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 Licence hath been usually granted to Foreiners, by the Kings of England, to fish in the Sea; Also, that the Protecti∣on given to Fisher-men by them, as in their own Territorie, is an antient and manifest Evidence of their Dominion by Sea. CHAP. XXI.

AS a freedom of passage, so also wee finde that a li∣bertie of Fishing hath been obteined by Petition from the Kings of England. There is a clear Te∣stimonie hereof in that which was alleged a before out of the Records of Parlament, concerning those Tri∣butes or Customs that were imposed in the time of Richard the Second, upon all persons whatsoëver that used Fishing in the Sea. Moreover, it appear's by Re∣cords, that Henrie the Sixt gave leav particularly to the French and very many other Foreiners, b for one whole year onely (somtimes for six Months) &c. to go and fish throughout the Sea at all times and as often, &c. But this leav was granted under the name even of a Passport or safe conduct; yea, and a size or proportion was prescribed to their Fishing-boats or Busses; that they should not bee above XXX Tuns. And it is true indeed, there was a kinde of consideration or condition added, that som others, who were subjects of the King of England, might in Fishing enjoy the same securitie with Fo∣reiners: Which was for this caus onely put into the Licence, that if the Foreiners did disturb or mo∣lest

them, they should lose the benefit of their Licence. The words of that consideration or condition, in the beginning of those Licences, run after this manner; To the end that the business of the Herring-fishing and of other Fish, may bee advanced, continued, and mainteined for the publick good; yea and that the like securitie may bee yielded and afforded to som certain Fisher-men under our obe∣dience. I suppose that those certain Fisher men under our Obedience were also the French, who at that time continued in subjection to the English; whereas almost all in France, except the Shore of Picardie, had newly revolted from the King of England: That is to say, at the latter end of the reign of Henrie the Sixt. But that which wee finde either here touching equal se∣curitie, or in other places somtimes also, about the giving of safe conduct even to the Fishermen of Eng∣land, by Licence granted, either to French, or Flemings, or Bretaigns; that usually hapned when the heat of War was over & a Cessation agreed on to treat of Peace or Amitie. In the mean time, securitie of that kinde was given on both sides now and then by agreement: But by the King of England as well in respect of his beeing Lord of the place, as his beeing a partie that was treating about a League or Amitie. By others upon this account onely, not upon that; unless you understand the questi∣on to bee about the use of Ports and Shores: For so, no man denie's but these were Lords as well as hee. More∣over also, in our time, leav was wont to bee asked of our Admiral, for French-men to fish for Soles in the neighboring Sea, for King Henrie the Fourth of France his own Table; as it is affirm'd by such as have been Judges of our Admiraltie and Commanders at Sea of an antient standing; yea, and that the Ships of those French were seized, as trespassers upon the Sea,

who presumed to fish there without this kinde of Licence.

But in the Eastern Sea, which washeth the Coasts of Yorkshire and the neighboring Counties, it hath been an antient Custom for the Hollanders and Zelanders to ob∣tein leav to fish, by Petition to the Governor of Scarb••∣rough Castle, situate by the Sea-side in the Countie of York; and this for very many years past, as is affirm••d by that learned man M^r Camden speaking of those Coasts; It is worth the while, saith hee, to note what an extraordinarie plentiful and gainful Herring-Fishing the Hollanders and Ze∣landers use to have in the neighboring Sea, having first ob∣teined leav from this Castle according to the antient Custom. For, the English have ever granted them leav to fish; reserving alwaies the honor and privilege to themselves, but through a kinde of negligence resigning the profit to Strangers. For, it is almost incredible what a vast sum of m••nie the Hollanders make by this Fishing upon our Coast. So he. There is another man also of very great skill and knowledg in Sea-affairs, who, in the time of Q. Elisabeth, presented a Book to the Parlament, written in the English Tongue, about the Commoditie of Fishing, wherein hee write's, that the Hollanders and Zelanders every year, toward the later end of Summer, send forth four or five hun∣dred Vessels called Buffes, to fish for Herrings in this Eastern Sea, c Where before they fish they ask leave of Scarborough, which are his very words. Care was taken also by Proclamation, in the time of d K. James, that no Foreiner should Fish in the English or Irish Sea, or that which belong's to the other Isles of the Realm of England, without leav first obteined, and every year at least rene••ed, from the Commissioners appointed for this purpose at London. And touching the libertie of fishing granted at other times also to Foreiners

by the Kings of England, there are many Testimonies in e other Writers. But the caus why wee do not often meet with the Forms of those Licences, granted either for passage or fishing in the English Sea, was plainly this; becaus by the Leagues that were made with the neighbor Princes, a Licence or freedom of that kinde (as also of Ports, Shores, Passage, and other things) was so often allowed by both Parties, that, as long as the League was in force, the Sea served, as if it were a com∣mon Field, as well for the Foreiner that was in amitie, as for the King of England himself who was Lord and Owner. But yet in this kinde of Leagues, somtimes the Fishing was restrained to certain Limits, which is a thing chiefly to bee consider'd. The limits related both to place and time: So that according to agree∣ment, the Foreiner in amitie might not fish beyond these Limits; the K. of England reteining a Dominion over the whole adjoining Sea. Touching this, there is a no∣table Example in the time of our Henrie the Fourth. An agreement was made betwixt the Kings of England and France, that the Subjects of both might freely use Fishing throughout that part of the Sea, which is bound∣ed on this side by the Ports of Scarborough & Southampton, and on the other side by the Coast of Flanders and the mouth of the River Seine. The time also was limited be∣twixt Autumn & the Kalends of Januarie following. And that the French might securely enjoy the benefit of this agree∣ment, our King directed Letters to that end, unto all his Sea-Captains and Commanders. Here you see plainly, those Limits wholly excluded the French from that part of the Sea which lie's toward the West and South-west▪ and also from that which lie's North east of them, as beeing so limited by our Henrie, at his own pleasure, as its Lord and Soveraign. Nor was there so much

as the least shadow of right or Prerogative, whereby the French King might seem to have any interest as a Lord or Owner in the setting of these Limits; seeing that part of the Sea which was secluded did not touch upon any Shore of his in the North, nor had hee any Countrie lying before the Sea in the South (except Nor∣mandie) or in the West; the rest beeing held either by the Duke of Bretaign or by the King of England, as wee have alreadie observed. From hence truly it was a Custom, for the Kings of England to give protection to Fisher-men that were Strangers, somtimes by Pro∣clamation, and somtimes with a Fleet of men of War, when they went to Fish either by agreement made upon treatie, or by leav obteined, qualifications beeing added according to the English King's pleasure. There is among the Records of the time of Edward the First, an Inscripti∣on, Pro hominibus Hollandiae &c. For the men of Holland and Zeland, and Friesland, to have leav to fish near Jerne∣muth. The King's Letter for their g protection fol∣low's thus. The KING to his Beloved and Trustie John de Buteturte Warden of his Port de Jernemuth Greeting. For as much as Wee have been certified, that many men out of the parts of Holland, Zeland and Friesland also, who are in amitie with us, intend now to com and fish in Our Sea near Jernemuth; Wee command you, that you caus publick Proclamation to bee made once or twice everie week, that no per∣sons whatsoëver imploied abroad in our service presume to caus any injurie, trouble, dammage, hindrance or grievance to bee don unto them, but rather, when they stand in need, that yee give them advice and assistance in such manner, that they may fish and persue their own advantage without any let or impediment. In Testimonie whereof, Wee have caused these our Letters to bee made Patents, to continue in force till after the Feast of S ^t Mar∣tin next ensuing. Witness the King at Wengham,

the XXVIII day of September. Which was in the XXIII year of his Reign, and of our Lord MCCXCV. The same day also, in favor of the ••arl of Holland and his Subjects, hee set forth three men of War toward the farther Coast of the Sea, for the safeguard (as hee saith in another Letter) of those Uessels belonging to your and our own Countrie, that are in these daies emploied about the Herring Fishing &c. and to guard your Coasts near the Sea. Here hee grant's a Protection to fish. And in both the Letters, hee limits it within the space of two Months. Hee alone also protected the Fisher-men upon the Ge••man Coasts (which, by reason of its nearness, hee call's here your Coast near the Sea, in his Letter to the Ea••l of Holland) as well as upon the English. Nor might the Fisher-men use any other kinde of Vessels, but that which was pre∣scribed by our Kings. Upon which account, all kindes of Fishing were somtimes prohibited, and somtimes ad∣mitted, this restriction onely beeing added, that they should fish in such Vessels onely as were under thirtie Tuns burthen. This appear's by those Letters of King Edward the Third concerning the Laws of Fishing, which were directed unto his several Governors of Yarmouth, Scarborough, Whitby, and Donwich, Towns seated upon the Eastern Shore. The words are these; h For∣asmuch as wee have given Licence to the Fisher∣men of the aforesaid Town, and to others who shall bee willing to com unto the said Town for the benefit of Fishing, that they may fish and make their own advantage with Ships and Boats under thirtie Tuns burthen, any prohi∣bition, or Commands of ours whatsoever to the contrarie notwithstanding, wee command you to permit the Fisher-men of the aforesaid Town,

and others who shall bee willing to com to the said Town for the benefit of Fishing, to fish and make their own advantage with Ships an•• Boats under thirtie Tuns, without any let or impediment, any Prohibitions or Commands of ours made to the contrarie in any wise notwith∣standing, as wee have said. ••itness the King at the Tower of London, August. X. Which was in the 11^th year of the Reign of Edward the Third, or of our Lord MCCCXXXIX. But if any heretofore un∣dertook the protection of the Fisher-men in this Sea, without leav of the English, they were to bee seized and imprison'd, as Invaders of the Right of Dominion, and to expect to bee dealt with accordingly, for the injurie don to the King of England.

This is evident also in the Records of our K. Edward the Fourth. For, hee erected a Triumvirate or invested three Persons with Naval Power, whom the Records call Custodes, Conductores, & Waftores, Guardians, Con∣ductors, and Waftors, whose Office it was to protect and guard the Fisher-men upon the Coasts of Norfolk and Suffolk. To the end therefore that the expences of the Guard might be defrayed by the Fisher-men, and all others whatsoëver bee excluded from medling with this kinde of Guard or protection, hee appointed four men, by name Sir John Hemingham Knight, William Hopton, Edmund Yve, and John ••ansfleet Esquires, as well (say the i Records themselvs) to over-see those Guar∣dians, Conductors, and Waftors, as to give notice to all Fishermen of what Countrie soêver they bee, who shall desire to fish in the Parts aforesaid under the protection of the said N. N. that those Fisher-men and everie of them, do contribute to all and all manner of Costs, Charges, and Expenses belonging to the same Guardians and Conductors in the time of fishing, and charge all

such Costs, Charges, and Expences according to a proportion, and to levie and collect those Costs, Charges, and Expences, out of this kinde of Fishings belonging to the Fisher-men aforesaid, wheresoê∣ver they may bee found; As also to arrest and apprehend all others, except the afore named, who presume or attempt to becom Guardians, Conductors, or Wastors, and to commit them to our next Gaol, there to bee kept safely and securely, till wee shall take order for their deliverie. In the very same words almost, to the same purpose, wee finde divers Letters Patents of King Henrie the k Seventh; yea, and of Richard the l Third, save that in the form hereof, after those words [charge all such Expences according to a proportion] this considerable Claus here is inserted [Although the same Fishermen, whe∣ther any one or more of them, may have had Letters of safe Con∣duct from any other King, Prince, or Governor of any Kingdom whatsoëver.] So that by the received and usual Custom, the Charges of the Guard were to bee defraied by the Fisher-men of this Sea, at the pleasure of our Kings, though they might have had Letters of publick security and protection from any other Princes. Nor were any other persons to bee admitted to a partnership in this kinde of Guard, except those that were appointed by the King of England, lest by this means perhaps it might derogate from the English Right. Which is a manifest sign or evidence of the Dominion and Possession of the place.

Notes

• a

  Cap. XV.
• b

  Rot. Fran∣cie 38. Hen. 6. Membran▪ 9. & 14.
• c

  Hitcho•••••• New years Gift. Edit. Londinens. 1580.
• d

  Proclmaat. 7. of King Ja••••••, May 6.
• e

  Gerard. Malinius in Lege Mer∣catoriâ, cap. 35.
• Rot. Fran∣ciae, 5. Hen. 4. 29. Septemb.
• g

  Rot. Pa∣tent. 23. Ed. 1. Membr. 5.
• h

  Rot. Claus. 11. Fd. 3. Membran. 35.
• i

  Rot. Pat. 22. Ed. 4. Mem∣bran. 2.
• k

  Rot. Pat. 3. Hen. 7. part. 2. in dorso 15. August. & part. 1. in dorso. 18. Septembris.
• l

  Rot. Pat. 2. Rich. 3. part. 1. Membran. 2.