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
thus proposed That the Dutch Ships both Men of War and Merchants besides striking the Flag should suffer themselves to be visited if required and should perform all due Offices of Honour and Acknowledgment to England to whom the Dominion and Sovereignty of the British Seas of right appertain'd But this Article was rejected by the Dutch as were several other Proposals of a high nature for it was then urg'd and for some time insisted on that there should be a Coalition of England and the United Provinces into one and the same Republick not an Union only but an Adunation not a mere Coition into a stricter Bond and League of Friendship but a Coalition of both into one Government But this was rejected too as impracticable If the Question were only concerning the Antiquity of this Ceremony how long it has been practised amongst these Europaean Nations for it had a time when it first began and it does not obtain universally We have a Record in our Admiralty which would be pertinent to this purpose It is an Edict or Proclamation published by King John at Hastings in Sussex in the Second Year of his Reign near 500 Years since and is transcribed by Mr. Selden out of the Records of the Admiralty to the following purport Mar. Clauâ— l. 2. c. 26. That if any Ships or Vessels laden or unladen refused to lâ—wer their Sails at the Command of the King's Lieutenant or Admiral or of his Lieutenant then to be compelled to do it by fighting them and if taken their Ships and Goods to be confiscated as may be seen more at large in the place noted in the Margin But the Proclamation says not that this lowering their Sails was to be done as an acknowledgment of the King's Dominion in the Western Channel to which Sea it especially relates and yet none could have better required it than King John for he was at that time in actual possession both of England and Normandy and consequently was actual Lord of both Shores and might have reckoned the Channel as an Appendant and Accession to the Land and to have followed it as the Accessory does the Principal as he is Lord of the intermediate River who is Lord of both the Banks But as this Proclamation expresses no such thing so neither does the penning of it seem to incline that way For it mentions not Ships of War who as such ought the rather to be obliged to make such Acknowledgment as being most likely to dispute it but only Ships laden or unladen Nefs ou Vesseaulx charges ou voide referring to Merchants and Traders be their Ships light or freighted and these Merchant-men are to do it not at the Command of every body but au Commandement du Lieutenant du Roy ou de l'Admiral du Roy ou son Lieutenant at the Command of the King's Lieutenant or the King's Admiral or his Lieutenant intimating a personal Respect due to their Rank and Quality especially from simple Traders However 't is certain that this Honorary Respect or Civility call it what you will is no natural expression of a Subjection to a Sovereign for 't is not founded in Nature but in Institution and is a practise peculiar to the Western Nations and the modes of Respect are so various in different Countries that what in one is a Civility in another is a Rudeness And as it is no natural expression of Subjection so neither is it a necessary one as if it must necessarily signify that or nothing for lowering the Flag or Sails is but like uncovering the Head by vailing the Hat or Bonnet which amongst us 'T is so called in the Journal of King Edw. 6. wrote with his own hand the words are these The Flemings Men of War would have passed our Ships without vailing Bonnet which they seeing shot at them and drove them at length to vail Bonnet See pag. 11. of K. Edw. Journal in the 2d Part of Dr. Burnet's Hist of Reform is used as a Token of Subjection to our King of Respect to our Superiors of Civility to our Equals of Courtesy to our Inferiors Thus we see one and the same specifick Act of uncovering the Head as it relates to persons of different Orders and Degrees admits of divers Significations Some of our Sea-Captains tho' irregularly enough and for want of explicite Orders have required of the Dutch the Honour of the Flag and Topsail in the Mediterranean and Baltick where the Crown of England never pretended Sovereignty And as in the forementioned Treatise of 1673 't is particularly named a Respect so 't is covenanted to be done not only within the British Seas but every where betwixt the Capes Finister in Spain and Staten in Norway beyond the Limits of the Sea-Sovereignty of England and consequently has no relation to it Besides this Honour to the King's Flag is required from his own Subjects but 't is needless to require from them an acknowledgment of Sovereignty to whose benefit it redounds the import is that Foreigners would acknowledge it to whose Profit 't is opposed Well then if this Ceremony does not relate to an acknowledgment of a Sovereignty in the Sea what is it that it relates to And what is the true import and signification of it I answer it imports these two things 1. 'T is Cultus Superioris 't is a Reverence or Respect performed to a person of Superior Quality and Degree 2. 'T is Symbolum Pacis Amicitiae 't is a sign or symbolical expression of Peace and Friendship Sometimes it signifies both these together and sometimes but one of them according to the different degrees of the persons performing it but it always signifies one of them and never any thing more The Dutch and other smaller Republicks perform it both as a Respect to the Crowned Head of England and as a Salutation of Peace and Friendship also But Crowned Heads cannot perform it as to one of a Superior Order because they are in a parity and equality of Degree but they do it upon the later accompt only as 't is an expression of Peace and Amity The Dutch and others do not by the Flag and Topsail recognize the King of England as Sovereign of the four Seas nor acknowledge themselves thereby his local Subjects and their Persons Ships and Goods to be under his immediate Jurisdiction and Protection whilst in and upon those Seas but they acknowledge him as Praeeminent in Order and Quality not as Sovereign over them but as Superior to them in Dignity and Degree Were I to express it in Latin I would do it by that old Roman Phrase of Comiter Colere or Observare Majestatem They pay Honour or Respect to the Majesty of a Crowned Island And as to the Crowned Heads tho' they cannot as I said before pay Respect to a Superior because of the parity of their Degree yet as to the Sea-Salutation by the Flag and Topsail there is a peculiarity on the part of England
stands on both sides upon an equal foot both Lords equally giving and taking an undisturb'd Liberty for their respective Tenants This I humbly conceive is good Evidence that the Fishery lies common to both Mannors Suppose again this Lake to be the Sea and the two Mannors to be two Kingdoms and the Case will still be the same None of our Leagues and Treaties made either with the House of Burgundy or with the House of Austria since the Union of those two Houses or with the States General since their disunion from both have ever reserved to the Crown of England any Annual Payment Fee-Farm or Consideration for their liberty of Fishing in our Seas A certain Sum was never agreed an uncertain one could never be demanded And yet Sir John Boroughs in his Book of The Sovereignty of the British Seas says That Philip the Second King of Spain obtain'd of Queen Mary his Wise License for his Subjects to fish upon the North Coasts of Ireland they paying yearly for the same One thousand Pounds Sterling which was accordingly paid into the Exchequer of Ireland But instead of an Authentick Record he vouches only the hearsay of Sir Edward Fitton Son to Sir Henry Fitton sometime Treasurer of Ireland who he says had often testified it This may the rather be suspected of mistake Annal. Eliz. An. 1602. because Mr. Cambden relates how that Queen Elizabeth having sent four Ambassadors whereof one was Principal Secretary of State and not lightly to be supposed ignorant of such an Affair to treat at Bremen with the Ambassadors of Denmark upon Complaint of that King 's forbidding Foreigners the freedom of Fishing betwixt Norway and Iseland both appertaining to the Crown of Denmark The Queen's Ambassadors openly affirmed that the Kings of England had in no time forbid the freedom of Fishing in the Irish Sea albeit they were Lords of both Banks The said Mr. Cambden in his description of the North-Riding of Yorkshire speaking of Scarborow-Castle says That the Hollanders and Zelanders take wonderful Quantities of Herring upon this Coast Cùm veniam priùs veteri instituto ex hoc Castro impetraverint Whereas they were wont by ancient Use to ask leave first of the Castle For says he the English always gave leave to Fish reserving that Honour to themselves but slothfully resigning the Profit to others But all this while he quotes no Authority neither nor directs us to any Original Record where we might consult the plain Truth of the Case Perhaps what he Historically calls Asking Leave was but giving notice of their Arrival and acquainting the Governor who they were and what their Business was upon the Coasts lest under the disguise of Fishermen Pirats and Enemies might privily hide themselves And probably he by his Civilities to the Fishermen might make some Perquisits and Profits to his Place by permitting them as occasion required to dry their Nets ashore to fetch Victual or fresh Water from Land to fish within the Havens and Bays where commonly the best fed Fish are taken But 't is not likely that the Governor of Scarborow had so indefinite a Power as to enable him to give leave upon bare Asking without any further Condition or Consideration to all Foreigners to fish at pleasure within the Royalties of the Crown However 't is too manifest That no Prince nor State did ever pay to the Crown of England any yearly Sum of Money or other valuable Consideration for the Liberty of their Subjects Fishing upon the Seas of England for had such Sum been paid it would have passed into the Accompt of the Exchequer as a Branch of the Royal Revenue and there remain upon Record As for the Case of my Lord of Northumberland in the Year 1636 that 's extraordinary and will not pass for a President The Dutch Busses were then required by the English Admiral to take Licences from him for Fishing in the Northern Seas and to pay moderate Rates for the obtaining those Licences which they did to redeem themselves from the forcible Molestations of a well-appointed Fleet. So that this was the Compulsory Act of private Persons not the Voluntary Act of the States-General who were so far from consenting to what was done that they made Remonstrances and Complaints of this Proceeding by their Ambassadors here in England And as it appears not by the Records of the Exchequer That any Recompence was given by Foreigners for Liberty of Fishing within our Seas so neither does it appear by any the publick Treaties That the Subjects of any Foreign Prince should ask leave for so doing by Stipulation and Contract though they were sure to have it without paying any thing only by the bare asking to keep in memory a perpetual Acknowledgment of a beneficiary Grant derived from the Crown of England as Supream Lord of the Fee. On the contrary the Treaties caution for a Liberty of Fishing absque licentia without any Leave or Licence first to be ask'd And yet England has ask'd leave and covenanted so to do of a foreign Crown I would not have mentioned this had it been a Secret but 't is a thing publick and in Print By Treaty made and concluded in the Year 1490 betwixt Henry the Seventh of England and John the Second King of Denmark which Treaty was afterwards renewed betwixt our Henry the Eighth and their Christiern the Second Anno 1523. it was mutually covenanted That the Liegemen Merchants and Fishermen of England should Fish and Traffick upon the Northern Sea betwixt Norwey and Iseland V. Cambd. Annal ad An. 16â—0 but under a Proviso of first asking leave and renewing their Licences from seven Years to seven Years de Septâ—unio in Septennium from the Kings of Denmark and Nâ—rwey and their Successors they are the words of the Treaties But as Navigation enlarged and England grew more opâ—lent in Trade and posent at Sea all this is gone into utter disuse and discontinuance and the Kings of England may with better Right prohibit the Subjects of Denmâ—k from passing the English Sea or Channel without special Licence first obtain'd than the Kings of Denmark can the Subjects of England from passing the Northern Sea betwixt Dâ—â—â—ark and Iseland There is a Record 〈…〉 which Mr. Selden quotes out of a Parliament Role of King Richard the Second is very remarkable 'T is a Grant in Parliament of an Imposition according to certain Rates and Proportions upon all Vessels Passing or Fishing within the Admiralty of the North viz. Upon the Sea Northwards from the Mouth of the Thames The Rates were as follow 1. To take of every Ship going and coming upon that Sea Six Pence a Tun for the Voyage 2. To take of every Vessel Fishing for Herring Six Pence a Tun by the Week 3. To take of Vessels Fishing for other Fish Six Pence a Tun for every Three Weeks 4. Of Ships laden at Newcastle with Coals Six Pence a Tun for every Three Months 5. To take of all
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