Selden's 'Mare Clausum'

1893 text

Selden’s work was highly esteemed, and Charles I. made an order in council that a copy should be kept in the Council chest, another in the Court of Exchequer, and a third in the Court of Admiralty. The book Pepys refers to is Nedham’s translation, which was entitled, “Of the Dominion or Ownership of the Sea. Two Books . . . , written at first in Latin and entituled Mare Clausum, by John Selden. Translated into English by Marchamont Nedham. London, 1652.” This has the Commonwealth arms on the title-page and a dedication “To the Supreme Autoritie of the Nation-The Parliament of the Commonwealth of England.” The dedication to Charles I. in Selden’s original work was left out. Apparently a new title-page and dedication was prepared in 1663, but the copy in the British Museum, which formerly belonged to Charles Killigrew, does not contain these additions.

This text comes from a footnote on a diary entry in the 1893 edition edited by Henry B. Wheatley.

11 Annotations

First Reading

Sjoerd  •  Link

MARE CLAUSUM and MARE LIBERUM (Lat. for " closed sea / free sea")
in international law, terms associated with the historic controversy which arose out of demands on the part of different states to assert exclusive dominion over areas of the open or high sea. Thus Spain laid claim to exclusive dominion over whole oceans, Great Britain to all her environing narrow seas and so on. These claims gave rise to vigorous opposition by other powers and led to the publication of Grotius's work (1609) called "Mare liberum". In Mare clausum (1635) John Selden endeavoured to prove that the sea was practically as capable of appropriation as territory. Owing to the conflict of claims which grew out of the controversy, maritime states had to moderate their demands and base their pretensions to maritime dominion on the principle that it extended seawards from land.

A formula was found by Bynkershoek in his De dominio maris (1702) for the restriction of dominion over the sea to the actual distance to which cannon range could protect it. This became universally adopted and developed into the three-mile belt.

( from http://54.1911encyclopedia.org/M/… )

Michael Robinson  •  Link

Selden's 'Mare Clausum ...'

The Pepysian Library contains the first edition of 1635 (PL 2048) and the second edition, 1663, of the English translation by Marchamont Needham,(PL 2135), first issued in 1652.

Second Reading

Terry Foreman  •  Link

Of the dominion, or, ownership of the sea two books. In the first is shew'd, that the sea, by the lavv of nature, or nations, is not common to all men, but capable of private dominion or proprietie, as well as the land. In the second is proved, that the dominion of the British sea, or that which incompasseth the isle of Great Britain, is, and ever hath been, a part or appendant of the empire of that island. Written at first in Latin, and entituled, Mare clausum seu, De dominio maris, by John Selden ... Translated into English; and set forth with som additional evidences and discourses
by Selden, John, 1584-1654; Nedham, Marchamont, 1620-1678. tr
Published 1652
https://archive.org/details/ofdom…

San Diego Sarah  •  Link

Hugo Grotius (10 April 1583 – 28 August 1645), also known as Huig de Groot, Hugo Grocio or Hugo de Groot, was a jurist in the Dutch Republic. With Francisco de Vitoria and Alberico Gentili he laid the foundations for international law, based on natural law. He was also a philosopher, theologian, Christian apologist, playwright, historiographer and poet.

Hugo Grotius' influence on international law is paramount, and is acknowledged by, for instance, the American Society of International Law, which since 1999 holds an annual series of Grotius Lectures.

Additionally, Hugo Grotius' contributions to Arminian theology provided the seeds for later Arminian-based movements, such as Methodism and Pentecostalism and he is acknowledged as a significant figure in the Arminianism-Calvinism debate.

Because of Hugo Grotius' theological underpinning of free trade, he is also considered an "economic theologist".

For more information, see: http://encyclopedia.thefreedictio…

San Diego Sarah  •  Link

Thomas Hobbes thought highly of John Selden’s Mare Clausum, which he read in 1636, the year following its publication. In Mare Clausum, Selden drew on the Bible and the Talmud in order to refute the principle of the freedom of the seas elaborated by Hugo Grotius in Mare Liberum.

Although its first volume appeared so close to the publication of Leviathan, Hobbes was also familiar with John Selden’s arguments from his trilogy De synedriis (1650-1655) in which Selden advanced Erastian ideas by examining the Sanhedri's history which he likened to the English Parliament.

After 1,000 years, contacts between Christianity and Hebraism intensified after the Renaissance.
Humanist Europe became familiar with this ‘third culture’, the Hebrew which, along with the Greek and the Latin, became the curriculum for the gentleman-scholar.
In accordance with the Protestant belief that the Hebrew text of the Bible was the word of God, Luther’s call of sola scriptura made the study of the original text a duty for Christians.
Hebrew scholarship flourished throughout Europe. European scholars became familiar with both the Hebrew Bible and the post-biblical rabbinic heritage.
In addition, numerous Latin translations of some of the key texts of the Hebrew tradition made it accessible to a wide audience.
In the 17th century, Hebrew studies reached their peak. At its end, Carlo Giuseppe Imbonati was able to enlist Latin works of no less than 1,300 Christian Hebraists in his Biblio-theca latino-hebraica.

Political thought was one areas of scholarship in which the impact of this biblical archeology was particularly strong.
Political philosophers of the age read and interpreted the Bible not only as a divine message bearing on fundamental religious questions, but as a political text containing a description of the Jewish commonwealth.
Since its author was God, Respublica Hebraeorum acquired a privileged status.
It became the model, the perfect constitution.

The problem was that many different -- often opposing -- political and religious groups identified themselves with Old Testament Israelites and sought to legitimize their particular solution of the predicament they were facing by turning to the authority of the same sacred text.
From Jean Bodin to James Harrington, most of the leading figures of political thought dealt with the juridico-political content of the Old Testament.
In order to decipher its particular nature, scholars frequently turned to the vast sea of rabbinic sources steadily flowing from printing presses all over Europe.

In many works of political philosophy, Hebrew tradition began to overshadow Greek and Roman sources that rose to prominence during the Renaissance. The consequences can hardly be overstated.

Gleaned from
https://www.academia.edu/35169237…
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Third Reading

San Diego Sarah  •  Link

The Oxford Dictionary of National Biography today updated its lengthy entry for John Selden MP.
You can read it, free, for 7 days before it disappears behind their paywall.
https://www.oxforddnb.com/display…

This is their review of Mare Clausum:

The second edition of "The Titles of Honor" provided sophisticated historical support for John Selden's interpretation of the mixed monarchy of England, not least by placing it in a plausible, equally well-supported context of European ancient constitutions. It portrayed the continual calling of parliaments as a necessary part of English governance.

In the 1630s King Charles was looking for more acceptable advice, so John Selden MP, encouraged by courtiers, presented a peace offering, "Mare clausum" (1635), which defended British sovereignty over a wide expanse of sea.
First written about 1619 and revised to take account of the minimalist theory of natural law contained in Hugo Grotius' "De jure belli ac pacis" (1625), "Mare clausum" combined a sophisticated theoretical discussion of law with a partisan, well-documented history of the exercise of maritime dominion.
Book 1 argued: 'That the Sea, by the Law of Nature or Nations, is … capable of private Dominion or proprietie as well as Land'.
Book 2 argued: 'That the King of Great Britain is Lord of the Sea flowing about, as an inseparable and perpetual Appendant of the British Empire'.

The structure reflected Selden's view of the link between theory and history, law and fact: the capability of dominion arose to a significant extent from the evidence of dominion exercised over the sea in the past.

To challenge the assumptions of those who supported free trade on open waters, "Mare clausum" started with definitions of 'sea' (which included the oceans and seas nearly surrounded by land) and 'dominion', and discussion of the nature of 'law'.
The binding law of nations and the law of God as revealed in scripture, although 'reputed by men to be unchangable', became enforceable only through 'Additions or Inlargements', which included the interpretations of judges and commentators.
Positive laws (customs, statutes, contracts, or treaties) transformed the universal laws of God and nature into enforceable laws with concrete penalties.
Most existing legal systems fit into the categories of 'Civil' law (the laws of particular societies) or the 'Common Law of divers Nations' (laws jointly accepted by more than one state), but some occupied a third category, the 'Law of som or divers Nations, Civil or Domestick' (international law accepted as binding by one or more states).
The last of these opened a place for the exercise of dominion over the sea.

San Diego Sarah  •  Link

CONCLUSION

Selden then turned to communal and private dominion. The parceling of lands and goods derived not from the laws of God or nature, which were neutral on the subject, but from a covenant involving the 'consent of the whole bodie or universalitie of mankinde (by the mediation of something like a compact, which might binde their posteritie)'.
Even before they formed societies, occupiers could establish a preponderant use over a particular piece of uninhabited land. As abundant theory and practice demonstrated, explicit or implicit contracts turned the lands they occupied into dominion, made it capable of allocation or inheritance, and established distinct local property laws.
Dominion over the sea had not remained uncontested. Through careful examination of the practice of 'the more civilized and more eminent Nations of the past and present Age', whose laws and treaties showed that claims over adjoining seas 'hath been received into Custom, as a thing very usual, and agreeable to Law', Selden provided evidence to support the exercise of maritime dominion in general and of ancient and modern British dominion over the surrounding seas.

These discussions of ancient and medieval military and diplomatic affairs paid equal attention to the royal appointment of admirals and to parliamentary statutes and, while revealing fissures beneath the surface of the text, sugared the pill of mixed monarchy for King Charles with the sweetness of royal maritime sovereignty.

Written in Latin for an international audience, "Mare clausum" constituted a classic defense for the extreme position that states could legitimately claim and exercise extensive sovereignty over the high seas.

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References

Chart showing the number of references in each month of the diary’s entries.

1661

1662

  • Jan

1663