Chapter IX: The Juridical Controversies (2)

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 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Boroughs’ treatise, however interesting from the historical documents it contained, had serious defects when considered as a formal justification to Europe of the policy of Charles.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 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 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 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 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 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 Ecclesiæ_. 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 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, 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 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 to one Professor Petrus Cunæus 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, 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 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.