What is meant by the word SEA, in the Question. Also a division of the LAVV, in order to the discours. CHAP. III.

AS to what concern's the present Question, Whether the Sea bee capable of private Dominion, wee take the word CAPABLE in the same sens, as it was used by the Emperor Traian Page  12 in an Epistle of his, to his beloved Plinie; a Solum peregrinae civitatis capax non esse dedicationis quae fit jure nostro; The soil of a strange Citie is not capable of such a dedication as is made by our Law Moreover, wee shall explain what is meant by the SEA, as also by those Terms of LAW and DOMINION. By the SEA wee understand the whole Sea, as well the main Ocean or Out-land Seas, as those which are within-land, such as the Mediterranean, Adriatick, AEgean or Levant, British, and Baltick Seas, or any other of that kinde, which differ no otherwise from the main, then as Homogeneous or Similary parts of the same bodie do from the whole. But the Law (as it is the rule, measure, and pointing out of things lawful or unlawful) fall's under a twofold consideration. Fither as it is Obligatorie, which is called also Preceptive; or as it is Permissive, which is also by writers commonly termed Con∣cessive. As Obligatorie, it is known by such things as are commanded or forbidden, as to give every man his due, not to forswear, and the like. As Per∣missive, it is set forth by things whose use is nei∣ther commanded nor forbidden, but permitted; as in the very Act of buying, selling, infranchisement, framing conditions of contract according to the will of the contractors, and many more of the same nature. But both these kinds of LAW concern either mankinde in general, that is, all Nations, or not all. That which relate's to the generalitie of mankinde, or all Nations, is either Natural or Divine. That is, either manifested by the light of nature or the use of right reason, beeing elegantly described by Tertullian to bee the b Common Law writ∣ten throughout the whole world, in the very Books of na∣ture; Page  13 and by the Grecians called c the Law of man∣kinde, and by the Civilians the Primitive Law of Na∣tions; or els it is• declared and set down in those Divine Oracles that have been committed to wri∣ting: Both which may properly bee termed the universal Law of Nations, or the Common Law of man∣kinde. And whatëver is Obligatorie in either of these, either out of the nature of the thing it self, or rather from the autoritie of the father of nature, is reputed by men to bee unchangable; according to that saying so often used by d Philosophers, e Di∣vines, and f Lawyers, That the rights and Laws of nature are immutable, Which cannot bee said of the Permissive Law, whether Natural or Divine, re∣lateing to mankinde in general: for it is obvious to every man, that as Permissive, it must needs bee various and changable, according to the judgment and pleasure of persons in power; and therefore subject to Repealings, Qualifications, and daily Alterations; whereas in the mean time that kinde which is Obligatorie may admit Additions or Inlarge∣ments (such as may serv for more certaintie and convenience of observation,) but no Alterations, in any wise to diminish it's autoritie. Out of such Additions as are made to that which is Obligatorie, and Alterations of that which is Permissive, another kinde of Law takes it's rise, which is of a more narrow Sens and Acceptation, and relate's, not to all Nations or the Universalitie of mankinde, but onely to som particulars thereof, and it is ordinarily well termed Positive (as beeing positively ordained either by God or men;) Somtimes also it is termed g Civil, and an Addition of right Reason. This Positive Law may bee divided into that which is singular and pe∣culiar Page  14 to any one particular Nation or Societie of mankinde (as was the h Law concerning Paternal power among the Romans, and the custom of the i Athenians touching the same;) or into that which is received by divers Nations. Again this last is di∣vided into two parts; either into that which bind's divers Nations jointly, equally, and indifferently, by som common obligation; or ell into that which bind's divers Nations or people, not jointly, and equally, or by any common obli∣gation, but singly and by Accident. And of this three∣fold kinde of Positive Law, wee may call the first the Law purely Civil, as it relate's to any one particular civil societie. The second the Common Law of divers Nations, so named from som common tie or obliga∣tion betwixt them. The third the Law of som or divers Nations, Civil or Domestick, by reason of that Domestick and Civil tie onely, whereby they are bound singly among themselvs, without any obliga∣tion to each other in common. As for example, the Laws of the XII Tables that were brought from Athens to Rome, remained in force in both Nations, as well in the Romane, as in the Athenian; but not by any common or mutual obligation between them: And therefore that Law of the XII Tables ought much more properly to bee called the Civil Law of those Na∣tions, then simply of both Nations (in any such sens as import's a Joint-Interest or Communion.) But as to that which jointly concern's divers Nations by mutual obligation, that is, the Common Law of divers Nations, it is divisible likewise into two parts, to wit, into that which is Imperative over divers Nations or people; or that which is Intervenient. By the Imperative Law of Na∣tions, is meant that which is observed or receiv's Autori∣tie among several Nations or people, who are subject to Page  15 supreme Powers that otherwise are distinct, and this by reason of an Obligation equally common to them all, but derived from som other, and enjoined by som special Command, either from God or man. Of this kinde was that Law of the D•lopes, the Magne∣sians, Phthiotae, Thessalians, and other people of Greece, who beeing equally obliged by the command of k Acrisius King of the Argives, submitted to the juris∣diction of the grand Parlament or Assembly of Am∣phictyones. Of the same kinde likewise was that * Mi∣litarie Law enjoined by God, not onely to the People of Israël, but also to the Canaanites with whom they were to wage war: For, they were both obliged by the Autoritie of him that commanded, though after a divers manner. And when any Nations, in obe∣dience to the Pope's Autoritie and command, do alike submit to one and the same Law, it may bee rightly called the Imperative Law of Nations. But that is to bee called the Intervenient Law of Nations, which take's it's rise, not from any command imposed upon several Nations in common, but through the intervention ei∣ther of som Compact, or Custom; and it is com∣monly styled the Secondarie Law of Nations: The princi∣pal heads whereof are conteined in the Laws about pro∣claiming War, Ambassie, Prisoners of War, Hostages, Right, Remitter upon return from Captivitie, Leagues and Cove∣nants, Commerce, and other matters of that Nature which usually intervene betwixt divers Nations. For, as much as in these Laws here spoken of, it is in several Nations wholly composed of such Additions as have been made to the universal Obligatorie Law of Nations, and of such Alterations as have accrued to the Universal Permissive, and no more may challenge the name of Imperative or Intervenient. And it is most plain, that the Page  16 rest retain's still the name of the Universal or Primitive Law of Nations. Moreover also, the Imperial Law, which usually take's place in all Controversies about the afore∣said Particulars of the Intervenient Law, so far as it agree's with the Universal Law of Nations, Natural or Divine, is to bee comprised under the same Notion; But as by the consent of some certain Nations, with whom it is in use, divers principal heads and deter∣minations of it (beeing no part of the Universal Law) are so made use of, it most clearly fall's under the name of the Intervenient Law of som Nations. Lastly, as it is re∣ceived and used at home by som particular People in their Courts of Judicature, it is to bee called the Law Civil or Domestick of divers Nations. And thus having gi∣ven you a plain Scheme of the Law, in all those various Notions and Acceptions that are to bee used in the Controversie; it remain's that in the next place that of Dominion or Ownership bee taken into consideration.