CHAPTER IX. THE JURIDICAL CONTROVERSIES.

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 339 that time and the pleas of Grotius had so much success are not difficult to discover. The period was characterised by a great expansion of commercial enterprise. The Western Powers of Europe, and above all the United Provinces, were pushing into every sea for the sake of traffic and gain. In some directions the trading adventurers found their way barred by claims to mare clausum and monopoly of trade; in other directions it was open to them only under heavy burdens and aggravating restrictions. The northern seas, in theory at least, were closed to the whaling vessels engaged in what was then a most valuable business; and commerce and fishing within them were permitted only under irksome conditions. The passage through the Sound into the Baltic was subjected to high dues by Denmark; Venice claimed dominion in the Adriatic and levied imposts for the right of navigation there, and Genoa followed her example in the Ligurian Sea. But it was not so much the claim of Denmark to the sovereignty of the northern seas, or the rights asserted by Venice in the Adriatic, that led to the outburst for the freedom of the sea and of commercial intercourse at the beginning of the seventeenth century. Except with regard to English traffic with Iceland and Norway and the fishing there, more or less regulated by treaties, the Scandinavian claim at this time was not of great practical importance; and the dominion of Venice over the Adriatic was generally regarded as beneficial on the whole, by interposing a powerful barrier to the further extension of the Turkish empire in Europe, and by facilitating the suppression of pirates and Saracens.611 It was the extravagant pretensions of Spain and Portugal to a monopoly of navigation and commerce with the New World and the East Indies that constituted the great obstacle to the new spirit of commercial enterprise. Founding their title on the Bulls of the Pope, and the right of discovery, conquest, and prior occupation, they arrogated to themselves the exclusive sovereignty of the great oceans which were the pathways to these immense regions,—the Atlantic, the Indian Ocean, and parts of the Pacific. Thus, as Grotius remarked, the whole Ocean except a little was to remain under the control of two nations, and all the other nations of the earth were to content themselves with the remnant. 340

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 341 task, which, we are told, he performed “with uncommon ability.”

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 insan?) 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.615 342

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 343 trade with the far east. Having failed to open up a passage to the Indies by the north-east, they boldly sailed thither by the Cape of Good Hope, in 1595, through the seas and to the regions which Portugal claimed for herself. Encouraged by success, other trading voyages by the same route were undertaken almost every year. A United Dutch East India Company was formed in 1602, and the States-General decided to maintain their rights to the trade by force. The disputes and conflicts with the Portuguese which followed were soon brought to a head by the action of the redoubtable Jacob van Heemskerk in attacking and seizing Portuguese ships.617 The valuable booty taken from the Portuguese was brought to Holland in 1604 and 1605, and caused much searching of heart among the shareholders of the company. Many were gratified by the spoil, but others of much influence, moved by conscientious scruples or good policy, refused to share in it, and they threatened to separate themselves from the company and form a rival association to carry on peaceful trade under the protection of the King of France. It was about this time that Grotius, incited by the condition of affairs, began to write a treatise with the object of encouraging his countrymen to resist the claims of the Portuguese by force. In a tract written about 1614 to vindicate Mare Liberum against the attack of the Scotch lawyer, Welwood—which was not published, and the existence of which was unknown till about forty years ago—he says that some years earlier, perceiving the great importance of the East Indian trade for the Netherlands, and that it could only be made secure by armed resistance to the Portuguese, he had written a book in which he explained the law of war and spoil; and in order to rouse the popular mind he gave an account of the ill-treatment of the Dutch in the East Indies at the hands of the Portuguese.618 Grotius was then only a little 344 over twenty years of age, and it enhances our sense of the precocity and fertility of his genius to learn that Mare Liberum was only one chapter (the twelfth) of this treatise. The treatise itself was not published by Grotius; but in 1608, during the negotiations with Spain which ended in the truce of Antwerp, on (March 30)/(April 9), 1609, the Spaniards demanded that the Dutch should relinquish the trade with the West Indies and also with the East Indies (Portugal being then united to Spain), and, probably at the request of the directors of the East India Company, Grotius then detached the part of his work which dealt with the freedom of commerce and navigation and published it in March 1609, under the title of Mare Liberum.

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 345 ideas which inspired his work that gave it its reputation and charm. He entered into a subtle and learned disquisition as to the origin of the idea of property from the primitive times when all things were held in common; the conditions under which private property is possible or lawful, and the distinction between what is private, what is public, and what is common. Much of the argument appears to us now to be of the nature of hair-splitting and word-play; but inasmuch as it was made use of subsequently in the numerous controversies regarding the freedom or the sovereignty of the sea, as well as in diplomatic negotiations, it is necessary to summarise it here. All property, he says, is based upon possession or occupation (occupatio), which requires that all movable things shall be seized and all immovable things enclosed; things that can neither be seized nor enclosed cannot become property: they are common to all, and their use pertains not to any particular people but to the whole human race. The distinction is also made between things which are exhausted by promiscuous use and those which are not: the latter are common, and their free use belongs to all men. Thus the air is common, because it cannot be occupied and because it cannot be exhausted by promiscuous use; it therefore belongs to all mankind. And in the same way the sea is common to all; it is clearly so infinite that it is not capable of being possessed, and is fitted for the use of all both for navigation and fishing.619 It is also among those things which cannot be bought and sold—that is, which cannot be lawfully acquired; whence it is, strictly speaking, impossible to look upon any part of it as belonging to the territory of a people. The sea is under no one’s dominion except God’s; it cannot by its very nature be appropriated; it is common to all, and its use, by the general consent of mankind, is common, and what belongs to all cannot be appropriated by one; nor can prescription or custom justify any claim of the kind, 346 because no one has power to grant a privilege adverse to mankind in general.

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 347 fishermen, and that in the beginning of 1608 negotiations were on foot between the English Government and the Dutch Ambassador as to the “assize-herring.”621

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 348 reason and a natural reason.” The moral reason is the vast extent and inexhaustibility of the sea, whether for navigation or fishing; the natural reason is that it cannot be occupied or possessed because of its fluidity, since liquids having no bounds of their own cannot be possessed unless enclosed by something else, as a river by its banks; but the sea is not contained in the earth, as it is equal to it or even greater.625 Grotius, however, admits that his argument that rivers and lakes may be appropriated because their banks could be appropriated, may be logically applied also to certain parts of the sea. From the example of rivers he says, “It appears that the sea may be occupied by him who is in possession of the lands on both sides, although it be open either above, as a bay or gulf, or both above and below, as a strait, provided that it be not so great a part of the sea that when compared with the lands on each side it cannot be supposed to be some part of them”; and what is lawful to one king or people may be also lawful to two or three, if they have a mind to take possession of the sea thus enclosed within their land.626 He also admits by another train of reasoning—concerning property in the marine vivaria of the Romans—that if it is not repugnant to the law of nature for a private person to appropriate a small enclosed part of the sea, one or more nations possessing the shores might in like manner appropriate a part of the sea, if it be small compared with the land; and that might happen although the sea was not enclosed on all sides. But this admission that the law of nature does not preclude appropriation of a relatively small part of the sea by the neighbouring state, he qualifies in a general way by saying that there are many things tolerated by the law of nature which the law of nations, by common consent, might prohibit; and where this law of nations was in force and is not repealed 349 by common consent, the most inconsiderable part of the sea, although almost enclosed by the shores, can never be the property of a particular people. And in places where the law of nations was not received, or was afterwards abolished, it does not follow that the people merely because they possess the lands also possess the sea enclosed by them; the taking possession must be made by an overt act, and signified and made known. And if the possession thus gained by the right of prior occupation is afterwards abandoned, the sea returns to its original nature—namely, to the common use of mankind. Further, he who possesses any part of the sea cannot lawfully hinder unarmed ships, giving no room to apprehend danger, from sailing there, in the same way that he cannot justly prohibit innocent passage through his lands. Grotius goes on to explain that it is more easy to take possession of the jurisdiction (imperium) alone over part of the sea than of the right of property, and that it is not contradicted by the law of nations; and he points to a number of instances among the ancients.627 He admits that sovereignty or jurisdiction may be acquired on the sea either in regard to persons or in regard to territory (ratione personarum et ratione territorii),—in regard to persons, as when a fleet, which is a maritime army, is maintained in any part of the sea; in regard to territory, as when those who sail along the coasts may be compelled from the land, as if they were actually on the land.628

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 350 in his mind.629 It remained for Bynkershoek, at the beginning of the next century, to give the doctrine precise expression.

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 351 indirectly assailed by the general argument of Mare Liberum, and directly in the writings of de Castro and Vasquius, from which Grotius had quoted liberally; and now at the beginning of the seventeenth century they were actively contested by other Powers, and in particular by Spain. Hence quite a number of works defending the claims of Venice appeared at this period, the best of which was that of Pacius, who relied on the opinions of numerous early jurists, as Bartolus, Baldus, and Angelus; on immemorial possession and prescription, and stated that the rights of the Venetians consisted in jurisdiction, the imposition of taxes, the prohibition or regulation of navigation, the protection of subjects, and the suppression of pirates.633

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. 352

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 353 work was also dedicated to the king, and in a prefatory address to the three High Admirals—the Duke of Lennox, the Earl of Northampton, and the Earl of Nottingham—he impressed upon them the importance of the “conservacie” of the sea, especially for the fisheries, and urged that strangers should be stayed from scattering and breaking the shoals of fish on the coast of Scotland, a duty on which some of his Majesty’s ships might well be employed.

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 354 Nation.” To Grotius’ statement that it was worse to prohibit promiscuous fishing than to forbid navigation, Welwood justly replied that if the free use of the sea is interfered with for any purpose, it ought to be chiefly for the sake of the fishings, if the fishes become exhausted and scarce, as he says was the condition at that time on the east coast of Scotland, from the “neere and dailie approaching of the busse fishers” scattering and breaking the shoals, so that no fish “worthy of anie paines and travels” could now be found.

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 355 mare proximum were open to all nations indifferently for all uses, but that in the adjacent sea the neighbouring prince had in particular two primary rights besides jurisdiction—namely, the right of navigation and the right of fishing, with the power to impose taxes for either. He maintained that fishing in the sea was for the most part appropriated, and for a clear reason. God had appointed the fishes (herrings) to swarm along the coasts of Britain and the surrounding isles at seasons and places which He had pre-arranged, and for the benefit of the inhabitants: why, then, should the people be hindered from possessing as their own this benefit which God had granted them? He would be unwilling to deny the communication of this natural advantage to other nations, “but only by the same law by which they possess their own, that is by a just price.” Yet, notwithstanding this special blessing which had been granted to the British people, they were despoiled of it and of their just rights, owing to their seas being taken possession of, as it were, by a continual inundation of foreign fishermen, so that the shoals were scattered and the fishery exhausted. Welwood then refers to the alleged old agreement between the Scotch and the Dutch, whereby the latter were not to fish within eighty miles of the coast of Scotland (p. 84), but which they of late totally disregarded, fishing close to the shore, in front of the houses. And while they were permitted to carry away their fish from our seas without paying any tribute, the poor Scottish fishermen had to pay tithes to the Church and the assize-herring to the crown, as well as having their livelihood damaged by the action of the foreigners.

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. 356

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 357 logically, that whatever applies to the whole sea applies to all its parts, even to a diverticulum, and he allows no exception for the sea washing a coast: a conclusion, however, at variance with the general practice of the time. This tract, as already stated, was not published by the author, probably because it was likely to excite still more the ire of James at finding his “rights” again “questioned.”639

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.641 358

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 359 of the capture of Spanish vessels by the Dutch had to be determined. His pleadings and the decisions in these and similar cases were collected and published in 1613, after his death, and they form, according to Wheaton, the earliest reports of judicial decisions on maritime law published in Europe.644

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 360 bounded by the Indies belonging to Spain, while the northern coasts of Britain, having no countries lying against them, were washed by an immense and open sea. He held that the proclamation of 1604, fixing the limits of the chambers in connection with acts of hostilities between the Spaniards and the Hollanders, ought not to prevail against the provisions of the treaty, for the proclamation was subsequent to the treaty, and it would be unjust to allow it to lessen the extent of the territory (sea) over which protection was to be afforded by the terms of the contract. It was not a valid argument, Gentilis continued, to say that the boundaries expressed in the proclamation—that is, the King’s Chambers—had been observed long before by common usage in relation to similar cases.647

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 361 state, and thus the Venetians, as lords of the Adriatic, could impose taxes and penalties on navigation. “In respect of both which titles,” continued the Earl, “the Kings and Princes in general fronting upon the seas, as Spayne, France, Denmark, &c., have upon occasion offered, not only made ordinances and published edicts for the ruling and better ordering of the seas, but also have put them in execution; as well civilly for deciding of contracts, as criminally for transgressions; and have raised taxes and gabells in the seas as on the land to their best benefit, as part of their regalities properly belonging unto them, in sign of their sovereignty.” As to the distance to which this sovereignty extended, he said it was “generally received to be about one hundred miles at the least into the seas,” unless in narrow seas only, in which case the limits are divided by the channel, “except the princes of the one shore have prescribed the whole, as it falleth out in his Majesty’s narrow seas between England and France, where the whole appertayneth to him in right, and so hath been possessed tyme out of mind by his progenitors.”

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 362 was prima facie vested in the crown in virtue of the royal prerogative.649

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 363 Callis, whose well-known lectures on the Statute of Sewers were delivered in 1622.652 Callis argued that in “our Mare Anglicanum” the king had, by the common law of England, four “powers and properties”: sovereignty (imperium regale), legal jurisdiction for the administration of justice, property in the soil under the sea and in the water, and possession and profits both real and personal. He cites in proof a number of authorities, legal and historical, such as were cited later by Selden. The statement in a case decided in the reign of Richard II. (1377-99), that “the sea is within the legiance of the king as of his crown of England”; the charter of the Admiral giving him power in maritime cases throughout the realm of England; the phrases in certain statutes; the right to wreck and royal fishes, and so forth, “proved the King full Lord and owner of the seas, and that the seas be within the realm of England.” The king rules on the sea, he held, “by the laws imperial” as by the Roole d’Oleron and others, but only in the case of shipping and for merchants and mariners; his rights of property in the bed and waters of the sea, and the personal profits (wreck, flotsam, &c.) accruing, were his by the common law. Callis did not deal with fishing, nor attempt to define the bounds of “the seas of England” in which the king had property and jurisdiction.

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 364 Superioritate Maris, as proving that the king’s right of dominion over the sea had been expressly acknowledged by neighbouring nations.

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 365 this Kingdome,” was completed in 1633, but it was not published until 1651, when the question of maritime rights had been again raised between England and the United Provinces.654 It is probable that the king discarded it for Mare Clausum, the incomparably superior treatise by Selden, of the existence of which he was probably made aware as early at least as 1634.

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 366 part of the treatise is taken up with the fisheries, the information being almost wholly derived from previous writers; the usual comparisons are drawn of the flourishing state of the fisheries of Holland and the poor condition of those of England, and the usual statements made as to the benefits that would accrue to the kingdom if the fisheries were developed.

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 367 Progenitors in the seas which encompass these our Realms and Dominions of Great Britain and Ireland.”657

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 368 king and its favourable reception covered the negotiations concerning the completion and publication of Mare Clausum, which were carried on under the auspices of certain eminent personages at Court, and probably of Laud.663 He tells us that the early work was very imperfect, and required to be completely reconstructed, and that he was able to devote some months of leisure to the task. But even Selden’s extraordinary erudition and great industry could not have produced such a book without prolonged labour; and it may be guessed that, observing the trend of the king’s policy and becoming desirous of royal favour, he began to reconstruct his treatise very soon after leaving prison.

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 369 to the Dutch ambassador, and issued a proclamation declaring that Mare Clausum had been published by his express commands, denouncing those who had produced the pirated copy, and banning it from the realm.664 On 26th March, as the following record shows, he brought it before the Privy Council with high eulogy, and for a definite purpose: “His Majesty this day in Council took into consideration a book lately published by John Selden, Esquire, intituled Mare Clausum, seu de Dominio Maris, written by the king’s command, which he had done with great industry, learning and judgment, and hath asserted the right of the Crown of England to the Dominion of the British seas. The King requires one of the said books to be kept in the Council-Chest, another in the Court of Exchequer, and a third in the Court of Admiralty, as faithful and strong evidence of the Dominion of the British seas.”665

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 370 disposing his material and arguments to the best advantage. In learning at least he far surpassed Grotius, and he was not inferior to his illustrious contemporary in ingenuity of reasoning. It was Selden’s misfortune that the cause he championed was moribund, and opposed to the growing spirit of freedom throughout the world. At the same time it must be said that, apart from its extreme doctrines as to the sovereignty of England in the seas, it more correctly represented what are now the admitted principles as to the appropriation of the adjacent sea than did most of the works written on the other side, not excepting even those of Grotius.

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 371 modern, showed that the sea was capable of private dominion, and that such dominion or appropriation was therefore not contrary either to the law of nature or the law of nations. In support of his argument Selden drew freely upon the vast stores of his erudition. He began, like Welwood, by quoting Scriptures to show that the divine law (jus divinum) allowed private dominion in the sea, and that according to the opinion of those learned in the Jewish law, a great part of the sea washing the west coast of the Holy Land had been annexed to the land of Israel by the appointment of God. Among almost all the nations of antiquity, he said, it was the custom to admit private dominion in the sea, and many of them exercised maritime sovereignty.666 Among modern nations, sovereignty was exercised by the Venetians in the Adriatic, by the Genoese in the Ligurian Sea, by the Tuscans and Pisans in the Tyrrhenian Sea, and by the Pope over a part of the sea called Mare Ecclesi?. Then the sovereignty claimed by the Spaniards and Portuguese, and the maritime dominion of the Danes and Norwegians, were notorious. Even the Poles and the Turks possessed sovereignty in the Baltic and the Black Sea respectively.

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 372 of the sea—it is comparable to the free passage on a road across another’s land—and it cannot always be claimed as a right. With respect to the argument that the sea cannot be appropriated because of its physical properties, he points to the example of rivers and springs, which even by Roman law may be appropriated, as well as of lakes. It is not true that the sea has no banks or limits: it is clearly bounded by the shores; some seas, as the Caspian, are completely enclosed, and the Mediterranean is so everywhere except at the Straits of Gibraltar. Elsewhere there are islands, rocks, promontories, by which boundaries may be determined; and limits may be set in the open sea by nautical science, as in the fixing of latitude and longitude; and that was shown by the Bull of Pope Alexander VI., and the hundred-mile limit of the Italians. Selden denies that the sea is inexhaustible from promiscuous use. On the contrary he says a sea may be made worse for him that owns it by reason of other men’s fishing, navigation, and commerce, and less profit accrue from it, as where pearls, corals, and other things of that kind are produced. In such cases the abundance may be diminished by promiscuous use just as readily as in the case of metals and suchlike on land; and the same argument applies to all kinds of fishing.669

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, 373 labours to show that maritime sovereignty had been continuously exercised within them by the ancient Britons, the Romans, and the Anglo-Saxons in succession, and then by the Norman and later kings. He strove to prove by a multitude of citations from records that the kings of England had perpetually enjoyed exclusive dominion and jurisdiction in the surrounding seas as part of their territory, and were hence styled Lords of the Sea; that they had always preserved the right to forbid fishing and even navigation by foreigners within the British seas, or to exact tribute for that liberty; that the rights of the crown in the seas, asserted both by kings and Parliaments, were in conformity with the common law of England, and had been in several important respects acknowledged by other nations. A great deal of the evidence adduced is, as has been said, irrelevant. The long recital of facts connected with the guarding of the sea, the disposition of fleets, the office and jurisdiction of the admirals, the raising of special taxes—as the Danegeld—for defensive purposes or the equipment of ships of war, might have been paralleled in the records of other maritime states, as France or Flanders.

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 374 rights. He concludes his famous book in the following words: “It is certainly true, according to the mass of evidence set forth above, that the very shores or ports of the neighbouring sovereigns on the other side of the sea are the bounds of the maritime dominion of Britain, to the southwards and eastwards; but in the open and vast ocean to the north and west they are to be placed at the farthest extent of the most spacious seas which are possessed by the English, Scots, and Irish.”

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 375 to one Professor Petrus Cun?us for examination and report.672 His report was read on 31st March 1636, and the States of Holland, after hearing it, resolved to look upon Mare Clausum merely as the work of a private person, which did not require any special procedure on their part.673 The States-General, however, took another view of the book, and decided that it should be formally refuted, since they had learned that King Charles would attempt to establish his pretended rights over the so-called four seas by arguments borrowed from Mare Clausum. No doubt at this juncture the thoughts of men in Holland were turned towards Grotius, the one above all others most worthy of the task of refuting Selden. But Grotius was then the Swedish ambassador in France, and did not wish to offend his royal mistress by publicly opposing claims not dissimilar to those she herself made in the Baltic.674 If we can trust Sir Kenelm Digby, Grotius was even pleased to see his works refuted. In a letter from Paris about Selden’s book, which was “much esteemed” there, Digby said Selden was not to expect a reply from Grotius, “who wrote, he says, as a Hollander, and is exceeding glad to see the contrary proved.”675

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, 376 while the author was soothed by the substantial pension of 500 gulden a-year for his pains.676

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 377 controversy broke out between Poland and Denmark as to the sovereignty of the Baltic Sea, which was claimed by each, as it had been shortly before by Sweden, and formed, indeed, one of the causes of the war by Gustavus Adolphus against Germany.679

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.