The great juridical controversies respecting mare liberum and mare clausum—the sea open to all, or that under the dominion of a particular Power—which enlivened the international politics of the seventeenth century, reached their highest pitch in the reign of Charles I., and may be conveniently considered here. The writers who touched upon the question in the previous century took it for granted that the seas were capable of appropriation, and that they were almost wholly under the dominion of one Power or another. It is true that now and again a slender voice was raised in protest, on abstract legal grounds, against the exclusive maritime sovereignty arrogated by Venice, Portugal, or Spain. Queen Elizabeth too, as we have seen, not only protested against these claims in certain cases, but actively opposed them. Her action, however, pertained rather to the sphere of diplomacy and politics than to legal controversy; and the protests of the few jurists alluded to were too feeble to have practical effect on the course of events or on the prevalent opinion. It is noteworthy that the birth of modern international law was associated with the origin of these juridical controversies as to the freedom of the sea.610 It was the appearance of Mare Liberum in 1609 that heralded the dawn of the new epoch. The little book of Grotius was at once a reasoned appeal for the freedom of the seas in the general interest of mankind, and the source from which the principles of the Law of Nations have come. The main reasons why the controversy broke out at The commerce with the East Indies was of special value and importance. The discovery of the Cape route by Vasco di Gama, in 1497, led to the great stream of traffic between Europe and the East being diverted in the next century from its old channel in the Mediterranean and Levant to the Atlantic. The lucrative trade with the Indies was transferred from the Venetians and the Italian Republics to the Portuguese, who then became for a time the chief trading people of the world,612 and strove to keep it entirely in their own hands. It was particularly with reference to this monopoly that the disputes about the freedom of the sea began. The Mare Liberum of Grotius was specially directed against the prohibition by the Portuguese for any other nation to navigate round the Cape of Good Hope or to trade with the Indies. It has been well said by Calvo that the historical antecedents of the controversy about mare clausum are to be found in the voyages of Columbus and Vasco di Gama.613 Very soon, however, the claims of other Powers to maritime sovereignty—of Denmark, Venice, England—were similarly assailed, and the controversy became general. It may be noted that those who took part in it on the one side or the other, including some of the most learned men of their age, were in large measure inspired by patriotic motives. National interests as much as lofty ethics or legal principles were at its root. Even Grotius, notwithstanding his impassioned appeal to the conscience of the world for the liberty of the sea and the freedom of commerce, was not exempt from this weakness. It was his happy fortune that the cause he publicly advocated was equally in conformity with the growing spirit of liberty and the immediate interests of the United Provinces. Only four years later, when the Dutch had obtained a footing in the East Indies in spite of the Portuguese, they in turn wished to exclude the English from any share in the trade with that opulent region: they did not want any freedom of commerce that might tell against themselves. And then we find Grotius arguing, in London, against his own declarations in Mare Liberum, and in favour of commercial monopoly for his native land—a This charge cannot be made against the two authors whose voices were raised in opposition to the prevailing opinions as to the appropriation of the sea before the work of Grotius appeared, and of whose writings he made considerable use. One of these was a Spanish monk, Francis Alphonso de Castro, who wrote about the middle of the sixteenth century, protesting against the Genoese and Venetians prohibiting other peoples from freely navigating the Ligurian and Adriatic Seas, as being contrary to the imperial law, the primitive right of mankind, and the law of nature; and also against the Spanish and Portuguese claims for exclusive rights to the navigation to the East and West Indies.614 The other author, also a Spaniard, was Ferdinand Vasquez or Vasquius, who expressed the same opinions as de Castro, and for the same reasons. He held that the sea could not be appropriated, but had remained common to mankind since the beginning of the world; that the claim of the Portuguese to forbid to others the navigation to the East Indies, and that of the Spaniards to a similar prohibition to sail through “the spacious and immense sea” to the West Indies, were no less vain and foolish (non minus insanÆ) than the pretensions of the Venetians and Genoese. The law of prescription, he said, was purely civil, and could have no force in controversies between princes and peoples who acknowledged no superior, because the peculiar civil laws of any country were of no more value with respect to foreign nations than as if they did not exist; to decide such controversies recourse must be had to the law of nations, primitive or secondary, which it was evident could never admit of such a usurpation of a title to the sea. With regard to the right of fishery, Vasquius drew a distinction between fishing in the sea and in rivers or lakes. He held that the sea had been from the first, and still remained, by the primitive right of mankind, free both for navigation and fishing, and that its use could not be exhausted by fishing, while lakes and rivers may be so exhausted.615 From the foregoing, it will be seen that Grotius had ready to his hand many of the legal arguments of which he made so much use; but the strength of his work lay rather in its appeal to the sense of justice and the conscience of the free peoples of Christendom, to whom it was dedicated. The Spanish authors, moreover, were not in a position to assail the validity of the Papal Bulls, upon which the Spanish and Portuguese claims were partly founded, whereas it was against them that the Protestant writer levelled some of his most powerful philippics. The Mare Liberum of Grotius was published anonymously at Leyden, Holland, in March 1609.616 As the title declares, the author’s object was to assert the right of the Dutch to trade with the Indies, and to combat the pretensions of the Portuguese to a monopoly of navigation and commerce in those regions; but the genesis of the book has only been recently made known. At the end of the sixteenth century, when the commerce of the United Provinces was expanding in all directions, the Dutch merchants resolved to share in the lucrative In dealing with his theme Grotius attacked in succession all the arguments put forward by the Portuguese to justify their claim. Their titles from prior discovery of the Cape route, under Papal Bulls, by the right of war or conquest, or from occupancy and prescription, were all, he maintained, invalid; by the Law of Nations navigation and commerce were free to all mankind. The action of the Portuguese in attempting to restrain the trade with India furnished a just cause of war; and the Dutch were resolved to assert their rights by force. But Mare Liberum was much more than a pleading in a particular case. An earnest and powerful appeal was made to the civilised world for complete freedom of the high seas for the innocent use and mutual benefit of all. Grotius spoke in the name of humanity as against the selfish interests of a few; and while he made full use of arguments founded on Roman law, on the law of nature and of nations, it was principally the lofty moral Grotius places navigation and fishing in the sea on the same footing, or rather he looked upon interference with the freedom of fishing as a greater offence than interference with navigation. With regard to imposing tribute on fishermen, he said that such as are reckoned among the Regalia are imposed not on the thing, that is the sea and the fishing, but on the person; and while it may be levied by a prince on his own subjects, it is not to be levied on foreigners, for the right of fishing everywhere should be free to foreigners, lest a servitude be imposed on the sea which it cannot bear. An action of this kind would be worse than the prohibition of navigation; it would be barbarous and inhuman. If any one, says Grotius, claimed jurisdiction and sovereignty on the great seas for himself alone against promiscuous use, he would be looked upon as one who was aiming at extravagant dominion; if any one was to keep others from fishing, he would not escape the brand of insane cupidity.620 It is hardly possible to escape the suspicion, which was apparently shared by King James, as it was by many others, that Grotius in these sentences was aiming obliquely at England. Such strength of language about the right of free fishing in the sea was scarcely pertinent to his theme, for neither the Portuguese nor the Spaniards contested that right, and the Dutch did not fish in waters under their control. It would, on the other hand, be explicable if Grotius had got a hint of James’s intention with regard to the “assize-herring” (see p. 152), and we know that as early as the beginning of 1606 proposals were made for the formation of an English fishery society, with taxation of foreign It is important to note—what many of his followers too often forgot—that Grotius restricts the application of his general argument for mare liberum to the open sea. He does not, he says, deal with an inland sea (mare interiore) which, surrounded on all sides by land, did not exceed the breadth of a river; the question concerned the ocean, which the ancients called immense, infinite, the parent of things, co-terminous with the air. The controversy, he continues, was not about a bay or a strait in this ocean, nor concerning so much of it as might be seen from the shore: the Portuguese claim for themselves whatever lies between the two worlds.622 Again, referring to the Italian publicists, he says their opinion cannot be applied to the matter in question, for they speak of the Mediterranean, he of the ocean; they of bays or gulfs, he of the vast sea, which differ very much in respect of occupation.623 The opinions and reasonings of Grotius in Mare Liberum as to the free use of the sea were repeated more concisely and with some modification in his greatest work, The Rights of War and Peace, which was published in 1625.624 No one, he affirmed, can have property in the sea, either as to the whole or its principal parts; and as some people admit this in respect to private persons but not in regard to countries or states, he proceeds to prove its truth by both a “moral The latter statement of Grotius contains the germ of the idea subsequently adopted by almost all the writers on international law, that the extent of the adjoining sea over which the neighbouring state is entitled to exercise dominion is limited by the range of guns from the land. Grotius does not mention the means by which compulsion was to be made effective, but there is little or no doubt of what was It is obvious from the foregoing that the opinions expressed by Grotius as to the appropriation of the sea were not always consistent, and were sometimes self-destructive. If the fluidity and physical nature of the sea made it impossible to occupy or appropriate it, the objection applied as much to one part of it as to another, since it is everywhere fluid; and the admissions in his later book stultify many of the statements in the earlier one. It seems to be indisputable that Grotius was to some extent influenced by his environment, and expanded or contracted his argument to meet the conditions at the time—that he was, in short, like all the others, more or less of an advocate. When he published his greater work he was in the service of the Queen of Sweden, who claimed a somewhat extensive maritime sovereignty in the Baltic, and it is not unlikely that this influenced him in making the admissions referred to. The immediate object for which Mare Liberum was published—the recognition of the right of the Dutch to sail to the East Indies and to trade there—was achieved by the treaty of Antwerp in the month following its appearance,630 and no reply from the Portuguese or Spaniards to the arguments of Grotius was published till sixteen years later. Grotius tells us that a work in refutation of Mare Liberum had been prepared by a scholar of Salamanca, but it was suppressed by Philip III.;631 but in 1625, when Philip IV. was on the throne, an elaborate defence of the rights of Portugal in the Indies and a reply to Grotius was published by Franciscus Seraphinus de Freiras, a Spaniard, who dedicated his book to the king.632 The Venetians also, whose power had by this time declined, began to defend with the pen their rights in the Adriatic. These rights had been But it is probable that Mare Liberum received as much attention in England as it did in any other country. Grotius, as we have seen, condemned any interference with the liberty of fishing or the imposition of taxes on foreign fishermen in very severe language, and his book appeared just at the time when King James had resolved on both these courses, and within less than two months of the issue of the famous proclamation forbidding unlicensed fishing by foreigners on the British coasts. To be by implication branded as “insanely cupid” by an anonymous Dutch writer, because he had decided to levy the “assize-herring” from Dutch fishermen, must have irritated James; and the irritation would not be lessened when he found the envoys from the Netherlands in the following year vindicating their right to liberty of fishing by just such arguments as were contained in Mare Liberum. James, indeed, showed a somewhat bitter feeling towards the great Dutch publicist when the authorship was revealed and the author lay in prison; and Carleton, the English ambassador at The Hague, in a speech to the States-General, held him up to opprobrium and stated that the disgrace into which he had fallen should deter others from adopting his opinions. The task of replying to Grotius was taken up by a Scottish lawyer, William Welwod or Welwood, a professor of the civil law. Welwood was Professor of Mathematics at St Andrews University, but exchanged the Mathematical for the Juridical Chair about the year 1587; at the royal visitation in 1597 he was deprived of his office, on the ground that the profession of the law was in no wise necessary at that time in the University, but probably because his profession as a teacher of jurisprudence was obnoxious in the eyes of James.634 In 1590 he had published at Edinburgh a treatise on the Sea Laws of Scotland, which is believed to be the earliest regular work on maritime jurisprudence printed in Britain, and which was dedicated to James;635 but it contains nothing bearing on the question of the fishery or “assize-herring.” In 1613 he published at London a new and enlarged edition of his early work, and in one of the chapters on “The Community and Proprietie of the Seas,” he endeavoured to refute the arguments advanced in Mare Liberum, which he seems to have looked upon as a reply to James’s proclamation of 1609.636 This Welwood was scarcely fitted either by knowledge or capacity to be a formidable antagonist to a giant like Grotius; and although his writings contain quite a number of arguments which were later used and expanded by Selden, it can hardly be said that they had a great influence on the controversy. He looked upon Mare Liberum as an attack on the rights of King James and his subjects to the fisheries “on this side the seas,” veiled under the pretext of asserting the liberty to sail to the Indies. As befitted his nationality and his time, many of his arguments were drawn from Holy Writ, and he had no difficulty in placing Providence on the side of James and in opposition to the Dutch. Others were more pertinent. He urged that the injunctions of the Roman law applied only to the subjects of Rome, and not internationally as between state and state,—an opinion also pressed, as we have seen, by Vasquius; that the fluidity of the sea was no bar to its occupation, and that it could be, and had been in certain cases, divided up into marches and boundaries, by the ordinary methods used by navigators, “so farre as is expedient for the certain reach and bounds of seas, properlie pertaining to any prince or people,”—what these bounds are or should be he does not say, though he quotes the Italian limit of 100 miles with approval. He held that the liberty of navigation was beyond all controversy, and agreed to the principle of the complete freedom of the sea so far as concerned the “main Sea or great Ocean,” which was “farre removed from the just and due bounds above mentioned properlie perteyning to the neerest Lands of euerie Two years later Welwood returned to the theme, and published a formal little book on the dominion of the seas.637 It was dedicated to Queen Anne, who had just been endeavouring to set up a fishery society with power to tax foreign fishermen (p. 161), and, as explained in the dedication, the book was specially directed against the freedom unlawfully usurped by foreigners of fishing in the British seas. It may be regarded as an amplification of his chapter in the Abridgement, but is much superior and more logically arranged; and being written in Latin, it attained, if not a reputation, at least considerable recognition on the Continent. He urges strongly that the sea as well as the land is capable of distinction and dominion, both by human and by divine law, and explains the contrary opinion of many publicists, poets, and orators (so copiously quoted by Grotius) by saying they were ignorant of the true law of nature, and had infected the minds of later generations with “a preposterous notion concerning some universal community of things.” The adjacent sea is claimed for the neighbouring state, because it is as necessary there as it is on land that some one should have jurisdiction, and this jurisdiction ought to be exercised by the neighbouring prince, so that both the land and the sea should be under the same sovereignty. The part of the sea next the land is, moreover, so joined to and, as it were, incorporated with it, that the ruler of the land is not permitted to alienate either a part of it, or the use of it, or to let it out (locare) any more than his kingdom or the patrimony of his kingdom. He held that it was incontestable that the vast and boundless waters beyond the The treatises of Welwood were composed to support the claim of James to the assize-herring, and the project of the queen to monopolise the fishings, as much as to demonstrate the law as to the dominion of the sea. On one account if on no other his works deserve to be remembered. He was the first author who clearly enunciated, and insisted on, the principle that the inhabitants of a country had a primary and exclusive right to the fisheries along their coasts—that the usufruct of the adjacent sea belonged to them; and that one of the main reasons why that portion of the sea should pertain to the neighbouring state was the risk of the exhaustion of its fisheries from promiscuous use. But they will be remembered in the history of international law for another reason. The first of them called forth from Grotius the only reply he ever vouchsafed to the numerous writers who attacked Mare Liberum. In the year in which the work was published, he was in London as one of the Dutch ambassadors, engaged in the somewhat ironical task of defending a Dutch mare clausum in the East Indies, and probably the book then fell into his hands. In his Defensio (see p. 344) Grotius reaffirmed the position he took in Mare Liberum, with the old arguments, and with some new ones to meet the criticism of Welwood, and not without some of the customary logic-chopping and wire-drawn reasoning. He held that the Roman law as to the sea being common applied not merely among the citizens of one state, but among mankind in general, because communis was a different thing from publicus.638 While admitting the possibility of marking out the sea by imaginary lines, he said this was not relevant to the question of appropriation, since appropriation could not take place without possession, and possession cannot be established merely by the mind or intellect, but requires a corporeal act; otherwise the astronomer might lay claim to the heavens or the geometrician to the earth. Concerning the rights of fishery, with which the Defensio largely deals, he asserts that as the use of the sea is common to all, no one can prohibit fishing in it or justly impose taxes on it. With respect to the right of the Dutch to fish on the British coasts, he cites the Burgundy treaties and uses the same arguments as the Dutch ambassadors did in 1610 (p. 155). They had the right by treaties, immemorial usage, prescription, and the Law of Nations. It is noteworthy that in the Defensio, Grotius, no doubt owing to the polemical spirit inciting him above all to refute the arguments of Welwood concerning the mare proximum, as well as to demolish the claims of King James, denies the existence of sovereignty or property in any part of the sea, whereas it appears to be allowed by implication in Mare Liberum, and is expressly admitted in his later and larger work. Here he says, and more In contrast with the writings of Welwood may be cited the opinions of another and more eminent Scottish lawyer, Sir Thomas Craig, who touched upon the subject of maritime jurisdiction in a non-controversial work published before the juridical controversy had arisen.640 He states that the sea is common to all for navigation, but that property and jurisdiction in the adjacent sea pertains to the neighbouring territory according to the current opinion—the sea washing the coast of France, England, Scotland, Ireland, &c., to the respective countries. No limits or bounds are laid down by Craig as to the partitioning of the sea in this way, but when dealing with the theoretical question of islands arising in the sea, he follows Bartolus in assigning a space of 100 miles from the coast. He admits that certain seas may be prescribed, as the Adriatic, which Venice, though not possessing the shores, claimed by prescription. With respect to fisheries, the Scottish author, as might have been expected, holds that those in the adjoining sea belong to the bordering state: they are prescribed, and fishing there may be permitted or prohibited according to custom; and he says that it was not without great injury to us that the Dutch carry on their fishery around our islands.641 In the period that elapsed between the appearance of the works of Grotius and Welwood and the publication of Selden’s Mare Clausum, a number of other books were issued which dealt with the question of the freedom of the seas and the extent to which they might be appropriated. Gerard Malynes, in treatises on commerce which had a wide circulation, re-echoed the opinions of Welwood, and of Gentleman and Keymer. The “main great seas,” he said, were common to all nations for navigation and fishing, but the bordering sea was under the dominion of the prince of the adjoining country, and foreigners could only fish in it by obtaining permission and paying for the privilege; within this sea navigation was free unless it interfered with the fishings. Malynes said that this was the practice in Russia, Denmark, Sweden, and Italy; and he ascribed the decay of English fisheries and trade to the admission of foreigners to fish in “his Majesty’s streames” without paying for the liberty.642 Two other authors, each celebrated in his respective sphere, touched upon the king’s dominion in the seas, and they may be regarded as representing two different aspects of the subject, both of which became of great importance—namely, the limits of neutral waters, and the rights of the crown by the Common Law of England to the propriety of the sea and its bed. One was Alberico Gentilis and the other Serjeant Callis. Gentili, or Gentilis, who was a forerunner of Grotius in shaping the Law of Nations,643 was an Italian of the school of Perugia, domiciled in England, where he held the Regius Professorship of Civil Law at Oxford. In 1605, after the conclusion of peace with Spain, he was appointed advocate for the Spanish embassy in London, and was frequently employed in the Admiralty Court in cases where the legality In discharging his duties in the English Prize Courts, it often fell to the lot of Gentilis to deal with the jurisdiction of England in the seas, for while he held office war existed between Spain and the United Provinces, and Spanish ships were frequently taken by the Dutch in the neighbourhood of the British coasts. Of course, captures made in the King’s Chambers after the proclamation of 1604 (see p. 119) were not good prize, and were restored.645 But when a Spanish vessel was seized clearly outside the limits of the King’s Chambers, Gentilis argued that it was not good prize, because, first, the treaty of peace646 between Spain and England provided that the subjects of either were to be protected in all places throughout the dominions of the other; and, second, the dominion of the King of England extended far into the neighbouring seas. He seemed to stretch the joint sovereignty of Spain and England as far as America, pointing out that the southern coasts of Ireland were opposite to Spain, and the western coasts were There is no doubt, however, that although Gentilis as an advocate took this line of pleading, the boundaries of the King’s Chambers from headland to headland, as defined by James in his “plat,” were received as settled law in regard to neutrality both in the English courts and on the Continent.648 Gentilis further urged that the limit fixed by the Italian jurists for the extent of jurisdiction—viz., 100 miles from the coast, unless the proximity of another state interfered with its application—also was in force off the British coasts, a view which the court declined to accept. Yet, although this principle of extending and limiting the territorial jurisdiction to 100 miles was not accepted in the English Courts, we find it made use of in the diplomatic correspondence of the time. The Earl of Salisbury in a letter to Cornwallis, the English ambassador at Madrid, explanatory of James’s proclamation in 1609 forbidding unlicensed fishing, did not seek to defend the action of the king by reason of any intrinsic right of the crown of England to sovereignty in the neighbouring sea, but rather upon what he alleged was the practice of the civil law. A sovereign prince or state, he said, was Mundi Dominus, Lex Maris, both because of the protection afforded to navigation in the adjacent sea and from prescription: the adjoining sea, as Baldus said, pertained to the territory of the neighbouring By another channel we may trace the course of the ideas which converged and culminated in the claims of Charles to the dominion of the surrounding seas—viz., in connection with the development of the law relating to the rights of property in the foreshore and the bed of the sea. Cases frequently occurred in which those rights were contested between private individuals and the crown; and in the course of litigation, or in writings dealing with the subject, the rights in the sea which were alleged to belong to the crown were explained. We have already seen that Plowden, in a case of the kind, argued that Queen Elizabeth possessed jurisdiction as far as the middle line in the surrounding seas,—a doctrine which the queen expressly repudiated in 1602,—but denied to her any right of property in either the sea or its bed. The claims of the crown to the ownership of the foreshores originated in the reign of Elizabeth; under James and Charles I. they were systematically pursued by the “title-hunters”; and while the legal decisions in contested cases were for a long time adverse to the crown, they began in the reign of James to be in its favour, and gradually the idea was imported into and became a part of English law that the ownership of the foreshore Along with the development of this idea came another, which was ultimately likewise engrafted on English law—that the crown had the exclusive right of property in the sea and in the soil beneath it. The origin of the idea is to be found in a treatise written in 1569 by Thomas Digges.650 He argued that as many things—as wrecks, treasure-trove, waifs and strays, which were originally common by the law of nature—now belonged to the Prince, so also should the sea, which was the chief of all waters, and could not by the civil law become the property of a subject. He held that just as the owners of the soil had the property in a river and its banks, the king had the interest and property in the “great salt river” environing the island, and in its shores and bottom; and he speaks of the sea as the “King’s river,” the “King’s streme,” and the “King’s water,” in which he had also jurisdiction. Digges also claimed that the fishings in the sea belonged to the crown, for “although the Kings of England have benne content to suffer fishermen Jure gentium to enjoy to theire owen use such fishe as by theire charges travill and adventure they can in the Englishe Seas take, Yet haue the Kings of England for remembrance of this theire favoure that the memorie of theire propertie in the Seas shoulde not be extinguished, alwaie reserved to them selves the cheif fishe as Sturgeon, Whale, &c.”651 The contention that the crown had the right of property in the sea and its bed, denied by Plowden, received in the reign of James much fuller amplification at the hands of Serjeant The interpretation of the law as to the rights of the crown in the seas, as propounded by Callis, was followed by Selden and Hale, and generally by the lawyers who came after him. Lord Chief-Justice Coke, in his First Institute, which was published in 1628, explains the old phrase “within the four seas” (infra quatuor maria) as meaning within the kingdom and dominions of England; for if a man be upon the sea of England he is “within the kingdom or realm of England, and within the ligeance of the king of England, as of his crown of England.” In his Fourth Institute, which was not published, however, till 1644, ten years after his death, when treating of the Admiralty Court, Coke entered more fully into the question of the rights of the crown in the seas of England; and, as already mentioned, he looked upon the roll of Edward I., De But none of the works on the rights of England in the adjoining seas, which had appeared when the new policy of Charles began to be fashioned, was sufficiently profound or authoritative to furnish reasonable justification for that policy in the eyes of the world. The king in 1632, as we have seen, desired to demonstrate his rights by means of “some public writing,” founded upon the historical records of the realm,—a demonstration which was to precede the revival of the English pretension to the dominion of the seas in what Secretary Coke called its ancient style and lustre. As a result of the search made amongst the records in the Tower and elsewhere for evidence and precedents to establish the claim, several treatises and collections were compiled. Most of these were of little account,653 but one of them attained an authority and celebrity only second to the great work of Selden. Before Charles wrote to the Clerk-Register in Edinburgh for Scottish documents to substantiate his claims (p. 212), it seems that Sir John Boroughs, the Keeper of his Majesty’s Records in the Tower, had been commissioned by the king to prepare the “public writing” to which he referred. We have already seen that in 1631 Boroughs brought forward the important roll of Edward I.; he tells us in his preface that his work was composed at the request of “a great person”; it was written in Latin, the language which fitted it for foreign Courts; and it deals very largely with the Dutch and English fisheries, even recommending the construction of 250 busses for the fishery association. Boroughs’ treatise, entitled “The Soveraignty of the British Seas, proved by Records, History and the Municipall Lawes of Nevertheless, Boroughs’ work was the first successful attempt to bring together a great array of historical facts in favour of the English claims to the dominion of the seas. Like Selden, he begins with the Roman occupation of Britain in order to show that from the first the “British nation had the supreme power of command of their own seas”; and, moreover, he gives all the more important documents to be found in Mare Clausum,—the ordinance of John, the rolls of Edward I. and Edward III., the charter of Edgar, the Laws of Oleron, commissions to the admirals, safe-conducts, and extracts from the Burgundy treaties. He is very emphatic as to the king’s right to the dominion of the seas and the fisheries. “That princes,” he says, “may have an exclusive property in the soveraigntie of the severall parts of the sea, and in the navigation, fishing and shores thereof, is so evidently true by way of fact, as no man that is not desperately impudent can deny it”; and—no doubt for the benefit of the Dutch—he adds that “if any nation usurp our rights, the king has a good sword to defend them.” He asserts that the kings of England in succession had the “sovereign guard” of the seas; had imposed taxes and tributes upon all ships navigating or fishing in them; and had closed and opened the passage through them to strangers, as they saw cause. The sovereignty of the sea he calls “the most precious jewel of his Majesty’s crown, next (after God) the principal means of our wealth and safety.” A considerable Boroughs’ treatise, however interesting from the historical documents it contained, had serious defects when considered as a formal justification to Europe of the policy of Charles. The facts were not skilfully marshalled; the deductions were bald and crude; and above all, it was destitute of arguments and reasoning founded on law. Grotius was then the Swedish ambassador at Paris, his works were well known and esteemed throughout Europe, and it would have been indiscreet to attempt to answer his elaborate arguments against such claims to mare clausum by saying that these claims were self-evident and that only an impudent person would deny them. Fortunately for Charles, Selden now came upon the scene to vindicate and glorify his prerogative in the surrounding seas. The distinguished author tells us that his great work, Mare Clausum, was begun long before at the desire of King James, and had been lying in an incomplete and imperfect form for fully sixteen years.655 It was presented to James in 1618, but several reasons prevented its publication, one of the chief being that the king was afraid that some passages it contained might give offence to the King of Denmark, from whom he was then endeavouring to obtain a loan of money.656 At the request of Charles, Selden now recast his treatise, added to it, and completed it. It was dedicated to the king and published by his “express commands,” as he explained a little later, “for the manifesting of the right and Dominion of Us and our Royal Selden, as is well known, had taken a prominent part in the Parliament of 1629, in the majority which resisted the king’s wishes, and was for a time imprisoned in consequence of his share in the historic disturbances with which it had ended, when the Speaker was held down in the chair. He was released on bail under sureties for good behaviour, and he was bound to present himself, on the motion of the Attorney-General, in the Court of King’s Bench, on the first day of each term, as a person under surveillance.658 Selden was not of the stuff of which martyrs are made. After his release, we find him among the lawyers of the Inns of Court arranging for the masque which was performed before the Court, at Whitehall in February 1634, as a token of the detestation in which they held Prynne’s innuendo concerning the queen in his Histriomastix.659 Towards the end of the same year, in a humble petition to the king (“prostrating myself at the feet of your sacred Majesty”), he begged that the royal displeasure might be removed and the bail discharged, assuring Charles of his readiness to serve him with gladness and affection. In February 1635 the king forwarded to the Judges of the Court of King’s Bench a mandate, the draft of which had been prepared by Selden himself, instructing them to discharge him of their recognisances;660 in August we find the Dutch ambassador writing to The Hague that the book was being printed;661 and in December of that year it was given to the world.662 There is little doubt that Selden’s petition to the The political significance of Selden’s work was instantly recognised both at home and abroad. It appeared at the time when the pretensions of Charles to the dominion of the sea were astonishing Europe. While the printers were still busy with it, the Earl of Lindsey’s fleet was scouring the Channel to force the elusive squadrons of France to strike to the king’s flag. The longing to compel homage to the flag burned like a fever in the breasts of naval officers; and despatches poured in from them announcing that Dutch, Danish, and even occasionally French, ships had been forced to strike, sometimes in their own waters. The supposed policy of the Plantagenets had been expounded in high-sounding despatches to foreign Courts, and formulated in Admiralty instructions. The Dutch fisheries had been threatened; and it was known everywhere that the King of England was preparing a formidable fleet to sweep the seas in the following year. Charles did what he could to emphasise the importance of the book. When a pirated edition appeared within a few months at Amsterdam, bearing the name of the king’s printers and the word London in imitation of the original edition, and with a print of the great Burgundy treaty, the Intercursus Magnus, and a tract appended by way of antidote, he complained There was good reason for the king’s eulogy of Selden’s treatise. From the point of view of his policy nothing that the pen can do could have been better done. It is an elaborate and masterly exposition of the case for the sovereignty of the crown of England in the British seas, which throws into the shade all the other numerous works which were written on that side of the question. One of the most eminent lawyers of his time, a scholar, an antiquary, an historian, the author brought to his task a keen intellect, an immense erudition, and the ability of But in relation to the cause for which it was written, the merit of Mare Clausum lay not merely in the enunciation of the theoretical and legal aspects of the claim to maritime sovereignty, but also in the imposing array of historical facts and arguments by which the right of England was sought to be established. The defects of the work are scarcely less apparent. There is no ground to suppose that Selden was guilty of the offence attributed to him by some of his foreign critics, of inventing part of the evidence he cites. But the interpretation he placed upon much of it was strained or erroneous. Great conclusions were drawn from things which had in reality no connection with his case; laws and events which referred solely to English subjects were improperly extended to include foreigners; the bearing of many records was misrepresented, others were passed over in silence, or, as with the “Burgundy” treaties, referred to in such a way as to distort their plain meaning. In the first book the author endeavours to prove that the sea is not everywhere common, but is capable of appropriation, and has been in fact in numerous cases appropriated. The objections to that opinion are classified in three groups: first, that it is contrary to the law of nature and the law of nations to forbid free commerce and navigation; second, that the physical nature of the sea, its fluidity and fluxion, renders it incapable of occupation; third, the opinions of certain learned men. He argued that the ancient law as to the community of things had become modified in certain particulars, and that the received practice and custom of many nations, ancient and How then could it be denied, with all these examples, ancient and modern, that the sea could not be appropriated? Selden indeed agreed with Grotius in repudiating the sovereignty claimed by Spain and Portugal in the great oceans,—not, however, because it was opposed to reason and nature, but because it was founded on no legitimate title, and these nations had not a sufficient naval force to assert and maintain it.667 As to the free use of the sea, Selden admits that to prohibit innocent navigation would be contrary to the dictates of humanity;668 but he held that the permitting of such innocent navigation does not derogate from the dominion It was, however, the second book of Mare Clausum which gave it its chief political importance. It was appropriate and necessary that the claims of Charles should be justified in the domain of law and custom; it was still more necessary that they should be supported by weighty precedents existing in the history of England—that some of his predecessors had been styled Lords of the Sea, and had exercised sovereign jurisdiction over foreigners even on their own coasts. After partially defining the British seas (see p. 19), Selden, as mentioned in a former chapter, The maritime sovereignty claimed by Selden for the kings of England was of the most absolute kind. Speaking particularly of the eastern and southern parts of the English sea, lying between England and the shores of France and Germany,—in which Charles was especially interested,—he declared that the powers exercised by the kings of England from the time of the Norman Conquest were as follows: (1) the custody, government, and admiralty, as if it were a territory or province of the king; (2) leave of passage granted to foreigners at their request; (3) liberty of fishing in them conceded to foreigners, and protection afforded to their fishermen; (4) the prescribing of laws and limits to foreigners in hostility with one another as to the taking of prizes.670 It is to be noted that Selden in expounding his case expressly rejected the principle of the mid-line, the limits laid down by the Italian writers, and those prescribed by King James in defining the King’s Chambers; and he disclaimed the arguments used by the English commissioners at the Bremen Conference in 1602, as to the freedom of the seas, as being contrary to English It may be added that Mare Clausum became in a sense a law-book, an authoritative work to which eminent lawyers, as Lord Chief-Justice Hale and Hargrave, appealed as proving the existence and the legality of the rights of the crown of England to the dominion of the British seas. Even as late as the year 1830 this doctrine held its place in certain recognised treatises on the law of England, together with Selden’s definition of the extent of those seas. (See p. 580.) As was natural, the appearance of Selden’s book created anxiety in Holland. Its very title was a challenge to the much-cherished principles in Mare Liberum, and the circumstances connected with its birth heightened its political importance. It was felt to be almost equivalent to a declaration of the king himself. The simultaneous measures for the formation of an English fleet of unexampled strength made the Dutch fear for even more than their herring fishery. Their interest in the book was shown by the fact that within a year of its publication no less than three editions were brought out in Holland.671 It was promptly brought before the States of Holland, on 11th December 1635, and remitted The official refutation of Mare Clausum was, by a resolution of the States-General on 28th April 1636, entrusted to a lawyer of Delft, called Dirck Graswinckel, who does not appear to have been very well fitted for so onerous a duty. His treatise in reply to Selden was not submitted to the States-General until 13th April in the following year, and by that time much had happened to alter the political complexion of affairs. The States-General had then reason to believe that the campaign which Charles had been carrying on against the Dutch herring-busses would be suspended (p. 315), and probably never resumed; and after remitting Graswinckel’s work to a committee, it was finally set aside and was never published, But another Dutchman in this year assumed the task which Graswinckel had fruitlessly essayed. This was Pontanus, Professor of Philosophy and History in the College of Harderwyck in Guelderland, who also occupied the office of Historiographer to the King of Denmark. He had thus, like Grotius, to be cautious in his refutation of Selden’s general arguments upon the appropriation and dominion of seas, because the claims of Denmark to such property and dominion were notorious. But he was free to contest the particular rights of England, which he did with zest. He subjected Selden’s chapters, almost seriatim, to a rigorous criticism, beginning with the Romans and the Anglo-Saxons. He made the most of the declarations of Elizabeth as to the freedom of the seas for navigation and fishing, and of her State Paper of 1602 (see p. 110); and he dealt specially with the sovereignty over the northern seas—the Mare Caledonium and those flowing between the Scandinavian countries and Iceland and Greenland—which he asserted were not, and never had been, under the dominion of England, but always appertained to the Scandinavian nations. Pontanus entered very fully into the negotiations which had taken place between England and Scotland on the one hand, and Norway and Denmark on the other, concerning those seas and the rights of navigating and fishing at Iceland and Greenland—subjects on which, from his official position, he had special knowledge.677 In the same year another author, and he a Frenchman, entered the field in defence of the appropriation and dominion of seas,678 while a somewhat virulent The juridical controversies respecting the appropriation and dominion of the seas continued throughout the whole of the seventeenth century and well on into the next, and so far as this country was concerned, they were particularly vehement during the first and the third Dutch wars. |