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.