66 THE SOVEREIGNTY OF THE SEA 



first place that Bracton and the other early English lawyers, 

 unlike those of the seventeenth century, made no claim for an 

 exclusive fishery. They merely propounded the Roman law 

 that the sea and the shores of the sea were common to all ; 

 that the right of fishing in rivers and ports was likewise free 

 to all ; and that animals, ferce naturce, including fish, belonged 

 to no person. The law laid down by Bracton and the others 

 was not, of course, international ; but if it had been in agreement 

 with English jurisprudence in the twelfth and thirteenth cen- 

 turies (as it was made to be in the seventeenth) to consider the 

 sea fisheries as the property of the crown, that would have 

 been declared, because Bracton was embodying the customary 

 law of England, and adopted Roman law only when that failed 

 him. He is careful to state that wreck of the sea and " great 

 fish," such as sturgeons and whales, "belong to the lord the 

 king himself by reason of his privilege" or prerogative, pre- 

 cisely on the ground that Callis, Coke, Selden, and Hale 

 claimed the sea fisheries generally for the crown in the seven- 

 teenth century. Had any such right existed or been thought 

 of in the reign of Henry III., Bracton could not have failed to 

 incorporate it, since the king placed the archives and every- 

 thing necessary at his disposal to enable him to embody the 

 common law of England. 1 So also there is nothing in the rolls 

 of Edward I. and Edward III., which deal with the sovereignty 

 of the sea, to indicate any claim to the fisheries ; nor is there in 

 the Admiralty ordinances and regulations in the Black Book, 

 although it was part of the duties of the admirals to supervise 

 the sea fisheries and to enforce the laws relating to them. 



But the assertion that the fisheries were free in those early 

 times does not depend upon negative testimony. Liberty of 

 fishing was guaranteed in various treaties concluded with for- 

 eign nations from the middle of the fourteenth century until 

 the end of the sixteenth. The first of these was made in the 

 reign of Edward III., and it was in keeping with the liberal 

 policy of that monarch in regard to the promotion of foreign 

 commerce. It was almost a necessity, for English fishermen 

 were by themselves unable to meet the home demand for fish. 



1 Henrici de Bracton, Legibus et Consuetudinibus Anglice, lib. i. c. 12 ; lib. iii. 

 c. 3. Rails Series, Introd., by Sir Travers Twiss, i. ii. Guterbock, Henricus de 

 Bracton und tein VerhcUtniss zum Romischen Rechte, 14, 55. 



