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HAving thus refu••ed, or upon good ground removed som Opinions of antient Lawyers, which are usually alleged for the mainteining of a perpetual Communitie of the Sea; it is no
hard matter in like manner to wave the Autoritie of those of later time, that oppose a Dominion. For, if wee consider the great number of those, who, whether they comment upon the bodie of Justinian, or treat apart of this particular, would not have us to recede from that natural Communitie; wee shall finde plainly that they deal in the same man∣ner, as they that have pinn'd their Faith, more then was meet, upon the sleev of Ulpian, or som other such antient Autor: Unless wee conceiv that som of them did not so much explain the Law in this point, as recite the opinions of Lawyers, so far as they have been by them deliver'd: Just in the same manner, as if a man should so discours upon Aristotle's Astronomie, or the opinion of Thales touching the Earth's floating, like a Dish in the Sea, and that of the Sto••cks of its encompas∣sing the Earth like a Girdle, with that of the An∣tients concerning an extreme heat under the Equi∣noctial, and other opinions of that kinde, which are rejected and condemned, by the observation and experience of Posteritie; that hee might seem not so much to search into the thing it self, as to represent the person of the Autor, thereby to trace out his meaning, onely for the discovering of his opinion. But as the root beeing cut, the Tree fall's, so the Autoritie of those antient Lawyers beeing re∣moved out of the way, all the determinations of the modern which are supported by it, must bee extremely weakned.
Now therefore, as to what hath been former∣ly alleged out of Fernandus Vosquius, it is grounded upon such Arguments as are either manifestly fals, or impertinent. For, what is this to the purpose?
That the Sea, from the beginning of the world to this present day, is, and ever hath been in common, without the least alteration, as 'tis generally known. Whereas the quite contrarie is most certainly known to those, who have had any insight into the received Laws and Customs of Ages and Nations. That is to say, that by most approved Law and Custom, som Seas have passed into the Dominion and partrimonie, both of Princes and private persons; as is clearly made manifest out of what hath been alreadie shewn you. Moreover also hee a would have pre∣scription to ceas betwixt Foreigners in relation to each other, and not to take place in the Law of Nations, but in the Civil onely; so that by his Opinion pre∣scription should bee of no force between those (as be∣tween two supreme states or Princes) who are not indifferently subject to the Civil Law, which admit's prescription; then which not any thing can bee said or imagined more absurd. Almost all the prin∣cipal points of the Intervenient Law of Nations, beeing established by long consent of persons using them, do depend upon prescription or antient Custom. To say nothing of those Princes, whose Terri∣tories were subject heretofore to the Roman Empire, and who afterwards became absolute within them∣selvs, not onely by Arms, but also by prescription (which is every where admitted among the Laws of Nations;) whence is it that Prisoners of war are not now made slaves among Christians, unless it bee becaus that Custom began to grow out of date som Ages since upon a ground of b Christian bro∣therhood, and by prescription ratified betwixt Nations. Whence is it that the ransoms of prisoners are to bee paid, som to the Princes, and som to the Persons
that take them? As for instance, when the ransom is not above ten thousand Crowns, it goe's to him that took the Prisoner; when it exceed's, it is to bee paid to the Prince. Becaus (saith c Nicolaus Boërius) if it exceed, as when any one hath taken a Duke, a Count, a Baron, or any other great man, then it belong's to the Prince, and so it is observed in the Kingdoms of France, England and Spain. It hath by prescription of time been observed among Princes; and so it became Law. And truly, to deny a Title of prescription wholly among Princes, is plainly to abrogate the very intervenient Laws of Nations. As for those other things men∣tioned by Vasquius, concerning Charitie and the in∣exhaustible abundance of the Sea (whereby hee make's a difference betwixt Rivers and Seas) and other things of the like nature, they have no rela∣tion at all to the point of Dominion; as you have been sufficiently told alreadie.
In the next place, wee com to the other, to wit, Hugo Grotius, a man of great learning, and ex∣traordinarie knowledg in things both Divine and Humane; whose name is very frequent in the mouths of men every where, to maintein a natural and perpetual Communitie of the Sea. Hee hath handled that point in two Books; in his Mare Li∣berum, and in that excellent work De Jure Belli & pacis. As to what concern's Mare Liberum, a Book that was written against the Portugals about trading into the Indies through the vast Atlantick and Southern Ocean; it contein's indeed such things as have been delivered by antient Lawyers touching communiti•• of the Sea; Yea, and disputing for the Profits and Interests of his Countrie, hee draw's them into his own partie; and so endeavor's to prove that the Sea
is not capable of private Dominion. But hee hath so warily couched this subject with other things, that whether in this hee did hit or miss, the rest how∣soëver might serv to assert the point which hee was to handle. Moreover, hee discourseth about the Title of Discoverie, and primarie occupation (pretended to by the Portugals) and that also which is by Donation from the Pope. And hee seem's in a manner, either somtimes to quit that natural and perpetual Com∣munitie, which many Civil Lawyers are eager to maintein, and hee himself, in order to his design, endeavored to confirm; or els to confess that it can hardly bee defended. For, concerning those Seas that were inclosed by the antient Romans; the na∣ture of the Sea, saith d hee, differ's from the Shore in this, that the Sea, unless it bee in som small part of it self, is not easily capable of Building or Inclosure. And put case it were, yet even this could hardly bee without the hindrance of common use. Nevertheless, if any small part of it may bee thus possessed, it fall's to him that enter's upon it first by occupation. Now, the difference of a lesser and a grea••er part, cannot take place (I sup∣pose) in the determining of private Dominion. But in express words hee except's even a Bay or Creek of the Sea. And a little after, saith hee, Wee do not speak here of an I••-land Sea, which in som places being streightned with Land on every side, exceed's not the breadth even of a River, yet 'tis clear that this was it the Ro∣man Lawyers spake of, when they set forth those notable determinations against private Avarice. But the Question, is concerning the Ocean, which Antiquitie called immense Infinit, the Parent or Original of things, confining with the Aër. And afterwards hee saith, The Controversie is not about a streight or Creek in this Ocean, nor of so
much as is within view when one stand's upon the shore. A little farther also, speaking of Prescription, hee saith, e It is to bee added, that their Autoritie who are of the contrarie opinion, cannot bee applied to this Question. For, they speak of the Mediterranean Sea, wee of the Ocean. They of a Creek or Bay, wee of the broad and wide Sea, which differ very much in the point of Occupation. And certainly, there is no man but must conceiv it a very difficult thing to possess the whole Ocean: Though if it could bee held by occupation, like a narrow Sea, or a Creek, or as the whole world was said to bee possessed at first by antient Princes, it might even as well pass into the Dominion or Ownership of him that should enter upon it first by occupation. How∣soêver, there have been f som others, who by the same Rule distinguish in like manner the inner and neigh∣boring Seas from the open Sea or main Ocean.
But it is by no means to bee omitted, that they, for whose sakes Hugo Grotius wrote that Book, that is to say, the State•• of Holland, did, not unwillingly, but rather (as it seem's) according to their own hearts desire, give ear to the condemnation of that Opinion (especially becaus it was owned by Grotius) concerning a Communitie of the Sea and freedom of Fishing therein according to the Law natural and of Nations, by the Embassador of James King of great Britain, in a speech of his deliver'd openly in Holland; and that others were gravely admonished from his misfortune, not to maintein the like. Of vvhich thing Grotius himself bear's vvitness. g I have labored, saith hee, as much as any to maintein the Right of Navigation to the Indies, and for the preservation of Clothdressing in our Countrie. But for the freedom of Fish∣ing at Sea so much, that Carleton the King of great
Britain's Embassador, beeing incited by my enemies to speak somwhat in publick against mee beeing at h that time in Prison, hee had no ••ing els to say, but that I had begun to make som Discourses in defence of that freedom, as a thing grounded upon the Law of Nations, and Custom, time out of minde; whereas notwithstanding, nothing had been said or written by mee upon that subject, different from those things which the State's Embassadors had mainteined in Britain in the year MDCX; and our Ancestors before, even for som Ages past. And yet that Embassador said, that others ought to bee terrified by the example of my misfortune, from de∣fending that Opinion. It is true indeed, that persons in power usually take a libertie to aspers men as they pleas when they are in question: But these things were not spoken so much against Hugo Grotius, as against that natural Right of Commu∣nitie at Sea (injuriously pretended to) which many men have defended more expressly and plainly then himself; but none, with so much learning and in∣genuitie. Nor, did that Speech of the Embassador, for ought wee know, as things then stood, displeas the States of Holland.
But in his Books i de Jure Belli & Pacis, having indeed set down the reason of the original of private Dominion to bee upon this ground, that those places which became peculiarly assigned were not sufficient for the maintenance of all men, hee conclude's that the Sea, becaus of its bigness and inexhaustible abundance, beeing sufficient for all, cannot bee ap∣propriated to any. Hee add's other things also, touch∣ing the nature of the Seas not beeing distinguishable by Bounds; of both which wee have said enough alreadie. But at length hee betake's himself to the received Customs of Nations and speak's more then
once concerning the proprietie or private Dominion of the Sea, as of a thing somtimes to bee yielded without Controversie. The Land, saith k hee, and Rivers, and any part of the Sea, in case it com under the proprietie of som Nation, ought to bee open for such as have need of passage upon just and necessarie occasions. Afterwards also, speaking of the l proprietie of Rivers, After this example, saith hee, it seem's that even the Sea may bee possessed by him that is Owner of the Land on both sides, although it lie open either above, as a Creek; or above and below too, as a streight or narrow Sea: So that it bee not so great a part of the Sea, that beeing compared with the Lands it cannot seem to bee any portion of them. And that which is lawful for one Prince or People, the same seem's lawful also for two or three, if in the like manner they pleas to enter up∣on the Sea flowing between. For so, Rivers that flow be∣tween two Nations, have been entred upon by both, and then divided. Hee allegeth other things also touching the Right of primarie occupation by Sea; but so, that for the most part hee contein's himself within Creeks and streights. m Hee saith, that not by any natural Right or Reason, but by Custom it came to pass, that the Sea was not appropriated, or that it could not lawfully bee entred upon by Right of Occupation. And that the Custom beeing changed, if there were any in the antient Law that might hinder a private Dominion of the Sea, the reason of Com∣munitie must bee changed also. But that it hath been sufficiently changed, appear's abundantly (if I bee not deceived) out of what wee have hitherto shewn you. Yea, the very Laws as well Civil as Intervenient of most Nations make abundantly to this purpose, as it hath been proved. 〈1 page duplicate〉〈1 page duplicate〉
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Moreover, that nothing may bee wanting to weigh down the Ballance, therefore, besides the opinions of the Civil Lawyers before alleged out of France, Spain, and Italie, for a private Dominion of the Sea, let this over and above bee added, which is taken out of that sort of Lawyers also, discoursing in general terms about the Sea. I here give it you as it was composed by a Lawyer, none of the meanest in the Roman-German Empire, by name n Re∣generus Sixtinus, who was indeed against private Dominion of the Sea. The matter in question, saith hee, concerning the Sea and its Shore, is, whether as Rivers that are navigable, and by which others are made navi∣gable, they may bee reckoned inter Regalia among the Prince's Roialties? (for, whatsoëver is reputed a part of those Regalia or Roialties, is as private or peculiar to Princes, as that is to subjects which is their own; for which caus the Revenues of the Exchequer are private after the same manner;) so also, whether the Sea it self and its Shore, bee comprised within those Regalia? Cacheranus, Decis. 155. n. 81. Ferrarius Monta∣nus, de Feud. lib. 5. c. 7. o reckon's the regulation and the very dominion also of the Sea among the Regalia, nor doth hee make any difference betwixt the Sea and a publick River. Mynsingerus also, Resp. 1. nu. 162. Decad. 11. saith, that the proprietie of the Sea is a part of those Regalia. But Sixtinus himself, discoursing upon this matter, just as they do that are more addicted than they ought to the words of Ulpian, and num∣bring up those Autors that are of the contrarie opi∣nion, conclude's thus, But more true it is that a proprietie of the Sea and Shore, is not by the Common Law to bee reckoned among the Regalia. But upon due consideration of all those particulars, which hither∣to
have been produced out of the Customs of so many Ages and Nations, and as well out of the Civil, as the Common or Intervenient Law of most Nations, no man (I suppose) will question but that there remain's not either in the nature of the Sea it self, or in the Law either Divine, Natural, or of Nations, any thing which may so oppose the private Dominion thereof, that it cannot bee ad∣mitted by every kinde of Law, even the most ap∣proved; and so that any kinde of Sea whatsoëver may by any sort of Law whatsoëver bee capable of private Dominion; which was the thing I inten∣ded to prove.
Illustrium Controvers. lib. 1. cap. 51. §. 23. unde & V. Cl. Hu∣go Grotius in Mari Libero, cap. 7.
Suarez de Legibus, lib. 2••.
In Decist∣sionibus Bur∣degal. decisi∣one 178. num. 4.
Mari libe∣ro, cap. 5.
Cap. 7.
Jo. Gryphi∣ander, de Insulis, c. 25. §. 52.
In Apolege∣tico eorum qui Hollandiae praefuerunt ••nte mutatio∣nem 1618. p. 387. edit. Heidelberg. cap. 19. pag. 257.
Hee was imprisoned for having an hand in Barnevel's business.
De Jure Belli & Pacis, lib. 2. cap. 2. §. 2. & 3.
Ibidem. §. 13.
Ibid Cap. 3. §. 8.
Ibidem. §. 19.
The same with Muni∣cipal.
De Regali∣bus, lib. cap 4. §. 97.
Versic. Ta∣metsi Jus piscandi.