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. 'T is 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 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 't is 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 't is Publick to all the Subjects of that Prince Quid proluâ—â—â—s aquas 〈◊〉 communis aq tarum 〈◊〉 Ovid. who is Lord of the Territory As 't is running Water 't is 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 't is a Way 't is 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 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 't is 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 't is the Nature of Property in general so to make a thing mine as 't is not anothers eodem modo in the same manner as 't is 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 't is 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 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
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 'T is 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 't is not any Judicial Act or Monument of a Court of Record and it may be read as 't is 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 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 't is 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 't is 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 Wâ—â— 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 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 oâ— 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 Possâ—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 thingâ— done and committed 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 't is certain that the Crown of France had Admirals before the time of Philip the Fair. 'T is 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 Fâ—uda as they â—ali'd them Free Fees which are supreme and independent Sovereignties only the persons of those
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 one 's 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 't is 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 't is 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 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 quatuâ—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 Mâ—â— beyond the Sea this is accepted as a good Eâ—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 Wiâ—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 mean when they say Co. on Littâ— 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 't is 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 't is 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 't is born out of the â—ing's Ligeance and therefore an Alien Co. 7. Pep 〈◊〉 Case foâ— 6. But whereas 't is 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