhen Sea, said, That the water is open to all. Ergò, by Law the water must lie open at all times to all men. A verie trifling Argument! There was no Land that was omitted in the first distribution of things, which did not re∣main open to all, before it came under particular possession. But in that passage of Virgil, there is no demand made of Right, but onely an Office of humanitie requested from the King of Latium. Yea, and a promiss made of recompence, saying;

Non erimus regno indecores, nec vestra feretur Fama levis, tantique abolescet gratia facti.

Wee'll not disgrace your Realm, nor lightly set Your Fame, and so great courtesie forget.

Therefore in the Poëts sens, the benefit was to bee received and acknowledged from the grace and favor of the Prince, not claimed by any Law of nature common to all. Yea, wee know that in many places an excise or paiment is made somtimes for the very use of water. As among the Hollanders they have in Delph-land a Custom called Jus Grutae; which hath ever been under the care of those Officers called in Latine d Comites Plumarii, in Dutch, Pluymgraven, and whereby the Beer-brewers (as e Hadrianus Junius tell's us) are bound to pay them the hundreth part for the use of water. Other in∣stances there are to bee found of the same nature.

Lastly, as to that saying of the Jewish Rabbins concerning Alexander, it shew's onely they were of Opinion that Alexander had not gotten a Dominion over the Sea. They do not say at all, that hee could not lawfully get it; nor truly could they say it with∣out gross indiscretion, unless they would renounce their own Right (which wee have alreadie mentio∣ned out of their determinations) in the great or Phaenician Sea. And whatsoëver those Rabbins may lightly say of Alexander; yet truly Flavius f Josephus a Jew; and (if wee may believ himself) the most eminent Lawyer of his time among the Jews, call's the Emperor Vespasian, Lord both of Sea and Land. And g Julian saith, that Alexander aspired after an Empire by Sea as well as by Land: which hath been mentioned also by h Seneca.

But all these Objections are brought out of Writers treating of other matters, which ought also to bee consider'd. And therefore in the last place, let us take such opinions of the Lawyers into consideration, as are opposed against it.

Notes

• a

  In Rudent••. Act. 2.
• b

  Festus in verb. Hostis, & Cic. de Offic. lib. 1.
• c

  Cic. de Offic. lib. 1.
• AEneid. li. 7.
• d

  Comites Plumarii or Officers of the Fea∣ther; their place is to see that Birds or foul bee not transported thence.
• e

  In Histor. Bat. c. 19.
• f

  De Bello Judaïco, lib. 3. cap. 27.
• g

  Orat. 3.
• h

  Suasor••