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.

That the natural-Permissive Law (whereof any use may bee in this place) is to bee de∣rived out of the Customs and Constitu∣tions of the more civilized and more noble Nations, both antient and modern. CHAP. VII.

AS to what concern's here the Law Natural, as one head of the universal or Primitive Law of Nations, in our former Division of the Law, commonly de∣rived from a right and discreet use of Reason; that it doth in no wise gainsay a private Dominion of the Sea, but plainly permit it, wee shall prove hereby; be∣caus by the positive Law of Nations of every kind, which is humane, (for wee have alreadie spoken of the Divine) to wit, as well by the Law Civil or Domestick of divers Nations, as the Common Law of divers Nations, whether it bee Intervenient, or Imperative; that is to say, by the Customs of almost all and the more noble Nations that are known to us, such a Dominion of the Sea is every where admitted. It is not indeed to bee denied, that a right use of humane Reason, which usually serv's as an Index of the natural Law, cannot well bee gather'd from the Customs of several Nations, about things Divine or such as relate unto Divine Worship. Nor are the Points either of the Obligatorie or Permissive kinde of natural Law relating thereunto, to bee thence de∣termined. For, it hath been the common Custom of men, in all Ages and throughout all parts of the known World, to conclude of such maters, either without exact and convenient examination, or els for the serving of

their own Interests, or els to suit with the humor and disposition of the people whom they are to rule and keep in order; as do the Pagans, Mahometans, and others of that sort, as well modern as antient. And therefore Antisthenes of old taught well and boldly at Athens, a as many other Philosophers have don, Populares Deos esse multos, sed naturalem unum esse, That there are many National Gods, and but one Natural, contrarie to what the most usual practice of men and Custom had introduced among the ordinarie sort of People. So that as of old in the Jewish Church, so also in the Christian, the use of humane Reason among the vulgar, though free in other things, yet when it dived into the contemplation or debate of Religious matters, it hath often been most deservedly restrained, by certain set-Maxims, Principles, and Rules of holy Writ, as Re∣ligious Bolts and Bars upon the Soul; lest it should wantonize and wander, either into the old Errors of most Ages and Nations, or after the new devices of a rambling phansie. And truly, such a cours as this hath ever been observed in Religious Government. But in such things as are meerly humane, and so humane that they reflect only upon matters of dutie betwixt man and man, and are not forbidden by any command of God (of which kinde you cannot so much as imagine any thing more plainly to bee, then a distinction of the Do∣minion of Territories, and the manner thereof which is wholly grounded upon the consent of men) that which shall bee permitted by the Law Natural, is no less rightly determined by the Laws, Placarts, and received Customs of divers Ages and Nations, both antient and modern, then it may bee collected what every Clime will or will not bear, by the diligent observation of Countries, Shrubs, Trees, Plants, and other things

which belong unto the bodie of Husbandrie. For, as many Nations as have admitted such a private Domi∣nion as wee inquire after, whether by a Law Civil or Domestick of their own, or by any Law common to themselvs and their neighbor-Nations, are either to bee allowed competent Witnesses of the natural permissive Law (so far as there is any use of it here;) or els it must bee said (which I believ no man dream's) that so many and those the more famous Nations, have for so many Ages erred against Nature. Concerning the Law Natural, Justinian saith, b Quod Naturalis ratio inter omnes homines constituit, id apud omnes populos peraequè custoditur, vocatúrque Jus Gentium, quasi quo Jure omnes Gentes utuntur. What Natural reason establisheth among all men, that is observed by all people alike, and is called the Law of Nations, as it were by a Law which all Nations use. And Caius; c Jus Gentium ratione naturali inter omnes homines peraequè ser∣vatur; The Law of Nations is by natural reason observed alike among all men. But where are all Nations? It is not yet discover'd how ma∣ny there are, much less upon what Customs they have agreed. Nor is that in any wise found in the Customs of all those Nations that are discover'd, which som notwithstanding imbrace as a part of the Law Permissive. What have the midland Nations to do with that Law concerning the Confiscation of wrecks at Sea, which hath been used by the English, Britains, Sicilians, and som other Nations bordering up∣on the Sea. The inslaving of Prisoners of War is grown out of date, as a thing not permitted among Christian Nations, which nevertheless is in use still among the Mahometans. In vain therefore is a Rule and Direction sought here out of the

Customs of all Nations; but especially seeing som are not wanting who

—non foedera Legum Ulla colunt, placidas aut Jura tenentia mentes;

Whom neither League nor lawful compact bindes; Nor Laws that rule and pacifie men's mindes.

as hee saith d of the Bebrycians. That there have been som such Nations, is expresly recorded also by e Ari∣stotle. And Salust, out of the mouth of f Hiempsal, saith concerning the Getuli and Libyans, the antient Inhabitants of Africa, Neque moribus, neque Lege, neque Imperio cujusquam regebantur, They were ruled nei∣ther by Custom, nor by Law, nor by the com∣mand of any. And in another place concerning the g Aborigines; Genus hominum agreste, sine Legibus, sine Imperio, liberum atque solutum; A rude sort of men, without Laws, without Government, free and dissolute. Therefore wee must have re∣cours here unto the more civilized and more emi∣nent Nations of the past and present Age, and of such whose Customs wee are best acquainted with. And among them truly, not onely such as those very Nations, whom it may chiefly concern here, have ever highly esteemed; but also those Nations, who are concerned at present, shall bee proved compe∣tent Witnesses.

But of the Testimonies, that wee intend to use there is a twofold kinde. Som are those which shew, that a Soveraigntie and private Dominion of the Sea hath been by Historians and other Writers, almost in all Ages, acknowledged and granted to Princes,

People, and others. Other Testimonies there are which demonstrate out of Lawyers, also by Leagues and Treaties, and other particulars of that nature, that such a Dominion of the Sea, is in like manner agreeable unto Law. Both which wee interweav, as the order of Things direct's us. But yet so, that what matters, either of Fact or Law, do appertain unto the British Sea, are wholly pretermitted in this collection of Testimonies, with an Intent to dispose them apart in the second Book. And so at length it will bee very clearly manifested together, both what the Civil Law of Nations, as also what the Common Law of divers Nations; and lastly, what the natural permissive Law (which in this case is to bee drawn out of the Customs of Nations) hath determined touching pri∣vate Dominion of the Sea.

Notes

• a

  Cicero de Naturâ Deo∣rum, lib. 1.
• b

  Instit. de Jure Nat. §. Jus Natu∣rale.
• c

  L 1. ff. de Adquir. re∣rum Domino.
• d

  Val. Flacc. Argonauti••. 4.
• e

  Nicomach. lib. 7. cap. 6.
• f

  In bello Ju∣gurthino.
• g

  In conju∣rat. Catilinar.