OBSERVATIONS CONCERNING THE Dominion & Sovereignty OF THE SEAS, &c.
IT has been learnedly argued on both sides, How Dominion was first introduced. whether there be any just Dominion or Property in any Sea: For, in the Primitive and Natural State of Things, antecedent to humane Fact and Consent, Privata nulla Naturâ, sed aut veteri occupati [...] ne, aut, &c. Cic. de Offic. l. 1. the whole Earth was common and undivided unto all Mankind; but then, as it was common, so it was without culture, Men living upon the spontaneous Productions of it, in an easy and innocent, but rude and simple manner. Their Dwellings were Tents; their Drink, Water; their Bread, Roots and Nuts; their Clothing, the Bark of Trees, or Skins of Beasts. Wherefore, to better the condition of Humane Life, Nam propriae telluris herum Natura nec illum, nec me nec quenquam fecit. Hor. 2. Sat. 2. by the Encouragement of ingenious Arts and industry, Consent, either express, or tacit, introduced Occupancy and Property, that every man might enjoy to himself, as a Reward, the benefit of his own Skill and Labour. Then were Houses built, Fields sown with Corn, Vineyards planted, and the manner of Living heightned by progressive Steps and Gradations, from the plain state of simple Necessity, to a degree of Convenience; from Convenience, to Delight; from Delight, to Luxury. But forasmuch as the wide Sea is [Page 2]not capable of Cultivation, or Improvement, by Art or Industry, it may therefore be reasonably supposed, never to have been impropriated by consent, but left to its Primitive and Natural Communion.
If it be objected, That sundry People and Nations have been Lords of several Seas; as the Athenians, Carthaginians, Rhodians, and Romans: To that, will be replied, That this was Force and Empire, without Property; an Usurpation, not a Right; and that an armed Conqueror, by the same Rule, that he dispossesses what is proper, may impropriate what is common; only with this difference, That 'tis extensively more unjust to debar many from their common Right, than to disseize a single person of his private Inheritance.
I shall not enter upon the Merits of the Cause, as not being to my purpose, but as to the forementioned Argument, how plausible soever, it concludes fallaciously; as if that, which is but Causa una, one Cause, were Causa unica, the only Cause; whereas there may be other Reasons and Considerations, besides that of encouraging Industry, why Communion was chang'd into Property, and those equally extendible to Sea, as well as Land. Possibly, the consent of some Nations may devest themselves of a joint Right, and invest it in one, in order to a publick Benefit. And this is the best part of that Title, which the Venetian has to the Gulph, which being a particular and remarkable Case, it will not be amiss briefly to touch upon it, in the following Paragraph.
The Ottoman Power extending it self into Europe, Of the Dominion of the State of Venice in the Gulph. to the subversion of the Eastern Empire, conquering all Greece, with Macedon and Epirus, and penetrating to the very Banks of the Gulph, almost within sight of Italy: The Italian, and other Neighbouring Princes, to interpose the best Skreen they could, betwixt themselves and the near approaching Danger, did, by a concurring Interest, impatronize the Venetian in the Gulph, who, by reason of their potency in Shipping, and the immediate Concern of their own imminent Peril, were the most proper State to be made the Bulwark of Christendom at Sea. Flav. Blend. Dicad. 2. [...]8. Thus the Pope, by the Ceremony of a Ring, wedded their Duke every Year to the Adriatick. And in the General Council of Lions, in the [Page 3]presence of the Ambassadors of several Princes, upon Complaint made against the Venetians, for laying Impositions upon all Ships sailing within the Gulph, Judgment was given in favour of the Republick, upon consideration of their guarding that Sea against the Courses of the Pirats and Saracens. And the Neighbouring Princes would not so much as send a Galley, without asking leave of the Senate, which respect was so providently managed by that wise Council, the better to assert their Marine Sovereignty, That sometimes they would give leave under some Restrictions and Conditions, as in the case of the Sister of Ul [...]d s [...] King of Naples; Joan. Palat. de Domin. Mar. l. 2. c. 6. sometimes they denied leave, as in the case of Ma [...]y, Sister of Philip King of Spain, in the year 16 [...]0. whom the Senate would not permit to be Transported from N [...]l [...] to Trieste, in the Galleys of Spain, but in those only of the Republick. But 'tis to be considered also, that the Gulph o [...] Venice is not a wide Sea or Ocean, nor a streight or narrow Sea, called in Latin Fretum, but a Sinus, a Bay or Gulph, closed at one end; in the bottom whereof, the City of Venice is scituate, upon several small Isles or Insulets. The Seas of England are of a different Nature and Condition, they are open both above and below, and they are the midway-passage betwixt all the Northern and Southern Nations. The Wares and Merchandises of Muscovy, Poland, Sweden, Denmark, Norway, Germany, and the Netherlands, are conveyed by Shipping to France, Spain, Italy, the Levant, &c. and so back again from the South to the North, through the North-East Sea betwixt England and Germany, and the Western Channel betwixt England and France, which shews, of what Influence and Import this Dominion, on the part of England, is, to the rest of the World.
CHAP. I. What is meant by the Dominion and Sovereignty of the Seas, and what the true Notion or Idea of it is.
BEfore I proceed, it will be necessary, first, to explain the Terms, what is meant by Dominion, what by Sovereignty, and what by the Seas; lest we lose things in Words, and take up with Names, instead of Realities. By Dominion, is to be understood Property, (for so is that word Dominion always taken in its legal sense) or a Right of possessing and using any thing as ones own, and of excluding all others from a promiscuous and equal use thereof. That is mine, which is so mine, as 'tis not anothers, eodem modo, in the same manner as 'tis mine: And this Property is twofold, either Publick or Private, for Proper is not opposed to Publick, but to Common. Publick Property, excludes Communion amongst Nations; Private Property, Communion amongst Persons. For, as particular Mannors and Tenements divided by their respective Bounds and Buttles, are the private Property of particular Persons, which they possess privatively of other persons. So Countries and Territories, like greater Mannors, divided each from other by Limits and Borders, are the publick Property of Nations, which they possess exclusively one of another. The whole Territory of England, is the publick Property of the English Nation, and this Property excludes Aliens, or all born out of the King of England's Liegeance, from taking real Inheritances, or holding Lands and Tenements any where in England. The Supreme Rule and Jurisdiction in and over this Territory, is that which we call Sovereignty, and is the publick Property of the King, in Right of his Crown of England. He is sole Lord of this great Mannor, and all the Lands in England are holden, either mediately or immediately of him. And as he is [Page 5]Head, and Chief Ruler, he bears within him the Person of the whole Nation, and thus all England is his Territorial Property. And the Royal Demeans and Possessions annexed to the Crown, as the publick Revenue thereof, and as distinct from the private Possessions of particular Persons, are his Patrimonial Property. He has them in his publick and politick Capacity as King, not in his private and natural as an individual Person; for Kings, as well as Subjects, may have Possessions in a private Right, as the King of Egypt, who bought the Lands of his Subjects for Corn, He had not those Lands in Right of his Crown, as King, for he was King before he had them.
I have done with those two Terms, Dominion and Sovereignty. I pass to the third, and that is, the Sea or Seas. Whereby Sea is not to be understood, such a collective Body of Waters, singly and solely as Waters; for the moveable inconstant Waters, whither of Sea or River, barely as such, are not a capable Subject of Property; but as Waters contain'd within a six'd and certain boundary, and supported by a standing Bottom. In the First Sense, no Man goes twice into the same River, in the Second, a River is the same in a Succession of Ages. And in this later Sense, the Sea, as it is a solid Alveus, or Receptacle of Waters, contained within a certain boundary, is as truly and as properly Territory, as the Land. 'Tis Territorium à Terra, from the standing bottom of Earth, by which the Waters of it are supported, and from the unmoveable Shoars of Earth, within which those Waters are contained.
Having sufficiently explain'd the Terms; if one now should ask me, What is meant by the Dominion and Sovereignty of the British Seas, which the Kings of England are said to have continually claim'd, in Right of their Crown of England. I would Answer, By Dominion is meant the publick Property of those Seas, as part of the Territory of their Realm of England, and consequently all other Princes and People excluded, not from all, but from an equal use of them. By Sovereignty is meant, that sole Supreme Rule and Jurisdiction, which the Kings of England, Successively have over the whole Realm of England, of which those Seas are a Part. If he should further ask me, how does this Right in the Crown of England appear, and by [Page 6]what proofs is it evidenced? I would refer him to Mr. Selden, whose Proofs and Arguments, whether they come up to the height of such a Dominion as I have here described, which they ought to do, or else will fall short of the Mark, is not for me to say, I leave that to the Judgment of his Reader, wishing they were so convincing and demonstrative, that all other Nations as well as our own, would rest satisfied therewith. But if he asks me of matter of Fact, whether the Kings of England have for any long time been in the actual and peaceable Possession of such Dominion, as a Right acknowledg'd by the express or implied consent of other Nations, this I shall examine by and by.
But whereas I hinted before, that the Dominion of the Crown of England in the British Seas, did not exclude other Princes and States from all use, but from an equal use of those Seas, this needs a little Explication. In order to which, 'tis to be considered, that as all Property first began by Humane Fact and Consent, antecedent to which was Communion: So in this consent was implied a Reservation and benign Exception of such use, as might be of great benefit to others, without any considerable Damage to the Proprietor; A River, as a Fishery, is a private Dominion, no Man may Fish there without the Owner's leave, because it would be a diminution of his Profit; If Navigable, as a Way, 'tis Publick to all the Subjects of that Prince, Quid prolu [...]s aquas? [...] communis aq tarum [...]. Ovid. who is Lord of the Territory; As 'tis running Water, 'tis common to Man and Beast to Drink of it, and Wash with it. A Field is a private Property, but the Market-Path over it is publick, and when it was first made a Property, it was with reservation of a Path. For Fields were not distinguish'd by Metes and Bounds to their respective Owners, with design to confine every Man to his own home, but with exception of Liberty to pass and repass in a harmless manner, over each others Properties in pursuance of their lawful Occasions. The Sea, say we, is the publick Property of the Crown of England; but yet as 'tis a Way, 'tis common to the peaceable Traders of all Nations. A Path over a Field is of some damage to the Soil, though compensated with a greater utility, but a way over the Sea is of no damage to the Water; and the Sea being a fluid Body is all Path, where [Page 7]a Ship can Sail, and a common Highway from one Nation to another. And this is so far from being a damage to any, that 'tis highly beneficial to all; for as there is no Man so Self-sufficient, as not to need the continual help of another, so neither is there any Country, which does not, at some time or other, need the Growth and Productions of another.
Well then, since 'tis the Nature of Property in general, so to make a thing mine, as 'tis not anothers, eodem modo, in the same manner as 'tis mine; And the Dominion of the Sea in one Prince does not exclude another from all use of it; It may not be unfitly demanded, what are those Proper Uses, which are so peculiarly reserved to the Crown of England, in right of such supposed Dominion, as that all other Nations are excluded from them? And this will lead me to the Second General Head which I proposed, viz.
CHAP. II. What Things are incident to the Dominion of the Sea, and inseparably follow it.
I Answer, these three Things.
1. A Right of Excluding all foreign Ships of War from passing upon any the Seas of England without Special License for that purpose first obtain'd.
2. The sole Marine Jurisdiction within those Seas.
3. An appropriate Fishery.
First, All Foreigners are Excluded by virtue of such Dominion from a general Liberty (without first asking and obtaining special Licence) of putting out upon the British Seas Ships sitted and Equipp'd for War, when and in what Number they please. The reason is plain, because 'tis the Territory of another Prince; And to enter it without leave with an armed Force, and in such Numbers, as may justly occasion Fear and Suspition of Danger, is a publick Hostility. The Persians were restrain'd by Pact and League [Page 8]made with the Athenians, from entring with armed Vessels within the Cyanean and Chelidonian Islands; Plut pi Cim. but had the Persians acknowledged the Territorial Property of those Seas to have been in the People of Athens, there had been no need of such Pact, for in the reason of the thing it self abstracted from Covenant, it had been as much an Hostility to have entred those Seas with a Fleet of War, as to have Landed an Army upon Attica, for both were equally the Athenian Territory.
Secondly, From the Juridical cognisance of all Causes, Civil and Criminal, for and concerning all Matters and Things done and committed in and upon those Seas, the Persons whom those Causes concern there abiding. The Reason is, because Jurisdiction is an Essential and Inseparable part of the Sovereignty, which a Prince has within his own Territory. All Foreigners, whil'st in it, owe him a local Obedience, and are triable by his Laws, and before his Judicatories only as the sole Supreme Judge of the place. And for any to Appeal from him, is to set a Superiour over him; and to exercise Jurisdiction within his Territory, without an Authority derived from him, is to King it in another's Kingdom, to set up Coordinate Supremes within one Realm in Matters of the same Civil Cognisance. Which is as much a Contradiction, as to affirm many Infinits, for as the Infinity of one makes all others finite; so the Supremacy of one makes all others Subordinate.
Thirdly, From a Right of Fishing within those Seas, without special Licence first obtained from the Lord of the Seignory, and under such Conditions and Considerations as he shall think fit. The reason is, because this is the Patrimonial Property of his Crown, and the Fishery is in a manner all the profit that his great Sea Territory yields him. The Dominion of the Sea, without an appropriate Fishing, is as if a Vineyard should be a Property, but the Grapes common. Or like an Estate or Possession of Land, vested in one, to the use of another, 27. H. 8. cap. 10. and such we had many here in England, till a good Statute executed the Possession to the use, and so conjoyn'd what ought not to have been divided. Nor can it be alledg'd, that a promiscuous Fishing in the Sea is of no damage to the Proprietor, [Page 9]for admitting the multitude of Fish to be so great, as to suffice all Mens use, which is not always true, yet this will abate the price of the Market for Sale, nor can the Fishery be Farm'd out, if occasion be, at so good advantage. For so we read that the Eastern Emperour let out to Farm the Fishing in the A [...]gaean Sea near Byzondium, Niceph. Greg. l. 9 at the yearly Rent of Ten thousand Crowns, and sometimes more.
I am sensible, that what I have already said, and part of what follows will be thought by some to run too much into the Niceties of Law and School, and that 'tis a Thread spun too sine. But without the help of such a Thread, how sine soever it may seem, we shall wander without end in a Labyrinth of Phrases and sorms of Speech, we shall lose Things in the ambiguity of Words, and mistake Shadows for Substance. He who affirms a Sea-Dominion, and by it understands any thing less than Property, embraces a Cloud for J [...]. To ride actual Master at Sea with a well [...]quipp'd Fleet, or to have such a Plenty of Naval St [...]res in constant readiness, as shall be sufficient to answer a [...] Occas [...]ons, is not the Dominion of the Sea; This is [...]ower, not Property, though the Property and Honour to [...], especially of an Island Prince, are best secured and supported by such [...]ower Neither is the Honour of the Flag, and of requiring Foreign Ships to lower their Sails, and do a Reverence any part of the Dominion of the Seas, nor has any relation to it, as I shall shew presently. Much less do such usual Expressions and Words as these, the British Seas, the Sea of England, Our Seas, import any legal Dominion, but only denote a Geographical Description, as Mare Flandricum, Mare Nermannicum, M [...]re Ar [...]mericum, Mare Aquitanicum, and a hundred others do. And nothing more usual, than for Seas to receive their Denominations from the Shoars they rowle upon, and Our Seas are the Seas which rowle upon our Shoars. But that which occasions the ordinary and most frequent Mistake, is the word Dominion, it being equivocal and of a doubtful sense, as the Latin words Impertum and Dominium likewise are. For sometimes they are taken strictly and legally, denoting Property, and thus Imperium and Dominium are the same with publick and private Property, according to that of Seneca, Se [...]de Bene [...]. l. 8. c. 5.R [...]x emnia possidet Imperio, singuli Dominio, The King possesses all by his Sovereignty, [Page 10]and yet particular Persons have their private possessions too. But then again, sometimes they are taken loosely and Historically, denoting Power only and Command, as Pompeio datum est Imperium maris intra Herculis columnas, The Roman People gave Imperium Maris to Pompey, the Command of the Sea, not the Property of it; They Commissioned him their Admiral or General at Sea, as far as the Streights Mouth. Thus some of the Roman Emperors were intitled Terrae Maris (que) Domini, Lords or Despots of Sea as well as Land, so is Vespasian called by Josephus; And yet they were but Lords in Power, not in Property; Jure naturali communia sunt omnium, aer, aqua profluens, & Mare. Inst. de Rer. Div. Par. 1. for by the very Text of the Roman Law, as it was afterwards compiled by Justinian, the Sea is accounted as common as the Air, and that by natural Right. And thus some Men understand no more by Dominion of the Sea, than what our usual Sea-phrase imports, to ride Master at Sea, or of the Sea. But 'tis one thing to be Master of it in an Historical and Military sense, by a Superiority of Power and Command, as the General of a Victorious Fleet is, another thing to be Master of it in a legal sense, by a possessory Right, as the ture Owner and Proprietor of it is. In like manner we say of a General at Land, that he is Master of the Field; Master of it in Power, not Owner of it in Title. Property is a fix'd and permanent Right, a man may lose his Seisin, and yet retain his Title, an Usurper is no Owner, but Power is flitting and transitory, and so soon as the Possession is lost, the Power is gone. If we confound Power and Property, Potestas & Proprietas, by a promiscuous use of the one for the other, the Dominion of the Sea will be like that of our Cornishmens Ball at one of their Hurlings, 'tis his who can catch it, so long as he can keep it, till another gets it from him.
I shall add one Quotation more, out of the Roman Story, not wholly unworthy observation: [...] An [...]. 4. Tacitus says, Italiam utro (que) mari duae classes Misenum apud & Ravennam praesidebant, Two Fleets guarded Italy on both Seas, one at Misenum, the other at Ravenna. Sueton. Vit. [...]. And Suetonius ascribes the first Institution thereof to Augustus, Classem Miseni & alteram Ravennae ad tutelam superi & inferi Maris collocavit. The Fleet at Misenum was for the safety of the Upper Sea towards Gaul and Spain Westwards, the other at Ravenna, was for the safety of the Lower [Page 11]Sea, towards Epirus and Greece Eastwards. Our Kings in England have so exactly followed this Model of Augustus, that one would think, they had copied from his Original. Has Italy an upper and lower Sea? So has England; Our upper Sea is that Northwards betwixt England and Germany; Our lower Sea that South Westward betwixt England and France. Had the Roman Emperors their distinct Fleets, one for each Sea: Our Kings had their distinct Admiralties, one for the North, and another for the South, reckoning North and South from the mouth of the River Thames. Their Fleets were Ad tutelam maris, says Suetonius, for the safety of the Sea. Ours ad Custodiam, say our Records, for the Custody or safe keeping it, from being infested by Pirates (a Trade frequent in former Ages amongst the Northern People) and consequently for securing the Navigation and Commerce of their Subjects and Allies. The two Fleets did praesidere Italiam, says Tacitus, guard Italy as a Garison Town does a Frontier. Ours were also called, Naves Praesidiariae, Garrison-ships, to guard the open Shoars, and Landing places of a large Island, against the Hostile insults and descent of Foreigners. They are our moveable Garrisons, our floating Castles, fifty of which will defend an Island better then five thousand standing ones built round the Shoars.
Besides the two Admiralties of the North and South, the Books of our municipal Laws make frequent mention of the Quatuor Maria, the four Seas, environing England to the East, Of the [...] Marit. West, North, and South. For England, as distinct from Scotland, is a Peninsula, bounded on the North by an Isthmus of Land and the Northern Sea. And 'tis observable, that to be infra or intra quatuor Maria, within the four Seas, is in construction of our Law to be within the Kingdom of England; and to be Extra quatuor Maria, out of the four Seas, is equipollent to being out of the Kingdom of England. And 'tis to be further noted, that not only he who is upon the Land, but he also who is upon the Sea, is in our Law said to be intra Mare, within the Sea, because he has Sea still before him, till he be arrived on the opposite Shoar, and then and not till then he is Extra Mare, out of the Sea, or beyond it. And when an Englishman is upon the other Shoar, he is then within the [Page 12]Ligeance of another Prince, and therefore out of the Kingdom of England; but whilst upon the Sea, he is within the Ligeance of his own Prince, and therefore within the Kingdom of England. For England is not always taken strictly for the Land of it, in which sense the Isles of Jersey, Guernsey, and Mann are no part of England, but sometimes comprehensively for all the Dominions of it, and in Legal Understanding, he is within the Kingdom of England, who is within the local Ligeance of the Crown of England.
The use our Law makes of this Technical Phrase, or Artisicial form of Speech, intra or extra quatu [...]r Maria, within or without the four Seas, is this; Partly to essoin or excuse Men from Appearance in Courts upon Writs of Summons; for if it can truly be alledg'd, That the Party summoned is Oultre la M [...], beyond the Sea, this is accepted as a good E [...]loin, to save his Desault. But principally to be a certain and regulated Distance, within which, our Law will admit of some Presumptions, which, beyond that Distance, it will not. For Example, If a Husband be within the four Seas, Cok. on Lit. Sect. 399. and his Wi [...]e has Issue, the Law presumes the Issue Legitimate, and will admit of no proof to Bastardize the Child, because, within so little a distance, Man and Wife might clandestinely come together, and none can safely swear they did not; but if the Husband be out of the sour Seas, the Law is otherwise. By the Statute of 18. Edw. 1. a Fine, levy'd in the Common Bench, concludes him, who is within the sour Seas, if he puts not in his Claim within a Year and a day, because the Law presumes him near enough, to have timely notice of so solemn an Act as a Fine is; and if he suffers himself to be foreclosed for want of an Action or Entry, imputes it to his own neglect. By the Statute of 4. Hen. 7. cap. 24. the sorementioned Term of a Year and a day, is enlarged to five Years: And what in the Statute of Edw. 1. is said to be out of the four Seas, is in this of Hen. 7. said to be out of the Realm, as equipollent Phrases, and signifying the same thing. C. [...]. Rep. [...] Case. And it a Man be out of the Realm, what day a Fine is levied, though it be [...] publick Act, the Law supposes him not to have sufficient notice of a thing done within the Realm, and therefore interposes an exception to the saving of his Right. And this is all which our Law-Books [Page 13]mean, when they say, Co. on Litt [...]. Sect. 439. The Sea of England is within the Realm of England, as in the place quoted in the Margin. But whether the Sea be so within the Realm of England, as to be part of the Territorial Property of it, exclusively of all other Kingdoms and States, that they meddle not with. But to be within the sour Seas, and to be within the Realm of England, is, as to some purposes, in construction and intendment of our Law, one and the same thing.
Our Law-Books have many other Phrases and Expressions of special use, but yet do not reach the controverted point betwixt England and other Nations. As where 'tis said, The Sea is of the Ligeance of the King, and parcel of his Crown of England; Le Mer est del Liegeance del Rey, & parcel de son Corone d'Engleterre. Co. 5. Rep. Sir Hen. Corstable's Case, [...]. 108. Co. on Lattl. Sect, 439. And in another place, 'tis said, The Sea of England is within the Ligeance of the King, as of his Crown of England. As to the King's Liegeance, it stands thus in our Law; All Natives, or Natural-born Subjects, or persons born within the King's Ligeance (for these do tantamount) wheresoever they are, whether at Sea or Land, in England or any Foreign Country, quocunque sub Axe, they still owe a Native, or natural and inseparable Faith and Allegiance to their Liege-Lord the King. Whilst in England, or upon the Seas, besides their natural Ligeance, they are within the local Ligeance of their own Sovereign, an I under his immediate Protection and Defence. But when within the Dominions of a Foreign Prince, tho', as to persons, they still retain Faith to their natural Sovereign; yet, as to place, they are out of his actual Obedience, and within the protection of another, which draws Subjection along with it, and makes them the temporary local Subjects of that other Prince. And as this is the Case of English men abroad, so is it of Aliens here in England. A Child born at Sea in any of the King's Ships, or other English Vessel, Navigated by English Master and Crew, is a Native; if born upon the Land of England, in any Fort or Town possess'd by an Enemy, 'tis born out of the [...]ing's Ligeance, and therefore an Alien. Co. 7. Pep. [...] Case, fo [...] 6. But whereas 'tis said, the Sea is within the Liegeance of the Crown of England, this is to be understood extensively of the Ligeance of the Crown of England, that it reaches to Sea as well as Land, not exclusively of the Ligeance of other Crowns, as [Page 14]if no Crown had Ligeance at Sea, but that of England only; or, as if no Foreigner, aboard his own Vessel within any the four Seas, were within the Ligeance of his own natural Sovereign, for this is manifestly repugnant to daily Fact and Experience, as we shall see anon, when I come to the Question of Fact.
As to that other Expression of the Seas, Co. in Consta [...]. Case, ut supra. being parcel of the Crown of England, the forementioned Author, in the place before cited, expounds his meaning to be, That 'tis parcel of the Inheritance of the Crown of England. Thus Jetsam, Flotsam, and Lagan, appertain to the King by his Prerogative. Goods thrown over-board to lighten a Ship, in distress by Weather, are called Jetsam; Goods of a wreck'd Ship floating upon the Waters, are call'd Flotsam; Goods sunk, with a Cork or Buoy tied to them, to direct to the place, are called Lagan or Ligan: All these Goods, if the Ship perishes, and no Owner can be proved, belong to the King in right of his Crown, as treasure trove and estrais at Land do, and all Derelicts, whose Property is lost, the Law adjudges them to the King, as Owner paramount. Also Royal Fishes, Co. Rep. 7. Case de Swans, f. 16. as Whales, Sturgeons, &c. taken by the King's Subjects on the Seas of England, appertain to the King by his Prerogative, but no mention made in any of our Law-Books, of an Appropriate Fishing, exclusive of the People and Subjects of other Princes and States.
I have mentioned these Passages, which occur in the Books of our Municipal Laws, because though of excellent use and undeniable verity, when fitly applied to what they are design'd and intended, yet if misapplied to the Case of the Dominion of the 4 Seas, as it stands betwixt England and other Nations, they may and do occasion Error and Mistake. Those Books handle Cases betwixt Subject and Subject, and sometimes betwixt Crown and Subject, but not betwixt Crown and Crown, I mean betwixt England and other Kingdoms. Matters of this Nature must be look'd for in the publick Treaties and Transactions of State betwixt our Kings and foreign Princes, or in a long peaceable Possession, which we call Prescription; and these I shall examine by and by.
Thus far I have endeavoured to clear the true Notion of Sea-Dominion, neither extending it to impeach the free Navigation [Page 15]and Commerce of peaceable Traders due to them of natural Right, and by the Law of Nations, notwithstanding such Dominion. Nor yet making it a Verbal Notion only consisting in words and forms of Speech, without any real Fruit and Effect, but have instanced in three weighty things, as the inseparable Incidents of it. I should now proceed to the Matter of Fact, but forasmuch as some without Examination take it for granted, that the accustomed Salutation at Sea by the Flag and Topsail, is an Act of Recognition and Acknowledgment of the Sovereign Dominion of the Sea inherent in that Prince, to whom such Salutation is performed, I shall crave leave to examine this in the first place.
CHAP. III. What the Salutation at Sea by the Flag and Topsail signifies, and whether it has any Relation to the Dominion of it.
THE Salutation at Sea by the Flag and Topsail, was never Covenanted in any the publick Treaties, betwixt England and other Nations, but in those with the United Netherlands only. And never in any of them till the year 1654. And I am inclinable to believe, that there were particular Reasons, why it was then covenanted; partly, because at that time the Royal Dignity of England was debased and disguised under the obscurer Name of a Protectorat; and they who had not refused it to an anciently Crowned Head, might make some scruple to do it to a new Republick. And partly, because that War began upon a Dispute for the Honour of the Flag. I cannot say, it was the sole Cause of the War, but it was the first occasion of it. For whilest Blake was in Dover Road with the English Fleet, Tromp with double [Page 16]the number of Ships, but not equal in goodness, stood over from the Coast of Calice directly towards him, and came up close with him, with his Flag alost, Jacks and P [...]ndants slying, and all the Bravery he could display. May 1652. Blake was too stout to brook the Affront, and so in plain English the two Generals sell together by the Ears, neither of them knowing how soon he might be called to a severe accompt by his Superiours, for what he had done. But they justified themselves, by casting the blame one upon the other, and thus the Servants Quarrel soon became the Masters, and both Nations engaged in a sierce War: Which ended in 165 [...], and in the 13th Article of the Preaty of Peace then con [...]luded, to prevent the like Disputes for the suture, it was Covenanted, That the Ships of the United Provinces, as well th [...]se si [...]ed for W [...]r, as others, which hould meet in the British Seas any the [...] of War of England, should shrike their Flag, and low [...]r their Tepsail, in such manner, as had been any time practised [...], under any former Government. But whereas some think, that this was prejudicial to England, to take that by Cove [...]ant, which they held before by prescrip [...]ion, I am not so clear in that Opinion. For what stood before upon the soot of Courtesy, or of Custom at the best, was now confirmed by a supervening Contrast, and passed into a National Law, founded upon mutual Consent. And from the Treaty in 165 [...], it passed into that, made at Westminster by His late Majesty in 1662; and from thence, into that made at Breda in 1667, in which, as in the former, the Flag and Topsail are expresly covenanted for in the British Seas. But by a later Treaty, viz. 1673. instead of the British Seas, there is an enlargement to the Seas, betwixt Cape Finisterre, to the middle point of the Land Van Staten in Norwey.
Here 'tis to be observed, that in the forementioned Treaties the Salutation by the Flag and Topsail is no where said to be an acknowledgment of the Soveraignty of the Crown of England in and over the British Seas, nor so much as intimated or implied; but on the contrary, as it were on purpose to prevent such a Construstion, 'tis expresly said to be a Respect. The words of the Treaty 1673 are th [...]se: In acknowledgment of the King of Great Britain's Right to have his Flag respected, They, i. e. the Dutch shall [Page 17]strike their Flag, and lower their Topsail, in the same manner, and with the same respect, as hath at any time, or in any place, been formerly practised. 'Tis true, it has been offered at, to make this Respect pass into an Acknowledgment of Sovereignty, but it was but an Offer, and so vanish'd; for in the Project or Concept of 27 Articles, delivered in the year 165 [...]. by the then English Commissioners to the Dutch Ambassadors, in the 15th Article it was thus proposed: That the Dutch Ships, both Men of War, and Merchants, (besides striking the Flag) should suffer themselves to be visited, if required, and should perform all due Offices of Honour and Acknowledgment to England, to whom the Dominion and Sovereignty of the British Seas of right appertain'd. But this Article was rejected by the Dutch, as were several other Proposals of a high nature; for it was then urg'd, and for some time insisted on, that there should be a Coalition of England, and the United Provinces, into one and the same Republick; not an Union only, but an Adunation; not a mere Coition into a stricter Bond and League of Friendship, but a Coalition of both into one Government. But this was rejected too, as impracticable.
If the Question were only concerning the Antiquity of this Ceremony, how long it has been practised amongst these Europaean Nations, (for it had a time when it first began, and it does not obtain universally:) We have a Record in our Admiralty, which would be pertinent to this purpose. It is an Edict or Proclamation, published by King John at Hastings in Sussex, in the Second Year of his Reign, near 500 Years since, and is transcribed by Mr. Selden out of the Records of the Admiralty, to the following purport: Mar. Clau [...]. l. 2. c. 26. That if any Ships or Vessels, laden or unladen, refused to l [...]wer their Sails at the Command of the King's Lieutenant or Admiral, or of his Lieutenant, then to be compelled to do it by fighting them, and, if taken, their Ships and Goods to be confiscated; as may be seen more at large in the place noted in the Margin. But the Proclamation says not, that this lowering their Sails, was to be done, as an acknowledgment of the King's Dominion in the Western Channel, to which Sea it especially relates; and yet none could have better required it, than King John, for he was at that time in actual possession, both of England and Normandy, and consequently [Page 18]was actual Lord of both Shores, and might have reckoned the Channel as an Appendant and Accession to the Land, and to have followed it as the Accessory does the Principal; as he is Lord of the intermediate River, who is Lord of both the Banks. But as this Proclamation expresses no such thing, so neither does the penning of it seem to incline that way: For it mentions not Ships of War, who, as such, ought the rather to be obliged to make such Acknowledgment, as being most likely to dispute it, but only Ships laden or unladen, Nefs ou Vesseaulx charges ou voide, referring to Merchants and Traders, be their Ships light or freighted; and these Merchant-men are to do it, not at the Command of every body, but, au Commandement du Lieutenant du Roy, ou de l'Admiral du Roy, ou son Lieutenant, at the Command of the King's Lieutenant, or the King's Admiral, or his Lieutenant, intimating a personal Respect due to their Rank and Quality, especially from simple Traders.
However, 'tis certain, that this Honorary Respect or Civility, call it what you will, is no natural expression of a Subjection to a Sovereign; for 'tis not founded in Nature, but in Institution, and is a practise peculiar to the Western Nations; and the modes of Respect are so various in different Countries, that what in one is a Civility, in another is a Rudeness. And as it is no natural expression of Subjection, so neither is it a necessary one, as if it must necessarily signify that or nothing; for lowering the Flag, or Sails, is but like uncovering the Head, by vailing the Hat or Bonnet, which, amongst us, 'Tis so called in the Journal of King Edw. 6. wrote with his own hand, the words are these: The Flemings Men of War would have passed our Ships without vailing Bonnet, which they seeing, shot at them, and drove them at length to vail Bonnet. See pag. 11. of K. Edw. Journal, in the 2d Part of Dr. Burnet's Hist. of Reform. is used as a Token of Subjection to our King, of Respect to our Superiors, of Civility to our Equals, of Courtesy to our Inferiors. Thus we see one and the same specifick Act of uncovering the Head, as it relates to persons of different Orders and Degrees, admits of divers Significations. Some of our Sea-Captains, tho' irregularly enough, and for want of explicite Orders, have required of the Dutch the Honour of the Flag and Topsail in the Mediterranean and Baltick, where the Crown of England never pretended Sovereignty. And as in the forementioned Treatise [Page 19]of 1673, 'tis particularly named a Respect, so 'tis covenanted to be done, not only within the British Seas, but every where betwixt the Capes, Finister in Spain, and Staten in Norway, beyond the Limits of the Sea-Sovereignty of England, and consequently has no relation to it. Besides, this Honour to the King's Flag is required from his own Subjects, but 'tis needless to require from them an acknowledgment of Sovereignty, to whose benefit it redounds, the import is, that Foreigners would acknowledge it, to whose Profit 'tis opposed.
Well then, if this Ceremony does not relate to an acknowledgment of a Sovereignty in the Sea, what is it that it relates to? And what is the true import and signification of it? I answer, it imports these two things: 1. 'Tis Cultus Superioris, 'tis a Reverence or Respect performed to a person of Superior Quality and Degree. 2. 'Tis Symbolum Pacis & Amicitiae, 'tis a sign, or symbolical expression, of Peace and Friendship. Sometimes it signifies both these together, and sometimes but one of them, according to the different degrees of the persons performing it; but it always signifies one of them, and never any thing more. The Dutch, and other smaller Republicks, perform it, both as a Respect to the Crowned Head of England, and as a Salutation of Peace and Friendship also. But Crowned Heads cannot perform it as to one of a Superior Order, because they are in a parity and equality of Degree, but they do it upon the later accompt only, as 'tis an expression of Peace and Amity. The Dutch and others do not, by the Flag and Topsail, recognize the King of England, as Sovereign of the four Seas, nor acknowledge themselves thereby his local Subjects, and their Persons, Ships and Goods, to be under his immediate Jurisdiction and Protection, whilst in and upon those Seas; but they acknowledge him as Praeeminent in Order and Quality, not as Sovereign over them, but as Superior to them in Dignity and Degree. Were I to express it in Latin, I would do it by that old Roman Phrase of Comiter Colere, or Observare Majestatem, They pay Honour or Respect to the Majesty of a Crowned Island. And as to the Crowned Heads, tho' they cannot, as I said before, pay Respect to a Superior, because of the parity of their Degree; yet, as to the Sea-Salutation [Page 20]by the Flag and Topsail, there is a peculiarity on the part of England, even in reference to them. A Foreign King, when Ships of War of another Nation approach his Havens, and come within reach of his Castles, will expect, and justly may, that the Comer should salute him first; the Guest or Stranger gives the first Salute to the Master of the House, who thereupon Re-salutes him, and bids him welcom. And what does this Salutation signify, be it by lowering Flag and Topsail, or by firing Guns, but that they are come Arm'd before his Doors only as Friends, and without intention of doing him hurt? But the peculiarity on the part of England, consists in this; England is an Island, whose Frontier is the Sea, whose Forts and Castles are the Ships of the Royal Navy, which bear Analogy and Proportion to the Frontier Towns, and Fortified Places of Inland Dominions; and therefore, when met within the Seas of England by the Ships of War belonging to any other Crowned Head, these later ought not to approach the Ships of War of England, who are in their Stations upon their Guard and Duty, with a Flag aloft in a posture of Challenge and Desiance; but do, in their Course and Passage call to the Guard-ships of England, to tell them, They are Friends; and what they cannot do by Words at that distance, they do by mute Signs, by striking their Flag or Topsail, which in effect express those words. And when they salute those Guarders, by discharging their Guns, it is in effect to tell them, they were not charged against them; and tho' they Steer their Course along the Coasts of an open Island, yet they design no Hostility. This is no diminution to the Majesty of any Monarch, how great soever, and were the Salutation thus stated with Crowned Heads, it would be less controverted, and the Crown of England lose nothing by it neither.
But if the Dutch perform this Ceremony, as a Respect to a Crowned Head, without relation to a Sea Sovereignty, why not to France as well as England? since they are equally Crown'd Heads, and one has one Bank of the Channel, and the other has the other: And what shall then become of the peculiar Prerogative of the Crown of England? This peculiarity on the part of England, as an Island whose principal defence is at Sea, I have touch'd already. But as to the Dutch [Page 21]performing equal Respect at Sea to the Crown of France, as to that of England, I do not doubt, but they will do it, when required thereto. And what Remedy is there against it, unless by Contract? for though I may not be covered when I will, yet I may put off my Hat and be uncovered when and to whom I please. The Dutch [...]eer their Course by the Pole Star of Trade, not by the Punctilio's of Honour. And were this Construction put upon their striking their Flag to the Flag of England, that it is a Recognition of a Sea-Sovereignty: They would do the same to France the rather, and not as a thing imposed but upon choi [...]e, thereby to dispropriate and lay common, what England would inclose as her Property. Nor would it be a new thing for France to set up for the Honour of the Flag and Topsail, Leo ab Ai [...]. [...]i [...]st. p. 177. for it was expresly stipulated in the 12th Article of the League Offensive and Defensive, made in the year 1635, betwixt Lewis the 13th, and the States General, that upon occasion of any Conjunction of the French and Dutch Fleets, The Dutch Admiral should first Salute the French with Flag and Topsail, and fire his Guns, in such manner as had been practised towards the King of Great Britain upon the like Occasion. And Henry the Second, Lud v. [...] vin. [...] II. Tom. [...]. and Henry the Third of France, did both of them Publish their Royal Edicts, one in the year 1555, the other in 1580, Commanding all Foreign Ships indefinitely (I suppose Traders) to lower their Topsails to the Ships of War of France, upon pain of seizure and confiscation; and some Hamburgers were forcibly taken, for not conforming to those Edicts. But may not the present French King say, what Caesar once did, Sylla fecit, non ipse faciam? did the two Henrys do this in the faint times of their languishing Reigns, and shall not I do it? who can cover with Fleets of War the three Seas, which cover the Coasts of France. I have read somewhere in the French Memoires, I think in those of the Duke de Sully, that the whole Naval Strength of the Crown of France in the beginning of Henry the Fourth, was about half a Dozen Ships of War, such as they were at Brest and Rochel, and about a Score of Gallies in the Mediterranean. But this last named great King, dressed a new Plan of the French Monarchy, and drew out the Lines of it larger than before; And though his great design was interrupted by at [Page 22]immature Death, and by the succeeding Minority of his Son, yet the great Cardinal, I mean Richlieu, resumed it again. He first taught France, that the French Flower-de-luces could grow at Sea, as well as Land. He deck'd and adorn'd the losty Sterns of his new-built Ships with this Prophetick Inscription—Florent quoque Lilia Ponto.
Having done with the Sea Salutation, I come to the Fourth general Head, under which,
CHAP. IV. The whole Matter of Fact between the Crown of England, and Foreign Princes and States in the several Incidents of Sea-Dominion is distinctly Examined and impartially Reported.
I Am now upon a Question of Fact only, how sar this Dominion and Sovereignty in the Seas has been acknowledged, as a Right inherent in the Crown of England, by any of the Neighbouring Nations; either expresly in publick Treaties and Transactions of State, or impliedly, by an immemorial peaceable and uninterrupted Possession, commonly called Prescription. This I call the Question of Fact, and distinguish it from that of Right, to which 'tis Subsequent. For a Right to any thing in one, is antecedent to the acknowledgment of it by another, and though his non-acknowledgment may render it Controverted, yet it may be a just Right and legal Claim notwithstanding. The Right of the Crown of England to the Dominion of the Seas I meddle not with, it stands as it did unmoveable, like Terminus in the Capitol with a Cedo Nulli, it gives place to none. But the enquiry is, whether in Fact it has been consented to by Foreign Nations; by which Test, we shall be able to discover, whether the Crown of England has lost any thing in matter of Sea-Sovereignty, which it formerly possess'd. In order to which, I shall distinctly handle and examine the three great and inseparable incidents of the Sovereignty, which I before named.
[Page 23] 1. The Exciusion of Foreign Men of War from Passing upon any the Seas of England, without special License for that purpose first obtain'd.
2. The sole Marine Jurisdiction within those Seas.
3. The appropriate Fishery.
I begin with the first, and the Enquiry is, Of the Passage of Foreign Ships Equipp'd for War over the Seas of England. Whether any Sovereign Prince or State having occasion to enter upon any the Seas of England, with Men of War, either in entire Fleets, or as Convoys to Merchants, have first asked leave so to do of the King of England, as the Supreme Lord of the Territory.
I have often met with a Traditional Story, both in Discourse and in Printed Pamphlets, that Queen Elizabeth having intelligence that Henry the 4th of France had a design to encrease the Naval Strength of his Kingdom, and to Equip a considerable Fleet of War, not only for the Mediterranean, but for the Seas also toward England, She sent to bid him desist from it. That the Queen might request him not to put out upon these Seas with an unusual Fleet, as that which might occasion Jealousie in her Subjects, and oblige her to an extraordinary Expence in Arming proportionably, and consequently tend to weaken the Amity and good Assurance betwixt the two Crowns; I say, that she might do this, for I do not find that she did it, is neither morally impossible, nor wholly disagreeable to the practice amongst Princes. But that she did pro Jure interdict and forbid him so doing, as an Intrenchment and Invasion of her Right, by entring with an Armed Force upon the Territories of her Crown, without her leave; for this I shall suspend my belief till better Vouchers be produced. 'Tis too common amongst Men, first, to form their Opinions, and then to seek their Proofs, and some rather than not find them will devise them.
There is another currant Story of the same alloy, That Queen Elizabeth seized in the Bay of Cascais in Portugal, Sixty Laden Ships belonging to the Hans Towns of Germany, and afterwards consiscated both Ships and Goods; For having presumptuously pass'd over her Seas, without first obtaining her Royal Permission. In this, several Mistakes are complicated together, one in Law and two in Fact. That in Law is this, [Page 24]supposing the Dominion of the Seas to have been universally acknowledged as the Queens undoubted Right, yet ought not the Hanseaties, who were Friends, and peaceable Traders, and pursuing their lawful Occasions, to have been consiscated, for not a king leave of Passage over these Seas, had there been nothing more in the case, because they needed not in Law so to have done. No more than a Market-man needs ask leave of the Owner to pass his Field, over which the Market Path lies. The two Mistakes in Fact are these.
1. The said Sixty Sail of Ships did not in Fact pass the Seas of England, [...] 15.9. [...] lib. 95. and therefore could not be consiscated upon that accompt. Mr. Cambden, our faithful Annalist, says expresly, and so does Thuanus too, That they pass'd on the North of Scotland, by the Occades, Hebrides, and great Western Ocean on the backside of Ireland, a long and dangerous Passage, to avoid being intercepted in the Channel by the Queens Ships.
2. The sole Reason why they were confiscated was this, because they carried Goods of Contrabanda, Prohibited Goods, viz. Corn, which at that time Spain wanted, and Naval Provisions to the relief of an Enemy, who at that time was preparing a new Fleet for the Invasion of England, in revenge of the Disgrace he had received the year before, viz. in 88. And this they did, contrary to the Queens Proclamation and Monitory Letters to the Hans Towns, whereby she forbad them to supply Spain, her declared Enemy, with such Provisions, under the Penalty of forfeiting Ships and Goods. Thus the Dutch in the year 1652. when by their Interest and Influence in the Court of Denmark, they had caus'd an English Fleet of above Twenty Merchant men, Laden with Pitch, Tar, Flax, Hemp, and other Naval Stores, to be Arrested in the Sound, supposing that England, with whom they were then in War, would be Distressed for want of s [...]n Provisions, They Published a Placart forbidding all in general to Import into England any the aforesaid Materials, upon pain of confiscation thereof, as being a Relief to an Enemy, in things they particularly wanted for prosecuting the War against them. I enquire not here, Quo jure, by what Right, the Dutch did this, and whether it was not a Violation of the free Commerce of Neutral [Page 25]Nations. But I only instance in the Fact, as parallel with what the Queen did: Nay, the States did far more than what the Queen did, comes to; for they, in the Year 1599, almost in the Infancy of their Republick, publish'd a Placart, forbidding all Nations any Commerce with Spain, not in this or that prohibited Commodity, but in all Goods and Merchandizes whatsoever. Grot. Host. de Rebus Belg. lib. 8. pag. 372. Ed [...]t. Amstol. Vetant populos quescunque [...]llos commeatur resve alias in Hispaniam ferre. They are the very words of Grotius, in his Belgick Annals, the eighth Book, this by the way [...]ly.
If we consult the publick Treaties, which have been betwixt England and other Sovereigns, concerning S [...]ps of War passing these Seas, we shall find the [...] have been, as followeth. The usual Covenants are, [...] have been, That the Ships of War, of either side, may [...] come into the Roads, Havens, and Rivers, each of other, provided they be not in such number as may occasion suspicion; and therefore the number is ascertain'd, and not to be exceeded, unless to avoid imminent Danger, and in such case, notice to be given thereof. For Example: In the Treaty concluded at Madrid, in the Year 1630, betwixt Charles the First of England, and Philip the Fourth of Spain, which Treaty was but a renewal of the former made with King James, in the Year 1604, it is in the 9th Article agreed, That it shall be lawful to have access unto each others Ports with Ships of War, whether they shall arrive there, either by force of Tempest, or for necessary Repairs, or for provision of Victuals; so they exceed not eight, when they come of their own accord, nor stay longer than they shall have cause. And when any greater Number shall have occasion of Access, they not to enter the Port, without the privity or consent of the King. This is the form of all the Treaties; and Articles, like to this, have been agreed betwixt England and France, and England and Helland, but they are always reciprocal; and as their Ships of War are restrained from access to the English Ports, so are the English from access to theirs in equal manner. And 'tis to be noted, that the Restraint is only from access to each others Ports, but never any Restraint of Foreign Ships of War from entering, in what Number they please, the Seas of England. Thus in the Year 1639, which was but nine Years after the [Page 26]Treaty aforementioned at Madrid, a Spanish Fleet, of above sixty Sail, equipped for War, entred the Western Channel, without leave first asked, bound for Ostend, to supply the Spanish Netherlands with Men, Munition, and other Necessaries, and pass'd the Channel to the height of Dover. And the Dutch Fleet put out in like manner upon the North-East Sea, and fought the Spanish Fleet in the Downs. 'Tis true, that Sir John Pennington, who then commanded the English Guard, endeavoured to hinder them from sighting so near the Ports, to the disturbance of the Security and Protection of them, and troubling the Commerce and Entercourse of the King's Lieges and Allies. But no Complaint made, either then or afterwards, of the two Fleets of War entering the Seas aforesaid, parcel of the Dominion and Territory of the Crown of England, without a special License first ask'd and obtain'd. And it would be Time mispent, to recount how often, either Spaniards, French, or Dutch, have entred these Seas with armed Fleets and Convoys, as their Occasions obliged them, freely, without leave, and without controul. I speak not here of the private Notices and Intimations, which one Prince may in friendly manner give another, to satisfy him of the reason of any extraordinary Military Preparations, and of the clearness of his Intentions towards him. But of a formal previous Leave to be ask'd and obtain'd by a Foreign Prince or State, before they put out to Sea, upon the Maritime Territory of the Crown of England, in a Warlike Equipage.
In the year 165 [...], The States General gave publick Noti [...]e by their Ambassadors here in England, that they had Resolved to fit out to Sea an extraordinary Fleet of One hundred and fifty Men of War, besides those in present Service, for the Security and Preservation of their Navigation and Commerce. They did not ask leave to do it, but first resolv'd upon it, and then gave Notice, and they pretended this Notice was an Argument of their Sincerity and good Will, in order to prevent all misunderstandings, and finister interpretations. But they in England understood it otherwise, and resented it as a Bravado and Insult.
I Pass now to the second Incident of the Sovereignty, Of the Marine Jurisdiction, and the Laws of Oleron. Videsis Ʋs & Corstum [...]s de la Mer, printed at Bo [...]deaux 1661. to Examine the Matter of Fact as to that, viz. The Marine Jurisdiction.
'Tis commonly affirm'd by English Writers, that our King Richard the First (the French give a different accompt) did, in his return from the Holy Land, make and declare certain Marine Laws, for the better Regulation of Commerce, which from the place of their first Publication were call'd the Laws of Oleron. A small Island scituate in the Bay of Aquitain, and a Member of that great and wealthy Dutchy, which was in the actual Possession of King Richard, as his maternal Inheritance, for it came to his Father Henry the Second, by Marriage with Elianor Daughter and Heir of William Duke of Aquitain. And by the way it may be noted, that this Dutchy, either in whole or part, continued in the Possession of the Kings of England by ten Descents, to the 32d of Henry the Sixth, near 300 years, though that of Normandy continued but five Descents, and ended in King John. But whether these Laws were Published as aforesaid by King Richard, or whether about Sixty years after, as some Printed Editions would have them, is not an Enquiry pertinent to this place. Be it admitted, those Laws were Published by King Richard, who was actual Duke both of Aquitain and Normandy, and in right of the latter Lord on both sides the English Channel. The great entercourse betwixt his English and French Subjects, and those of his Allies, required a certain Rule of Sea-Laws for the more speedy and impartial Determination of all Controversies, which might occasionally arise. These Laws of Oleron, as to the main of them, are but a transcript of the old Rhodian Laws, with some new Additions and Amendments, accommodated to the practice of that Age, and the Customs of the Western Nations; who thereupon might readily conform to them, as to a common Standard and Measure, like a Law of Nations, for the more equal distribution of Justice amongst the People of different Governments. But to infer from hence an Universal Monarchy at Sea, and that King Richard, in right of his Imperial Crown of England, and Ducal [Page 28]Crowns of N [...]rmandy and Aquitain, did, as sole or Supreme Legislator for the Marine, authoritatively impose Sea-Laws upon the People and Subjects o [...] other Nations, is but a strained inference. The Romans were far enough from yielding a Sea-Sovereignty to the little Republick of Rhodes, and yet were so well satisfied with the Equity of their Sea-Laws, that they not only conform'd to them, Lab. 11. D [...] [...]l. but incorporated them into the Body of their Digest. And as the Rhodian Laws obtain'd in the Mediterranean, and the Laws of Oleron in the Western and English Seas: So the Laws of Wisbuy (a Town scituate upon the little Isle of Gotland, in the Eastern part of the Baltick, formerly under Denmark, now under the Crown of Sueden) call'd from thence Leges Wisbuicenses, P [...]k, in [...] Tit. Di [...]. & Cod. [...] p. 19 [...]. were received by the general consent of the Northern Traders, as a common measure for all Nautick Assairs, to the Northwards of the Rhine, and throughout the whole Baltick.
That the Sea is within the Jurisdiction of the King of England, is a matter unquestionable, not at home only, but amongst all Nations. His Admiral has, and ever had, through a long series of Ages, the Conusance of all Contracts, Pleas, and Querrels made upon the Sea, out of the Body of any County of England. Which Power is inlarged by the Statute of 15 R. 2. cap. 3. to Death, and Mayhem upon great Ships in the main Stream of great Rivers. And by the Statute of 28. Hen. 8. cap. 15. a Court of Commission may be held under the great Seal Coram Admirallo, &c. to hear and determine all Treasons, Felonies, Robberies, &c. done or committed upon the Sea. But then 'tis evident and undeniable also, that the Neighbouring Kingdoms and States, who border upon the Sea, have their distinct Admiralties likewise, and have long since had, where their Subjects and People receive sinal Sentence in all Maritime Causes, without exception of any Seas, or without Appeal to the Admiralty of England, as the last resort, or as having Supream Conusance of all things done and committed in and upon the Brittish Seas. If a French or Dutch Vessel take a Pirat of what Nation soever, who has committed a Robbery upon the English Seas, they do not remit him to the Admiralty [Page 29]of England, as to the sole Tribunal of the place, where the Fact was done, to receive Sentence there; but they carry him before their own Judicatories, and judge him as an Enemy of Mankind by the Law of Nations. If one Foreigner does any Injury to another, be it Fraud or Violence, upon the British Seas, the Party injured makes not his Complaint to the Admiralty of England, as the proper Court, and as having the sole Juridical Conusance of his Plea, but resorts to the Jurisdiction of his own Sovereign, or to that of the Sovereign of the Wrong-doer, and there Impleads him, and prays for Justice. If a Frenchman kill a Frenchman, one Alien another, upon the Land of England, the Fact is committed within the local Ligeance of the King of England, and against the Peace and Protection of his Crown, and therefore triable before his Courts; But if two Englishmen be under the Pay and Service of the French King, and one of them Kill the other, aboard a French Man of War, within the 4 Seas, The French King's Judicature will have the Conusance of the Crime, as done within his Ligeance, and against the Peace and Protection of his Crown.
Thus stands the matter of Fact, as to the Marine Jurisdiction, and thus it has been for many Ages; but yet there is an ancient President, which seems to impugn something that has been said, and not to take notice of it, were to report things unfaithfully; and therefore I crave leave to examine it. 'Tis a Bundle or Roli in the Tower of London, Superscribed De Superioritate Maris Angliae & Jure Officii Admiralitatis in codem; Record, I can scarce call it, [...] cap. 27 for 'tis not any Judicial Act or Monument of a Court of Record; and it may be read, as 'tis transcribed at large by Lord Chief Justice Cake, and by Mr. Selden, who highly insists upon it.
I shall abbreviate it truly, and in short the Case was this,
A League had been concluded betwixt Edward the First of England, and Philip the Fair of France, Of the [...]. in which it was Covenanted, that each should defend the others Rights, and Neither relieve the other's Enemy. After this, a War ensued betwixt [Page 30] Philip and the Earl of Flanders, whom Edward secretly savoured. Whereupon Reyner Grimbald, who was General at Sea for the King of France, took several Ships both of England, and of other Nations Trading to Flanders, and confiscated Ships and Goods, and imprison'd Persons, as carrying Relief to an Enemy. Upon which and other Complaints, Commissioners were appointed by both Kings, call'd in the Roll, writ in Norman French, Auditours Deputez per les Roys d'Engleterre & de France a redresser les dammages faits. The Plaintiffs who were of several Nations appear by their Procurators or Attorneys before the said Commissioners, and joyn all together in one Bill or Libel, as being all involv'd in one Common Cause. In the Rehearsal of the said Libel, 'tis alledg'd, that, Whereas the Kings of England, by reason of the said Kingdom, from time to time, whereof there is no Memory to the contrary, have been in peaceable Possession of the Sovereign Dominion of the Sea of England, and of the Isles of the same, by Ordaining of Laws, &c. And whereas 'tis Covenanted in the League lately made betwixt the two Kings, that each should Defend the others Rights, Franchises, and Liberties, &c. Monsieur Reyner Grimbald, Commander of the Fleet of the King of France, who Names himself Admiral of the said Sea, being Commissioned by that King to serve him in his W [...] against Flanders, hath contrary to the said League wrongfully assumed the Office of the Admiralty in the said Gea of England, upon Pretence of the said Commission, taking the People and Merchants, &c They pray, that the Persons, Ships and Goods so taken, may be delivered to the Admiral of the King of England, to whom the Counsance of the whole Matter of Right appertain'd.
He who shall read more at large, in the places before quoted, the magnificent Attributes given to the Kings of England, of their being peaceably possess'd time immemorial of the Sovereign Dominion of the Sea of England, by ordaining Laws and Statutes, Prohibiting Arms and Armed Vessels, taking Sureties, and giving Safeguards, and ordaining all other things necessary to the Preservation of Peace and Right amongst all People passing upon that Sea, &c. will at first view be ready to cry out—suimus Troes! fuit Ilium! We were English men! [Page 31]England was! and yet perhaps no need of such Exclamation. At first reading, it seem'd to me, at some distance, like a Stone Wall athwart my way, and no possibility of passing farther, but when I examined it more nearly, I found it but a Silken Curtain of specious words drawn artificially before the Eye, and easie to be put back by the hand.
1. First, it is to be noted, that all this is but a Plaidoyé, a Plea or Action, a Supplicatory Libel, or Bill of Complaint. No definitive Sentence or Arrest, nothing that did pass in rem Judicatam. This alone, were there nothing more, is sufficient to abate the intrinsick Value of it. The Roll makes no mention of any decision given by the Delegates upon any the Matters contain'd in the Libel, and either none was given, which seems most probable, and those Controversies decided some other way, or the Roll is left imperfect.
2. Though the Interessents of several Nations, as Danes, Germans, Hollanders, &c. suffered Dammages by the Seisures of Grimbald, in like manner as the English did, and therefore joyn'd with them in the same Libel, yet the Libel was penn'd by English Council, as is manifest by the Address or Direction o [...] it, A vous Seigneurs Auditeurs Deputez, To you Lords Auditors deputed, Par les Roys d'Engleterre & de France, by the Kings of England and France, where England has the preference of Order to France, contrary to the style of Neutral Nations of that Age.
3. The Allegation of the Kings of England, having been time immemorial in the peaceable Poss [...]ssion of the Sovereignty of the Sea, was not made by the French Delegates in the Name of the King their Master, but by English Advocats in favour of their Clients Cause. The French King had Commission'd Grinthald to exercise Jurisdiction at Sea, by Arresting and Confiscating Ships and Goods, and Imprisoning Persons, for carrying Relief to the Earl of Flanders his Enemy, by which Commission Grimbald justified himself for doing such Acts, as were manifestly repugnant to the peaceable Possession of the said Sovereign Dominion on the part of England. If the King of France had acknowledged the Admiral of England, the only competent Judge of thing [...] done and committed [Page 32]upon the Sea of England, why did he, together with the King of England, depute Auditors or Delegates for determining those Matters then in Controversie?
4. The Art in penning the said Libel, is remarkable, it affirms the Marine Jurisdiction of the Admiral of England, but it does not except against a Power in the King of France, to constitute an Admiral with the like Jurisdiction, and that upon the Sea towards Flanders. [...]. For 'tis certain, that the Crown of France had Admirals, before the time of Philip the Fair. 'Tis true, that great Body of the Kingdom of France had been cantoniz'd and divided, after the manner of the German Nations, into many Franca F [...]uda, as they [...]ali'd them, Free Fees, which are supreme and independent Sovereignties, only the persons of those Sovereigns under a Personal Obligation of Fealty to another. The respective sen [...]ry Princes were siduciary Homagers to the Kings of France, but the Crown of France had no Regal Jurisdiction or Authority within those Frincipalities. Thus the great Dakedoms of Aquitain and Normandy were under the Kings of England, that of Britany was under a Duke of its own, the Earldoms of Provence, Tolose, and [...]anders, acknowledged their own Sovereign Counts. In those days, the Crown of France had only a small Sea-Coast upon Picardy, and some in the Mediterranean: But, in the time of Philip the Fair, that Crown was in the actual possession of all Normandy; and as the other Principalities became reincorporated into the Body of France, from whence they had formerly been dismembred, as now they all are, excepting some part of Flanders; that Kingdom, as it enlarg'd it self to the Sea, by the accession of many new Coasts, so the Marine Jurisdiction thereof encreas'd proportionably. I say, the forerecited Libel does not deny a Civil Power or Capacity in the Crown of France to create an Admiral, and to invest him with Marine Jurisdiction: But the Exception is partly against the Person of Grimbald, and partly against his illegal Practises and Seisures, contrary to the Alliance made betwixt the two Kings. Now this Grimbald was a Foreigner, and a Mercenary; he was a Genoese, whom the King of France had hired, with several Gallies of that Republick, to serve him in his War [Page 33]against Flanders. The Plaintiffs, in their Libel, call him, Maistre de la Navy du Roy de France, Master or Commander of the French Fleet, but would not vouchsafe him the Title of an Admiral, only Que se dit estre Admiral, that he call'd himself an Admiral, and craftily reclaim the Conusance of their Cause from him, as an incompetent Judge, to the Admiral of England, as an undoubted Authority, and before whom they were sure to gain their Process.
I Have done with the Marine Jurisdiction, Of the Fishery. and proceed now to the third and last Incident of the Dominion of the Sea, and which inseparably follows it, and that's the sole Fishing; without which, it would be a Property without Profit, a Name without a Thing. He, who has the Soil, or Ground, has the Herbage, and other Growth of it, or else a Rent for it; if others may freely depasture with him, it is a Common. The Enquiry is upon the Matter of Fact, as to Fishing upon the Seas about England, in which, our publick Treaties, made betwixt our Kings and other Sovereigns, will be our best Direction. And they stand thus: All the ancient Treaties, I could meet with, concluded betwixt the several Kings of England, and their old Confederates the Dukes of Britanny and Burgundy, which in those Ages were the most powerful Neighbours they had at Sea, are of the same tenour, and run in the same form; viz. They Covenant on both sides, that their respective Subjects should freely, and without the let or hinderance one of another, fish every where upon the Seas, without asking any Licenses, Pasports, or safe Conducts. This is the General Form of them all. For Example: In the Treaty betwixt Edward the 4th of England, and Francis Duke of Britanny, the Article in the French of that time runs thus. That the Fishermen, both of the Kingdom of England, and Dutchy of Britanny, Purront peaceablement aller par tout sur Mer pour pescher & gaigner leur vivre, sans impeachement, ou [...] disturber de l'une partie ou de l'autre, & sans leur soit besoigne sur ceo requirir sauf [Page 34]Conduct. And the same form had been used before, in the Treaty betwixt Henry the 6th, and the then Dutchess of Burgundy. Thus also in the famous Treaty, called Intercursus magnus, made in the Year 1495, betwixt Henry the 7th of England, and Philip the 4th Archduke of Austria, and Duke of Burgundy, in the 14th Article 'tis agreed, Quod Piscatores utriusque partis poterint ubique ire, Navigare per Mare, secure piscari, absque impedimento licentia seu salvo conductu. And this form is also kept to, in the Treaty made betwixt Henry the Eighth, and Cha [...]les the Fifth, Emperour and Duke of Burgundy. In the time of Queen Elizabeth, after that seven of the seventeen Provinces had set up distinct Sovereignties of their own, they still enjoyed the same freedom of Fishing, as they had done before, when united with the House of Burgundy. And in the Treaty made betwixt King James of England, and Philip of Spain, in the Year 1604, the ancient Treaties of Entercourse and Commerce, betwixt the Kingdoms of England, Scotland, and Irelan [...], and the Dominions of the Dukes of Burgandy, and Princes of the Low-Countries, are reviv'd and reconsirm'd. From whence it appears, upon the whole Matter of Fact, That the Kings of England, in their Treaties with other Sovereigns, not once or twice, but in a Succession of Ages, not by surprize, but deliberately, and when the business of the Fishery came under special consultation, did not challenge to themselves the sole Right thereof, exclusively of all others, as being appropriated to the Crown of England: For had they esteemed the Fishery the Property of their Crown, and all Aliens excluded from it, they would not have admitted the Subjects of Britanny and Burgundy, to a promiscuous Fishing with their own Subjects, without some valuable Consideration had been given for it, or at least some License obtained, as a beneficiary Grant derived from them, or some Acknowledgment made by way of a Salvo Jure, a Saving, to the Right of the Crown or England. Else it would be as unreasonable, as if a Man should throw down the Inclosures of his own Ground, and lay that common, which before was his Property, which is too gross a Reflection upon the Wisdom of those Ages. And this [Page 35]may be further illustrated, by a samiliar Instance. Suppose here in England two great Mannors, and betwixt them a large Lake of fresh Waters, well stored with Fish, and it can be proved, That not only Time out of Mind, the Tenants of the two Mannors have promiscuously fished therein, but that also the Lords of both Mannors have, in several Ages, contracted each with other, for a free Fishing, without Leave or License to be first ask'd or obtain'd for their respective Tenants. And, in the Contract, no Exception or Reservation is made of the Fishery, as parcel of the Inheritance of one of the said Mannors, nor any Words creating a Tenure, whereby one should hold of the other; nor expressing or implying, that it was but a Temporary Sufferance, that one of the Lords should share for a time in the Profits of the Fishing, without any share in the Fee or Inheritance of it: And this by the free Donation of the other, commonly call'd De Gratia Speciali, or for a valuable Consideration, usually termed, Quid pro quo, or to hold by some small Acknowledgment of Tenure, as of a P [...]pper-Corn Yearly. But the Contract stands on both sides upon an equal foot, both Lords equally giving and taking an undisturb'd Liberty for their respective Tenants. This, I humbly conceive, is good Evidence, that the Fishery lies common to both Mannors. Suppose again, this Lake to be the Sea, and the two Mannors to be two Kingdoms; and the Case will still be the same.
None of our Leagues and Treaties, made, either with the House of Burgundy, or with the House of Austria, since the Union of those two Houses, or with the States General, since their disunion from both, have ever reserved to the Crown of England, any Annual Payment, Fee-Farm, or Consideration for their liberty of Fishing in our Seas. A certain Sum was never agreed, an uncertain one could never be demanded. And yet Sir John Boroughs, in his Book of The Sovereignty of the British Seas, says, That Philip the Second, King of Spain, obtain'd of Queen Mary, his Wise, License for his Subjects to fish upon the North Coasts of Ireland, they paying yearly for the same One thousand Pounds Sterling; which was accordingly paid into the Exchequer of Ireland. But instead [Page 36]of an Authentick Record, he vouches only the hearsay of Sir Edward Fitton, Son to Sir Henry Fitton, sometime Treasurer of Ireland, who, he says, had often testified it. This may the rather be suspected of mistake, Annal. Eliz. An. 1602. because Mr. Cambden relates, how that Queen Elizabeth having sent four Ambassadors, whereof one was Principal Secretary of State, and not lightly to be supposed ignorant of such an Affair, to treat at Bremen with the Ambassadors of Denmark, upon Complaint of that King's forbidding Foreigners the freedom of Fishing betwixt Norway and Iseland, both appertaining to the Crown of Denmark: The Queen's Ambassadors openly affirmed, that the Kings of England had in no time forbid the freedom of Fishing in the Irish Sea, albeit they were Lords of both Banks.
The said Mr. Cambden, in his description of the North-Riding of Yorkshire, speaking of Scarborow-Castle, says, That the Hollanders and Zelanders take wonderful Quantities of Herring upon this Coast, Cùm veniam priùs veteri instituto ex hoc Castro impetraverint; Whereas they were wont, by ancient Use, to ask leave first of the Castle. For, says he, the English always gave leave to Fish, reserving that Honour to themselves, but slothfully resigning the Profit to others. But, all this while, he quotes no Authority neither, nor directs us to any Original Record, where we might consult the plain Truth of the Case. Perhaps what he Historically calls, Asking Leave, was but giving notice of their Arrival, and acquainting the Governor who they were, and what their Business was upon the Coasts, lest, under the disguise of Fishermen, Pirats and Enemies might privily hide themselves. And probably, he, by his Civilities to the Fishermen, might make some Perquisits and Profits to his Place, by permitting them, as occasion required, to dry their Nets ashore, to fetch. Victual or fresh Water from Land, to fish within the Havens and Bays, where commonly the best fed Fish are taken. But 'tis not likely, that the Governor of Scarborow had so indefinite a Power, as to enable him to give leave, upon bare Asking, without any further Condition or Consideration, to all Foreigners, to fish at pleasure, within the Royalties of [Page 37]the Crown. However 'tis too manifest, That no Prince nor State did ever pay to the Crown of England any yearly Sum of Money, or other valuable Consideration, for the Liberty of their Subjects Fishing upon the Seas of England; for had such Sum been paid, it would have passed into the Accompt of the Exchequer, as a Branch of the Royal Revenue, and there remain upon Record.
As for the Case of my Lord of Northumberland, in the Year 1636, that's extraordinary, and will not pass for a President. The Dutch Busses were then required by the English Admiral to take Licences from him for Fishing in the Northern Seas, and to pay moderate Rates for the obtaining those Licences, which they did, to redeem themselves from the forcible Molestations of a well-appointed Fleet. So that this was the Compulsory Act of private Persons, not the Voluntary Act of the States-General, who were so far from consenting to what was done, that they made Remonstrances and Complaints of this Proceeding by their Ambassadors here in England.
And as it appears not by the Records of the Exchequer, That any Recompence was given by Foreigners for Liberty of Fishing within our Seas, so neither does it appear by any the publick Treaties, That the Subjects of any Foreign Prince should ask leave for so doing, by Stipulation and Contract, though they were sure to have it without paying any thing, only, by the bare asking, to keep in memory a perpetual Acknowledgment of a beneficiary Grant derived from the Crown of England, as Supream Lord of the Fee. On the contrary, the Treaties caution for a Liberty of Fishing, abs (que) licentia, without any Leave or Licence first to be ask'd. And yet England has ask'd leave, and covenanted so to do, of a foreign Crown. I would not have mentioned this, had it been a Secret, but 'tis a thing publick and in Print. By Treaty made and concluded in the Year 1490, betwixt Henry the Seventh of England and John the Second King of Denmark, which Treaty was afterwards renewed betwixt our Henry the Eighth and their Christiern the Second, Anno 1523. it was mutually covenanted, That the Liegemen, Merchants and Fishermen of England, should Fish and Traffick upon the Northern Sea, [Page 38]betwixt Norwey and Iseland, V. Cambd. Annal ad An. 16 [...]0. but under a Proviso of first asking leave, and renewing their Licences from seven Years to seven Years, de Sept [...]unio in Septennium, from the Kings of Denmark and N [...]rwey and their Successors; they are the words of the Treaties. But as Navigation enlarged, and England grew more op [...]lent in Trade, and posent at Sea, all this is gone into utter disuse and discontinuance; and the Kings of England may with better Right prohibit the Subjects of Denm [...]k from passing the English Sea or Channel, without special Licence first obtain'd, than the Kings of Denmark can, the Subjects of England from passing the Northern Sea betwixt D [...]ark and Iseland.
There is a Record, [...] which Mr. Selden quotes out of a Parliament Role of King Richard the Second, is very remarkable. 'Tis a Grant in Parliament of an Imposition, according to certain Rates and Proportions, upon all Vessels Passing or Fishing within the Admiralty of the North, viz. Upon the Sea Northwards from the Mouth of the Thames. The Rates were as follow,
1. To take of every Ship, going and coming upon that Sea, Six Pence a Tun for the Voyage.
2. To take of every Vessel Fishing for Herring, Six Pence a Tun by the Week.
3. To take of Vessels Fishing for other Fish, Six Pence a Tun for every Three Weeks.
4. Of Ships laden at Newcastle with Coals, Six Pence a Tun for every Three Months.
5. To take, of all other Ships passing the Sea within the said Admiralty, laden in Prussia, Norwey, Sconen, or elsewhere in those parts, Six Pence a Last for the Voyage.
Some Collect and Infer from hence, (I confess, I cannot) That King Richard, by Assent in Parliament, did impose these Rates, not only upon Subjects, but Foreigners, for Trading and Fishing within the North-East Sea, as part of the Territorial Property of the Crown. Were it so, it would be a matter of mighty weight and moment. But 'tis questionable, whether those Words of Universality, Chescun Nief & chescun Vesseau (for the Role is wrote in Nerman French) every Ship [Page 39]and every Vessel, ought not to be restrained to English Vessels only, and not extended to those of Foreigners. And if extended to Foreigners, since the Grant is said to be made, per l' Advis des M [...]rchands de Londres & des autres M [...]rchands vers la North, 'tis worthy the considering, whether those words, Other Merchants towards the North, are not in like manner to be extended to Foreigners as well as Natives, that is to say, to Hanseaticks, and all other Merchants, whether English or others, dwelling or trading towards the North; who having often occasion to pass and repass the Northern Sea, at that time infested with Rovers, advised the said Grant, which Word implies a Request or Desire, somewhat more than a bare Consent. And what was this Impost for, which they advised might be laid upon all their Ships and Vessels? The Role tells us expresly, That it was pur la garde & tuition du Mier, &c. for the guard and Security of the Sea and of the Coasts of the Admiralty of the North, with two Ships, two Barges and two Ballengers, armed and arrayed for War. And 'tis most probable, That not the King himself, but private Persons, Commissioned from him, undertook, at their own Expence, to Equip and Arm the said Vessels, for the Benefit of the Merchants, and Security of their Commerce, and by this rated Impost to be reimbursed their Charge, and rewarded for their Service. This may be collected from the first Article in the Role, where there is an Exception of Ships laden with Merchandizes in Flanders, bound for London, and laden with Wool and Skins at London, or elsewhere within the Admiralty of the North, to be unladen at Calais, of which Ships the Six Pence per Tun aforesaid was not to be required. But then it follows, Les qu [...]ux Niefs les G [...]rdeins de la di [...]e Mer ne serent tenus de les Conduire sans estre alloue [...], The Guardians of the said Sea were not obliged to give Convoy to those Ships, without an Allowance in Consideration thereof.
So that upon the whole matter, here is nothing that relates to the Dominion of the Sea; for the Imposition upon the Ships and Merchandises was not Jure Cor [...]e, in Right of the Crown, for passing over the Districts or Fishing within [Page 40]the Royalty of it, but Ratione Oneris, in Consideration of a Charge, which some persons sustained; and that by Contract, to preserve and defend the Freedom and Security of Navigation and Commerce. And it was very just and reasonable, That what was undertaken for a common Good and Benefit, should be supported and defrayed by a common Charge and Contribution. The Role does not say, That the Impost was granted to the King, as an additional Revenue to his Crown, but it was for the Guarders of the Sea, to reimburse their Expence, and recompense their Service. And the Case is parallel with this: Suppose the Hamburgers and other Hanseaties trading to the Streights, who have very small or no Convoy of their own, and apprehensive of the Courses of the Rovers of Africa, the Turks and Moors, should contract with the King of France, or others Commissioned from him, to supply them with Convoy from the Mouth of the Streights, till they are arrived at the respective Ports whither they are bound, and in Consideration thereof to give so much a Tun upon every Ship so Convoy'd. This would have no relation to any Sovereignty in the Crown of France in and over the Mediterranean Sea, but would be a particular Contract only, a Quid pro Quo, something to be done, and something to be received in Consideration of so doing.
There want not Examples in History of those, who have exacted Tribute upon all passing certain Seas adjacent to their Territories, and yet not as proprietary Lords of those Seas neither, but only as Protectors and Defenders of the Navigation thereof. Plin. l. 19. & lib. 6. cap. 22. Thus the Romans imposed a Tax upon all Ships sailing in the Erythraean or Red Sea, towards the Maintenance of a Maritim Force, for the repression of Piratical Excursions. Demosth. in Leptin. And the Athenians did the same in the Hellespont. Thus the Duties in the Sound, payable to the Kings of Denmark, began at first, not on account of any Sovereignty over that Sea, but because those Kings were at the Charge of maintaining continual Fires upon the Col and Annot, and sloating Tuns or Buoys upon the Sands, as a Direction to Merchants in that dangerous Entrance into the Baltick: For which, was antiently paid them at Cronenburg Castle, in the Sound, no [Page 41]more, till new [...]actions crept in, then a Rose-noble for an empty Ship, and if laden, a Rose-noble more for her Lading. Nor could any resuse Payment, pretending, that he had an able Pilot, and needed not the Direction of the King's Fires; for 'tis not reasonable, that the Contumacy of one or more particular Persons, should frustrate or evacuate a publick Benefit.
In the Seventh Year of King James, An. 1609, a Proclamation was published of high Importance, inhibiting all persons, of what Nation or Quality soever, not being natural-born Subjects, from fishing upon any the Coasts and Seas of Great Britain and Ireland, and the Isles adjacent, without first obtaining Licenses from the King, or his Commissioners, authorized in that behalf, and those Licenses to be renewed yearly. This was the first that ever I could meet with of this nature: Not but that particular Fishermen of Diep, Calais, Bruges, &c. have sometimes, both before and since, taken Licenses here in England for their fishing; but then they did it, either as an abundant Caution, or to gain an indefinite Liberty of fishing every where, close upon the English Shores, and within the Fryths, Bays, and Havens, without fear of molestation; and they did it ex proprio motu, without the privity and knowledge of their Sovereigns; and paid nothing for it to the Treasury of England, only gave Fees and Gratuities to the Secretaries, and others, for dispatch of their Licenses. But here is a Royal Edict, or Law, by way of premonition to all the Neighbouring Princes and States, together with their Subjects, to take Licenses of the King, or his Commissioners, for fishing upon any the Coasts and Seas of Great Britain, the number of their Ships and Vessels, together with their Tonnage, to be specified, in order to a rateable Composition to be paid yearly into the Chequer of England. And King Charles the First, in the 12th Year of his Reign, An. 1636, published another Royal Proclamation to the same Tenour also. By which Acts, those two Kings kept up the continual Claim of the Crown of England, to a sole and appropriate Fishery in the British Seas, and consequently to the Sovereignty and Dominion thereof; but neither [Page 42]of those publick Edicts obtain'd, from any of our Neighbours, their due and just Effect. Thus stands the Case of the Fishery.
And thus I have gone over all the chief Branches of the Sovereignty, The Reasonableness of a Limited Fishing. and have faithfully related the Matter of Fact, and how the Practice is, and has been, betwixt us and our Neighbours, in reference to them all; not so fully indeed, and amply, as I might, but sufficiently to my purpose, who design'd not a Volume, but an Abstract. There is still one thing behind, concerning the Fishery, which I shall mention, and so conclude. 'Tis by way of Temperament or Relaxation, and yet without renouncing any thing; 'tis a medium betwixt grasping at All, and holding Nothing; 'tis what would greatly accommodate England, if it can be obtain'd, or if a proper Season presented, for offering at it: I say, a Season, or fit Conjuncture. For what in Natural Philosophy, amongst Chymists, is a just degree of heat, necessary to the Production of all great and admirable Effects, that in Politicks, amongst Statesmen, is a fit Conjuncture. The Temperament or Expedient, which I mean, is briefly this: A Limited Fishing; not a Licensed, but a Limited one, without License. This hath both a Foundation of solid Reason to support it, and is back'd also with Presidents and Authorities, sufficient to vindicate it from the Imputation of a new Project. The Reasonableness of it may be thus shewn. The Sovereignty of any Sea, and the Right of the sole Fishing in it, are so intimately connexed, yea, so coessential one to the other, that he who Controverts the one, will infallibly Dispute and Opiniastre the other; but he who acknowledges one of them, will by a necessary consequence yield both. And yet 'tis a thing undoubted, and never brought into Question by any; but that every Prince, whose Country adjoyns to the Sea, and whose Shores are indented with Bayes, Creeks, Havens, and Rivers, has some portion of the Sea belonging to him in property, as an accession of the Land, or appendant to it, or rather incorporated with [Page 43]it, like Veins and Arteries, integral Parts of the same Body.
The forementioned King James, V [...]d [...]sis Mar. Claus. l. 2. cap. 22. in the second Year of his Reign, An. 1604, caused a Sea-Chart to be published, describing all the Coasts round England, by streight Lines, drawn from one Promontory or Foreland to another, and all that was intercepted and included within those Lines, was called the King's Chambers, and Royal Ports. And in the Proclamation published the same time, and which refers to the said Sea-Chart, they are called, The Places of the King's Dominion and Jurisdiction; and all Hostilities betwixt Foreigners in War one with another, but in Amity with England, forbidden within those Precincts. Our Law also makes a considerable difference betwixt Havens, Rivers, Creeks, and Bayes, and the Altum Mare, or High Sea, for the first are reckoned infra Corpus Comitatus, as the Law-Phrase is, Parts and Members of the Counties of England; and all Pleas of Contract, and other things done there, are triable by Verdict, and determinable at Common Law. V. Co. Jurisd. of Courts, cap. 22. But the Court of Admiralty holds Plea and Conusance of all things done upon the High Sea, as being out of the Body of any County, and consequently, from whence no Jury can be returned for Trial of Issues.
If there be no certain Standard in Nature, whereby to ascertain the precise Boundaries of that peculiar Marine Territory, I am now speaking to, which belongs to every Prince in Right of his Land; yet, by Treaty and Agreement, they may easily be reduced to certainty. For, as to the Judgment and Opinion of private Persons, we cannot fetch from thence any true measure; for though they all agree unanimously, that there is something due of Right, yet they vary in the Quantum, or How much. Bald. ad L. de rer. Dom. Baldus reckons One hundred Miles at Sea, as the District of the adjacent Land. Bodin affirms it for a received Law amongst Nations, That the Prince, Bed. de Repub. l. 1. c. 10. whose Country abuts upon the Sea, should have sixty Miles Jurisdiction from the Shore, and that it was so adjudged in the Case of the [Page 44]Duke of Savoy. Another Doctor will tell us, That so much of the Sea appertains to the Land, as far as a Man can see from Shore in a fair day. But this will not serve our turn: For if a Man may see from Dover to Calais, I suppose the like may be done from Calais to Dover, and whose shall the Sea be betwixt? Therefore, the surest way is, to prescribe the Limits of Fishing betwixt Neighbouring Nations by Contract, and not by the less certain measure of Territory. For if no Bounds be fixed, how many Inconveniences, and what a licentious Extravagance, may such a Liberty run into? Why may not the Dutch, as formerly they have done, dredge for Oysters upon the Coasts of Essex, within the Fisheries of private persons, and within Streams and Waters appertaining to particular Mannors, by Grants from the Crown? Why may they not fish within the mouth of the Thames? Or within our Creeks, Havens, and Rivers, as far as Salt Water flows? Or to the first Bridge, if they will please to stop there? Is it reasonable, that there should be no distinction, as to fishing, betwixt Native and Alien? Why then do they challenge to themselves those smaller Seas and Inlets within the Vly and Texel, and all other Streams, which, breaking in at a streight Neck or Isthmus of Land, form Peninsula's of Waters, and, in the nature of standing Lakes, are inclosed within the Banks of those Low-Countries? The States there farm out the fishing of the South Sea or Zuyder, and other Streams, to their own People and Subjects, under the Reservation of a Yearly Rent to be paid therefore, and consequently exclude all others from it. I hint these things, only to shew the Reasonableness of a Limited Fishing, and as to the Authorities by which it is strengthened; I shall touch upon them also.
It was anciently Covenanted betwixt the Crown of Scotland, and the Netherlands, that they should not Fish within Fourscore Miles from the Scottish Shoars. My Author is Welwood, a Scotch Lawyer, in a little Tract of his, [Page 45]which I have read, De Dominio Maris, in the Third Chapter; His words are, Non possum praeterire, quod ante Saeculum hoc post cruentissimam ex occasionibus Maritimis discordiam inter Scotos Batavos (que) res in hunc modum comp [...]sita fuit, ut Batavi imposterum abstinerent ab oris Scoticis ad Octuaginta saltem Milliaria. Here the distance from the Shoars of Scotland, which Foreigners were to observe in their Fishing, is set very large, no less than Fourscore Miles.
In the Second year of King James, Commissioners were appointed and authorized under the Great Seals of England and Scotland, to Treat and Conclude an Union betwixt the two Kingdoms. Spetis [...]d's Hist. of Scotland, p. 483. And in the Articles for Regulating Trade betwixt them, it was amongst other things, mutually agreed, That the Fishing within the Fryths and Bays of Scotland, and in the Seas within Fourteen Miles distance from the Coasts of that Realm, where neither English nor other Strangers have used to Fish, should be reserved and appropriated to Scotchmen only. And so reciprocally on the part of England, Scotchmen to abstain from Fishing within the like Distances off the Coasts of England. But if English and Scots, who, though the two Kingdoms be sui Juris and independent one upon another, are tied together in the same Common Bond of Allegiance to one and the same Prince, be excluded from Fishing within Fourteen Miles from each other Coasts, how much more reasonable is it, that Aliens and Foreigners should be obliged to keep the like Distances?
King James finding, that his foremention'd Proclamation in the Seventh year of his Reign for a licensed Fishing, was not seconded by a suitable Compliance on the part of the Neighbouring Nations, did about Nine years after, by way of Expedient propose a limited Fishing instead thereof. For thus I find it in a Letter from Secretary Naunton to the Lord Carlton, English Ambassador at the Hague, bearing Date January 21th, 1618. He acquaints him, how the King had, by him the said Secretary, desired of the Commissioners of the States, then residing at London, that they would write to their Superiours, [Page 46]to Publish a Placart, Prohibiting any their Subjects to Fish within Fourteen Miles of His Majesties Coasts, that Year, or any time after, until Order be taken by Commissioners authorized on both sides, for a final setling of the main Business. And the said Ambassador was Commanded to make the like Instance and Declaration to the States General in the Name of his Master.
I am apt to believe this Distance of Fourteen Miles was the rather pitch'd upon, as the regulated Measure, which had been agreed upon betwixt the Commissioners of both Kingdoms in the 2d. of the King, as I said before. I have done with the Authorities; and for the better Elucidation of what I have said, shall briefly sum it up into a fictitious Article supposed to be made betwixt England and Holland.
TO Maintain a due Distinction betwixt Natives and Foreigners in Fishing upon the Coasts of their respective Sovereigns; And to prevent the manifold Inconveniences, which occasionally arise by a promiscuous and unlimited Fishing; 'Tis mutually Covenanted, Concluded, and Agreed, That the People and Subjects of the United Netherlands, shall henceforth abstain from Fishing within any the Rivers, Fryths, Havens or Bays of Great Britain and Ireland, or within the Distance of [...] Leagues from any Point of Land thereof, or of any the Isles thereto belonging; under the Penalty and Forfeiture of all the Fish, that shall be found Aboard any Vessel doing to the contrary, and of all the Nets, Ʋtensils, and other Instruments of Fishing. The like Distances, and under the same Penalties, to be kept and observed by the Subjects of His Majesty of Great Britain and Ireland, from any of the Coasts belonging to the United Netherlands. But beyond those Precincts and Limits, That the People and Subjects on both Sides be [Page 47]at freedom to use and exercise Fishing, where they please, without asking or taking Licences or safe Conducts for so doing, and without the let, hindrance or molestation one of another. Saving always the Ancient Rights of the Crown of England, and that nothing herein contained be interpreted or extended to any Diminution or Impeachment thereof, But that they remain in the same Force and Vertue, as before this Agreement.
The Article is Penn'd indifferently on both Sides, and so much the better, because the equality of it is an Argument of its Equity; yet I could instance in several benefits, which would redound to England from such an Article, were it pass'd into an Agreement, but they are not proper to be mention'd in this place; and therefore I shall here conclude with this brief Apology, That what I have written, is for the Justice and Honour of the Government, the Conservation of the Publick Peace, the Maintenance of an inviolable Amity with our Allies, and is most humbly submitted to better informed Judgments.