John Selden (1584 – 1654) was an English jurist and a scholar of England’s ancient laws and constitution and scholar of Jewish law. He was known as a polymath showing true intellectual depth and breadth; John Milton hailed Selden in 1644 as “the chief of learned men reputed in this land.”
Selden thought that God had granted the earth and all the property thereof to Adam, and again granted this right to Noah after the flood. The land was to be held in common by Noah and his sons. [Reeve: 55]
The biggest influence on Selden’s thoughts of property was clearly Hugo Grotius, as they both believed, historically speaking, common ownership preceded private ownership. Both believed that people moved from common to private ownership through universal consent. (John Locke would later accept the former and reject the latter.)
Although Selden was influenced by Grotius, he also wrote against him. “Dominion, which is the right of using, enjoying, alienating and free disposing, is either common to all men as possessors without distinction, or Private and peculiar only to some; that is to say, distributed and set apart by any particular states, Princes, or persons whatsoever, in such a manner that others are excluded, or at least in some sort, barred from a libertie of use and enjoyment.” [Tully: 78] Selden believed the law of nature and the law of the people held that the sea is not communal to all men but is capable of private property in the same way as land. Other theorists, soon after, started to formulate rules for which a nation could claim land. One such idea was the “cannon shot rule”, that felt if a nation could fire a cannonball into the sea, it could own any water it reached, based on the claim of occupancy. Today, with our use of missiles rather than cannons, such a measure would be meaningless and only by convention could a boundary be established.
Selden’s notion of the mare clausum or closed sea, though apparently at odds with Grotius’s mare liberum (open sea), nevertheless recognized the traditional importance of free navigation and fishing on the high seas, that is, those areas not immediately adjacent to sovereign territories. Thus, Selden distinguished between open-access high seas and sovereign-controlled “inner seas” or coastal waters.
His friend Hobbes, as well as Pufendorf and Locke, were influenced by Selden. And English jurist Matthew Hale later tried to merge the theory of Grotius on property with Selden’s view on obligation.
Reeve, Andrew. Property Humanities Press International, 1986.
Tully, James. A Discourse on Property: John Locke and his Adversaries Cambridge University Press, 1980.