Ahoy there!

Today’s papers include a report that those who know about these things have decided to designate the waters around Antarctica an ocean (as opposed to just ‘the waters around Antarctica’). I cannot comment on the geographical rights and wrongs of this,[i] and, looking at it in terms of eco-systems and current patterns etc., I have no doubt it makes sense, but it feels a rather odd thing, doesn’t it, splitting up water into separate named areas, as if it they were discrete, borderable, landmasses? This designation of separate oceans or seas has resonances[ii] with one aspect of my recent research into the law of adulterine bastardy.

Until the twentieth century, there was some legal relevance in knowing whether or not somebody was a run-of-the-mill ‘bastard’ or an ‘adulterine bastard’. The latter designation was used for a child  born to a married woman, but not the child of her husband. The law sometimes had to sort out disputes in which a wife/widow alleged that the child was that of her husband, but somebody else (the husband or an alternative heir, perhaps) claimed that the child had been fathered by somebody else. Just how this was to be done changed over time, but, for several centuries, roughly from the fourteenth century to the early eighteenth century, a key question in legal process around this matter was whether or not the husband had been ‘within the four seas’ at the relevant time for conception of the child.[iii] If he had, he was presumed to be the father in most cases. The question which arose for me, when I came across this criterion, was ‘which seas do we mean, then?’. Presumably the Channel and the North Sea are reasonably easy (if we ignore the Isle of Wight, Scillies and Channel Islands), but does the western ‘sea’ bring Ireland into the equation or not, and where on earth is the northern ‘sea’ (have we forgotten that the border with Scotland is a little bit on the landy side?). If we factor in the whole of the area controlled by the king of England, that might include parts of modern France as well, for much of the relevant period.

There is some discussion relevant to the issue in early modern sources. In relation to jurisdiction, Selden interprets ‘Within the Kingdom’ as ‘within the Southern, Eastern and Western Seas’ and, on the vexed question of the ‘northern sea’ writes of  ‘That Northern Sea which washeth both sides of that neck of land whereby Scotland is united to England’. (which may not be the most practical of borderlines). and ‘clarifies’ this as ‘within the outmost bounds of the English Empire in those four Seas, or within the opposite shores of the Eastern and Southern Sea or Ports belonging to other Princes, and within the bounds of the Northern and Western Sea, which indeed are to be bounded after another manner ; but yet to be bounded : that is accordirng to the extent of possession Westward beyond the Western Shores of Ireland, and by the first beginning of that Sea, which is of the Scottish name and jurisdiction’. [iv] He notes a late fourteenth century case in which somebody tried and failed to make the argument that Scotland itself was ‘within the four seas’ – which I must track down.[v] It may, in fact, have received a slight ‘unionist’ twist in the minds of Scots at least, in the nineteenth century – one treatise at least, while stating that it does not have great force in Scots law, implies that the common law test relates to ‘residence of both parents within the islands of Great Britain’.[vi]

By this time, however, English law had moved on from relying so heavily on the ‘within four seas’ formulation. Why? Well I am sure that there are various reasons, including some of the odd results which might be produced if the presumption was given the sort of weight sometimes suggested. I think there might have been another factor too. Coke, perhaps deciding that there were serious practical problems with the whole maritime delimitation issue, decided to interpret the problem away: stating that it just meant ‘within the kingdom of England and the dominion of the same kingdom’.[vii] This represented a  move from geography to political control. It may also have contributed to the decline of the concept. Coke’s work, of course, came at a time when England and Scotland were beginning their period of global attempts at colonisation, and  a criterion and a test which might be interpreted as a presumption of legitimacy even when husband and wife were on different sides of the Atlantic was probably destined to be [wait for the maritime image …] jettisoned.

GS

12/6/2021

[i] (I stopped geography at 16 and last memory of it is of a fairly major error in the map-work exam, in which none of the blue had been printed on the paper, which made it rather hard to discuss bodies of water, as required …)

[ii] ‘Sounding the depths’ is hinted at here, you see – this is high literature …

[iii] This expression also occurs in some procedural matters, at an earlier time – I have not investigated this yet. See, e.g., 29 SS, 225; 113 SS 138; 18 SS, 234.

[iv] John Selden, Of Dominion (1652)  387.

[v] p. 388.

[vi] James Fergusson, Treatise on the Present State of the Consistorial L in Scotl&: With Reports of Decided Cases (Edinburgh: Bell & Bradfute., 1829), 199.

[vii] Co Litt 107a

Photo by Nathan Dumlao on Unsplash