One spring day in 1947 Lieutenant Commander Rommel, then attending the General Line School at Newport, visited a local antique shop and there noticed and subsequently purchased a very interesting old book on British claims to maritime jurisdiction.
This volume was a small, leather-bound work written in 1633 by Sir John Boroughs, Keeper of the Records in the Tower of Lonson, entitled The Soveraignly of the British Seas, and reprinted in 1739 at London from the 1651 edition.
Interestingly enough, Borough’s treatise played an important part in the bitter controversy which raged in the seventeenth century between the several great powers over the rival concepts of mare liberum (free sea) and mare clausum (closed sea).
Historically, the sixteenth-century claims of Spain and Portugal, in turn fathered by the maritime discoveries of such men as Columbus and da Gama, were furthered by Papal Bulls and the Treaty of Tordesillas whereby the great oceans were divided and these respective countries claimed sovereignty thereover.
Economic motives tended to inspire the attempts by Holland and England to break this maritime grip of Spain and Portugal. As future events proved, this sea control was ended more by force of Dutch and English arms than by the argumentative powers of their writers.
However, these authors were instrumental in creating modern international law. This type of writing was stimulated by national and economic ambition. For example, at the close of the sixteenth century Holland was determined to obtain a share of the maritime trade with the East Indies at a time when Portugal was attempting to prohibit other nations from navigating the Cape of Good
Hope and from promoting commerce with the Indies. By sea strength the Dutch had penetrated this area. Their Great United Company of the East Indies, sponsors of this maritime attempt, realized that it would be useful to establish and proclaim a doctrine in support of mare liberum. Company members approached the distinguished author Hugo Grotius and persuaded him to support their thesis. Thus, in 1609 appeared Grotius’ Mare Liberum. As a matter of fact, this treatise had been written by Grotius in the winter of 1604-05 as part of his Commentary and then subsequently was detached and published separately upon the request of the United Company.
In this destined-to-be landmark in international law Grotius learnedly and skillfully argued that there should be complete freedom of the open seas for the use and benefit of all; that the ocean was large and had sufficient resources so that all people could sail thereon, fish therein, and draw water therefrom, all free of license and tax; that liquids, of which the ocean is one, having no limits in themselves, cannot be taken possession of unless they are contained within something else; and finally that no system can be imagined whereby widely-separated races could have come to an agreement over a division of the seas.
The success of Mare Liberium at once was apparent in at least two respects. First, a few weeks after the appearance of Mare Liberum the treaty of Antwerp recognized Holland’s right to trade with the East Indies. Secondly, the British Crown directed certain writers to wield their pens in defense of Britain’s sea claims. For instance, in 1613 Professor William Welwood of St. Andrew’s University was directed to prepare a reply to Grotius which the former accomplished in his The Community and Proprietie of the Seas.
British interest in sovereignty over the surrounding seas was by no means solely the result of such Dutch maritime aggressiveness as fishing upon the waters claimed by the former. When the Stuart rule was established in England in 1603, the family brought with them a keen interest in this subject. Stuart determination to increase England’s prestige upon the oceans perhaps was sharpened by the fact that Stuart finances were in a serious condition. Ashore efforts were made by James I and Charles I to improve their situation. For example, as Professor R. G. Albion’s Forests and Sea Power has recorded, both of these monarchs sold licenses to cut in the royal woods and actually deforested much of the crown lands in order to improve their personal finances. James I focused his attention upon the sea as well as upon the land and decided to levy a tax upon foreigners fishing in waters claimed by his country. Thus, in 1609, the same year in which appeared Mare Liberum, James I claimed the fisheries along the Irish and English coasts (somewhat earlier he had the limits of English bays laid down on charts) and declared that foreign fishermen could not fish therein without license from him.
Ultimately, as the course of future history was to prove, the subsequent Anglo-Dutch wars were to be caused in large part by the economic maritime rivalry between these two nations, further intensified by British claims to sovereignty of the surrounding seas, to fishing rights, and to salutes to the British flag at sea.
Progressing to 1618 we find that in this year James I commissioned the distinguished jurist, antiquarian, and oriental scholar, John Selden, to write a treatise supporting and proving British claims to sovereignty of the sea. Selden complied, but publication was postponed until 1635 in part because James felt that some of its contentions might not be in accord with the beliefs of the Danish king to whom he was then in debt. This book, written in Latin, appeared in print at this latter date bearing the title Mare Clausum, se de Dominio Maris.
Selden, a prolific writer who wrote twenty- seven works, produced a masterful thesis, learned and scholarly, which, in England at least, was regarded as authoritative. He marshalled his support for mare clausum from the laws of God and from Jewish law; from Natural-Permissive law derived from the customs and constitutions of leading ancient and modern nations; and finally from historical testimonies from British history and recognitions thereof by foreign nations. In contrast to Grotius he argued that the sea was exhaustible by promiscuous use.
One may inquire what was the definition by the British of the term “British seas.” In general they purposely seem to have kept this vague. However, Selden in Mare Clausum defines the Sea of England as that “which flows between England and the opposite shores and ports.” This admittedly is relatively indefinite, but a map which Selden furnished indicated that at this time he believed the British Seas to have had the following general limits: to the north, the latitude of Stat Cape, Norway; to the east, the easterly terminations of the North Sea, English Channel, and Bay of Biscay; to the south, the southernmost limits of the Bay of Biscay; and to the west, a degree of longitude about one hundred miles west of Ireland.
Charles I was so pleased with Selden’s work that he directed that one copy be kept in the council’s archives, and one each in the courts of the admiralty and exchequer.
Now when Selden’s work appeared in Holland in this same year of 1635, Hugo Grotius was not available to make a rebuttal, since he was then serving as Swedish ambassador to France and his queen had Baltic sea claims somewhat similar to Selden’s thesis. The Dutch States-General selected Dirck Graswinckel to reply to the Englishman. Yet his discourse never reached the printing office, partly because the Dutch expected Charles I to lighten his restrictions against them and therefore felt that silence was golden.
Meanwhile we must go back to 1625 when Charles I succeeded his father. Charles kept alive this Stuart interest in sovereignty of the sea by having the Tower of London searched for historical records which might prove or tend to prove the British claims upon the surrounding seas. John Boroughs, who in 1623 had been appointed keeper of the Tower’s records, therein found a number of historical rolls and at the request of his sovereign in 1633 wrote a slender essay in Latin entitled The Soveraignty of the British Seas. This was not destined to be published, however, until the time of the Commonwealth, in 1651, eight years after the death of Boroughs.
Ironically, we thus find that this Stuart- sponsored work finally was published under a Roundhead regime. Likewise when Selden’s Mare Clausum, Stuart-directed and also first written in Latin, was translated into English, it was so done during the Commonwealth in the year 1652 by ex-Royalist Marchamont Needham. In contrast to Selden’s original dedication to Charles I, Needham dedicated his translation to “the Supreme Authority of the Nation, the Parliament of the Commonwealth of England.” Borough’s first edition of 1651 did not specifically mention Charles I by name, although it did say that the work was undertaken “at the request of a great Person.”
Probably illustrative of the increased Anglo-Dutch maritime friction in the early 1650’s is the evidence of these volumes going to press in 1651 and 1652, respectively. An eighteenth century reprint of Boroughs’ work in 1739 likewise occurred at a moment of diplomatic crisis, this time with Spain.
Boroughs’ thesis has four main divisions. First, that it is an evident truth except to any who are desperately impudent that princes may have a sovereignty of the sea; second, that laws are necessary for the preservation of order and safety upon the seas and that a supreme authority is necessary in order to draw up and promulgate them; third, that British sovereignty is derived from and confirmed by immemorable prescription; and finally that the laws and customs of Britain have ratified and confirmed this right.
On the whole, Boroughs’ work appears to be lacking in arguments based on law and its deductions are too forceful and sweeping for the relatively slim evidence upon which they are based. Nevertheless, The Soveraignty of the British Seas remains a valuable part of the juridical literature of its century.
There is considerable parallel between the theses of Selden and Boroughs. For example, both include reference to the Roman occupation of Britain, quotations from the Ordinance of John, the rolls of Edward I and Edward III, Charter of Edgar, and the Laws of Oleron. Needham’s 1652 translation of Selden includes some extracts from the volume of Boroughs which had come off the press the year before.
Both The Soveraignty of the British Seas and Mare Clausum include a short chapter entitled, “The inestimable Riches and Commodities of the British Seas,” and the wording of the chapter is identical in the two books. The closing paragraph of this chapter is indicative of British maritime interests of .three centuries ago.
And therefore the Soveraignty of our Seas being the most precious Jewell of his Majesties 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.
As an epilogue we must mention that the Dutch were successful in resisting British claims to sovereignty of the surrounding seas. In none of the treaties which ended the Anglo-Dutch wars is there any Dutch acknowledgment or acceptance of such British claims. As to the term “British seas,” it appears in the treaty which ended the first war, but was not defined; it does appear in the treaty of Breda and is restricted to the English Channel; while in the final peace treaty it once again is absent.