Diplomacy and the Study of International Relations/Part 2/Chapter 4

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I 2

Illustrations of Controversial Literature : ' The Sovereignty of the Sea '

Two of the best subjects of this class for study are the origins of ' the rule of the war of 1756 ', and its effects, and the origins of the Continental System of Napoleon. But we shall take an example of a still more special kind that of the sovereignty of the British or ' Narrow ' Seas. 1

Readers of Samuel Pepys will remember that there were issues involved in the claim which seemed to him to require patient and diligent research. * I am now full of study about writing something about our making of strangers strike to us at sea ; and so am altogether reading Selden and Grotius, and such other authors to that purpose.' 2 * I spoke to Mr. Falcon- berge to look whether he could, out of Domesday Book, give me any thing concerning the sea, and the dominion thereof ; which he says he will look after.' 3 ' I am upon writing a little treatise to present to the Duke, about our privilege in the seas, as to other nations striking their flag to us.' 4

' The assertion of the sovereignty of the seas ', writes Mr. Gardiner, 5 ' meant nothing less than an assertion that the whole of the English Channel to the shores of France, and of

1 For an account of the subject see Walker, History of the Law of Nations, pp. 278-83; Hall, International Law (6th ed.), pp. 140-51 ; and Oppenheim, International Law (1905), i, pp. 300-8.

2 December 15, 1661. * December 21, 1661. 4 December 31, 1661.

8 History of England, 1603-42, vol. vii (Cabinet ed.), 358.

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the North Sea to the shores of Flanders and Holland, was as completely under the dominion of the King of England as Kent or Yorkshire. To fish in those waters, or even to navigate them without his permission, was an encroachment on his rights.' ' Monstrous ' as the claim was, says Mr. Gardiner, its appeal to the English contempt of foreigners was too strong to be without an echo in the hearts of Englishmen. The prepos- terousness of the claim, when it is viewed in all the length and breadth of its extremest pretensions, may be admitted as freely and denounced as severely as it has been by the most accurate and dispassionate of the historians of the England of the seventeenth century. But a claim which has attached to it a considerable history and a vast body of thought and writing, antecedent, contemporary and subsequent, and which engaged the minds of two 1 of the most erudite authors of that time, by whatsoever motive they were impelled to write, cannot be dismissed as unworthy of serious and even exacting study. The purport of the leading works in the history of

1 Grotius, ' the wondrous child ' and scholar, and Selden, ' the glory of England '. Grotius's Mare Liberum, seu de iure^ quod Batavis competit ad Indicana commercia, Dissertatio was published anonymously in November 1608. It formed the twelfth chapter of his work, De lure Praedae, which was written in 1604-5. The manuscript of this work, written when the author was only twenty-one years of age, was not discovered till 1864. It was published in 1868. Grotius studied under Scaliger at the University of Leyden, which he entered at the age of eleven. At the age of fifteen he took the degree of Doctor of Laws at Orleans, and at the same age accom- panied an embassy to the French Court. He thereupon practised law. As a lawyer he had to argue in favour of the lawfulness of the capture of a Portuguese galleon by the Dutch East India Company. In his written work he contended that the sea cannot be taken into possession through ' occupation ' and cannot be made State property : the sea is free to all : in spite of Portuguese interdictions from eastern waters the Dutch have a right to navigation and commerce with the Indies. Cf. De lure Belli .ac Pacts, ii, c. 3.

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the subject, whether general or national and special, is lucidly, though in brief, presented by M. Ernest Nys in the chapter on ' La Liberte des Mers ' in his work Les Origines du Droit international. * Le droit romain range la mer parmi les choses qui, en vertu du droit naturel, sont communes a tous. Au moyen age, des que le commerce maritime prend de 1'impor- tance, des qu'il devient 1'un des grands facteurs de la richesse publique, apparaissent les preventions des gouvernements sur certaines mers.' x

Material for a study of the subject from the standpoint of the interests and claims of England in the seventeenth century will be found in a recently published work on The Sovereignty of the Sea, 2 and in Gardiner's History. 3 The volume of the Navy Records Society on Law and Custom of the Sea 4 contains supplementary material of historical value.

1 Nys (1894), p. 379. See Walker, History, i, p. 246, for Vasquez, a Spanish official (1509-66) and author (1564) a precursor of Grotius for Mare Liberum ; and pp. 278-83 for a summary of Grotius's book thus entitled. Grotius, c. vii, alludes to Vasquez (Vasquius) as ' decus illud Hispaniae, cuius nee in explorando iure subtilitatem, nee in docendo libertatem umquam desideres '. Vasquez was anticipated by the Spanish theologian and Franciscan monk, Alphonso de Castro (d. in 1558), in opposing the claims of the Genoese and Venetians to prohibit other nations from navigating the gulfs or bays of their respective seas. See Grotius, c. vii ; and Nys, p. 352.

2 Fulton (1911), pp. xxvi +799.

3 Especially vol. iii (Cabinet ed.), pp. 164-5 ( on Grotius); vii, pp. 357-8, viii, p. 79, and 154-5 (on Selden) ; and The History of the Commonwealth and Protectorate, vol. ii (Cabinet ed.), p. 172.

4 Vol. i, 1205-1648, published in 1915 : see pp. 484-90, ' Reglement of the Narrow Seas ', 1634, setting forth the King of England's Sovereignty in the four seas ' the seas commonly called the four English seas ' (see State Papers, Domestic, cclxxix, No. 18), and p. 509 on the salute to the flag the ' Vail '. Article 19 in the Treaty of Breda, 1667, and Article 4 in the Treaty of Westminster, 1674, deal with the Vail. See also, for Tromp's Memorandum, Fulton, Appendix 1, p. 770.

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The subject had much attention from Alberico Gentili, both in professional practice, when he was an advocate of Spanish claims in English prize courts, and in his posthumous work, Advocationis Hispanicae Libri Duo, 1 in which there is a defence of the claims of sovereignty asserted by English kings over the British seas ; and the arguments are noteworthy as coming from a learned Italian, Professor of Civil Law at Oxford, and the supplanter of Grotius as the reputed Founder of International Law. But there are three writers, British by birth, whose works make a special appeal to students of con- temporary British thought on this subject. One of them is a Scotsman, and two are Englishmen.

As early as 1590 William Welwod published The Sea-Law of Scotland a book now extremely rare. 2 To this work there

1 Published in 1615, two years after his death. Gentili's book De lure Belli was published in 1588.

2 There is a copy of the book in the Bodleian Library, Oxford, and in the University Library, Cambridge. There is no copy in the British Museum, none in the Advocates' Library, Edinburgh, and none I have ascertained in the library of any of the Scottish Universities, although Welwod was Professor of Civil Law at St. Andrews. Mr. Fulton (The Sovereignty of the Sea, 352 n.) has come upon a MS. copy in the State Papers, Dom., Jas. I, ccviii, No. xvi, entitled ' The Sea Law of Scotland, shortly gathered and plainly dressed for the ready use of all seafaring men. Dedi- cated to James VI. of Scotland by William Welvod. At Edinborough, A 1590, by Robert Walgrave.' For the particulars that follow I am indebted to Mr. F. Madan, Bodleian Library, Oxford. The title of the work as published is : THE SEA-LAW | of Scotland | Shortly gathered | and plainly dressit for | the reddy use of all sea- | fairing men. | PSAL. 107. ve. 23. 24. 31. | They that go down to the Sea in schips, | and occupie by the great waters. | They see the workes of the Lorde, and | his wonders in the deepe, &c. | Let them therefore confesse before the | Lord his loving kindnes, and his wonder- | ful workes before the sonnes of men. | AT EDINBURGH | IMPRINTED BY | ROBERT Waldegrave | An. Dom. 1590. [In an ornamental border 4^ x 2^.] The size is small 8vo. The author's name is given at the end of the dedicatory epistle, which ends : Be your

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is an allusion, at once modest and critical, in his better-known book, An Abridgement of all Sea-Lawes, which was first pub- lished in I6I3, 1 and again, with slight variations in spelling, in 1636 : z 'I thought good, after the insight and deepe consideration of all the lawes and ordinances aforesaid ' (touching ' every sort of sea-faring persons in every order '),

  • to mend a weake piece of labour, which I intended many

yeares since, intituled the Sea law of Scotland ; and to frame the same in a very harmonicall collection of all sea-lawes.' 3

The Abridgement, as a work, befitting its title, both compre- hensive and concise, treats of many matters that have no direct bearing on the Sovereignty of the Sea. It treats, for example, of the Clerk of the Admiral Court, who ' should have divers Registers, as for congees, saveconducts, pasports, sea-briefes ; as without which no shippe should passe to the sea in time of warre, nor yet to farre voyages in time of peace . . . To conclude, no other Clerk or Writer, may meddle or pen things concerning the sea-faring, without licence of the Admirall.' 4 The book treats of the manner of proceeding in sea-faring causes. 6 It treats of the Master of the ship, to whom * the whole power

M. maist humble subject | M. William Welvod. The number of pages is 40, but there is no printed pagination. Sig. A. 4 leaves, the first blank ; B. 8 leaves ; C. 8 leaves (the last two probably blank : they are wanting in the Bodleian copy).

1 8vo, pp. viii + 77. z izmo, pp. xiv+253-

3 Abridgement (ed. 1636), pp. 18-19. The f"N title i s 'An Abridgement of all Sea-Lawes. Gathered forth of all Writings and Monuments, which are to be found among any people or Nation, upon the coasts of the great Ocean and Mediterranean Sea. And specially ordered and disposed for the use and benefit of all benevolent Sea-farers, within his Majesties Dominions of Great Brittain, Ireland, and the adjacent Isles thereof.' The Abridgement was printed at London.

4 Abridgement, Tit. iii, ' Of the Admirall Clerk ', pp. 45-6, 48. For the Admiralty Court see Law and Custom of the Sea, i, pp. xiv sqq.

6 Tit. v, pp. 52-63-

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and charge of the ship is committed : which power is prescribed, partly by the owner or outreader, and partly by the common law of the sea \ l It treats of ' the Outreaders, or Outriggers, Furnishers, Hyrers, and of the Owners of Ships, and of actions for and against them ', 2 and of ' sundry Partners of Ships, and their discords '. 3 It treats of shipwreck, 4 and of ' things found upon the Sea, or within the floud-marke '. 5 In its concluding chapter 6 it treats of shipwrights ' the forgers and framers of the instrumentall causes of all Sea-faring ', 7 who not only must furnish the materials good and sufficient, but also, ' if the furniture pertain not to them, they must refuse to take from their furnishers bad and unmeet geare and stuffe for the worke. As for example, Aller, Beech trees, and such like brickie and naughty timber for salt-water, or for the seas ; ' 8 and ' last of all, as Shippewrights were of old, so are they also of late, forbidden, under paine of treason, to communi- cate their skill and Art to enemies and barbarous people. Likewise, they are forbidden (as are also other societies of handy- crafts-men and trades-men) to conspire among themselves to enhance their wages, or hire, or receive excessive wages '. 9 They are the author's closing words.

Of the thirty chapters of this book of Welwod only one bears directly on the Sovereignty of the Sea. But the chapter 10 is by much the most substantial and the most distinguished of the book. It gives clear evidence that the author was deeply absorbed in 1613 or earlier in considering a question which, two years later, was to call forth from his pen a work exclusively devoted to the subject. The title of the chapter is ' Of the Community and Propriety of the Seas '. The opening words

1 p. 83. 2 Tit. xv, pp. 124-9. 3 Tit. xvi, pp. 130-5.

4 Tit. xxiii, pp. 161-7. 5 Tit. xxiv, pp. 168-74.

8 Tit. xxx, pp. 248-53. 7 p. 248. 8 p. 250.

9 PP- 2 5 2 ~3- 10 Tit. xxvii, pp. 199-236.

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testify to the influence of the book published by Grotius anonymously in 1609. The author had 'of late scene and perused a very learned, but a subtle Treatise (incerto authore J ) intituled Mare liberum, containing in effect a plaine Proclama- tion of a liberty common for all of all Nations, to fish indiffer- ently on all kinde of Seas, and consequently, a turning of undoubted proprieties to a community '. The discourse of the unknown author was ' covered with the maintenance of a liberty to saile to the Indians '. At the very outset, says Welwod, ' I cannot passe the Authour his ridiculous pretence ... as for a liberty onely to saile on Seas : a thing farre off from all controversie, at least upon the Ocean ; specially, since passage upon land through all Regions Christian, is this day so indifferently permitted to all of all Nations, even to Turkes, lewes, Pagans, not being professed enemies ; and therefore much lesse to be restrained on Sea in all respects. So that I cannot but perswade both my selfe, and other loyall subjects, that the said pretence is but a very pretence, and so much the more to be suspected as a drift against our undoubted right and propriety of fishing on this side the Seas.' 2

Appeal is made, as by Grotius it had been made in liberal array of learning, to the testimony of the Scriptures and of the Roman jurisconsults, and to that of others. There was considerable stretching of the texts. The central argument of Grotius was that there could be no ' occupation ' of the sea. 8 How does Welwod deal with that argument ? ' For

1 Grotius's name was given in the edition of 1616. Both the edition of 1608 and that of 1616 were published at Leyden.

2 Abridgement, pp. 199-2005 201-3.

8 See, e.g. c. v. of Mare Liberum. ' Things that cannot be occupied, or that never have been occupied, cannot be the property of any one, because all property has its origin in occupation. Further, all things that have been so constituted by nature that, although of use to some one person, they suffice, notwithstanding, for the common use of all other persons, are

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answer, first ', he says, ' concerning the nature of the sea, as supposed impossibly occupable or acquirable ; Is this so thought because the sea is not so solid, as is the land, that men may trade thereon, as upon land ? or that it is continually flowing to and fro ? Surely, that lacke of solidity for man his trading thereon by foot, shall not hinder the solid possession of it, farre lesse the occupation and acquiring, if we will give to the sea, that which the Jurisconsults indulgently grant to the land, which also cannot be denied.' l He quotes Paulus to the effect that it is not necessary for him who would ' possesse him- self in any part of the land, to goe about and tread over the same ; but it is sufficient to enter-in upon any thereof, with a mind to possesse all the rest thereof, even to the due marches '.

  • And what ', he asks, ' can stay this to be done on sea, as well

as on land ? And thus farre concerning the solidity.' z

' As for the flowing condition of the sea,' admit that it be liquid, fluid, unstable in the particles thereof, yet in the whole body it is not so, for does it not keep the prescribed bounds strictly enough concerning its chief place and limits ? And here it is fitting to answer * a scoffe cast in by the Author of Mare liberum, concerning the possibility also of marches and limits for the division of the seas : Mundum dividunt (saith the foresaid Authour of Mare liberum) non ullis limitibus, aut natura, aut manu positis, sed imaginaria quadam linea : quod si recipitur, et Geometrae terras, et Astronomi caelum nobis eripient 3 : that is, they divide the world, not by any marches,

to-day and ought for all time to remain in the same condition as when they were first brought forth by nature.' ' Flumen populus occupare potuit, ut inclusum finibus suis, mare non potuit.'

1 pp. 218-19. 2 pp. 219-20.

3 Grotius's words, ch. v, in the concluding clause, according to the text of 1633, are : ' quod si recipitur et dimensio talis ad possidendum valet, iamdudum nobis Geometrae terras, Astronomi etiam caelum eriperent '. See The Freedom of the Seas by Grotius, translated by Magoffin (New York), p- 39-

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put either by nature, or by the hand of man, but by an imaginary or fantastick line : which kinde of doing being embraced, the Geometers may steale away the earth, and the Astronomers the heavens from us.'

True it is that there are not in every part of the sea isles * sen- sible (as Gernsey is to England in the narrow seas) or sands (as the Washes at the West seas of England) nor rockes, or other eminent and visible markes above water, for the designation of the bounds (or laying-out the limits) of the divisible parts thereof ', but has not God, who is both the distributer and first author of the division and distinction of both land and sea, * diversly informed men by the helpes of the Compasse, counting of courses, sounding, and other waies, to finde forth, and to designe finitum in infinito ; so farre as is expedient for the certaine reach and bounds of seas, properly pertaining to any Prince or people ? '

' Which bounds Bartolus hardily extends and allowes for Princes and people at the sea side, an hundreth miles of sea forth from their coasts, at least ; and justly, if they exercise a protection and conservacy so far : and this reach is called by the Doctors, Districtus maris, W territorium. It is true, Baldus esteemeth potestatem, iurisdictionem & districtum, to be all one.

'To conclude then, since Papinian writes in Jinalibus quaestionibus vetera monumenta sequenda esse ; what more evident monuments for our King his right in the narrow seas, then these Isles of Gernsie ? &c. And for the Eastern seas, direct from Scotland, what is more antiently notorious than that covenant twixt Scottish men and Hollanders, concerning the length of their approaching toward Scotland by way of fishing ? ' i

1 Pp. 220-5. See, further, on fishing rights, pp. 233-5, anc ^ Welwod's De Dominio Maris (1615), cap. iii ; also Justice, A General Treatise of the Dominion and Laws of ib Sea (1705), p. 167, quoting ' Mr. Welwood, an ingenious Lawyer of that Nation '.

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A passage follows that the student of persona, and of ' semi- personality and demi-semi-personality ', 1 will detach and appropriate on its own account :

' It rests to touch the other cause naturall, for that other impossibility, which may be the continuall fluxe and instability of the Sea ; in such sort, that it would appear not aye to be one and the selfe same body, but daily changeable. For answer, I must remember that which the Jurisconsult sets down so prettily : Suppose (sayes he) a certain Colledge of Judges, or a Legion of Souldiers, or the particular parts of a Ship, or of a mans body, should so continually and often be changed and altred, that none of that first Colledge or Legion could be found alive, nor yet any part of the Shippe or body could be so certainly demonstrate, that it might be affirmed for the very same that it was at the first ; yet if that Colledge or Legion be in number full, and the ship or man whole and able in all the frame, they shall be accounted and esteemed not to be new, but to be the very same which they were at the beginning : even so, however the sea many waies and hourly changes, in the small parts thereof, by the ordinary rush on land, mixture with other waters, swelling in it selfe, exhalation and backe receipts thereof by raine ; yet since the great body of the Sea most constantly keepes the set place prescribed by the Creator, I see not in this respect neither, wherefore the nature of the Sea should not yeeld to occupation and conquest. And thus farre concerning Mare liberum his last and great conclusion, against all appropriation thereof by people or princes.' 2

To Welwod belongs the twofold distinction of having written the first book printed in Britain on Sea Law, 3 and of

1 Maitland, on ' Moral and Legal Personality ', in the Journal of the Society of Comparative Legislation, vi. (1906), p. 200.

2 Abridgement, pp. 226-8. See Selden, Mare Clausum, lib. i, cap. xxi ' Respondetur Obiectioni de Natura Maris fluxili et perpetuo mutante '.

3 The work of 1 590. The claim is exclusive of mere translations of works into English. There is extant a very early English translation of an old version of the Rolls of Oleron, entitled ' The Rutter of the Sea ', printed

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being the author of the first attack in book-form on the Mare Liberum of Grotius. His place in the history of the controversy has been unduly dwarfed by the much more elaborate, learned and solid, and unquestionably eminent, work of Selden. The rank of his contribution in 1613 to the literature of the subject has been still further depressed by its appearing merely as a chapter, even although it was the most substantial and most distinguished chapter, in a highly composite book on Sea Laws. 1 But Grotius himself was so far impressed with the

in London in 1536. The book is very rare. See Travers Twiss, The Black Book of the Admiralty, i. (1871), p. Ixxii. There was an earlier transla- tion by Robert Copland (London, 1528). Ibid. ; see also i,p. Ixivand p. 89. 1 Alexander Justice, a very industrious compiler, notes, as a defect in Welwod's book in relation to its title, that it ' contains only a few general Maxims and Customs of'different Nations, with so little Method, that it is a very hard matter to distinguish when he speaks of one Nation and when of another ', p. 1 96 of A General Treatise of the Dominion and Laws of the Sea containing, What is most Valuable upon that Subject, in Ancient and Modern Authors, &c. London, 1705 : a work of 660 pages (exclusive of ' An Additional Discourse of the Law of Insurances, and Bottomry ', 40 pp.)> each page containing about six times as many words as a page of Welwod's Abridgement (253 pp.)- Justice, in alluding, p. 196, to the Abridgement, says ' there has lately appear'd an Abridgment of that in a small Octavo, in four sheets and a half, which the Publisher is pleased to intitle, An Abstract of the Sea-Laws, as established in most Kingdoms of Europe : but more particularly in England and Scotland'. In spite of his not too complimentary allusion to Welwod's ' little Book ', Justice was of opinion that the author in chapter xxvii ' very plainly and very judiciously confutes the Arguments which the ingenious Hugo Grotius proposes in his Book . . . ; and to him an excellent Author Mr. Selden freely insinuates himself to have been oblig'd for some of the Arguments which he has made use of in his Answer to the aforesaid Book '. Much in Justice's book is merely a reproduction of parts of Selden's Mare Clausum. On the literary origins of his work see Twiss, Black Book of the Admiralty, iv. pp. Iv-viii, and Ixiv-xv. Sir Travers Twiss says the book is ' very rare '. For an allusion to Welwod, see Black Book, iv. lix.

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force of Welwod's attack as to prepare a defence, 1 in which he deals more particularly with the question of fishery rights, which was also Welwod's particular concern, and denies, in a more absolute sense than in his earlier work or in his later, a title to sovereignty or property in any part whatsoever of the sea. The Defensio was not published, probably because it was thought to be unwise to add to the resentment felt by James I at any questioning of his rights. 2 A sympathetic appraiser of Grotius has recently described it as ' a rather disappointing and unconvincing answer ' 3 to Welwod.

In 1615, two years after the publication of the Abridgement, Welwod published a Latin work on the Sovereignty of the Sea. 4 This work, De Dominio Maris, consisting of about seven thousand words, is described by him as being brief 5 and methodical. It is certainly well planned, and not too narrowly, for its immediate object that of opposing the freedom wrongfully usurped by foreigners of fishing in the British

1 Dejensio Capitis Quinti Marts Liberi Oppugnati a Gulielmo Welwodo luris Civilis Projessore, Capite XXVII eius Libri Scripti Anglica Sermone cui Titulum Fecit Compendium Legum Maritimarum. The manuscript was discovered at the same time as the De lure Praedae, and published in 1 872. See Magoffin, The Freedom of the Seas (1916), p. ix (Introductory Note by James Brown Scott); Vreeland, Hugo Grotius (1917), pp. 56-7; and Fulton (1911), pp. 356-7.

2 Fulton, pp. 152-3 and 346-7, and references in foot-notes.

3 Vreeland, p. 57.

4 De Dominio Marts, luribusque ad Dominium praecipue spectantibus Assertio brevis et methodica. Cosmopoli, 16. Calend. lanuar. 1615. 8vo, pp. vi+28.

5 ' Lectori Aequiori. Mirabere forte tantulum de re tanta compendium : sed hunc agendi modum, ut mihi ingenitum, sic tibi veritatiq ; consultiorem putavi : Tibi quidem brevitate, sed perspicua : veritati vero simplicitate genuina, qua quum amicitur, turn & armatur & ornatur. Earn itaque ad eum modum tibi exhibeo, boni consule ac bene vale.'

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Seas. 1 It expands and makes more systematic the treatment of ' propriety of the seas ' in the twenty-seventh chapter of the Abridgement. The theses which Welwod sets out to sustain are expressed by him thus in the titles to the four chapters of his book : (i) Dominia esse in Mari, eaque distincta ; (2) lus navigandi in Mari non esse omnimodo liberum ; (3) lus piscandi in Mari esse maxima parte appropriatum ; (4) Mare esse vectigale. Selden quoted from the third chapter the more pertinent 2 of the words of Welwod, as ' lurisconsultus Scotus ', about the quarrels between the Scots and the Dutch : strangers, Welwod had written in the Epistle Dedicatory of his Abridgement to the Lords Admirals, required to be * stayed from scarring, scattring, and breaking the shoals of our fishes ; namely, upon our coasts of Scotland '.

' The two English writers of distinction in the controversies of the seventeenth century regarding * the Sovereignty of the Sea ' are Selden and, in less degree, Sir John Boroughs. The controversy touching the Sovereignty, Superiority or Dominion of the English or British Seas was much more than a writers' controversy. It raised substantial and highly practical interests, such as fishing rights and rights of taking tolls ; in the fourteenth and fifteenth centuries and later 3 the claim was intimately

1 See the words of the dedication of the book to Anne, wife of James I : ' contra extraneos piscandi immunitatem in Mari Britannico iniuria usur- pantes '. The Queen had in 1613 unsuccessfully tried to get a royal patent empowering her ' to graunt lycense and to compound with these strangers for an yearly revenue to be paid unto her Majestic for theis fishings '. State Papers, Dom., Ixxvii. 79, quoted by Fulton, p. 161.

2 ' Non possum practcrire . . . partimque batavorum (Batavorum in Selden) audacia sic (sic omitted by Selden) evanuerunt.' De Dominio Marts, p. 16; Mare Clausum, lib. ii, c. xxxi. (' De Regis Magnae Britanniae dominio in mari Scotico, Orientali maxime & Septentrionali '), pp. 546-7 of ed. of 1636 (12 mo).

3 Complaints regarding piracy made part of the ground for the levy of

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connected with the important duty of repressing piracy ; and the ceremony of striking the flag and lowering the topsail, 1 which was intended as a symbol of acknowledgement of a sovereign power and jurisdiction, and is the mark by which the claim to dominion is best known to the general reader of English history, gave rise to critical passages in writings, in diplomacy and in the conduct of war. The controversy was also, however, a * Battle of Books ', 2 and, in spite of the fact that the future was in fact and result to be with Grotius in respect of the leading issues at stake, there can be no doubt that the honours of learning lay with Selden. But Selden's book Mare Clausum seu de Dominio Marts Libri Duo must not be viewed merely as an answer to Grotius. Mare Liberum is a short work when compared with Mare Clausum. The work of Grotius was written to sustain a definite case, although it must be conceded that its sweep was wide in principles, in citation of authorities, and in illustrations, for its purpose. The text of Mare Liberum contains about 14,000 words. The text of Mare Clausum contains about 90,000 words. The whole of the first book, 3 consisting of twenty-six chapters, is given

Ship-money by Charles I. Examples are found for 1633 in Strafford's Letters and Dispatches (1740), e.g. i. 106-7 (with Wentworth's statement of the King's rights in St. George's Channel). For the first writ of ship-money and the plea of piracy, see Rushworth's Collections, ii. 257, and for a general call to the dominion of the sea, ii. 297-8 Coventry, Lord Keeper of the Great Seal, in delivering his charge, June 17, 1635. The dominion of the sea is at the very heart of Ship-money Case, from the King's standpoint. See Rushworth, ii. 322 ; 545, 552 (the Attorney- General's citation of ' that Learned Book of Mr. Selden '), and extracts from the speeches in Ship-money Case given by Gardiner, Constitutional Documents of the Puritan Revolution.

1 ' Vaile Bonnet in acknowlegement of this Superioritie.' Boroughs, p. 62.

2 The term is that of M. Nys.

3 ' Libro Primo, Mare, ex lure Naturae seu Gentium, omnium hominum 2224 K

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up to an exposition of principles, the citation and examination of authorities, 1 and an exposition of the maritime practice of other peoples than the British, peoples Eastern and Western, and at all ages in the world's history down to the author's own day. The second book, 2 consisting of thirty-two chapters, states and enforces the case for Britain by an examination of facts, claims, and records from Roman times down to the time when Selden was called upon by Charles I to proceed with the completion of a work which he had already presented to James I in i6i8. 3 He is generous in his appreciation of the learning and distinction of Grotius, 4 an author of vast erudition and wide

non esse Commune, sed Dominii privati seu Proprietatis capax, pariter ac Tellurem, esse demonstrator.'

1 e.g. cap. xxiv : Ad Obiectionem ex lurisconsultis Veteribus depromptam Responsio : and cap. xxvi : Recentiorum lurisconsultorum sententiis, qua adversantur, maxime Fernandi Vasquii & Hugonis Grotii, respondetur.

2 Secundo, Serenissimum Magnae Britanniae Regent Marts circumflui, ut individuae atque perpetuae Imperil Britannici appendicis, Dominum esse, asseritur.

3 Selden, Vindiciae Marts Clausi, in Selden's Works (1776), ii, p. 1425 ; Twiss, Black Book of the Admiralty, i. xiii. One of the reasons assigned for the withholding of publication at that time is the apprehension of James, that there were passages in the work which might offend the King of Denmark from whom he was endeavouring to obtain a loan of money. This was the explanation given by Selden in 1652 when a Dutch lawyer, Graswinckel, a cousin of Grotius, taunted him with having written it to get release from prison. Graswinckel was selected by the States-General to prepare a reply to Selden's Mare Clausttm which made a considerable impression on the Dutch. The reply was not published, the States apparently accepting the advice tendered, that the freedom of the sea must be protected with the sword, and not merely with the pen. Vreeland, Grotius, p. 48, citing Fruin's VerspreideGescbrijten, iii,p. 408. Graswinckel published in 1653 a work against Welwod.

4 In lib. I, c. ii, in alluding to the more recent writers who have opposed the dominion of the sea, Selden writes of Vasquius and Grotius as ' claris- simi quidem utrique, sed cruditionc et nitorc ingcnii impares '. Of Grotius :

' The Sovereignty of the Sea ' 131

range of mind, whose great work, De lure Belli ac Pads, was published eight years after the first draft of Mare Clausum had been ready, and ten years before the publication of the completed work in 1635, with a dedication to Charles I. Selden's tribute is an honourable one, coming, as it does, from the author of one of the most learned works written by Englishmen, and coming from him at a critical point in a battle of books, of principles, and of the claims of rival peoples.

No exposition of Mare Clausum is necessary here. The book is not rare. It has been translated into English. 1 Its substance has been presented in convenient compass by more than one writer. 2

The work of the other English writer of distinction on this subject in the reign of Charles I was finished in 1633 two years before Selden's book appeared ; but it was not published till eighteen years later in 1651, eight years after the author's death. The original version was in Latin ; 3 the book published

' Batavus, Fiscalis olim advocatus Hollandiae, Zelandiae, & Westfrisiae, aliisque honoribus patriis meretissimo auctus, vir acuminis & omnigenae doctrinae praestantia incomparabilis.' Again, in c. xxvi ' Virum ingentis eruditionis, & rerum humanarum divinarumque scientissimum, Hugonem Grotium 5 cuius nomen passim in ore hominum arripitur ut natural! & pcrpetuae Maris communione mire patrocinantis.' Mare Clausum has a number of quotations from Grotius's De lure Belli ac Pads as well as from Mare Liberurn. Before 1635 the reputation of Grotius was high and far- reaching.

1 By Marchamont Needham, 1652. On April 15, 1636, the King in Council required that ' no person whatsoever, do, or shall import, publish, set to sale ' any copies of a ' foreign edition, either in Latin or English ', that had been issued, ' except only such as have, or shall be licensed by the Laws and Customs of this Realm". Rushworth, ii, pp. 320, 321. This action was called for inasmuch as ' some have caused the said book to be printed in some place beyond the seas ' in Holland, where three editions were published within a year of its first publication in England.

2 See, especially, Fulton, pp. 369-74.

3 The title is Dominium Maris Britannici assertum ex Archiuis Historiis

K 2

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is in English ' The Soveraignty of the British Seas. Proved by Records, History, and the Municipall Lawes of this King- dome. Written in the yeare 1633. By that Learned Knight, Sr John Boroughs, Keeper of the Records in the Tower of London.' 1 The work, we are told in the words addressed ' To the Reader ', was written * at the request of a great Person ' Charles I, to whom the original work in Latin was dedicated,

' who desir'd to understand the true State of the Question, concerning the Dominion of the British Seas, as well what Histories as our own Records would afford. And here 'tis done in a little roome ; for the Author was able to speake fully, and briefly both at once. Some others have written of the same Subject ; and if wee thought any spake more, or so much, in so short compasse, wee should forbeare the publication of this. Wee are borne in an Island, and cannot goe out of it, without asking leave of the Sea and Winde ; and not to know what Right we have to that Water which divides us from all the World, is something ill becoming such as can read, and may know for reading.'

Boroughs's Latin work was written when the question of the dominion of the British Sea raised a critical problem of a constitutional character touching the royal prerogative in England, as well as a claim of an international character touching the rights of the Crown abroad. For the latter purpose, at least, its place was deservedly taken by the much

et Municipalibus Regni Legibus per D. lohanncm de Burgo, 1633. The original Latin copy is in the Harleian MSS., 4314, Brit. Mus. See Fulton, p. 365, f.n., where reference is made to a ' fine copy in English ', dated 1637, in the State Papers, Dom., ccclxxvi. 68.

1 London, Printed for Humphrey Moseley, and are to be sold at his Shop at the Princes Armes in St. Pauls Church yard. 1651. The book is izmo, pp. (x+) 165 about seventy words to the page. It was reprinted in Gerard de Malynes' Consuctudo vel Lex Mercatoria, or the Antient Law Merchant (1686 : a work first published in 1622).

'The Sovereignty of the Sea' 133

more substantial, more learned and more thorough work of Selden. The book, in its English version, contains only about eleven thousand words, being thus shorter than the Mare Liberum of Grotius, and only about one-eighth of the length of Selden's book. 1 It presents, however, a considerable amount of information in its small space. It gives evidence of consider- able and careful research among records, as becomes the Keeper of the Records in the Tower of London. It is written in a clear and pleasing style. It has zeal for the well-being and greatness of England, and is jealous of her honour. When the book was published in 1651 the political setting in England had been profoundly disturbed, but the question of rights and of power at sea against the Dutch, in particular, was urgent and of the highest importance, transcending both in content and in reasoning the technical constructions and the legal and lawyerly lore to which the claim to the dominion of the narrow seas had to make appeal. The claim was not one to be pressed in all circumstances as though it were a right paramount. The instructions issued to Blake in January 1650 had contained the following words :

  • And whereas the dominion of these seas hath anciently and

time out of mind undoubtedly belonged to this nation, and that the ships of all other nations in acknowledgment of that domi- nion have used to take down their flags upon sight of the admiral of England, and not to bear it in his presence ; you are, as much as in you lyeth, and as you find yourself and the fleet of strength and ability, to do your endeavours to preserve the dominion of the sea, and to cause the ships of all other nations to strike their flags, and not to bear them up in your presence, and to compel such as are refractory therein, by seizing their ships, and sending them in, to be punished according to the laws

1 ' Be not startled to see so great a subject handled in so small a Volume. When you have read but a little of this little, you'll thinke the Authour was tender of your trouble but not of his own.' ' To the Reader.'

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of the sea, unless they submit, and yield such obedience, and make such repair, as you shall approve of. But yet notwith- standing, albeit the said dominion of the sea be so ancient and indubitable, and concerneth the honour and reputation of this nation to uphold the same, we should not for all that, that you should in this expedition engage the fleet in any peril or hazard for that particular ; so that if it should in this expedition happen, you should be opposed therein by such a considerable force, as the same might prove dangerous, then to forbear the pressing thereof, and take notice, who they were that did it not, that at some better opportunity they may be brought hereafter thereunto.' *

But the claim to the dominion of the sea was very far from being a spent one, 2 and Boroughs's little book deservedly ranks

1 Thurloe, State Papers, i. 135.

2 Two interesting pamphlets bearing on the foundations of the claim and on its vicissitudes in the reign of Charles II are reprinted in the Harleian Miscellany, vol. vii (1810) The Dutch Usurpation . . . and A Justification of the Present War against the United Netherlands, Wherein . . . the Dominion of the Sea [is] explained, and bis Majesty's Rights thereunto asserted. Both were printed first in 1672. For a valuable enunciation of modern principles touching the general question of the freedom of the sea and maritime rights, the historical student should read the judgement of Sir William Scott, Lord Stowell, in the case of Le Louis, December 15, 1817: Dodson, Reports of Cases argued and determined in the High Court oj Admiralty, ii. (1828), pp. 210-64 (Judgment, pp. 236-64). Dodson, for the appellant in the case, said of ' the empire of the seas, in the modern acceptation of the term ', that it does not imply any exclusive legal privi- leges, and that the only meaning that can justly be assigned to it is, that in time of war the nation possessing it has a perfect mastery over the fleets of the enemy, and can secure to itself all the important advantages arising from such superiority, but that in time of peace it confers no peculiar privilege. In the course of his argument he cited Vasquius, Welwod, and Vattel as authorities. On the subject of the dominion of the sea in the limited and technical sense which Selden, Boroughs, and others contended for in the seventeenth century, Lord Stowell touched to the extent of the following words : ' It is true, that wild claims . . . have been occasionally set up by nations, particularly those of Spain and Portugal, in the East

'The Sovereignty of the Sea' 135

high in the history of the literature of the subject in England. We must not urge too strongly the canons of historical evidence against the assiduous attempt to buttress the claim by contin- uous illustration and estimate of rights of sovereignty over the British seas from the days of the Britons before the coming of the Romans, 1 down through the Roman occupation 2 to the solicitude of Edgar 3 and Canute 4 and other kings for the defence of the seas, ' untill the conquest made by William Duke of Normandie, in whose raign, and for many discents after him, the Soveraigntie of the said Seas was so far from being evicted that it was never so much as questioned by any Nation until the time of Edward the first, about the year 1299 and the six and twentieth of his raigne '. 5 We must not look for

and West Indian Seas : but these are claims of a nature quite foreign to the present question, being claims not of a general right of visitation and search upon the high seas unappropriated, but extravagant claims to the appropriation of particular seas, founded upon some grants of a pretended authority, or upon some ancient exclusive usurpation. Upon a prin- ciple much more just in itself and more temperately applied, maritime States have claimed a right of visitation and inquiry within those parts of the ocean adjoining to their shores, which the common courtesy of nations has for their common convenience allowed to be considered as parts of their dominions for various domestic purposes, and particularly for fiscal or defensive regulations, more immediately affecting their rights and welfare. Such are our hovering laws, which within certain limited distances more or less moderately assigned, subject foreign vessels to such examination. This has nothing in common with a right of visitation and search upon the unappropriated parts of the ocean.' Op. cit., pp. 245-6. See, further, pp. 253-4 for the principle, that a nation has a right to enforce its system of navigation only so far as it does not interfere with the rights of others. See also W. E. Hall and L. Oppenheim, cited above, p. 116.

1 The Soveraignty oj the British Seas, pp. 8-18.

2 pp. 18-19: the Romans had 'made themselves possessorie Lords of the Island '.

3 pp. 20-2. * p. 23. 5 pp. 24-5.

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exactitude on the tangled subject of the Laws of Oleron l and the sea-law of the Middle Ages. But, at least, the author is clear in his own mind regarding the content of the claim to the lordship of the ' seas environing England '. 2 The kings of England have successively had the ' Soveraigne guarcj of the Seas ', and definite and substantial rights and powers have been attached to that sovereignty. They * have imposed taxes and tributes upon all ships passing 3 and fishing therein '. They ' have stopped, and opened the passage thereof, to strangers as they saw cause '. ' All wrecks and Royall fishes therein found are originally due and doe belong unto them.' 4 The author treats concisely of the rights and incidents involved in

1 The Soveraignty of the British Seas, pp. 48-50 : ' the famous Lawes of Olleron (which after the Rhodian Lawes were antinquated and absolete) have now well near 500 yeares been received by all the Christian world for regulating Sea affaires, and deciding Maritime controversies.' For mediaeval sea laws, their origins, descent, and connexions, the English work of authority is Travers Twiss, The Black Book of the Admiralty (Rolls Series), 4 vols. (1871-6). In the Introduction to the second volume there is a sketch of the ' Growth of Modern Maritime Law '. A reading of this may with advantage be preceded by the reading of the Introduction to the third volume, treating especially of the Laws of Oleron and of the Consulate of the Sea. The author's object in the fourth volume was to bring together the oldest texts of all the more important collections of mediaeval sea laws, that ' have come into use since the Rhodian Laws have ceased to be the governing Sea Laws of the civilised world '. He draws attention to ' two simple circumstances ' that have proved hard obstacles to inquirers into the authenticity of any body of mediaeval sea laws : ' (i) that the text of the laws has been modernised from time to time to make them more intelligible to successive generations ; (2) that additions have been made to the collective body of laws from time to time to increase the usefulness of the collection.' ' The Judgments of Oleron supply a striking instance of the process of enlargement, to which an ancient collection of laws may be subject in the course of time.' Op. cit., iv, p. cxi. 2 p. 54.

3 The word is printed ' passign ', p. 56. There are many misprints in the book, especially in the extracts in French. * pp. 56-7.

' The Sovereignty of the Sea ' 1 37

this sovereignty^ of the vail ; l of tribute ; 2 of licences to foreigners to fish ; 3 and of rules to the like effect enjoined by other States ; 4 of the King's opening and stopping the passage of his seas ; 5 and of wrecks and of ' royall fishes taken in our seas ' as due by prerogative and sovereignty to the kings of England only or * unto such unto whom by special charters they have granted the same '. 6 He is contending, not for a technical claim merely, but for the practical interests of Englishmen against the pretensions and interests of the foreigner, and especially of the Dutch. * Inestimable ' are the ' riches and commodities of the British Seas.' 7 Why not protect and conserve them for those to whom they should bring wealth and prosperity ? In September not many years since ' upon the Coast of Devonshire neare Minigall ' were not 500 ton of fish taken in one day ?

' And about the same time three thousand pound worth of fish in one day were taken at St. Ives in Cornewall by small boates, and other poore provisions. Our five-men-boats, and cobles adventuring in a calme to launch out amongst the Holland Busses not far from Robin-hoods Bay returned to Wkitby full fraught with herrings, and reported that they saw some of those Busses take 10. 20. 24. lasts at a draught of herrings and returned into their owne Country with 40. 50. and 100. lasts of herrings in one Busse.' 8 * Our Fleete of

1 pp. 62-4 : ' all strangers even at this day Vaile Bonnet in acknowlege- ment of this Superioritie ' in ' the Narrow Seas ', p. 62.

2 PP- 64-73-

3 PP' 73 -82. See ' Report of the Admiralty to Charles I as to the employ- ment of the Ship-money Fleet in wafting and securing Foreign Merchants passing through His Majesty's Seas, and in protecting Foreign Fishermen who accept the King's License'. State Papers, Dom., Charles I, vol. cccxiii, No. 24, February 5, 1635-1636. Fulton, Appendix i.

4 pp. 82-4. 6 pp. 84-9. 6 pp. 91-106.

7 p. 1 08 : the heading of a section of the book.

8 pp. 112-14.

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colliers not many yeares since returning from Newcastle laden with coales about the well, neare Flanborough head, and Scarborough met with such multitudes of Cod, Ling, and herring, that one amongst the rest with certaine ship- hookes, and other like Instruments drew up as much cod, and Ling in a little space of time, as were sold well neare for as much as her whole lading of coale. And many hundred of ships might have bin there laden in two daies and two nights.' *

This ' wonderful affluence, and abundance of fish swarming in our seas ' 2 the Hollanders by their fishing have known how to turn to good account. Thereby they made increase. They have increased in shipping ; 3 in mariners ; 4 in trade ; 5 in

1 The Soveraignty of the British Seas, pp. 114-15. 2 p. 115.

3 pp. 117-23. For the herring season alone, ' they have 1600. Busses at the least, all of them fishing onely upon our coasts, from Bougbonnesse in Scotland to the mouth of Thames. And every one of these maketh work for three other shippes that attend her ; the one to bring in salt from forraigne parts, another to carry the sayd salt, and cask to the busses, and to bring back their herrings, and the third to transport the sayd fish into forraigne countries. So that the totall number of ships and busses plying the herring Faire is 6400. whereby every busse, one with another, imployeth 40. men, Mariners and Fishers within her own hold, and the rest tenne men a peece, which amounteth to 112000. Fishers and Marriners. All which maintaine double, if not treble so many Tradesmen, women and children a land. Moreover they have 400. other vessels at least, that take Herring at Yarmouth, and there sell them for ready mony.' They have a total of ' at least 10000. saile, being more then are in England, France, Spaine, Portugall, Italy, Denmarke, Poland, Sweden, and Russia. And to this number they adde every day ; although their country it selfe affords them neither materialls, or victual!, nor merchandize to bee accounted of towards their setting forth.' pp. 1 1 9-22.

4 PP- *4-5-

6 pp. 125-9: e.g. 'From the Southern parts, as France, Spaine, and Portugall for our herrings they returne Oyles, Wines, Pruynes, Honey, Woolles &c. with store of coine in specie' p. 126.

' The Sovereignty of the Sea' 139

towns and forts ; 1 in power abroad ; 2 in public revenue ; 3 in private wealth 4 diffused throughout the whole community ; and in all manner of provisions 5 ' as well for life, as in corne, Beefe, Muttons, Hides, and Cloathes, as for luxurie in wines silkes, and spices, and for defence as in pitch, tarr, Cordage, timber. All which they have not only in competent proportion for their use, but are likewise able from their severall Magazines to supply their neighbour countries.'

Why not, then, assert our rights and draw profit from our own resources ? And why not take lessons from the industrious,

1 pp. 129-31 : 'Amsterdam, Leyden, and Midleburgb having bin lately twice enlarged ' and their streets and buildings improved and ' so faire, and orderly set forth that for beauty, & strength they may compare with any other in the world, upon which they bestow infinite summes of money, all originally flowing from the bountie of the sea, from whence by their labour and industry they derive the beginning of all that wealth and greatnesse '. pp. 130-1.

2 pp. 132-3: Not only can they repel foreign invasions, 'as lately in the warre betweene them, and Spaine', but they 'have likewise stretched their power into the East, and West Indies in many places whereof they are Lords of the sea coasts, and have likewise fortified upon the maine, where the Kings, and people are at their devotion. And more then this all neigh- bour Princes in their differences by reason of this their power at Sea, are glad to have them of their partie. So that next to the English they are now become the most redoubted Nation at Sea of any other whatsoever.'

3 pp. 134-6: 'Above thirtie yeares since, over and above the customes of other Merchandise excises, Licences, Wastage, and Lastage, there was payed to the State for custome of herring and other salt fish above 300000 pound in one yeare besides the tenth fish, and Caske payed for wastage, which cometh at the least to as much more among the Hollanders onely, whereunto the tenth of other Nations being added it amounteth to a far greater summe. Wee are likewise to know that great part of their fish is sold in other Countries for ready money for which they commonly export of the finest gold, and silver, and coming home recoyne it of a baser allay under their owne stampe, which is not a small meanes to augment their publique treasure.' 4 pp. 136-42. 5 pp. 142-3-

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skilful, and well-organized Hollanders ? 1 Reflect that by erecting two hundred and fifty busses of ' reasonable strength and bignesse' employment would be made for 1,000 ships, and for at least 10,000 fishermen and mariners, ' and consequently for as many tradesmen, and labourers at land '. The herrings taken by the busses would afford his Majesty ' 200,000 1. yearely custome outward, and for commodities returned inward 30000 1. and above '. 2

  • For conclusion seeing by that which hath formerly bin

declared it evidently appeareth that the Kings of England by immemorable prescription, continuall usage, and posses- sion, the acknowledgment of all our neighbour States and the municipall lawes of the Kingdome have ever held the Soveraigne Lordship of the Seas of England, and that unto his Majestic, by reason of his Soveraigntie the supreame command and Jurisdiction over the passage, and fishing in the same rightfully appertaineth, considering also the naturall scite of those our Seas that interpose themselves between the great Northerns commerce of that of the whole world, and that of the East, West, and Southerns Clymates, and withall the infinite commodities that by fishing in the same is daily made. It cannot be doubted but his Majesty by meanes of his owne excellent wisdome, and vertue, and by the Industry of his faithfull Subjects and people may easily without Injustice to any Prince or person whatsoever be made the greatest Monarch for Command and Wealth, and his people the most opulent and flourishing Nation of any other in the world. And this the rather, for that his Majesty is now absolute Commander of the Brittish Isle, and hath also enlarged his Dominions over a great part of the Westerne Indies ; by meanes of which extent of Empire (crossing in a manner the whole Ocean) the trade, and persons of all Nations (moving from one part of the World to the other) must, of necessitie, first, or last, come within compasse of his power, and jurisdiction. 3

1 The Soveraignty of the British Seas, pp. 147-56. * pp. 146-7.

3 Compare Bacon, in his Essay ' Of the true greatness of Kingdoms and Estates ' : ' Surely, at this day, with us of Europe, the vantage of strength

' The Sovereignty of the Sea ' 141

' And therefore the Soveraignty of our Seas being the most precious Jewell of his Maiesties Crowne, and (next under God) the principall meanes of our Wealth and Safetie, all true English hearts and hands are bound by all possible meanes and diligence to preserve and maintaine the same, even with the uttermost hazzard of their lives, their goods, and fortunes.' l

(which is one of the principal dowries of this kingdom of Great Britain) is great ; both because most of the kingdoms of Europe are not merely inland, but girt with the sea most part of their compass, and because the wealth of both Indies seems, in great part, but an accessory to the command of the seas.' 1 pp. 160-5.