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 in the Dominion of those Islands ly∣ing before the shore of France, which hath ever been enjoied by the Kings of England, it appear's that the possession of the Sea wherein they are situate, is derived from their Predecessors. CHAP. XIX.

THat a Possession and Dominion of this South∣ern Sea, hath been held also of old by the Kings of England, is not a little manifest by the Domi∣nion of those Islands that lie before the shore of France. For, 'tis generally known, that after King John and Henrie the third were driven out of Norman∣die it self, that the Isles Caesaria and Sarnia (which wee call Jersey, and Garnesey) Aureney, and som other Neighboring Isles lying near the shores of Nor∣mandie and Bretaign, yea and situated within that Creek of Sea which is made by the shore of Bretaign on the one side, and that of Normandie on the other, have in the following Ages, b both now and heretofore, re∣mained in the Dominion of England. But by the sen∣tence passed against K. John, as Duke of Normandie, for the murther of his Nephew Arthur, the French would have him deprived of all the Right hee had to Norman∣die. And afterwards c Henrie the third resigned his Right to Normandie. But suppose wee grant what is commonly received, that these Islands were of the

Norman Jurisdiction, or belonging to the Dutchie of Normandie; yet truly even so, they neither could bee taken away by the sentence, nor did they fall to the French by Resignation, forasmuch as the pos∣session of the Sea, and so of the Islands placed therein, was still reteined; after the same manner almost as manie Priories were in England it self, who though they were belonging to the Norman Go∣vernment in Church-matters, yet even as they were of the Government of Normandie, they ever remain'd under the Dominion of England, as long as the Pri∣vileges of Monasteries were in force among the En∣glish; as beeing situate within the undoubted bounds of the English Empire. Nor is it easily understood wherefore the Islands could have been so reteined, unless they also had been seated within the bounds of the English Empire in the Sea.

But the thing chiefly to bee consider'd here is, that verie manie Foreign Nations, as well as the Estates of England, did in a Libel or Bill of Com∣plaint publickly exhibited in the time of King Edward the First, and King Philip the Fair, before a Court of Delegates specially in that behalf by them ap∣pointed, in express terms acknowledg that the King of England hath ever been Lord not onely of this Sea, but also of the Islands placed therein, par raison du Roialme d' Angleterre, upon the account of the Realm of England or as they were Kings of England. Which truly is all one, as in most express terms to ascribe this whole Sea unto them, as far as the Shores or Ports lying over against us. But concerning that Libel, I shall add more by and by. Nor is it to bee omitted, that the addition of a Shore, larger than that of Pi∣cardie, to the Kingdom of France, hapned first at

that time, wherein those Isles were so reteined by the English after they were outed of Normandie: For before, the Shores of Aquitain, Bretaign, and Normandie, were in the possession of other Princes; that of Aquitain and Normandie beeing possest by the English, and that of Bretaign by the Duke or Earl of that Countrie: So that the French King had nei∣ther any shore almost, nor any considerable use of Sea-affairs at that time; by which means also the English did with the more ease retain the aforesaid antient possession of the Sea and the Isles, after they were deprived of the Norman Dutchie. And this sufficiently appear's also by that Sea-Fight perform'd between the French Fleet (commanded by Eustachius the Monk, in the time of Philip Augustus King of France) and the English Fleet under the Command of Philip de Albenie Governor of the aforesaid Islands, and John Marshal, who both carefully guarded the passages of the Sea, in the beginning of the Reign of Henrie the Third. That is to say, a French Fleet of about 80 Sail was designed to transport Auxiliarie Forces out of France for Lewis (afterwards the Eight of that name that was King of France) who through the Treason of som Conspirators, made War upon the English King in England. This of the French was assailed by an English Fleet of 40 Sail. But d Roger of Wendover and Matthew Paris tell us, that part of the French, who had not been used to Sea-Fight, was in a short time wholly defeated. Observ here, they say that hitherto the French were not accustomed to Fights by Sea. But of the English they say, the English be∣ing warlick and skill'd in Sea-Fight galled them with Darts and Arrows, ran them through with their Lances, did execution with their Swords, sank their Ships, and

them with Lime (which they did by throwing the Powder of Lime into the Aër, so it might bee driven by the winde into the French-men's eies) They were deprived also of all hope of relief and succor, and know not which way to slie. The English at that time time beeing expert in Sea-Fight, did by this means make good the possession of their Sea, and the Isles also that are situate therein: For, even this Fight re∣late's to the second year of Henrie e the Third, or the year of our Lord MCCXVIII, that is, at the same time almost when the English were first deprived of Nor∣mandie. But as to that which is commonly said, that these Islands first belonged to the English Norman f right, or by the right of the Dutchie of Normandie, it is as easily denied as affirmed by any. Nor is there any weight in this Reason, that becaus those Islands have and ever had certain Customs like the Norman, therefore they do belong to Normandie: For, the Norman Customs are often used in England, as the Roman are somtimes by other Nations; yet everie man know's this can bee no ground for such an Argument. Nor is it any more to the purpose, that those Islands were within the Diocess of the Bishop of Constances in Normandie, until that in our Grand-father's daies they became subject to the Bi∣shop of g Winchester. Their Ecclesiastick Govern∣ment was a long time derived out of Normandie, with more convenience indeed becaus of the near∣ness of the place; which began, as it is to bee sup∣posed, in those daies when the English possessed the Shores on both sides: But it doth not follow thence, that those Islands belong'd to the Dutchie of Nor∣mandie, any more then that the many Priories here∣tofore in England, who were of foreign Jurisdicti∣on

in Ecclesiastical matters, did therefore belong to the Dominion of foreign Princes, and not to that of the English Kings, as Kings of England. That is every jot as weak also which they use to allege about the Norman Languages beeing in use among the Inhabitants of those Islands. The people of Cornw••l in England have alwaies used the Welch Tongue, at least with a little alteration in the Dia∣lect, as the Bretaigns do also in France; In like man∣ner the Inhabitants of the Isle of Man use the Irish Tongue; yet no man will conclude thence, either that this paie's obedience to the Kings of England, as Lords or King of Ireland, or that the other are subject to their Princes by any right of the Welch Principalitie. Wee know indeed, that somtimes slight mention is made not onely in the proêms of som Charters of later times, but also in several antient Petitions of the Isl••nders, that those Islands belong'd heretofore to the Dutchie of Normandie, and upon that account were held by the Kings of England: But yet wee know as well, that those Provinces which in An∣tient time were derived by Inheritance to our Kings in France (of which kinde truly these Islands are to bee reckon'd, if they were held as parts of Normandie) were alwaies permitted so to use their own Customs and antient Forms of Jurisdiction, that they were not at all subject to the h ordinarie Jurisdiction of the Courts of England. The same privilege was ever allowed likewise to the people of Aquitain, Anjou, Normandie, and others. Yea, and som Ages since, the Kings of England were pleased to order, that such Controversies as hapned there should not bee decided in any other place out of the Islands, but in their own Courts of Judicature: whereas notwithstanding

it is most certain, that in the Reigns of Edward the i Second and k Third (times which without doubt made good search into that Right, whereby those Islands were annexed to the Patrimonie of the Kings of England) there were Justices Itinerant, that is, Officers created of old, who were often by or∣dinarie right to take cognisance especially of the more heinous crimes through all the Counties of England; also of such Rights and Privileges of the Crown as were usurp't and arrogated by any, and of other matters for the most part that are usually brought into Courts of Justice, who beeing l sometimes also cal∣led Justitiae errantes, Justices errant, were wont to bee sent forth into those Islands as well as into the Counties of England; though the Inhabitants did indeed exclaim, and somtimes preferr'd their Petiti∣ons against this kinde of Jurisdiction. But yet it is most certain that the opinion of those very Of∣ficers (who were themselvs learned in the Law) then was, that those Commissions whereby they were so inabled to administer Justice in those Islands were not onely grounded upon Law (which was the opinion also of those who ruled at that time in this Nation) but also that the very Provinces of the Islands were so incorporated one with another, as they are all with England, throughout the extent of that Sea which lie's between, after the manner of our English Custom in the Provinces or Countries, that, a Caus beeing somtimes inlarged, they might appoint daies of Appearance to any Inhabitants of those Islands, in the King's Bench in England, as well as to the Inha∣bitants of any one of the Isles in the other, after the same manner as is used within England it self: Which appear's by the Commission of John de

Scardeburgh and his Fellow-Justices in the time of m Edward the Third, and n others of that Age. But it was never heard, I suppose, that upon such an inlarge∣ment, a time of Appearance might by our Common Law bee appointed in any other place but that which is of the same Jurisdiction (as conteined within the Patrimonie of the Crown) whereto also that place be∣long's out of which any one is so adjourned. Nor do I remember, that any such thing was ever so much as attempted in those Provinces, which were not reckoned in the Patrimonie of the English Empire; yet possessed upon another Title by the King of England; as the Dutchies of Anjou, Normandie, Aquitain, and the like. Moreover also, in the more antient Charters of som of our Kings, in confirmation of the o Privileges of Islanders, they are noted more than once for such Privi∣leges as they or their Ancestors or Predecessors have enjoied under the obedience of any of our Progenitors beeing Kings of England. Surely, if it had been then believed, that those Islands were a part of the Dutchie of Normandie, it is not to bee doubted but they had added also or Dukes of Normandie, which wee finde truly in som Charters of p later time, yet so that in these also those Isles are said in express terms, and that upon verie good ground, to bee retained in sealtie and obedience to our Crown of England. But, in the time of Edward the Third, the Islanders petitioning the King in Parlament for their Privileges and Custom's which had been established time out of minde, annexed the Customs of som of the Islands, among which are these; Item, that no man ought to bee questioned about his Freehold, after hee hath quietly enjoied it a year and a day, unless it bee by Writ taken out of the Chancerie of our Lord the King, making special mention both of the Tenement it self and of the Tenant.

Item, That they shall not bee put to Answer before the King's Justices of Assise, until they first give them Copies of their Commissions of Assise under their Seals. Item, that the King's Justices assigned by Commission for the bolding of Assise, ought not to hold Pleas here longer than the space of three weeks. Truly, these antient Customs seem so to re••••sh, as if those Islands had been subject to our Kings & their ordinarie Jurisdiction, by the right of English Empire, not by the Norman; although the Islanders insinuate also in the same Petitions, that they were a part of the Neighbo∣ring Province of Normandie. Add hereto also, that the ••sle of Serk was granted by Queen q Elisabeth to Herelie de Carteret, to bee held in Capite by him and his heirs; that is to say, as a Feud belonging to the patri∣monie of the Crown of England; notwithstanding that it bee unawares, or els carelesly admitted in the Char∣ter of this Grant, to bee within the Dutchie of Nor∣mandie. But in the Treatie held at Chartres, when Edward the third renounced his claim to Normandie; and som other Countries of France that border'd upon the Sea, it was added, that no controversie should remain tou∣ching the Islands, but that hee should hold all Islands whatsoëver which hee possessed at that time, whe∣ther they lay before those Countries that ••ee held, or r others: For, reason required this to maintain the Dominion by Sea. Yea, both Jersey, and Gernsey, as also the Isles of Wight and Man are said in divers Trea∣ties held betwixt the Kings of England and other Prin∣ces, to belong unto the Kingdom of England, and to lie s near the Kingdom of England. These Isles also were granted heretofore by King t Henrie the fift to his bro∣ther John Duke of Bedford, without any recognition to bee made unto Us or Our Heirs, notwithstanding any Prero∣gative of the Crown for any other Tenure held of Us out of

the said Islands, which may in any wise belong unto the said Islands, Castles, or Dominions. Which words seem not in the least measure to admit any Right of the Dutchie. Perhaps also that antient custom was as a token or pledg of the Sea's Dominion beeing conjoin'd with that of the Isles, whereby all the Fish (as it is in the Records of u Edward the third) taken by the Fishermen of our Isles of Gernesey, Jersey, Serk, and Aureney, in the Sea, between Easter and Michaelmas, is according to the Custom of those places acknowledged to belong unto Us at a reasonable rate to bee paid therefore, and that the said Fisher∣men are bound to carrie all the Fish by them taken between the Times aforesaid, unto certain places in those Isles appointed, that the Officers under our Governor of the aforesaid Isles, may take thence for our use, at what price they shall think fit and reasonable. Nor is that to bee slighted, which wee finde in the Chronicles of the Abbie or Monasterie of Teuxburie, concerning Henrie Beauchamp Duke of War∣wick, who was invested by Henrie the sixt with the Ti∣tle and Dignitie of King, not onely of the Isle of Wight but also of Gernesey, and Jersey, whereunto the other Isles in this Tract do in a civil sens belong. The same thing is recorded of the Isle of Wight by that Learned man x William Camden, and that out of the same Book. The y Book it self speak's after this manner; But the noble Lord Henrie Duke of Warwick and first Earl of Eng∣land, Lord Le Dispenser, and de Abergeveney, King of the Isles of Wight, and Gardsey, and Jard∣sey, Lord also of the Castle of Bristol, with the appurtenan∣ces thereunto belonging, died 3 Idus Junii, Anno Dom. 1446. in the twentie second year of his Age, at the Castle of Hanley, and was buried in the middle of the Quire at Teux∣burie. And a little before it is said of the same man, that hee was Crowned King of Wight by the King's own

hand, no express mention beeing made in that place of the other islands, but they reckoned in the same condi∣tion with this, as they were part of the patrimonie of the Kings of England. But it is not to bee believed, that those Isles which lie before the shore of Norman∣die, had been so turned into a Kingdom, though sub∣ject to the Crown of England, unless even they also who made them a Kingdom, had conceived that they possessed them before by a Title superior to that of the Dutchie; that is to say, by a Kingly Title. As King Richard the second, when hee had determined that Ro∣bert Earl of Oxford (who also was Marquiss of Dublin, and Duke of Ireland) should bee creâted King of Ireland, questionless did not doubt but that hee himself in the mean time possessed that Island by no less a Title and Dignitie than of King, although the name of Lord was wholly used there at that time a in stead of King, as also until the latter end of the Reign of Henrie the eight. So it is conceived upon good ground, that those Isles, and the Sea lying about them did, though they used different Customs, constitute one entire Bodie of Empire with the Kingdom of England. Whereunto also that special privilege of theirs doth relate, whereby through the favor of the Kings of England, they enjoie the benefit of freedom from hostilitie by Sea, though there bee a Warr on foot between the Neighbor-Nati∣ons round about; but of this more b hereafter. And in their Court-Records which contain the Acts or De∣crees of the aforesaid Justices Itinerant, wee very often finde Pleas of the Crown, which phrase is an Evidence of the English Government. Also, in c their Trials, those Forms [In contempt of our Lord the King, his Crown and Dignitie] and [Our Lord the King was seised of the afore∣scid Advousen in time of Peace, as of his Fee, and in Right of

his Crown] and others not a few of that kinde wee meet with, which savor not of any Right of the Dutchie. Add moreover, that the King of England so held the Right heretofore, not onely of the Isles over against the shore of Normandie, but of those also which are opposite to Aquitain (as a pledg or concomitant of his possession of that Sea, so far as it belong'd to the pa∣trimonie of the Kingdom of England) that though our Henrie the third renounced his claim to no small part of Aquitain, yet that Isle lying before it, called Ole∣ron, (no less famous in the West for d Naval Laws, than Rhodes was of old) hee granted to his eldest son Edward to bee held in time to com, as a perpetual Ap∣pendant of the English Crown: For, this Claus was added to the Grant [so e that the said Isle may alwaies re∣main to the Crown of England, and never bee alienated from the same.] Also in his Letters granted to the Inhabi∣tants of Oleron, hee saith, f Wee will not in any wise sever you from the Crown of England. Som years before also, hee in like manner made a Grant of g Gascoign (or those parts which lie upon the shore of Aquitain near the Sea) to Prince Edward, upon condition it should remain entirely and for ever to the Crown of England. So without doubt his intent was, that both the Sea-Coasts, and this Isle should in a special manner bee possest by the said Prince, but by no means bee disjoined from the Eng∣lish Empire, any more than the Sea its self, which washt their shores. And although after a while, both this and som other neighboring Isles, did many Ages since, for divers reasons, follow the fate of those French shores which lie next to them, yet in the mean time the Do∣minion of the Sea remained entire, as it did before, to the Kings of England; as it sufficiently appear's by those other passages which wee have shewn.

Notes

• b

  Rot. Claus. 2 Hen. 3. membr. 1. part. 1. Pat. 3 Hen. 3. membr. 3. & 5.
• c

  Jo. Buche∣tus in Anna∣libus Aquita∣niae, part. 4. & Cod. vet. Foederum, &c. Ms. in Archivo Fis∣cali, fol. 1.
• d

  Ms. in Bibliothe∣câ Cottoni∣anâ.
• e

  Matth. Pa∣••••••, pag. 398. Edit. ••on∣din.
• f

  〈◊〉〈◊〉. Coke, in Comm. Juris 〈◊〉〈◊〉. part. 7. in ••al•••••• ••••••u, sol. 20. c. 21. Guil. Cam∣den••••sulis Brit. pag. 855. Alii; quod & ad∣mittitur in diplio∣matum ali∣quot recen∣tiorum pro∣••miis, velu∣ti Rot. Pat. 7. Elisabethae R. part. ••. Herelio de Carteret, Rot. Pat▪ 2. Jacobi, part. 19. & 9. Jacobi part. 24. ubi de Insularum privilegiis.
• g

  Videsis Ro••. Pat. 11. Eli∣sabethae, R. part. 8. in dorso.
• h

  Vide 〈◊〉〈◊〉. Hen. 8. ••••le∣way, fol. 202. plac. 19.
• i

  Rot. Placit. de Insulis, 2. ••d 2 & Rot. Pat. 15. E••. •• part 1. Membran. 2••.
• k

  M••••h 5. ••d. 3. rot. 〈◊〉〈◊〉. coram R••••e, & Mich. 6. ••d. 3 rot. 1••1. coram ••ege, pen••s C••∣••••rarios Scaccarii, 2. ••d. 3. fol. 5. seu 32. ••. & 〈◊〉〈◊〉. Tempore ••d. 3. fol. 1••8 a.
• l

  Jo. Sares∣burien••is, de Nu••is Cu∣rialium, lib. 5. cap. 15. & 16.
• m

  Mich. ••. Ed. 3. Rot. 183. coram rege, & Mich. rot. 5. & 6. Ed. 3. paulo antè citatis, 181. coram Rege, penès Ca∣merarios Scaccarii.
• n

  Rot. Placit. de Insulis, 2. Ed. 2. rot. 30. in dorso; in Arce Lon∣dinensi.
• o

  Rot. Pat. 2. Ed. 6. part. 7. ubi Inspexi∣mus. 1. Hen∣rici. 8. &c.
• p

  Rot. Pat. 2. Jacobi, part. 19.
• q

  Rot Pa••▪ 7 El••s part 3
• r

  Tho. Wal∣singham, An∣no 1360. s••u 3•• Ed. 3.
• s

  ••oeder. 1542. inter Caesarem & ••en. 8. & Foeder. 1585 inter Elisah. R▪ & Ordines Foederatos Belgii, quo∣rum trans∣sumpta in Bibliothecâ Cottonia∣nâ.
• t

  Rot. Fran∣ciae, 3 ••en. 5. Membran. 6. num. 12 No∣••••••b. 27.
• u

  Rot. Fini∣um, 31 Ed. 3. Membran. 18.
• x

  In Britann. pag. 200. & 430.
• y

  Ms. in Bibliothecâ Cottonia∣nâ.
• Tho. Wal∣singham in Rich. 2. anno 1••86. pag. 352. Edit. Lon∣din.
• a

  Statut. Hi∣bernic. 33▪ H. 8. cap. 1.
• b

  Cap. 22.
• c

  Rot. Placit. de Insulis, 2. Ed. 2. Rot. 21 & 30 &c. in arce Lon∣din.
• d

  Of which see more in the twentie fourth chap∣ter.
• e

  Cod. vet. Foederū, &c. Ms. anno 1259. Penes Camerarios Scaccarii.
• f

  Cod. Vet. Ms. in Bib∣lioth. Cot∣tonlanâ, de Rebus Aqui∣tanicis, fol. 3.
• g

  Rot. Vascon. 38 Hen. 3. membr. 8. Matth. Pa∣ris, pa. 1187. seu 1207. Edit. Lond. Florilegus, ann. 1254. & Cod. Vet. Ms. de reb. Aquitan. in Biblioth. Cot∣ton. fol. 66.