least allow such a Dominion VIII Som antient Testimonies of inferior note All the testimonies almost that are comprehended in this Division are indeed domestick but so publick and of so approved credit that hardly any thing can bee imagined which might give a clearer proof of possession whether Civil as they call it consisting in the act and intention of the minde or Natural which require's the presence of the Bodie As it will appear to any man that pleas to make enquirie Especially if hee add hereunto the judgment or acknowledgment of such Forein Nations whom it chiefly concerned whereof wee shall treat also by and by But of these things severally and in order That the Kings of England since the coming in of the Normans have perpetually enjoied the Dominion of the Sea flowing about them is in the first place proved from the Guard or Government thereof as of a Province or Territorie that is to say from the very Law of the English Admiraltie CHAP. XIV AS concerning the Guard or Government of this Sea there are three things therein that deserv special consideration 1. The bare mention and nature of the Guard of the Sea and of the Guardians or Admirals thereof in publick Records and Histories 2. The Tributes and Customs imposed demanded or accustomed to bee paid for and in consideration of the said custodie And lastly the tenor and varietie of Commissions belonging to this Guard and English Admiraltie or Government by Sea Since the coming in of the Normans there is frequent mention of a Guard or Government instituted for the defence and guarding of the Sea Here call to minde those observations touching this kinde of Guard which have been alreadie gathered out of that Record or Breviarie of England called Doomesday And King Henrie the first saith Florentius of Worcester gave order to his Butsecarli to guard the Sea and take care that no person from the parts of Normandie approach the English Coasts The same saith Roger Hoveden in the very same words almost save onely that the printed Copies err in putting Buzsecarlis for Butsecarlis These Butsecarli or Butescarles in the old English Language are Officers belonging to the Navie or Sea-souldiers as Hutesecarli were Domestick Servants or Officers in Court And that to guard the Sea here signified to secure the Sea it self not to defend the Sea-Coasts as somtimes though seldom it did with Land-forces plainly appear's out of Henrie of Huntingdon in whom it is clear that the persons who thus guarded the Sea were emploied by the King to make Warr by Sea against Robert Duke of Normandie who was then preparing an Expedition against England Now those publick Records are lost wherein the Roial Commissions for the delegation of this Command or Government were wont to bee registred all that space of time betwixt the coming in of the Normans and the Reign of K. John But from thence through all the succeeding ages unto this present time it is as clear as day that the Kings of England have been wont to constitute Governors or Commanders who had the charge of guarding the English Sea and were the Guardians or Governors thereof in the same manner as if it had been som Province upon Land First of all there were intrusted with the Government of the Sea or the Maritimae and Marinae the Maritime and Marine part of the Empire understanding by those words not onely som Countrie lying upon the Sea-Coasts but comprehending the British Sea it self though I confess it was not alwaies so such as were to guard and keep it under the title somtimes of Custodes Navium Guardians of the ships but more frequently Custodes Maritimae or Marinae in the sens aforesaid And in the time of Henrie the third Thomas de Moleton is styled Captain and Guardian of the Sea and hath autoritie given him to guard the Sea and the Maritim parts of the Eastern Shore In the same King's Reign also the Inhabitants of the Cinque-Ports are said to guard the Coast of England and the Sea So Hugh de Crequeur was Warden of the Cinque-ports and of the Sea in those parts Afterward the title of Guardians or Wardens very often changed into that of Admirals Edward the First saith Thomas of Walsingham for the keeping of the Sea divided his Shipping into three Fleets setting over them three Admirals namely over the Ships at Yarmouth and the road thereabout John de Botetort over those at Portsmouth William de Leyburn and over the Western and Irish Ships a certain Irish Knight Moreover also that John de Butetort is in the Records of that time styled custos Maritimae as were others also After this in the Reign of Edward the Second three Admirals of the three several Coasts of England saith Walsingham had the guarding of the Sea namely Sir John Oturvin Sir Nicolas Kyriel Sir John Felton Wee finde moreover in our publike Records that the principal end of calling a Parlament in the fourteenth year of Edward the Third was De Treter sur la gard de la pees de la terre de la Marche d'Escoce de la Meer i. e. That consultation might bee had concerning keeping the peace of the Land also of the Borders of Scotland and of the Sea The same regard they had to the defence of the Sea as of the Island or Land-Province giving us to understand that the Land and Sea together made one entire bodie of the Kingdom of England Other evidences of the same nature wee finde in the Records of Parlament of the same King's time or in the consultations of the estates of the Realm had about this matter that whilst they Treat indifferently De la saufegard de la terre concerning the safeguard or defence of the Land or Island and de la saufeguard de la Mere the safeguard of the Sea they seem sufficiently to declare beeing well inform'd by their Ancestors that the Dominion of this as well as of that did belong unto the Crown of England For the business debated by them was not onely how to provide a Navie to make resistance against their Enemies by Sea but for the guarding the Sea it self as well as the securing of the Isle and so for the maintaining the antient right of their King in both In the time of Richard the Second Hugh Calverlee was made Admiral of the Sea saith Walsingham and M r Thomas Percie joined in Commission with him to scour the Roades of the Sea for one year And in the Reign of the same King and likewise of the two succeeding Henries the Fourth and the Fifth debate was had in Parlament about the Guard of the Sea In the Reign of Henrie the Sixth the Guard of the Sea was with a numerous Navie Committed to Richard Earl of Salisburie John Earl of Shrewsburie John Earl of Worcester and James Earl of Wilts to whom was added Baron Sturton and afterward to John Duke
our Isles of Gernesey Jersey Serk and Aureney in the Sea between Easter and Michaelmas is according to the Custom of those places acknowledged to belong unto Us at a reasonable rate to bee paid therefore and that the said Fishermen are bound to carrie all the Fish by them taken between the Times aforesaid unto certain places in those Isles appointed that the Officers under our Governor of the aforesaid Isles may take thence for our use at what price they shall think fit and reasonable Nor is that to bee slighted which wee finde in the Chronicles of the Abbie or Monasterie of Teuxburie concerning Henrie Beauchamp Duke of Warwick who was invested by Henrie the sixt with the Title and Dignitie of King not onely of the Isle of Wight but also of Gernesey and Jersey whereunto the other Isles in this Tract do in a civil sens belong The same thing is recorded of the Isle of Wight by that Learned man William Camden and that out of the same Book The Book it self speak's after this manner But the noble Lord Henrie Duke of Warwick and first Earl of England Lord Le Dispenser and de Abergeveney King of the Isles of Wight and Gardsey and Jardsey Lord also of the Castle of Bristol with the appurtenances thereunto belonging died 3 Idus Junii Anno Dom. 1446. in the twentie second year of his Age at the Castle of Hanley and was buried in the middle of the Quire at Teuxburie And a little before it is said of the same man that hee was Crowned King of Wight by the King 's own hand no express mention beeing made in that place of the other islands but they reckoned in the same condition with this as they were part of the patrimonie of the Kings of England But it is not to bee believed that those Isles which lie before the shore of Normandie had been so turned into a Kingdom though subject to the Crown of England unless even they also who made them a Kingdom had conceived that they possessed them before by a Title superior to that of the Dutchie that is to say by a Kingly Title As King Richard the second when hee had determined that Robert Earl of Oxford who also was Marquiss of Dublin and Duke of Ireland should bee creâted King of Ireland questionless did not doubt but that hee himself in the mean time possessed that Island by no less a Title and Dignitie than of King although the name of Lord was wholly used there at that time in stead of King as also until the latter end of the Reign of Henrie the eight So it is conceived upon good ground that those Isles and the Sea lying about them did though they used different Customs constitute one entire Bodie of Empire with the Kingdom of England Whereunto also that special privilege of theirs doth relate whereby through the favor of the Kings of England they enjoie the benefit of freedom from hostilitie by Sea though there bee a Warr on foot between the Neighbor-Nations round about but of this more hereafter And in their Court-Records which contain the Acts or Decrees of the aforesaid Justices Itinerant wee very often finde Pleas of the Crown which phrase is an Evidence of the English Government Also in their Trials those Forms In contempt of our Lord the King his Crown and Dignitie and Our Lord the King was seised of the aforescid Advousen in time of Peace as of his Fee and in Right of his Crown and others not a few of that kinde wee meet with which savor not of any Right of the Dutchie Add moreover that the King of England so held the Right heretofore not onely of the Isles over against the shore of Normandie but of those also which are opposite to Aquitain as a pledg or concomitant of his possession of that Sea so far as it belong'd to the patrimonie of the Kingdom of England that though our Henrie the third renounced his claim to no small part of Aquitain yet that Isle lying before it called Oleron no less famous in the West for Naval Laws than Rhodes was of old hee granted to his eldest son Edward to bee held in time to com as a perpetual Appendant of the English Crown For this Claus was added to the Grant so that the said Isle may alwaies remain to the Crown of England and never bee alienated from the same Also in his Letters granted to the Inhabitants of Oleron hee saith Wee will not in any wise sever you from the Crown of England Som years before also hee in like manner made a Grant of Gascoign or those parts which lie upon the shore of Aquitain near the Sea to Prince Edward upon condition it should remain entirely and for ever to the Crown of England So without doubt his intent was that both the Sea-Coasts and this Isle should in a special manner bee possest by the said Prince but by no means bee disjoined from the English Empire any more than the Sea its self which washt their shores And although after a while both this and som other neighboring Isles did many Ages since for divers reasons follow the fate of those French shores which lie next to them yet in the mean time the Dominion of the Sea remained entire as it did before to the Kings of England as it sufficiently appear's by those other passages which wee have shewn The Dominion and possession of the Sea asserted on the behalf of the Kings of England from that leav of praeter-Navigation or passage which hath been usually either granted by them to Foreiners or desired from them CHAP. XX. THose things which wee have hitherto alleged concerning this possession and dominion are confirmed by several Passports that have been obteined from the Kings of England for leav to pass through this Sea whereof wee have clear Testimonies in Records that is to say granted at the intreatie of Foreiners Our Henrie the fourth granted leav to Ferrando Urtis de Sarachione a Spaniard to fail freely from the Port of London through our Kingdoms Dominions and Jurisdiction to the Town of Rochel It is manifest that in this place our Dominions and Jurisdiction do relate to the Sea flowing between And when Charls the sixt King of France sent Ambassadors to Robert the third King of Scots to treat about the making of a League they upon request made to the same Henrie obteined Passports for their safe passage par touz noz povoirs destrois Seigniories par Mer par Terre that is through all places under our Power Territories and Dominions as well by Sea as by Land There are innumerable other Letters of Passport called safe Conducts in the Records especially of Henrie the fift and sixt whereby safe Port and Passage was usually granted as well by Sea as by Land and Rivers that is to say throughout the whole Dominion of him that made the Grant And it is
the Coast of France For although Aquitain indeed was first added to the names of England and Ireland in that Commission while the English possessed the Dutchie of Aquitain nevertheless it not onely so remained likewise in that form of Commission constantly even after the expulsion of the English until our times but Normandie also which had never been named before in the Commission of high Admiral of England was added and this som Ages after that the English were wholly deprived of the Dutchie it self So that either these names do serv in stead of a Limit to the Sea under his protection or els wee must perforce admit contrarie to reason that they signified nothing in the Commission for so many years For wee see that those names of opposite Shore were reteined in the Admiral 's Commission even from the end of Queen Marie's Reign until our times or for the space of 77 years though the English in the mean time were not possest of the least part of France as also that Normandie was added many years before but yet long after the English were outed of its possession Nor ought any man fondly to imagine that these Names were inserted becaus of that right the King of England had to the Crown of France For indeed the Kings of England have by an antient Right usually entitled themselvs Kings of France Also the Dutchies of Aquitain and Normandie and the other Provinces of France mentioned in this Commission are comprehended in that name of the Kingdom as the lesser in the greater But if that had been the caus certainly the name of France should have been ascribed to our Admiral yea and other Officers of that Kingdom have been made in the same manner by the King of England after hee was driven thence Of which thing there is not the least evidence indeed any where exstant And it is to bee observed as soon as ever an alteration was made in the Draught of the Commission from that denomination of the Command of the Admirals of England which was derived from the Fleets and Coasts over which they had command unto that which is made up of the Kingdoms and Provinces that then an Addition was made of Aquitain to the end that the limit or bound as well on this as the other side of the Sea might bee pointed out by the Shores The name of Normandie beeing added afterwards and reteined still together with Calais and the Marches thereof and Aquitain upon the same account But while that the Kings of England were in former times possest of Normandie Aquitain and other Countries in France there are not found in the form of Commission wherein the Kingdoms and Provinces as hath been alreadie shewn are expressly nominated any other Admirals or Governors of the Maritim Province or Dominion by Sea made by them besides those to whose care the Fleets and Coasts were committed in the manner alreadie mentioned that is to say the whole Sea flowing between our British Isles and the Provinces over against them and the Fleets belonging to any Territories whatsoëver of the Kings of England were at that time by a peculiar right of the Kingdom of England in the Sea so subject to them who were so put in Command over the English Fleets and Coasts that there remained neither place nor use for any other Commanders of that kinde Which may bee said likewise of those times wherein som of the Kings of England stood possessed also of the Kingdom of France as Edward the Third and the two Henries 5 th and 6 th Nor is it a bare conjecture that they did not put any others in command over the Sea and Fleets besides those to whom by right onely of the Kingdom of England the power was committed to wit according to that right which comprehended the whole Sea flowing between but it is sufficiently proved also upon this ground that wee have the antient publick Records of those times touching the Offices constituted by our Kings in France and those Provinces beyond Sea in most whereof I finde not the least sign of the contrarie And if it bee demanded here wherefore it was that the Shore of Bretaign was omitted which in like manner lie's over against our Isle of Britain and together with the Shore of Picardie Normandie and Aquitain sufficiently take's up that whole Tract which stretcheth it self in the Realm of France before the English and Irish Sea certainly if the aforementioned reason take place there is little caus to doubt that it hapned thence becaus the King of England was not at any time so possest of Bretaign that beeing outed of it hee needed to bee very sollicitous touching the Bounds of the Sea-Territorie adjoining Distinct Lords of Territories confining on each other as were the King of England and Duke of Bretaign heretofore for Bretaign had Kings and Dukes of its own before Charls the Eight under whom Anno Dom. 1491. it was united to the Realm of France do for the most part keep their Bounds so distinct that they may bee the more evidently taken notice of by all but when of such kinde of Territories there is but one and the same Lord as the King of England was while hee possessed either Normandie or Aquitain or any other Maritim Province in France together with England hee beeing outed of either ought above all things to take care that the past confusion of possession bee not prejudicial to the future distinction of Bounds For fear then lest it might have been pretended that even the Sea adjoining or confining with those Maritim Provinces which were a long time heretofore possessed by the English and afterwards taken away was taken away together with the Provinces whenas perhaps by reason of the past confusion of possession in one and the same Lord all men might not bee sufficiently instructed touching the Bounds of the English Sea placed as wee have said upon the Shore over against us therefore for the setting forth of those Bounds the name first of Aquitain after its beeing lost was reteined in the Admiral 's Commission and then that also of Normandie was added And afterwards both of them with the name of Calais and the Marches in stead of the Shore of Picardie were for the same reason continued down to our times Which reason truly could not concern Bretaign at all nor Flanders likewise nor any other Shores lying Eastward over against us All which nevertheless do after the same manner bound the Sea-Territorie of England Moreover those things that have been hitherto observed shall bee confirmed by what wee shall add next touching the Office of Admiral among the French Touching the Admirals of the Kingdom of France or those constituted upon the opposite Shore their Original nature and varietie That the Sea it self flowing between Britain and France is not conteined in that command of his as of one that is Governor of a Territorie or Province nor is there any thing in it that may
Officers that are called Presidents or Masters of the Waters and Forests That is to say the publick Waters which are within the Bounds of the Kingdom and over which the King hath Dominion do belong to another dignitie not at all to the Admiral who according to the general nature of his Office is not appointed to take charge of any Province there much less of the Rivers as in England The principal intent therefore of this Office or Dignitie is onely to command the Fleets by Sea For which caus also som years since Henrie of Momorancie Admiral of France having set up a Statue on hors back at Chantillie in honor of his Father Henrie Duke of Momorancie call's himself in Latine onely Navalis Militiae Magistrum Master of the Militia by Sea instead of Admiral So that never any Admiral constituted by the French King either of France or Britain or Aquitain had any autoritie in the Sea it self whereby hee might challenge a Dominion to himself as Governor or Commander in Chief which may bee said in like manner of all the Admirals of the Belgick and the neighboring shore on this side and of the Cantabrian or Spanish shore on the other side For the autoritie of them all so far as concern's this particular hath been and is alike Wee know indeed that this dignitie was wont to bee styled Admiral of France and Governor of the Roial Navie as the same Dignitie among the English was usually called in the same manner Admiral of England and Governor of the Roial Navie in several Leagues that have been made betwixt the English and French But it is clear by what hath been shewn that they bare the Office or Dignitie called by the same name upon a different accompt And the Qualitie of a Dignitie is to bee valued by the nature of the Charge not by the bare name or title And let so much serv to bee spoken touching the defect of antient Testimonies and the Nature or Qualitie of the Government But now as to what concern's the most ample and entire Command of the English for very many Ages and the comparing of it with those several Governments heretofore on the opposite shore it is most certain that there was almost from the very beginning of the very first Times of the English-Saxons one entire Empire throughout England and so on the whole shore which lie's over against Germanie France and that part of Spain called Biscay and this also in the time of that Heptarchie which is mentioned by Writers For there was alwaies som one person who had most power therein and to whom the rest yielded obedience as wee are told by Beda And touching that particular there is a notable Testimonie in Alcuinus where by reason of the Quarrels betwixt Offa King of the Mercians that is indeed of the most large and in a manner the most midland part of the Heptarchie and Charls sirnamed the Great King of France Navigation was so prohibited on both sides that Trade was wholly obstructed which truly cannot bee conceived unless these large Territories near the Sea had been under the Dominion of Offa yea the Inscription whereby Offa was wont to set forth his Roial Title was often exprest after this manner Offa by the Grace of God King of the Mercians and also of the Nations round about But after the time of Egbert or the 800 year of our Lord there is a continued Catalogue plain enough of those Kings whether English-Saxons or Danes who unless you fondly except Edmund the Anglo Saxon and Canutus the Dane by whom the Kingdom was for som little time divided did Reign without any other sharer in the Dominion upon this shore No wonder then that the Kings of England beeing entire and absolute Lords in command of so ample a shore for so many Ages did also take special care to retein the Dominion of the Sea lying before it as an Appendant of the Island especially seeing they not onely had so long and large a command likewise on the shore over against us but also there were not any of their neighbors that could in any wise hinder it except such as possessed som pettie Countries bordering on the Sea which truly may bee so called beeing compared to the spacious shore of the English Empire and those also that were under distinct Jurisdictions The summe of all this is seeing that about the beginning of our great Grand-Father's daies there was onely a very small shore conteined within the bounds of the French Kingdom and the Lords of the Maritim Provinces by the addition whereof that Kingdom as wee have alreadie shewn was afterwards enlarged did not so much as pretend any Right to the Dominion of the Neighboring Sea upon the interest of those Provinces and seeing no Testimonie can bee had in the Monuments of antient Writers concerning such a kinde of Dominion but that very many are found touching the Sea-Dominion of the Kings of England they having continually possessed the whole English shore in its full latitude under one entire Empire for above a thousand years and concerning the perpetual enjoiment of the Sea as an Appendant of the Kingdom Therefore it follow 's that their Right is very manifest in this particular and so that the Sea it self is a Province under the tuition or protection of the Admiral of England as part of the Kingdom but that the Admirals of the shore lying over against us are not in reason to bee called Governors of the Sea in such a sens as may signifie any Dominion of a Commander in Chief in the Sea it self out of the Ports or other In-lets of that kinde For which caus also it was that som Ages since very many of the Neighbor-Nations understanding well enough the Right of England made their Complaint in express tearms against Reyner Grimbald Admiral of the King of France becaus that l' Office del Admiralté en la mier d' Engleterre per Commission de Roy de France tourcenousment Emprist usa un an plux c. That is becaus hee had arrogated to himself and for the space of a year exercised the Office of Admiraltie by the King of France his Commission in the English Sea The old Records from whence this is taken are set down entire by and by where you have more also that make to the same purpose And so much may serv to bee spoken touching the Guard or Government of the English Sea as a part of the King's Territorie or Province and Patrimonie of the Crown That in the Dominion of those Islands lying before the shore of France which hath ever been enjoied by the Kings of England it appear's that the possession of the Sea wherein they are situate is derived from their Predecessors CHAP. XIX THat a Possession and Dominion of this Southern Sea hath been held also of old by the Kings of England is not a little manifest by the Dominion of
somtimes slight mention is made not onely in the proêms of som Charters of later times but also in several antient Petitions of the Islâ—nders that those Islands belong'd heretofore to the Dutchie of Normandie and upon that account were held by the Kings of England But yet wee know as well that those Provinces which in Antient time were derived by Inheritance to our Kings in France of which kinde truly these Islands are to bee reckon'd if they were held as parts of Normandie were alwaies permitted so to use their own Customs and antient Forms of Jurisdiction that they were not at all subject to the ordinarie Jurisdiction of the Courts of England The same privilege was ever allowed likewise to the people of Aquitain Anjou Normandie and others Yea and som Ages since the Kings of England were pleased to order that such Controversies as hapned there should not bee decided in any other place out of the Islands but in their own Courts of Judicature whereas notwithstanding it is most certain that in the Reigns of Edward the Second and Third times which without doubt made good search into that Right whereby those Islands were annexed to the Patrimonie of the Kings of England there were Justices Itinerant that is Officers created of old who were often by ordinarie right to take cognisance especially of the more heinous crimes through all the Counties of England also of such Rights and Privileges of the Crown as were usurp't and arrogated by any and of other matters for the most part that are usually brought into Courts of Justice who beeing sometimes also called Justitiae errantes Justices errant were wont to bee sent forth into those Islands as well as into the Counties of England though the Inhabitants did indeed exclaim and somtimes preferr'd their Petitions against this kinde of Jurisdiction But yet it is most certain that the opinion of those very Officers who were themselvs learned in the Law then was that those Commissions whereby they were so inabled to administer Justice in those Islands were not onely grounded upon Law which was the opinion also of those who ruled at that time in this Nation but also that the very Provinces of the Islands were so incorporated one with another as they are all with England throughout the extent of that Sea which lie's between after the manner of our English Custom in the Provinces or Countries that a Caus beeing somtimes inlarged they might appoint daies of Appearance to any Inhabitants of those Islands in the King's Bench in England as well as to the Inhabitants of any one of the Isles in the other after the same manner as is used within England it self Which appear's by the Commission of John de Scardeburgh and his Fellow-Justices in the time of Edward the Third and others of that Age. But it was never heard I suppose that upon such an inlargement a time of Appearance might by our Common Law bee appointed in any other place but that which is of the same Jurisdiction as conteined within the Patrimonie of the Crown whereto also that place belong's out of which any one is so adjourned Nor do I remember that any such thing was ever so much as attempted in those Provinces which were not reckoned in the Patrimonie of the English Empire yet possessed upon another Title by the King of England as the Dutchies of Anjou Normandie Aquitain and the like Moreover also in the more antient Charters of som of our Kings in confirmation of the Privileges of Islanders they are noted more than once for such Privileges as they or their Ancestors or Predecessors have enjoied under the obedience of any of our Progenitors beeing Kings of England Surely if it had been then believed that those Islands were a part of the Dutchie of Normandie it is not to bee doubted but they had added also or Dukes of Normandie which wee finde truly in som Charters of later time yet so that in these also those Isles are said in express terms and that upon verie good ground to bee retained in sealtie and obedience to our Crown of England But in the time of Edward the Third the Islanders petitioning the King in Parlament for their Privileges and Custom 's which had been established time out of minde annexed the Customs of som of the Islands among which are these Item that no man ought to bee questioned about his Freehold after hee hath quietly enjoied it a year and a day unless it bee by Writ taken out of the Chancerie of our Lord the King making special mention both of the Tenement it self and of the Tenant Item That they shall not bee put to Answer before the King's Justices of Assise until they first give them Copies of their Commissions of Assise under their Seals Item that the King's Justices assigned by Commission for the bolding of Assise ought not to hold Pleas here longer than the space of three weeks Truly these antient Customs seem so to reâ—â—sh as if those Islands had been subject to our Kings their ordinarie Jurisdiction by the right of English Empire not by the Norman although the Islanders insinuate also in the same Petitions that they were a part of the Neighboring Province of Normandie Add hereto also that the â—sle of Serk was granted by Queen Elisabeth to Herelie de Carteret to bee held in Capite by him and his heirs that is to say as a Feud belonging to the patrimonie of the Crown of England notwithstanding that it bee unawares or els carelesly admitted in the Charter of this Grant to bee within the Dutchie of Normandie But in the Treatie held at Chartres when Edward the third renounced his claim to Normandie and som other Countries of France that border'd upon the Sea it was added that no controversie should remain touching the Islands but that hee should hold all Islands whatsoëver which hee possessed at that time whether they lay before those Countries that â—ee held or others For reason required this to maintain the Dominion by Sea Yea both Jersey and Gernsey as also the Isles of Wight and Man are said in divers Treaties held betwixt the Kings of England and other Princes to belong unto the Kingdom of England and to lie near the Kingdom of England These Isles also were granted heretofore by King Henrie the fift to his brother John Duke of Bedford without any recognition to bee made unto Us or Our Heirs notwithstanding any Prerogative of the Crown for any other Tenure held of Us out of the said Islands which may in any wise belong unto the said Islands Castles or Dominions Which words seem not in the least measure to admit any Right of the Dutchie Perhaps also that antient custom was as a token or pledg of the Sea's Dominion beeing conjoin'd with that of the Isles whereby all the Fish as it is in the Records of Edward the third taken by the Fishermen of
to the Royal Patrimonie of England to the end that no man might question whether the Sea belong'd to his King by the Right of the Kingdom of England or of the Dutchie of Normandie or of any other Province in France Another also who wrote in the time of Henrie the Eighth saith it hath been received by antient custom that it is a dutie lying upon the King of England as Lord of the British Sea to scour the Sea of Pirates and to render the use thereof as of a publick Road or Thorow-fare whose soil is within his Patrimonie safe for Shipping For hee expresseth himself in English thus The King of the ould Custome of the Realme as the Lord of the narrow Sea is bound as it is said to scoure the Sea of the Pirates and petit robbers of the Sea So much also as to what concern's Dominion is without controversie admitted by our Lawyers of later time And it appear's by publick Records conteining divers main points touching which the Judges were to bee consulted for the good of the Common-weal in the time of King Edward the Third that the King's Sea-Dominion which they called the antient superioritie of the Sea was a matter out of question among our Lawyers of that Age. But consultation was had for the more convenient guarding of it For the whole Bench of Judges were advised with to the end so wee read it in the Records and that is especially to bee observed which wee finde here about the first beginning of the Naval Laws of the Isle of Oleron seated in the Creek of Aquitain at the mouth of the River Charente that the form of proceeding heretofore ordained and begun by Edward the first grandfather of our Lord the King and his Council at the prosecution of his Subjects may bee resumed and continued for the reteining and conserving of the antient superioritie of the Sea of England and the Autoritie of the Office of Admiraltie in the same as to the correcting expounding declaring and conserving the Laws and Statutes long since made by his Predecessors Kings of England for the mainteining of Peace and Justice among all people of what Nation soëver passing through the Sea of England and to take cognisance of all attempt to the contrarie in the same and to punish Offenders and award satisfaction to such as suffer wrong and damage Which Laws and Statutes were by the Lord Richard heretofore King of England at his return from the holy Land interpreted declared and published in the Isle of Oleron and named in French le ley Olyroun Here you have it declared as a thing most received and certain that the King of England hath by antient right been Lord of the Sea of the same name or that which flow's about it But that whereof the Bench of Judges were to consult was onely about the orderly maintenance of this right Nor is it truly a small sign of this Dominion that Richard the First King of England beeing in the Isle of Oleron which hee possessed as seated in his own Sea not so much for that hee was Duke of Aquitain as King of England whereof wee have alreadie spoken did as sole Ruler and Moderator of Sea-affairs first publish those Naval or Sea-Laws in that his Island which hold in force to this day and from that time gave them so large and perpetual an Autoritie by that name that as the Rhodian Naval Laws as the case stand's do prove that the Rhodians in antient time were Lords of the Grecian Sea so the Laws of Oleron having obteined such a kinde of Autoritie by Sea from their first Institution must ever declare the King of England as the Autor to bee Lord of the neighboring Sea round about But som printed Copies of these Laws make them about sixtie years later than the Reign of that Richard by what autoritie I cannot tell For they relate them to have been made in the year MCCLXVI which is the fiftieth year of our Henrie the third Also in the Law of the Land it is reckoned among the Privileges of such as are absent that they who shall bee out of the Realm of England at the levying of a Fine of any Land and making Proclamations thereupon are not so bound either by a yearly prescription as heretofore or by a five years prescription as is usual of later time but that their Right remain's entire to them upon their return home if they make their claim within the like spaces of time But intra regnum within the Kingdom is by the same Law taken and that in the usual phrase for that which is intra or as it is wont to bee barbarously render'd infra Quatuor Maria within the four Seas to wit the Southern Western Eastern and that Northen Sea which washeth both the sides of that neck of Land whereby Scotland is united to England That is to say within the outmost bounds of the English Empire in those four Seas or within the opposite Shores of the Eastern and Southern Sea or Ports belonging to other Princes and within the bounds of the Northern and Western Sea which indeed are to bee bounded after another manner but yet to bee bounded that is accordirng to the extent of possession West-ward beyond the Western Shores of Ireland and by the first beginning of that Sea which is of the Scotish name and jurisdiction But that which is opposed to this Particle intra quatuor maria within the four seas is that extra quatuor Maria without the four seas or to bee in the parts so beyond the Seas that they bee beyond the bounds of the Sea-Dominion of the King of England from whence wee are to determine of the bounds or exterior limit of the Seas And although the Land of England bee somtimes used for that which is the whole Realm or English Empire as signifying the same a more ordinarie and indeed more brief expression beeing applied as is usual in stead of a more large yet it certainly appear's that extra quatuor maria without the four seas and extra Regnum without the Realm do in our Law-Books signifie the very same thing that is to say so far as the extent and latitude of the whole English Empire is comprehended in the name of Realm not as the Realm of England is now and then distinguished in our Law from Ireland which also is a distinct Dominion of the same Empire or from the other Islands which are reckoned in the Roial patrimonie of the Kings of England For it is usual in the Language of the Law so to describe him who in that sens shall bee out of the Realm And whereas in the Reign of Richard the second to an objection made against one that would avoid the yearly prescription as not bound by it for that hee was not in England it was excepted that hee was in Scotland and so within the four Seas It was thereupon answer'd and rul'd
cognisance of things don contrarie to this Truce and pass their Judgments according to the Law or Custom of Merchants and the Form of Sufferance After a revolution of som years wherein this kinde of Truce took place and somtimes not a League was made in the year of our Lord MCCCIII which is the one and thirtieth of Edward the first The first Article of that League is that those Kings should not onely bee at amitie with each other but also that they should defend one another in all manner of Rights against any others whomsoêver except the Church of Rome and on the part of the King of England his son in law John Duke of Brabant but on the part of the King of France Albertus King of the Romans and John Earl of Henault But the third Article thereof for the first and third is of singular use in that Libel or Bill of Complaint as will appear by and by is this Item il est accorde qe l'un ne receptera ne sustendra ne confortera ne fera confort ne aide as Enemies de l' autre ne soffera qu' ils eient confort souccors ne aide soit de gent d' armes ou de vitailes ou d' autres choses queles q' eles soient de ses terres ou de son poiar mais adiondera sur peine de forfature de corps d' avoir empeschera à tot son poair loiaument en bon foi qe les dits enemies ne soient resceipts ne confortes es terres de sa seignurie ne de son poiar ne q'ils en aient confort soccours ne aide soit gents d' armes des chevaux d' armeures de vitails ou d' autres choses queles q' eles soient which is in English to this effect that according to this contract of amitie they were neither of them in any wise to cherish the enemies of the other nor suffer any kinde of aid or relief to bee afforded them in their Territories The war beeing thus at an end becaus there arose very many complaints concerning injuries don up and down as well in the more open as in our own Sea during the special Truce afore mentioned but also it was probable that others of that kinde might arise perhaps after the League was made especially by reason of the differences at that time betwixt the French King and the Earl of Flanders therefore Commissioners were appointed by both Princes to hear and decide them And those at that time on the behalf of the King of England were Robert de Burghershe Constable of Dover Castle and John de Banquell Steward of Pontoise Baraldus de Sescas and Arnaldus Ayquein Knights on the French King's behalf were appointed the Lord Saquilly Mittonius Blanvillius Bertrandus Jordanus and Gulielmus Ralastansius Knights also To the end that they might take cognisance so it is in the King of England's Commission des enterprises mesprises forfaites en Treve ou en Sufferance entre nos le dit Roy de France d' un part d' autre es costeres de la mer d' Engleterre autres per deceâ— ausint per devers Normandie autres costeres de la mer per de la that is of encroachments injuries and offences committed on either side in time either of the League or Sufferance or of the Truce agreed on between Us and the said King of France for freedom of Commerce onely either upon the Sea-Coasts of England or any other neighboring Coasts of the Sea either towards Normandie or others more remote But the aforesaid parties were autorised by two Commissions in such manner that the one Commission contained four and the other also four an equal number beeing appointed by both the Kings They both bear date the last day of June MCCCIII To these Commissioners or others of that kinde the Libel was jointly exhibited by Procurators on the behalf of the Prelates and Peers of England also of the high Admiral of England yea and of the Cities and Towns throughout England and lastly of the whole English Nation and others subject to the King of England and how this could bee don otherwise than by autoritie of the Estates in Parlament is not to bee imagined With these in like manner were joined the Procurators of most Nations bordering upon the Sea throughout Europe as the Genoëses Catalonians Spaniards Almains Zelanders Hollanders Friâ—slanders Danes and Norwegians besides others under the Dominion of the Roman German Empire All these together instituted an Action or Complaint against Reyner Grimbald who beeing Governor of the French Navie had during the war between King Philip of France and Guie Earl of Flanders intercepted and spoiled Merchants of their Goods in this Sea that were bound for Flanders And all these Complainants jointly say that the King of England and his Predecessors have time out of minde without controversie enjoied the Soveraigntie and Dominion of the English Sea and the Isles of the same by right of their Realm of England that is to say by prescribing Laws Statutes and Prohibitions of Arms and of Ships otherwise furnished than with such necessaries as belong to Merchants and by demanding suretie and affording protection in all places where need should require and ordering all other things necessarie for the conservation of Peace Right and Equitie between all sorts of people passing through that Sea as well strangers as others in subjection to the Crown of England Also that they have had and have the Soveraign Guard thereof with all manner of Conisance and Jurisdiction in doing Right and Justice according to the said Laws Statutes Ordinances and Prohibitions and in all other matters which may concern the exercise of Soveraign Dominion in the said places To wit such matters as concern'd the office and jurisdiction of the Admirals that were wont to bee appointed by the Kings of England Then adding the first Article afore-mentioned of the League made but a little before whereby both Kings were obliged to defend one another's right they proceed in their Accusation against Grimbald saying That hee is onely Master of the Navie of the King of France but call's himself Admiral of the said Sea and pretend's that hee was autorised under that title by the King of France upon occasion of his making warr against the Flemings And that after the making of the said League and contrarie to the intent and meaning of the same hee had for above a years time unjustly assumed aâ—d usurpâ—d the office of Admiral in the said Sea by autoritie of the King of France his Commission taking the People and Merchants of England and other Nations passing through that Sea imprisoning and spoiling them of their Goods and delivering them up to the King's Officers as Goods forfeited and confiscate And whereas hee hath in a very insolent manner justified these actions of his in writing as don by autoritie of the King his Master's Commission as also according to
as a River or Brook must bee conteined under the same Jurisdiction as an entire Bodie with the Land therefore somtimes mention is made also of this kinde of Sea flowing in as of a Sea reckoned within the Jurisdiction Current of the Sea of the opposite shores as for example of the Sea Flanders or as I finde it in som antient Manuscripts which seem to bee the Originals of certain Letters of King Henrie the Fift to the Earl of Carolois and to the Governors of Ypres Gaunt and Bruges deins la Jurisdiction l'estrem de la meer de Flandres within the Jurisdiction and stream of the Sea of Flanders which is all one For setting aside the Sea so flowing in or making an in-let or harbor before the opposite shore all that which remain's or the Sea flowing between those opposite Countries and England was ever esteemed to bee of the English Dominion according to what I have formerly shewn So that a late Writer doubtless was in a dream when upon the repairing of the Dock at Mardike hee write's that hee saw the Empire of the British Sea restored to the King of Spain And so I have don with this point touching the Declaration and acknowledgment of the Sea Dominion of our Kings made by those Forein and Neighbor-Nations who were most concerned in the Business Of the Dominion of the King of Great Britain in the Irish and Western Sea consider'd singly and apart by it self CHAP. XXX I have alreadie spoken in general of the English or British Sea which is a part of the Patrimonie of the Crown of England but chiefly as it lie's either East or South It rest's now that wee treat of the Western as also the Scotish and Northern and in a word of the whole British Sea that remain's It is evident to all that part of the Western Sea lying before England is understood as well in that Libel which was exhibited by so many Nations to the Commissioners deputed by the Kings of England and France above three hundred and thirtie years ago wherein wee so often read le mer d' Angleterre or the sea of England as in the King 's Commission-before mentioned wherein our Kings are expressly-declared Lords of the English Sea on every side and therefore I shall forbear to repeat what is cited out of Bracton about the Essoyning or excusing of a man absent in Ireland and other things of that kinde alleged before which make to this purpose Moreover also wee read every where that all the Isles in this neighboring Sea were called British as wee observed at the beginning of this Book just as if the narrow Seas flowing between like Rivers or turnings of Rivers did disjoin those Banks or Shores from great Britain as Fragments of the same Whereby it appear's that the narrow Seas themselvs with the Isles even as Rivers with their Banks are to bee reckoned a part of the British Territorie And hereunto especially relate's also that expression in the Libel so often cited to wit that the Kings of England have ever been Lords both of the English Sea or of the British so far as it stretcheth before England and also of the Isles situate therein par raison du Royalme d' Angleterre by right of the Realm of England So that the Isle of Man which as Giraldus Cambrensis saith stand's in this Sea in the very midst betwixt the Northern Parts of England and Ireland was if I understand any thing reckoned of old among the Land-Provinces of England even as the Isle of Wight Lundie and others of that kinde Nor doth it seem to bee understood otherwise by those men of antient time who upon occasion of a dispute whether this Isle ought by right to bee taken for an appendant of England or Ireland beeing placed in the midst of the Sea flowing between determined the controversie on this manner They brought venemous serpents and observing that the Isle did entertain and cherish them as well as England and the rest of great Britain but on the contrarie that Ireland destroied them it was concluded saith Giraldus Cambrensis who lived under Henrie the Second by the common censure of all that it ought to bee ascribed unto England For if they had so thought the Territorie either of Ireland or England as it consisted of Land and Sea to bee dis-joined from this Isle of Man that they had conceived the Sea lying between either common to all men or by antient right subject to other than the Kings either of Ireland or Britain they might seem to have raised a very ridiculous Controversie For I suppose the Question could bee no other than touching the bounds of England or great Britain and Ireland But that a Question about bounds may bee admitted between Owners that are Neighbors where the Territories of both are not continual or contiguous is beyond my understanding It is well said by Paulus that if a publick Thorow-fare or publick River intervene which belong's to neither of the neighboring Owners an Action cannot bee brought upon that Title of the Law Finium Regundorum And truly after that Quintus Fabius Labeo beeing appointed Arbiter by the Senate betwixt the Nolans and Neapolitans about the bounds of a Field had so craftily perswaded both of them to retire backwards apart from each other that a portion of the Field was left in the middle which hee adjudged to the people of Rome there could not any Controversie arise farther between them about the bounds of this Field becaus there ceased to bee any confine betwixt them But if any Question arose afterwards they were both to contend with the people of Rome Even so it is to bee conceived of that Question to which of the two Countries the Isle of Man ought by Right to bee ascribed it arising chiefly upon this ground becaus it lay in the midst between the Territories belonging to Ireland and Britain and at the confine of both For by an Argument drawn from the nature of the very soil onely without a civil consideration of Dominion though they would have here the very nature of the soil to bee the evidence thereof as a Lot for decision it ought no more to bee ascribed either to Britain or Ireland than to Norway Spain or France where every man know's that venemous Creatures are bred as well as in Britain Therefore to bee ascribed to England or Britain in that antient Decision is so immediately to bee annexed to the British Territorie that the Isle of Man may truly and in a civil sens bee called a Land-Province of England or Britain seeing the English Territorie is so continually extended as far as its Western Coasts that which bend's Westward from the very Confine beeing ascribed to Ireland And therefore Queen Elisabeth's Commissioners let fall those words too unadvisedly in the Treatie held at Bremen with the Danish Commissioners about free Navigation and Fishing in the Norwegian
what hath been alreadie spoken And from hence perhaps it is that the more antient Arms of the Kings of Man were a Ship with a Sail folded together and this Inscription added Rex Manniae Insularum King of Man of the Isles as M r Camden observ's from their Sails For the three legs of humane shape now every where known are but of later time But afterwards when Ireland was subdued by Henrie the Second and King John and Reginald King of Man brought into the power of King John the English possessing this Sea at that time with a very numerous Navie there is no reason at all to doubt but that the neighboring Sea round about was taken also into the Dominion of the English For in that Age the King of Man was no absolute Prince but beeing subdued hee paid homage to the King of England yielded under his subjection But in a short time after Alexander the Third King of Scots annexed it to the Dominion of Scotland and put in a Governor who was to assist him upon occasion with thirteen Gallies five hundred Seamen Hee recover'd the Hebrides also by driving out the Norwegians transmitted it to his posteritie Then Man returned again to the English who enjoied Ireland a long time together with it that sea-territory But the Kings of the Hebrides and of Scotland enjoied the Northern part of this Western Sea after that they had expell'd the Norwegians who were Lords here of the Sea And from hence it is that as Scotland England this Isle of Man the Hebrides and Ireland with other adjacent Isles so even the Vergivian and Deucaledonian Sea it self washing the West of Scotland and surrounding these Isles with windings and turnings ought now also to bee accounted the antient Patrimonie of the King of great Britain But there is moreover in the more Westerly part of this open and main Sea another Right belonging to the King of Great Britain and that of a verie large extent upon the Shore of America Whenas S r Humfery Gilbert Knight did by Autoritie of Queen Elisabeth transport a Colonie into the New World with design to recover certain Lands in the East parts of the Northern America which of Right belong'd to the English Dominion the Queen was by him as her Procurator put into a possession for ever to bee held by her and her heirs both of the Port called by the name of S t John which is in the Island of Baccalaos and also of the whole Sea as well as Land on every side for the space of six hundred miles Then hee received this new Kingdom of the Queen as her Beneficiarie having a Branch and a Turf deliver'd in his hands according to the usual cerimonie of England in transferring the Ownership of Lands and Possessions Nor truly was it necessarie that hee should otherwise get the Possession from whence this Dominion of the Queen and her Posteritie had its Original For as Paulus saith well there is no necessitie that hee who intend's to take possession of a Field should walk about the whole but t is sufficient if hee enter any part of that Field so long as hee doth it with a minde thought and intent to possess the Field to its utmost extent and bound Which saying may relate to Seas as well as Lands that were never taken into possession So that as Siculus Flaccus Treating of Occupatorie Lands saith Men did not possess so much land as they were able to till but they reserved as much as they were in hope they might bee able to till the like also may bee said of a Sea so taken into possession Look how much was reserved in hope of using and enjoying so much also was bounded But perhaps the first original of the Dominion of this main Sea of America did not proceed from the Possession that was acquired by Gilbert Hee rather restored and inlarged the Right of the Crown here For that Island called Baccalaos was added to the English Empire by Sebastian Chabot in the time of Henrie the Seventh And it is certain that afterwards it grew to be a Custom for the Officers belonging to the High Admiral of England in whose charge are all the Seas subject to the King of England and Ireland as King of England and Ireland to demand Tributes of such as fish't also in this Sea which was I suppose a most evident token of the King's Dominion But it was provided by an Act of Parlament in the Reign of Edward the Sixth that no Tributes of that kinde to the grievance of Fishermen should bee paid any longer How far our English Colonies lately transported into America have possessed themselvs of the Sea there I have as yet made but little enquirie Touching the Dominion of the King of Great Britain in the Scotish Sea especially toward the East and North. CHAP. XXXI THose particulars which were cited before out of the Proclamation of James King of Great Britain about the Prohibition of Fishing relate as well to the Scotish Seas on every side from whence also you must acknowledg their possession hath been reteined together with an antient Sea-Dominion That is to say all Foreiners were prohibited to Fish in these Seas without leav first obteined at Edenburgh And in those Scotish Acts of Parlament they are not so much new Laws made as old ones revived wherby it was ordeined That all manner of Fischeres that occupies the Sea and vtheres persons quhat sumever that happenis to slay Hering or quihte Fish upon the Coast or within the Iles or out with the samen within the Frithes bring them to free Ports c. where they may bee sold to the Inhabitants of the same kingdom quhairby his Maâ—esties Customes bee not defrauded and his Hienes Lieges not frustrat of the Commoditie appointed to them be God under the pain of confiscation and tynsel of the veschelles of them that cumes in the contrair hereof and escheiting of all their movable guddes to our soveraine Lords use So that use and benefit is claimed hence by a special right in that Sea otherwise truly that use and bene fit would of right no more appertein either to the King of Scotland or his Subjects than to any other whomsoêver But the Law was made concerning all Fisher-men as well strangers as Scotch-men as beeing ordeined by all the Estates of that Kingdom who so well understood both the King 's Right and also their own as subordinate to the King's by Tradition from their Ancestors or by long-continued possession and Dominion that there remained not the least ground of scruple touching that business And a Scotish Lawyer speaking about Fishing in the Eastern Sea of Scotland I cannot saith hee omit to tell you that in the past Age after a most bloudie quarrel between the Scots and Hollanders about occasions belonging to the Sea the matter was composed after this manner that in time to
that in it which may seem to import that hee call's himself King of the Ocean especially if you consider those words which wee finde somtimes among Germane Writers in the Title of Charls the fifth Emperor and King of Spain In the Preface to the constitution concerning publick Judicatories in the Empire hee is called King of the Canarie Ilands also of the Islands of the Indies and of the Continent and of the Ocean Archduke of Austria c. And in the Imperial Sanctions published in high Dutch Konig-under Jnsulen Canariae auch der Jnsulen Indiarum und Terrae firmae des Maers Oceant c. as you may meet with it at least six hundred times The word Ocean is added as if hee entitled himself King of the Ocean But this is a mistake for the same in Spanish is Rey c. de las Islas y terra firma del mar Oceano c. that is King of the Islands and of the Terra firma of the Ocean namely the Islands or Continents of or lying in the Ocean which Pope Alexander the Sixth gave to Ferdinand the Fifth King of Spain all of them lying Westward from the very first Meridian of those hee entitle's himself King not of the Ocean it self How far private Dominion over the Sea is admitted according to the Customs or opinion of the French CHAP. XVIII AS concerning Dominion of the Sea according to the Customs of the French som perhaps may seem to have met with verie ancient evidences thereof in those Officers deputed for the guard of the Sea-Coasts whom wee read of in the Statute-Books and in that Rotlandus Governor of the British that is the Aremorican shore mentioned in the life of Charle-maign by Eginhartus a Writer of that time But those dignities have relation not so much to the Sea it self as to the shore and Sea-Coast or the border of the Land confining with the Sea notwithstanding that Rotlandus is by the French-men of this and the former Age promiscuously styled Governor both of the Sea and Shore as if there were no difference But it cannot bee denied that Princes heretofore upon the Shore of Aremorica or Bretaign as the Veneti of whom wee spake before did upon the same Shore impose Custom upon Ships as for the use of the Road upon their Coasts and challenge to themselvs other Rights of the like nature called Nobilitates super navibus So it is to bee read in an ancient Record made in the time of Duke Alanus in the year MLXXXVII concerning Precedence of Place among the Nobles of Bretaigne In that Record the second place is assigned to the Viscount of S t Pol de Leon who as the very words of it are had verie many of those Customs called Nobilitates super navibus imposed on such as passed the Ocean upon the Coasts of Osismer or Leon which as it was said Budicius an antient King of Bretaign did give and grant to one of his predecessors upon Marriage in reward of the virtue fidelitie and valor of that Viscount but with the consent of the Prelates Counts Barons and Nobles of Bretaign What these Nobilitates were and whence they had their original is partly declared by Bertrandus Argentraeus somtime President of the Province of Renes where hee discourseth also of the right of giving Pass ports which they call brefs de conduicte at this time in use on that shore That saith hee whereas till then it had been a right peculiar to the Princes beeing given by way of Dowrie to the Barons of Leon of which wee have alreadie spoken out of the aforesaid Record remained an hereditarie and proper right to that Familie until Joannes Ruffus the Duke redeemed it for a vast sum of monie of Guynomarius Baron of Leon after that Peter Mauclerc of Dreux Duke of Bretaign had in vain attempted to re assume it by force of arms It had its original they say upon this occasion When our Princes and antient Kings considered the daily Shipwracks made upon that shore where there were many Rocks and but few Havens they made a Law that none should set to Sea without their leav Such as did set out paying a certain rate had passes and guides appointed them that were well acquainted with the Sea and Shores They that refused forfeited their ships with all their tackling and furniture thereof and if the Ship were cast away their goods also were confiscate They that had leav were in no danger of confiscation and if they suffered Shipwrack had libertie to recover as many of their goods as they could And these guides were paid their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Conduct-money which wee have mentioned elswhere called by them droit de salvage These Tickets or Passes are given out now as heretosore at a certain price And among other Revenues of the Exchequer they also were rented out to the Farmers of the Custom So far Bertrandus from whom Renatus Choppinus borroweth almost the very words But Petrus Berlordaeus Advocate of the Parlament of Reines tell 's us that the Custom of taking forfeiture in that manner of all shipwrack't goods was abolished there by an Edict in the year MDLXXXIII But in the mean time for so much as concern's any part of that Western Sea lying next the Shore these are manifest evidences either of Dominion or of subjection in the Sea which indeed sufficiently prove by the Customs of that people that the Sea is capable of Dominion Moreover upon occasion of these Passes there have been controversies raised somtimes between the Dukes of Bretaign and the Kings of England as may bee seen in certain memorials of the affairs of Bretaign which have relation to the times of our Richard the second and John the Fourth Duke of Bretaign But this wee know for certain that in the agreement made between our Edward the Fourth and Francis the second Duke of Bretaign in the year MCCCCLXVIII concerning mutual traffick and free passage to and fro for the subjects of each Nation during a truce of thirtie years there is an express proviso concerning Wrecks but such a one as left an equal right to both of them not altogether unlike that which for many ages hath been in use upon the English Shore No mention at all beeing made in the Articles of the Truce either of the right or use of these aforesaid Passes as beeing a thing in no wise admitted by the English But som modern Lawyers among the French do vainly affirm that their King is Lord not onely of a part of the Sea neighboring upon the Territorie of Bretaign but of the whole Sea that is adjoyning to any part of France and so of the British or English Sea also By which very Assertion of theirs they sufficiently declare their judgment that there may bee a soveraign over the Sea The King saith Charondas Caronaeus is supreme Lord of the Seas which flow about his
before been made Commander of the Fleets And hee was the first for ought wee know that was created in this manner But in the next Form of Commission the name of Picardie was left out So indeed in the fourth year of Henrie the Sixth or Anno Dom. MCDXXVI John Duke of Bedford was by Commission made Admiral of England Ireland and Aquitain That Form continued about 88. years or throughout the Reigns of Henrie VI Edward IV Richard III Henrie VII and the three first years of Henrie VIII And about that time ten others were in like manner made Admirals for the most part perpetual of England Ireland and Aquitain the last of which was John Earl of Oxon who was Commissionated in that Form in the first year of Henrie the Eight But there followed another alteration or addition of Titles in the fourth year of that King Anno Dom. MDXIII At that time Sir Edward Howard Knight son of Thomas Earl of Suâ—â—ie afterwards Duke of Norfolk was made Admiral of England Wales Ireland Normandie Gascoign and Aquaitain To which words Calais and the Marches thereof are added in the Commission of William Fitzwilliams who also was Earl of Southampton beeing appointed Admiral in the twentie eight year of King Henrie the Eight This Form of Commissions held in use afterward through the whole Reign of that Henry adding according to antient Custom the clauses touching Jurisdiction But in the beginning of Edward the Sixt Thomas Baron Seymour of Sudeley brother to Edward Duke of Somerset was made Admiral almost in the same words as that William Earl of Southampton inserting after the name of Calais Boloign and the Marches of the same After him followed John Earl of Warwick who was created by Edward the Sixt in the third year of his Reign our Admiral of England Ireland Wales Calais and Boloign and our Marches of the same of Normandie Gascoign and Aquitain as also Governor general over all our Fleets and Seas And in the same Commission hee is styled afterwards Great Admiral of England and Governor of our Fleets and Seas But after a while the name of Boloign being omitted the next high Admiral of England was created in the very same Form of words as is mentioned before in the beginning of the Chapter For in the same Form was William Baron Howard of Effingham Son of Thomas Duke of Norfolk made Admiral in the beginning of Queen Marie or Anno Dom. MDLIII And the Command or Government of those Seas as the principal charge of that Office or Dignitie is more notably expressed there as you may see than in the Commission of the Earl of Warwick From that time forwards the very same Form was kept alwaies as in the Commission of the high Admiralship granted to Edward Baron Clinton afterwards Earl of Lincoln in the Reign of Philip and Marie also in the Commission of Charls Baron of Effingham afterwards Earl of Nottingham in the time of Q. Elizabeth and of Charls Duke of York in the time of King James besides George Duke of Buckingham who enjoied the same Office or Command in the same words in the Reigns of James and Charls So that for above eightie years or thereabout that is from the beginning of Q. Marie the whole form as it is set down in the beginning of this Chapter was ever expressly reteined in the Commissions of the high Admiralship of England so far as they denote either the Countries or the Seas or the Dominion of the same But therein the Admiral is styled Governor General over all our Fleets and Seas just as John Earl of Warwick was likewise expressly appointed in general tearms under Edward the sixt or over our Seas aforesaid But what were those Seas or the Seas aforesaid They are in the fore-going words expressly called the Seas of our said Kingdoms of England and Ireland our Dominions and Islands of the same That is in plain tearms Mer d' Engleterre d' Ireland Gales or the Sea of England Ireland and Wales after which manner the Seas belonging to the Dominion of England are sometimes also described in our Laws which are called likewise now and then by our Lawyers Les quatre Miers d'Engleterre or the four Seas of England divided according to the four Quarters of the World So that in the most received form of this Commission after the beginning of Queen Marie's Reign out of which also the sens and meaning of former Commissions is to bee collected wee have a continual possession or Dominion of the King of England by Sea pointed out in express words for very many years And what wee have alreadie spoken by way of Collection out of these that followed the beginning of Marie touching the sens or meaning of former Commissions wherein a positive Command of the Sea is not expressed is truly to omit the thing it self which sufficiently intimate's as much of its own nature not a little confirmed upon this ground that hee also who before any express mention of our Seas took place in the form of the Commission of the high Admiralship was next preferr'd to the same dignitie was immediately after his Creâtion according to the whole Title of his Office as beeing the same title which indeed alwaies belonged to the Admirals of England styled Great Admiral of England and Governor General of the Navie and our Seas So verily Thomas Baron Seymour whom I mentioned before is styled Admiral of England in the Patent Roll granted to him by Edward the sixt It is proved by words plain enough in the form of the Commissions for the Government or command of the high Admiral of England from antient to the present time that the Sea for whose guard or defence hee was appointed by the King of England as Lord and Soveraign was ever bounded towards the South by the shore of Aquitain Normandie and Picardie CHAP. XVII BUT in the Form alreadie shewn which hath continued in use for so many years you see mention is made onely of the Seas of our Kingdoms of England and Ireland our Dominions and Islands belonging to the same as the Province for whose guard or defence the Admiral was appointed that is as wee have told you the English Irish and Welch Sea all which is conteined under the name of the British as it hath been observéd at the beginning of this Book Yet the names of Normandie Gascoign and Aquitain besides Calais are added which are Provinces seated upon the shore over against us As to what concern's them in this place they are either to bee considered in the same manner as if they had been alwaies held in subjection by the English from the time of the first mention of them in the Commission or as they have alreadie for som Ages past been out of their Jurisdiction But suppose in the first place that they had alwaies remained in the Jurisdiction and Possession of the English Questionless
were newly designed to cross over into Bretaign that they might bee arm'd and set forth in the King's service The Title of this Commission is De Navibus arrestandis capiendis For arresting and seizing of ships The Form of it run's thus The KING to his beloved Thomas de Wenlok his Serjeâ—nt at Arms Lieutenant of our beloved and trustie Reginald de Cobham Admiral of our Fleet of ships from the mouth of the River Thames towards the Western parts greeting Bee it known unto you that wee have appointed you with all the speed that may bee used by you and such as shall bee deputed by you to arrest and seiz all ships Flie-Boats Barks and Barges of ten Tuns burthen and upward which may happen to bee found in the aforesaid Admiraltie that is in the Sea reaching from the Thames mouth toward the South and West and to caus the Flie-Boats Barks and Barges aforesaid to bee well and sufficiently arm'd and provided for the warr by the Masters and owners of the same and to bring them speedily so provided and arm'd to Sandwich except onely the ships that are order'd for the passage of our beloved and trustie Thomas de Dagworth and his men that are bound for Bretaign so that you bee readie there in your own person together with the Ships Flie-Boats Barks and Barges aforesaid so well provided and fitted for the warr upon the Saturday next before the Feast of the Apostles Simon and Jude next ensuing at the farthest to go thence upon our Command according to such direction as shall then on our part bee given to the Masters and Mariners of the aforesaid Ships Flie-Boats Barks and Barges and to take sufficient Provision for the enabling of you to do the premises in such places as you shall see most convenient except onely Church-Land you making due paiment for the same and also to seiz and arrest all those that you shall finde to oppose or resist you in the execution of the premises and them to commit into our Prisons there to abide till wee shall think fit to take farther order c. All Officers also in the said Admiraltie are commanded to yield obedience and assistance upon the same occasion The usual subscription in that Age shewing the Original Autoritie of the Commission was By the King himself and his Council But that the aforesaid Sea it self was conterned under the name of the Admiraltie is clearly manifest by what wee have alreadie shewn you And King Edward the third used his antient Right as other Kings of England did also therein as well as in the Ports themselvs or Shores of England for there are innumerable examples of the staying of all Ships whatsoêver by the King's Command in Port or Shore But that which hath been alleged about the staying of Ships and Listing them for the King's Service you are alwaies to understand it was so don according to equitie that competent Pay was to bee allowed them answerable to the proportion of Tuns and also to the number of Sea-men that were so taken into emploiment Touching which particular there are several Testimonies also to bee found in the Records of Parlament That Licence hath been usually granted to Foreiners by the Kings of England to fish in the Sea Also that the Protection given to Fisher-men by them as in their own Territorie is an antient and manifest Evidence of their Dominion by Sea CHAP. XXI AS a freedom of passage so also wee finde that a libertie of Fishing hath been obteined by Petition from the Kings of England There is a clear Testimonie hereof in that which was alleged before out of the Records of Parlament concerning those Tributes or Customs that were imposed in the time of Richard the Second upon all persons whatsoëver that used Fishing in the Sea Moreover it appear's by Records that Henrie the Sixt gave leav particularly to the French and very many other Foreiners for one whole year onely somtimes for six Months c. to go and fish throughout the Sea at all times and as often c. But this leav was granted under the name even of a Passport or safe conduct yea and a size or proportion was prescribed to their Fishing-boats or Busses that they should not bee above XXX Tuns And it is true indeed there was a kinde of consideration or condition added that som others who were subjects of the King of England might in Fishing enjoy the same securitie with Foreiners Which was for this caus onely put into the Licence that if the Foreiners did disturb or molest them they should lose the benefit of their Licence The words of that consideration or condition in the beginning of those Licences run after this manner To the end that the business of the Herring-fishing and of other Fish may bee advanced continued and mainteined for the publick good yea and that the like securitie may bee yielded and afforded to som certain Fisher-men under our obedience I suppose that those certain Fisher men under our Obedience were also the French who at that time continued in subjection to the English whereas almost all in France except the Shore of Picardie had newly revolted from the King of England That is to say at the latter end of the reign of Henrie the Sixt. But that which wee finde either here touching equal securitie or in other places somtimes also about the giving of safe conduct even to the Fishermen of England by Licence granted either to French or Flemings or Bretaigns that usually hapned when the heat of War was over a Cessation agreed on to treat of Peace or Amitie In the mean time securitie of that kinde was given on both sides now and then by agreement But by the King of England as well in respect of his beeing Lord of the place as his beeing a partie that was treating about a League or Amitie By others upon this account onely not upon that unless you understand the question to bee about the use of Ports and Shores For so no man denie's but these were Lords as well as hee Moreover also in our time leav was wont to bee asked of our Admiral for French-men to fish for Soles in the neighboring Sea for King Henrie the Fourth of France his own Table as it is affirm'd by such as have been Judges of our Admiraltie and Commanders at Sea of an antient standing yea and that the Ships of those French were seized as trespassers upon the Sea who presumed to fish there without this kinde of Licence But in the Eastern Sea which washeth the Coasts of Yorkshire and the neighboring Counties it hath been an antient Custom for the Hollanders and Zelanders to obtein leav to fish by Petition to the Governor of Scarbâ—rough Castle situate by the Sea-side in the Countie of York and this for very many years past as is affirmâ—d by that learned man M r Camden speaking of those Coasts It is worth the while saith hee to note
to bee presented touching that business unto the King as hee was at that time King of France but onely as King of England that is as Lord of the whole Sea flowing between And it is very improbable and not in reason to bee admitted that they would so upon deliberation for both Lords and Commons use to debate such matters a long time before they pass a Bill that they would I say so upon deliberation require an imposing of Customs by the Act of an English Parlament in a place that was not subject as a part of the Roial patrimonie to the King of England as King of England From hence it was also that our present King Charls did this last year declare that himself and his progenitors the Kings of England have in all times hitherto by an antient and most just title been Lords of this Sea to wit in his Letters Patents sent to the Maritim Counties of England whereby ship-monie was imposed for the defence of his Dominion by Sea Add moreover hereunto that in the agreement made betwixt our Edward the first and Guie Earl of Flanders about the wearing of Colors or Flags in every ship and punishing offendors by Sea William de Leyburn is called Admiral de la mier du dict Roy d Engleterre or Admiral of the Sea of the said King of England Other Testimonies of the same kinde there are in Records touching the Dominion of the Sea as it hath been received and acknowledged according to the Common Law and Custom of our Countrie which I shall discours of in the next place and after that concerning the Testimonie of Foreiners Of divers Testimonies in our own Law-Books and the most received Customs whereby the Sea-Dominion of the King of England is either asserted or admitted CHAP. XXIV THE seventh of those Heads according to the former Division which manifest the aforesaid Dominion of the Kings of England relate's to our Law-Book's and the received Customs therein which prove it from the most antient times There are also in them many Particulars that may relate hereunto which are explained now and then touching the Guard of the Sea the English Admiraltie and other things alreadie handled But in this Chapter wee shall use either the determinations and Commentaries of our own Lawyers or chiefly such Court-Records as explain their opinions I confess indeed in som of the Authors of our Law who wrote above CCCL years ago or thereabout after they had as the manner then was read through the Civil Law also they were so strict in following those determinations word for word which they found concerning the Sea in that Law that when they treated de acquirendo Rerum Dominio of the manner of acquiring the Dominion of things they tranferr'd them into their own writings From thence it is that Henry Bracton who was a very famous Lawyer at the later end of the reign of Henrie the Third saith Naturali jure communia sunt omnia haec aqua Profluens aër Mare litora Maris quasi Maris accessoria By the Law of Nature all these things are common running water the Aër and the Sea and the shores of the Sea as accessories or dependants of the Sea Also aedificia si in mari five in litore posita fuerint aedificantium sunt de Jure gentium If Buildings bee raised in the Sea or upon the shore they becom theirs that build them by the Law of Nations And a little after Jus piscandi omnibus commune est in portu in fluminibus a Right of fishing is common to all in a Haven and in Rivers Which wee finde likewise in som other of our Law-Books of that Age as a passage that fell from som Writers of whom I spake at large in the former Book that were more affected than was meet with the words of Ulpian and Justinian in the general division of things But these very men in other places shewing the Customs of our Countrie do sufficiently admit the King's Dominion by Sea For Bracton himself afterward speak's of them that by the King's grace and favor quieti sint de Theolonio consuetudinibus Dandis per totum regnum Angliae in terrâ mari per totum Regnum tam per terram quà m per mare Were exempted from paying Tolls and Customs throughout the whole Kingdom of England in the Land and in the Sea and throughout the whole Kingdom both by Land and by Sea And in the same King's time a freedom from som paiments was granted to the Citizens of London per totum Regnum tam per mare quà m per terram throughout the whole Kingdom as well by Sea as by Land And so Bracton when hee return's to speak of the Customs of our Countrie acknowledged that the Dominion of the Sea belong'd to his King no less then the Land And hence it came to pass also that inter Capitula Coronae as they call them that is to say those Articles or chief Heads whereof enquirie was to bee made according to the usual custom by Judges delegated throughout England for the conservation of the publick peace wee finde this also de Purpresturis factis super Dominum Regem sive in Terrâ sive in Mari c. Of Pourprestures made upon our Lord the King either on Land or in the Sea or in sweet waters either within the Libertie or without or in any other place whatsoëver And it is placed among the Articles of this kinde recited by Bracton himself and in the Autor of the Book called Fleta But in the language of the Law wee call those things Pourprestures whereby detriment is don to any publick place belonging to the Patrimonie of the Crown as a publick thorow-fare a River and the like So that according to the nature of this ordinarie Article touching Pourprestures in the general form of enquirie the Dominion or Ownership of the Sea is ascribed to the King no less than of the Land or of publick Road or thorow-fare and River agreeable hereto is that Article about any kinde of salt-waters beeing inclosed by any subject or possessed in any other manner which in the antient Records of our Court of Admiraltie is said to bee don to the disherison of the King The words are there Item soit enquis de ceulx qui acrochent à eulx eaves salees en desheretison du Roy. And at this day enquirie is wont to bee made about that business by Autoritie of the high Admiral Robert Belknap also an eminent Judg in the time of Richard the Second saith that the Sea is subject to the King as a part of his English Kingdom or of the Patrimonie of the Crown His words in the Norman tongue run thus Le Mere est del ligeans del Roy come de son corone d' Angleterre Hee added to his words in a remarkable way as belonging to the Crown of England or as belonging