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.

Of divers Testimonies in our own Law-Books, and the most received Customs, whereby the Sea-Dominion of the King of England, is either asserted or admit∣ted. CHAP. XXIV.

THE seventh of those Heads, according to the former Division, which manifest the aforesaid Dominion of the Kings of England, relate's to our Law-Book's, and the received Customs therein, which prove it from the most antient times. There are also in them many Particulars that may relate hereunto, which are explained now and then touching the Guard of the Sea, the English Admiraltie, and other things alreadie handled. But in this Chapter wee shall use either the determinations and Commentaries of our own Lawyers, or chiefly such Court-Records as ex∣plain their opinions. I confess indeed in som of the

Authors of our Law who wrote above CCCL. years ago or thereabout, after they had (as the manner then was) read through the Civil Law also, they were so strict in following those determinations word for word, which they found concerning the Sea in that Law, that when they treated de acquirendo Rerum Dominio of the manner of acquiring the Dominion of things, they tranferr'd them into their own writings. From thence it is, that Henry Bracton, who was a very famous Lawyer at the later end of the reign of Henrie the Third, saith, a Naturali jure communia sunt omnia haec, aqua Profluens, aër, & Mare, & litora Maris quasi Maris accesso∣ria. By the Law of Nature all these things are common, running water, the Aër, and the Sea, and the shores of the Sea as accessories or depen∣dants of the Sea. Also, aedificia, si in mari five in li∣tore posita fuerint, aedificantium sunt de Jure gentium, If Buildings bee raised in the Sea, or upon the shore, they becom theirs that build them by the Law of Nations. And a little after, Jus piscandi omnibus commune est in portu & in fluminibus, a Right of fishing is common to all in a Haven and in Ri∣vers. Which wee finde likewise in b som other of our Law-Books of that Age, as a passage that fell from som Writers (of whom I spake at large in the former Book) that were more affected than was meet with the words of Ulpian and Justinian, in the general division of things. But these very men in other places, shewing the Customs of our Countrie, do sufficiently admit the King's Dominion by Sea. For Bracton himself after∣ward speak's of them that by the King's grace and favor c quieti sint de Theolonio & consuetudinibus Dandis per totum regnum Angliae in terrâ & mari, & per totum Reg∣num tam per terram quàm per mare, Were exempted

from paying Tolls and Customs, throughout the whole Kingdom of England in the Land and in the Sea; and throughout the whole Kingdom both by Land and by Sea. And in the same King's time a freedom from som paiments was granted to the Citizens of London d per totum Regnum tam per mare quàm per terram, throughout the whole Kingdom as well by Sea as by Land. And so Bracton, when hee return's to speak of the Customs of our Countrie, acknowledged that the Dominion of the Sea belong'd to his King no less then the Land. And hence it came to pass also, that inter Capitula Coronae (as they call them) that is to say, those Articles or chief Heads, whereof enquirie was to bee made according to the usual custom, by Judges delegated throughout England for the conservation of the publick peace, wee finde this also, de Purpresturis factis super Dominum Regem, sive in Terrâ sive in Mari, &c. Of Pourprestures made upon our Lord the King, either on Land or in the Sea, or in sweet waters, either within the Libertie or without, or in any other place whatsoëver. And it is placed among the Articles of this kinde recited by e Bracton himself, and in the f Au∣tor of the Book called Fleta. But in the language of the Law wee call those things Pourprestures, whereby de∣triment is don to any publick place belonging to the Patrimonie of the Crown, as a publick thorow-fare, a River, and the like: So that according to the nature of this ordinarie Article touching Pourprestures, in the general form of enquirie, the Dominion or Ownership of the Sea is ascribed to the King, no less than of the Land, or of publick Road or thorow-fare, and River. agreeable hereto is that Article about any kinde of salt∣waters beeing inclosed by any subject, or possessed in

any other manner; which in the antient Records of our Court of Admiraltie is said to bee don, to the disheri∣son of the King. The words are there, g Item soit enquis de ceulx qui acrochent à eulx eaves salees en desheretison du Roy. And at this day, enquirie is wont to bee made, about that business, by Autoritie of the high Admiral. Robert Belknap also, an eminent Judg in the time of Richard the Second, h saith that the Sea is subject to the King, as a part of his English Kingdom or of the Pa∣trimonie of the Crown. His words in the Norman tongue run thus; Le Mere est del ligeans del Roy, come de son corone d' Angleterre. Hee added to his words, in a re∣markable way, as belonging to the Crown of England, or as belonging to the Royal Patrimonie of England, to the end that no man might question, whether the Sea belong'd to his King by the Right of the Kingdom of England, or of the Dutchie of Normandie, or of any other Province in France. Another also, who wrote in the time of Henrie the Eighth, saith, it hath been received by antient custom, that it is a dutie lying upon the King of England, as Lord of the British Sea, to scour the Sea of Pirates, and to ren∣der the use thereof as of a publick Road or Thorow∣fare whose soil is within his Patrimonie) safe for Shipping. For, hee expresseth himself in English thus; i The King of the ould Custome of the Realme, as the Lord of the narrow Sea, is bound, as it is said, to scoure the Sea of the Pirates and pe∣tit robbers of the Sea. So much also, as to what concern's Dominion, is without controversie admitted by our k Lawyers of later time. And it appear's by pub∣lick Records, conteining divers main points, touching which the Judges were to bee consulted for the good of the Common-weal in the time of King Edward the Third, that the King's Sea-Dominion, which they cal∣led

the antient superioritie of the Sea, was a matter out of question among our Lawyers of that Age. But con∣sultation was had for the more convenient guarding of it: For, the whole Bench of Judges were advised with to the end (so wee read it in the l Records; and that is especially to bee observed which wee finde here about the first beginning of the Naval Laws of the Isle of Oleron, seated in the Creek of Aquitain at the mouth of the River Charente) that the form of proceeding heretofore ordai∣ned and begun by Edward the first, grandfather of our Lord the King and his Council, at the prosecution of his Subjects, may bee resumed and continued, for the reteining and conserving of the antient superioritie of the Sea of England, and the Autoritie of the Office of Admiraltie in the same, as to the cor∣recting, expounding, declaring, and conserving the Laws and Statutes long since made by his Predecessors Kings of England, for the mainteining of Peace and Justice among all people of what Nation soëver passing through the Sea of England; and to take cognisance of all attempt to the contrarie in the same; and to punish Offenders and award satisfaction to such as suffer wrong and damage; Which Laws and Statutes were by the Lord Ri∣chard heretofore King of England, at his return from the holy Land, interpreted, declared, and published in the Isle of Oleron, and named in French le ley Olyroun. Here you have it declared as a thing most received and certain, that the King of England hath, by antient right, been Lord of the Sea, of the same name, or that which flow's about it. But that whereof the Bench of Judges were to con∣sult, was onely about the orderly maintenance of this right. Nor is it truly a small sign of this Dominion, that Richard the First King of England, beeing in the Isle of Oleron, which hee possessed as seated in his own Sea, not so much for that hee was Duke of Aquitain as King of England (whereof wee have alreadie spoken) did, as sole

Ruler and Moderator of Sea-affairs, first publish those Naval or Sea-Laws in that his Island, which hold in force to this day, and from that time gave them so large and perpetual an Autoritie by that name, that as the Rhodian Naval Laws (as the case stand's) do prove, that the Rhodians in antient time were Lords of the Grecian Sea, so the Laws of Oleron having m obteined such a kinde of Autoritie by Sea, from their first Institution, must ever declare the King of England as the Autor, to bee Lord of the neighboring Sea round about. But som printed Copies of these Laws, make them about sixtie years later than the Reign of that Richard; by what au∣toritie, I cannot tell. For, they relate them to have been made in the year MCCLXVI, which is the fiftieth year of our Henrie the third. Also, in the Law of the Land, it is reckoned among the Privileges of such as are ab∣sent, that they, who shall bee out of the Realm of England at the levying of a Fine of any Land, and making Pro∣clamations thereupon, are not so bound either by a yearly prescription, as heretofore, or by a five years pre∣scription, as is usual of later time, but that their Right remain's entire to them upon their return home, if they make their claim, within the like spaces of time. But intra regnum within the Kingdom is by the same Law taken, and that in the usual phrase for that which is intra (or as it is wont to bee barbarously render'd infra) Quatuor Maria, within the four Seas, to wit, the Southern, Western, Eastern, and that Northen Sea which washeth both the sides of that neck of Land, whereby Scotland is united to England. That is to say, within the outmost bounds of the English Empire in those four Seas, or within the opposite Shores of the Eastern and Southern Sea or Ports belonging to other Princes, and within the bounds of the Northern and

Western Sea, which indeed are to bee bounded after another manner; but yet to bee bounded: that is, accordirng to the extent of possession West-ward be∣yond the Western Shores of Ireland, and by the first be∣ginning of that Sea, which is of the Scotish name and jurisdiction. But that which is opposed to this Particle intra quatuor maria, within the four seas, is that o extra quatuor Maria, without the four seas, or to bee in the parts so beyond the Seas, that they bee beyond the bounds of the Sea-Dominion of the King of England; from whence wee are to determine of the bounds or exterior limit of the Seas. And although the Land of England bee somtimes used for that which is the whole Realm, or English Empire, as signify∣ing the same, a more ordinarie and indeed more brief expression beeing applied (as is usual) in stead of a more large; yet it certainly appear's, that extra quatuor maria, without the four seas, and extra Regnum, with∣out the Realm, do in our Law-Books signifie the very same thing (that is to say, so far as the extent and latitude of the whole English Empire is comprehended in the name of Realm, not as the Realm of England, is now and then distinguished in p our Law from Ireland, which also is a distinct Dominion of the same Empire, or from the other Islands which are recko∣ned in the Roial patrimonie of the Kings of Eng∣land.) For, it is usual in the Language of the Law, so to describe him, who, in that sens, shall bee out of the Realm. And whereas in the Reign of Richard the second to an objection made against one that would avoid the yearly prescription as not bound by it, for that hee was not in England, it was excep∣ted that hee was in Scotland, and so within the four Seas; It was thereupon q answer'd and rul'd by the

Court, that the Exception was of no force, for that Scotland was not within the Bounds and Limits of England. So that within the four Seas, and within the Realm, signified one and the same thing; from whence these terms, out of the Realm, and with∣out the four Seas, becom one and the same also. To bee out of the Realm, is very r often repeated in this ••en•• also, by Littleton, the most excellent of all our Law-Writers, signifying no other thing than what hee renders it in s another place, by one who ala ou∣stere le mere, crossed the Sea, or, went beyond sea. ••rom thence also it seem's to have proceeded, that, whereas with us, among the several temporal excuses of Defendants, who are summoned to appear in Court (in our Law wee call them Essoins) there are two alleged, whereof the one is intitled de ultra Mare, the other De Malo veniendi, and this latter is allowed to him that is hindred by any kinde of mis∣fortune whatsoever, within the Seas, or on this side of the more remote bounds of those Seas, which be∣long to England; but the former to him who live's without, or beyond the Seas, belonging to the English Em∣pire; From thence it seem's, I say, to have proceeded, that, in former times, when there was a more frequent use in Court of this kinde of excuses, a Defendant beeing absent in Ireland, might lawfully make use of the latter form of Essoin, but not of the former. Never∣theless, if through ignorance hee did make use of this, it took on the nature of the latter, that is, wholly quit∣ting all its own nature, it depended upon this, that the Defendant, according to the more vulgar sens•• or ac∣ception, lived beyond-Sea. For, according to received Custom, the nature of them both was such, that when any one might lawfully use the former, hee might also 〈1 page duplicate〉〈1 page duplicate〉

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after a while likewise enjoy the benefit of the latter. But in the said kinde of Essoins or Excuses, the former not beeing lawfully made use of, but yet turned into the latter by construction of Law, lest it should becom of no use, there was no place for the latter; to the end it might not bee iterated contrarie to Custom. The matter it self was thus decided in the time of K. Hen∣rie the third, as it is described by Henrie Bracton, after this manner. Esto, saith hee, quòd quis se Essoniave∣rit de Ibernia quasi de ultra Mare; attornatur Essonium illud ad simplex Essonium de Malo veniendi ut coram Martino de Patteshul in Banco, anno Regis Henrici Sexto de Gil∣berto Mariscallo & Ceciliâ uxore ejus & Allano de Hyda, qui vocavit ad Warrantum Willielmum Mariscallum in Comitatu Pembroke, & qui se essoniavit de Ibernia, & non fuit allocatum, & postea fecit de hoc quòd aliud essonium de malo veniendi ad alium diem non fuit allocatum. So much wee finde also in the antient Autor of that Book entitled Fleta. Doubtless, Ireland is no less seated beyond sea, than either France or Spain, unless you take that decisi∣on, as relating onely to the Civil notion of this kinde of situation; to wit, that it is not situate beyond that Sea which is a part and Territorie of the English Em∣pire, but placed therein, and comprehended under one and the same Supreme Power with England; and so that an Excuse or Essoin de ultra mare, is not in that kinde to bee admitted. In the antient x Records also concerning the Customs of our Court of Admiraltie, wee read it was an usual Custom in the time of King Henrie the first (who died Anno Dom. MCXXXVI.) and of other Kings both before and after him, That, if any man accused of a capital crime don by Sea, beeing pub∣lickly called five times by the voice of the Crier, (after so many several daies assigned) did not make his ap∣pearance

in the Court of Admiraltie, hee was banished out of England & de mer appurtenant au Roy d Angleterre, or out of the Sea belonging to the King of England, for four∣tie years, more or less, according to the pleasure of the Admiral. Other particulars there are that relate here∣unto about Actions for matters arising in this Sea, that were wont to bee entred in express terms heretofore, in the y ordinarie Courts of our Common Law, who••e Jurisdiction was ever esteemed of such a nature, that an Action instituted about a matter arising in any other place than within the bounds of the Realm, was by the antient strict Law, alwaies to bee rejected by them. After which manner as it hath been a Custom now for many years, that an action ought to bee rejected, unless the matter have its rise within the Bodie, (as they call it) of the Countie, that is, within som Pro∣vince or Countie of the Island, usually given in charge to certain Governors or Officers, known to us by the name of Sheriffs. So also is it in this Sea-Province, be∣longing, by the antient received Custom, to the high Admiral, or his Deputies, not onely so far as concern's its defence and guard, but also as to matter of Jurisdi∣ction. So that at length it is manifest, that the Sea-Do∣minion of the King of England, is without controversie admitted and asserted also, both by the Determinations and Customs of the Law of the Land, and by the ex∣press words of the Writs and Forms of the Actions themselvs.

Nor is that of any force at all to the contrarie, which either our Countrie-man Bracton the Lawyer, (as hath been said) or som others, of late as well as antient time, that are Followers of him, but in too careless a manner, (while they z set down the Institutions of our English Law) have unadvisedly utter'd by the way,

touching that antient communitie of the Sea, and of Fishing also in Rivers, according to the Books of Justi∣nian; as if such a kinde of communitie were admitted in our Law. Truly, that which they have so let slip, is not so much to bee taken as contrarie to the known Law of the Land in this particular (for, even Bracton himself, as I have shewn, hath divers other passages that signifie this Dominion of the King) as it is to bee reckoned for som of the reliques of Ulpian, or of the School of the Imperial Law, too slightly and carelesly added by the way in writing. And the like may bee said of a one or two more of our Writers, who after the manner of reasoning, received for the most part in the Imperial Law, touching the middle of a River, and an Island risen therein, do by the way, but igno∣rantly, make the middle of the Sea flowing between to bee the bound of this Sea-Dominion of our Kings. Moreover, the same may bee said likewise of the b Commissioners of Queen Elisabeth, who treating at Bremen with the Commissioners of Christiern the fourth King of Denmark▪ about a freedom of Navi∣gation through the Northern Sea, object a perpetual communitie of every kinde of Sea, from the Law of Nations, denie a Dominion, and wrest other things by way of Argument out of the Writers of the Im∣perial Law, which are clearly contrarie to our Eng∣lish Right, as also to the Intervenient Law of Nations, which hath continued in force for so many Ages about the Dominion of the Sea. Either, I say, the same must bee said of them, or els that they did not so much make choice of Arguments which they thought were true, to serv the present occasion, as of such that might seem to have the greater force and autoritie a∣mong those Civil Lawyers with whom they were in

Treatie. Nor is it a new thing, that Civilians should speak of a natural and perpetual communitie of the Sea, even where it is most certain that a Dominion thereof is admitted from all Antiquitie, in the very Territorie wherein they themselvs are comprehended; as I have formerly declared. There are also very many Rights among us, belonging either to the Exchequer, or to such as enjoy the Right of the Exchequer by Grant from the King, which som conceiv to bee grounded upon that Sea-Dominion, whereof wee discours: As the confiscation of Goods derelict in the Sea, and of som of the greater sort of Fish, as Wale-Fishes, Sturgeons, and others. And for the most part that of the Satyrist hold's good,

c Quicquid conspicuum pulchrúm{que} ex aequore toto est, Res Fisci est ubicunque natat.—

Goods in the sea of any worth and note, Belong to th'Chequer wheresoëre they flote.

Besides wreckt goods cast out ashore, when no li∣ving creature belonging to the ship remain's alive. But these things do not onely appertain to him that is Lord of the Sea, but somtimes also to others in other Na∣tions. And they for the most part depend, either upon the Law or Custom of som Land, as in the case of Goods cast ashore, or of such as are found and impor∣ted; or els upon a Right over such Persons as shall first possess them, as in the case of any Goods whatso••ver derelict or found in the Sea, and others of that kinde. Therefore I thought it not meet to draw those things here into Controversie.

Notes

• a

  Lib. 1. seu de Rerum divisione, cap. 12. §. 5. & 6.
• b

  Autor Fle∣t•• Ms. lib. 3. cap. 1. Breto•• lib. 2. cap. de Purchas.
• c

  Bracton lib. 2. cap. 24. § 2. & 5. fol. 56. & 57.
• d

  Rot. Pat. 〈◊〉〈◊〉 Hen 3. memb••. 〈◊〉〈◊〉.
• Pourpre••••u∣re is pro∣perly, when a man en∣croacheth, or when a∣ny thing is don to the nusance of the King's Tenants.
• e

  Lib. 3. de Corona, cap. 1. § 3. & cap. 2. § ••. fol. 116^b. & 118^a.
• f

  Fle••a, Ms. lib. 1. cap. 20.
• g

  Cod. Ms. de Admiral∣latu, fol. 18^b. Artic. in Admirallat. inquirend. Edit. anno 1595. num. 33.
• h

  6. Rich. 2. Fitzherbert tit. Protecti∣on. 46.
• i

  Seingerman. lib. 2. cap. 51.
• k

  Ed. Coke part. 5. fol. 108. & in Comm. ad Littleton sect. 439. fol. 260.
• l

  In Fascic. de superiori∣tate maris, in Arce Condinensi.
• m

  Edict. France, tom. 3. tit. 2. Ju∣ribus & pri∣vilegiis Ad∣mir••••li §. 19.
• Stat. 18. Ed. 1. seu de modo levandi Fines. Bra∣cton, lib. 5. de exceptio∣nibus, cap. 30. fol. 437. 2. Ed. 3. fol. 9^a. 4. Ed. 3. fol. 46. pl. 30. Fitzherbert 8. Rich. 2. tit. Conti∣nual Claim, 13. Plow∣den, C••••∣ment. 1. part. fol. 359. & 360. &c.
• o

  Bracton ib. & Coke 7. Jacobi R. part. 8. fol. 100. Cas. Rich. Lich∣ford.
• p

  Coke, part. 7. in cas. Cal∣vini, fal. 23.
• q

  Fitzherbert, tit. Continual Claim, 13.
• r

  Sect. 440. & 441.
• s

  Sect. 677. & videsis Plowden, Comment. part. 1. fol. 359. & 360
• Essoin is an alledg∣ment of an excuse for him that is summo∣ned, or sought for to appear, and answer to an acti∣on. It is as much as ex∣cusatio with the Civili∣ans.
• Lib. 5. ••ract. de Esson••is, cap 8. §. 2.
• Ms. lib. 6. cap. 8.
• x

  Ms. fol. 12^b.
• y

  Temp. Ed. 1. Fitzherbert tit. Avowr••e 192. & Pla∣cit. 37. & 38 Hen. 3. Rot. 10. Devon. Itin. Suffer. 47 Hen. 3. Rot. 10. Trin. 50 Hen. 3. Rot. 22. & Trin. 24 Ed. 3. in Brevi∣bus Regis inter Pilke & Uenore; quae in Arcis Londinensis Archivo. Ejusmodi item sunt alia.
• z

  Jo: Cowel. Instit. Juris Anglicani lib. 2. tit. 1. sect. 3. & 4.
• a

  Andraeas Horn Ms. in speculo Justit••ario∣rum, lib. 2. & Joannes Dee in Mo∣narch. Britan. pag. 21.
• b

  Anno 1602 apud Cam∣den. in An∣n••libus, Tom. pag. 272. Edit. Lon∣dinens.
• c

  Juvenal. Satyr. 4.