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.

Touching the Emperor Antoninus his Answer; that himself was Soveraign of the world, but the Law (as 'tis commonly translated) of the Sea; in L. Deprecatio, ff. tit. de Lege Rhodiâ. The true mean∣ing of the said Answer, and a new, but genuine Exposition of it. Also, that it comprehend's nothing which may in any wise oppose a Dominion of the Sea. CHAP. XXV.

BUt seeing that among those particulars, which are usually drawn out of Antient Lawyers, against Dominion of the Sea, that Answer of the Emperor Antoninus to Eudaemon several times before∣mentioned, is of so principal an account; therefore it seem'd meet to treat of it apart by it self, and search into the genuine sens thereof; concerning which, whosoëver shall look into the whole matter with a little more care then ordinarie, will I suppose bee very well satisfied, not onely that most Interpreters have hitherto been wholly ignorant thereof, but also that it in no wise contradict's a Dominion of the Sea.

Eudaemon having been Shipwrack't at Sea, had pe∣titioned the Emperor, for a restitution of those wrack't goods that had been seized by the Receivers of his Customs. The words, according to a Volusius Maetianus who was one of the Emperor's Privie

Councellors, are these; 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉; O Emperor Antoninus, our Lord; wee having made Shipwrack, have been spoiled of all by those Receivers of the Customs that inhabit the Cyclades Islands. Hee received an Answer from the Emperor, pointed for the most part af∣ter this manner, in the printed Books. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Which is usually thus translated; I indeed am Soveraign of the world, but the Law, of the Sea. Let it bee determined by the Rhodian Law which is prescribed for the regulation of Sea-affairs, so far as it is not opposed by any of our Laws. For, the Emperor Augustus also was of this Opinion. There ne∣ver was any Controversie about the reading or Tran∣slation of this Answer, unless it were in those words, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, whereto answereth, but the Law of the Sea with a period or full point after it; as for the most part it is taken, and as wee have according to the received translation re∣lated it b alreadie in the Objections. Of those that would have it so rendred, there have been not a few who were of Opinion, that from the Adver∣sative 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 autem is implied, that the Emperor an∣swer'd that himself indeed was Lord of the rest of the world, but not of the Sea; and that the Law onely, not any man was Lord of this. Andraeas c Alciatus saith; Whereas it is said, I indeed am Lord of the world, but the Law of the Sea; som French Doctors were of Opinion becaus of that Adversative, that a Soveraigntie of the Sea did not appertain unto the Em∣perors.

But hee add's; which truly is very ridiculous: Although d Baldus and e Jason conceived for this reason, that the Venetians were not subject to the Roman Em∣pire. But the sens of this Law is this (to wit, that Sea∣affairs were to bee determined by the Rhodian Law, as hee declare's a little before.) For, seeing the Emperor is Lord of the world, surely, not the Land onely but the Sea also, ought to submit to his Laws, and hee to appoint Laws therein: though notwithstanding hee do not determine matters by his own Law in the Sea, but by the Rhodian Law, which was by him approved. Understand therefore, when it is said, I am Lord of the world, becaus I go∣vern the world according to my own Law. But the Law, suppose the Rhodian Law; of the Sea; becaus by it, Ju∣stice is administred upon the Sea. Add hereunto, that this Particle 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, that is, Autem, is not so opposed, that it al∣waies exclude's what goeth before. And therefore Alcia∣tus also rendreth it thus, But the Law of the Sea, by which Law of the Rhodians concerning Navigation, let it bee determined, &c. And therefore truly, it is upon exceeding good ground that hee call's their opinion very ridiculous, who would have it hence con∣cluded, that a Dominion of the Sea did not belong unto the Emperors. For, suppose the Emperor did answer so, as it is commonly rendred. Doth hee there∣fore deny himself a Dominion of the Sea, becaus hee affirm's the Law to have Dominion at Sea? was hee not in the mean time Soveraign Lord and Arbitrator of the world (as hee implied indeed by his Answer) and so also of the Law? whatsoëver hee pleased, was f Law. Therefore to say, that any thing which the Law had Dominion over, was not also under the Emperor's Dominion (to whom the Law it self was subject) is so absurd, as nothing can bee more.

Others there are that render the sens of the words after this manner. Although I my self bee Lord and Emperor of the world, and so, free from all Laws, nor bound by any Rule to give any account to my Subjects, yet notwithstanding the Law shall bee Empress and Queen at Sea, that is, it shall bear sway by Sea, in such Cases as have faln out at Sea, since it concern's Sea affairs, nor shall my Exchequer bee advanced by the loss of my Sub∣jects, but Justice ought to bee equally administred between the Exchequer and private persons, and therefore the Ex∣chequer shall bee liable to give an account. So saith, Fran∣ciscus de g Amaya, Advocate in the King's Court of Ex∣chequer within the Kingdom of Granada. So you see, here is not the least Track admitted of a denial of Sea-Dominion.

Som also there are, who would have the mean∣ing bee, that Antoninus should expressly say that hee himself was as well the Law of the Sea, as Lord of the world. I indeed am Lord of the world, and I am also the Law of the Sea. So Joannes Igneus: And som h others there are that incline this way: with whose opinion if wee shall concur, wee must needs confess also, that the Emperor did sufficiently at∣tribute the very Dominion of the Sea unto himself. But i Samuel Petit, a very learned French-man saith, Antoninus doth not deny himself to bee Lord of the Sea, that hee cannot give Law and do Justice to those which deal upon the Sea; for, you see his meaning was, that Right should bee don betwixt Eudaemon and the Customers which dwelt in the Cyclades Islands, according to the Rho∣dian Law; nor doth hee say also that hee is so tied by this Rhodian Law, that hee can by no means reliev Eudaemon against this Law, if any injurie bee don him, but his mean∣ing is, that Eudaemon should have Right don him accord∣ing

to this Law, but yet so that this do not thwart any of the Roman Laws. Thus hee interpret's it, though the vulgar reading bee reteined; which hee would ra∣ther have to bee rejected, and the name of Law to bee put out there; Beeing of opinion that the words 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 but the Law of the Sea, are cor∣rupted from 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, but the winde of the Sea. As if the Emperor had said, that hee himself indeed was Lord of the Sea, but that the ••ea nevertheless is so subject to the power and alterations of winde and weather, that it was not in his power, though Lord thereof, to prevent Ship∣wracks. Moreover also, Petit correct's the Cosmo∣graphie of the Petition. Hee is of opinion, that those words, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 in Italie, crept in through the negligence of Transcribers in stead of 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 being understood) in the Telian or AEgean Sea, which is about the Island Telos. What a mon∣strous thing were (saith hee) that those who were ship∣wrack't in the Sea upon the Coast of Italie, should have been pillaged by Publicans or Customers dwelling in the Cyclades Islands? what Cosmographie is this? what rela∣tion have the Publicans or Customers of those Isles unto Italie? which is most judiciously spoken: For, it appear's a manifest error there concerning Italie. And it is most certain, that the Island Telos, whether it bee one of the Cyclades or Sporades, is so placed in the AEgean or Levant Sea (as wee finde in k Strabo, l Plinie, and Stephanus de urbibus) that the matter hang's well together, if wee say that the Customers of the Cyclades seized upon wrack't Goods in the Telian Sea, which to say of the Italian Sea or Shore is too monstrous in reason. Perhaps also, in that Catalogue of Seas summ'd up by AEthicus, an antient Cosmo∣grapher,

the Ionian and AEgean Sea, the Sea called Mare Lautades (which learned men suppose to bee corruptly read for Leucadium) and Mare Tillae, the Telian Sea it self, beeing taken out of this very Pe∣tition, before it was corrupted, was signified by the name of Tilla. And thus you have in a manner the opinion of learned men, so far as concern's the matter in hand, touching that Answer, and the Pe∣tition of Eudemon.

For my part, I most willingly yield my assent to the emendation of the Cosmographie: But do conceiv, that the antient and received reading of the Answer ought not to bee alter'd, save onely in the pointing. Oftentimes no regard hath been had, nor any use of points in antient Books: So that succeeding Generations have been puzzled now and then with a confusion of Syntax. But by a very small alteration of them in this place (for they are the very same with those in the m Books that are published) the sens appear's to mee not onely suited to the matter of the Petition, and clear; but also plainly freed, both from that Phansie, as if Do∣minion of the Sea were denied the Emperor in that place; and also from that fiction there expresly deli∣vered touching the Sea-Dominion of the Law. Nor can I bee perswaded, that Interpreters hitherto have sufficiently hit upon the Emperor's meaning. For, what is this to the purpose? I indeed am Lord of the world, but the Law of the Sea. If it were spoken of the Law in general, certainly the Law had Dominion as well upon the main Land, The Emperor himself was Lord of every kinde of Law, even by Land as well as by Sea: And so truly, the Answer had hitherto, con∣cerned the Petition nothing at all. If you would

understand it of the Rhodian Law, in such a sens (as Alciatus did) that the Emperor's meaning was that the Law had Dominion over the Sea, what then is the Consequence? that the matter was to bee determined by the Rhodian Law, so far as it was not opposed by any of the Roman Laws. What, was the Rhodian Law simply supreme over the Sea, and yet notwithstanding that high Title subject to restraint by the Roman Laws? These things do not cotten well. Let it bee pointed therefore, either after this manner; 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, I indeed am Lord of the world. But of this kinde, or this is the Law or the Custom of the Sea. Let it bee determined by the Rhodian Law concerning Navigation, so far as none of our Laws do oppose the same. Or let it bee pointed thus; 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 &c. I indeed am Lord of the world. But let that Law or that Custom of the Sea bee judged or determined by the Rhodian Law concerning Navigation, so far as &c.

The Case was this: Eudemon Asiaticus, born in Nicomedia, a Citie of Bithynia, having suffer'd Shipwrack in the Telian Sea (or the AEgean, which is about Telos) complain's that his Goods were seized by the Customers of the Cyclades, petitioning the Emperor for relief, in such a manner as if the Customers had made an advantage by his misfortune in a most injurious manner. Hee salute's him with the style of Lord and Emperor. The Emperor in his Answer readily owneth himself to bee a Lord, and so far a Lord, that hee saith the whole Earth, yea, and the world it self was comprised within his

Lordship or Jurisdiction. Therein also hee signifie's that it belong's to him to reliev Petitioners when wrong is don them: But as to what concern'd the matter of complaint, or the Petition about the wrack't Goods that had been seized by the Customers, that it did not sufficiently appear whether those Customers had don it wrongfully. Becaus (if our former reading, or pointing bee admitted) in general, saith hee, and according to Rule, the Sea-Custom, or that Law of the Sea which give's wrack't Goods to the Customers, hold's good. For, so these words 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 [but that Custom or that Law of this kinde belong's to the Sea] hath relation to the thing don by the Customers, as it was in brief set sorth in the Petition. But in regard that to this Cu∣stom or Law of the Sea, there might, either through som privilege, or becaus of the qualitie of the goods, or som other Custom no less in force, certain Qua∣lifications arise, according to circumstance, in respect whereof perhaps either the Customers ought, in this case, to have forborn medling with the goods, or the Complainant might have a special exception to privilege his goods from Seizure; therefore hee did well to leav it, beeing a matter so succinctly and without any addition of circumstance expressed in the Petition, to bee determined by the Naval Laws of the Rhodians; but yet so far onely as the Roman Laws in the mean time were not contrarie thereto. Nor doth the sens much differ, if the latter pointing and translation bee admitted: I indeed am Lord of the world, and the Sea as well as the Land is con∣teined within my Jurisdiction: in both, I willingly right those that are wronged, according to Law: But truly what the Custom of the Sea may bee in

this case, and whether the Complainant ought to bee relieved, let it bee determined by the Rhodian Laws, which, by my permission, are in use upon the Sea, where they are not contrarie to our own. But it seem's to mee not a little conducing to a confirma∣tion of the fore-going sens, whereby the Maritim Law touching Wrecks and the Right of the Custo∣mers (that is, of the Exchequer, whose Right is trans∣ferr▪d into their hands) is, asserted, if it shall bee made appear that such a Law or Custom was in force at that time, which Interpreters are not wont here to grant. It is indeed certain enough according to the Imperial Law (as wee have it now compiled in the Books of Justinian) that n Wrecks are reserved to the former Owners, and so that both the Exchequer and the Customers are thence excluded: Yea, and that the Custom whereby they are confiscated, is condemned by the received determinations of the Roman-German Empire, as well as the Canon Law, as wee hinted in the former Chapter. But it is col∣lected by manifest evidences, that the Law or Cu∣stom for Confiscation of Wrecks was in force, in the time of this Emperor Antoninus (I mean Antoni∣nus Pius) who, as Julius Capitolinus write's did in the establishing of this Law, make use of Volusius Me∣tianus the Lawyer, out of whose Books the Petition and Answer here spoken of was transcribed into the Digests o. It is clear, that almost all those Passages that wee finde in the Digests for reserving them to the former Owners, were taken out of Paulus, Callistratus, and Ulpian, who lived many years af∣ter this Antoninus. There is somwhat also to this purpose out of p Priscus Javolenus, who lived at the same time with this Antoninus. But this Emperor

reigned XXII years, and as appear's out of Javolenus, hee did by Decree mitigate the rigor of Confiscation in this Case. From which it might easily com to pass, that under the same Emperor such a Law and Custom as wee have mentioned might bee in force, and under the same it might either bee abrogated, or the rigor of it abated. The principal Constitution, which, according to the q Book of Justinian, would not have the Exchequer to interpose in this case, is by Antonius Contius, a very eminent Lawyer, attri∣buted to the Emperor Antoninus, according to the Testimonie of an antient Book in Manuscript; al∣though the name of Constantine bee put before those that are published. The words are these; If at any time a Vessel bee driven a Shore by Shipwrack, or if at any time it run aground, it shall belong to the Owners. My Exchequer shall not interpose it self. For, what right hath the Exchequer by another man's misfortune, that it should seek after profit upon so sad an occasion? Yea, and Ulpian shew's, that such a kinde of Constitution there was also under Adrian, who was this man's Father by Adoption. It is decreed (so saith r Ulpian) that it may bee lawful for every man, to recover his losses by Ship∣wrack freely; and thus much was ordained by the Em∣peror Antoninus, with the Emperor his Father. There are in these very clear Evidences, that about that time, there was such a Law or Custom of Confis∣cation, as wee have mentioned; which wee know very well was wont to take place often, even con∣trarie to the Autoritie of antient Decrees. For, it may bee concluded from the Shipwrack of Valgius, or Victor, related by s Paulinus, that it was in som use even under Theodosius the elder. There are the like Exam∣ples upon the t Shore of the Roman-German Empire:

And others may bee brought, whereas notwith∣standing som Laws were made to the contrarie.

Moreover also, the antient Orators, both Greek and Latin, whilst they allege Examples about the stating of Questions in pleading, do mingle this very Law or Custom about Shipwrack with other usual and antient Customs in the Greek and Roman Empire, as a thing that was very frequently received. Sopater and u Syrianus in Hermogenem say; The Law is, that spoils which are found, do belong to him that is General of the Army; In like manner the Law is, that Wrecks do belong to the Customers. In a tempestuous Sea, spoils are brought into Port. Hereupon ariseth a controversie about them, between the Commanders and the Customers of the Customs. In this case it be••ove's us not to vex our selvs in vain with reading of Laws, but to look into the very nature of things. For, in truth the Question is, whether the Goods bee now to bee called Spoils or Wrecks. In like manner saith, x Curius Fortunatianus; what is a simple definition? when wee define a particular thing simply. Put case, that Wrecks do belong to the Pub∣licans or Customers. The bodie of a certain man that was lost by Shipwrack, clothes and all, beeing driven ashore was cover'd by the Sands. The Customers came and drew it out. Therefore they are guiltie of the violation of Sepulcre. For here the Question is simply, what it is to violate a Se∣pulcre.

Moreover, that, Volusius Metianus wrote that Peti∣tion and the Answer, appear's in Libris Publicorum ex Lege Rhodiâ; that is, in his summarie of those Laws which belong either to the Exchequer or the Customers, wherein also is conteined either the Law or Custom of Confiscation of Wrecks. It suit's very well with these Particulars, that in that Answer of

the Emperor Antoninus those words, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, should bee rendred, but that Law of the Sea or that Custom of the Sea, which hee meant should bee so examined and determined, according to the Rho∣dian Laws, that in the mean time, those Rhodian Laws should not bee of force, if any Rescript or any Roman Law were against it. And of what Au∣toritie Adrian's Decree was at that time (whereof Ulpian speak's in the places before quoted) per∣haps it did not sufficiently appear, no not to the Lawyers themselvs without a more curious exa∣mination, whose assistance Antoninus made use of in his Answer. But, that wee may at length dispatch this particular; no man whatso••ver, whether hee ap∣prove the common Translation, or mine, will (I suppose) unless hee renounce his own reason, con∣ceiv, upon a due consideration of the whole mat∣ter, that any denial is made of the Dominion of the Sea in that Answer, or that the least Tittle can bee found in it against the Dominion thereof.

Notes

• a

  L. 9. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 ff. de Lege. Rhodiâ.
• These Isles are part of those that lie in the Archipela••••••.
• b

  Cap. ••.
• c

  Dispuncti∣onum, lib. 2. cap. 5.
• d

  In ••ub. de Rer. Divis.
• e

  L. ex hoc Jure, ff. tit de Justitiâ.
• f

  L. 7. ff. tit. de Constitut. Principum.
• g

  O•…•…at. 〈…〉〈…〉, lib. 1. cap.1. 〈…〉〈…〉.
• h

  〈…〉〈…〉
• i

  M•…•…an, 〈◊〉〈◊〉. 3 cap. 1••.
• The Cy∣clades and Sporades make up the Isles in the Archipelago.
• k

  Lib. 10.
• l

  Lib. 4. cap. 12.
• m

  Vide Al∣ciat. Disp. lib. 2. cap. 5.
• n

  L. 3. & 21. ff. tit. de ad∣quir. & amit∣tend. possess. l. 44. ff. de ad∣quir. rer. dom. l. 1. 3. & seqq. ff. tit. de Incen∣dio. l. 1. C de Naufragiis.
• o

  Locis supe∣riùs citatis.
• p

  L. 21. ff. tit. de adquir. & amit. possess. §. 1.
• q

  L. 1. C de Naufragiis.
• r

  L. 12. ff. tit▪ de Incen∣dio.
• s

  Epist. 37. ad Micarium.
• t

  Chronic. Albert. S••a∣densis, ann. 1112. videsis Frederic ••inde••ro••. in Glossario▪ pag. 1443.
• u

  〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, pag. 107. Ve∣netiis, 1509.
• x

  Artis Rbe∣toricae Scho∣licae, lib. 1. pag. 46. edit. Paris. 1599.