The most excellent Hugo Grotius, his three books treating of the rights of war & peace in the first is handled, whether any war be just : in the second is shewed, the causes of war, both just and unjust : in the third is declared, what in war is lawful, that is, unpunishable : with the annotations digested into the body of every chapter / translated into English by William Evats ...

X. That the Law of Nature doth not hin∣der, but that part of Sea closed by Land may be occupied.

Though these things be true, yet doth it arise from Custome and Consent, and not from the Law of Nature, that the Sea, in that sence taken as is before decla∣red, is not occupied, nor by right could be. So the King of Denmark having sei∣zed and confiscated some Merchants Ships of Hull, for Fishing on the Coasts of Nor∣way, near Island, without leave, our most wise Queen Elizabeth pleaded, That the best Lawyers had adjudged the Sea to be free, and by the Law of Nations, Com∣mon to all; nor could be Interdicted by any Prince. And as to Custome, she an∣swered, That neither his Great Grand-father, nor his Grand-Father, nor his Fa∣ther had ever exacted it: But on the contrary, That his Father had granted, That the English abstaining from Injuries, should have freedom of Fishing without leave. For Rivers also are publick we know, and yet the right of Fishing in some corner or creek of the same River may properly belong to some private person. Nay, even of the Sea it self, it is said by Paulus the Civilian, That where it is the proper Right of some particular person, he may have an Injunction to quiet his possession: for this is now a private case, for as much as it concerns the Right of Possession, which properly appertains to private, not publick causes; where doubtless, he treats of some small portion of the Sea let into some private mens ground: Which we read was usually done among the Romans, as by Lucullus, and others; And, as Salust testifies, by many private men in his time, who had sub∣verted many mountains, and made Seas out of dry Land. Whereunto Horace thus alludes:

Whilest Mountains into Seas are cast, Fish frightned from their holds, do stand agast.

The like is recorded by Paterculus, We, saith he, inject huge hills of earth into the Sea; and when we have made Mountains hollow, we let in the Sea to fill up the Con∣cave. Pliny likewise speaking of the earth, saith, That it must be embowelled to let in the Sea. With what great Bulwarks, saith Cassiodore, are the Sea banks decently Inva∣ded? How far doth the Earth encroach into the Bowels of the Sea? So that as Tibullus writes:

Th' untam'd Seas with Mountains are immur'd, That Fish from Winters storms may lye secur'd.

Varro writing of L. Lucullus, saith, That having cut through a Mountain near Na∣ples, and thereby made a passage for the Maritine Rivers into his Ponds, he had so great plenty and variety of Sea Fish, that Neptune himself had not more. Plutarch also re∣cords the same of Lucullus, That having surrounded his Villages with Trenches and Chan∣nels even from the Sea, and so stored them with Fish; he made his Banqueting-house with∣in the Sea it self. So doth Pliny, That having at a vast charge dugg through a Moun∣tain and let in the Sea, he was by Pompey the Great, called Xerxem togatum. The very like doth Valerius Maximus record of C. Sergius Orata, Who by letting in the Sea at Spring-tides, and intercepting its going out, made Seas peculiar to himself. But the very same we find afterwards produced by the Emperour Leo, in opposition to the opinions of the Ancient Lawyers, about the passages of the Thracian Bosphorus; namely, That they might be inclosed within certain bounds, and possest as a pri∣vate

estate. Now if any part of the Sea may be annexed to a private mans e∣state, as being environed by it, and in respect of the Land, so small in propor∣tion that it may be deemed as a part of it, and that the Law of Nature did not oppose it; why may not that part of the Sea which is contiguous to the Shoar, be reckoned as a part of his, or their dominions whose the Shoars are? Especi∣ally whilest that part of the Sea being compared with the Territory, is no great∣er than a small creek of the Sea, compared with the greatness of a private mans Land, wherewith it is encompassed. Neither will it much alter the case, to say, That those Seas are not on all sides surrounded, as may be easily illustrated by the example of a River, that is not every where begirt with Banks; or by the exam∣ple of the Sea, that for conveniency of Importation is let into some Town, adjoyn∣ing to the Shoar. But there are many things indulged unto us by nature, which the Law of Nations, by common consent do prohibite: wherefore where this Law is in force, and not by common consent repealed, no one part of the Sea, though for the most part surrounded by the Shoar, can be claimed by any people as their pecu∣liar Right.

Notes

• Camd. Eliz. anno 1600.
• Vita Luculli.
• Lib. 9. c. 54.
• And question∣less, though the Seas be naturally free, yet as to any profit that may arise from that part of the Sea, that is contiguous to the Shoar, as by Fishing or otherwise, it may by custome or consent be possest by the Prince whose the Territories are. For the distinct dominion of that part of the Sea bordering on the Territorie of any Prince is best seen by the Taxes and Tributes which those Princes take of strangers for Fish∣ing, whereof we have many precedents: As in Russia, where the Tax for Fishing is ve∣ry great; insomuch that the Hollanders gave the tenth Fish. Denmark takes great Tribute at Ward-house and in the Sound: As also for Fishing in the North Sea, and even for Naviga∣ting that Sea between the Coasts of Norway and Island; as the Merchants of Hall lately found by sad experience: as Sweden also did heretofore when Norway was theirs. All the Princes of Italy do the like for Fishing on their respective Coasts in the Mediterranean. The Earls of Orkney in Scotland took the tenth Fish for the Isle of Or∣cades. So do the Lords of Mannors in the West of England, for Pilchards, Hake and Conger. The States lay Im∣positions upon the Fish taken within the Seas and Streams of other Princes, also on those taken on their own Coasts. Edward the Third of England took 6 d. per Tun in his time, which is now as much as 18 d. H. 7. resolved to set up the Fishing Trade in England, considering that it was most proper for him so to do, in respect of his do∣minion in the North Sea. Queen Mary let a Lease of the Fishing of the North parts of Ireland for twenty one years for a certain Fine, and 1000 l. yearly Rent to be paid into the Treasury of Ireland. The Hans-towns had liberty of Fishing granted them in those Seas 1 Mar. upon some conditions, as ap∣pears by the Rolls of Chancery. And for the Fishing in the North Seas, Licences were usually granted at Scarborough Castle. King James set out a Proclamation 1609. to re∣strain all strangers from Fishing on the Coasts of England, Scotland, and Ireland, without Licence to be year∣ly granted.
• Whether strangers may fish in those parts of the Sea that joyn to the Shoar of another Prince.
• Natures Law Merchant.