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.

What Occurrences seem to oppose the Domi∣nion of Sea, and what Arguments are wont to bee made against it. CHAP. II.

THe Arguments usually brought against the Do∣minion of the Sea, are of three sorts. Som are drawn from freedom of Commerce, Passage, and Travel; Others from the nature of the Sea; and a third sort from the Writings and Testimonies of learned men. And as to what concern's the freedom of Commerce or Traffick, and Travel, this som men affirm to bee so natural, that they say it can no where bee abolished by any Law or Custom; yea, and that by the Law of Nations it is unjust to denie Mer∣chants or Strangers the benefit of Port, Provisions, Commerce, and Navigation; Adding moreover, that

wars have been justly commenced upon denial of Port, Trade, and Commerce; And for proof, they produce the example of the Megaransa 1.1 against the Athenians, the Bononiansb 1.2 against the Venetians, and of the Spaniard against those of the West Indies; for that, the expedition of Spain against the Americans is pretended, by very learned men to bee upon a c 1.3 just Ground, becaus they denied them a freedom of Commerce within their Shores and Ports. And in justification hereof, They use that of Virgil, as spoken out of the Law of Nations;

Quod genusd 1.4 hoc hominum, quaeve hunc tam barbara morem Permittit patria? ••ospitio prohibemur Arenae.

What barb'rous Land this custom own's? what sort Of men are these? Wee are forbid their Port.

Now, if such a Proprietie or Dominion of the Sea were admitted, that men might bee forbidden the li∣bertie of Navigation and Ports, at the will of any Proprietor, then, say they, it would bee an infringe∣ment of that Law of Commerce and Travel (by them styled the Law of Nature) which they would not have to bee indured.

Touching the second sort of Objections drawn from the nature of the Sea it self, it is commonly alleged; That the Sea is alter'd and shifted every mo∣ment, and the state of it, through a continued Suc∣cession of new waters, alway so uncertain, and re∣main's so little the same in all things (the Channel onely excepted) that it is impossible it should ever bee retained in the possession of any one Particular. Moreover, they say the nature of Possession consist's chiefly in a separation or distinction of Limits and Bounds, but

no such Materials or Instruments can possibly bee found in the Sea, as that the Law for regulation of Bounds, which hath a principal place in all Controver∣sies about Dominion or Ownership may bee grounded thereupon. They produce also a saying out ofe 1.5 S^t Ambrose, speaking about the lurking-holes or holds of Fishes; Geometram audivimus, Thalassometram nunquam audivimus; & tamen Pisces mens••ras suas nôrunt. I have heard of a Geometrician, or one that could measure Land; but never of a Thalassometrician, one that could measure or lay out Bounds in the Sea; and yet the Fishes know their own Bounds. They are pleased likewise to insinuate, what a world of Sea room there is, that all Nations may have sufficient for wa∣tering, fishing, and Navigation: And therefore that the peculiar Dominion thereof is by no means to bee appropriated unto any.

A third sort of Arguments lie's in those Testimonies that are drawn out of antient Writers; partly out of old Poëts, Divines, and others writing of other subjects; partly from such Lawyers as handle the matter purpose∣ly. Of the first kinde is that of Gripus the Fisherman, and Trachalio the Slave, as they are brought upon the Stage by Plautus, quarrelling about a Bag that was found in the Sea.

a 1.6 Gr. Mare quidem commune certò est omnibus. Tr. Assentio. Quî minùs hunc communem quaeso mihi oportet esse vidulum? In Mari inventum est. Commune est.—

Gr. The Sea is common certainly to all. Tr. True. Why not this Bag to mee then too, thou braw••▪ It was found within the Sea. Therefore common it must bee.

They produce likewise a piece of a supplicatorie

speech of Latona, to a rustick Rout in Lycia, as it in Ovidb 1.7,

Quid prohibetis Aquas? usus communis Aquarum est. Nec Solem proprium Natura, nec Aëra fecit, Nec tenues Undas. In publica munera veni.

—why hinder you, said shee, The use of Water, that to all is free? The Sun, Aër, Water, Nature did not frame Peculiar; a publick Gift I claim.

And that of Virgil tooc 1.8

—Littúsque rogamus Innocuum, & cunctis und••mque, Aur••mque patentem.

Nothing but what is common wee implore, Free Aèr, and Water, and a harmless shore.

Phaenicides saith also in Athenaeusd 1.9, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, that the Sea is common. To which may bee added that memorable saying of certain Jewish Rab∣bins, who, when they acknowledged Alexander to bee Lord of the whole world, did it nevertheless with this Caution, that they conceived hee had by his Con∣quests gained a Soveraigntie onely over the Earth or drie Land, but none at all over the Sea; it beeing subject onely to God himself, as its sole Commander. The words are these out of the Ebrew, e 1.10 Non Do∣minabatur in Mari, sed Deus O. M. Dominatur, tàm in Mari quàm in Tellure. Hee ruled not over the Sea, but God Almightie is hee onely that rule's by Sea as well as by Land.

The second kinde of Arguments here, found among the Lawyers, are of two sorts. Naturali jure, omnium communia sunt illa, Aër, Aqua profluens, & Mare, & per hoc littora Maris. Item, Nemo ad littus Maris accedere pro∣bibetur

piscandi caussâ, dum tamen villis & aedificiis & Moni∣mentis abstineatur; quia non Juris Gentium, sicut & Mare. Idque Divus Pius piscatoribus Formianis & Capenatis re∣scripsit. By the Law of Nature, the Aër, Ri∣vers, the Sea, and its Shores, are common to all. Also, None are prohibited to use fishing up∣on the Shores, as long as they meddle not with Lowns, Buildings and Monuments, in regard these are not common by the Law of Nations, as is the Sea; And this was prescribed by the Emperor Antonius Pius, to the Fisher men of Formiae and Capena; which are the very words used by f 1.11 Marcianus the Lawyer▪ and byg 1.12 Justi••••ion in his Institutions. And Ulpian, h 1.13 Mari, quod Naturâ omnibus patet, servitus imponi privatâ lege non potest. The Sea, beeing by Nature free for all, cannot bee vassa∣lised by any particular Law. And in another place, saith hee; i 1.14 Mare commune omnium est & litora, si∣cut Aër. Et est saepissime rescriptum, non posse quem piscari prohiberi. The Sea and Shores are common to all, as the Aër. And wee finde it very often prescribed or commanded by the Emperors, that none bee prohibited from Fishing: With which agree's also that saying of k 1.15 Celsus. Maris esse usum commu∣nem omnibus hominibus ut Aëris. A freedom of the Sea, as well as of the Aër, is common to all men▪ In like manner, som would have it that the Romane Emperor himself was Lord onely of the Land, and not of the Sea; for proof whereof, they mention an An∣swer given by the Emperor Antoninus; l 1.16 Se quidem mundi Dominum esse; legem autem Maris; That himself was Lord of the world, but the Law of the Sea; pretending this Answer of his to bee commonly understood, as if hee refused to ar∣rogate

the Dominion of the Sea unto himself. And in the m 1.17 Basilica or Laws of the Eastern Empire, wee finde it thus written, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 The Shores are within the power of all men. So also saith Michaël Attaliates, a man learned in the Laws of that Empire, n 1.18 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 Som things are common to all, as Aër, Fountains, the Sea, Shores, and Rivers. And the summe is, that som antient Lawyers of both Empires write, that the Sea is common to all men, by the Law of Nature and Na∣tions; which if it were truly proved, either from the nature of the Sea it self, or from either of those Laws, then it could not possibly bee admitted, that the Sea might becom the peculiar possession of any one, un∣less a change were made of the Law of nature, which is commonly said to bee altogether unchangeable; or that the consent of Nations, that have interest herein, were obteined to admit of such a Dominion or Ownership. And therefore from thence they seem to hold, that a Dominion over the Sea cannot bee atteined by any antient usage, custom or prescription, nor un∣der any other pretence or title whatsoëver, for (faie they) no Plea or Barr is to bee allowed against nature, Nor (as o 1.19 Papinian saith) is a Prescription of long possession wont to bee admitted for the holding of such places as are publick and common by the Law of Nations. And these antient Lawyers here mentioned are followed by no small Train of Interpreters; though nevertheless there are not a few even of them, who restrain and qualifie that antient opinion more waies then one, touching the necessitie of a common Intercours and freedom at Sea, as wee shall shew hereafter.

But of our modern Lawyers, those that have appear∣ed

most forward in opposing a Right of Dominion over the Sea, are onely two, both indeed very eminent men, but of unequal learning and elegancie of wit; by name Fernandus Vasquius the Spaniard, and Hugo Gro∣tius the Hollander: the former an honorable Coun∣sellor to King Philip the 3. of Spain in his high Court of Exchequer. The later was heretofore Advocate Fis∣cal of Holland, Zeland, and West-Friesland, and most de∣servedly adorned with divers other honors in his own Countrie; a man of an acute judgment, and for his excellencie in all kinds of learning incomparable. But Vasquius, in his discours both of the Law of Nature and Nations, as also concerning the Rights of Do∣minion, Prescription, and other things of that nature, speak's to this effect. p 1.20 From hence (saith hee) it appear's how little esteem is to bee had of their opinion, who suppose that the Genoëses or Venetians may without injurie, forbid others to sail through the Gulph in their respective Seas, as if they could have laid claim to those Seas by Prescription; which is not onely contrarie to the Imperial Laws (above mentioned) but also against the Primitive Law of nature and nations, which cannot bee alter'd. And that it is against this Law, is evident; becaus by the same Law not onely the Seas, but all other immov∣able things whatsoëver, were common. And although in after∣time that Law came to bee abolish't in part▪ so far as concern's the Dominion and Proprietie of Lands, which beeing enjoied in common, according to the Law of nature, were afterwards distinguish't, divided, and so separated from that common use; yet it hath been otherwise, and is still, as to the Dominion of the Sea, which from the beginning of the world to this pre∣sent daie, is, and ever hath been in common, without the least alteration, as 'tis generally known. And though I hear many of the Portugals are of this opinion, that their King hath had such an antient Title by Prescription in that vast Ocean

of the West-Indies, so that other Nations have no right to sail through those Seas; and also that the ordinarie sort of our own Nation of Spain seem to bee of the same opinion, that no people whatsoëver, but Spaniards, have any right to sail through that immens and most spatious Sea, to those Indian Countries that have been subdued by the most migh∣tie Kings of Spain (as if they onely had a right by Pre∣scription thereto;) yet all these men's opinions are no less vain and foolish, then theirs, who use to dream the same things of the Genoeses and Venetians. The follie of which opinions appear's the more clearly even in this respect; becaus neither of those Nations singly consider'd can prescribe ought against themselvs; that is to saie, neither the Re∣publick of Venice against it self; nor that of Genoa against it self, nor the Kingdom of Spain against it self, nor that of Portugal against it self; for there ought ever to bee a difference between the Agent and Patient: Much less can they prescribe ought to the prejudice of other Nations, be∣caus the Law of Prescriptions is purely Civil. Therefore such a Law can bee of no force, in deciding Controversies that happen betwixt Princes or people that acknowledg no Superior: For the peculiar Civil Laws of every Countrie are of no more value, as to Forrain Countries and Na∣tions, or their people, then if such a Law were not in Bee∣ing, or never had been; ••nd therefore in Controversies of that nature recours must bee had unto the common Law of Nations Original or Secondarie; which Law certainly did never admit of such a Prescription or usurpation of Title over the Sea. Other matters hee hath of the same kinde, beeing a very confident opposer of any pe∣culiar Dominion over the Sea.

But in the year MD CIX (it beeing the year after that large Treatie held at the Hage betwixt the Spaniard and the Hollander, about freedom of

Trade and Navigation to the East-Indies) there was published that Book of Hugo Grotius, entituled MARE LIBERUM, or a discours concerning that Right which the Hollanders have to Trade in the Indies. Wherein hee endeavor's first to prove, that, by the Law of Nations, there ought to bee such a freedom of Navigation for all men whatsoëver, which waie they pleas, so that they cannot, without injurie, bee molested at Sea. Next, that the Atlantick and Southern Ocean, or the Right of Navigation to the Indies, is not, nor indeed can bee, any pecu∣liar of the Portugalls: forasmuch as the Sea (saith hee, according to the q 1.21 Laws and reasons already men∣tioned) can in no wise becom the Proprietie of any one; becaus nature not onely permit's, but require's it should bee common. Several other passages hee hath about this matter, in his excellent Book De Jure Belli & pacis; of which more hereafter. Thus much in brief, concerning those arguments that are usually brought against the Dominion or Ownership of the Sea. The next thing therefore is to explain the sens of the Question, and its terms.

Notes

• a 1.1

  T••u••idid. lib▪ 1▪ 〈◊〉〈◊〉 Dio∣dor. Si•• lib. 12.
• b 1.2

  Sigon. de Regno Italiae, lib. 20.
• c 1.3

  Franciscus Victoria de Indis, tract. 2. §. 2. 3. & 4. Joannes So∣lorzanos de Indiar. Jure lib. 2. cap▪ 20. §. 34 & seqq. Gregor. Lo∣pez in Par∣tid. 2. tit 23. l. 2.
• d 1.4

  AEneid. 1.
• e 1.5

  Hexaëmer. lib. cap. 10.
• a 1.6

  In Rudente, Act. 4.
• b 1.7

  〈…〉〈…〉
• c 1.8

  〈…〉〈…〉
• d 1.9

  〈…〉〈…〉.
• e 1.10

  Gemara Hierosolymit. 〈◊〉〈◊〉. A••••da Zara, s•••• de cultu extra∣neo. fol. 42. col. 3. ••••p. 3.
• f 1.11

  L. 2. & l. 4. ff. de Rerum Divisione.
• g 1.12

  Tit. eodem, § & quidem.
• h 1.13

  L. 13. ff. tit. communia praediorum.
• i 1.14

  L. 13. § 7. ff. tit. Injuriis, & vide eum l. 24. ff. de damno infecto.
• k 1.15

  L. 3. ff. N•• quid in pub∣lico •• 1.
• l 1.16

  D. D. ad lib. 9. ff. ad lege•••• Rhodiam.
• m 1.17

  Eclog. ba∣silic. lib. 50. tit. 1. cap. 13.
• n 1.18

  Pragmat. tit. 2.
• o 1.19

  Neque prae∣scriptio longae possessionis ad obtinenda lo∣ca jure Gen∣tium publica solet concedi. li. 45. tit. de usucapioni∣bus & usur∣pationibus.
• p 1.20

  Fernandus Vasq. Contro∣vers. illustr: lib. 2. c. 89. •• § ••. Ex his apparet quàm suspecta sit &c.
• q 1.21

  Mari Libero cap. 5. Mare pro∣prium omnino alicujus fieri non potest; Quia natura commune hoc esse nonper∣mittit, sed jubet.