John Selden, Of the Dominion, or, Ownership of the Sea

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1 1 John Selden, Of the Dominion, or, Ownership of the Sea [excerpted from the Marchamont Nedham translation of 1652, pp. 3-5, 8-11, ] The Author s Preface There are two propositions here... ; the one, that the sea, by the Law of Nature or Nations, is not common to all men, but capable of private dominion or property as well as the land; the other, that the King of Great Britain is lord of the sea flowing about, as an inseparable and perpetual appendant of the British Empire.... Mare Clausum is the sea possessed in a private matter, or so secluded both by right and occupation, that it ceases to be common; that is, being claimed by right of subjection. Upon this ground it was that... the territories assigned... in the colonies at this day carried into America as in that prodigious gift of Pope Alexander VI in the former age, which is bounded by an imaginary line from the Arctic to the Antarctic Pole, are closed by lines of longitude and latitude drawn through the degrees of heaven, that they may be possessed in a private manner.... So the sea flowing about is shut or closed within the compass of the royal patrimony of the British Empire. Other passages there are everywhere of the same kind. But I enlarge myself too much in a thing so manifest. Therefore I forbear to light a candle to the sun. Book 1, Chapter 2: What occurrences seem to oppose the dominion of the sea, and what arguments are wont to be made against it The Arguments usually brought against the dominion of the sea are of three sorts. Some are drawn from freedom of commerce, passage, and travel; others from the nature of the sea; and a third sort from the writings and testimonies of learned men. And as to what concerns the freedom of commerce or traffic, and travel, this some men affirm to be so natural, that they say it can nowhere be abolished by any law or custom; yea, and that by the law of nations it is unjust to deny merchants or strangers the benefit of port, provisions, commerce, and navigation; adding moreover, that wars have been justly commenced upon denial of port, trade, and commerce; And for proof, they produce the example... of the Spaniard against those of the West Indies; for that the expedition of Spain against the Americans is pretended by very learned men to be upon a just ground, because they denied them a freedom of commerce within their shores and ports.... Now,

2 2 if such a propriety or dominion of the sea were admitted, that men might be forbidden the liberty of navigation and ports, at the will of any proprietor, then, say they, it would be an infringement of that law of commerce and travel (by them styled the law of nature) which they would not have to be endured. Touching the second sort of objections drawn from the nature of the sea itself, it is commonly alleged; that the sea is altered and shifted every moment, and the state of it, through a continued Succession of new waters, always so uncertain, and remains so little the same in all things... that it is impossible it should ever be retained in the possession of any one particular. Moreover, they say the nature of possession consists chiefly in a separation or distinction of limits and bounds, but no such materials or Instruments can possibly be found in the sea, as that the law for regulation of bounds, which hath a principal place in all controversies about dominion or ownership may be grounded thereupon.... They are pleased likewise to insinuate what a world of sea room there is, that all nations may have sufficient for watering, fishing, and navigation: And therefore that the peculiar dominion thereof is by no means to be appropriated unto any.... Of our modern Lawyers, those that have appeared most forward in opposing a Right of Dominion over the Sea are only two, both very eminent men, but of unequal learning and elegance of wit; by the name Fernandus Vasquius [Fernando Vázquez de Menchaca, ] the Spaniard, and Hugo Grotius [Huig de Groot, ] the Hollander: the former an honourable counsellor to King Philip III of Spain in his high Court of Exchequer. The latter was heretofore Advocate Fiscal of Holland, Zeeland, and West-Friesland, and most deservedly adorned with diverse other honours in his own country; a man of an acute judgment, and for his excellence in all kinds of learning incomparable.... But in the year MDCIX (it being the year after that large treaty held at the Hague betwixt the Spaniard and the Hollander, about freedom of trade and navigation to the East-Indies) there was published that book of Hugo Grotius, entitled MARE LIBERUM, or a discourse concerning that Right which the Hollanders have to Trade in the Indies. Wherein he endeavours first to prove that, by the law of nations, there ought to be such a freedom of navigation for all men whatsoever, which way they please, so that they cannot, without injury, be molested at sea. Next, that the Atlantic and Southern Ocean, or the right of navigation to the Indies, is not, nor indeed can be, any peculiar of the Portuguese: forasmuch as the sea (says he, according to the laws and

3 3 reasons already mentioned) can be in no wise become the property of any one; because nature not only permits, but requires it should be common. Several other passages he hath about this matter, in his excellent book De Jure Belli & Pacis.... Chapter 26: An answer to the opinions of modern lawyers, so far as they oppose a dominion of the sea; especially of... Huge Grotius.... As to what hath been formerly alleged..., it is grounded upon such arguments as are either manifestly false, or impertinent. For, what is this to the purpose? That the sea, from the beginning of the world to this present day, is, and ever hath been in common, without the least alteration, as tis generally known. Whereas the quite contrary is most certainly known to those, who have had any insight into the received laws and customs of ages and nations. That is to say, that by most approved law and custom, some seas have passed into the dominion and patrimony, both of princes and private persons; as is clearly made manifest out of what hath been already shown you. Moreover also he would have prescription to cease betwixt foreigners in relation to each other, and not to take place in the law of nations,... so that by his opinion, prescription should be of no force between those (as between two supreme states or princes) who are not indifferently subject to the civil law, which admits prescription; than which not anything can be said or imagined more absurd. Almost all the principal points of the intervenient law of nations, being established by long consent of persons using them, do depend upon prescription or ancient custom.... As for those other things mentioned... concerning... the inexhaustible abundance of the sea (whereby he makes a difference betwixt rivers and seas) and other things of the like nature, they have no relation at all to the point of dominion; as you have been sufficiently told already. In the next place, we come to the other, to wit, Hugo Grotius, a man of great learning, and extraordinary knowledge in things both divine and human; whose name is very frequent in the mouths of men everywhere, to maintain a natural and perpetual community of the sea. He hath handled that point in two books; in his Mare Liberum, and in that excellent work De Jure Belli & pacis. As to what concerns Mare Liberum, a book that was written against the Portuguese about trading into the Indies through the vast Atlantic and Southern Ocean; it contains indeed such things as have been delivered by ancient lawyers touching community of the sea; yea, and disputing for the profits and interests of his country, he draws them into his own

4 4 party; and so endeavours to prove that the sea is not capable of private dominion. But he hath so warily couched this subject with other things, that whether in this he did hit or miss, the rest howsoever might serve to assert the point which he was to handle. Moreover, he discourses about the title of discovery, and primary occupation (pretended to by the Portuguese) and that also which is by donation from the Pope. And he seems in a manner, either sometimes to quit that natural and perpetual community, which many civil lawyers are eager to maintain, and he himself, in order to his design, endeavoured to confirm, or else to confess that it can hardly be defended. For, concerning those seas that were enclosed by the ancient Romans, the nature of the sea, says he, differs from the shore in this, that the sea, unless it be in some small part of itself, is not easily capable of building or enclosure. And put case it were, yet even this could hardly be without the hindrance of common use. Nevertheless, if any small part of it may be thus possessed, it falls to him that enters upon it first by occupation. Now, the difference of a lesser and a greater part, cannot take place (I suppose) in the determining of private dominion. But in express words he excepts even a bay or creek of the sea. And a little after, says he, We do not speak here of an inland sea, which in some places being straitened with land on every side, exceeds not the breadth even of a river, yet 'tis clear that this was what the Roman lawyers spoke of, when they set forth those notable determinations against private avarice. But the question is concerning the ocean, which antiquity called immense infinite, the parent or original of things, consisting with the air. And afterwards he says, The controversy is not about a strait or creek in this ocean, nor so much as is within view when one stands upon the shore.... And certainly, there is no man but must conceive it a very difficult thing to possess the whole ocean: Though if it could be held by occupation, like a narrow sea, or a creek, or as the whole world was said to be possessed at first by ancient princes, it might even as well pass into the dominion or ownership of him that should enter upon it first by occupation.... But it is by no means to be omitted that they, for whose sakes Hugo Grotius wrote that book, that is to say, the States of Holland, did, not unwillingly, but rather (as it seems) according to their own heart s desire, give ear to the condemnation of that opinion (especially because it was owned by Grotius) concerning a community of the sea and freedom of fishing therein according to the law natural and of nations... Of which thing Grotius himself bears witness. I have laboured, says he, as much as any to maintain the right of navigation to the Indies, and for the preservation of cloth-dressing in our country. But for the freedom of fishing at sea... I had

5 5 begun to make some discourses in defence of that freedom, as a thing grounded upon the law of nations, and customs, time out of mind.... But in his books de Jure Belli & Pacis, having indeed set down the reason of the original of private dominion to be upon this ground, that those places which became peculiarly assigned were not sufficient for the maintenance of all men, he concludes that the sea, because of its bigness and inexhaustible abundance, being sufficient for all, cannot be appropriated to any. He adds other things also, touching the nature of the seas not being distinguishable by bounds, of both which we have said enough already. But at length he betakes himself to the received customs of nations and speaks more than once concerning the propriety or private dominion of the sea, as of a thing sometimes to be yielded without controversy. The land, says he, and rivers, and any part of the sea, in case it come under the propriety of some nation, ought to be open for such as have need of passage upon just and necessary occasions. Afterwards also, speaking of the propriety of rivers, After this example, says he, it seems that even the sea may be possessed by him that is owner of the land on both sides, although it lie open either above, as a creek; or above and below too, as a strait or narrow sea: so that it be not so great a part of the sea, that being compared with the lands it cannot seem to be any portion of them. And that which is lawful for one prince or people, the same seems lawful also for two or three, if in the like manner they please to enter upon the sea flowing between. For so, rivers that flow between two nations, have been entered upon by both, and then divided.... He alleges other things also touching the Right of primary occupation by sea; but... says that not by any natural right or reason but by custom it came to pass that the sea was not appropriated, or that it could not lawfully be entered upon by right of occupation.... But upon due consideration of all those particulars,... there remains not either in the nature of the sea itself, or in the law either divine, natural, or of nations, anything which may so oppose the private dominion thereof, that it cannot be admitted by every kind of law, even the most approved; and so that any kind of sea whatsoever may by any sort of law whatsoever be capable of private dominion; which was the thing I intended to prove.