The Sovereignty of the Sea
The “British Seas,” according to Selden.
The Sovereignty of the Sea
An Historical Account of the Claims of England to the Dominion of the British Seas, and of the Evolution of the Territorial Waters: with special reference to the Rights of Fishing and the Naval Salute BY
THOMAS WEMYSS FULTON
LECTURER ON THE
SCIENTIFIC STUDY OF FISHERY PROBLEMS, THE UNIVERSITY OF ABERDEEN
WITH ILLUSTRATIONS
William Blackwood and Sons
Edinburgh and London
1911
ALL RIGHTS RESERVED
I DEDICATE THIS BOOK TO
MY WIFE
PREFACE.
In this book I have endeavoured to bring together from all available sources such information as exists as to the claims formerly made to the sovereignty of the British Seas, and to trace the evolution of the territorial waters in recent times. The work was originally undertaken with the intention of dealing only with these subjects so far as they related to the sea fisheries, but it soon became apparent that to restrict the scope in this way would involve considerable disadvantages, and would enable only a partial picture to be presented. For though during a large part of the period with which the book is concerned, the question of the fishery was the main question in determining the claim to sea sovereignty, and is the one of the greatest frequency at the present day with respect to the territorial waters, it was by no means the only one. The freedom of commerce to regions more or less remote; the jurisdiction of a State in the sea which washed its shores or which it claimed as belonging to it; the naval salute or homage to the flag, and various other matters, were commonly bound up with the question of the fisheries. It was therefore deemed more satisfactory to treat the subject as a whole, even though this necessarily involved much additional labour.
The book is divided into two sections, the first comprising an historical account of the pretensions to the dominion of the sea; the second dealing with the relic of such pretensions, the territorial waters, more particularly in the aspect which they present under the Law of Nations and in relation to the rights of fishing. With some doubtful exceptions, the claim to a special sovereignty or dominion over the so-called British Seas was a doctrine of the Stuarts, introduced from Scotland to England with that dynasty, and terminating with it. It was aimed in particular against the Dutch, whose commerce, shipping, wealth, and power were believed to be derived from the fisheries which they carried on along the coasts of this country. Hence a very considerable part of the work refers to the dealings and negotiations with that people as to the liberty of fishing and the homage to the flag. Such pretensions to extensive maritime sovereignty gradually decayed and disappeared, but the troubles and disputes as to the rightful jurisdiction of a State in the waters adjacent to its coasts have continued to the present day, and are dealt with in the second section of the book. Scarcely a year passes that does not witness one or more international differences of this kind, notably with respect to fisheries, and in various quarters of the globe—it may be now on the coasts of Portugal and Spain, or in the Pacific and South America, or again at the White Sea, each case giving rise to international negotiations and discussions as to the common usage and the Law of Nations.
One great group of such questions, which for long formed a troublesome heritage of the British Foreign Office, concerns the fisheries on the coasts of British North America. Under various treaties, some of them old, France and the United States possess special rights in these fisheries, the true nature of which has occasioned numerous disputes. It is a happy circumstance of recent years that those differences have now been composed. The agreement with France in 1905 settled the question of the fishery rights of that Power at Newfoundland, and the Award of the Permanent Court of International Arbitration at The Hague in the North Atlantic Coast Fisheries Arbitration, which was made last autumn while this work was passing through the press, has in a manner equally satisfactory settled the difficulties with the United States,—a fortunate result due in great part to the exceedingly able, lucid, and temperate presentation of the British case by Sir Robert Finlay, but chiefly, it cannot be doubted, to the growing feeling of goodwill between the two great branches of the Anglo-Saxon race. It is to be hoped that similar differences now pending and to come, as to the fisheries on other coasts, may be adjusted in a corresponding spirit of amity and compromise. The fish in the sea, as Dr Nansen has said, are not the property of any particular nation. They are, if the word may be used, international, and it would therefore be as just as it would be auspicious if all such questions were dealt with in a spirit of international brotherhood, with due regard to the interests of the coast population on the one hand, and the legitimate rights of the enterprising fishermen from other nations on the other. To this end the joint fishery investigations at present being conducted under the guidance of a Council of representatives of the western and northern Powers of Europe may be expected to contribute, if only by providing that full and precise information, without which an effective and equitable arrangement is difficult.
As far as possible, I have gone to original sources for my information; the State Papers in the Record Office, the MSS. in the British Museum, and those preserved at Hatfield—access to which was courteously granted by the late Marquess of Salisbury—have been laid under contribution. References to the various authorities are given for practically all the statements in the book; and in the Appendix are printed, either entire or in part, some of the more important documents which are cited.
Among foreign friends and colleagues to whom my thanks are due for information kindly given during the progress of the work, I must mention four, who, alas! are no longer with us: Professor A. F. Marion, Marseilles; Professor Enrico H. Giglioli, of Florence, for long the esteemed President of the Commissione consultiva per la pesca, Rome; Secretary of State M. Vladimir I. Weschniakow, President of the Société Impériale Russe de pisciculture et de pêche, St Petersburg; and Dr Rudolf Lundberg, Stockholm, all very willingly complied with my requests for information. Among others who have aided me from time to time are Dr Georges Roché, Paris; Dr Eugène Canu, Boulogne-sur-mer; Señor Rafael Gutierrez Vela, Madrid; Dr Cav. Enrico Giacobini, of the Ministry of Agriculture, Rome; Dr F. Heincke, Heligoland; Dr Johan Hjort, Bergen; and Captain C. F. Drechsel, Copenhagen. My thanks are also due to Dr Fridtjof Nansen, formerly the Norwegian Minister in London; to M. J. Irgens, his successor; and to Dr T. Baty, Honorary Secretary to the International Law Association, London, for copies of documents and laws relative to the Scandinavian limits of the territorial sea; and likewise to Mr R. M. Bartleman, the American Consul-General at Buenos Aires, for papers referring to the extensive claims recently advanced by the Argentine Republic for the regulation of the fisheries in the adjacent seas.
Very specially have I to thank my friend, Dr P. P. C. Hoek, the Scientific Adviser for the Fisheries of the Netherlands, and the Commissioner appointed by The Hague Tribunal in the North Atlantic Fisheries Arbitration, for his valued assistance and advice. Dr Hoek was good enough to read over the proofs of the book, and I am indebted to him for a number of emendations and improvements which his knowledge of Dutch fisheries and history enabled him to suggest.
In transcribing records and preparing the index, and in some other ways, I have been assisted by my wife.
I feel that an acknowledgment is due to my publishers for the patience and consideration they have shown in the delay which, for several reasons, has occurred in the completion of the book.
It is right to add that I alone am responsible for all the opinions expressed, unless when otherwise stated.
T. WEMYSS FULTON.
41 Queen’s Road, Aberdeen,
January 1911.
CONTENTS.
| [INTRODUCTION.] | |
|---|---|
| PAGE | |
| Prominence of maritime affairs in English history—The meaning of the term Sovereignty of the Seas—Early appropriation of seas—Venice—Genoa—Denmark, Sweden, Poland—Spain and Portugal—Reasons for appropriation—Insecurity of sea in middle ages—Merchants associations—Origin of the English claims—Their nature—Became important under the Stuarts—James I.—Charles I.—The Commonwealth—Charles II.—Decay of the English pretension to the dominion of the seas—Extent of the “Sea of England” and of the “British Seas”—The “Narrow Seas”—The “Four Seas”—Selden on the British Seas—The territorial waters | 1 |
| [SECTION I.—THE HISTORY OF THE CLAIMS TO THE SOVEREIGNTY OF THE SEA.] | |
| [CHAPTER I.] | |
| EARLY HISTORY. | |
| Alleged sea sovereignty exercised by ancient Britons, Romans, and Anglo-Saxons—King Edgar—Canute—Norman, Angevin, and Plantagenet kings—The Channel or Narrow Sea—The safeguarding of the sea—Admiralty jurisdiction—Impressment of ships—Liberty of navigation and fishing—The question of tribute—English kings as lords of the sea—King John’s ordinance as to lowering sail to a royal ship—The sovereign lordship in the so-called Sea of England—The roll De Superioritate Maris Angliæ—Complaint against Reyner Grimbald—Nature of jurisdiction exercised in Sea of England | 25 |
| [CHAPTER II.] | |
| THE FISHERIES. | |
| Importance of fisheries in middle ages—Ecclesiastical fasts—A great herring fishery—Foreign fishermen frequent British coasts—The question of freedom of fishing—Licenses to French to fish in the Channel—Treaties guaranteeing liberty for foreigners to fish on the British coasts—The “Burgundy” treaties—The Intercursus Magnus—Practice in Scotland differed from that in England—Waters reserved for natives, and foreigners excluded—Treaties with the Netherlands—Acts of the Parliament of Scotland | 57 |
| [CHAPTER III.] | |
| UNDER THE TUDORS. | |
| Decay of English fisheries—Influence of Reformation—Rise of Dutch fisheries—The “Political Lent”—Cecil’s inquiries and proceedings—Legislation to protect the English fisheries and encourage the consumption of fish—First complaints against foreign fishermen on English coast—Hitchcock’s “Pollitique Platt”—His scheme of a national fishery association to compete with the Dutch—Proposals of Dr John Dee to tax foreigners fishing on British coasts—Claim advanced to the sovereignty of the sea—Supposed limits of British seas—Queen Elizabeth opposes all claims to Mare Clausum—Spanish and Portuguese pretensions to dominion on the great oceans—Negotiations with Denmark as to trading and fishing at Iceland and Norway—Queen Elizabeth’s exposition of the principles of the freedom of the seas—Further legislation to promote the fisheries—Failure of the policy of fish-days—The striking of the flag | 86 |
| [CHAPTER IV.] | |
| UNDER THE STUARTS. JAMES I. A NEW POLICY. | |
| Change of policy as to freedom of fishery—The “King’s Chambers” defined and described—Limited to questions of neutrality—Beginning of struggle with Dutch for commercial and maritime supremacy—Expansion of Dutch fisheries—English accounts of their extent—John Keymer—Sir Walter Raleigh—Tobias Gentleman—The Dutch great herring fishery along British coast—Its value and importance—English fishery trifling in comparison—English envy and jealousy of Dutch—Rival fishery schemes proposed—Plan of London merchants—Proposals to tax foreign fishermen—Complaints of encroachments of Hollanders in England and Scotland—Petition from Cinque Ports for protection—Privy Council consider unlicensed fishing by foreigners—Recommend proclamation restraining foreigners from fishing on British coasts without license from the king—Proclamation issued—Aimed against Dutch—Protest of States-General—Proclamation suspended—The “assize-herring”—Discussions with the Dutch ambassador—Dutch embassy of 1610—Fishery question postponed—Other fishery schemes—The queen’s proposals—Records to be searched to establish king’s jurisdiction at sea and right to the fishings | 118 |
| [CHAPTER V.] | |
| JAMES I.—continued. DISPUTES WITH THE DUTCH. | |
| Grant of “assize-herrings” in Scotland to Duke of Lennox—Considered by Scottish Council—James instructs that the tax be levied from foreign fishermen—Mr John Brown collects them in 1616 from Dutch—Protest by Dutch ambassador—Dutch naval commanders ordered to prevent further payments—Brown again sent in 1617—Seized and carried to Holland by Dutch man-of-war—Repudiation of act by States-General—Further complaints in Scotland against Dutch—Representations by British ambassador at Hague—“Land-kenning” or range of vision claimed as limit—Scottish Council asked to prevent Hollanders from fishing within sight of land—Dutch edict of 1618—Assize-herrings again demanded by the Restore—Mare Clausum in the Arctic Seas—Spitzbergen whaling disputes—Dutch embassy of 1618—Evasion of fishery question—James’s displeasure—Threats to use force—Fishery treaty again postponed—A limit of fourteen miles requested—Dutch concession—Proposals regarding whaling at Spitzbergen—Assize-herrings again demanded by the Charles—The Dutch strengthen their convoying squadrons—Dutch embassies of 1619 and 1621—Fishery question still evaded—Edict of 1618 renewed—Fresh complaints against Hollanders—Fishery societies proposed—The striking of the flag—Incident with French in 1603—Monson’s action against Dutch—Spanish complaint—The custom as to striking the flag | 165 |
| [CHAPTER VI.] | |
| CHARLES I. FISHERIES AND RESERVED WATERS. | |
| Extravagant pretensions to the sovereignty of the sea—The ship-money writs and the old records—Charles proposes a great fishery society to compete with the Dutch—Coke prepares a scheme—Difficulties with Scottish burghs—Charles requests Scottish Privy Council to further the scheme—Strenuous opposition in Scotland—Claim of “reserved waters” advanced—Commissioners on behalf of England and Scotland appointed—Prolonged negotiations—Extent of reserved waters defined—Modifications proposed—Burghs petition Charles to prevent the Hollanders from fishing in Scottish waters—Fisheries declared to be under the royal prerogative—Charles attends the conferences of the commissioners—Scheme finally agreed to—The “Royal Fishery of Great Britain and Ireland” established—Operations at the Lewes—Misfortunes and eventual failure of the society | 209 |
| [CHAPTER VII.] | |
| CHARLES I.—continued. THE NAVY. | |
| Need of a strong navy—Insecurity of seas from pirates—Violations of King’s Chambers and ports by Dutch and Dunkirkers—Proclamation concerning same and claiming sovereignty of sea—Charles’s private policy to recover the Palatinate—Negotiations for alliance with Spain against the Dutch—Pretexts for creating a fleet—The ship-money writs—Feeling in Holland—Coke’s despatch on the dominion of England in the seas—The first ship-money fleet, under the Earl of Lindsey—His instructions—All hostilities in narrow seas to be prevented—Previous instructions to Pennington compared—The king’s private instructions—Their object—Lindsey’s queries—Proceedings of the fleet—Rumours in London—Friction with the admiral—Fails to meet the French fleet—Richelieu’s strategy, and proposals as to salute—Licenses for Dutch herring-busses—Lindsey quits the fleet—Discontent at his failure—The question of the salute becomes very prominent—Doubts and queries as to the custom in enforcing it—Practice on foreign coasts—Between ships and forts—Arrogance of English captains—Usual compliance of the Dutch—British merchantmen the worst offenders | 246 |
| [CHAPTER VIII.] | |
| CHARLES I.—continued. THE NAVY. | |
| The second ship-money fleet—Placed under the Earl of Northumberland—What was to be done with it?—Opinion of Admiralty as to convoying foreign merchant vessels and preventing foreigners from fishing without license—The instructions to Northumberland—The proceedings of the fleet—Cruise in Channel—Royal proclamation forbidding foreigners from fishing without license in British seas—Northumberland goes in quest of Dutch herring-busses—Licenses forced upon them—English men-of-war left to “guard” them—Anxiety in the United Provinces—Mission of van Beveren—States of Holland resolve to equip a fleet to protect their fishermen from molestation—Mission of Joachimi—Intervention of Queen of Bohemia—Northumberland’s fleet goes to the Yarmouth fishing—Licenses again forced on the Dutch fishermen—The amount of the “acknowledgment money” received—Misrepresentations on the subject—Renewed excitement in Holland—Proceedings of Admiral Van Dorp—Another change in the king’s policy—Arundel’s mission to Vienna—Negotiations with the Prince of Orange—Terms of a proposed treaty—Charles tries to get his licenses secretly accepted in Holland—Third ship-money fleet—Tortuous action of Charles—Captain Fielding sent in a merchant vessel to offer licenses to Dutch fishermen—Dutch men-of-war interfere and prevent licenses being taken—The story leaks out, and is to be “cried down” and another story told—National discontent and domestic troubles—The “Sovereign of the Seas”—The question of the salute—Increasing strength and boldness of Dutch fleet—Arrest and search of English ships—Tromp and Pennington—The battle in the Downs—Action of English fleet—Humiliation of Charles—The Dutch the real masters of the seas | 286 |
| [CHAPTER IX.] | |
| CHARLES I.—continued. THE JURIDICAL CONTROVERSIES. | |
| Mare Liberum and Mare Clausum—Dawn of international law—Claims to maritime dominion conflict with commercial expansion of period—Opinions of publicists previous to Grotius—De Castro—Vasquius—The Mare Liberum of Grotius—Its origin and object—Arguments of Grotius against appropriation of seas—His later work and opinions—Opponents of Mare Liberum—De Freiras—Pacius—Welwood—His Abridgment of All Sea Lawes and De Dominio Maris—Arguments for appropriation of sea fisheries—Grotius’ Defensio in reply to Welwood—Other authorities—Thomas Craig—Gerard Malynes—Alberico Gentilis—The 100-mile limit—The rights of the Crown in the foreshores and bed of the sea—Thomas Digges—Sergeant Callis—Chief Justice Coke—Charles desires to establish his rights to the dominion of the seas by “some public writing”—Records searched—Sir John Boroughs’ Soveraignty of the British Seas—Its contents and reasoning—Selden’s Mare Clausum—Begun at desire of King James—Published in 1635 by the king’s commands—Its importance immediately recognised—The king’s eulogy—The character of Mare Clausum—Its facts and arguments—Absolute sovereignty claimed for English crown—Anxiety in Holland—States-General resolve on an official refutation of Mare Clausum—Graswinckel’s treatise—Pontanus | 338 |
| [CHAPTER X.] | |
| THE PARLIAMENT, THE COMMONWEALTH, AND THE PROTECTORATE. | |
| THE FIRST DUTCH WAR. | |
| Claim to the sovereignty of the sea and the salute continued—Instructions to naval officers essentially the same—Encounter with Swedish squadron—Action approved by Admiralty committee—Council of State instruct Blake to preserve the dominion of the seas—The Dutch strike willingly—Strained relations between the Parliament and the United Provinces—Political revolution in Holland—Mission of St John and Strickland to The Hague—Propositions for fusion and alliance—The Intercursus Magnus taken as basis for treaty—St John’s seven Articles—The thirty-six Articles of the Dutch—Failure of negotiations—Feeling in England—English letters of reprisal—Embassy of Cats, Schaep, and Van de Perre—Dutch fleet increased—Discussion of thirty-six Articles—Fresh instructions from Holland—The negotiations suddenly interrupted—Blake’s encounter with Tromp in the Straits of Dover regarding the striking of the flag—Its antecedents—Tromp’s defective instructions as to striking—Account of the fight—Indignation in London—Embassy of the Grand Pensionary, Adrian Pauw—First Dutch war—Blake and the herring-busses—Tromp’s broom—The Parliament asserts the right of the Commonwealth to the sovereignty of the seas and the fishery—Selden’s Mare Clausum translated and published by order of the Council of State—Controversy between Selden and Graswinckel | 378 |
| [CHAPTER XI.] | |
| THE PARLIAMENT, THE COMMONWEALTH, AND THE PROTECTORATE—continued. | |
| THE PEACE NEGOTIATIONS. | |
| The negotiations for peace—Mission of Beverning, Nieuport, Van dePerre, and Jongestal—The attitude of Cromwell—Proposals forfusion abandoned—Cromwell’s twelve Articles—The sovereigntyof the sea and the fishery put in the foreground—The twenty-sevenArticles proposed by the Council of State—Claim to thefishery, the salute, the right of search, the exclusive guard of theBritish seas, &c.—The strong objections of the Dutch—Cromwellacts as spokesman of the Council—Discussion on the flag and theherring fishery—The negotiations come to a standstill—The Dutchambassadors ask for their passports—Cromwell becomes LordProtector—Negotiations continued—Dutch proposals regardingthe salute—Cromwell withdraws the fishery article and thedeclaration respecting the sovereignty of the sea—The termsBritish Seas and Narrow Seas—Dutch propose to strike the flag allover the world—The ambassadors return to Holland—They comeback again—Cromwell suddenly reopens the question as to theBritish seas—Conclusion of treaty of peace—Diplomatic successof the Dutch regarding the claim to the sovereignty of the sea—Thearticle on the striking of the flag—Enforcing the salute—Complaintsof English fishermen | 414 |
| [CHAPTER XII.] | |
| CHARLES II. | |
| THE SECOND DUTCH WAR. | |
| Pretension to sovereignty of sea maintained—Efforts to revive the fisheries—Legislation—Bill against foreigners fishing on British coasts—Act of Scottish Parliament—Council of the Royal Fishery of Great Britain and Ireland appointed—The scheme receives little public support—Slovenly management of the Society’s affairs—Negotiations with Dutch regarding the sovereignty of the sea, the flag, and the fishery—Attitude of De Witt—His negotiations with France—Treaty concluded with Louis XIV. guaranteeing mutual protection to fishermen—Downing and De Witt—Treaty of London—Article on flag—Ignorance at Admiralty as to practice in striking—Second Dutch war—Causes of—De Ruyter in the Thames—Licenses for fishing offered to Dutch and refused—Grant of fishing rights to Bruges—Effect of the war on the fisheries—Dispute between Dutch and French as to salute—Peace conference at Breda—Claim to fishery withdrawn by Charles—Treaty article on flag—The term British Seas restricted to the Channel—Ambiguities regarding the practice of striking—De Witt’s proposals to Temple for a “Regulation”—The Dutch ambassadors discuss the matter with Charles—Their declaration about striking to a frigate or ketch—Practice of striking described—Denmark also proposes a “Regulation”—De Witt’s intrigues at Paris regarding the salute disclosed to Charles—Arrangement between France and England as to striking—Admiralty give close attention to the rules—Foreign disputes about the salute—General order by the States of Holland | 441 |
| [CHAPTER XIII.] | |
| CHARLES II.—continued. | |
| THE THIRD DUTCH WAR. | |
| Policy of Louis XIV.—The Triple Alliance—Secret compact of Charles and Louis against the Dutch—Parliament deceived—Pretexts for a fleet—Ill-feeling against Dutch fomented—Inquiries by Sir Leoline Jenkins as to striking and extent of British seas—The king’s yacht, Merlin, sent to pick a quarrel about the flag—The scheme miscarries—Downing’s mission to The Hague—Capture of Dutch shipping—Attack on Smyrna fleet—Declaration of war—The dominion of the seas flouted—The English to salute the French—The war and the fisheries—The Dutch sue for peace—The terms offered—Tribute for fishing asked—Meeting of Parliament—Shaftesbury on the sovereignty of the sea—The war most unpopular—Attempts to arouse public feeling as to dominion of the sea—Prynne—Smith—Roger Coke—Henry Stubbe—Charles forced to negotiate for peace—The Congress at Cologne—Prolonged discussions about the flag, the fisheries, and the sovereignty of the seas—Charles requires the salute between Cape Finisterre and the North Cape—Dutch assume a firmer attitude—Refuse to ask for liberty to fish—Offer to strike in all seas—Congress breaks up—Strong attitude of Parliament in favour of the Dutch—Separate peace made in London—Sir William Temple—The claim to the fishery dropped—Article regarding the salute—A diplomatic triumph for the Dutch—Disputes at sea about striking—The incidents of the Cleveland, the Charles, the Cambridge—English commander condemned to death for striking to the Spaniards—Masters of foreign merchantmen prosecuted in Admiralty Court for refusing to strike—Works on the sovereignty of the sea—Evelyn—Molloy—Further schemes to promote the fisheries | 474 |
| [CHAPTER XIV.] | |
| JAMES II. AND AFTER. | |
| Gradual decline of the pretension to the sovereignty of the sea—England and the United Provinces allied against France—Louis’ ordinance regarding the salute—William III. claims the sovereignty of the narrow seas—The question of striking becomes of little international importance—The Admiralty instructions concerning—Disputes about it less common—Encounter with a Swedish man-of-war—The case of the Gironde—The naval historians on the sovereignty of the sea—Articles regarding striking in later treaties—The ceremony abandoned after the battle of Trafalgar—General claims to maritime dominion give place to international arrangements—Sir Philip Meadows—His treatise against the dominion of the seas—Definite boundaries begin to be fixed for fisheries—Fishery disputes between Denmark and the United Provinces—Great Britain sides with the Dutch in opposing claims to Mare Clausum—The North American fishery treaties of the eighteenth century—The claim to the sovereignty of the seas dies out—Decay of the Dutch fisheries and rise of the British | 517 |
| [SECTION II.—THE TERRITORIAL WATERS.] | |
| [CHAPTER I.] | |
| THE HISTORICAL EVOLUTION OF THE TERRITORIAL SEA. | |
| Various limits proposed or adopted—The old English lawyers, Glanville, Bracton, Britton, “Fleta”—Early Italian jurists—Bartolus, Baldus—Limits of 100 and of 60 miles—Bodin—Gentilis—No general common usage—The mid-line or Thalweg—The “Mirror of Justice”—Plowden—Chief Justice Hales—Jurisdiction of Cinque Ports in Channel—The range of vision or “land-kenning”—Lord Stair—Sarpi’s proposal—Bays, straits, and arms of the sea—The King’s Chambers—Range of guns from shore—Proposed by Dutch in 1610—Not adopted in seventeenth century—Selden, Pontanus, Burgus, &c.—Influence of Loccenius and Puffendorf—Opinion of publicists at end seventeenth century—Usage in seventeenth century—Decisions of High Court of Admiralty regarding King’s Chambers—Gradual change of opinion and practice—Publicists in eighteenth century—The teaching of Bynkershoek—Dominion extends as far as projectiles can be thrown from the shore—Connection with salute and visit and search—Bynkershoek’s principle only slowly accepted—Opinions of Casaregi, Abreu, Wolff, Vattel, Hübner, Valin, Moser, Lampredi, Galiani, Von Martens—Three miles as equivalent to the utmost range of guns proposed by Galiani (1782), C. F. von Martens (1789), and Azuni (1795)—Summary of opinions—Usage in eighteenth century—Tendency to fix definite boundaries—Venice—Great Britain—Denmark—Sweden—Norway—Spain—Range of guns adopted by Tuscany, the Pope, Genoa, Venice, and in various international treaties—Three-mile limit first adopted by the United States of America in 1793—Exception of bays—Various limits claimed by the United States | 537 |
| [CHAPTER II.] | |
| GENERAL ADOPTION OF THE THREE-MILE LIMIT. | |
| Cannon-range and three-mile limit as its equivalent introduced into English Jurisprudence in 1800, 1801—Lord Stowell’s decisions regarding the Twee Gebroeders and the Anna in British High Court of Admiralty—Restricted to questions of neutrality—The practice of Great Britain and the United States leads to general adoption of three-mile limit—First applied to fisheries (of North America) by Great Britain—Treaty of 1818—Negotiations concerning Behring Sea—Russian claim of 100 miles—Adoption of gunshot or three miles—Judicial decisions as to extent of territorial sea—The Bristol Channel—Conception Bay—Statutes relative to territorial waters—Foreign Enlistment Act—Territorial Waters Jurisdiction Act—The Franconia case—Three-mile limit restricted to the open coast for certain purposes only—Bays excluded—The Hovering Acts—Customs’ jurisdiction—Quarantine Acts—Opinions of publicists of earlier part of nineteenth century—Rayneval, Chitty, Schmalz, Klüber, Wheaton, Kent, Manning, Heffter, Reddie, Ortolan, Hautefeuille, Pistoye and Duverdy, Massé—Summary—Most accept cannon-range—Few accept the three-mile limit | 576 |
| [CHAPTER III.] | |
| THE FISHERY CONVENTIONS. | |
| In nineteenth century the boundaries of territorial sea concerned chiefly with fisheries—Encroachment of foreign fishermen—Dutch decrees of 1824 and 1829 fixing a limit of two leagues on British coast—Disputes with French fishermen—Inquiry by select committee of House of Commons, 1833—Their recommendations—Opinion as to bays—Renewed encroachments and disputes—Convention with France, 1839—Three-mile limit and ten miles for bays adopted—Granville Bay reserved for French—Regulations regarding trawling—Disputes with Belgian and Dutch fishermen—Belgians claim special rights under Bruges Charter—Convention of 1852 with Belgium—Dispute about Fame Islands—Second Convention with France, 1867—Not ratified—Question of Irish oyster-beds beyond three-mile limit—Fishery disputes in British North America—The definition of bays and creeks—British cruisers seize American vessels—The British Government relax the rule as to Bay of Fundy—Decision of referee as to this bay—Reciprocity Treaty, 1854—Terminated by United States, 1866—Concessions by British Government—Licenses to American vessels—A six-mile limit for bays conceded—Treaty of Washington, 1871—Terminated by United States, 1885—Treaty of Washington, 1888—Precise delimitation of bays—Treaty not ratified by United States—Modus vivendi conceded and still in force—Discussion as to bays—Renewed disputes in North Sea—The Belgian “Devil”—The Higgin’s Inquiry—Conference at Hague, 1881—Views of British Government as to territorial limit—Question of dependent banks—Trawling and preservation of fish—North Sea Convention, 1882—Sweden and Norway refuse to join—Discussion of its terms—Views of British Government as to inclusion of banks—Question of the Eddystone, the Bell Rock, the Seven-Stones Rocks—Discussion as to limit under the Conventions and under the Law of Nations—Anglo-Danish Convention, 1901, respecting the Faröes and Iceland | 604 |
| [CHAPTER IV.] | |
| THE MODERN PRACTICE OF STATES AND THE OPINIONS OF RECENT PUBLICISTS. | |
| Apparent discrepancy between general practice and the opinions of publicists—No state has formally defined the extent of its territorial sea—Practice in Germany—Denmark—Two limits enforced—Russia—The White Sea—France—Belgium—Netherlands—Austria-Hungary—Italy—Greece—British Colonies—Japan—United States of America—Chile—Argentina—Uruguay—Three-mile limit generally adopted for fisheries—Exceptions in four European states—Spain and Portugal claim six miles—Repudiated by British Government—Discontent in Spain and Portugal—Norway and Sweden—Special Scandinavian limits—Fjords reserved—Vestfjord—Varangerfjord—Discussion of Norwegian limit—Rejection of three-mile boundary—Recent Norwegian laws—The three-mile limit is an Anglo-American doctrine—Opinions of modern publicists—Calvo, Bluntschli, Phillimore, Halleck, Lawrence, Bishop, Woolsey, Dana, Twiss, Fiore, Pradiere-Fodéré, Perels, Ferguson, Desjardins, Kleen, Aschehoug, de Martens, Hall, Oppenheim—The limit under the Law of Nations is the range of guns—Declarations of the International Law Association and the Institut de Droit International—Three miles insufficient—Six miles proposed for fisheries, &c—The zone or line of respect for neutrality to be declared by each state | 650 |
| [CHAPTER V.] | |
| THE INADEQUACY OF THE THREE-MILE LIMIT FOR FISHERY REGULATIONS. | |
| Three miles insufficient for the regulation of the fisheries—Seal fisheries—Behring Sea arbitration—Oyster, pearl-oyster, and coral fisheries—Regulations for “floating” fish—Relation of trawl-fishing to three-mile limit—Recent great extension of trawling—The effect on the fishing-grounds—Official inquiries—English trawlers desire an increased limit in North Sea—International conference at London, 1890—Inquiry by select committee of House of Commons—They recommend international extension of present limit for fishery purposes—Immature Fish Bill—Its object—Parliamentary inquiry, 1900—They urge international arrangement for North Sea—Bill again introduced—Inquiry by committee of House of Lords, 1904—They recommend international agreement for North Sea—The impoverishment of the fishing-grounds in the North Sea—Trawlers flock to foreign coasts—Feeling among foreign fishermen—Legislation in various countries regulating trawling beyond the three-mile limit—Norway, Spain, Portugal, Italy, Austria—Ireland—Not restricted to bays—Scotland—Fishery Acts—Firth of Clyde—Moray Firth—Act of 1895 empowering a thirteen-mile limit—Intrusion of foreign and pseudo-Norwegian trawlers into Moray Firth—Prosecutions and convictions—Case of Peters versus Olsen—Case of Mortensen versus Peters—Decision of the Scottish High Court of Justiciary—Opinions of the judges—Intervention of Norwegian Government—Release of offenders—Foreign Office decline to open negotiations with foreign Powers—Debates in Parliament—Lord Fitzmaurice on territorial limit and bays—Opinions of Lord Halsbury, Lord Herschell, Lord Salisbury, Lord Chancellor Loreburn—Declarations of Sir Edward Grey, Minister for Foreign Affairs—Views of British Government—Previous action of Great Britain in connection with extra-territorial fisheries—Recent proceedings with foreign Powers regarding the three-mile limit—The international fishery investigations—Need of an international arrangement | 693 |
APPENDIX.
LIST OF ILLUSTRATIONS.
THE SOVEREIGNTY OF THE SEA.
INTRODUCTION.
One of the most prominent and characteristic features in English history relates to the sea and maritime affairs, and the reason is not far to seek. The geographical situation of the country—everywhere surrounded by the waves, separated on the one side from the Continent by a narrow strait and open on the other to the great ocean—made it almost inevitable. And to the advantage of insularity was added the potent influence of race. A great part, if not the larger part, of our blood has come from the old Scandinavian peoples,—the sea-wolves, as the Roman poet said, whose school was the sea and who lived on the pillage of the world; and it is to this circumstance even more perhaps than to the accident of position that we owe our maritime and naval supremacy and the vast empire scattered around the globe. Running through the web of English history one perceives the connecting thread of maritime interest and occupation interwoven with the national life, and at all times affecting the national policy. First and foremost was the necessity of securing the land from invasion; then came the duty of safeguarding shipping and commerce; and with regard to those fundamental interests, the language used by our rulers centuries ago was the same as that which is used by our statesmen to-day. The sea must be “kept.” That has been the maxim and watchword of national policy throughout the ages, and the recognition of its truth was by no means confined to rulers and statesmen. The people at large have always been as convinced and as resolved that the supremacy or dominion on the sea should be maintained as were those in whose hands was placed the guidance of the affairs of the state. Again and again, when owing to mismanagement of the national resources, the poverty of the exchequer, or from some other cause, the supremacy at sea was endangered or temporarily lost, one will find the people clamouring for steps to be taken to maintain it. On the other hand, such was the deep and abiding sentiment with respect to the sovereignty of the sea, when this king or that wished to embark upon a policy or engage in a war for an object that was secret or unpopular, there was no better method of deceiving the people than by declaring that the dominion of the sea was in danger. Thrice in the compass of a single generation the nation was plunged into war with the object of maintaining it.
One thus finds in English history a great deal which refers to the sovereignty of the sea, although the words were not always used to signify the same thing. Most commonly perhaps they meant a mastery or supremacy by force of arms,—what is now so much spoken of as sea-power. In times of peace, the strength of the navy should be such as to safeguard the commerce that came to the realm and went from it, thus enabling merchants and traders to carry on their traffic in security. In time of war, the fleets should be strong enough to sweep the seas, so that, as it has been described, the bounds of the empire should then be the coasts of the enemy. But, more strictly, the sovereignty of the sea was a political sovereignty that existed as a matter of right, and was duly recognised as such, apart from an actual predominance of naval power at the time, just as the sovereignty of a state exists on land, though in both cases its maintenance may depend upon the sword. In this sense, the sovereignty of the sea signified the same sole power of jurisdiction and rule as obtained on land, and also, in its extreme form, an exclusive property in the sea as part of the territory of the realm,—very much indeed like the rights that are now admitted by the law of nations to appertain to the so-called territorial waters of a state. Many things and many interests were thus embraced in the term besides the question of naval ascendency. There were jurisdictions of various kinds and for various purposes. There was the important subject of the fisheries in the waters adjacent to the coasts, or, it might be, in distant regions. There was the still more important question of the freedom or restriction of commerce and navigation from one European country to another, or to the remote countries in the east or west which had been opened up to commercial enterprise by the discoveries of the early navigators. There was, moreover, another subject which was specially characteristic of the English pretensions to the dominion of the seas, and which gave rise to more trouble than all the others combined, and that was the demand that foreign vessels on meeting with a ship of the king’s should lower their top-sails and strike their flag as a token and acknowledgment of that dominion.
Although according to the Roman law the sea was common and free to all, in the middle ages many seas had become more or less effectively appropriated, and Civilian writers began to assign to maritime states, as a principle of law, a certain jurisdiction in the waters adjacent to their coasts. The distance to which such jurisdiction was allowed by those writers was variously stated. Very commonly it extended to sixty or one hundred miles from the land, and thus included all the bordering sea within which navigation was practically confined. Sometimes the principle governing the ownership of rivers was transferred in theory to the sea, the possession of the opposite shores by the same state being held to entitle that state to the sovereignty over the intervening water; or, if it possessed only one shore, to the same right as far as the mid-line. In most cases, however, the appropriation of the sea was effected by force and legalised afterwards, if legalised at all, and the disputes on the subject between different nations not infrequently led to sanguinary wars.
The most notable instances are to be found among the early Italian Republics. Long before the end of the thirteenth century Venice, eminent for her commerce, wealth, and maritime power, assumed the sovereignty over the whole of the Adriatic, though she was not in possession of both the shores, and after repeated appeals to the sword she was able to enforce the right to levy tribute on the ships of other peoples which navigated the Gulf, or to prohibit their passage altogether. The neighbouring cities and commonwealths were soon compelled to agree to her claim, which was eventually recognised by the other Powers of Europe and by the Pope. The right of Venice to the dominion of the Adriatic, arising in this way by force, became firmly established by custom and treaty; and even after she had fallen from her greatness and was hardly able to sustain her claim by the sword, it was still for a time admitted by other nations, who looked upon the Republic as forming a useful barrier to the farther extension of the Turk in Europe and as a scourge to the Saracen pirates.[1] On the other side of the Italian peninsula, the Republic of Genoa advanced a similar claim to the dominion of the Ligurian Sea, and some of the other Mediterranean states followed the example in the waters with which they were most immediately concerned.
Then in the north of Europe, Denmark and Sweden, and later Poland, contended for or shared in the dominion of the Baltic. The Sound and the Belts fell into the possession of Denmark, the Bothnian Gulf passed under the rule of Sweden; and all the northern seas between Norway on the one hand, and the Shetland Isles, Iceland, Greenland, and Spitzbergen on the other, were claimed by Norway and later by Denmark, on the principle referred to above, that possession was held of the opposite shores. The Scandinavian claims to maritime dominion are probably indeed the most important in history. They led to several wars; they were the cause of many international treaties and of innumerable disputes about fishery, trading, and navigation; they were the last to be abandoned. Until about half a century ago Denmark still exacted a toll from ships passing through the Sound,—a tribute which at one time was a heavy burden on the trade to and from the Baltic.
Still more extensive were the claims put forward by Spain and Portugal. In the sixteenth century these Powers, in virtue of Bulls of the Pope and the Treaty of Tordesillas, divided the great oceans between them. Spain claimed the exclusive right of navigation in the western portion of the Atlantic, in the Gulf of Mexico, and in the Pacific. Portugal assumed a similar right in the Atlantic south of Morocco and in the Indian Ocean. It was those preposterous pretensions to the dominion of the immense waters of the globe that caused the great juridical controversies regarding mare clausum and mare liberum, from which modern international law took its rise. The task of Grotius in demolishing them by argument was, however, materially facilitated by the exploits of Drake, Hawkins, and Cavendish on the part of the English, and of Jakob van Heemskerk on the part of the Dutch; and, as we shall show, the credit on having first asserted the freedom of the seas in the sense now universally recognised, belongs rather to our own Queen Elizabeth than to the Dutch publicist.
In thus appropriating the seas adjacent to their territories, or which formed the means of communication with them, the various nations were doubtless impelled by consideration of their own immediate interests. Sometimes it helped to secure the safety of their coasts or commerce; in other cases it enabled them to levy tribute on foreign shipping traversing the appropriated waters, and thus to increase their revenues; or it allowed them to preserve the fisheries for the exclusive use of their own subjects. In most instances, however, the principal object appears to have been to maintain a monopoly of trade and commerce as far as possible in their own hands, in accordance with the commercial spirit of the times.
But when the matter is more carefully examined in its historical aspects, a less selfish explanation may be found of the tendency to appropriate seas in the middle ages. In the state of wild anarchy which prevailed after the break-up of the Roman empire, pirates swarmed along every coast where booty might be had. Scandinavian rovers infested the Baltic, the North Sea, and the Channel; Saracens and Greeks preyed upon the commerce of the Mediterranean; everywhere the navigation of trading vessels was exposed to constant peril from the attacks of freebooters. The sea was then common only in the sense of being universally open to depredation.[2] The lawlessness and insecurity that reigned on the sea led merchants, in the absence of effective sovereign authority, to form associations among themselves for mutual protection, and to maintain by force the security of navigation in the common interest. Independent princes at first made use of the armed fleets of those voluntary associations, and later, as their power grew stronger and better organised, they took over the duty of policing the neighbouring seas under an admiralty jurisdiction of their own, which enforced the maritime laws and customs, such as the Laws of Oleron, that had been gradually developed among the merchant associations. In the thirteenth century this duty of exercising supreme admiralty jurisdiction on the neighbouring sea came to be regarded as a prerogative of sovereign power,[3] and it was only a short step further to the assertion of an exclusive dominion. It was natural that this assumption of sovereignty on the sea should first be made by the great trading cities of Italy, who then controlled the important traffic between the east and the west, and whose shipping was to be found in all the ports of Christendom. It was also natural that the Italian jurists should be the first to attempt to give it a legal sanction, by assigning a large part of the bordering sea for the exercise of those sovereign functions which were originally confined to the maintenance of order and the punishment of delinquents. There is little doubt that the assumption of sovereign jurisdiction in this way was advantageous to navigation and commerce in those times, though later, with the extension of commercial intercourse and the increased security of the sea, it became burdensome and unnecessary.
There are good reasons for the belief that the English claims to the sovereignty of the sea originated in this humble way—by the exercise of jurisdiction in the interests of peaceful commerce—some time after the Norman Conquest, and in all probability first of all in the Channel or the Straits of Dover. The earliest indication of it is to be found in the much-discussed ordinance which King John issued in 1201. By that ordinance any ships or vessels, “laden or empty,” which refused “at sea” to lower their sails when ordered to do so by the king’s lieutenant or admiral in any voyage appointed by the Council, and resisted the demand, were to be reputed as enemies, and the ships, vessels, and goods were to be seized and forfeited and the crews punished. This is the first evidence of the custom of lowering the top-sails and striking the flag which afterwards became so notorious as a supposed acknowledgment of the English sovereignty of the sea; and it is to be noted that, in later times at least, the vessel had not only to strike, but had also to “lie by the lee.” Considering the prevalence of piracy and the jurisdiction exercised by the state for its suppression, as above described, and in view likewise of the special measures taken by John to encourage and safeguard foreign commerce, the most reasonable explanation of the origin of the custom is that the demand for the sail to be lowered—and the largest vessels then had but one mast and a single sail—was to enable the king’s officers, who were there to maintain the security of navigation, to ascertain the true nature of the vessel which they challenged, whether it was a peaceful trader or a pirate. In all ages piratical vessels have been generally swift, and, if we judge from later times, the ships used in the navy were generally slow: the command to a vessel to lower its sails was thus made in order to deprive it of the power of escaping until the king’s officers had satisfied themselves as to its bona fides, and was equivalent to the gun that was fired in later times in connection with “visit and search.” Shortly before the ordinance was issued, John sent writs to the Mayor and Commonalty of London and to all the Sheriffs of England instructing that all merchants, of what nation soever, should have safe conduct to pass into and repass from England, and to enjoy peace and security.[4] It is noteworthy that in the first record relating to the seizure of a vessel for not lowering its sail (a Flemish herring smack, in 1402) it was pled on its behalf that it was not armed, and that the sail had been dropped at the first command. It is also noteworthy that the ordinance of John was placed in the Black Book of the Admiralty immediately after the mercantile marine laws.
Further evidence as to this sort of jurisdiction in the so-called “Sea of England” is to be found in the reign of Edward I., at the end of the thirteenth century and the beginning of the next, in the reign of Edward III., and later, more particularly in the famous rolls, “On the Supremacy of the Sea of England and the Right of the Office of Admiralty in the same,” as well as in the Black Book. The rolls referred to show that England had the sovereign jurisdiction in regard to the maintenance of peace and security in the Sea of England, but there is no evidence to indicate that that Sea extended far from the coast, or that the rights exercised differed from those put in force by other maritime states in the waters adjoining their territory. A great deal was made later of these rolls and of the ordinance of John, as proving that the Angevin or Plantagenet kings possessed the sovereignty of the sea; but beyond the jurisdiction in question, which doubtless was exercised in the Straits of Dover and perhaps in the Channel when the coasts on each side were in the possession of the crown, there is a lack of evidence to prove that any claim of the kind was made. In those times the kings of England were not infrequently styled Lords of the Sea, but this appears to have been either because of the existence of this “sovereign lordship” in the neighbouring waters, or, more usually, because they held at the time the actual command and mastery of the seas in a military sense. There were long periods when nothing was heard of any pretension by England to a special sovereignty of the sea, and, in point of fact, the characteristic features of appropriation were always absent. No tribute was levied on foreign shipping passing through the Channel or the narrow seas, even when both coasts were held by the king, as was done by Denmark at the Sound and by Venice in the Adriatic. After the battle of Agincourt, when Henry V. had been recognised by the Treaty of Troyes as the future king of France and the power of England was predominant, the proposal of Parliament that such tribute should be levied was set aside. Foreign ships of war freely navigated the adjacent seas without asking or receiving permission to do so. The sea fisheries, moreover, were not appropriated. All people were at liberty to come and share in them, and this freedom to fish on the English coast was expressly provided for in a long series of treaties with foreign Powers. The so-called sovereignty of the seas exercised by England thus differed from the actual sovereignty enjoyed by Venice and the northern states of Europe, whose rights were, moreover, recognised in numerous treaties with other nations.
Until the accession of the Stuarts indeed, any pretension of England to a sovereignty in the sea had but little international importance. The custom of lowering the sail by vessels encountering a king’s ship, which probably, as above described, originated in a practical way, had grown into a ceremony in which the top-sails were dropped and the flag hauled down; but it is evident that this was done, even in Tudor times, rather as a matter of “honour” and respect than as an acknowledgment of maritime sovereignty. But after the Stuarts came to the throne the claim of England to the sovereignty of the sea became prominent in international affairs. The doctrine may be said to have been introduced by this dynasty and to have expired with it. One of the first acts of James I. was to cause to be laid down on charts the precise limits of the bays or “chambers” along the English coast, within which all hostile actions of belligerents were prohibited. This sensible proceeding, which had reference to the continuance of the war between the United Provinces and Spain (from which James had himself withdrawn), is not to be regarded as in any sense an assertion of maritime sovereignty or jurisdiction beyond what was customary; and it does not appear that any other prince or state contested the right of the king to treat these bays and arms of the sea as territorial in respect of neutrality. The limits of the “King’s Chambers” were fixed by a jury of thirteen skilled men, appointed by the Trinity House, according to their knowledge of what had been the custom in the past; and there is little doubt that the limits they adopted merely defined in an exact way what was previously held to be the waters under the special jurisdiction of the crown, or, in other words, the “Sea of England,” though the latter doubtless included, at times at least, the Straits of Dover and perhaps the Channel as well.
But James went further than this. In 1609 he issued a proclamation in which he laid claim to the fisheries along the British and Irish coasts, and prohibited all foreigners from fishing on those coasts until they had demanded and obtained licenses from him or his commissioners. This policy of exclusive fishing, though in complete agreement with the views held in Scotland as to the waters “reserved” for the sole use of the inhabitants, was a reversal of the long-settled practice in England, where fishing in the sea was free. It is from this time that one may date the beginning of the English pretension to the sovereignty of the sea. The proclamation and the policy were aimed against the Dutch, the great commercial people of those times. Their ever-increasing herring fishery along the British coast was one of the principal sources of their wealth and power; by means of it indeed, according to their own accounts, they were able to maintain their vast commerce and shipping. The action of James may be looked upon as the first blow in the great contest between the English and the Dutch for maritime and commercial supremacy, which was prolonged throughout the seventeenth century; and the ready acceptance of the new policy by the English people was owing to the fact that the conditions had been gradually preparing for it in the preceding reign, while the two nations were still bound together in alliance against Catholic Spain. With the new development of commercial enterprise the English found the Dutch their competitors in trade in all parts of the globe to which they ventured. The feeling of jealousy that was thus engendered was embittered by the belief that they were often circumvented by the Dutch by unfair means, and this feeling deepened with every year as the century advanced. It was thus against the Dutch that the English pretension to the sovereignty of the sea was specially directed, and it eventually culminated in war. From various circumstances, and not least perhaps from the timid character of James when force was necessary, the policy of preventing the Dutch from fishing on the British coasts was not carried into effect in his lifetime. But with the tenacity that was a curious feature in his nature, his claim to the fisheries was kept alive and formed the subject of mutually irritating negotiations throughout the whole of his reign.
Under Charles I. the English pretension rapidly developed and reached its greatest height, in connection more particularly with the ship-money fleets. The need of an efficient navy for the most elementary duty of safeguarding the sea had been made fully manifest by the frequent and flagrant violations of the king’s sovereignty in his “chambers,” and even in the ports and harbours, both by the Dutch and Dunkirkers. And some of the reasons which were used to justify the formation of a powerful fleet, far beyond the requirements necessary to enforce the ordinary jurisdiction, were sound enough. Without it, it was said, the kingdom could not be made safe, whereas if the king had the command of the seas he would be able to cause his neighbours “to stand upon their guard” whenever he thought fit; and it could not be doubted that those who would encroach upon him by sea would do it by land also when they saw their time. But the pretensions of Charles went far beyond this. He had caused the records in the Tower to be searched for evidence of the ancient supremacy exercised by the crown in the Sea of England, and when they were found they were interpreted in the widest possible sense. Charles assumed the rôle of the Plantagenets with a good deal added. The bounds of the Sea of England were extended to the coasts of the Continent, and over all the intervening water the king was to enforce an absolute sovereignty. No foreign fleets or men-of-war were to be allowed to “keep any guard” in them, to offer any violence, or to take prize or booty. All passing through them were to be “in pace Domini Regis,” in the peace and under the protection of the King of England, who was Lord of the Seas, ruling over them as part of his territory, and he would take care that there was no interruption of lawful intercourse. And as an acknowledgment of this sovereignty, all foreign ships or vessels meeting with a king’s ship in “those his seas” were to lower their top-sails and strike their flag as they passed by. Charles even proposed to levy tribute on the foreign ships that passed through “his seas,” but by the advice of the Admiralty this was to be only voluntary, in payment for waftage or convoy.
These extraordinary pretensions Selden attempted to justify in his book, Mare Clausum, but Charles was unable to carry them into effect. It is pitiful to read of the proceedings of the great ship-money fleets, created under circumstances so memorable in English history, roaming about the Channel in their vain attempts to compel the French men-of-war to strike their flags, and in the North Sea forcing the king’s licenses on the poor Dutch herring fishermen. The Earl of Northumberland succeeded in the latter mission, against which the Dutch Government strongly protested, and there is no doubt that if the policy had been persisted in, the first Dutch war would have been antedated by some fifteen years.
At this period and during nearly all the remainder of the century the greatest prominence was given to the striking of the flag, which had continued to be a matter of small importance in the reign of James. It was now claimed as a token and acknowledgment of England’s sovereignty of the sea, and it was insisted on with the utmost arrogance. The “honour of the flag” burned like a fever in the veins of the English naval commanders, who vied with one another in enforcing the ceremony, not merely in the Channel or near the English coast, but in the roads and off the ports on the Continent; and the records relating to their achievements in this respect were treasured up in the archives of the Admiralty, to be used again and again in later diplomatic negotiations as to the rights of England to the sovereignty of the sea. Dutch ships, and in particular the men-of-war, made little scruple about performing the “homage.” The Government of the United Provinces were keenly concerned about their commerce and fisheries, and so long as the English pretension did not menace these substantial interests they were willing to show “respect” to the English flag—never, however, as an acknowledgment of any supposed sovereignty of the sea.
While Charles was on the throne no serious international consequences resulted from the enforcement of the salute. The Dutch, as has been said, readily rendered it, and by the prudent policy of Richelieu the French ships were kept out of the way; and not very long thereafter Charles was stripped of his sovereignty on land as well as on the sea. But a little later it had noteworthy results. It was the reluctance of Lieutenant-Admiral Tromp to lower his flag to Blake in their historic meeting in the Straits of Dover in 1652 that precipitated the first Dutch war. By this time the States-General of the United Provinces, and the State of Holland in particular, had considerably abated their readiness to render the “homage of the flag,” even as a mark of respect, thinking that it might be construed as an acknowledgment on their part that the Republic of the Netherlands was inferior to the Republic of England. They had dallied with the subject when it was brought before them in connection with the instructions to their fleets, and had refrained deliberately from giving precise orders about it. The Commonwealth, on the other hand, assigned as much importance to the striking of the flag as Charles had ever done, considering that it touched their dignity as well as their sovereignty in the seas, and the instructions they issued to the naval commanders were practically the same as those that had been given to the ship-money fleets. Even the godly Barebones’ Parliament of 1653, which looked upon the Dutch as a carnal and worldly people, held it necessary that the seas should be secured and preserved as peaceable as the land, as a preparation for the coming of Christ and the personal reign. The traditional sentiment of the English nation respecting supremacy at sea had never been stronger; their jealousy of the commercial pre-eminence of the Dutch was never keener. In the prolonged negotiations that preceded the conclusion of peace, Cromwell, who, until he became Lord Protector, acted as spokesman for the Council, put the questions relating to the dominion of the sea in the foreground. The draft articles which he submitted to the Dutch for their acceptance, while permitting their merchant vessels to navigate the British seas (a provision offensive in itself), proposed to limit the number of their men-of-war that might be allowed to pass through those seas, and if occasion arose for a larger number, the Dutch Government were to give three months’ notice to the Commonwealth and obtain consent before they put them forth. Their men-of-war, as well as their merchant vessels, were to submit to be visited and searched. The Dutch were to have liberty to fish upon the British coasts on payment of an annual sum for the privilege. They were to render the honour of the flag to any ship of the Parliament. Of all these demands the only one that was conceded was the last, and it was a small triumph for Cromwell that he was able, for the first time, to bind another nation to this ceremony by the formal stipulation of a treaty. The Dutch, however, were able to eliminate from the article the words representing that the striking of the flag was an acknowledgment of England’s sovereignty of the sea; and it was pointed out in Holland that they had undertaken to do nothing more than they had previously done.
After the Restoration the pretension to the sovereignty of the sea was continued with almost as much zeal as before. Charles II. did not indeed lay claim to an absolute dominion over the British seas, such as his father had done in the earlier part of his reign. But on all occasions when the opportunity offered, he held to his alleged right to levy tribute for the liberty of fishing on the British coasts, but without the least success. And as for the right to the “honour of the flag,” if it was not exacted with the same arrogance as it had been earlier in the century, it came now to be more than ever before a subject of importance in international relations, especially with the United Provinces. De Witt, the able Minister who directed Dutch affairs, was very desirous to arrive at a definite understanding about it, for he saw that to leave in ambiguity a matter which England regarded as touching her national honour would be to imperil the peaceful relations between the two countries. His object was to have a well-considered regulation prepared and agreed to, so that the points in ambiguity might be made clear, and also to provide that if the Dutch saluted first the English should then return the salute; and he stipulated that the striking of the flag or any agreement about it must not be looked upon as an acknowledgment of England’s so-called sovereignty of the sea; the Dutch, he said, “would rather die” than admit it. One of the points which was in obscurity was whether a whole fleet or squadron of the States was to strike to any single ship of the king’s, even if it was a frigate or a ketch, which did not customarily carry the royal flag in the main-top, or only to an admiral’s ship or one carrying the royal flag. De Witt let it be known in the clearest manner that in his opinion it was intolerable that an English frigate or ketch could claim to force a whole Dutch fleet to strike to it. A few years later, when Charles wished to give effect to his secret compact with Louis XIV. by waging war against the United Provinces, it was necessary to hoodwink the English people as to this flagrant breach of treaty obligations. He therefore contrived, as the means of picking a quarrel with the Dutch, a dispute about the honour of the flag, and he sent, not a frigate, but his yacht, the Merlin, to force the whole Dutch fleet to strike to it, and thus to raise a clamour in England, as he hoped, about the sovereignty of the sea being flouted and endangered. In the third Dutch war which followed, the United Provinces maintained the contest at sea with credit and success against both the English and the French. For domestic reasons Charles was forced to make a separate peace, and in the long negotiations with that object the question of the sovereignty of the sea was brought prominently forward. An attempt was made again to induce the Dutch to agree to pay an annual sum of £12,000 for the privilege of fishing on the British coasts, but the only concession obtained from them related to the striking of the flag. The article in the treaty of peace which dealt with this differed from the corresponding article in previous treaties. The term “the British Seas” was omitted, and it was agreed that even squadrons of the Dutch should strike to any single ship of the king’s in “any of the seas” from Cape Finisterre to Van Staten in Norway; but it was to be done as an “honour” to the king’s flag, and not as an acknowledgment of his alleged sovereignty of the sea. The Dutch, indeed, offered to strike in the same way all the world over.
After this time the English claim to the sovereignty of the sea began to lose its importance. In subsequent treaties with the Dutch Republic, even as late as 1784, a clause was inserted providing for the salute, but it had become merely a matter of form and precedent. The ceremony, in truth, had grown to be a political encumbrance, and after the battle of Trafalgar, when British supremacy at sea was unquestioned, the clause relating to the enforcement of the salute was quietly dropped out of the Admiralty instructions.
It is remarkable that throughout the whole of the long period in which England claimed sovereignty in some form or other over the so-called “Sea of England,” or the “British Seas,” no authoritative definition was ever given of the extent of sea included in the term. In the case of the Adriatic there was no difficulty in understanding the limits within which Venice assumed maritime dominion, for the Adriatic is a narrow landlocked gulf whose boundaries were obvious. It was much the same with the claims put forward by Denmark. Both shores of the Sound were in her possession, and both coasts of the northern or Norwegian Sea. But with our island, washed everywhere by the waves, no such natural boundaries existed. Except when the crown possessed the opposite coast of France, England was isolated; and the Sea of England, so frequently referred to from the thirteenth to the seventeenth century, like the British Seas later, remained only a political expression, not officially described or represented on charts. Reasons have been given above for supposing that the Sea of England prior to the accession of the Stuarts included the waters of the King’s Chambers as defined by James, and perhaps also at times the Straits of Dover and it may be the Channel, though precise evidence is lacking. In the seventeenth century, when the term the British Seas was commonly used, it is clear that the boundaries assigned to them were as vague and fluctuating as the sovereignty exercised over them. They expanded and contracted according to the naval power at the time and the condition of international affairs. Sometimes the whole sea up to the continental coasts was claimed as British; at other times the claim was restricted to the Channel or the Straits of Dover, and to a more or less narrow but undefined belt along the coast; not unfrequently it seemed to vanish altogether, at least as a thing to be regarded in international affairs. In the earlier records in which the sea is referred to in connection with English law or jurisdiction, it is evident that a certain part was held to appertain to the crown. In an article in the Black Book of the Admiralty which is ascribed to the reign of Henry I. (A.D. 1100-1135), reference is made to “the sea belonging to the king of England”; in John’s ordinance of 1201 the term was simply “the sea” (la mer), but very commonly it was “our sea,” or the “sea of England,” or “the sea under the dominion or jurisdiction of the king”; while the declaration is often made that the kings of England are lords of the sea or of the English sea.[5] Similar phrases were used in later times. Thus Queen Elizabeth spoke of “our seas of England and Ireland,” and James of “his seas” and “streams,” as did also Charles I.; and such terms as “the adjacent sea,” the “environing seas,” the “ambient seas,” and “the seas flowing about the isle,” were not uncommonly used.[6] Still more common and scarcely more definite was the term the “Four Seas of England,” or simply the “Four Seas,” which was employed as early as the thirteenth century in law books, statutes, and official documents, as indicating the boundaries of the realm in connection with legal proceedings. Within the four seas (infra or intra quatuor maria; dedeinz les quaters meers) was to be within the realm; and without the four seas (extra quatuor maria, oultre les quaters meers) was to be without the realm.[7]
In the seventeenth century, when the English pretension to the sovereignty of the sea was at its height, Coke, Selden, Prynne, and others maintained that to be on the four seas, as well as within them, was to be within the realm, under the jurisdiction of the Admiralty, and this doctrine was held, at least formally, as late as 1830.[8] Rarely the “Three Seas” are mentioned,[9] and less rarely the “Two Seas,” by which was meant the two arms of the sea passing respectively between England and France, and England and Flanders, and corresponding to one of the meanings of the Narrow Sea.
The term, the Narrow Sea or the Narrow Seas, was applied at different times or by different writers to very various areas. In its original and more restricted sense it denoted the Straits of Dover; sometimes it signified only the southern sea or the Channel proper; at other times it included also the sea south of the Wash and the Texel; and yet again it was synonymous with the whole of the British seas in which dominion was claimed. In the political poem, The Libelle of Englyshe Polycye, which was written about 1436 with the object of rousing the nation to the paramount duty of “keeping the sea,” the narrow sea is spoken of as lying between Dover and Calais,[10] as it is also in the records of the Privy Council for 1545, which mention the appointment of ships to “kepe the passage of the Narrow Seas.”[11] Later in the same century, and very generally in the seventeenth century, it was used to include the Channel, as when the Earl of Salisbury in 1609 referred to “his Majesties narrow seas between England and France,”[12] and likewise the sea off the Dutch coast; and at this period the Admiralty usually distinguished between the guard of the Narrow Seas and that of the North Sea.
But in other cases, and very commonly in the seventeenth century, the Narrow Sea was equivalent to the marginal sea along the whole coast or to the “British Seas.” Thus in one of James’s proclamations in 1604 for preventing abuses in and about “the narrow seas,” they are referred to as being commonly called the four English Seas, and this was repeated in a proclamation of Charles I. in 1633. So also Lord Chief Justice Hale in his treatise, De Jure Maris, describes the narrow sea, adjoining to the coast of England, as part of the waste and demesnes and dominions of the King of England; and in another work he speaks of the narrow sea lying between us and France and the Netherlands.
After the union of the Crowns the “British Seas” were very often referred to, and there was equal want of definition of their limits as in the case of the Sea of England. The advocates of the English claims to the sovereignty of the sea assigned them a wide but vague extent, while the Dutch argued that the British Sea was the Channel, the Mare Britannicum of Ptolemy and others, the North Sea being distinct and known as Oceanus Germanicus. In many of the diplomatic negotiations that took place on the subject there were heated discussions as to the meaning of the term the “British Seas,” and in point of fact the British representatives, like the Admiralty itself, were unable to define them. The only serious attempt which was made to define the Sea of England or the British Seas in relation to the claim to its sovereignty was made by Selden in 1635. It did not fail on the side of modesty, for according to him the Sea of England was “that which flows between England and the opposite shores and ports.”[13] More particularly in the opening chapter of his second book he describes the British Sea (Oceanus Britannicus) as being divided into four parts according to the four quarters of the world. On the west lay the Vergivian Sea, also called the Deucaledonian Sea where it washes the coasts of Scotland, and in which Ireland is placed; on the east is the German Ocean, so called by Ptolemy because it lies opposite the German shore; on the south, between England and France, is the sea especially noted by Ptolemy as the British Sea, the Mare Britannicum; but in reality all the sea extending along the shores of France through the Bay of Aquitaine (Bay of Biscay) as far as the northern coast of Spain was British. Since the northern and western ocean stretches to a great distance, to America, Iceland, and Greenland, and to parts unknown, it could not “all be called British,” but inasmuch as the King of Great Britain had very large rights in those seas, beyond the extent of the British name, it was not wholly to be left out of account. The indefiniteness of these boundaries to the north and west is obvious, but in a chart which he furnished, and which is reproduced in the frontispiece of this book, he presumably represented what he regarded as the British seas proper; and in several places in his work he expressly declared that the English sea and the English sovereignty of the sea extended to the opposite shores of the Continent.
Throughout almost the whole of the remainder of the century after the appearance of Mare Clausum, Selden’s authority was paramount on all questions relating to the sovereignty of the sea, and his description of the extent of the British seas was very generally adopted, both by writers and by the Government, at least in theory. But it not infrequently happened on particular occasions when a precise definition of their extent was required, that only a vague declaration was forthcoming. Again and again one finds English admirals and naval commanders imploring the Admiralty to tell them the bounds of the British seas, so that needless broils about the salute might be avoided. As a rule, no reply was given to their inquiries; and when it was, it was usually so oracular as to be of little practical advantage. Thus the Earl of Lindsey, when placed in command of the first ship-money fleet, put the question to Secretary Coke, and was told that his Majesty’s seas “are all about his dominions, and to the largest extent of those seas,” and similar explanations were given on other occasions. There is evidence that neither the Admiralty nor the law officers of the crown were able to state what the boundaries of the British seas were, and sometimes the Trinity House was appealed to, with but little better result. In truth, it was part of the national policy to leave their boundaries undetermined. The free navigation of the North Sea and the Channel was of vital importance for many of the states of Europe, and three of them at least—the Netherlands, France, and Spain—had large interests in the fisheries on the British and Irish coasts. If this country had by a formal act of state assigned definite and wide boundaries to the British seas within which sovereignty was claimed, it would have led to frequent and hopeless wars or to constant humiliation. By leaving them vague and ambiguous the pretension to maritime sovereignty could be put forward and used as a political instrument when the navy was strong and occasion offered, and when the navy was weak the pretension might fall into the background without the national honour being unduly tarnished. But on the whole, the claim to the sovereignty of the so-called British seas became an anachronism and was allowed to die out from practical affairs, surviving only in the pages of historians, naval writers, and pamphleteers. During the almost constant naval wars in the eighteenth century a new principle came into being for the delimitation of the neutral waters of a state, the extent of the adjacent open sea that might be appropriated being determined by the range of guns from the shore. All the water within reach of cannon-shot could be protected and commanded by artillery on the land, and thus made susceptible of exclusive and permanent dominion. This principle was accepted very generally by the various maritime Powers as offering a just and equitable means of fixing the limits of their territorial waters, within which the bordering state had exclusive sovereign jurisdiction. It has also been accepted by the great majority of modern publicists, and the phrase of Bynkershoek, “terræ dominium finitur ubi finitur armorum vis,” has become enshrined in the Law of Nations.
Later, and mainly through the action and practice of the United States of America and Great Britain since the end of the eighteenth century, the distance of three miles from shore was more or less formally adopted by most maritime states as equivalent to the range of guns, and as more definitely fixing the limits of their jurisdiction and rights for various purposes, and, in particular, for exclusive fishery. At the time the three-mile limit was introduced, that distance did indeed represent the farthest range of artillery, so that the boundary was the same in each case; and it was sufficient to secure to neutrals that their coasts should not be violated by the operations of belligerents carried on beyond three miles from the shore, while at the same time it furnished a practical measure of the extent of the protection that neutral Powers were bound to afford to the vessels of one belligerent from attacks by the other. But all this is changed. Guns are now able to throw shells to a distance of fifteen miles and more, and the three-mile limit has become quite inadequate to secure the coasts of a neutral from damage from the guns of belligerents engaged in hostilities in the waters near their shores. The argument is not uncommonly used that inasmuch as Great Britain is the predominant maritime Power, it is to her advantage that the territorial waters of all countries should be as narrow as possible. The wider the theatre the better chance for our navy, either in engaging the battle fleets of the enemy or in capturing his shipping. The importance of the change in the conditions referred to above is overlooked. There has been no great maritime war in Europe since the three-mile limit was adopted as the equivalent of the range of guns. If and when another maritime war unfortunately breaks out, it would be absurd to suppose that the neutral Powers within the sphere of possible operations would be content with a three-mile limit to safeguard the security of their coasts. As provided for in the rules drawn up by the Institute of International Law, their duty would be to prohibit all hostilities within such distance of their coasts as would render them secure, and this in turn would involve the immunity from capture within the same space of the merchant vessels of one of the belligerents by the vessels of the other. And thus if this country were engaged in a great maritime war, such as occurred a century or so ago, a very considerable belt of sea on neutral coasts would be closed to the operations of the fleet, and the conditions of naval warfare would be profoundly changed.
With regard to the other questions of sovereignty or exclusive rights in the seas washing the coasts of a country, it is becoming more and more recognised that there is no reason in nature why the boundary for one purpose should be the boundary for all purposes. Just as the three-mile limit is now obsolete in respect to belligerents and neutrals in time of war, so is it inadequate in all cases with regard to the protection and preservation of the sea fisheries. In the concluding chapters of this book it is shown that all recent inquiries by Parliament into the condition of the fisheries, especially of the North Sea, have resulted in proving the inadequacy of the present limit for fishery regulations, and in recommendations that the subject should be dealt with internationally by the various countries concerned.
SECTION I.
THE HISTORY OF THE CLAIMS TO THE SOVEREIGNTY OF THE SEA
CHAPTER I.
EARLY HISTORY.
When the claim of the English crown to the sovereignty of the British seas became a question of international importance in the early part of the seventeenth century, the records of history and the treasures of ancient learning were searched for evidence to establish its antiquity. Some of the greatest lawyers and scholars of the time took part in the task, and they were not always content with the endeavour to prove that the claim was in conformity with the laws of England as an old heritage of the crown, but they tried to trace it back to a remote past. Selden, who was incomparably the ablest and most illustrious champion of the English pretension, as well as Boroughs and Prynne and other writers of lesser note, laboured with more or less erudition and ingenuity to show that the British dominion in the adjoining seas was anterior to the Roman occupation. From the ancient Britons it was supposed to have passed to the Roman conquerors as part and parcel of the British empire, and to have been exercised by them during their possession of the island.[14] It is unnecessary to discuss the evidence and arguments for these contentions. They are for the most part drawn from scattered passages or even phrases in the writings of classical authors, to which a strained and improbable significance was assigned. An example may be given from Selden, who, in referring to the well-known passage in Solinus[15] in which Irish warriors are described as decking the hilts of their swords with the tusks of sea-beasts (walrus), first tries to show that the passage applied also to the Britons, and then argues that there must have been a great fishing and a large number of fishermen to provide sufficient material, the conclusion being that the British seas were “occupied” by navigation and fishing. In reality the walrus tusks came by barter from the north, and there is little or no evidence to show that the ancient Britons fished for anything except salmon. At the utmost it may be said that the Romans were masters of the British seas, or parts of them, in a military sense. During their occupation of Britain they were also in possession of Gaul, and thus held both coasts of the narrow sea, and no doubt exercised authority over it, as the Norman and Angevin kings under similar circumstances did later.
Throughout the Anglo-Saxon period of English history evidence of the existence of a sovereignty over the adjoining sea, or even of a pretension to it, is almost as unsatisfactory. Here again the authors who championed mare clausum professed to find in very ordinary events arguments in favour of their case. The seafaring habits of the Teutonic invaders and their daring and valour—they were described by the Roman poet as sea-wolves, fierce and cunning, with the sea as their school of war and the storm their friend—were regarded as proof that they possessed maritime sovereignty after their conquest of Britain. The Danegeld, a tax which was originally levied as a means of buying off the Danes, or of providing a fleet to resist their attacks, was thought by Selden to show the same thing.[16] So also with the fleets collected by Alfred, Edgar, Ethelred, and other English kings to oppose the invasions of the Northmen,—they were believed to have secured and maintained dominion over the sea. Even the beautiful lesson in humility which Cnut desired to convey to his courtiers when, seated in regal pomp on the seashore, he vainly commanded the inflowing tide to stay its course at his behest, was seized on for the same end. “Thou, O sea,” said the great king, “art under my dominion, like the land on which I sit; nor is there any one who dares resist my commands. I therefore enjoin thee not to come up on my land, nor to presume to wet the feet or garments of thy lord.” In these words Selden professed to find clear proof that Cnut claimed the British seas as part of his dominions.[17]
There appears to be only one instance before the Norman Conquest in regard to which prima facie evidence was produced that an English king expressly claimed the sovereignty of the sea, and as it is constantly quoted by later writers it may be worth while examining it. The chronicles agree that the naval power of England was specially manifested by King Edgar (A.D. 959-975), who is said to have possessed a fleet of several thousand vessels, with which he cruised every year along the English coasts. In the words of the Saxon Chronicle, “no fleet was so daring, nor army so strong, that mid the English nation took from him aught, the while that the noble king ruled on his throne.”[18] According to William of Malmesbury, who wrote in the twelfth century, Edgar usually styled himself the sovereign lord of all Albion and of the maritime or insular kings dwelling round about,[19] the assumption being that he also exercised sovereignty over the intervening and surrounding seas. In a charter by which Edgar, in 964, granted large revenues to the Cathedral Church at Worcester, the claim to the ocean around Britain is more definite, and it is this version that is usually quoted by the writers maintaining the antiquity of the English rights.[20] The title thus said to have been used by Edgar is expressive enough, but an important difference in the wording of this part of the charter is to be found in the transcript printed by Coke in the Epistle to the Fourth Book of Reports, by Spelman,[21] Wilkins,[22] and by the more recent authorities on Anglo-Saxon charters, Kemble,[23] Thorpe,[24] and Birch,[25] from which it appears that Edgar claimed to be, not lord of the sea, but of the islands in the sea.[26] This is the version given by Sir John Boroughs in his Sovereignty of the British Seas, and it is also mentioned by Selden. But, after all, the authenticity of the preamble of this charter is not well established. Kemble marks it as doubtful, a view supported by intrinsic evidence as to an imaginary conquest of Ireland. Thorpe is of opinion that the preamble was fabricated about 1155, when Henry II., in concert with Pope Adrian IV., was meditating the conquest of that island. It may therefore be concluded that King Edgar’s assumption of maritime sovereignty had its source in a monkish fable, although he may have possessed the actual command of the sea in his time. Later on, the supposed rôle of Edgar among the Anglo-Saxon kings was a common argument for the English claims. He was looked upon as a sort of patron saint of the doctrine that the kings of England were lords of the sea. Charles I. put his effigy on the beak of his great ship, the Sovereign of the Sea, and inscribed his name in a motto on her guns. Oliver Cromwell, too, quoted his exploits to the Dutch ambassador in the course of the negotiations after the first war with Holland.
It is not to the Anglo-Saxon period of our history that we must look for the origin of the claims of England to the sovereignty of the sea, even in a purely military sense. At that time, for at least three centuries before the Norman Conquest, the Northmen and not the English were the real lords and masters of the sea. They offered an example of what is now so much spoken of as the influence of sea-power on history that is unsurpassed in later annals. Their leaders were styled sea-kings for the best of reasons. Their fleets darkened every coast from within the Arctic circle to the furthermost bounds of the Mediterranean. Through their command of the sea they took permanent possession of the larger part of England; they penetrated almost every great river in Europe—the Elbe, the Schelde, the Rhine, the Seine; they formed settlements from Friesland to Bordeaux; they discovered and planted colonies in Iceland (A.D. 861), Greenland (A.D. 985), and North America (A.D. 861); and they founded kingdoms or dynasties not only in England, but in France, Sicily, Ireland, and Russia.[27] In the presence of such irrepressible energy in maritime and warlike enterprises the English were not able to hold their own on the sea, far less to acquire dominion over it.
It is not until a considerable time after the Norman Conquest that valid evidence is to be found of the English claim to the sovereignty of the sea. Although obscurity surrounds the precise time and mode in which the pretension took its rise, there is little doubt that it originated in the period following the Conquest. The shores on both sides of the Channel were then brought under the same dominion. In the reign of Henry I. almost the whole of the Atlantic coast of France from Flanders to the Pyrenees was in the possession of the English crown, and for about four and a half centuries, until the loss of Calais in 1558, England held more or less territory in France. The Channel thus became in effect an English sea—the narrow sea—intervening between the continental and insular territories of the king, and it acquired high importance as the passage from one part of the realm to the other. It was in this connection and for the guarding of the coasts that the organisation of the Cinque Ports was developed by the Norman and Angevin kings.[28] Even after the loss of the French provinces, the continued possession of the Channel Islands and the usual possession of Calais kept alive the English claim to the narrow sea. The Conquest was, moreover, followed by a great increase in the stream of traffic between the two countries,[29] while fishermen from Normandy and Picardy, as well as from Flanders, came in large and increasing numbers to take part in the great herring fishery along the east coast of Scotland and England.
During the frequent wars with France from the commencement of the twelfth century onwards, the Channel acquired special significance from a military point of view, and it was from this time that the importance of “keeping the narrow seas” began to be recognised in English policy. The command of the Channel was not only of value in safeguarding the coast. The Channel formed the great avenue of commerce between the north and south of Europe. The merchant vessels from Venice, Genoa, and the Mediterranean, from Spain and France, passed northwards through it on their way to Flanders and the Baltic, and those from the Hanseatic towns and northern parts had in like manner to traverse it in their southern voyages. The Channel was thus crowded with shipping in summer, and the nation which commanded it had the power of interrupting the commerce of other nations, and consequently retained a potent political weapon in its hands. It is this aspect of “keeping the narrow sea” which forms the burden of the remarkable old poem, The Libelle of Englyshe Polycye.
Moreover, in the period following the Norman Conquest another condition came into existence in connection with the security of the commerce passing through the Channel, which throws light on the origin of the English claim to sovereignty over it. As already mentioned, owing to the lawlessness that prevailed on the sea after the break-up of the Roman empire, when pirates and freebooters infested every coast, it became customary for merchants to associate themselves together for mutual protection. Their vessels sailed forth in fleets under the charge of an elected chief, called the “admiral,” and armed vessels were frequently fitted out by them for the express purpose of purging the sea of pirates. In the course of time this duty of maintaining the police of the seas was taken over by sovereign princes, who exercised their jurisdiction through an admiralty, and put in force the old “laws of the sea” which had gradually grown up among the merchant associations.[30] In the thirteenth century this supreme admiralty jurisdiction came to be regarded among the principal states of Europe as a prerogative of sovereign power, and it is about this time and in this connection that we first find certain evidence of the claim of England to the sovereignty of the adjacent sea. The Plantagenet kings, or at all events some of them, asserted the right of “maintaining the ancient supremacy of the Crown over the Sea of England” by exercising jurisdiction according to the old maritime laws, for the maintenance of “peace and justice amongst the people of every nation passing through the said sea.”[31] It was the production of the old rolls concerning these claims by Sir John Boroughs, the Keeper of the Records in the reign of Charles I., which furnished that king with the material on which to base his pretension to the sovereignty of the sea.
The English writers of the seventeenth century who strove to prove that the kings of England anciently exercised an exclusive sovereign jurisdiction over the so-called Sea of England, as if it were a “territory or province of the realm,” quoted largely from the old Admiralty records. Selden sought to show that they had perpetually enjoyed the dominion of the surrounding sea from the coming of the Normans from the fact that they had maintained a guard upon it.[32] The evidence adduced, however, merely proves that measures were taken for guarding the seas, defending the coasts, and suppressing piracy,—duties which were discharged, even in the same seas, by the Admiralty of other countries, as that of France. Such phrases as “to guard the seas,” “to guard the sea and sea-coasts,” are common enough in the early records of the Admiralty,[33] but they do not imply exclusive dominion. It was a duty common to neighbouring nations. In England, from the time of Henry I., at the beginning of the twelfth century, orders were given for the seas to be guarded as occasion required; and officers were appointed by Henry III. and other kings as Wardens, Keepers, and Guardians of the sea and sea-coasts, and also as Governors and Captains of the Navy, whose title was subsequently changed to Admiral in the latter part of the thirteenth century, following the practice of the merchant associations, as above mentioned. Much was made by the English writers of the appointment of admirals by the kings of England for safeguarding the sea. The first appears to have been appointed in 1297 with the title of Admiral of the Sea of the King of England,[34] but before this time the King of Castile and Leon had appointed an admiral with similar duties, and an Admiral of all France was appointed about the year 1280.[35] So too with the equipment of fleets. Edward I. divided the ships charged with the guarding of the seas into three squadrons, each with an admiral,—a measure which, it was argued, showed his resolution to maintain his dominion of the sea. But the practice in France was similar. From an early period French fleets were equipped under “governors or custodians of the sea” (præfectus maris), “lieutenants-general of the sea and the shores thereof,” and “admirals,” and their maritime jurisdiction was regulated from at least the early part of the fourteenth century.[36] Selden laboured to show that the office of admiral and the admiralty jurisdiction had a different significance in France from what they had in England,[37] but on quite inadequate grounds.
Another class of evidence adduced by the English authors refers to the impressment of ships for the defence of the realm or the transport of troops on occasions of emergency. These duties were at first performed by the vessels of the Cinque Ports, in accordance with their charters; but as early at least as the reign of Richard I., ordinances were issued (at Grimsby) regulating the mode of arresting vessels and men for the service of the king,[38] and it became an established and common practice. Numerous instances occur which show that on such occasions foreign vessels were not exempt from arrest, though compensation was at least sometimes made to their owners.[39] The argument of the English writers that these arbitrary proceedings were evidence of the dominion exercised by the kings of England on their sea is rebutted by the practice in France. Froissart[40] tells us that the French adopted similar measures in 1386 when they were preparing for an invasion of England, and the practice was doubtless common enough, and justified by the emergency which occasioned it.
With regard to the most important attribute of maritime sovereignty—the right to exclude others from an equal use of a particular sea by prohibiting navigation, at least of vessels of war, and from fishing in it, or by imposing dues and conditions for the liberty—there is scarcely a scrap of evidence to show that any authority of the kind was exercised by England in the adjacent seas. The circumstance is noteworthy, inasmuch as other countries which then enjoyed undoubted maritime sovereignty, did not permit unrestricted navigation or fishing in the seas specially under their control, as Venice in the Adriatic, and Denmark in the northern seas and in the Baltic. The evidence concerning the liberty of fishing in the sea along our coasts is dealt with in another chapter, but it may be said here that this liberty was provided for in a series of treaties with other Powers. As for liberty of navigation, it was asserted, or rather implied, by Selden, in guarded language, that the kings of England anciently possessed the power of refusing it;[41] but the evidence relates for the most part to passports and safe-conducts “by land and sea,” and to the impressment of vessels, referred to above. There appears to be not a single fact to prove that the liberty of innocent navigation in the English seas was ever interfered with by the king. The Parliament of Ireland, it is true, passed an Act in 1465 prohibiting all foreign vessels “from going to fish at Ireland among the king’s enemies” without first obtaining a license, on pain of forfeiture of the vessel. But it is clear from the preamble that the Act was passed because foreign vessels frequenting the Irish coast for fishing were supplying the king’s enemies with money, arms, and provisions.
Nor is there any valid evidence that tribute was ever imposed on foreigners for liberty of navigation in the sea of England. A case frequently quoted to the contrary was the imposition of a duty by Richard II., in 1379, on merchant vessels and fishing smacks, to provide means for the defence of the eastern coast and the security of navigation and fishing. At that time the English navy had almost ceased to exist, through the mistaken policy of Edward III. in the latter part of his reign. In 1377 a French and Spanish fleet had not only scoured the seas, but plundered and burned Rye, Folkestone, Hastings, Plymouth, and other towns on the southern coast, which they ravaged. In the following year they continued their depredations on the English coast, and held such complete command of the sea that “no victualler, fishing boat, or any other, could pass or return without being taken.”[42] In 1379, as the enemy still held the sea and the coast, Parliament, after consultation with the merchants, decreed that certain duties should be levied to provide means to secure the safeguarding of the sea, and among these was one on vessels laden with goods belonging to merchants of Prussia, Norway, or Scania. Selden says this ordinance applied to foreign as well as English vessels, which had therefore to pay for passage through the sea “just as one may exact payment for passage over one’s field.”[43] But there is no evidence that the tax was levied on other than English vessels; and in any case it is clear from the preamble that it was a voluntary arrangement, and probably made at the request of the merchants themselves, who had been petitioning the king and Parliament for protection.[44] It is noteworthy also that the keepers of the northern sea were not to convoy the vessels to or from Flanders and Calais unless they were paid for doing so.
An incident which occurred early in the next century shows the temper in which the Parliament regarded the sovereignty of the narrow sea, as well as the caution of the king. By that time the English navy had recovered its strength and France lay prostrate at the feet of Henry V., and the Parliament petitioned the king to levy an impost on all foreign ships passing through the Channel, in emulation, no doubt, of the practice of the Danish kings at the Sound. It was a few years after the battle of Agincourt, and the Treaty of Troyes, by which Henry was recognised as the future king of France, had just been concluded. “The Commons pray,” ran the petition, “that seeing our Sovereign Lord the King and his noble progenitors have ever been Lords of the Sea, and now by the grace of God it has come to pass that our said Lord the King is Lord of the shores on both sides of the sea, such tribute should be imposed on all strangers passing through the said sea, as may appear reasonable to the King for safeguarding the said sea.”[45] The answer of the king was that he would consider it (soit avise par le Roy), the usual formula of refusal. In the following year Henry was again involved in war with France, and he died in 1422 and nothing more was heard of the proposal. But it is extremely doubtful if he or any other English king would have ventured to adopt the policy recommended by the Commons. The shipping that passed through the Channel was far more voluminous and important than that passing through the Sound, and the waterway could not be so easily commanded, as by guns from the shore. Any measure of the kind would doubtless have led to a combination of other maritime Powers against England, which would have been fatal to the attempt. It may be noted that the Parliament based their proposal on the king’s possession of both shores; and this, in accordance with the opinions of the Italian lawyers of the preceding century, whose authority was great, carried with it the right of sovereignty over the intervening sea.
The statement in the petition that the kings of England had ever been lords of the sea is true at least to the extent that on several occasions previously the title was applied to them, and this was usually at times when they possessed actual supremacy and mastery over the seas in a special manner, though it may also have implied the idea of sovereign jurisdiction. Nearly a century earlier than the above petition we find the same title used by Edward III., who is peculiarly identified with the naval glory of England, and he too refers to his progenitors as having been lords of the sea. In a mandate to his admirals in 1336, the king, after stating that twenty-six galleys of the enemy were reported to be on the coasts of Brittany and Normandy, said: “We, calling to mind that our progenitors, the Kings of England, were Lords of the English sea on every side, and also defenders against the invasions of enemies before these times; and it would greatly grieve us if our royal honour in such defence should be lost or in any way diminished in our time, which God forbid, and being desirous with the help of God to obviate such dangers and to provide for the safety and defence of our realm and people, and to restrain the malice of our enemies: We strictly require and charge you” to proceed against the galleys, &c.[46] Later in the same year, in a commission to certain nobles, prelates, and the Warden of the Cinque Ports respecting measures to be taken against the Scottish fleet, which was attacking merchant and other ships, and had ravaged Guernsey and Jersey, the king desired it to be remembered that his progenitors the kings of England, in similar disturbances between them and other lords of foreign lands, were in all bygone times “lords of the sea and of the passage across the sea,” and he would be much afflicted if his royal honour should be in his time impaired.[47] These declarations, made in the first half of the fourteenth century, indicate clearly enough at least the pretension to special interest and jurisdiction in the narrow sea and the Straits of Dover on the part of the earlier kings. No English king deserved the title of Lord of the Sea better than Edward III. Only a few years after the above missives were written he gained the memorable victory over the French in the battle of Sluys, and in 1350 the equally great victory over the Spaniards off Winchelsea (“Les Espagnols sur Mer”), commanding the fleet in person on each occasion.[48]
Fig. 1.—Edward’s Noble.
It appears to have been in connection with the former victory that Edward coined his famous gold noble, in which the obverse bears the effigy of the king, crowned, standing in a ship with a sword in one hand and a shield in the other, while the reverse bears the legend from St Luke, Jesus autem transiens per medium eorum ibat, “but Jesus, passing through the midst of them, went his way,” which Nicolas thinks was meant to indicate the action of the king in passing through the French fleet at the battle of Sluys. The impress on the obverse has been usually regarded as symbolic of Edward’s power and sovereignty on the sea. The unknown author of The Libelle of Englyshe Polycye, written some ninety years later, makes frequent reference to Edward’s noble,—
“Ffor iiii thynges our noble sheueth to me,
Kyng, shype, and swerde, and pouer of the see,”[49]—
and it is always mentioned by the English writers on the sovereignty of the sea as evidence that Edward exercised that sovereignty. A recent author[50] doubts whether there was any connection between Edward’s noble and the battle of Sluys or the claim to the sovereignty of the sea; but at all events in the next century, in the reign of Henry VI., when the naval power of England had again sunk to a low point, the noble was made an object of jest and derision among foreigners, especially the Flemish and French. They told the English to take away the ship from their noble and put a sheep on it instead—an allusion, no doubt, to the growth of sheep-farming in England.[51]
If Edward intended to symbolise his naval power and sea sovereignty by the device on the gold noble in the early part of his reign, it was certainly inappropriate towards the end of it. The navy had been starved for the sake of the army, and when the Spaniards defeated the English fleet and were masters of the sea, complaints became rife as to the insecurity of the country. The king had then to listen to language from his Parliament to which he was unaccustomed, and which must have galled him. There are many instances in our history where the Commons have shown their spirit and temper when they thought the navy was inadequate for its duties, and on the occasion in question, in 1372, after granting a naval subsidy, they called the king’s attention to the fact that while twenty years previously, and always before, the navy was so noble and so numerous in all the ports, coast towns, and rivers that the whole country deemed and called him King of the Sea,[52] and he and all his country were the more dreaded by sea and by land by reason of the said navy, it was then so decreased and weakened from various causes that there was scarcely sufficient to defend the country, if need were, against royal power, by which there was great peril to all the realm.[53] From this complaint of the Parliament it would appear that the title of king or Lord of the Sea was applied in a popular sense, to signify the great sea-warrior who had overcome his enemies and made himself master of the sea.
There was another symbol or supposed symbol of the sovereignty of the sea, which later became exceedingly prominent—viz., the striking of the flag or the lowering of the top-sails to a king’s ship, about which there is little to be found in the records of those times. It is nevertheless with this that the earliest of the records relating to the subject is concerned, and it is a very interesting one. The famous ordinance of King John which compelled the lowering of the sails has given rise to much controversy. It was first brought prominently to notice by Selden in 1635,[54] but it is also contained in the little work of Boroughs on the Sovereignty of the British Seas, which was written in 1633, although not published till 1651, and that author transcribed it from a manuscript in the possession of Sir Henry Marten, the Judge of the Court of Admiralty. Selden gave as his authority for it, “MS. Commentarius de Rebus Admiralitatis,” without further specification, and its authenticity was questioned by contemporary critics. Prynne, who, like Boroughs, was Keeper of the Records, printed it in 1669 from the Black Book of the Admiralty,[55] and from the fact that the Black Book was lost until quite lately, and the existence of Selden’s manuscript in the Bodleian Library was overlooked, and that used by Boroughs unknown, some recent authors have regarded the ordinance with suspicion.[56] The most elaborate account of the various manuscripts containing the ordinance of John is given by Sir Travers Twiss in the Introduction to the Black Book of the Admiralty; and through his efforts the original Black Book, lost for more than half a century, was found at the bottom of a chest in 1873.[57] Twiss gives the following free translation of the ordinance, made by the Registrar of the Admiralty Court in the reign of James II.:—
Item, it was ordained at Hastynges for lawe and custome of the sea in the tyme of Kyng John, in the second yeare of his raigne, by the advice of his temporall lordes, that if the lieutenant of the king or the admirall of the king or his lieutenant in any voyage appointed by Common Counsell of the Kyngdom did at sea meet with any shyps or vessells laden or empty which would not stryke and lower their sailes at the command of the kyng’s lieutenant, or the kyng’s admirall, or his lieutenant, but makeing resistaunce against those of the ffleet, that if they can be taken that they be reputed as enemies, and their shyps, vessells, and goodes, taken and forfeited as goodes of enemies, albeit that the maysters or possessors thereof should afterwards come and alleadge the same ships, vessells, and goodes to be the goodes of friends of our lorde the kyng, and that the company therein be chastized by imprisonment of their bodies for their rebellion at discretion.[58]
This ordinance is the last of a series of articles in the third part of the Black Book, which contains Admiralty regulations, the Laws of Oleron, and other three ordinances of King John, as well as ordinances which purport to have been made in the reigns of Henry I., Richard I., and Edward I. The facts ascertained by Sir Travers Twiss show that of the six or seven extant manuscripts which contain the ordinance, the oldest was written before 1422 and probably about 1420,[59] and appears to have been drawn up for the use of Sir Thomas Beaufort, the Lord High Admiral. The manuscript used by Selden was probably written between 1430 and 1440; that of the Black Book itself a little later, but still in the reign of Henry VI.[60] The others are not older than the seventeenth century. None of the manuscripts is therefore contemporaneous with the reign of John, but it is clear that the ordinance existed and was ascribed to John in the reign of Henry V., before 1422. Moreover, from intrinsic evidence it is proved that part of the Black Book originated in 1375, in the reign of Edward III., and that the compilation of other parts of it is still earlier. Pardessus,[61] the great authority on ancient marine laws, is of opinion that the part of the Black Book which includes the ordinance of John contains the results of the consultations with the judges in 1338 on the subject of the maritime laws, which were recorded in the roll, still preserved, of 12 Edward III., De Superioritate Maris—which also, as we shall see, claimed supremacy for the king in the sea of England. Twiss, however, thinks it was more probably compiled between 1360 and 1369. He is of opinion that the ordinance is authentic, and was in reality, as it purports, made by John at Hastings on 30th March 1201, and that it was transcribed into the compilation of the Black Book with the earlier ordinances of Henry I. and Richard I.
The arguments against the authenticity of the ordinance are mainly that it is written in the French language instead of in Latin, as was customary at the time; that there is no other evidence that John was ever at Hastings; and that the terms “king’s admiral” or “king’s lieutenant” are not to be found in contemporary documents. Twiss has shown that John and his Queen were at Canterbury on Easter Day 1201, and it is not an improbable conjecture that the king passed from Canterbury to Hastings, and thence to London—a supposition that Sir Thomas Duffus Hardy, the author of the Itinerary of King John, regards as quite possible. Twiss also explains in an elaborate argument that the circumstance of the ordinance being written in French offers no difficulty, if the compilation of the third part of the Black Book is assigned, as above stated, to the reign of Edward III.; but there might be some difficulty in deciding whether the ordinances attributed to Henry I., Richard I., Edward I., and John were originally written in French as they now appear in the Black Book, or were at first drawn up in Latin and translated into French by the compilers.[62]
The best authority is therefore in favour of the authenticity of the ordinance; but whether it be held as genuine or apocryphal there is no doubt that in the reign of Henry V. it was incorporated among the official regulations of the Admiralty, and it is almost as certain, as Twiss and Pardessus believe, that it was contained in the Admiralty regulations in the reign of Edward III. The question whether it should be antedated one hundred and fifty years, or thereabout, and placed in the reign of John, or ascribed to the time of Edward III., when so much consideration was given to naval affairs, is perhaps of minor importance.
The language of the ordinance is worthy of close attention with regard to the claim to sovereignty in the narrow sea. Selden says that the ordinance shows it was held to be treason for any ship whatever not to acknowledge the dominion of the king of England in his own seas by lowering sails, and that the king prescribed penalties for infraction of the rule, just as if a crime were committed in some part of his territory on land.[63] In 1201 John still possessed both shores of the Channel, a circumstance which, according to the ideas of the time, conferred on him special rights in regard to it; and though the ordinance contains no qualification of the general term “at sea,” it is probable that it applied in particular, and at first perhaps exclusively, to the waters between the two shores. There is nothing to show whether the ordinance applied to or was enforced against the war vessels of other princes navigating the narrow sea, which was the principal feature of the rule in later times. From the terms used it is probable that it applied only to merchant vessels,—a supposition that agrees with its place in the Black Book at the end of the articles entitled the Laws of Oleron, or the laws of the mercantile marine; and it was to be enforced only in voyages appointed by the Council. As already mentioned, it is reasonable to suppose that the lowering of the sail at the demand of a king’s ship was to enable a suspected vessel to be overhauled, and the king’s officers to be satisfied whether it was engaged in piracy or in lawful trade.
Until the sixteenth century there is scarcely any evidence to show that the “right of the flag,” as it came to be called, was enforced even in the Channel. The record of one such incident, however, exists, which occurred in 1402, in the reign of Henry IV.,—and thus, it is interesting to note, before the oldest extant manuscript containing John’s ordinance was written,—and, curiously, the place where the lowering of the sails was demanded was not the Channel but the North Sea. In the year mentioned, the town of Bruges complained to the king and Council that a poor fisherman of Ostend, named John Willes, along with another from Briel, while fishing for herrings in the North Sea, had been captured by an English vessel and taken into Hull, notwithstanding that they were unarmed—a remark which is significant—and had lowered their sails at the moment the English had called to them.[64] It is singular that the earliest record of the “ceremony” refers to the humble herring-boats of Flanders. Later on we shall see that the lowering of top-sails and the striking of the flag became a burning question in international politics.
Of greater interest and importance than this question of the lowering of the sail or the ordinance of John is the claim put forward by the Plantagenet kings to sovereign lordship and jurisdiction in the “sea of England,” for the maintenance of peaceful navigation and commerce,—a claim which may still be read in some of the rolls of Edward I. and Edward III. The great importance of these documents for the English pretension to dominion of the sea in the seventeenth century was shown by the fact that Boroughs, Selden, Coke, and Prynne all quote freely from them, Selden especially turning to them again and again for fresh quotation and argument. They are the more interesting since the claim to the sovereignty of the narrow sea in the reign of Edward I. could not, as Boroughs points out, be based on possession of both shores; the king was not then Dominus utriusque ripæ, as when Normandy belonged to the English crown. The rolls in question are still preserved in the Record Office, and the earlier parchments appear to have been collected together in the reign of Edward III., in connection with the consultations that the judges held in 1338 on the subject of the maritime laws.[65]
The documents were first brought into prominence by Lord Coke[66] and Selden,[67] both of whom published parts of them. The handwriting belongs to the beginning of the fourteenth century, and its contents show that it must have been drawn up after 1304 and before 1307, in which year Edward I. died.
The events that preceded may be summarised as follows. During the war between Edward I. and Philip the Fair of France it was concluded between them in the year 1297 that notwithstanding the war there should be freedom of commerce on both sides, or a truce for merchants, known as sufferance of war, and in the following year certain persons were appointed by both kings to take cognisance of things done contrary to this truce, and to pass their judgments according to the law of merchants and the tenor of the sufferance referred to.[68] On 20th May 1303 a treaty of peace and alliance was signed at Paris,[69] the first article of which embodied a declaration of amity and mutual defence of all their respective rights, and the third that each would abstain from assisting or succouring the enemies of the other. A little later in the same year four agents or commissioners were appointed by Edward and four by Philip to hear complaints and decide upon them, and the English members were instructed to inquire into the “encroachments, injuries, and offences committed on either side during the truce or sufferance between us and the said King of France, on the coasts of the sea of England and other neighbouring coasts, and also towards Normandy and other coasts of the sea more remote.”[70] To these commissioners the following joint complaint or libel bears to have been submitted on behalf of England and certain mariners of other nations, charging one Reyner Grimbald or Grimaldi, a Genoese who is known to have been at the time in command of ships in the service of France operating against the Flemings, with seizing their merchants and merchandise contrary to the treaty at Paris:[71]—
Concerning the Supremacy of the Sea of England and the Right of the Office of Admiralty in the same.[72]
To you the Lords Auditors deputed by the Kings of England and of France to redress the wrongs done to the people of their kingdoms and of other lands subject to their dominions by sea and by land in time of peace and of truce The proctors of the prelates and nobles and of the admiral of the sea of England[73] and of the commonalties of cities and towns and of the merchants mariners messengers and pilgrims and of all others of the said realm of England and of other lands subject to the dominion of the said King of England and elsewhere, as of the coast of Genoa, Catalonia, Spain, Almaigne, Zeeland, Holland, Friesland, Denmark, and Norway, and of several other places of the Empire do declare, That whereas the Kings of England by right of the said kingdom, from a time whereof there is no memorial to the contrary, had been in peaceable possession of the sovereign lordship of the sea of England and of the isles within the same, by ordinance and establishment of laws, statutes, and prohibitions of arms, and of ships otherwise furnished than merchant vessels, and to take surety and afford safeguard in all cases where need shall be, and by ordinance of all other actions necessary for the maintaining of peace, right, and equity among all manner of people as well of any other dominion as of their own passing thereby, and by sovereign guard and all manner of cognizance and justice high and low, concerning the said laws, statutes, ordinances, and prohibitions, and by all other actions that may appertain to the exercise of sovereign lordship in the places aforesaid. And A. de B.[74] deputed Admiral of the said sea by the King of England, and all other Admirals [appointed] by that same King of England and his ancestors heretofore Kings of England, had been in peaceable possession of the said sovereign guard with the cognizance and justice and all other the aforesaid appurtenances, except in case of appeal and complaint made of them to their sovereigns the Kings of England of default of right or of wrong judgment, and especially by putting hindrance (making prohibitions) and doing justice, taking surety of the peace of all manner of people using arms in the said sea, or carrying ships otherwise provided or furnished than appertained to a merchant ship, and in all other points wherein a man may have reasonable cause of suspicion towards them of robbery or other misdemeanours. And whereas the masters of the ships of the said kingdom of England in the absence of the said admirals had been in peaceable possession to take cognizance and to judge of all actions in the said sea between all manner of people according to the laws, statutes, and prohibitions, franchises and customs. And whereas in the first article of the alliance formerly made between the said Kings, in the treaties upon the last peace of Paris are comprised the words which follow in a schedule annexed to these presents.
First, it is concluded and accorded between us and the messengers and proctors aforesaid in the name of the said Kings that the said Kings shall from this time forward be good, true, and loyal friends, and be aiding to one another against all men saving the Church of Rome in such manner that if any one or more, whosoever they be, will disturb, hinder, or molest the said Kings in the franchises, liberties, privileges, rights, dues, or customs of them and their kingdoms, they shall be good and loyal friends and allies against every man living, and ready to die to defend, keep, and maintain the franchises, liberties, privileges, rights, dues and customs aforesaid; Except (on the part of) the said King of England, Monsieur John, Duke of Brabant, in Brabant, and his heirs descended from him and the daughter of the King of England, and except (on behalf of) our said lord the King of France, the excellent Prince, Monsieur Albert, King of Almaigne [and] his heirs Kings of Almaigne, and Monsieur John, Count of Hainault in Hainault. And that the one shall not be of counsel nor aiding where the other may lose life, member, temporal estate, or honour.[75]
Monsieur Reymer Grymbaltz, Master of the navy of the said King of France, who calls himself admiral of the said sea, deputed by his lord aforesaid for his war against the Flemings did after the said alliance made and confirmed, and against the form and force of the same alliance and the intent of them that made it, by commission of the King of France wrongfully usurp the office of admiralty in the said sea of England and did exercise it for a year and more taking the people and merchants of the kingdom of England and elsewhere passing through the said sea with their goods, and committed the people so taken to the prison of his said lord the King of France, and by his judgment and award caused their goods and merchandises to be delivered to the receivers of the said King of France deputed for this purpose in the ports of his said kingdom, as to him forfeit and acquired. And the taking and detaining of the said people with their said goods and merchandises, and his said judgment and award concerning the forfeiture and acquest of them, he has justified before you, Lords Auditors, in writing, according to the authority of the said commission of the admiralty aforesaid by him thus usurped, and during a prohibition commonly made by the King of England by his power, according to the tenor of the third article (sic) of the alliance aforesaid, which contains the words below [above] written, requiring that he may thereupon be quit and absolved, to the great damage and prejudice of the said King of England and of the prelates and nobles and others above named, Wherefore the said proctors in the names of their said lords do pray [you Lords] Auditors aforesaid that you would cause due and speedy deliverance of the said people with their goods and merchandises thus taken and detained, to be made to the Admiral of the said King of England, to whom the cognizance thereof of right belongs, as above is said, so that, without disturbance from you or any other, he may take cognizance hereof and do that which belongs to his office aforesaid, and that the said Monsieur Reyner be condemned and constrained to make due satisfaction to all the persons wronged as aforesaid as, etc. [so far as he is able to do, and in his default his said lord the King of France, by whom he was deputed to the said office, and that after due satisfaction made for the said damages, the said Monsieur Reyner may be so duly punished for the violation of the said alliance that his punishment may be an example to others in times to come.[76]] Item, the said proctors require that whereas according to the ancient laws, franchises and customs of the realm of England, to the keeping whereof your said lord the King and his ancestors Kings of England were wont to be bound by their oaths. Their admirals of the sea of England with the masters and mariners of ships of ports of the coast of England, being in the armies of the said admirals, needed not to answer before any justices of the Kings aforesaid concerning actions in the sea abovesaid during their wars against their enemies. And the said admiral of your said lord the King and many of the masters and mariners of the ports aforesaid now being in his army against the [their] enemies of Scotland and their helpers and allies, by express commandment of your said lord the King, are accused before you by people of Normandy and Brittany and elsewhere concerning some actions in the said sea in time of truce and since the peace confirmed between the said Kings of England and France, and before the war begun between them as is said. It may please you to surcease the process already commenced against them and to forbear to commence a new one during the war abovesaid, that they may have no cause to complain to your said lord and to the prelates and nobles of his said realm, bound by their oath to keep and maintain the said laws, franchises, and customs.
Selden alludes to this document as proving that the right of dominion over the sea, and that ancient and confirmed by long prescription, was in express terms here acknowledged by almost all the neighbouring nations to belong to England.[77] This is, however, not quite justified, because there is no record at all to show any decision, or even whether the matter was ever brought to proof, and no mention is made of the proceedings by any English or French historian. There seems to be no doubt of the authenticity of the record. It is in the handwriting of the time, is preserved among the public records, and agrees with other circumstances elsewhere recorded. On the other hand, even the most complete copy[78] is only a draft, as Selden states, without date or seals; the admiral’s initials only are given, and the citation of the first article of the treaty at Paris is not on a separate schedule as the text states, but is part of the text. Selden gives it as his opinion that it was a matter “of such moment” that it was thought better to make an end of it by agreement than to bring it to a trial.
Light is thrown on the above record by another of the proceedings before the Auditors deputed by the kings of England and France for the redress of the grievances between the subjects of the two countries, 27-33 Edward I.[79] It consists of a series of libels or complaints, which, as Mr Salisbury of the Record Office has been good enough to inform me, are in the handwriting of the time of Edward I., and are doubtless those, or part of those, on which the De Superioritate roll is based.[80] The complaints are sixteen in number, and they refer to the seizure of a number of ships and the removal of goods from them, between May 1298 and September 1303, at various places,—the foreland of Thanet, the mouth of the Thames, off Blakeney, off Kirkele, Scarborough, Dover, and Orfordness,—the goods, and sometimes the vessel, being taken to Calais. Most of the vessels were freighted from London to Brabant, or from the latter place to London, one from Winchelsea to Dieppe, another from Antwerp to London, a third from Berwick to London, a fourth from Scotland to Brabant, a fifth from Lynn to Scotland, a sixth from Antwerp to England, and another from Yarmouth to London; in two cases the crews were killed, and the ships as well as the goods disposed of. In most cases the complaints are laid against Johan Pederogh or John de Pederogue ([see p. 45]), Michel de Navare, and others, who appear to have been under Grimbald, but in some instances they are against the latter. The first is by Richard Bush against “Reyner Grymaus,” complaining of goods having been taken from a ship going from Winchelsea to Dieppe, in August 1301, by Michel de Navare and others of Calais, who took the goods thither and disposed of them. The “chevalier” denied this, and asserted he was “not in that country” at the time specified nor for nearly a year afterwards, and in the “rejoinder” note was taken of the answer “that he was not admiral till some time after the events specified.” The eighth complaint refers to the seizure of goods from a ship going from Berwick to London in August 1303, off Blakeney, “by men from Calais.” In reply John (Pederogh) says the demand concerns “mi sire Reniers de Grimaus” only, for he was then admiral, and said John was on shore at the date specified, and was only in the company of Reniers in Zealand and Holland. The twelfth complaint declares that the ship Michele de Arwe, from London to Brabant, with a cargo valued at £556, was seized “on the high seas” by Sire Reyner Grimbaud, admiral, in September 1303, taken to Normandy, and the crew sent to Calais and imprisoned. In reply the “chivaler” confesses he took such a ship, and seized it rightfully, as it was consorting with the enemies of France; and in response to the demand of one of the crew still in prison at Calais, he says he is there as a malefactor against the King of France, and that the commission of the deputies does not extend to such cases. The fourteenth complaint is by John de Chelchethe against Reyner de Grymaus, and John Pedrogh replies “as he did to William Servat,” the latter name not occurring elsewhere in the record, a circumstance which points to these libels being only part of those brought before the commissioners.
It is to be noted that, with the exception of the Michele de Arwe above mentioned, which was taken “on the high seas,”—an elastic term,—all the ships were attacked near the English coast, and well within what may be called the sea of England, or the waters included in the King’s Chambers in 1604, where the jurisdiction of the English Admiralty undoubtedly extended. In all cases, moreover, the goods seized belonged to Englishmen, though some of the ships were foreign.
Too much importance appears to have been attached to the roll De Superioritate. It furnishes no proof, or even reasonable probability, that any other Power acquiesced in an English claim to a specific sovereignty of the sea beyond what appears to have been customary among maritime states at the time. The point of the libel is that Grimbald seized shipping after the alliance was made and took people and goods to France, and was thus said to have usurped the sovereign lordship or jurisdiction of the English king or admiral in “the sea of England.”
An important light is thrown on the nature of the jurisdiction exercised by the English admiral by the memorandum of 12 Edward III., in the same roll, the documents in which were collected together at the time it was written, in connection with the consultation of the judges to which it refers.[81] It recites that, among a number of other things, the King’s Justiciaries were to be consulted as to the appropriate method of revising and continuing the form of proceedings instituted and ordained by Edward I. and his Council for maintaining and preserving the ancient supremacy of the crown in the sea of England and the right of the admiral’s office over it, with the view of correcting, interpreting, declaring, and upholding the laws and statutes made formerly by his ancestors, the kings of England, for the maintenance of peace and justice among the people of all nations whatsoever passing through the sea of England, and to take cognisance of all attempts to the contrary in the same, and to punish delinquents and afford redress to the injured; which laws and statutes, the memorandum states, were by Richard I., on his return from the Holy Land, corrected, interpreted, and declared, and were published in the Island of Oleron and named in the French language La Loy Oleroun.[82]
This memorandum furnishes an important clue as to the nature of the jurisdiction exercised in the so-called sea of England. It is evident from the concluding part that the laws and statutes referred to are the mercantile marine laws, which were best known in this country as the Laws of Oleron, and are included in the Black Book of the Admiralty together with other articles peculiar to the English Admiralty.[83] They appear to have been published by Richard I. at the end of the twelfth century, at a time when the old customs of the sea began to be committed to writing, as rules proper to be observed by the admirals of his fleet for the punishment of delinquencies and the redress of wrongs committed on the sea. They were continued among the Admiralty regulations in subsequent reigns, and it was part of the duties of the admiral to see that they were duly observed in the seas within his jurisdiction. The powers of the admiral were extensive, as may be seen from the memorandum of the fourteenth century defining his office and duties, which has been published by Nicolas,[84] by those given by Twiss in the Black Book,[85] and later by Godolphin.[86]
At the time with which we are dealing the utmost lawlessness reigned on the sea, the depredations of undisguised freebooters being scarcely a greater evil than the constant acts of reprisal between the traders of different nations. It was a common practice for the seamen of different countries or cities to carry on hostilities with one another, and to enter into treaties of peace or truce without the sovereign on either side being concerned in their quarrels, except as mediators or umpires. In 1317, although there was peace between England and Flanders, the mutual reprisals of the seamen and merchants reached such a height that commercial intercourse was entirely suspended, and Edward II. and the Earl of Flanders had to actively interpose in order to bring about “peace” between their subjects.[87] A marked feature in the policy of Edward III. was the promotion and encouragement of foreign commerce, and quite a number of statutes were passed in his reign with that object, and to facilitate the entrance of foreign merchants into the realm. One of these, made six years after the consultation of the judges on the maritime laws, was specially passed to declare the sea open to all merchants.[88]
With these circumstances in view, it can be readily understood how desirable it was to have the maritime laws for the security of commerce and shipping carefully considered and put in force; and a consideration of the whole case shows that the roll De Superioritate Maris deals with the maritime laws, the interpretation of the documents having been strained by the later advocates for the English claim to the sovereignty of the seas. It is interesting no doubt to learn that the King of England and his admiral exercised jurisdiction of the kind in the neighbouring sea at the early time referred to, but there is nothing in the case of Grimbald or in the other documents associated with it to indicate any claim to a sovereignty such as was enjoyed by Venice and Denmark. There was no attempt made to interfere with the innocent use of the so-called sea of England, or to exact dues for navigation or fishery. The jurisdiction extended only to the keeping of the peace and the security of the sea—duties exercised by other princes and states in like manner, and indeed now exercised by all countries within the waters under their control. This view is supported by the interpretation of Callis, who stated that the king ruled on the sea “by the laws imperial, as by the roll of Oleron and others,” in all matters relating to shipping and merchants and mariners.[89] It would no doubt be of great interest if there were distinct evidence as to how far from the coast “the sea of England” extended. The records cited show that the vessels were seized close to the English coast, within the waters covered by the proclamations concerning the King’s Chambers in the seventeenth century, and even within the narrow limits of the territorial waters as now usually defined. It is to be noted with reference to the vessel taken “on the high seas” that in the Court of Admiralty in the seventeenth century this phrase covered seizures made a few miles from the coast.
There is, however, one case which occurred in the fourteenth century which has been referred to as showing that the sea of England and the jurisdiction of the king extended far from the English coast, over indeed to the coast of Brittany. In the mutual aggressions of Flemish and English sailors, the robberies by the men of Rye of Flemish ships off “Craudon” and Orwell became so flagrant that commissioners on both sides were appointed in 1311, further proceedings were instituted in 1314, and finally, in 1320, envoys from Flanders arrived in London during the sitting of Parliament, and a treaty was concluded. In this it is stated that divers merchants of Flanders, while “proceeding on the sea of England near Craudon,”[90] were robbed of their wines and merchandise by evil-doers of England, and that the goods had been brought to England. The Flemish envoys prayed the king, “of his lordship and royal power to cause right to be done and punishment awarded, since he is lord of the sea, and the said robbery was committed in the sea under his power.”[91] The account goes on to state that the king and his council in Parliament, with the assent of the peers, agreed to appoint justices to inquire into the matter, and that those who were concerned in the robbery should be promptly punished.[92] Accordingly, in December 1320, the Keeper of the Cinque Ports and others were instructed to make inquiry regarding the pillaging of a Flemish ship, laden with wines and merchandise, said to have been committed by Englishmen on the sea of England, off Craudon, so that the malefactors might be brought to justice.[93] Selden, who gives the document in which the previous proceedings are also recited,[94] does not attempt to locate Craudon, which in other records in the rolls of Parliament in 1315 was also called “Carondon,” “Crasdon,” and “Grasdon”; but Nicolas states that there was no place of that name on the sea coast of England, nor in any part of the territories of Edward II., and he identified it with a small seaport, since called “Crowdon,” in Brittany, lying on the extreme part of the Point du Raz, about eight leagues west of Quimper, where he shows that the fleets returning to England with wines frequently took shelter.[95] If this explanation be correct, it would extend the “sea of England” more than 120 miles south of the Lizard, which, however, is still well within the limits which were claimed for it by Selden ([see p. 19]). Although, according to the English record, the Flemish envoys themselves described the sea off Craudon as part of the sea of England and under the jurisdiction of the king, it is evident that this admission would facilitate redress from England, and standing alone it is not of much weight. The whole value of the admission, moreover, depends on the position of the “Craudon” of the record; and it is remarkable, if it was really the Crowdon referred to by Nicolas, that that fact was unknown to Selden, to whom it would have furnished a very strong argument for his case. -
CHAPTER II.
THE FISHERIES.
It was with respect to the right of fishery on the British coasts that the claim to maritime sovereignty was revived in the seventeenth century, and with which it was chiefly concerned. The “honour of the flag,” however gratifying to national pride or important in the international relations of England, was unprofitable, and served at best to stimulate and maintain the spirit of the nation for power and adventure on the sea. But the question of free or licensed fishing touched the profit as well as the “honour” of the king and the prosperity of the people, and hence the monarchs of the Stuart line, the Commonwealth, and the Protector strove to impose tribute on foreign fishermen for the liberty to fish in the British seas. This policy was in direct opposition to that which had long prevailed in England. It is shown below that the freedom of fishing on the English coast had been guaranteed to foreign fishermen by a series of treaties extending over some centuries, and that in point of fact the fishermen of various nations had immemorially frequented the British seas in large numbers, and there peacefully pursued their business of catching fish without molestation or interruption by the English Government. In some respects this liberty enjoyed was remarkable, when one considers the practice in many other countries and the value of the fisheries.
In the early and middle ages the sea fisheries were indeed much more important relatively than they are now. There was a greater demand for fish, and fishermen from various countries—from France, Flanders, Spain, and England—made long and distant voyages, extending to Iceland and even beyond the North Cape, in quest of fish. One reason for the great demand was the numerous fast-days enjoined by the Church; for although fish were eschewed by the ascetic monks of early times as dangerous to purity of soul, the fashion changed, and they were later consumed plentifully on the days of fast both by clergy and laity.[96] The fasts were strictly observed throughout Catholic Europe, and a large variety of sea and fresh-water fishes, as well as seals and cetaceans, were consumed on such occasions. Some of the large monastic establishments had their own staff of fishermen, and their fish-houses at seaports for the salting and curing of herring. Another reason for the extensive consumption of fish was the want of winter-roots and the scantiness of fodder in winter, so that it was impracticable to keep cattle and sheep for slaughtering throughout the winter. It was customary to kill them and salt the flesh in autumn; and thus fish, fresh, dried, smoked, or salted, formed a valued article of food in place of salted beef and mutton. Fish were also used to an extraordinary extent in victualling the army and navy, and in provisioning castles, the expense on this item of the commissariat generally equalling or exceeding that for beef, mutton, or pork.[97] The distribution even of fresh fish was also much better than might have been expected. Barges and boats carried them up the rivers, and pack-horses and waggons transported them throughout the country, so that even in inland counties the harvesters in the fields were supplied with herrings for their dinner.[98] In mediæval times, moreover, fishermen and fishing vessels constituted a considerable part of the naval force available for the defence of the kingdom, for offensive operations and the transport of soldiers. The fishermen of the Cinque Ports, who had the government of the great herring fair at Yarmouth, had also to provide vessels for the king’s service under their charters. Later, when a permanent navy existed, the fisheries were looked upon as a very important “nursery” of seamen to man the fleets.
The herring fishery was by far the most important of all the sea fisheries, and as this fish was found in greatest abundance on the British coasts, foreign fishermen were attracted hither in great numbers. It was with reference to the herring fishery that exclusive claims were raised by England in the seventeenth century, and it is desirable at the outset to understand the policy which was pursued previously in regard to it both in England and Scotland. At what period foreign fishermen first began to frequent the British coasts is uncertain; but we know that within fifty or sixty years of the Norman Conquest fishermen from Flanders and Normandy—and doubtless from other countries—visited our shores and carried on a fishery for herrings by means of drift-nets. An important fishery was established at the mouth of the Firth of Forth, on the east coast of Scotland, in the early part of the twelfth century, and it was shared by fishermen from England, Flanders, and France, who paid tithes to the monks of the priory on the Isle of May. This monastery was founded by King David I. before the middle of the twelfth century, and was endowed by him with the manor of Pittenweem in Fife, and by Cospatrick, the great Earl of Dunbar, with a house and “toft” at the village of Dunbar, both grants being of value in connection with the fishery. King William the Lion (A.D. 1165-1214) confirmed these grants, and addressed missives to “all his good subjects and the fishermen who fish round the Isle of May” commanding them to pay their tithes to the monks as they were paid in the time of his grandfather, King David (A.D. 1124-1153); and he prohibited them from fishing in their waters or using the island without license from the monks.[99] This very early claim to the right of exclusive fishing in the sea is characteristic of the policy of all the Scottish kings. It was repeated on several occasions, the royal mandate being sometimes addressed solely “to all fishermen who fish around the Isle of May”; and that some of them were foreigners appears to be shown not only by the statement above given, on the authority of contemporary monks, but by the size of the vessels, some of which had four hawsers, and paid much higher dues at the neighbouring harbours than the local fishing-boats. We know also from contemporary Flemish records that as early as the first half of the twelfth century fishermen from Nieuport and other places in Flanders fished from large vessels for herrings with drift-nets in August and September in the northern parts of the North Sea.
The men from France and Flanders alluded to, no doubt continued to fish each season down the east coast of England to the mouth of the Thames, as they did later and do still. About the period mentioned, Yarmouth was a great fishing centre, and was frequented by foreign merchants—Flemings, French, Swedes, and Frieslanders—who purchased and cured herrings; but the earliest notice of foreign fishermen on the English coast is in the year 1274, shortly after Edward I. came to the throne. Complaint was then made that during a time of truce the English fishermen had been attacked by the Flemish disguised as fishermen and twelve hundred of them killed.[100] On the other hand, the Countess of Flanders complained that twenty-two of her subjects who had been fishing on the coast of England and Scotland, and had gone ashore at Berwick to rest themselves and get provisions, had been seized, with their nets, at Norham and thrown into the castle there.[101] About twenty years later, Edward I. issued a mandate to John de Botetourt, the Warden of the coast of Yarmouth, and to the bailiffs of that town, saying that he understood that many men from Holland, Zealand, and Friesland would shortly come “to fish in our sea off Yarmouth,” and commanding them to make public proclamation once or twice a-week forbidding any molestation or injury to be done to them, but that they should rather be helped to pursue their fishing to advantage.[102] The number of English fishermen stated to have been killed by the Flemings in the encounter mentioned above, indicates how extensive the fishery then was. This also appears a few years later, when the Flemings resorted to a similar device; for in July 1296 above a thousand men of Flanders, and others of France, disguised as fishermen, were preparing to attack and burn Yarmouth and neighbouring places, and the bailiffs and men of the port were ordered to collect their ships to oppose them. These proceedings show the lawless state of the sea in those times. In the thirteenth century an extensive herring fishing was also carried on by the Scots on the east coast, especially in the Firth of Forth and the Moray Firth, and particularly by the men of Fife, and cargoes of herrings, cod, and haddocks, as well as salmon, were exported to England and chiefly to London, but also to Bordeaux, Rouen, Dieppe, and other ports in France.
From the foregoing it is clear that centuries before the question of mare clausum was raised, important fisheries were established along the east coast of England and Scotland, and that foreign fishermen took part in them. The number of French and Flemish fishermen attending the fishery must have been always great, because they had to furnish a large part of Catholic Europe with fish. But the number was increased after the fourteenth century, and especially in the fifteenth, from two causes. One was the decline of the great herring fishery at Scania, in the Baltic, upon which the Hanseatic League had risen to power and opulence, and which provided perhaps the greater part of continental Europe with salted and smoked herrings—Germany, Poland, Russia, part of France, and even to some extent Flanders and England. The Scanian herrings were esteemed the best, and the Hanse controlled the trade.[103] The other circumstance was the invention in the latter part of the fourteenth century by Beuckelsz, a native of Biervliet, in Zealand, of a greatly improved mode of curing herrings,—an invention which most materially aided the Dutch in taking the place of the Hansards in the herring industry, and in the commerce which it brought in its train. Some of the towns in the Low Countries early belonged to the Hanseatic League, and their fishermen were in the habit of going to the Scanian fishery;[104] but from the fifteenth century at least the herring fishery on the British coasts became by far the most important in Europe. It attracted foreign fishermen in increasing numbers, and gradually the Dutch came to take the leading part in it, displacing the Flemings and the men from Normandy and Picardy, and even to a large extent the English themselves. In 1512 we find Margaret of Savoy appealing to Henry VIII. to protect the fishermen of Holland, Zealand, and Friesland in their herring fishery, in which they were menaced by the Hanseatic towns, which were fitting out vessels to interrupt them; and in her letter she describes the herring fishery as the principal support of these states.[105] Towards the end of the century, when the Dutch had begun to call their herring fishery on the British coast their “great gold mine,” another event occurred which tended still further to strengthen their hold on it by opening fresh markets on the Continent. This was the failure of the great Bohuslän fishery in Sweden, which continued barren for about seventy years.[106] They were also enabled to prosper in their fishery by the beneficent policy of the English sovereigns towards them up to the reign of James I., when the claim to the exclusive fishing in the British seas was put forward on behalf of the crown.
When this claim was advanced in the seventeenth century, it was argued that the sea fisheries had always belonged to the crown. Selden declared that “license had usually been granted to foreigners by the Kings of England to fish in the sea; and that the protection which the kings gave to fishermen, as in their own territory, was an ancient and manifest evidence of their maritime dominion.”[107] The cases adduced in support of that contention are singularly few and unconvincing. One is the tax imposed by Richard II. in 1379 on fishing vessels, among others, in the admiralty of the north, but which, if it was imposed on foreign vessels at all, must have been done with their consent ([see p. 33]). Another relates to the arrangements which were occasionally made for “wafting” or guarding the fishermen at the Yarmouth fishing, and for which the fishermen thus protected had to pay,—an arrangement which was also adopted in the reign of Charles I. Thus, in 1482, Edward IV. invested certain persons, called Guardians, Conductors, and Wafters, with naval powers, to protect the fishermen “of whatever country they be, who shall desire to fish under the protection” of the said wardens on the coasts of Norfolk and Suffolk; and all those who took advantage of such protection had to pay an equal share of the cost of it; any other persons pretending to have power to protect the fishermen were to be apprehended. This arrangement was repeated in the reigns of Richard III. and Henry VII.[108] It is evident that the payment was only exigible from such foreign fishermen as took advantage of the protection offered to them; those who desired to fish without protection of the wardens were at liberty to do so. A more pertinent case is the Act of the Irish Parliament in 1465—also during the reign of Edward IV.—which has been previously alluded to.[109] It was passed to prevent aid being given to the king’s enemies by foreign vessels that went to fish at Ireland. All foreign fishing vessels were prohibited from fishing on the Irish coast (except the north part of Wicklow) without first obtaining a license from the Lieutenant, his deputy, a “justice of the land,” or other person authorised to grant it, upon pain of forfeiture of ship and goods. All foreign vessels allowed to fish, which were of twelve tons burthen “or less,” and had a “drover” or boat, were to pay thirteen shillings and fourpence yearly for the maintenance of the king’s wars in Ireland; smaller vessels, as “scarfes” or boats not having “drover nor lighter,” and within the burthen of twelve tons, were to pay two shillings. This was obviously a temporary measure, designed for a special purpose, though clearly imposing a tax on foreign vessels; but there is not evidence to show whether it was enforced.
Other two instances referring to later times were adduced in support of the contention that the sea fisheries belonged to England, and they may be mentioned here. One was the statement made by Camden about 1586,[110] and by Hitchcock some years earlier,[111] that the Hollanders and Zealanders before they began to fish for herrings off the east coast of England, first, “by ancient custom, asked leave of Scarborough Castle”; “for,” adds Camden, “the English have always given them leave to fish, reserving the honour to themselves, and resigning, as if from slothfulness, the benefit to strangers.” Neither Hitchcock nor Camden quotes any authority for the statement. Scarborough Castle was in early times an important stronghold on the north-east coast, and it is not unlikely that foreign fishermen, who were frequently at the port, found it to their interest to maintain friendly relations with the governor, and gave notice of their arrival, or perhaps asked leave to dry their nets and paid for the privilege. It was the practice for the governor to levy dues, in kind, on fish brought ashore, for Edward III., in 1347, ordered writs of attachment to lie against those who during the fishing season sold their fish at sea instead of bringing them to the town, thus defrauding the Castle of its dues. Another instance, which was frequently made use of in negotiations later with the Dutch on the question of the fishery, was an alleged lease for twenty-one years granted by Queen Mary to her husband Philip II. of Spain, by which his subjects received licenses to fish on the Irish coasts. The first trace of this story is found in a memorandum addressed to Lord Salisbury in 1609 by one Richard Rainsford, an agent for a fishery company,[112] in which it is said that £1000 per annum had been paid into the Irish Exchequer by Philip for the privilege, and that Sir Henry Fitton, the son of the treasurer at the time, could substantiate the statement “on oath if need is.” No year is mentioned by any of those who put forward this story,[113] and no record of it is referred to. If not entirely apocryphal, and invented as an argument against the Dutch, who were subjects of Philip in the early part of his reign, it was probably constructed on a very slender basis.
There is, however, one interesting case, or series of cases, in which licenses to fish in the Channel were frequently granted by the Lord Warden of the Cinque Ports to a limited number of French fishermen, chiefly of Dieppe and Treport, for the ostensible purpose of supplying the king of France’s table with fresh fish, and especially soles. It is stated that the French kings “time out of mind” had applied for such licenses,[114] and they were certainly granted under Elizabeth, the Stuart kings, and Oliver Cromwell. It is doubtful when the custom originated, but since the liberty of fishing was granted for a definite area or bank, called the Zowe or Sowe, off Rye and well out in the Channel, it was probably of considerable antiquity, and may have survived from the Norman or Angevin reigns. James also furnished similar licenses for the use of certain high personages, such as the Duchess of Guise and the French ex-ambassador; but the liberty was greatly abused, and was the cause of much friction and trouble with the English fishermen later.[115] The fact that such licenses were asked for by the French court on behalf of fishermen of Dieppe, Treport, Calais, and other ports on the coast of France, may indicate that the fisheries out in the Channel were at one time claimed by England. But it is possible it was only the survival of a custom adopted during the times when great lawlessness reigned on the seas, and when the men of the Cinque Ports were a terror to their neighbours. A license from the Lord Warden would be then a safeguard and protection.
Such are the cases which were adduced to prove the rights of the English crown to exclusive fishing in the British seas. On the other side there is an overwhelming body of testimony to show that the fishery was free. It may be noted in the 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, feræ naturæ, 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 centuries (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, precisely on the ground that Callis, Coke, Selden, and Hale claimed the sea fisheries generally for the crown in the seventeenth 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 everything necessary at his disposal to enable him to embody the common law of England.[116] 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 foreign 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. Fish caught by foreigners were regularly imported into England, and such importation was encouraged by the crown and by Parliament until after the Reformation. Foreign fishermen were also encouraged, as is shown by the mandates of Edward I. and Edward II. above alluded to, and by many others.
The first of the formal treaties providing for liberty of fishing was concluded in 1351 between Edward III. and the king of Castile and towns on the coast of Castile and Biscay. Edward had signally defeated the Spanish fleet in the year before in the battle known as “L’Espagnols sur Mer,” and in the truce for twenty years which followed, it was stipulated that there should be mutual freedom of commerce and navigation, and that the fishermen from Castile and Biscay should be at liberty to come freely and safely to fish in the ports of England and Brittany, and in all other places and ports, paying the dues and customs to the lords of the country.[117] Spanish fishermen do not appear to have taken part in the great herring fishing on the east coast,—Spaniards, indeed, have never cared for pickled or cured herrings, differing in this respect from the Teutonic races, but have preferred the mackerel, the pilchard, and the cod. The liberty of fishing conferred by the treaty was no doubt chiefly valuable to them with respect to their fishery off the Irish coast, the south-west coast of England, and along the coasts of Aquitaine and Brittany for sardines and mackerel. Two years later a similar treaty was concluded between Edward and the towns of Portugal and Algarve, in which liberty of fishing was stipulated in precisely the same terms,[118] and no doubt related to the same waters.
Early in the next century we find what seems to be the first of the numerous agreements as to the liberty of fishing for herrings in the narrow seas, quite a number of which were made in the comparatively short and troubled reign of Henry IV. In a truce concluded in 1403 between Henry and the King of France, it was provided that merchants, mariners, and fishermen should be free to pass to and through either kingdom without requiring letters of safe-conduct. Henry, therefore, issued a mandate to his admirals and other officers concerned, enjoining that during the current herring season the fishermen of both countries should freely fish for herrings and all other fish, from Gravelines and the Isle of Thanet down to the mouth of the Seine and Southampton, without hindrance or molestation, and that if they were chased by pirates or met with contrary winds they were to be allowed to take refuge in the ports within the area defined, and were to be well treated.[119] As the king’s missive is dated 26th October, it appears that there was then, as there is now, a considerable winter herring fishing in the Channel. Three years later, on 5th October 1406, Henry took all the fishermen of France, Flanders, and Brittany, with their ships and boats, under his protection until 2nd February in the following year,—that is to say, during the winter herring fishery,—for which time they were to be allowed to fish freely and without molestation, and to carry away their fish, provided they did nothing to prejudice him or his kingdom.[120] Considering the weak condition of the English navy at the time—the security of the sea had been committed to the merchants on the east coast, a system which in this month of October was known to have failed—and the prevalence of pirates, it is unlikely that the protection of the king was of much avail.
In November of the same year, with reference to his treaty with France, Henry published another proclamation stating that, on the supplication of the burgesses and people of Flanders, it had been agreed that the fishermen of England and Flanders, and generally of all the realm of France, should, during the continuance of the treaty, go in safety to fish in the sea. To the end that the fishermen who travelled on the sea at great peril to gain their living might fish in greater security, and obtain sea fish for the sustenance of the people, it was ordained that for a year from the publication of the proclamation all the fishermen of England, of Calais, and of other towns and places belonging to the King of England, as well as the fishermen of Flanders, Picardy, Normandy, and Brittany, and other parts of France, might go in peace over the whole sea to fish and gain their living, without any restraint or hindrance; provided no fraud was committed, and that English fishermen had the same privileges from Flanders, Picardy, Normandy, Brittany, and other parts of France. If the fishermen were driven into port by the violence of the wind, or other cause, they were to be received freely and treated reasonably, paying the dues and customs as of old, and be at liberty to return to their own ports. The king, therefore, commanded his admirals, captains, bailiffs, the commanders of castles and ports, and others concerned, to see that the provisions of the treaty were carried out.[121]
In the following year was concluded the first of the great series of Burgundy treaties, about which so much was to be heard in the diplomatic negotiations with the Dutch in the seventeenth century. Flanders was then part of the dominions of the Duke of Burgundy, who held it as a fief of France, and freedom of commerce and fishery was of the highest importance to his Flemish subjects. A treaty or convention was therefore drawn up between Henry’s ambassadors and the Duke of Burgundy, dealing chiefly with commercial intercourse, in which the above-mentioned provisions for mutual liberty of fishing were embodied, in practically the same language, and comprising likewise the whole of France.[122] In 1408 the mutual freedom of fishing in the sea was twice confirmed,—in the prorogation of the truce with the Duke of Burgundy, and in the ratification by the King of France of the treaty between Henry and the Duke;[123] and it was again confirmed at Amiens by John, Duke of Burgundy, in 1417, in the reign of Henry V.[124]
The various fishery truces and conventions of Henry IV., which were made at a time when great insecurity prevailed on the sea and depredations were committed on all hands, reflect credit on that able monarch, and notwithstanding the naval weakness in the early part of his reign, they must have had a favourable influence in fostering the sea fisheries. The sort of treatment that fishermen in those times had frequently to undergo is indicated in a complaint made to the king in 1410 that, notwithstanding the fishery truce with France, the men of Harfleur had seized an English fishing vessel of twenty-four tons, Le Cogge Johan de Briggewauter, and had thrown the master and fourteen of the crew into prison, without food and water, and held them to ransom for a hundred pounds.[125] Such occurrences were by no means uncommon, and it was customary for fishing vessels to go to sea armed,[126]—a provision which also enabled them on occasion to do a little piracy on their own account. It was sometimes difficult for the authorities to decide whether a vessel provided with fishing-lines and armed, as some were, with “minions, falcons, and falconettes,” and having a good store of powder and bullets, had been equipped to catch fish or prey upon other vessels.
It does not appear that any treaty concerning liberty of fishing was made in the warlike reign of Henry V. (1413-1422); but, as stated above, this king confirmed the Burgundy treaty in 1417. In the succeeding reign of Henry VI., in 1439, a treaty was concluded for three years with Isabel of Portugal, as representing her husband, Philip, Duke of Burgundy, which provided for liberty in fishing in much the same language as in the treaty of Henry IV. It was stipulated that all the fishermen of England, Ireland, or Calais, as well as of Brabant and Flanders, should be free to go all over the sea for fishing, without any hindrance or molestation on either side, and that they should have free access to the ports of either, under the usual conditions. Although the Duke of Burgundy was also Count of Holland and Zealand, these states were not specifically included in this treaty, which was renewed in 1442 for other five years, and again, at Calais, in 1446, for a term of twelve years, in precisely the same terms, and the commonalties of Ghent, Bruges, Ypres, and of the French dominions promised to observe it.[127] In the renewal of the treaty of intercourse at Brussels, in 1468, by Edward IV. and the Duchess of Burgundy on behalf of her husband, Duke Charles, in addition to the mention of Brabant, Flanders, and Mechlin, words were added[128] which brought Holland and Zealand into the treaty, and thus formally gave them that liberty of fishing on the British, or at least the English, coast which they struggled so hard and so successfully to retain in the seventeenth century. The article on the fishery also declared that the fishermen should be at liberty to fish without being required to obtain any license, permission, or safe-conduct,[129] which appears to indicate that the practice of obtaining such letters for their security had been previously in vogue. In 1468, in the treaty of peace, at Péronne, between Louis XI. of France and Charles, Duke of Burgundy, a similar clause was inserted providing for the freedom of the herring fishery;[130] and in the ten years’ truce agreed upon in 1471 between Edward IV. and the King of France mutual liberty of commerce and fishing was stipulated during the continuance of the truce.[131] The treaty of 1467, above referred to, which included Holland and Zealand, was to last for thirty years, but by the death of Charles the Bold, and the marriage of Mary of Burgundy to Maximilian of Austria, it was deemed necessary to renew it with the new Duke; and this was done, and the compact declared to be perpetual, in 1478, the clause providing for the liberty of fishing remaining unaltered.[132]
It is thus clear from those numerous treaties that in the fifteenth century the liberty of fishing in the sea was so generally recognised by England that the principle might be regarded as having become a part of her international policy and custom. Towards the end of the century the Burgundy treaties were superseded by the great treaty of peace and commercial intercourse which was concluded in 1496 between Henry VII., the first of the Tudor sovereigns, and Philip, Archduke of Austria and Duke of Burgundy. This treaty, which became so well known later as the Great Intercourse (Intercursus Magnus, le Traité d’Entrecours, ’t Groot Commercie-Tractaat), was the sheet-anchor of Dutch policy in relation to England in the seventeenth century, and was constantly appealed to by them in their diplomatic struggles with the Stuarts and with Cromwell. It was the price paid by Henry for the expulsion of Perkin Warbeck from Flanders, the provisions in regard to whom, when slightly modified by St John in 1651 to apply to the “rebels” of the Commonwealth, so startled the Dutch Government ([see p. 387]). The treaty was to be perpetual, and it actually endured for a century and a half. The article dealing with the liberty of fishing was couched in almost the same language as in the preceding treaties. The fishermen of both nations were to be at liberty to go in security to fish anywhere on the sea, without requiring any license or safe-conduct, and to have free use of one another’s ports under stress of misfortune, weather or enemies, on paying the ordinary dues.[133] As conservators for this treaty of peace and commerce, which was received with much rejoicing in the Low Countries, Henry appointed, among others, the mayors and aldermen of London and of a large number of towns, including Southampton, Sandwich, Dover, Winchelsea, Boston, Yarmouth, and Berwick; and the Archduke, on his side, appointed the burgomasters of Ghent, Bruges, Dunkirk, Antwerp, Dort, Delft, Leyden, Amsterdam, Briel, and others.
Several supplementary treaties dealing with commercial subjects were concluded between Henry VII. and Henry VIII. on the one side, and the Archduke of Burgundy on the other—viz., in 1499, 1506, 1515, and 1520.[134] While they confirmed in general terms the previous treaty, the clause referring to the freedom of fishery was not specifically mentioned, a circumstance which, considering the nature of the matters dealt with—the staple at Calais, the cloth trade, the Zealand tolls,—was not surprising. Nevertheless, the fact that treaties of commerce had been made with the Low Countries subsequent to the Intercursus Magnus, without containing a clause expressly renewing the liberty of fishing, was used later by English statesmen, as by Lord Bacon, as an argument that the provision of that treaty had thereby been rendered inoperative. But the policy of Henry VIII., and indeed of all the Tudor sovereigns, proved the contrary; liberty of fishing on the English coast was not called in question till James came to the throne.
We have already seen that Margaret of Savoy appealed to Henry VIII. in 1512 to protect the herring fishermen of the Low Countries from the attacks of the Hanseatic towns, and apparently with success. The same regard for the herring fishery was shown in a marked manner in 1521 in the negotiations between the Emperor Charles V. and King Francis I. of France. Cardinal Wolsey, who was the “mediator” between them, strongly urged the need of allowing the herring fishery to be free, safe, and unmolested. He made this stipulation one of the chief points of the proposed treaty. It is stated in a despatch which was sent to Charles V. by his ambassadors at Calais, where the negotiations were being conducted, that the Cardinal declared his intention to propose, among other things, security for the fishermen and cessation of hostility on the sea between England and Flanders, and that either party should be free from attack by the other in English ports. There was no difficulty about the fisheries, the ambassadors said, as they knew the Emperor wished it, and that his subjects would more willingly go to sea in that event than they then did under the protection of ships charged to defend them.[135] The French ambassadors also informed Francis that Wolsey pressed the point on them, and that they had ultimately agreed in order “to conciliate him, considering it can be revoked at pleasure, and will be profitable to those living on the coast of Normandy and Picardy, and without it they will not be able to pay their taxes.”[136] It is clear from the political events that followed, that the great Cardinal, in stipulating for the security of the fishermen, had principally in view the interests of the Emperor, to whom the Netherlands belonged; but it was in perfect accord with established English policy. The agreement for the security of the herring fishery was embodied as a leading article in the formal treaty concluded between the two potentates in October of the same year, it being provided that until the end of the following January, even though the war should continue between the two countries, the fishermen of both parties should be allowed to fish unmolested and to go home in safety.[137] In the war which ensued, the French admirals did not push the advantage they had on the sea to extremes, but sold safe-conducts to the fishermen of the Netherlands, and allowed them to pursue their fishing. In several treaties and truces made in the next few years between the Powers named, it was provided that the herring fishery should be carried on freely and in security on both sides, even during the existence of hostilities. One of these, to last for eight months, was concluded in 1528 between Charles V., Francis I., Henry VIII., and Margaret of Austria, who represented Holland, Zealand, and Friesland, as well as Flanders.[138] It may perhaps be surmised that in the common concern about the winter herring fishery the influence of the Church was not without effect, so that the fish for Lent might not be wanting.
From the foregoing it is apparent that the kings of England, so far from claiming an exclusive right to the sea fisheries along the English coast, entered into a series of treaties with their neighbours, extending over a period of nearly two hundred years, by which freedom of fishing was mutually recognised and guaranteed. Throughout the reigns of the Plantagenet and Lancastrian kings, as well as under the Yorkists and Tudors, foreign fishermen were at liberty to fish freely in the English seas without requiring any license or paying any tribute. Not only so, but up to the middle of the sixteenth century, and especially in the time of the Plantagenet kings, they were encouraged to take part in the fisheries off our coasts, and to bring into the realm and freely trade in fish, both fresh and cured; and, in point of fact, a large proportion of the fish consumed in England was caught and sold by foreigners. It was not until after the Reformation, when the English fisheries began to decay, that protective measures were adopted in favour of the native fishermen; and it was not until the reign of James I. that any attempt was made to place restrictions on the liberty of fishing immemorially enjoyed by foreigners along the English coasts.
But when we turn to Scotland we find there was not only in that country an absence of the toleration which was extended in England to foreign fishermen, but that restrictive measures were in force from an early period. The claim made by the Scottish kings in the twelfth century for the exclusive fishing in the sea around the Isle of May on behalf of the monks of the priory there, strikes the keynote of their policy in later times. This difference between the policy in England and Scotland might to some extent be due to the nature of the fishings. In the northern kingdom the herring fishery was confined almost entirely to the firths and lochs “within land”: the native fishermen did not compete with the foreign vessels which carried on the fishery at a greater or lesser distance from the coast from the neighbourhood of the Shetlands to the Thames. The encroachments of the foreign fishermen, which sometimes occurred from the vagaries of the shoals, were thus resented. On the English coast the native fishery was carried on for the most part alongside the foreign fishermen, and the English fishermen were thus accustomed to the presence of the foreigners. In Scotland, moreover, the sea fisheries, and in particular the herring fishery, were of greater relative importance to the people than was the case in England, which possessed rich pastures and was essentially agricultural. Fishing was much more of a national pursuit, and besides supplying what was required for home consumption, Scotland was able to export large quantities of fish to other lands: in the fifteenth century the title “Piscinata Scotia” was referred to as an “old proverb.” The fisheries, besides forming a not unimportant source of revenue to the crown, supplied a chief staple of the trade and commerce of the “royal burghs,” which were always extremely jealous of their rights and privileges, and possessed great power. Hence the Acts of the Scottish Parliaments which dealt with sea fisheries—and they are numerous—breathe a much more exclusive spirit than those of England. Hence also the treaties and conventions between Scotland and the Netherlands did not extend to foreign fishermen the generous treatment which was so evident in the south. The earliest of those commercial agreements seems to have been made in 1291; others were concluded in 1321 and 1323, in the reign of Robert the Bruce, by which free ingress and egress were given to merchants to pass with their merchandise to any parts of the kingdom, “with their ships and goods”; and similar freedom of commercial intercourse was stipulated in 1371, 1401, 1407, 1412, 1416, and on numerous occasions subsequently.[139] These early agreements contain no provision about the fisheries, and nothing to indicate a desire on the part of the Scottish king or people to allow fishermen from the Low Countries to fish in the adjacent waters. The feeling of the coast population towards the foreigners was usually jealous and aggressive; attacks by the one and reprisal by the other were of frequent occurrence, especially in the fifteenth and sixteenth centuries. The Earl of Holland complained in 1410 that the Scots had attacked the fishermen of that province “when they went to sea to catch herrings in their fishing vessels and to gain their living like honest men”; and by way of reprisal he gave permission to the people of Brouershaven to attack and injure their “enemies,” the Scots, wherever they could find them, on sea or land.[140] There is much testimony to show that in those times the Scottish fishermen were of a fierce and forceful disposition, and little inclined to tolerate the intrusion of foreign fishermen within what they claimed as their “reserved waters,”—that is, the firths and bays and a distance along the coast described as “a land kenning,” which extended to fourteen miles or to twenty-eight miles from the shore. An indication of their treatment of those who intruded is afforded by a story told in one of the English State Papers on the authority “of the old Bishop of Ross, who came in with King James to England.” He said that in the time of King James V. (A.D. 1513-1542) the Hollanders, who had only a verbal license to fish at twenty-eight miles off, came near the shore within the mouth of the Firth of Forth, “and there fished in despite of the king’s command.” James thereupon set out men-of-war and took so many of them that “he sent a baril ful of their heads into Holland, with their names fixed to their foreheads on cards,” as a warning to their fellows.[141] This tale of savagery, probably apocryphal, no doubt originated in the conflicts and reprisals between the Dutch and the Scots which are known to have occurred in the reign of James V., and led to the treaty of 1541, in which, for the first time, there is a stipulation concerning the fisheries. For some years previously the relations of the Emperor Charles V. (in whose dominions the Low Countries were included) and the King of Scotland had been strained, owing to the renewal of the old alliance between Scotland and France. A number of armed vessels, under the command of Robert Foggo of Leith, cruised about and captured many Dutch herring-busses, especially those belonging to Schiedam and Briel. The States of Holland retaliated by seizing Scottish goods in Holland, and then James V. threatened that he would put an entire stop to their herring fishing on the coast of Scotland.[142] Owing to the war with France and the depredations of privateers, the Netherlands at that time had much difficulty in protecting their herring-busses, and the threat of the Scottish king speedily brought about negotiations. The States of Holland petitioned the Emperor to interfere,[143] alleging that the prohibition of their herring fishing by the King of Scotland was inconsistent with the freedom of navigation, and even with the treaties subsisting between them—which, however, as has been said, did not include the question of fishing. In the treaty which followed between James V. and the Emperor,[144] it was, amongst other things, agreed that means should be devised for reparation of the damages done on both sides “to merchants, fishers, and other traders or subjects,” or to their ships and goods, in time of peace; and that mutual protection should be afforded to the fishermen against pirates. It contained no fishery clause like those in the English treaties, and not a word about the liberty of fishing. It can scarcely be doubted that the omission was deliberate, and that those conducting the negotiations on behalf of the Dutch wished to have a guarantee of the kind. We learn from the treaty that the last article in the instructions of the Scots ambassador contained some proposal about the fishery. Its nature does not appear; but from the fact that it was not agreed to, and was reserved for further consideration on the part of the Emperor, it is not unlikely that it referred to the fixing of a limit within which the Dutch were not to fish.[145] The Scottish lawyer, Welwood, early in the next century referred to the “notorious covenant” which had been made with the Dutch, that they should not fish within eighty miles of the coast of Scotland, a statement that may have been a reminiscence of this proposal.
The peace was not of long duration. The Scots again attacked the Dutch fishermen on the coast of Scotland; the goods of Scotch merchants were in turn seized in the Netherlands, and their ships and seamen arrested, and arrangements were made by the Dutch to convoy their herring-busses with many ships of war.[146] On the representations of Rotterdam and Schiedam—towns which had a great stake in the herring fishery on the Scottish coast—a request was made to the Emperor, in the name of the States of Holland, asking him to arrange in his negotiations with the Scots for the restitution of the goods taken by them from the Hollander fishermen; and early in 1545 he was petitioned to conclude a truce with them on account of the herring and dogger (cod) fishing.[147] It was not until 1550 that another treaty was signed between the two countries,—also at Binche, on 15th December, on behalf of the Emperor Charles V. and Mary Stuart, Queen of Scotland. It confirmed all previous treaties, and contained provisions for mutual freedom of commerce and navigation without the need of any safe-conduct or license, general or special, and with liberty to make use of one another’s ports, and also mutually to protect one another’s subjects, including fishermen, from the attacks of pirates. The part referring to the fishery did not, however, differ from that in the previous treaty, which it merely confirmed. “With regard to the fishery and the free use of the sea,” it said, “that which was made, concluded, and agreed upon by the foresaid treaty made at Binche on the 19th February 1541, between the Most Serene Queen Mary (of Hungary and Bohemia) and the aforesaid ambassador of the King of Scotland, shall be truly and sincerely observed.”[148] This treaty, which was called in the Netherlands “celebre fœdus,” may be regarded as the Scottish counterpart of the Intercursus Magnus, concluded with England in 1496. The older Dutch writers, as Wagenaar and Plegher, professed to regard it as having guaranteed freedom of fishery on the coasts of Scotland in the same way; and it was cited by the Dutch ambassadors in the negotiations concerning the fishery in the seventeenth century in this sense. But in the English treaty freedom of fishing all over the sea was expressly covenanted in the most plain and explicit language, while the treaty with Scotland in 1550 merely confirmed a previous treaty which certainly did not confer liberty of fishing, though the phrase “the free use of the sea,” now introduced in the preamble, might at first sight imply the contrary. Nothing more appears to have been heard of the proposal of the Scottish ambassador in 1541, which had been deferred for further deliberation.[149]
A treaty which took a still more important place in the subsequent disputes and negotiations respecting mare clausum and unlicensed fishing, and upon which the Dutch relied even more, at least in the reign of James, than they did on the Intercursus Magnus, was concluded with King James VI. in 1594, fifteen years before he issued, as king of England as well as of Scotland, his famous proclamation forbidding promiscuous and unlicensed fishing. On the occasion of the baptism of his son, Prince Henry, which took place at Stirling on 30th August 1594, the States-General despatched two ambassadors, Walraven van Brederode and Jacob Valck, laden with costly gifts, to take part in the ceremony, and also to do a little business with the king. The two previous treaties between Scotland and the Netherlands had been concluded at a time when the whole of that country had been under the rule of Charles V. In the interval it had passed into the possession of Philip of Spain, and then the northern provinces had revolted, thrown off the Spanish yoke, and formed the famous federal commonwealth of the seven United Provinces of Holland, Zealand, Utrecht, Gelderland, Over-Yssel, Friesland, and Groningen. It was thought to be desirable by the prudent Dutchmen to renew if possible on their own behalf the treaties with Scotland, especially as it was then recognised that James would succeed to the English throne. The ambassadors therefore brought with them a long draft treaty, in which the previous treaty of 1541 was recited and that of 1550 was given in full. James agreed to the confirmation of the previous treaties, and the ratification was signed at Edinburgh on 14th September 1594. In his declaration he stated that he had “seen, read, and examined” the treaty of peace and alliance made at Binche in 1550 between Charles V., Emperor of the Romans, in the capacity of sovereign of the Low Countries, and Queen Mary, “his honoured dame and mother,” and having found it very desirable, good, and beneficial for him and his country, it was to be observed inviolably for the good of the traffic and commerce of the subjects of the two nations; and he sincerely promised to observe the treaty and every clause and article in it. Then the easy-going monarch appears to have forgotten all about it. The document itself was lost, and when it was urgently wanted for the negotiations in the next century it could not be found, and nobody in this country seemed to know what it contained; it was even regarded by some—as the English ambassador at The Hague—as apocryphal. Although the Dutch relied much on this treaty, it contained no stipulation regarding liberty of fishing. The treaty of 1550 was confirmed, by which it was provided that commerce and navigation were to be free; merchants were to be at liberty to pass safely and freely with their goods by land and sea, and to buy and sell; pirates were to be chased from the sea, and the subjects of either state, including fishermen, were to be mutually protected from their attacks; but the fishery clause was precisely the same as before.[150]
It is thus evident that there was a great difference between the English and the Scottish treaties with the Netherlands respecting the right of fishery. The former contained a separate clause, conceived in a broad and liberal spirit and again and again renewed, providing for mutual freedom of fishing everywhere on the seas, while no such agreement or anything like it was made on the part of Scotland. The Dutch fishing on the coast of Scotland was more important to them than their fishing on the English coast, and there is no doubt they strove to obtain the same privileges for it as they received in England. The omission of a corresponding clause in the Scottish treaties was in accordance with the long-settled policy of the Scottish kings and Parliaments, and it was that policy that James carried with him to England when he attempted to reverse the established practice with regard to the fisheries, and opened up the claims to mare clausum.
There is, unfortunately, little contemporary evidence as to the precise extent of the claim to the fisheries which was anciently put forward in Scotland. The Acts of the Scottish Parliaments do not help us very far, although they reveal the jealous and conservative spirit previously referred to. Many statutes were made prohibiting strangers from buying fish except such as were salted and barrelled, and then only at free burghs; concerning the “assize-herring,” of which so much was to be heard; and the payment of customs by foreigners exporting fish. The language of some of the Acts implied a certain control over foreign fishermen on the sea,[151] and all that we know of the practice and customs in Scotland makes it highly probable that these enactments were in point of fact enforced against foreign fishermen as far as they could be. The Scots were always particularly jealous about the fishings in the firths and lochs “within land.” An important herring fishery of this kind was carried on in the lochs on the west coast, especially in Loch Broom and Loch Fyne, in autumn and winter, by fishermen from the Clyde, the Ayrshire coast, and Fifeshire, who built timber houses on shore where they cured the herrings; and this fishing was attended by Frenchmen, “Flemings,” and English, who purchased the cured herrings or bought the fish and cured them themselves.[152] Wishing to catch the herrings for themselves, these “divers strangers” most earnestly petitioned Queen Mary in 1566 for “license to fish in the said lochs.” But the Council, to whom the petition was referred, after consultation with the burghs, refused the request, and ordained that “no stranger of whatever nation they be come in the said lochs, nor use the commodity of the said fishing in any time to come, but the same to be reserved for the born subjects and natives of the realm,” under pain of confiscation of ships and goods.[153] Some of the old Scots Acts, of the reign of James III. (1460-1488) and later, refer to previous statutes, which seem to be lost, respecting the herring fishery in the western seas; and they indicate that “letters” had sometimes been granted by the king favouring foreigners in some way, but whether by allowing them to fish there is unknown.
On the east coast, where the Dutch carried on their great herring-fishing from busses, there is evidence that a limit was early fixed within which they were not allowed to fish, but no contemporary records relating to it appear to have been preserved. It is probable that an arrangement was come to between them and the Scottish fishermen, possibly in the reign of James V. or even earlier, by which they were not to fish within sight of land. At the beginning of the seventeenth century, when the question of unrestricted fishing was raised in an acute form, there was a remarkable unanimity of opinion in Scotland that the ancient and established custom was that foreigners were not allowed to carry on their operations within a “land-kenning” of the coast,—that is, not nearer than where they could discern the land from the top of their masts. This distance was usually placed at fourteen miles, but sometimes a double land-kenning, of twenty-eight miles, was claimed; and we shall see that the former distance was embodied in the Draft Treaty of Union with England in 1604, as well as proposed to the States-General as a provisional limit in 1619 ([see p. 192]), and declared by Parliament and the Privy Council of Scotland to be the bounds of the “reserved waters” belonging to Scotland. Welwood, a Scottish lawyer who wrote at the end of the sixteenth and the beginning of the seventeenth centuries, states that before his time, after “bloody quarrels” about sea affairs between the Scots and the Hollanders, the disputes were arranged on the understanding that in future the Hollanders were to keep at least eighty miles from the coast of Scotland, which, he says, they did for a long time. If they were driven nearer by stress of weather they paid a tax or tribute at the port of Aberdeen, where a castle was built for this and other reasons. This tax, he adds, was paid until by frequent dissensions at home and the audacity of the Hollanders the right was lost.[154] There is no very satisfactory evidence to show in how far the statements of Welwood were in accordance with the facts. In the records of the Privy Council a case is mentioned which might be interpreted in another way. In 1587 two English ships belonging to Shields, coming from the “easter seas” laden with fresh fish and bound for England, were seized and brought into port by one Thomas Davidson of Crail, apparently on the plea that they had been fishing too near the shore. The owners contended that the fish had been caught “upon the main sea, outwith his Majesty’s dominions, where not only they but the subjects of all other princes had had a continual trade and fishing in all times bygone past the memory of man.” But even, it was argued on their behalf, if the fish had been caught within his Majesty’s waters, still, in respect of the “continual trade” which strangers had had there in all time past, “there being no inhibition made or published to the contrary as yet,” no such treatment should have been meted out to them.[155] This was in the reign of James VI.; and the most likely explanation, in the absence of information as to the decision taken by the Council, is that while no official proclamation forbidding fishing by foreigners had been promulgated, and no recent measures carried out to prevent them from doing so, it was believed that a certain part of the sea was reserved for the use of the Scottish fishermen, apart from the waters of firths and lochs.
The difference in the national policy of England and Scotland concerning foreigners fishing along our coasts prevailed until the Union of the crowns, when James introduced the Scottish ideas into England and soon endeavoured to transform them into practice. Meanwhile, under the Tudors, certain changes were slowly and silently taking place which paved the way for the new policy, and that too although, very shortly before, the freedom of the seas had been proclaimed and vindicated by Queen Elizabeth.
CHAPTER III.
UNDER THE TUDORS.
The policy of freedom of commercial intercourse, navigation, and fishery which was enunciated in the Intercursus Magnus and the treaties which preceded it, was faithfully observed throughout the sixteenth century. No attempt was made by any of the Tudor sovereigns to interfere with the liberty which foreigners enjoyed of fishing on the English coast; nor was any claim put forward by them to the dominion or lordship of the surrounding seas. On the contrary, throughout the greater part of the century, facilities were given for the peaceful exercise and encouragement of sea-fishing, even in time of war; while on several occasions the last and greatest of the monarchs of the Tudor line actively contested the old pretensions of Denmark to the sovereignty of the northern seas, and the more recent claims of Spain and Portugal to the exclusive right of navigating the great oceans. It was nevertheless during this century that changes occurred which made it easy for James early in the next to initiate a new policy of mare clausum, and to repudiate the provisions of the so-called Burgundy treaties. The most important of these changes was perhaps the decay which overtook the sea fisheries. Apart from their commercial and economic value, the fisheries were looked upon as indispensable for the maintenance of maritime power, and probably at no previous time had greater efforts been made to foster maritime power than under the Tudors. The hardy fishermen who navigated their barks to distant seas—to Iceland, to Wardhouse, round the North Cape, and now to Newfoundland—were trained in a school of seamanship which fitted them admirably to take their place for the naval defence of the country. Even the herring-smacks and the dogger-boats that fished in the North Sea and the Channel turned out mariners by no means to be despised,—men acquainted with the coasts and the tides, able to manage sails and educated to the sea. It was this aspect of the fisheries which was mostly regarded by the statesmen of those times, and for which the “political lent” and the protective legislation were designed.
The causes which led to the decay in the English fisheries were no doubt various, but perhaps the chief one, and the one on which most stress was laid in the latter part of the century, was the Reformation. The very large consumption of fish due to the observance of Lent and the numerous days of fasting, or fish-days, has been referred to ([see p. 58]). The suppression of the monasteries (1536-1539) and the dispersal of the inmates and dependants must alone have had considerable influence, but the relaxation of ecclesiastical rule among the laity which followed was much more detrimental to the fisheries. The decay of the sea-coast towns, so frequently spoken of in the reign of Elizabeth, was mainly attributed to this cause. Another influence which operated in the same direction, most markedly towards the end of the century, was the great growth of the fisheries and commerce of the Dutch. After the assertion of their independence of Spain (1581), commonly called the “abjuration of Philip,” their fisheries developed with great rapidity. One of the first acts of the new Republic (1582) was the codification of the fishery statutes; and about this time they applied to the deep-sea herring fishery the name of Great or Grand Fishery (Groote Visscherye), as being “the chief industry of the country and principal gold-mine to its inhabitants,” in contrast to the real gold-mines of Spain. They furnished the greater part of Europe with cured herrings and other fish, and the fish supply of England, and more particularly of London, fell to a large extent into their hands. Their herring fishery was carried on along our east coast, and the spectacle of great fleets of foreign fishing vessels frequenting our waters, while the native fisheries were falling to decay, roused envious and jealous feelings in the breasts of patriotic Englishmen.[156]
Under the Tudors the efforts made to foster the sea fisheries did not, as has been said, take the form of interfering with the foreign fishermen. They were rather directed, on the one hand, to increase the consumption of fish by restoring the strict observance of Lent and fish-days, and, on the other hand, to check the importation of fish caught by foreigners. In this way it was hoped that the native fisheries would be stimulated to supply at least the home markets. As early as 1541—a year or two after the suppression of the monasteries—an Act was passed which apparently indicates that the decline in the fisheries had already set in, and that it was customary for the English people to purchase fish from foreigners rather than catch them for themselves. Heavy penalties were imposed on any person who should bring into the realm for sale fresh fish (except sturgeon, porpoise, and seal, which were then included in the term) which they had purchased from strangers in Flanders, Zealand, Picardy, France, or elsewhere beyond the sea, “or upon the sea between shore and shore”; but the buying of fish at Iceland, Scotland, Orkney, Shetland, Ireland, or Newfoundland—to all which places English vessels went—was not prohibited.[157] This statute was re-enacted four years later, and again by Edward VI. and Queen Mary.[158] In the reign of Elizabeth a number of similar statutes were made, with the object of favouring the native fishermen in their competition with foreigners.
About the same time as the first Act of Henry was passed we begin to get evidence of laxity in the observance of Lent and of measures taken to deal with it. Many persons, including noblemen, were brought before the Privy Council charged with having eaten flesh in Lent, and were committed to the Fleet. The mayor and aldermen of London were commanded to make inquisition throughout all the wards of the city as to the households in which flesh was used in Lent, and the butchers were required to furnish information as to the quantity of flesh sold by them, and to whom, in the same period.[159] This activity of the Privy Council foreshadowed the new policy of the “political lent” which was inaugurated a few years later in the reign of Edward VI., and with which the name of Cecil was associated. By this time it was clearly recognised that the religious changes that had taken place were prejudicial to the fisheries by lessening the consumption of fish, and in 1548 an “Act for Abstinence from Flesh” was passed, by which fines were imposed on those who did not observe the usual fast-days. The object of the measure was clearly explained. “One day or one kind of meat of itself,” it said, “is not more holy, more pure, or more clean than another, for that all days and all meats be of their nature of one equal purity, cleanness, and holiness;” but “considering that due and godly abstinence is a mean to virtue, and to subdue men’s bodies to their soul and spirit, and considering also especially that Fishers, and men using the trade of living by fishing in the sea, may thereby the rather be set on work,” it was enacted that no person should eat flesh meat on Fridays, Saturdays, Ember-days, Lent, or on any other day which was accustomed a fish-day, under a penalty of ten shillings fine and ten days’ imprisonment without flesh food.[160]
By this statute the political lent was established, and the policy of compelling the people to eat fish for the good of the fisheries and the navy was continued with more or less vigour for a century and a half. Sir William Cecil was especially active in its favour. He caused careful inquiries to be made into the condition of the decayed havens and sea-coast towns and the state of the fisheries. He was informed by the London fishmongers, to whom he had submitted a series of questions, that there was not so much fish then consumed “by a great quantity” as used to be the case, and that the number of vessels engaged in the fisheries had greatly decreased. On the latter point they referred to a return made about the twentieth year of the reign of Henry VIII., which showed that seven-score and odd ships then went to the Iceland fishery, about 80 crayers to Shetland, and about 220 crayers from Scarborough and other towns to the North Seas fishing, making a total of about 440 fishing vessels; while at the time they wrote—in the reign of Edward VI., and probably in 1552 or 1553—the number had fallen to about 133, of which 43 went to Iceland, 10 crayers to Shetland, and 80 to “the North Seas,” showing a decrease in the twenty-four or twenty-five years of about 307 “ships and crayers.”[161] A similar story of the decay of the fisheries came from the east-coast towns. At Lynn, which was maintained chiefly by the Iceland and the herring fisheries, and which twenty or thirty years before sent out about thirty vessels to those fisheries, there were then only two Iceland barks, and no herring-smacks at all. It used to be able to furnish 300 mariners for the king’s service, while now it could not supply more than twenty or thirty. And so at Burnham (where the fishing-boats had decreased from 26 to nil), Wells, Clee, Cromer, Yarmouth, and other Norfolk ports—all had greatly decayed. The fisheries and the shipping had fallen off, the “men of substance” had lost their money or left, the population had diminished, and even the houses were falling down. To a statesman like Cecil, who knew the value of the mariners bred at the fishing ports for manning the navy if need arose, and how a flourishing fishery multiplied shipping, such information must have been disquieting. He calculated that while within twenty years back there had been 150 ships for Iceland, 220 for the north seas, and 78 for “Shotland” (Shetland), the numbers had fallen when he wrote to 43 for Iceland, 75 for the north seas, and 9 for Shetland; and that the number of fishing vessels had decreased from 448 to 127.[162]
In replying to Cecil’s second question as to the cause of the decay in the fisheries, the fishmongers said it was first of all due to the diminished consumption of fish, since the fish-days were not “duly observed as heretofore,” which “took away such hope of gain as in time past they have had” in carrying on the fisheries. A second reason they gave was the greater love “for ease and pleasure” than in former times, people now preferring to buy their fish from strangers rather than to “travail and venture for it themselves,”—a very common charge against Englishmen then and for a long time afterwards. As a third reason, they said the price of fish was regulated in various towns by the mayors and other officers in such a way that they were often forced to sell without sufficient profit, while Government purveyors made them part with their fish at nominal prices. It is to be noted that they made no complaint against foreign fishermen or the importation of foreign fish.
During the brief reign of Mary (1553-1558) Cecil was in the shade, but shortly after the accession of Elizabeth he again devoted attention to the decay of the fisheries and tried to apply fitting remedies. Among the State Papers of the year 1563 is a long and elaborate document, copiously revised by Cecil himself, which deals with the condition of shipping and fisheries, and obviously formed the basis and argument for the great Act made in the same year.[163] In this paper the decay of the navy both in ships and mariners was traced by Cecil to a variety of causes: the piracies of Turks and Moors on the Levant trade, the transference of the spice trade from the Venetians to the Portuguese and Spaniards, the Spanish law of bottomry, the augmentation by the King of Denmark of the tolls at the Sound and his recovery of Iceland, and the decay of the English fisheries. Herrings and other sea fish, he said, were now taken upon our coast by strangers, who brought them into the realm and sold them “to the very inhabitants of the parts that were used to be fishermen,” while Englishmen had themselves been prohibited from exporting fish.[164] The remedies which Cecil proposed were that the importation of wines and woad should be allowed only in English ships; that Englishmen should be prohibited from purchasing fresh herrings which had been caught by strangers; that they should be free to export and sell sea fish out of the realm; and, principally, that Wednesday should be made an additional fish-day. The decay of the fisheries, he said, was manifest on all the sea coast in the decay of the port towns, which soon would be “remedeless,” and it was caused by diminished consumption of fish at home and the want of foreign markets.[165] On the other hand, Scotland, Norway, Denmark, Friesland, Zealand, Holland, and Flanders caught not only sufficient fish for themselves, but exported it to other countries, including England; while Spain provided herself by her fisheries on the south coast of Ireland, and France “aboundeth with fishermen” from her great fisheries at Newfoundland and Iceland.[166] Cecil’s conclusion was that there was no likelihood for a long time of developing a flourishing export trade in fish, and that it would be necessary to institute another fish-day to increase the demand at home. On this part of his proposals he entered into a long argument, showing that in 1536 the 500 monasteries which paid tithes to the king, with a minimum number of 25,000 inmates, must have required a great supply of fish, as fish was then eaten on at least seventy-six days a year more than at the time when he wrote.[167]
By the great Act passed in 1563, “Touching certain Politic Constitutions made for the Maintenance of the Navy,” Wednesday was added to the two fish-days previously enjoined by the statute of Edward VI., but only after long debate and opposition on the part of the “puritans.”[168] The Act also contained provisions to restrain foreign importation of fish, to encourage the export of English-caught fish by subjects, and to remove the complaints as to the action of purveyors and burdensome impositions—points on which the fishmongers had laid some stress. Herrings and other sea fish taken by Englishmen in English ships were to be freely exported without paying custom; no tax, toll, or restraint was to be imposed on fish taken and landed by subjects; it was made illegal to buy from strangers any herrings unless they were “sufficiently salted, packed, and casked”; only English vessels were to be allowed to carry coastwise any fish, victuals, or other goods; the cultivation of flax for fishing-nets was to be encouraged; and on the plea that there was “much deceitful packing” of cod and ling brought into the realm by aliens, the importation of these fish was forbidden, except only “loose, in bulk and by tale.” Most of these provisions and prohibitions would operate against the Dutch, who had not only a large part of the trade in herrings with England, but practically the monopoly in supplying barrelled cod and ling.[169]
From this time forward the policy of protecting the native fisheries by checking the competition of foreigners went hand in hand with the encouragement of the consumption of fish by the compulsory observance of fish-days. Interfering as it did with established practice and conflicting trade interests, the Act aroused opposition in various quarters, especially on the part of those who were interested in the important commerce in cured cod-fish. In the year after it passed, the Queen’s purveyors were unable to obtain in England sufficient supplies of fish for the navy and the royal service, and they were licensed to import cod-fish, lings, and green-cod, in barrels or casks, notwithstanding the prohibition in the Act,[170]—a privilege which had to be extended to all English subjects a few years later with respect to fish caught in their own vessels “with cross-sails.”[171] On the other hand, it was claimed that the Act had done good. The coast people of Norfolk and Suffolk informed the Council in 1568 that it had increased the trade in fish in these counties; and as the Act had been passed for four years only and continued at the Queen’s pleasure, they petitioned that it should be renewed, and that provision should be made to put a stop to the importation by strangers of cod and ling in bulk, which were dried and sold under the name of Iceland fish, to the detriment of those engaged in the Iceland fishery, and also to ensure that fish-days should be better observed.[172] In the same year the Council instructed the magistrates of London, Hull, and Southampton, and the justices of various shires, to commit to jail any persons fraudulently dealing with foreign imported cod and ling as Iceland fish;[173] and three years later another Act was passed, giving effect to the wishes of the fishermen, and continuing the former Act for other six years.[174] It contained a new provision showing that complaints had been made about the vessels, some of them foreign, which came “pretending” to buy fresh herrings on the coast of Norfolk. To avoid “lewd outrages” by these “catches, mongers, and Picardes,” in cutting and damaging the drift-nets of the fishermen, they were prohibited from anchoring between sunset and sunrise during the fishing season in the places where the boats were accustomed to fish.
Up to about this time no complaint seems to have been made against the foreign fishermen either by English fishermen or by statesmen or writers. The men from the Low Countries appear to have pursued their occupation in peace side by side with the Englishmen. But in 1570 the first note was heard of what became later almost a continuous lamentation. A petition was presented to the Privy Council asking that “letters” should be sent to Zealand and Holland, or ships of war despatched to protect the English fishermen from the evil doings of the Low Countrymen. “Otherwise,” the petitioners said, “both wee and all others that entend fysshing in all partes of this realme shall be utterly undone, for that the fishermen Flemynges this yeire have so spoyled and mysused all the coaste men, that it hath so discomforted them” that they feared “the whole avoyadaunce of fysshing both for herring and other fysshing upon all the north coast of this realme.”[175] Whether or not this complaint referred to the outrages described in the Act quoted above is uncertain, but probably it did not, as the Hollanders and Zealanders fished for themselves, and they were now becoming rather numerous. It does not appear that any special action was taken regarding the petition. It was Cecil’s aim to increase the use of fish within the realm and to foster the native fisheries, but he had no desire to interfere with the liberty of fishing enjoyed by the Hollanders. Such action would have been contrary not only to the treaties but to the international policy of England at that time. On political and religious grounds the aid of the Dutch was needful in the struggle against the common enemy, Spain.
That the English people had become interested in the condition of the fisheries and somewhat jealous of the fleets of foreign vessels which fished along their coast may be inferred from the appearance at this time of two works—one by Captain Robert Hitchcock, and the other by the learned and unfortunate Dr John Dee. It is a curious circumstance that those authors, who wrote at the same period, should each have advocated one of the two lines of policy adopted in the next century. Hitchcock was all for freedom of fishing, for strangers and natives alike. His remedy was the creation of a great English fishery organisation to oust the Dutch from our seas. Dee, on the other hand, was emphatic in claiming mare clausum and an exclusive fishing for Englishmen, and in urging heavy taxation of foreigners who fished in the British seas.
Hitchcock was a gentleman and a soldier who, in 1553, as he himself tells us, while serving the Emperor Charles V. in his wars in the Low Countries, had observed with astonishment that the wealth and shipping of Zealand and Holland were due to their sea fisheries. Pondering on his discovery, he thought out a plan some years later by which a great national fishery might be established in England to supplant the Dutch, so that the wealth acquired by them in the British seas might go to profit his own countrymen. It was the first of the innumerable schemes of the kind which are to be found scattered over the economic literature of the next two centuries. Having reduced his plan to writing, he submitted it about the year 1573 to the Earl of Leicester, in 1575 to Queen Elizabeth, and in the following year he distributed copies to men of influence, in the hope “that God would stir up some good man to set out this work.” It appears even to have been brought to the notice of Parliament by Sir Leonard Digges, but its consideration was deferred “for want of time.”[176] The copy presented to the Queen is preserved among the Burghley Papers in the British Museum,[177] and the completed work, somewhat enlarged,—now very rare,—was published (in black-letter) on 1st January 1580 as “A New Year’s Gift to England.”[178]
The plan of Hitchcock was to borrow £80,000 for three years, when the whole amount would be repaid from the proceeds of the fish sold. The shires were to be arranged in eight groups, each group providing with its £10,000 fifty fishing vessels of not less than 70 tons burthen, or 400 altogether. These were to be built after the manner of “Flemysche Busses” and distributed at eighty ports around the coast; and at eight of the chief ports (London, Yarmouth, Hull, Newcastle, Chester, Bristol, Exeter, and Southampton) two “honest and substantial men of credit” were to be appointed chief officers, to act as treasurers, purveyors, and directors. Hitchcock estimated that each ship when ready for fishing would cost £200; the crews were to consist of a skilled master, twelve mariners or fishermen, and twelve “strong lustie beggers or poore men taken upp through the land.”[179] The scheme proposed that the busses should first fish for herrings on the coast of England and Ireland during the fourteen or fifteen weeks this fishing lasted, the herrings being cured and branded after the “Flemish” fashion. The busses were also to visit Newfoundland for cod and ling; or some were to go to Iceland, “Wardhouse,”[180] the north seas of England and Scotland, or to Ireland. It was intended to employ some of them in winter in exporting the surplus of cured fish to France, “or elsewhere.” As for the all-important question of earnings, it was calculated that each buss would catch at least 50 lasts, or 600 barrels, of herrings, worth £10 a last; altogether £200,000 from this item,[181] and if two voyages were made, the amount would be doubled. It was supposed that each buss would bring back from Newfoundland 20,000 of the best “wet” fish and 10,000 dried—together worth £500; the same value was placed upon the 15,000 cod and 10,000 ling to be procured at Iceland, Wardhouse, or the north seas; and besides the fish, each ship was estimated to return with £50-£60 worth of cod-liver oil. Then with regard to the “vent” or sale of the fish, it was assumed that about half of the herrings, or 120,000 barrels, would be required for home consumption—not an exaggerated idea, for from other accounts it appears that London and the parts around it consumed about this time 60,000 barrels. Markets for the surplus herrings, it was believed, would be found at Normandy, Nantes, Bordeaux, and Rochelle. The profits were to be divided into shares, and besides paying off the borrowed capital and the interest (at 10 per cent), a stock of £8000 was to be formed at the eight chief ports, and £400 at the “225 decayed towns” in England and Wales for the philanthropic purpose of giving work to the poor. Nay, there was more. At the chief ports the surplus earnings were to provide a salary for “an honest, virtuous and learned man,” who was to travel constantly about the coasts preaching to the people, “as the Apostles did.” Among the indirect benefits to the nation Hitchcock included the transformation of idle vagabonds, of whom there were plenty, “daily increasing,” into good subjects—some of the Members of Parliament thought this part of the scheme alone entitled it to national support,—the addition of 9000 mariners for manning the navy, the saving of coin spent on foreign fish, the increase of the Queen’s customs, of commerce and navigation, and the repair of the decayed towns.
Such was the dream of this enthusiastic but thoroughly sincere old soldier: to expel the Hollanders from our seas by means of a national fishery organisation and to win back for England the wealth they gathered from her waters. At the time when he wrote, foreign fishermen were not nearly so numerous on our coasts as they became later. The herring-busses from the Low Countries which fished on the east coast numbered, he says, between 400 and 500, and the Englishmen “for feare of them,” and of tempests, fished in small vessels near the shore, as he shows in a “similitude,” here reproduced ([fig. 2]). Besides these, between 300 and 400 ships and barks from Biscay, Galicia, and Portugal fished off the south-west coast of Ireland from April to July, “near to Mackertymors country”; and also on the west and north-west coasts of Ireland for cod and ling from about Christmas to March. Hitchcock makes no complaint against the foreign fishermen for fishing in “her Majesty’s seas.” With a fine catholic generosity he indeed expressly says that all men of what country soever should be free to do so; that there was enough fish in the northern seas for all, even if there were 1000 sail more than there was. He believed that the English, by being so much nearer the fishing grounds, ought to be able to undersell the foreigner and get the markets and the trade.[182]
Fig. 2.—Hitchcock’s representation of the English and Flemish fisheries.
The scheme of Dr John Dee was very different from that of Hitchcock. A mathematician, an astrologer, a reputed magician, and, above all, an accomplished scholar, he looked at the subject from another point of view. Well acquainted with the writings of the Italian jurists and the practice of the Italian states, he expounded the view that the fisheries and the sovereignty in the British seas pertained to the crown of England, and that foreigners should be compelled to pay tribute for the liberty of fishing within them. It is the philosopher of Mortlake, indeed, who must be recognised as the literary pioneer of the claims to the sovereignty of the sea which were put forward by England in the seventeenth century. In 1577 he published a book entitled General and Rare Memorials pertayning to the Perfect Arte of Navigation,[183] in which he dealt with the fisheries and the boundaries of the British seas, and recommended that the tribute to be exacted from foreign fishermen should be expended in maintaining a navy to be called “The Petty Navy Royall,” for keeping the seas and supervising the fisheries. “Should not forreyne fishermen,” he asks, “(overboldly now and to to injuriously abusing oure riche fishings about England, Wales and Ireland), by the presence, oversight, power and industry of this Petty Navy Royal be made content; and judge themselves well apaid to enjoy, by our leave, some great portion of revenue to enrich themselves and their countries by, with fishing within the seas appertayning to oure ancient bounds and limits? Where now, to oure great shame and reproache, some of them do come in a manner home to our doors; and among them all, deprive us yearly of many hundred thousand pounds, whiche by our fishermen using the said fishings as chief, we might enjoy; and at length, by little and little, bring them (if we would deal so rigorously with them) to have as little portion of our peculiar commodity (to our Islandish Monarchy, by God and Nature assigned) as now they force our fishermen to be contented with; and yearly notwithstanding, doo at their fishing openly and ragingly use suche words of reproche toward our Prince and realm, as no true subject’s hart can quietly digest; and besides that, offer such shamefull wrongs to the good laboursom people of this land, as is not (by any reason) to be born withall, or endured any longer: destroying their nets, cutting their cables to the los of their anchors; yea, and often-tymes of Barkes, men and all.”[184] Here is the first note of a plaint which will become very common. He also accused the foreign fishermen, under colour of fishing, of making secret soundings of the channels and banks along our coast, to the great danger of the realm.
As for their fishing on the English coast, he says, erroneously, that the men from the Low Countries had frequented the herring fishing off Yarmouth for only thirty years (since 1540), since when their numbers had greatly increased. They had now become “very rich, strong, proud, and violent,” so that the ships of Norfolk and Suffolk, next to the fishing places, were reduced in numbers by 140 sail, besides crayers and other craft. The number of Flemish herring-busses that came to our coast he placed at over 500, while there were about 100 French; and 300 or 400 “Flemings” fished for cod in the north seas, “within the English limits.” Other foreigners, moreover, caught herrings on the Lancashire and Welsh coasts, and about 300 sail of Spaniards, besides Frenchmen, fished off Cape Clear and Blackrock in Ireland. All these fishings, said Dee, were “enjoyed as securely and freely from us by strangers, as if they were within their own King’s peculiar sea limits; nay, rather as if those coasts, seas and bays were of their private and several purchases: to our unspeakable loss, discredit and discomfort, and to no small further danger in these peculiar times of most subtle treacheries and fickle fidelity.” While admitting that the British seas were free for navigation, Dee held that the fisheries pertained to the crown of England, and that no foreigner had a right to cast a net in our sea without first obtaining leave from the Queen. To her belonged “the tenth” of all foreign fishings “within the royal limits and jurisdiction” in the British and Irish seas, and it was “a most reasonable and friendly request” that foreigners should pay that tenth in acknowledgment of the liberty to fish,—a tribute which he calculated would amount to £100,000 a-year, and which he urged should be devoted to the maintenance of the “Petty Navy Royal.”
Dee was not only the first English writer who claimed the sovereignty of the sea and the fisheries for England; he was also the first who attempted to define their boundaries in detail. At the time when he wrote, it appears indeed to have been held in theory by some lawyers that the limit of the English seas extended to the mid-line between England and foreign coasts, except in the case of the Channel, where the water right up to the opposite shore was believed to be under the sovereignty of England. The doctrine, no doubt, was evolved from the opinions of the Italian jurists, whose authority was then very high ([see p. 539]), and from the political relations with France then and in former times. Two years before Dee published his book, Plowden, an eminent lawyer, acting as counsel in a case concerning the rights on a manor to wreck of the sea, argued for the defendant that “the bounds of England” extended to the middle of the adjoining sea which surrounded the realm, but that the Queen had the exclusive jurisdiction on the sea between England and France by reason of her title to France, and so also with Ireland; whereas in other places, as towards Spain, she had only the moiety. It was the same, said Plowden, with the sea as with great rivers. But while Plowden allowed the “jurisdiction and governance of all things” to the Queen on the sea within the limits stated, he denied to her the right of property in it or in the land under it; it was common to all men, and she could not prohibit any one from fishing in it; the water and the land under it were things of no value, and “the fish are always removable from one place to another.”[185]
Dee adopted the same opinion as to the limits, but held, as we have seen, that the fisheries were appropriated. The boundaries of the Queen’s “peculiar seas,” he said, were “in all places to be accounted directly to the myddle seas over betweene the sea-shores of her own kingdom (and of all petty Isles to the same kingdom appertayning) and the opposite sea-shores of all forrein princes: and in all seas lying immediately betweene any two of her own coasts or sea-shores, the whole breadth of the seas over (in such places) is, by all reason of justice, appropriate to her peculiar jurisdiction and sea royalty,” even if the distance in such cases were 1000 miles or more.[186] On the other hand, according to Dee, neighbouring countries were to be allowed the same rights and interests in the moiety of the sea appropriate to their coasts.
The limits of the British seas, and the sovereignty pertaining to them, were more fully described by Dr Dee some years later in a long unpublished letter or treatise addressed to Sir Edward Dyer,[187] who had apparently asked him for a fuller statement of his views on the subject. In his book Dee said little about the boundaries in the Channel, where the principle of the mid-line was complicated by two circumstances—the claim of Elizabeth to the French crown, and the possession by England of the Channel Islands. In his later treatise he says that presupposing “for doctrine’s sake” that Calais was in the hands of Spain, and the northern coasts of Picardy and Normandy were appropriated by France (which was the case), then the boundary must be drawn in the very middle of the Channel between Dover and Calais, and then westwards in the middle line between the opposite coasts of England and of Picardy and Normandy, until it touched the middle of a straight line drawn between Portland and the island of Alderney. In this region, west of the line, inasmuch as the coasts of the Channel Islands and the opposite coast of England belonged to the Queen, her Majesty had “absolute, peculiar, and appropriate Sea Sovereignty and Jurisdiction Royall.” The western boundary of this area of absolute sovereignty in the narrow seas coincided with a line drawn from Start Point to an “island” that Dee calls “Rocktow,” which is unrepresented on charts, but which is probably a phonetic synonym for “Roches Douvres,” a group of islets off the north coast of Brittany.[188] From the middle of this line the boundary passed westwards, again midway between the coasts of England and Brittany, until it touched the middle of a third straight line drawn from the north-west part of Ushant to about the Lizard. These were the limits on the supposition above referred to; but, “speaking more boldly in her Majesty’s right,” Dee declared that the whole sea between the south coast of England and the north coast of France—Picardy, Normandy, and Brittany—was under the Queen’s “sea-jurisdiction and sovereignty absolute,” inasmuch as she was a real monarch of France by direct inheritance and prior conquest, and therefore had right to the French coasts; and this “absolute sovereignty” served to “enlarge and warrant” the Queen’s “Jurisdiction Respective” in the ocean to the west of France. So also the jurisdiction of the crown of England extended into the main ocean to the west of England and Ireland by reason of the possession of the shores; while the ocean around Scotland, inasmuch as that country was (he said) in olden times tributary to the English kings, yielded to her Majesty “a mightie portion of Sea Sovereignty,” as it stretched away westwards to “that famous and very ancient Platonicall or Solonicall Atlantis.” For the same reasons Dee claimed prerogative and jurisdiction for the Queen in the northern ocean, and between Scotland and the opposite coasts of Norway and Denmark, “at least to the mid-sea,” and so to the southwards “half seas over” between the east coast of England and the coasts of Denmark, Friesland, and Holland, to the Straits of Dover.
Within the British seas as thus defined, Dee claimed that the crown of England had first of all sovereign jurisdiction, over foreigners as well as over subjects,[189] and part of the duty of the Petty Navy Royal—which, as stated, was to be maintained by taxing foreign fishermen—was to guard and protect foreign ships passing through our seas. This doctrine he based upon the law as laid down by the Italian jurists. Nor did he forget the purely naval side. Quoting the old proverb, “A sword keepeth peace,” he argued that the presence of a fleet such as he suggested would cause other nations to respect us more than they did, and enable us to enjoy the royalty and sovereignty of the narrow seas and of our other seas better than the possession of Calais and Boulogne could do.
Dee’s work was premature. His proposals that Elizabeth should tax foreigners for fishing in the British seas and exercise jurisdiction over foreign vessels passing through them remained as much a dream as the scheme of Hitchcock.[190] It need not be supposed that such measures as Dee proposed were intrinsically distasteful either to the Queen or to Cecil. If a navy could have been acquired so easily, or a much less sum than £100,000 gathered from foreign fishermen in a “friendly” way, as Dee supposed, neither the sovereign nor the statesman was likely to let the chance go by. But they knew better than the philosopher, or than the Stuarts in the next century, that a policy of the kind would involve them in difficulties with other Powers,—with France and Spain as well as with the Protestant Netherlands.
So far from adopting any policy of this nature or making any claim to a special sovereignty in the surrounding seas, Elizabeth steadily opposed all claims which other nations put forward to mare clausum. Long before Grotius, she was the champion of the free sea, although it must be admitted that the action of the English Queen was no more based on considerations of the general good of mankind than were the efforts of the Dutch publicist: both had in view the interests of their native land. Elizabeth’s motive was to secure liberty of trade and fishery for her subjects, which was threatened by the pretensions of Spain and Portugal on the one hand and by Denmark on the other. The Portuguese pretension was of long standing. When that nation in the latter half of the fifteenth century had pushed her way down the west coast of Africa and ultimately round the Cape of Good Hope to the East Indies, she obtained from the Pope various bulls securing her in her possessions, and granting sovereign authority to the crown of Portugal in all the lands it might discover in the Atlantic from Cape Bojador to the Indies. By an inhuman doctrine established during the Crusades, Christian princes were supposed to have the right to invade, ravage, and acquire the territories of infidel nations on the plea of extending the sway of the Christian Church; and the Pope, from his supreme authority over all temporal things, disposed of these heathen lands to such princes as might bring them under the dominion of the Church and propagate the true faith among the inhabitants. Immediately on the return of Columbus from his first voyage in 1493, the Spanish monarchs accordingly obtained a bull from Pope Alexander VI. confirming them in the newly-discovered regions; and in order to prevent disputes with Portugal as to the extent of their respective claims, another bull was issued, on 4th May 1493, containing the famous line of demarcation between their territories. This was an ideal straight line drawn from the North Pole to the South Pole, passing 100 leagues to the west of the Azores and Cape Verde Islands. All islands or lands discovered to the west of this line by the Spaniards, and which had not been in the possession of any Christian Power before the preceding Christmas, were to belong to the Spanish crown; and all territory discovered to the east of it was to belong to Portugal. The Pope, moreover, granted a monopoly of commerce within those immense regions to the respective crowns, so that other nations could not trade thither without license from the Spanish or Portuguese sovereigns.[191] Spaniards even were not allowed to go to the New World either to trade or form establishments without royal license and authority. Disputes arose between Spain and Portugal as to the equity of the Pope’s line of demarcation, and by the Treaty of Tordesillas, 7th June 1494, they agreed that the inter-polar line should pass 370 leagues to the west of Cape Verde Islands.[192] The exclusive rights conferred by the Pope were rigorously enforced by Spain and Portugal. Navigation to their new possessions, or the carrying on of any trade or commerce with them, without royal license was made punishable by death and confiscation of goods.[193]
Early in her reign Elizabeth had occasion to protest against the claims of Portugal, and had a heated dispute with King Sebastian about them.[194] Later, the daring exploits of Drake on the Spanish seas were more than a flagrant violation of Philip’s pretension to mare clausum in the western Atlantic and the Pacific Oceans—a claim which Elizabeth refused to recognise. When Mendoza, the Spanish ambassador, complained to her in 1580 of Drake’s depredations, and that English ships presumed to trade in the “Indian” seas, he was told in effect that the Spaniards, contrary to the Law of Nations, had prohibited the English from carrying on commerce in those regions, and had consequently drawn the mischief upon themselves. She was unable to understand, she said, why her subjects and those of other princes should be barred from the “Indies.” She could not recognise the prerogative of the Bishop of Rome “that he should bind princes who owe him no obedience,” and her subjects would continue to navigate “that vast ocean,” since “the use of the sea and air is common to all; neither can any title to the ocean belong to any people or private man, forasmuch as neither nature nor regard of the public use permitteth any possession thereof.”[195]
About the time when Drake left England, the question of the right of Spain to forbid the English to trade to the Indies had been considered. It was argued that the Pope’s bull was void, for several reasons. The consent of the Pope had been conditional for the conversion of the natives, while the “usage of the Spaniards hath been otherwise.” The bull could have no force in tending to the prejudice of a third party, because all princes by the Law of Nations had the right of navigation in the sea and the right of traffic, and the Pope could not deprive them of these rights. Besides, there had been agreements between Spain and England since the date of the bull that the subjects of each state might freely traffic in the dominions of the other; and the Spanish lawyers had come to the conclusion that the Venetians could not legally inhibit others from trading in the Adriatic, and therefore, by the same reasoning, neither could the Spaniards or Portuguese prohibit orderly and lawful traffic to their Indies.[196] Elizabeth has been charged with inconsistency on the ground that at the time when she was asserting the freedom of the seas against the claims of Spain she was claiming for herself, “with very great energy,” a similar dominion in the British seas.[197] The charge is quite unfounded. No claim was put forward by her to the sovereignty of the British seas. On the contrary, they were declared to be free for the navigation and fishery of all nations.
The policy of Elizabeth as to the freedom of the sea is revealed still more clearly in the negotiations with the King of Denmark as to the right of fishery at Iceland and in the northern seas. Denmark claimed not only the Sound and the Belts and the maritime dominion of the Baltic, with the right of controlling the navigation through them, but also the seas intervening between the coasts of Norway on the one hand and Iceland and Greenland on the other. A similar claim was made to the sea between Norway and the Orkney and Shetland Isles, at all events prior to 1468, when they were acquired by Scotland. Putting aside altogether the differences that arose with regard to the dues exacted at the Sound and in connection with the Baltic, a great many disputes had occurred between England and Norway and Denmark as to the right of Englishmen to trade and fish at Iceland and along the Norwegian coast, and many treaties were made between the two Powers regulating that right. From an early period numerous barks from Lynn, Yarmouth, Hull, Scarborough, and other east coast ports, and from Bristol, frequented the northern seas for fishing and buying fish, and for traffic, visiting not only Iceland, but Helgeland, Nordland, and Finmark, and going at least as far east as Wardhouse or Vardö. In 1415 Henry V., at the request of King Eric, and notwithstanding an earnest petition of the Commons to the contrary,[198] prohibited his subjects from going to Iceland or other islands belonging to Norway or Denmark;[199] in 1429 the King of Denmark prohibited English merchants from purchasing fish at Finmark, or elsewhere in his dominions than at Bergen, against which the English petitioned Henry VI.;[200] and in 1490 an important treaty was concluded between Henry VII. and King John II. of Denmark and Norway, by which English subjects were granted liberty to sail freely to Iceland for fishing or trading on paying the usual customs, provided that they obtained a renewal of their license to do so every seven years.[201] This treaty was renewed in 1523 between Henry VIII. and Christian II.,[202] but disputes frequently arose later, and several embassies were charged with composing the differences.
Apparently the English fishermen did not always conduct themselves with propriety. They were accused of committing various wrongs and injuries on the inhabitants, and in 1585, on the complaint of the King of Denmark, Queen Elizabeth issued an Order in Council reproving them for their excesses, and intimating that if they were continued the King of Denmark would interdict their fishing, and “punish such as shall without his license repair thither, and confiscate their ships and goods.” The king, she said, had promised that if the English fishermen abstained from committing outrages and behaved themselves, and paid the customary duties, he would allow them to enjoy the liberties they had formerly possessed; and she commanded the principal officers at her ports to take bonds from all those going to Iceland or Wardhouse for their good behaviour.[203] But the disputes and difficulties continued. The English fishermen omitted to renew their licenses septenially,—in 1592 it was said they had not been obtained for twelve years, and the stipulation had been forgotten by those in authority,[204]—and the Danes began about 1593 to interrupt them in their fishing at Westmoney and in the sea off Iceland, and to seize their vessels. On complaint being made to the King of Denmark, he declared his willingness to allow the Englishmen to fish at Iceland under license, except at Westmoney (small islands on the south coast), where the fishing was reserved for his court.[205] At the close of the century the Danes used stronger measures. In 1599 several English vessels were seized or molested. Five ships of Kingston-upon-Hull, while at Wardhouse for fish, as had been their custom for years, were met there by a small Danish fleet with the King of Denmark himself on board, who caused them to be seized as prize, took all the goods and effects of the Englishmen, beat some of the crew and put them in irons, and finally carried off four of the ships.[206] Other English vessels were driven away from their fishing on the high seas around Iceland, although far from the coast.
Elizabeth complained strongly of these acts of injustice as being contrary to the Law of Nations.[207] A Danish ambassador who came to England at this time tried to justify the prohibitions by reference to the treaty of 1583, by which permission had been given to English vessels to navigate the northern seas to Russia, but which did not grant any authority for fishing; and he requested the Queen to publish an edict inhibiting her subjects from fishing at Iceland or Wardhouse without the license of the King of Denmark, declaring that many English vessels persisted in carrying on the fishery without any license, contrary to the treaties. Reliance was also placed on an old treaty made in 1468 between Edward IV. and Christian I., in which it was stipulated that English vessels should not go farther north on the coast of Norway than Hagaland.[208] In the following year ambassadors were dispatched from England to negotiate an arrangement concerning the tolls levied at the Sound and the freedom of the northern seas for English fishermen,[209] and in a paper of 1602 conveying instructions to the ambassadors at Bremen we find an admirable exposition of the principles of the freedom of the seas.
After claiming that the treaties of 1490 and 1523 had given liberty of fishing to the English, the ambassadors were to declare that the Law of Nations allowed fishing in the sea everywhere, as well as the use of the ports and coasts of princes in amity for traffic and the avoiding of the dangers from tempests; so that if the English were debarred from the enjoyment of those common rights, it could only be in virtue of an agreement. But there was no such contract or agreement. On the contrary, by denying English subjects the right of fishing in the sea and despoiling them for so doing, the King of Denmark had injured them against the Law of Nations and the terms of the treaty. Moreover, with respect to the licenses the Queen declared that if her predecessors had “yielded” to take them, “it was more than by the Law of Nations was due”; they might have yielded for some special consideration; and in any case it could not be concluded that the right of fishing, “due by the Law of Nations,” failed because licenses were omitted. As to the claim to the sea between Iceland and Norway on the ground that the King of Denmark possessed both coasts—the argument used by Dee and Plowden for the dominion of the English crown in the Channel—Elizabeth was emphatic. If it was supposed thereby “that for the property of a whole sea it is sufficient to have the banks on both sides, as in rivers,” the ambassadors were to declare “that though property of sea, in some small distance from the coast, may yield some oversight and jurisdiction, yet use not princes to forbid passage or fishing, as is well seen in our Seas of England and Ireland, and in the Adriatic Sea of the Venetians, where we in ours and they in theirs, have property of command; and yet neither we in ours nor they in theirs, offer to forbid fishing, much less passage to ships of merchandise; the which by Law of Nations cannot be forbidden ordinarily; neither is it to be allowed that property of sea in whatsoever distance is consequent to the banks, as it happeneth in small rivers. For then, by like reason, the half of every sea should be appropriated to the next bank, as it happeneth in small rivers, where the banks are proper to divers men; whereby it would follow that no sea were common, the banks on every side being in the property of one or other; wherefore there remaineth no colour that Denmark may claim any property in those seas, to forbid passage or fishing therein.”
The ambassadors were to declare that the Queen could not agree that her subjects should be absolutely forbidden the seas, ports, or coasts in question for the use of fishing, “negotiation,” and safety; she had never yielded any such right to Spain and Portugal for the Indian seas and havens. Nevertheless, if the King of Denmark for special reasons desired that she should “yield to some renewing of license,” or that “some special place upon some special occasion” should be reserved for his own use, they were in their discretion and for the sake of amity to agree; but the manner of obtaining the license was to be defined in such a way that it would not be prejudicial to her subjects, nor “to the effect of some sufficient fishing,” and the licenses were to be issued in the subject’s name rather than in hers or the king’s.[210] Denmark continued to insist upon her right to the trade with Iceland, and to the fisheries in the northern seas,[211] which became of greater importance early in the next century when the whale-fishing was established at Spitzbergen. The Danish claim to a very wide zone of territorial sea around Iceland was enforced until quite recent times.
The dispute between Elizabeth and the King of Denmark as to the rights of fishing in the North Atlantic bears a strong resemblance to that between James I. and the Dutch, which began a few years later, when the positions, however, were reversed, James insisting on his right to the fishery on the British coasts, while the Dutch used the arguments of Elizabeth in favour of the complete freedom of the seas. One difference in the two cases may be pointed out. England by agreeing to take licenses from the King of Denmark, in the treaties of 1490 and 1523, acknowledged the sovereignty of Denmark in northern waters, whereas the Netherlands never acknowledged the sovereignty of England in the British seas, within which the liberty of fishing had been expressly granted to them by the Burgundy treaties.
Meantime the condition of the English fisheries had not much improved, either under the restrictive legislation respecting imports and exports of fish or by the measures taken to enforce the political lent. The liberty given by the Act of 1571 for the importation of cod-fish was opposed to the interests of the Iceland trade, and gave rise to abuses. Great quantities of inferior fish were “engrossed” by English merchants abroad and brought into the realm, which was thus “furnished with foreign fish and herrings,” while the Iceland fishery declined and the number of mariners available for the navy diminished. The importation of foreign salted fish or salted herrings by Englishmen or denizens was therefore prohibited; such fish were allowed to be brought by aliens alone, who were to pay additional customs, but fish from Iceland, Shetland, Newfoundland, and from the Scottish seas were still to be admitted.[212] But the attempt to keep out foreign fish failed in its object, the restrictions were found to be otherwise injurious, and they were repealed in 1597. “It had been hoped and expected,” it was said in the preamble of the repealing Act,[213] “that the fishermen of this realm would in such sort have employed themselves to fishing, and to the building and preparing of such store of boats and shipping for that purpose, as that they should long ere this time have been able sufficiently to have victualled this realm with salted fish and herrings of their own taking, without any supply of aliens and strangers, to the great increase of mariners and maintenance of the navigation within this realm. Notwithstanding it is since found by experience that the navigation of this land is no whit bettered by means of that Act, nor any mariners increased, nor like to be increased by it; but contrary wise, the natural subjects of this realm being not able to furnish the tenth part of the same with salted fish of their own taking, the chief provision and victualling thereof with fish and herrings hath ever since the making of the same Statute been in the power and disposition of aliens and strangers, who thereby have much enriched themselves, greatly increased their navigation, and (taking advantage of the time) have extremely enhanced the prices of that victual[214] to the great hurt and impoverishing of the native subjects of this realm, and yet do serve the markets here in very evil sort,” housing their fish till the price was raised to their liking. Thus the merchants in England were hindered in their trade, the navigation of the realm “which was intended to be augmented, hath been rather impaired than increased,” and the price of fish had been greatly raised, to the general prejudice of the people. After this very thorough condemnation of its previous Act,[215] Parliament declared that as strangers and subjects were at liberty to export English-caught fish and herrings, it was only right to allow subjects as well as foreigners to bring in fish to provision their own country, and the previous Act was wholly repealed. Thus the condition reverted to what it had been before this course of legislation began.
It is equally doubtful whether the compulsory fish-days or political lent had much influence in fostering the fisheries. At first, if a return from the Trinity House can be trusted, the number of fishing-boats increased. They reported in January 1581 that since the previous Parliament there had been an increase along the coast from Newcastle to Portsmouth of 114 sail of fishing-boats, of between fifteen and forty tons, which was equal to the maintenance of a thousand additional seamen for the navy.[216] It is not improbable that an increase of the herring-boats occurred on the east coast at this time, but it was temporary, and more likely due to other provisions of the Act of 1563. Cecil’s Wednesday, for which he had fought so hard, was abolished in 1584, while certain penalties for eating flesh in Lent, on Fridays, Saturdays, or other fish-days, were at the same time augmented;[217] but in 1593 all the penalties were greatly reduced.[218]
The policy of the political lent did not fail from want of efforts to enforce it. In London especially precautions were taken to have the law carried out, and the fishmongers were naturally active in their own interests. Taverns and inns were often raided; those who had flesh in their houses during Lent were often put in the pillory, and those who partook of it in the stocks; and butchers were frequently prosecuted for selling flesh on forbidden days. Those who were licensed to provide flesh in Lent for the sick were put under bond, and had to keep an account of every joint they sold; watchmen guarded the city gates lest any beef should be smuggled in. Similar measures were taken throughout the country. The sheriffs and justices of the peace were ordered by the Council to see that the Act was duly enforced, and innkeepers had to enter into recognisance to observe it.
But there is abundant testimony that the observance of the fish-days was evaded on all sides. The policy was against the temper of the people. So long as it had been a matter of religion and ecclesiastical rule they were faithfully observed. The motive was now too remote; and although the people were exhorted on grounds of “conscience” to eat fish on 153 days in the year in order to maintain the navy, and “great numbers” at first obeyed, the “universal multitude” always abstained, and their example was followed by the better classes. Many considered abstinence from flesh on fish-days to be “papistical”; others objected on economic grounds, saying they could maintain their families better and cheaper on flesh than on fish; and great numbers took advantage of the clauses in the Act granting license of exemption. The Lord Mayor was pestered by such applications, very commonly from noblemen and persons about the Court, even receiving them from the Queen herself, and in 1595 he begged that the Act might be repealed altogether.[219] Thus “Cecil’s fasts,” as the unpopular fish-days were vulgarly called, designed by the great statesman to increase the fisheries and strengthen the navy, became the butt of the popular dramatist, and served little purpose except, in the words of Ben Jonson, to “keep a man devoutly hungry all day, and at night to send him supperless to bed.”[220] There is little doubt that the policy of the political lent, if it had been feasible, would have succeeded in its object. Edward Jennings at the end of the century calculated that shipping had diminished in the proportion of two to five since the time when fish-days were observed, and that the fisheries were reduced in the proportion of four-fifths in the same period; while the number of idle persons in England who had previously engaged in fishing in the sea was estimated at 10,000. Even if those figures were exaggerated, they indicate, as Parliament admitted, that the measures hitherto taken to revive the fisheries had failed. It remained for King James to try another plan, that of exercising an effective sovereignty on the British seas by prohibiting foreign fishermen from fishing within them without taking license and paying tribute.
Before passing to the reign of James something must be said about one symbol of this sovereignty, as it was now regarded—the striking of the flag and top-sails. From the beginning of the fifteenth century, when the Flemish herring-boats, and no doubt others, lowered their sails to English ships ([see p. 43]), there appears to be no record of the ceremony until the middle of the next. In the reign of Henry VIII., although he was sometimes called “Lord of these seas,”[221] and ships were appointed to “keep the passage of the narrow sea,” the honour of the flag was probably only occasionally enforced. But under Edward VI., during the Protectorate of Northumberland, we find it stated in the King’s Journal that in April 1549 “the Flemings’ men-of-war would have passed our ships without vailing bonnet, which they seeing shot at them, and drave them at length to vail bonnet and so depart”; and again in July of the following year, at Dieppe, the Flemish ships lowered their sails to an English man-of-war.[222] This appears to be the first recorded instance of foreign men-of-war saluting the ships of the King of England, and it is noteworthy that in the latter case it was performed in a French port by Flemish vessels.
That it was not always demanded in the absolute manner of later times is shown by orders issued by the Privy Council in 1552. The Baron de la Garde was in command of a French fleet of twelve men-of-war, and Sir Henry Dudley, whose force was weaker, asked how he should act “touching the preeminence of honnour to be gyven” when he met the Baron. The Council replied that “in respect of thamitie and that the sayd Baron is stronger then he uppon the sees sume tymes yelde and sume tymes receyve thonnour”; and he was told to use the Baron courteously, “and with such discression that the same yelding of the preeminence may be interpreted to be of curtesy rather then to the derogacion of the Kinges honnour.”[223] It was the French who consistently and constantly opposed the English claim, and there is evidence that the salute was a point of rivalry between the two countries even at this time. An ordinance issued by Henry II. of France in 1555 (repeated by Henry III. in 1584) required all vessels to strike their sails to ships of the French navy whenever they met them at sea, and some Hamburgers were seized because they did not do so.[224] The honour appears to have been generally accorded by the Dutch in the reign of Elizabeth,[225] and compelled from the Spaniards. In 1554, in the reign of Mary, when the Spanish fleet was coming up Channel in all its bravery, with the royal flag flying on the Admiral’s ship, and bringing Philip of Spain to marry the Queen of England, the English Admiral, Lord William Howard, fired a broadside into the Spaniard and forced him to lower his colours while in his presence.[226] And later, when Anne of Austria was on her way to Spain to marry Philip, the Spanish ships were fired on by Admiral Hawkins at Plymouth and forced to strike the flag and lower top-sails in like manner.[227] But it was not till the reign of Charles I. that this punctilio became of great international importance.
CHAPTER IV.
UNDER THE STUARTS. JAMES I. A NEW POLICY.
Shortly after the accession of James to the throne of England, the liberal policy of his predecessors as to the freedom of the sea suffered a marked change. In the previous century, under the Tudors, little was heard of the pretension to the sovereignty of the sea, with the exception of the striking of the flag to the royal ships in the narrow seas—a ceremony that was not peculiar to England. Foreigners then, as always before, enjoyed complete liberty of fishing on the coasts of England and Ireland, and no attempts had been made to exact tribute from them on the Scottish coasts. Queen Elizabeth, as has been shown, not only refrained from putting forward claims to the sovereignty of the sea, but on several occasions and in the most positive manner asserted the freedom of the seas for both navigation and fishing against the exclusive policy of Denmark and Spain. At the end of the Tudor period England was the great champion of mare liberum—long before the Dutch Republic had challenged the monopolies of the Portuguese either by the pen of Grotius or the guns of Jakob van Heemskerk.
But under James the old doctrine was revived, and something new was added in a claim to the fisheries along the British coasts. Before he had been a year in England he took measures, with the laudable object of defining the bays, or “King’s Chambers,” within which the hostile actions of belligerents were prohibited. In its essence this act was opposed to extensive claims to maritime sovereignty, because it restricted a most important attribute of such sovereignty to comparatively a narrow space in the adjacent sea, though a space much greater than that now comprised in the so-called territorial waters. In point of fact, throughout his reign no assertion was made to such a maritime sovereignty as was claimed by Charles I.[228] The measures referred to were in relation to neutrality in the war which continued between the United Provinces and Spain, James having promptly concluded peace with the latter Power. He issued a number of proclamations referring to privateering and depredations at sea, most of them being conceived in the interests of Spain; and in one of these, for the recall of British mariners in foreign service, dated 1st March 1604, the king forbad hostilities within his ports, havens, roads, creeks, or other places of his dominions, or so near to any of his ports or havens as might be reasonably construed to be within that title, limit, or precinct, as well as the hovering of men-of-war in the neighbourhood of such places; and he caused “plats” of the limits of his ports and jurisdiction to be prepared for the instruction of his officers concerned.[229]
Long before the time of James the harbours, roadsteads, and at all events some of the bays of a country were recognised as belonging to it, in the sense at least that hostilities of belligerent men-of-war or the capture of prizes were forbidden within them; they were “sanctuaries” under the jurisdiction and protection of the adjoining territory. With regard to the English Chambers, we find that in the treaty which Cardinal Wolsey drew up in 1521, when acting as mediator between the Emperor Charles V. and King Francis I. of France, it was stipulated that during the war between these two sovereigns, the ships, whether armed or unarmed, as well as the mariners, of either side should be secure from attack by the other Power in the harbours, bays, rivers, mouths of rivers, roads or stations for shipping, and especially in the Downs or other maritime place under the jurisdiction of the King of England.[230] There is little doubt that this article only embodied in a formal manner what had long been the practice of nations, the Downs being specially mentioned as the most important anchorage in the kingdom.
When James decided to mark out distinctly on a chart the boundaries of his neutral waters on the coast of England, the matter was submitted to the Trinity House, and a jury of thirteen men, specially skilled in maritime affairs, was appointed to prepare tables and charts showing the position and limits of the King’s Chambers and ports and the sailing directions for the same, according to their knowledge of what had been the custom in the past. The charts and schedules were presented to Sir Julius Cæsar, the Judge of the High Court of Admiralty, on 4th March 1604, together with a sworn declaration that they represented the true boundaries.[231] The chambers formed were nominally twenty-six in number, the points or headlands selected by the surveyors being as follows, beginning at the northern extremity of the east coast and ending at the Isle of Man—Holy Island, Souter Point, Whitby, Flamborough Head, Spurn Point, Cromer, Winterton Ness, Caster Ness, Lowestoft, East Ness, Orfordness, the North Foreland, the South Foreland, Dungeness, Beachy Head, “Dunenoze” (Isle of Wight), Portland Bill, Start Point, Rame Head, Dodman Point, the Lizard, the Land’s End, Milford, St David’s Head, Bardsey Island, Holyhead, the Isle of Man. The extent of the “chambers” varies in different places; and while this is obviously due on some parts of the coast to the contour, it is due on other parts to a selection of headlands, no doubt according to the custom which had grown up and was recognised among the officers and others concerned. Thus the great bay between Cornwall and Devon would have formed a natural “chamber” by a line, not so long as some of the others, between Start Point, or Prawl Point, and the Lizard, and which would have formed part of the girdle around the coast; whereas three chambers are formed along its shores. On the east coast the “chambers” are as a rule small,[232] the largest embracing the mouths of the Humber and the Thames; they are generally large on the south coast, and largest of all on the west coast, where the whole of the Bristol Channel was enclosed by the line from Land’s End to Milford, a distance of nearly 100 nautical miles, the whole area containing about 3400 square nautical miles. This chamber, as well as those to the north of it, must have been of importance on account of the volume of shipping which passed through it.[233]
Fig. 3.—Chart prepared by the Trinity House showing the bearings of the King’s Chambers. From Selden.
It is to be noted that the King’s Chambers were confined to the coast of England, and, further, that they had no reference to the claim of James to property in his seas, so far at least as fisheries were concerned. They were strictly limited to questions of neutrality and jurisdiction, in view of the war then existing between Spain and the United Provinces and the frequent depredations of privateers. The chambers on the east coast, where the Dutch carried on their great herring fishery, were much too small to have any relation to the subject of unlicensed fishing; and at no time during the prolonged discussions on the fishery were the limits of the King’s Chambers made use of in argument. Neutral protection, moreover, was strictly limited to the waters defined. It was in vain that Gentilis, the Spanish advocate in the Admiralty Prize Court, argued that the jurisdiction of England extended far beyond the limits of the “chambers,” and ought therefore to be lawfully and justly applied in protecting Spanish vessels from the talons of the Dutch on the high seas. The judgment of the Court of Admiralty, so far as concerned the place of capture, was always based upon the consideration whether that place lay within or without the limits of a “chamber.”
Fig. 4.—Showing the King’s Chambers on the Coast of England.
The campaign against foreigners fishing on the British coast, which opened up the claims of England in the seventeenth century to the sovereignty of the sea and introduced a new principle into English international policy, originated in another set of ideas, which James brought with him from Scotland. The Scottish people had been always very jealous of foreigners sharing in their fisheries, and, as we have seen, never consented to give them the liberty to fish, so freely accorded by England. Moreover, a tax or tribute, called the “assize-herring,” was imposed upon the native fishermen in Scotland, and formed a part of the revenues of the crown. Although its value was not great, James conceived the idea of levying it also from the foreign fishermen, who frequented the British seas in large numbers, and before he formally demanded it in 1609, some curious negotiations took place with a syndicate of London merchants who proposed to form a fishery association based on the taxation of foreign fishermen, and in return they promised a handsome revenue to the king. The desire for an increased revenue may therefore have had something to do with the proposal to restrain unlicensed fishing on the British coasts. But neither this consideration, the practice in Scotland, nor the king’s passion for his prerogative, fully accounts for the reversal of the long-settled policy of England, which was accomplished with the concurrence of the Privy Council, and, so far as may be judged, with the full approval of the people.
In truth, a great change had taken place in the national sentiment. England had now entered upon the long struggle for commercial and maritime supremacy, with the aim of increasing the power of the nation against all rivals.[234] It was obvious to every one that the great rival and competitor was the Dutch Republic, whose rapid rise to the first commercial state in Europe deeply impressed the minds of English statesmen and writers. In the reign of Elizabeth, the common interest of the two countries in opposing Spain prevented measures being taken to curb the growing power of the Dutch. But early in the seventeenth century this motive had lost its force. James had promptly concluded peace with Spain, and even spoke of the Dutch as rebels.[235] Thus, during his reign arose that bitter rivalry and keen emulation of the Dutch which continued throughout nearly the whole century, and of which the English claim to the sovereignty of the sea may be looked upon as an important phase. It was against the United Provinces that the claim was directed, and as the Dutch themselves openly boasted that the sea fisheries were the foundation of their shipping, wealth, and power, it was to the sea fisheries that England first turned in her efforts to cripple them.
Those fisheries had greatly increased towards the end of the sixteenth and in the early part of the seventeenth century. An official account of the fisheries of Holland, Zealand, and Flanders in 1562 estimated the number of busses and fishing-boats at 700, of which Holland had 400, most of them being “great” busses of about 46 lasts burden.[236] Guiccardini, who visited the Low Countries about the same time, placed the fleet of busses at 700, each of which made three voyages, bringing back on an average 70 lasts of herrings, or a total of 588,000 barrels, valued at £441,000 sterling.[237] Another author of the period gave a list of towns whose prosperity and even existence depended upon the fishery;[238] and a little later Hitchcock, and, following him, Dee, stated that 400 or 500 busses came every year from the Low Countries to fish for herrings on the east coast of this country.[239] Those figures referred to the fisheries of the Netherlands as a whole, including Flanders, but during the war of independence, after the United Provinces threw off the yoke of Spain and secured command of the sea, the Flemish fisheries withered away. At Dunkirk, for example, which sent 500 busses to the herring-fishing in 1532 and 400 in 1550, the fishermen at the beginning of the next century were scarcely able to supply the town with herrings.[240] The industry passed into the hands of the Dutch. At the end of Elizabeth’s reign, so greatly had it prospered that 1500 busses went to the herring-fishing in 1601 from Holland and Zealand alone.[241]
From this time much attention was given by English writers to the Dutch fisheries, and on the whole they exaggerated their extent and the number of boats and vessels engaged in them. One of them, John Keymer, who was afterwards much quoted, professedly based his account upon his personal observations in the Netherlands about the year 1601. His statement appears to have been submitted to King James in 1605 or 1606, but it was not published until 1664. He said that the fishing fleet of the Hollanders numbered more than 4100 vessels, of which 100 were dogger-boats, 700 pinks and well-boats, 700 “strand-boats,” 400 “euers,” and 400 “galliotts, drivers, and tod-boats,” and 1200 busses, afterwards increased to 2000. The pinks and well-boats, each from 60 to 100 tons burden, fished on the coasts of England and Scotland for cod and ling, while the busses, ranging from 60 to 200 tons burden, pursued the herring fishery along our east coast. There were also, according to this author, 400 Dutch vessels, called “Gaynes” and “Euers,” which fished for herrings off Yarmouth; 1000 vessels, of from 50 to 100 tons, that caught cod and ling in his Majesty’s seas; as well as 600 ships engaged in carrying cod and ling to London. Keymer also says that he had seen near 3000 sail of English, Scotch, French, Hollanders, Embdeners, Breemeners, and Hamburgers fishing at one time upon the coast of Scotland, Shetland, Orkney, Gattney (Caithness?), North Farrel, and Fowl (Fair) Isle, and divers other places.[242] In a later treatise which Keymer wrote in 1620 and submitted to King James, it is also said that the Hollanders employed about 3000 ships and 50,000 people in fishing on the coasts of England, Scotland, and Ireland. This tract has usually been attributed to Sir Walter Raleigh and is published among his works, and it obtained celebrity in consequence, both in this country and on the Continent, but it was without doubt written by Keymer.[243] A more moderate statement was made by another writer, Tobias Gentleman, who published the best work on the subject, in 1614, and was evidently well versed in the fisheries both of Holland and England. He states that 1000 sail of Hollanders came every year to fish for herrings in “his Majesty’s streams”; that more than 600 of them were “great busses,” some of 120 tons, most of about 100 tons; that the crews numbered from 16 to 24 men, so that there could not be less than 20,000 mariners altogether. In addition to the great fleet of busses, the Hollanders had “a huge number” of smaller vessels of from 20 to 50 tons burden, with crews of from 8 to 12 men, which were called “sword-pinks,” “flat-bottoms,” “Holland-toads,” “Crabskuits,” and “Yeuars,” and fished for herrings along with the busses on the east coast from Shetland southwards, carrying home their catches or selling them at Yarmouth. Gentleman says there had been seen at one time, “and numbered,” at Brassey Sound, in Shetland, where the busses rendezvoused, either going to sea or at sea within view, 2000 sail of busses and schuits, besides those that were out of sight. All these fished for herrings during the season “in his Majesty’s seas.” Then the pinks and well-boats, which caught cod and ling all the year round, numbered between 500 and 600; they were from 30 to 40 tons burden, and had crews of about 12 men each. There were also more than 200 “fly-boats” which fished with lines to the north-east of Shetland all the year round for ling, which were split and salted in bulk and were known as “Holland-lings,” although, says Gentleman, they were really Shetland lings before they took them from his Majesty’s seas. This author placed the total number of Dutch fishermen who fished off the British coasts at not less than 37,000, of whom 32,000 were engaged in the herring fishery, and 5000 in fishing for cod and ling.[244]
It would thus appear from the evidently honest account of Gentleman, that early in the reign of James fully 2000 Hollander busses and fishing vessels frequented the British seas. But the Dutch were not the only foreigners who reaped the harvest of fishes along our coasts. Fishermen likewise came from France, Spain, and Portugal, from Hamburg, Emden, and Bremen. The French herring-boats, from Normandy and Picardy, generally numbered about 100; sometimes there were only 40, and they did not go so far north as the Hollanders.[245] Spanish, Portuguese, and French vessels fished for mackerel on the Irish coast and to the south-west of England, as well as for cod in the North Sea. Those from Hamburg, Bremen, and Emden took part in the herring fishery on the east coast, but they appear to have mostly confined their operations to the northern parts of Scotland. French and Flemish vessels also visited the western lochs of Scotland, both for fishing and for the purchase of fish.[246] The total number of foreign vessels thus fishing in the British seas at the time in question must have been large. In both of Keymer’s treatises it is stated that there were 20,000, with 400,000 people. This estimate is obviously greatly exaggerated; but making all due allowances, it is certain that the fleets of foreign fishing vessels frequenting our coasts in the reign of James were of formidable extent. The great herring-busses, while fishing along the east coast of Scotland, were described in 1608 as occupying an area of the sea of at least 45 miles in length by 22 miles in breadth, within which space they allowed no others to shoot a net.[247]
The herring fishery of the Dutch along the British coast was known as the “great fishery” (Groote Visscherye), to distinguish it from the “small” or fresh-herring fishery which was pursued locally, and it was subjected to minute regulations. The busses collected at Bressay Sound in Shetland in the early part of June, but the fishing was not allowed to begin until St John’s Day, on the 24th of the month, when the vessels departed in fleets for the fishing-grounds under the charge of “commodores” and guarded by men-of-war. As the season advanced the fishing was carried on farther and farther to the south. Until St James’ Day (25th July) it was prosecuted in the neighbourhood of Shetland, Fair Isle, and as far south as Buchan Ness; from then until Elevation Day (14th September) it was from Buchan Ness to the coast of Northumberland; then southwards to the deep water off Yarmouth till St Catherine’s Day (25th September); and so to the mouth of the Thames, the fishing usually coming to an end at the beginning of December. The “fleet” or train of nets was more than a mile in length, which necessitated the busses keeping some distance apart to prevent fouling; they were shot in the evening and hauled in the morning, when the crew began to salt and pack the herrings into barrels, which were then taken to Holland in “yagers,” or carriers, repacked, branded, and exported to various countries. The smaller vessels which took part in the “fresh” herring fishery were employed especially off Yarmouth in the autumn, and they sold their herrings for ready money to the fish-curers with whom they were “hosted.” On some occasions as many as 200 of those smaller Dutch vessels lay in Yarmouth harbour at a time. The boats that went for cod, ling, and haddock fished throughout the North Sea,—the smaller ones at the Dogger Bank as a rule, the larger on the Scottish coast and at Shetland. Hand-lines, baited with herring or lamprey, were used, the cod being either pickled, dried, or brought to land alive in wells, and these vessels furnished the larger part of the supply to London.
The quantity and value of the fish caught by the Dutch off the British coasts were variously stated. Keymer, in his first tract, estimated the quantity of herrings taken by the 2000 busses in the twenty-six weeks of their fishing at about 300,000 lasts (or 3,600,000 barrels) annually, and the value, at first hand, at £3,600,000 sterling. But the merchants who exported the pickled herrings—and by far the greater quantity were exported[248]—are said to have charged from £16 to £36 a last, the eventual value as merchandise being estimated at not less than £5,000,000 sterling. In his later treatise the value of the herrings exported by the Dutch is placed lower, at about £1,768,000, the quantity being stated at from about 89,500 to 100,500 lasts, or from 1,074,000 to 1,206,000 barrels. Gentleman, whose work seems to have been the most trustworthy, estimated the quantity of herrings taken by the Dutch in the British seas at over 100,000 lasts or 1,200,000 barrels, the original value at £1,000,000 sterling and the gross value at twice that amount; “while we,” he says, “take no more than to bait our hooks.” Gentleman’s estimate of the quantity may be taken as approximately correct, because in the present day the least effective of the vessels taking part in the Dutch herring fishery—namely, the old-fashioned flat-bottomed boats (bommen)—catch and cure on an average in a season about 660 barrels each, so that the quantity taken by a fleet of 2000 of such vessels would be about 1,320,000 barrels. But the old busses were of a superior type, keeled vessels (hoekers, sloepen), and the average catch of their modern representatives in a season is about 1060 barrels, which for a fleet of the same number would give a total yield of about 2,120,000 barrels, or over 176,000 lasts. Monson placed the value of the herrings exported from Holland to the Baltic at £800,000, and of those sent to other countries at £1,000,000,[249] while Sir Nicholas Hales in 1609 estimated the value of the exported herrings at £4,000,000, but raised it later, in 1634, to £6,000,000, owing to information received from Amsterdam.[250] Sir John Borough’s estimate was still higher. He said that if account was taken of all the herrings, cod, ling, and other fish caught in the British seas by foreigners, the gross value would exceed £10,000,000 a year.
The larger figures above cited are unquestionably exaggerated, but even the lowest shows how very valuable the sea fisheries were to the Dutch at the beginning of the seventeenth century, for the total value of all the commodities exported from England in 1613 was placed at £2,487,435, and the value of the imports at £2,141,151.[251]
The English fisheries, which Cecil had laboured to revive, presented a striking contrast to the prosperous fishery of the foreigners. As in the days of Hitchcock, our fishermen shot their nets for herrings from small vessels near the shore, and on the east coast, at least, only in the period from September to November, with the exception of an occasional “summer” fishing.[252] They had very “sorry” nets and poor frail boats, and most of those going to the Yarmouth fishing from Yorkshire and Durham were only “five-men” cobles.[253] “The Hollander busses,” it was said, “are greate and strong and able to brooke foul weather, whereas our cobles, crayers, and boats, being small and thin-sided, are easily swallowed by rough seas, not daringe to adventure far in fair weather by reason of their weaknesse for feare of stormes.” The largest of the crayers were of 20 tons burden, their catch of herrings for a night being generally from one to three, and rarely as much as seven, lasts.[254] One can only guess at the number of fishing boats and vessels belonging to east coast ports at this time. Gentleman stated that the number of “North Sea boats” which fished for cod, and probably also for herrings, in autumn, was from 224 to 237 along the stretch of coast between the Thames and the Humber, the crews employed in them being between 1500 and 1600. The Iceland barks numbered about 125 in 1614; 20 of them, as well as 150 of the North Sea boats, belonged to Yarmouth. The town-clerk of that port, writing about the same time, said that they sent annually to Iceland and the north seas for cod and ling about 120 sail, while all the “ships, crayers, and fisher-boats” belonging to Yarmouth numbered 220; the able-bodied mariners and fishermen amounted to 1000.[255] The only other fisheries on the east coast were a small one for mackerel, which employed 40 boats at Yarmouth in the spring; a sprat fishery with bag-nets; while some small trawlers worked in the bays and estuaries. On the east coast of Scotland there was no native herring fishery except in the firths.
Compared with the great trade of the Dutch, the exports of fish from this country were insignificant and trifling in view of the quantity imported: in London alone no less than £12,000 was paid to the Hollanders for barrelled fish and Holland lings between the Christmas of 1613 and 18th February 1614. Scotland still sent tolerably large quantities of salmon, herrings, and salt fish to France, Spain, and elsewhere; but the exports from England were almost quite confined to red-herrings from Yarmouth and pilchards from Cornwall,—both sent to the Mediterranean, and very commonly in Dutch bottoms.[256] The English had no share whatever in the trade in pickled herrings or in pickled cod; they were indeed ignorant of the method of curing the latter.
From the foregoing it is not difficult to realise the feeling of irritation against the Dutch which began to gather in the breasts of the English people. They witnessed with envy the great fleets of alien fishing vessels which darkened their coasts every season and reaped a rich harvest in waters which they regarded as their own. “No king upon the earth,” said Gentleman, “did yet ever see such a Fleet of his own subjects at any time, and yet this Fleet is there and then yearly to be seen. A most worthy sight it were, if they were my own countrymen!” Statesmen and economists saw in the extension of the Dutch fisheries a menace to the power and wealth of the nation. The fisheries formed a valuable nursery of seamen to man the mercantile marine and the royal navy; it was chiefly from this point of view that the political lent and the fishery Acts of the previous reign were designed. Another consideration began to excite even more attention. The trade in fish was looked upon as forming the basis of commerce and national wealth. The Dutch boasted that the herring fishery was their “gold-mine”; that “the herring keeps Dutch trade going, and Dutch trade sets the world’s afloat”;[257] and the argument that national power and wealth depended on the sea fisheries became a commonplace in the seventeenth century, and was urged as a reason why the English people should secure for themselves the fisheries in their own seas. This, it was said, would do more good to the kingdom than all the mines and the whole trade in cloth and wool; the fisheries would be more valuable to us than the Indies were to Spain, or than was the commerce with the West Indies; they were the “very goal and prize of trade and of the dominion of the sea.”[258] Had not Holland, which was “not so big as one of his Majesty’s shires,” and where nothing “grew” save “a few hops, madder, and cheese,” become a rich and powerful state, full of goodly towns, and the great mart of Europe, owing to the fish drawn from the British seas? Did not Dutch ships, in return for the fish they exported, come back laden with the riches of other lands,—with oil and wine, honey and wool, from France and Spain; with velvets, silks, and spices from the Mediterranean; with corn and wax, hemp, iron, and timber, from the Baltic? And all this great commerce was founded on their fisheries in his Majesty’s seas.
Two other arguments were very commonly put forward,—that the development of the fisheries would directly increase shipping, and also give birth to many other industries. Ingenious and detailed calculations were made to show that if 20 busses were built at a seaport they would cause other 80 ships to be constructed, increase the number of mariners by 1000, and give employment to nearly 8000 people by sea and land. “It is the fish taken upon his Majesty’s coasts,” said Sir William Monson, the Admiral of the Narrow Sea, “that is the only cause of the increase of shipping in Europe; and he that hath the trade of fishing becomes mightier than all the world besides in number of ships.”[259] Dutch ships crowded our ports; they carried away English commodities at lower freights than English vessels could afford to do, and thus we were “eaten out of all trade and the bread taken out of our mouths in our own seas, and the great customs carried from his Majesty’s coffers to foreign princes and states.” The Hollanders were accused of trying “to get the whole trade of Christendom into their own hands, as well for transportation as otherwise for the command and mastery of the seas.” Yet the king was “Lord Paramount of those seas” in which the foreigners caught the fish that made them so rich and powerful: surely “he would not, without question, allow strangers to eat up the food that was provided for his children!”[260]
Such was the national spirit and sentiment that had been developing during the closing years of Elizabeth’s reign and the early part of the reign of James, and was well expressed by Sir Walter Raleigh when he said that “whosoever commands the sea commands the trade; whosoever commands the trade of the world commands the riches of the world, and consequently the world itself.”[261] England was to become powerful and rich by shipping and maritime commerce, and the first step in the struggle was to secure the fisheries for herself. Opinions varied as to how this was to be accomplished. Some recommended the establishing of a national fishery on the plan recommended by Hitchcock in the preceding generation and tried by Charles I. in the next. Others suggested the institution of a commission of “State Merchant,” which would have trade and commerce as well as fisheries under its charge. A few spoke, more faintly, of the potency of fish-days and the strict observance of Lent. But all or almost all agreed that foreigners, and in particular the Hollanders, should be either prohibited from fishing in the British seas or allowed to do so only under license and regulations and the payment of a tribute to the crown.
The proposal most commonly mooted was to build a fleet of herring-busses for ourselves, and, in short, to imitate the Dutch system in all particulars. The natural advantages we possessed were made the most of. The fishing-grounds were at our doors, while the Dutch had to sail long distances. We had numerous harbours and sheltered beaches for the wintering of the busses. We had all the materials for building and equipping the busses except pitch and tar, whereas the Dutch had to import everything save hemp; and abundance of men to man the vessels could be got from the “decayed towns.” It was on the other hand admitted that we laboured under one disadvantage. The Dutch fishermen were more frugal, more industrious and painstaking, than the English. They were content with plain fare—with bread and butter, cheese, a little pork, and fish,—while the English required beef and beer, and much of both.[262] And while the Dutch worked hard, “labouring merrily together,” the English fishermen “sat day and night drinking in the ale-houses.”[263]
But any scheme for establishing a great national fishery had little chance of financial support from the public unless it could be shown to be profitable, and there was no lack of calculations and computations to prove the great profits that might be made. Gentleman estimated that the clear gain from one buss, allowing for wear and tear, would amount to £565 in four months, and from a pink for cod-fishing to £158 in two months. The author of Britaines Buss calculated that the yearly profit from one herring-fishing and one cod-fishing of a single buss would amount to £897, after all expenses had been paid. This writer proposed that a corporation should be formed, consisting of noblemen, gentry, and citizens “of ability,” each of whom should provide one buss; that the corporation should receive from the king certain powers, privileges, and immunities; and that a joint-stock should be raised like that of the East India Company, the annual profit on which was estimated at 75 per cent.
Those schemes resembled the one put forward by Hitchcock in the previous reign and frequently advocated since. Sir Walter Cope indeed told King James, in 1612, that “this royal work,” within his own knowledge, had been in project for thirty years, but that in Queen Elizabeth’s time it had been “ever silenced” in favour of the Netherlands, who then maintained war against a common enemy.[264]
Within two or three years of the accession of James, the project took more definite form, and was brought before the Privy Council, and it was carefully considered in 1607. An integral part of the proposal was that strangers fishing in the British seas should pay tribute to the king, while the native fishery remained untaxed, and that the tribute should be farmed out to patentees, as was done with the assize-herrings in Scotland, who would then establish a national buss fishery and pay a rent to the crown.[265] There were several schemes of the kind, but the one which received most attention was put forward by a Mr Richard Rainsford, acting on behalf of a number of London merchants, who aimed at forming an association to be called the Society of Fishing Merchants. In 1608 the proposals were referred to the Earl of Northampton, Lord Privy Seal, and the Earl of Devonshire, who commended them as being for the public good, and early next year a formal and detailed scheme was prepared.[266] In the preamble stress was laid on the fact that the Hollanders and other nations had their principal fishing on his Majesty’s coasts and seas, “whose soveraignty ought therein to be acknowledged, not only to procure thereby payment of his Majesty’s duties of fishing, but also to have his kingdom provided with fish at such reasonable rates and prices as other nations have maintained thereby navigation and mariners; and setting of an infinite number of subjects on work within the realm of England and Scotland to strengthen his Majesty’s dominion by sea and land, as the chief point of a most commendable Union,” that is to say, a union of England and Scotland, the idea of which was still in the mind of James. The justification for imposing a tribute on foreign fishermen, which was to be in kind, was the king’s right to the tithe, “grounded by ancient customs and records of his Majesty’s predecessors demanding the tenth fish; whereunto three things were required: (1) how his Majesty’s tithe and right can be evidently proved; (2) precedents, that other kings and princes have and do the like in their seas; (3) that it shall give no cause of offence to other princes or states to move war.” The second part of the project was to build a “competent number” of ships or busses yearly, and so to re-establish the fishing trade which, it was said, one Violet Stephens and other discontented fishmongers from England had transferred to Enkhuisen and other places in Holland some ninety years earlier, teaching the Dutch to come and fish in the British seas—a false tale current in England in the reign of James.
As an alternative plan, to be put into immediate execution in connection with the truce just concluded between Spain and the United Provinces,[267] it was proposed that, his Majesty’s right and tithe having been made plain as above described, the Hollanders themselves should be invited to join on reasonable terms with the English projectors in the fishing trade for one-third part, or even a half, of the fishery. This course, it was believed, would prevent any cause of offence, being, it was said, in agreement with “the known precedents of other princes.” It was also thought that it would be agreeable to the Hollanders, since they would see that the Society of Fishing Merchants, being free from license or tribute, could afford to have busses built in Denmark for themselves should that be necessary. If the Hollanders could be induced to associate themselves with the Society, then, it was argued, when the time came to interfere with their “general fishery,” the risk of war would be removed, and the king’s tithe and right might be acknowledged and established by proclamation or otherwise.[268]
The acknowledgment of the king’s “sovereignty or title annexed to the dignity of the Crown” required the contribution of the tenth or the twentieth fish, more or less, to be delivered at sea for the general good of the Society, so that they might be able to tide over bad years and maintain the fishermen. In this way, by heavily taxing the Hollanders, it was believed that “no man should be discouraged by bad successe, but might depend upon God’s blessing with a quiete minde to follow his vocacion avoydinge Idlenes by ye survey of others.” On the other hand, the Society would undertake to pay the king so much upon every last of fish as might be thought convenient, provided that letters patent were granted under which the Hollanders and other strangers would be “limited and ruled.”
In this scheme of the London merchants it was proposed to acquire in the first year fifty fishing vessels, partly by buying them beyond the seas, and partly by building them in Denmark, Scotland, and the north of England. The busses were not to exceed fifty, or the dogger-boats thirty tons, since the Dutch in recent years had found the smaller vessels more profitable than the larger ones. It was stated that some families in Holland, the “east countries,” and Hamburg, with vessels of their own, were desirous of joining the London Society,—several of them had indeed arrived in England,—and it was proposed to admit them for a few years only, in order to lay the foundations of the business, and to educate English lads in the curing of herrings, and, what was “not the least point,” to make the English as industrious as themselves. When the fishery was thoroughly established, it would be easy to erect “staple towns and magazines” for the commodities of other countries; the ships of the Society would bring back merchandise for the fish exported, and a great commerce would be created. In all this prosperity “the King’s Majesty might be made a partaker, as a Royal Merchant,” while the stock required would easily be found among the merchants. On the other hand, if the king confined his action to the issuing of licenses to foreigners, without giving means for establishing a society of merchants for the fishing, then his subjects would be entirely dependent for their fish on these foreign fishermen, who would charge higher prices to recoup themselves for the cost of the licenses. The country, moreover, would suffer from the loss of the commerce that sprung from the trade in fish; the transportation of money and bullion for fish and other commodities brought into the realm would continue unchecked; and the king would lose the great strength of shipping and mariners that otherwise would be available for the defence of the kingdom.
Objections were raised to the project on the ground that it was unlikely that the Society, even with the advantages which they desired, would be able to compete with the Hollanders. The Hamburgers and other peoples who had previously made the attempt had failed, for the Dutch were very industrious and frugal, their fish always brought the highest price, often 25 per cent above that of other nations, because they were thoroughly skilled and experienced in the industry. The freights of the Hollanders were, moreover, far lower than in English ships, as they took barrelled herrings for ballast, or even for “drink money.”
A more serious difficulty was the principle that lay at the root of the scheme—the taxation of the Dutch fishermen for the benefit of the Society. It was evidently admitted that the project would fail, even if the busses were manned by Dutchmen and the herrings cured and exported by them, unless some form of subsidy was provided. But on the threshold lay the question of the king’s right to impose a tribute on foreign fishermen. Rainsford endeavoured to help the solution by submitting a memorandum, “Touching his Majesty’s Tythe.”[269] It has some interest from the circumstance that it was the first attempt made in the reign of James to furnish historical and legal precedents for interfering with the liberty of fishing. In substance it is little more than a collection of the stories current at the time concerning the sovereignty of the sea, such as those about King Edgar, Queen Mary and Philip, and Camden’s statement about Scarborough.[270] It was also said that fishermen were compelled to pay taxes for liberty to fish in Russia, at the “Shoffland” islands and other islands belonging to the King of Sweden, in Denmark, and in Spain, where the Duke of Medina Sidonia derived a large revenue from the taxes on the tunny fishery. Rainsford reiterated the advantages of the scheme to the nation and the navy, and promised an annual revenue of £20,000 to the king, after the lapse of seven years, so long as he granted to the patentees the tribute on foreign fishermen.
About this time, whether by arrangement with the London merchants or independently, some influential persons addressed the king in denunciation of the Dutch. Sir Nicholas Hales in 1608, and again in 1609, strongly advised the king to take action against them. Their fisheries in his Majesty’s seas, he said, were worth more than the mines of gold and silver in the Indies; in one year they had sold fish in England alone to the value of £1,200,000; by their means they maintained 100,000 men with their wives and families. Then their immense shipping was a menace to the security of the realm. They came into our roads and harbours with their guns and ordnance on board: sometimes three or four hundred sail of Hollanders sheltered in St George’s Channel, where our fleet, if need were, could always strike them. The whole trade of Christendom appeared to be going into their hands. Sir Nicholas was afraid they might join with the “Turks” against us; there was even risk of invasion unless measures were taken to curb their growing power. The measures he proposed were the delivery of Flushing and Brill as pledges of security, and the payment of £4,000,000 for the king’s license to carry on their fishery for twenty-one years on the British coasts. Otherwise they should be compelled to pay a tithe of the twentieth herring or be forbidden altogether.[271] Sir William Monson—who was a Roman Catholic, had been Admiral of the Narrow Sea, and was accused by the Dutch of antipathy to them—wrote several papers in the same strain. He dwelt upon the danger to England of their increase in shipping commerce and power, all derived from the fisheries in the British seas. They had already got the Irish and Russian trade, as well as that to the Mediterranean, so that while twelve years before there were twelve English ships to one Hollander in that sea, there were now ten Hollanders to one English; they even transported the red-herrings from Yarmouth and the pilchards from Cornwall and Ireland, which was previously done by English vessels. Monson’s remedy was to obtain possession of the fisheries and build a fleet of English busses.[272]
There is no doubt James was inclined to listen with a favourable ear to the proposals to establish a native herring fishery at the expense of the Dutch. A year or two earlier he had, indeed, induced the Parliament of Scotland to pass an Act providing, among other things, that the royal burghs should equip busses for the herring fishery,—a suggestion frequently made and never well received. When the burghs were called upon to state the number of busses they were prepared to set forth, they declared that some of the coast towns already had vessels engaged in this fishery, especially in summer, “att the back of the Isles besyid the Flemeingis”; that on the coast there was more shipping for fishing than “substance” to furnish them with or mariners to serve in them; and that the most profitable and “easy” fishing was at the Isles and lochs on the west coast, though they were hindered there by the barbarous conduct of the natives. It was therefore, they said, “in vain” to ask them to fish “in the mayne sea” when they could get this easy and profitable fishing at the lochs and near the shore at all seasons, in great abundance, both summer and winter.[273]
At the time the fishery scheme was under consideration some events occurred which favoured the plans, if not of the London merchants, at least of those who were preaching hostility to the Dutch. A chorus of complaints came from Scotland and England as to the encroachments of the Hollanders near the shore on the east coast, not only interfering with the operations of the native fishermen, but breaking up and scattering the shoals of herrings. Whereas they had been prescribed “in ancient times” in Scotland from fishing nearer the land than they might see the shore from the main-tops of their vessels, they now came as near as they pleased, and would not sutler any others, whether subjects or strangers, to fish within the bounds of their fleet, which, it was said, extended over a space “at least forty Scottish miles in length and twenty broad,” thus “breaking and killing” the shoals before they could reach the mainland. They were also accused of drawing “the great fish” (by which was meant cod, saithe, &c.) from the grounds along the shore, by casting into the sea the guts of the herrings they cured on board their busses. By reason of all this the Scottish fishermen, who used to get abundant supplies at “yair awn dooris” to supply the whole country, were now scarcely able, with great pains, to supply their own families, and there was in consequence a general clamour in the country, the people affirming that “the Hollanderis fishes the meait out of thir mouthis.” The evil was felt all the more by the Scottish fishermen because they paid three “assizes” every year for their several fishings, each consisting of 1000 herrings, while the Hollanders paid nothing.[274]
Early in 1609 the fishermen of the Cinque Ports, who frequented the Yarmouth fishing in large numbers, sent a petition to the king, in which they recited their grievances. They alleged that the laws prohibiting the purchase from foreigners of fish unless sufficiently salted and casked (laws which, they pointed out, had done great good in the past, and had increased shipping and mariners) were not properly enforced. This complaint was aimed against the Dutch, who sold large quantities of fresh herrings at Yarmouth, and supplied London and other towns with fresh cod. They also complained that fishermen from the Low Countries, with a few from France, came before the fishing season and “preoccupied and environed” the best places with their shipping, enclosing, as in a circle, the shoals of herrings, and preventing the native fishermen from fishing among them. They were thus deprived of one of the best commodities of the land, and the herrings which they were prevented from catching were taken by the Hollanders and sold fresh on the English coast in contravention of the statutes. They said they were threatened with utter decay and impoverishment, and were discouraged from building barks for the Iceland fishing, which had in the past produced numbers of good mariners, to the great honour and defence of the realm. They pointed to the “ingenious dexterity of the Netherlanders, who in the care and pollicy of their State, and for the maintenance of their navigation and fishing,” had imposed a tax of fifteen shillings on every last of herrings imported by foreigners into their country; and they begged the king, by the justice of lex talionis, to do likewise, and thus to save the poor fishermen from the multitude of foreigners who oppressed them.[275] About this time complaints began to be made of cruel and harsh treatment of the native fishermen by the Dutch, but they appear to have rested on very slender grounds.[276]
The complaints against the Hollanders gave James his opportunity. The policy of issuing a proclamation to forbid unlicensed fishing by foreigners on the British coasts was discussed by the Privy Council early in the year. Doubts, however, were expressed whether such action would be in conformity with the provisions of the “Burgundy” treaties, which granted liberty of fishing to the Low Countries. In the “qualification” of Rainsford’s fishery scheme the question as to how the king’s title and rights could be proved had been answered in a lofty spirit—“By prerogative royall, without any accompt to be rendered to other nations; yet others to declare the reasons thereof.” But the Privy Council had to consider the matter more carefully. They remitted the draft proclamation to a committee consisting of Sir John Herbert, the second Secretary, Sir Julius Cæsar, now Chancellor of the Exchequer, Sir Daniel Dunn, Sir Thomas Crompton, and Sir Christopher Perkins, instructing them, after perusing all the Burgundy treaties, to report as to the lawfulness or unlawfulness of the proposed action.[277]
A fortnight later the report of the committee was sent to the Council. They had, they said, considered of the liberty taken by the subjects of foreign princes and states to fish upon the coasts of the King’s Majesty, by which not only the English fishermen received wrong in their fishing, but the very coast towns were decayed; they had also considered the proclamation for the restraint of fishing, and had perused the Burgundy treaties as required, and they were “of opinion that the King’s Majesty may without breach of any treaty now in force, or of the law, upon the reasons specified in the proclamation sent unto us, restrain all strangers from fishing upon his coasts without license, in such moderation and after such convenient notice given thereof by public proclamation, as his Majesty shall think fit.”[278]
It was on this extremely important deliverance that the new policy of interfering with the liberty of foreigners fishing on the British coasts was based. The cautious language of the Privy Council indicates that they were conscious of the strength of the case against them from the existence of the Burgundy treaties; but the committee professed to find that those treaties were no longer in force,—an argument which was made the most of in the subsequent negotiations with the Dutch Republic. The report was submitted to the Council in February; in March Grotius published his Mare Liberum, in which he branded as “insanely cupid” any one who attempted to interfere with the common liberty of fishing in the sea; and within a week or two thereafter the Truce of Antwerp was signed by Spain and the States-General, by which the long war between those Powers was brought to a close, and James was free to begin his policy against the Dutch fishermen. On 12th April 1609 a memorandum was drawn up for the Council, in which it was stated (1) that a conference having been held with the fishermen concerning the seasons of all the fishings on the coast, it was thought fit that the proclamation should take effect from 1st August ensuing; (2) that from that day forward it should be unlawful for any stranger to fish “upon those his Majesty’s coasts and seas of Great Britain and Ireland and the Isles adjacent,” where the fishing was usually carried on, until they had obtained license for the same from the king; (3) that commissioners should be appointed by the king, at London, for England and Ireland, and for Scotland at such place as the king should select, to give out licenses on such conditions as he might think fit; and (4) that the licenses should be apportionable to the number and tonnage of the ships.[279]
These provisions were embodied in the proclamation, which was issued on 6th May 1609.[280] “Whereas,” said James, in his wordy style, “we have been contented since our coming to the crown, to tolerate an indifferent and promiscuous kind of liberty to all our friends whatsoever, to fish within our streams, and upon any of our coasts of Great Britain, Ireland, and other adjacent islands, so far forth as the permission or use thereof might not redound to the impeachment of our prerogative royal, nor to the hurt and damage of our loving subjects, whose preservation and flourishing estate we hold ourself principally bound to advance before all worldly respects: so finding that our connivance therein hath not only given occasion to over great encroachments upon our regalities, or rather questioning for our right,[281] but hath been a means of much daily wrongs to our own people that exercise the trade of fishing, as (either by the multitude of strangers, which do preoccupy those places, or by the injuries which they receive most commonly at their hands) our subjects are constrained to abandon their fishing, or at the least are become so discouraged in the same, as they hold it better for them to betake themselves to some other course of living, whereby not only divers of our coast-towns are much decayed, but the number of mariners daily diminished, which is a matter of great consequence to our estate, considering how much the strength thereof consisteth in the power of shipping and use of navigation.” It was therefore both just and necessary, the king continued, to take lawful means to put an end to these inconveniences, although he had no intention, as he desired the world to take notice, to deny his neighbours “those fruits and benefits of peace and friendship” which might justly be expected at his hands in honour and reason. He therefore gave notice to all the world, that after 1st August 1609, “no person of what nation or quality soever, being not our natural born subject, be permitted to fish upon any of our coasts and seas,” “until they have orderly demanded and obtained licenses from us,” or the commissioners appointed at London and Edinburgh. The licenses were to be renewed yearly, “upon pain of such chastisement as shall be fit to be inflicted upon such wilful offenders.”[282]
Fig. 6.—Facsimile of the concluding part of the Draft of Committee’s Report to Privy Council regarding the restraint of foreigners fishing on the British coasts.
The prohibition of unlicensed fishing in the British or Irish seas was general in its character, and applied to all foreigners indifferently. But it was well understood to be aimed at the Dutch. There is no evidence to show that any steps were taken to induce the hundred or so of French boats that took part in the herring-fishing on the east coast to obtain licenses; and though the Earl of Salisbury wrote a long letter to the English ambassador at Madrid, explaining the reasons that had induced the king to issue the proclamation, it does not appear that the numerous Spanish fishermen who caught mackerel off the coast of Ireland and the south-west coast of England were ever interfered with, or asked to apply for licenses.[283]
In the United Provinces the important step taken by the King of England was regarded with much concern. Early in June the proclamation was discussed by the States of Holland, and it was resolved that as the interference with the liberty of fishing was contrary to the treaties between England and the Netherlands, the States-General should maintain their right to fish off the British and Irish coasts.[284] This resolution was confirmed on the same day by the States-General, and it was decided to make representations against putting the proclamation into force. The herring-fishing, as previously described, began in June at Shetland, and was prosecuted down the east coast to Yarmouth, where the busses were usually to be found in September. There was therefore not much time to lose. Sir Noel Caron, the Dutch ambassador in London, had several interviews on the subject with the Earl of Salisbury and with James himself. Lord Salisbury, who was believed by Caron to be the real author of the scheme, held out little hope of an amicable settlement. But the good-natured king, who loved peace even more than he loved his prerogative, was more conciliatory. He explained to Sir Noel that the proclamation was for the purpose of introducing better order into the fishery, and to make manifest to the world the authority and power which he had on the sea,[285] and was not meant in any way to wrong the States, either by hostile force or otherwise. The French Government had in the meantime moved in the matter. At first nothing was said to our ambassador at Paris about the proclamation, and he thought it “no wisdom” to speak about it to them unless they raised the question. This they did later, either on account of the French fishermen or at the instigation of the Dutch, and a year’s respite was granted.[286] Caron learned the welcome intelligence from the French ambassador in London, that a promise had been made to him that the project would proceed no further until after mutual negotiations, which would occupy the whole of that year.[287] Sir Ralph Winwood, who was appointed English ambassador at The Hague in August 1609, also had conferences about the proclamation with Barnevelt, whose authority in Holland was then supreme. He was told that the States would send special ambassadors to the king, “to acknowledge those many royal favours they had received from him,” and to treat of the liberty of fishing. Meantime their ambassador in London had been instructed to beseech the king to have patience with their people “trading” on his coasts, and that “without impeachment they might use their accustomed liberty and ancient privileges.”[288]
Sir Noel Caron had also discussions in London with respect to the legality of imposing any tax on Dutch fishermen, the principle of which he could not well understand. As previously mentioned, one of the precedents upon which James founded his claim to impose tribute was the payment by Scottish fishermen of the so-called “assize-herrings.” This was an ancient tax or custom of a thousand herrings levied from each fishing-boat employed at the herring fishery, and they belonged to the king as part of the crown revenues.[289] From the extent of the Dutch herring fishery it is evident that a similar tax imposed on it would have brought in a goodly sum annually to the king’s coffers. A few years later, when James did attempt to collect the tax from the Dutch fishermen, each buss was to be charged an “assize duty” of 10,000 herrings, or £66, 13s. 4d. Scots, which was equal to about £5, 11s. 1d. sterling; so that if the duty had been exacted from the 2000 herring-boats fishing on the coast the crown would have benefited to the extent of about £11,000 a year, and the Hollanders would have been all that the poorer.
When the principle of the assize-herring was explained to the Dutch ambassador, he appears to have devoted some attention to it. He argued that although the Scots Acts showed that the assize-herrings had been exacted from the Scottish fishermen in the firths on the east and west coasts, the tax had never been imposed in the north seas and at the Isles (Shetlands) where the Hollander busses fished; it would therefore be an “innovation” to enforce the payment there now. He further averred that treaties between King James and the United Provinces existed by which Dutch fishermen were freed from any payment to the king for fishing on his coasts and seas. Moreover, he declared the sea was free to all, mare est liberum, and consequently there was no king nor lord to be acknowledged upon the sea, “but every stranger may fish over all the seas where he pleases, without asking license, or paying any toll or duty whatsoever.” It was moreover apparent, apart from considerations of principle as to the freedom of the sea, that no certainty existed that the king, or a successor, would not raise the tax, if once imposed, as the King of Denmark had done with the dues at the Sound, until they became a heavy burden.
A Scottish lawyer, probably in the service of the crown, in reply to the objections of Sir Noel Caron, argued that it could not be called an “innovation” to exact the tribute, if the herrings swam from the ancient places of their resort and appeared in new places in his Majesty’s seas, where the tax was not previously levied, or because there was an “oversight” in levying it in olden times when, he said, there was little fishing in the north seas and about the Isles, and the cost of collecting it would have been great. As for treaties, it was most improbable that any stranger would ask or king grant that strangers should be more free to fish “within the seas of the king’s dominions” than the native subjects of the kingdom. But even if such grant had been made, it could not stand good in law, because it was “repugnant to reason.” By negligence, he said, the Hollanders had been allowed two advantages. In ancient times they were “appointed” to fish no nearer the land than they could see the shore from their main-tops; but now they fished as near as they pleased, excluding the natives and breaking up the shoals. Then, while the natives had to pay three assizes yearly, the Dutch were “as yet” asked to pay only one, though many of the busses made three voyages in a year. And if the sea was free to all, why had the Netherlanders entered into treaties for freedom of fishing? By making covenants with the kings of Scotland, “and taking liberty of them to fish within the Scottish seas,” they had “disclaimed mare liberum and acknowledged the Kings of Scotland to be Lords of these Seas.” Why should the Dutch alone object, if the natives, the French, and all other foreigners willingly pay the assize-herring?[290] It was, however, untrue to say that the tax was paid by the French or other foreign fishermen. Even Scottish fishermen who fished at the North Isles were exempt; and when an attempt was made some years later to force them to pay, the burghs obtained a decree of absolvitor from the court and the Privy Council, on the ground that the tax could only be levied on “green” or fresh fish landed, and not on herrings cured on board ([see p. 166]).
In the spring of 1610 James’s proclamation was again taken into consideration by the States of Holland and the States-General, and it was resolved to send an embassy to London, primarily to thank the king for his friendly offices in connection with the conclusion of the truce with Spain, but in reality to deal with the fishery question and some other matters. One of the ambassadors was Joachimi, who afterwards represented the States at the English Court for over twenty-five years. Another was Elias van Oldenbarnevelt, a brother of the great statesman who was then at the head of affairs in the Netherlands, and to him the business of the fishing was specially committed. They arrived in England on 14th April, and had an audience with the king a few days later and another with the Privy Council. They asked for an assurance that the king’s proclamation was not meant to extend to the United Provinces, since he was in alliance with them, and treaties existed between the two countries. But the Earl of Salisbury plainly told them that the principal motive of the proclamation arose from the multitude and disorder of their fishermen, “who had wholly drawn the fishing to themselves, to the destruction of his Majesty’s people and coast-towns”; and they were invited to further conference.[291]
On the 6th May, exactly a year after the publication of the proclamation, the ambassadors had a formal conference with Sir Julius Cæsar, Sir Thomas Parry, Sir Daniel Dunn, Sir Christopher Perkins, Dr Henry Marten (Advocate-General), and Levinus Muncke, a Fleming, and “clerk to his Majesty’s Signet.” The English commissioners began the discussion by justifying the proclamation on the grounds previously indicated. The Dutch contended for complete freedom of fishing, resting their case on arguments drawn from the civil law, on immemorial possession, on the existence of treaties, and on political considerations. They said the United Provinces had always been in peaceful possession of free fishing, and that from time immemorial they had enjoyed complete liberty to fish over the whole sea, both as a matter of usage and of right. To disturb them by force in the enjoyment of that right would be unjust. Besides, by the Law of Nations the boundless and rolling sea was as common to all people as the air, “which no prince could prohibit.” No prince, they said, could “challenge further into the sea than he can command with a cannon, except gulfs within their land from one point to another,”—the first occasion on which this principle for delimiting territorial waters, afterwards so celebrated, appears to have been advanced.[292]
Fig. 7.—Facsimile of Minute of the Declaration of the Dutch Envoys as to the range of guns.
Besides these more or less abstract arguments, the ambassadors made a strong case by reason of the treaties in which liberty of fishing was stipulated. It is noteworthy that they referred to only one of the treaties with England, the Intercursus Magnus of 1496, while they laid stress on the treaties with Scotland in 1541, 1550, and especially in 1594, when James himself was on the throne of the northern kingdom ([see p. 81]). They further declared that there were reasons of state which forbade the United Provinces from allowing the free use of the sea to be disputed. More than 20,000 mariners were maintained by the herring fishery alone, besides other 40,000 people who gained their livelihood by making nets, packing the fish, and in other industries depending upon the fishery. The power and security of the country and much of its commerce rested on the fishery. As for the complaint that the decay of English coast-towns was caused by their fishing off the coast, it was explained that they only fished there for herrings which were cured on board, and that this industry had been discovered by themselves, which gave them a prior claim to it. The English were free to carry on the herring fishery themselves, though, they dexterously added, it was a business that required much experience, and it would be a long time before they succeeded, especially as heavy losses sometimes occurred, which the Dutch were able to bear, since they lived cheaply and each of the 60,000 people mentioned were “adventurers,” the losses being thus spread over a great number. They suggested that the English had given up the fishery because they had found a more comfortable livelihood in other ways.[293]
On the other side, the English commissioners argued that by the custom of nations the king had a right to the whole of the seas around his coasts; and this right was exercised by other countries, as Spain, France, Denmark, Sweden, Venice, Genoa, and Russia, and generally by all maritime states; and it was not opposed to the Roman law or the teachings of the Civilians. They admitted that the sea was free for navigation, but denied that it was free for fishing. All the kings of England since Edgar had the adjoining seas under their jurisdiction, and had always received “consideration” for the fishing within them. The commissioners evidently felt that the treaties offered the greatest difficulty to the policy of James, and they contended that all the Burgundy treaties had become obsolete for a variety of reasons. The great treaty of 1496 had lost its effect, inasmuch as a later treaty in 1520 (which, however, dealt with quite other things) did not confirm it. The treaties, moreover, had been made with the House of Burgundy, and concerned only the subjects of that house; but there were now no subjects of the Duke of Burgundy; and the Dutch at least could not found upon those treaties, because they had themselves broken and transgressed them. Even if those old treaties could be supposed to be in force and provided liberty of fishing without license, that could not mean without the payment of the usual dues, customs, and taxes. Besides, when the treaties were made the circumstances were different. The fishing of the Netherlanders was not then so disagreeable to this country as it was now; then about 100 vessels came to fish, while now they sent 2000. The king was therefore not bound to tolerate them any longer.
The negotiations between the English and Dutch commissioners went on for a short time, the arguments on either side being elaborated without much hope of agreement, when an event occurred that brought them to a sudden end. This was the assassination of King Henry IV. of France, the head of the Protestant League, which made James anxious to retain the goodwill and alliance of the Dutch Republic, in view of his relations with Spain. On 14th May the ambassadors were told by the Earl of Salisbury that while the king held his right to forbid the Netherlanders to fish on his coasts to be indubitable, he, “out of his great love to the Low Countries, would forbear to proceed according to the proclamation.”[294] At the farewell audience James used very kind expressions. He made the remarkable but characteristic statement to the ambassadors that he had issued the proclamation owing to the just complaints of his subjects, not from the solicitation of courtesans or courtiers.[295] He assured them of his affection towards them and the preservation of their state, “which next unto his own he held most dear above all other respects in the world.” As for the business of the fishing, he thought it was not fit now to spend more time on it, but to refer it to some better season, and in the meantime, he said, things would remain as they were.[296] This termination to the negotiations was naturally gratifying to the Dutch. Barnevelt and the States-General had become somewhat anxious as to the issue, and the ambassadors had been instructed to try to get the matter shelved for a little. Although James had suspended the operation of the proclamation, however, he had not withdrawn it. The question was merely postponed to a more convenient season.
The failure to carry out the policy of exacting tribute from the Dutch fishermen was fatal to the scheme of the London merchants to form a Society of Fishing Merchants. Rainsford wrote to Lord Salisbury in October 1609 expressing his fears that the Earl disapproved of the project to raise a great revenue to the king for the fishing in his seas;[297] and in 1611 he again addressed a memorandum to the Earl, answering various objections that had been raised to the scheme, and renewing the offer for farming the tribute.
The plans to form a national herring fishery founded on taxation of the Dutch having failed, others were brought forward on the basis of receiving special privileges and immunities from the crown. One proceeded so far towards realisation, that in December 1611 a corporation was formed, consisting of a governor, deputy-governor, a treasurer, twenty-four “consuls,” with “searchers” (cure-masters), gaugers, and other officials, in imitation of the Dutch system. The administration was to be general “for matter of order, and particular for matter of adventure,” leaving every town at liberty to venture for itself; and laws and ordinances were drawn up for the central body in London and the affiliated societies throughout the country. Since the money necessary was to be found by private individuals, a number of privileges were asked from the Government. One of these, which made it lawful for the corporation to carry their fish abroad and to bring back commodities in exchange, “from all parts wheresoever, notwithstanding any former privileges to the contrary,” was strenuously opposed by all the trading companies, and in particular by the Merchant Adventurers, who objected that it would be most injurious to their great trade in cloth.[298] This opposition killed the “business of the busses,” as the fishing project was popularly called. Writing ten years later, Gerard Malynes, a London merchant and author, who appears to have been one of the promoters and to have spent both time and money on it, deplored the failure of this society, which he said was due to the opposition of the Merchant Adventurers, the Russia Company, and the Eastland Merchants.[299]
Within a year or two another project came from an unexpected quarter. No less a personage than the queen became a suppliant for a royal patent empowering her to compound with strangers for licenses to fish on the British coasts. The arguments adduced from the point of view of benefit to the nation were of the usual kind; but others of a more or less domestic nature were added, which must have appealed to the heart of her consort. “It is desired by the Queene,” proceeds the petition, “that the King’s Majesty will be pleased to graunt unto her a Pattent of theis fishings under his Majesty’s great Seales of England and Scotland, whereby her Majesty may have power to graunt lycense and to compound with these strangers for an yearly revenue to be paid unto her Majestie for theis fishings.” By this means a great revenue would be drawn into the country, which would be sufficient to support and maintain her estate, “and so his Majesty’s coffers will be spared.” She promised besides that she would give him a full fifth of the amount she obtained; and another advantage would be that the king would be “royally invested in possession of his undoubted right, which,” she naïvely added, “hath never ben yet obtayned by anie of his royall progenitors.” The petition was brought before the Privy Council, who decided that the proposal was not feasible, as it depended upon “so many points of question and circumstance between us and the House of Burgundy in former times, and the States of the Low Countries and us for the present.”[300]
In her petition the queen referred to the proposal to build a number of busses. While explaining that her project would not prevent the king or any of his subjects from building busses if they so desired, she questioned whether that plan would be successful. Some men, indeed, of great judgment, she said, were of opinion that the king would reap no benefit at all in that way, for 1000 busses was “the least number that could be thought to doe any good upon this fishing,” and each would cost £1000 at least, while £100 a-year would be required for repairs, and 20,000 men would be needed to man them.
About this time several works were published giving details as to the cost and equipment of herring-busses,[301] but little was accomplished. The net result in 1614 was that one Richard Godsdue, Esquire, of Bucknam Ferry, in Norfolk, had five busses on the stocks at Yarmouth, and Sir William Harvey had built a large one at Limehouse. But all the efforts made in the reign of James, and indeed throughout the whole century, to form a great national fishery on the model of the Dutch completely failed. It required nearly two centuries of experience, and the squandering of vast sums of money, to teach the people that a great industry could not be suddenly created in this way by servile imitation of a system not suited to the natural circumstances of the case. It was chiefly by the gradual evolution of the Scottish herring-boat, and not by the building of busses, that the herring industry was wrested from the Dutch.
James was doubtless privy to the queen’s petition before it was officially considered,[302] and he appears not to have been satisfied with the decision of the Council. At all events, the question of the fisheries was still kept alive. In the spring of 1614 we find Wotton writing from The Hague to Secretary Winwood, saying that he still had his Majesty’s commission regarding the fishings, and that it was, as Winwood said, “a tender and dainty piece,” adding that though he had seen Mr Barnevelt on several occasions he had not mentioned the matter to him, and was waiting for a suitable time to speak of this “dainty and delicate business.”[303] Later in the year, the Keeper of the State Papers was requested by the Lord Chancellor and the Archbishop of Canterbury to search the records in his custody relating to the king’s jurisdiction on the sea and his right to the fishing. “Whereas,” they said, “there is occasion for his Majesty’s special service to look out such precedents and records as concern his Majesty’s power, right, and sovereign jurisdiction of the seas and fishing upon the coast; and that we are informed there are many of that kind among the records in your custody, we do hereby require you to make your personal repair hither to seek out all such precedents and papers as are remaining there and do any way concern that business,” and to hold them ready for inspection.[304]
This search was doubtless in connection with the subject of the assize-herrings mentioned in the next chapter, but that the queen’s scheme had been revived is evident from the action of Sir Noel Caron. As soon as he got wind of it, he wrote hurriedly to the States-General stating that the king had assigned to the queen for twenty-one years the revenue to be derived from taxing the herring-busses, and that no one would be allowed to fish on the coasts of England or Scotland without her consent.[305] This letter was at once considered by the Dutch Government. A committee was appointed to look into the treaties bearing on the question and the instructions which had been given to the ambassadors in 1610, and to report as to what action should be taken; but it was finally resolved to await further developments in England before interfering, and at the beginning of November Caron was able to announce that the danger had passed.[306]
At this period there were other disputes with England that caused apprehension in Holland. One referred to the trade in cloth, and in a proclamation which prohibited the export of wool[307] James took the opportunity to extol the commanding situation of the British Isles for navigation and trade, and to draw a parallel between the commodities of wool on land and fish in the sea, “which,” he said, “are the Adamants that draw and govern all other Trade and Merchandizing”—language which led the Dutch to think the proclamation anent unlicensed fishing was about to be renewed. Another referred to the whale fishery at Spitzbergen, which was claimed both by the Dutch and the British, and was regarded by James as being within his maritime dominion. It led, as shall be seen, to an interesting contest for mare clausum in the Arctic Seas.
CHAPTER V.
JAMES I.—continued. DISPUTES WITH THE DUTCH.
It would probably be too flattering to James to suppose that he had any well-considered plan for extending his authority over the foreign fishermen frequenting his coasts, or for extracting from them a tribute for their liberty of fishing. But the existence of the tax of the assize-herrings in Scotland clearly offered the best means for bringing that about if it was to be brought about at all. It has been explained that in the negotiations which followed the issue of the proclamation of 1609, Sir Noel Caron laid his finger on a weak spot in the English case, by pointing out that the assize-herring had never been levied on the native fishermen who fished where the Dutch fished at the North Isles. The special ambassadors in 1610 also mentioned that their fishermen had never been asked to pay it, though they naturally did not lay stress on the point. James resolved that those omissions should be remedied. In 1610 he granted the assize-herrings to Captain John Mason, who was employed with two ships of war in that and in the following year on the coast of Scotland. Mason accordingly made strenuous efforts to collect the tribute. The fishermen of Fifeshire, who carried on a herring fishery at Orkney and Shetland, resisted the unaccustomed tax, and in 1612 raised an action of absolvitor before the Lords of the Privy Council and gained their case.[308] The Lords of the Council decided that the “adventure” of the fishermen at the Northern Isles was of the nature of a merchant voyage, and that the fishermen had no right to pay any such assize, which had never been craved of them before.[309]
Notwithstanding this decision of the Privy Council of Scotland, James in 1614 again granted the assize-herrings of the North Isles, on this occasion to the Duke of Lennox, who was his Admiral in Scotland and one of the chief noblemen of the time. In ordinary course the grant came before the Privy Council for confirmation, and the Council at once informed the Convention of Burghs, requesting them to make it known to the burghs that the Duke of Lennox had obtained a gift from the king of “ane excyse to be tayne of all heyring to be tayne be north of Buqhan Nes” (Buchan Ness, Aberdeenshire), so that they might lodge their defences. The commissioners for Dundee, St Andrews, Dunbar, and the burghs on the coast of Fife, were accordingly appointed to proceed to Edinburgh to give reasons to the Council against the “gift.”[310] After hearing the representatives of the burghs and the agents of the Duke (one of whom was “Maister Johnne Browne,” the central figure in the dramatic episode in 1617, referred to later), the Lords of the Council indited a long letter to the king. They cited the decision in Mason’s case two years before, and the reasons for it. They expatiated on the great decay which had occurred in all trades and commerce in Scotland, and stated that the fishings would also decay if the duty was levied. In plain words they told the king that the fisheries should rather be encouraged—for the general welfare of the country, the increase of customs, the inbringing of bullion, and providing work for the poor. In face of the decree in Mason’s case, the Duke’s agents had to admit that they could not levy the tax from the burghs, but they craved leave to exact them from the native fishermen of Orkney and Shetland, and from the foreign fishermen who fished there. On the former point the opinion of the Council was clear. They upheld the contention of the burghs that the native fishermen were only their servants, since they paid wages to them for their labour, and that the herrings, being cured and barrelled on the sea, were exempt from assize duty, which could be exacted only on herrings brought fresh and “green” to land.[311] The Council evaded giving an opinion on the point of chief importance, the proposal to levy the tax on the foreign fishermen, all of whom cured their fish on board their vessels. There were, they said, according to information supplied by the burghs, “some strangers, especially of Holland,” who claimed the liberty and privilege of fishing “by his Majesty’s patent granted in their favour to fish in his Majesty’s waters”; but the tenour of this patent was obscure and not known to them, and they had no record of it. They suggested that the king should ask his ambassador at The Hague to procure an authentic copy of it, to be sent to Scotland for inspection and consideration.[312]
Evidently the Council in Scotland were at this time as cautious as the Council in England in doing anything contrary to the treaties with the Netherlands. Had they sanctioned offhand the request of the Duke to exact the assize-herrings from the Hollanders, they would have taken the responsibility, without direct authority from the king, of an act which they knew might have serious consequences. They had no sympathy with the foreign fishermen, for complaints regarding them from the burghs were frequent. In 1611 the city of Edinburgh represented to them the “inconvenience” which was sustained by the whole realm and by the merchants in particular through the non-observance of the Act of 1581, “anent the comming of schippis to burrowis in the west and north Isles be Flemings and uther nations”; and in the following year the “mater of the fischeing of the Flemins in the West and North Isles” was again brought up, and it was remitted to the burghs of Edinburgh and Dundee to draw up a supplication to the Privy Council to have the fishing by the Flemings in those places repressed.[313]
In view of the decision of the Privy Council, the Duke of Lennox did not at this time attempt to collect the tribute from the foreign fishermen at the North Isles. But two years later the political relations between this country and the Netherlands having become strained, the opportunity was seized to raise once more the question of the fishery and the exaction of the assize-herrings. Serious disputes involving retaliatory measures had broken out respecting the trade in cloth. In England strong resentment was aroused by an edict of the States prohibiting the importation of English dyed cloth. Winwood, now Secretary of State, wrote to Sir Dudley Carleton, who had taken his place at The Hague, that it was the opinion of “every true-hearted Englishman” that the king “ought to forbid all manner of intercourse between the Kingdoms and the United Provinces, and forbid the Hollanders, by a fresh reviving of former proclamations, to continue their yearly fishing upon our coasts.”[314] The influence of this feeling was soon apparent. The Duke of Lennox was now instructed by the king to levy the assize-herrings from foreigners fishing at the North Isles, the grant, under the great seal of Scotland, being dated in June 1616; and to render his task more easy he obtained from Sir Noel Caron in the same month a letter of recommendation (“aanbevelingsbrief”) to the captains of the Dutch convoying-ships. This letter was innocently given by Caron in the belief that it concerned the payment of dues on land at Shetland, which the busses had been accustomed to pay, and which were then payable to the Duke,[315] but it was made use of by the Duke’s agent to cover the collection of the assize-herrings. The duty of collecting the tax was assigned to Mr John Brown, one of the Duke’s deputies. The detailed instructions he received in 1616 do not appear to have been preserved, but they were probably similar to those issued a year or two later (see [Appendix G]). He was to proceed to the North Isles in one of the king’s pinnaces and there to demand the assize duty from the foreign fishermen.
At the end of July 1616 Brown, in one of the king’s vessels, appeared among the Dutch busses at work off the Scottish coast, and began to carry out his instructions, offering a “quittance or receipt” for the tax claimed. Probably to his surprise, it was peaceably paid by the busses, amounting for each to one angel or a barrel of herrings and twelve cod-fish. The fishermen were told that if they did not pay it the amount would be doubled in the following year; and that the king had a right to levy this tax for a distance of 100 miles from the coast in virtue of the agreement made with the States at the baptism of Prince Henry.[316] Although the toll was paid by most of the busses, it was without the consent of the captains of the convoying men-of-war. They came to Brown and demanded to see his commission; and it is said that he showed them the letter which the Duke of Lennox had obtained from Sir Noel Caron. Since no force had been used in collecting the tax, the States’ officers contented themselves with forbidding any further proceedings, and Brown then departed.[317]
The success of the mission was gratifying to James, and the payment willingly made on this occasion by the Dutch fishermen was often afterwards cited as an argument that they had acknowledged the king’s rights in the fishery. In the United Provinces the matter was naturally viewed in another light. The Dutch officers promptly reported the occurrence to the directors of the Enkhuisen branch of the fishery; the authorities of the town complained to Barnevelt in energetic terms, and the matter was brought before a meeting of the States-General, who characterised the proceeding of Brown as an “unheard of and intolerable innovation, contrary to the existing treaties,” and instructed their ambassador in London to make a strong protest against it. Orders were, moreover, issued to the commanders of the convoying ships of war to put a stop to any further payments, and even to refuse to give their names. Caron, who was indignant at the use to which his friendly letter had been put, complained to the king and to the Duke of Lennox. James explained that it was merely a small tribute or tax which was levied in Scotland on all foreign fishermen, and even on his own subjects, and had been leased to the Duke of Lennox, who paid an annual rent for it into the Exchequer. He had, he said, arranged that one of his ships of war should be stationed on the fishing-ground for the security of the fishermen and to protect them from pirates. Caron declared that their High Mightinesses were exempt from all imposts or taxes for their fishery, both by the treaties “and otherwise,” and he begged the king to give other instructions, as the matter had occasioned great disquiet and alarm in Holland. Lennox also tried to minimise the importance of the measure. It was, he said, a small matter; a mere “acknowledgment” of a barrel of herrings or ten shillings from each buss, which had to be paid thrice a year by all the king’s subjects who fished at the North Isles, and was willingly paid by the English, French, German, and all other foreign fishermen. The ambassador says he was shown a printed book in which it was stated that the Scottish Parliament had decreed that the assize-herrings should be paid not only by the native fishermen but by foreigners who came to fish on their coasts.[318] The latter were furthermore prohibited from approaching the coast nearer than they could see the land from the top of their masts, whereas of late they came within ten, eight, six, and even four miles of the shore, which had caused much murmuring in the country, particularly as in that year between 1500 and 1000 of their busses were there in June. Sir Noel Caron, however, continued to protest against what he said was an unjust innovation, and he closed the interview with the important declaration that, be the consequences what they might, the States would not allow a single herring to be paid in future, as it might be regarded as a precedent for further demands.[319]
Notwithstanding this strong protest from the Dutch ambassador, and a request he made to the king to forbear the right he claimed pending the appointment of a special embassy to treat of the matter, Brown was again sent to the North Isles in the next year to collect the king’s dues from the herring fishers. This he attempted to do as quietly and inoffensively as possible, but his mission had an abrupt and dramatic termination. Immediately on his arrival among the busses, Captain Andrees Tlieff, the commander of one of the convoying ships from Rotterdam, formally refused the payment in the name of all the Netherland fishermen, handing to Brown a declaration to that effect in writing. Brown professed himself satisfied, and was about to leave Tlieff’s vessel to proceed, as he said, among the fishermen of other countries, when the captain of the convoyer from Enkhuisen, Jan Albertsz by name, who had spoken to Brown in the previous year, came on board. He asked Brown if he was the person who had levied the tax in the year before, and on receiving a reply in the affirmative he at once arrested him, saying he had orders to that effect; and notwithstanding Brown’s warning as to the consequences, and the exhibition of his commission, he was made prisoner by the irate Dutchman and carried off to Holland. Whether the king’s pinnace had on this occasion, as two years later, more than “two small guns and ten muscattis” to represent the power and majesty of the British navy, does not appear. But Brown, meek and peaceful, was seemingly quite contented with his position. He wrote from the Dutch ship to Captain Murray, in charge of the king’s pinnace, telling him of his arrest and advising him to make no attempt at rescue, but to return to Scotland and report the matter to the king.[320]
James received the news of the capture of Brown at Dumfries while on a visit to Scotland. He felt that the arrest of an officer of the state, discharging business of the state and with his Admiral’s commission in his pocket, was an “insolent” personal affront to himself. The members of the Privy Council who were with him—and the Duke of Lennox was one of them—immediately wrote to the Council in London requesting them in the name of the king to arrest the masters of two or three Dutch ships in the Thames by way of reprisal, and to retain them as hostages; to inform Sir Noel Caron that reparation must be made by the States; and to instruct the British ambassador at The Hague to “demand satisfaction from them for this insolence offered to his Majesty.” Winwood at once sent for Caron, and informed him of the “disgraceful affront” which had been put upon the king while his Majesty himself was in Scotland. The king, he said, was very sensible of their “injurious and scornful carriage,” and immediate satisfaction and redress were demanded. Sir Dudley Carleton used even stronger language in addressing the States-General at The Hague. What, he asked, would the world say when they knew that a public officer and Minister of the King of England had been seized by them in Scotland, in sight of the ships of other nations and while the king himself was in that country? That the outrage was committed by the orders of the States he did not believe; but the captains pretended they had a commission for what they did, and produced certain letters patent containing, as they said, an express commission from their masters. The ambassador concluded by requiring instant reparation and satisfaction.[321]
Meanwhile Brown himself had, perhaps, little cause for regret. He spent two days on board the Dutch man-of-war, and was then landed at Enkhuisen. The authorities of the town at once perceived the rashness of the step that had been taken by Captain Albertsz. Brown was immediately liberated, treated with the greatest courtesy, and conducted by one of the chief magistrates, with profuse apologies, to the British ambassador at The Hague. All his expenses were defrayed; he was presented with seventy “double Jacobus pieces” as a personal gift, and he left for home on 13th September. Count Maurice and Barnevelt promptly disavowed the act of Albertsz, and when the matter was brought before the States-General by Carleton, it fell to the lot of Grotius, in the absence of Barnevelt, to express the regret of the assembly for the “accident,” and to request the British ambassador to put the case in writing for inquiry. In their reply later, the States-General threw the whole blame on the captains, Albertsz and Tlieff, who had, they said, acted without authority, and would be punished on their return from the fishing. They renewed their regrets, said that Brown had been immediately released, and begged that the Dutch merchant captains who had been thrown into prison in England and Scotland might be set free, and their “ancient accustomed liberty of fishing maintained.” In preferring this request the States relied on their treaty with James in 1594, and the gracious answer he had given to their ambassadors in 1610 concerning the proclamation of the year before.[322]
If the States-General thought they were to get so easily out of the awkward position in which the precipitate action of their officers had placed them, they were disappointed. James not only refused to release the Dutch ships, but said their masters would be detained in prison until the offending commanders had been sent as prisoners to England, there to receive such justice as their case merited. This request was most unpalatable to the States, and they raised various objections to it, founded both on law and privilege; and although they were assured by Carleton that the only punishment the offenders would receive would be “the crossing and re-crossing the seas,” they begged that some other means might be found of settling the matter. James, however, who had submitted the case to counsel as to the legality of his demand, remained obdurate.[323] Finally, after much negotiation and debate, the States, in February 1618, resolved to send over the two captains to receive the personal rebuke of the king. Albertsz, the chief offender, fell ill and died, but Tlieff did actually come to England in April. Notwithstanding letters of recommendation from the States-General, Sir Noel Caron, and Sir Dudley Carleton (with whom Grotius had interceded), he was “very wrathfully” received by James, who scolded and rebuked him severely for the enormity of his offence, and then dismissed him without further punishment.[324] Thus ended an incident in the claims to mare clausum which almost led to a rupture between the two countries.
It would appear that James, though thus foiled in his attempt to levy the assize-herrings from the Hollander fishermen in 1617, did not intend to let the matter rest in the following season, and circumstances occurred which brought up the question of the “land-kenning” in another quarter. Early in 1618 the King of Denmark complained to him that Scottish fishermen were in the habit of fishing “within the waters of Faeröe,” which was part of the dominions of Denmark, and that the native fishermen had been so much injured by their encroachments that they were unable to pay their dues and taxes. Here was a complaint against Scottish fishermen like that which they so commonly made against the Dutch. The complaint was brought before the Privy Council of Scotland, who summoned the burghs concerned[325] to appear and explain their conduct. They admitted that for some years they had gone to the Faeröe Isles to fish, but they said that they had been “driven thereto upon necessity, and by the violence and oppression of the Hollanders, who came yearly with two thousand sail and above within his Majesty’s waters, and within a mile of the ‘continent’ of Orkney and Shetland, and not contented with the benefit that the liberty of their fishing within the said bounds affords yearly unto them, they do very heavily oppress his Majesty’s poor subjects and fishers.” They said that the Hollanders “stoppis thame, houndis and chaisis thame frome thair fischeing, cuttis thair nettis, threatnis thair lyveis, and thairby compellis thame, who ar a nomber of poore people haveing no other trade quhairby to manteene thair families, to seeke thair fischeing elsquhair and far frome thair awne coist, with grite tormoyll, travell, trouble, and chargeis.”[326] The Lords of the Council, however, held that the oppression committed by the Hollanders on them was no warrant for their oppressing the subjects of other princes, and “that they ought not to have fished in the said waters without some license and oversight.” A proclamation was thereupon issued by the king and Council forbidding Scottish fishermen “to fish within sight of the land of the Isle of Faeröe, but to reserve the [fishings there[327]] to the inhabitants of the said Isle, and to other” subjects of the King of Denmark, “conform to the law of nations,” under a penalty of confiscation of the ships, vessels, and goods of the persons offending. At the same time the Council wrote to the king acquainting him with the oppressions committed by the Hollanders on the Scottish fishermen, and suggesting that his ambassador at The Hague should demand reparation and “instant prohibition” by the States to their people, “that they fish not within sight of his Majesty’s land, but reserve these bounds to his Majesty’s own subjects, conform to the law of nations.”[328]
Sir Dudley Carleton accordingly made a strong representation to the States-General on the subject in April. They asked for particulars as to the persons who were alleged to have been ill-treated in Scotland, and the nature of the wrongs done to them; while with respect to the limit proposed to be set them in their fishery—namely, not to come within sight of land—they said they had never heard of any such custom, and did not understand how it could be put into practice.[329] On reporting this home, Carleton was told by the king to raise the question of the fishing again before he came away, and he explained to him that the custom of the land-kenning was that no stranger should fish either within the creeks of the land or within a kenning of the land, “as seamen do take a kenning.” He asked Carleton to ascertain whether the Dutch claimed to fish wherever they liked, or were willing to accept reasonable bounds, adding that the resolution that might be taken on the subject would depend largely on this.[330] A few months before this Carleton had brought similar complaints to the notice of the States-General, declaring that the Hollanders were daily guilty of “great outrages and insolencies on the Scottish fishermen.” It was even said to be the opinion in London that the prosecution of the herring fishery by the Dutch under the protection of ships of war was a direct challenge to and defiance of the king.[331]
The authorities in Scotland lost no time in preparing statements recounting in detail the outrages and insolences committed by the Dutch fishermen; but an impartial perusal of the complaints leaves little doubt that they were greatly exaggerated. The Dutch fishermen were accused of going ashore in large numbers and chasing, taking, and slaying sheep; they “intromitted” with growing timber, trod down all the corn they could find, induced the best and ablest of the native fishermen to join them, or even took them by force; entered the kirks, where they broke down the seats and polluted the pulpits; carved their names on the green pastures; took uninvited rides on the horses in the fields, “to the great hurt of the owners”; and made free with the eggs and young of seafowl on the uninhabited isles, to the hurt of the proprietors. In the long catalogue of their supposed outrages on land, two were more important. It was alleged that they gave refuge to thieves and malefactors, so that justice could not reach them; and that some years before they seized an honest young woman who was selling stockings among them and held her head-downwards on an eminence in sight of the whole fleet, owing to which she died later. Among their offences at sea they were charged with shooting at native fishermen, “catching of their small netts and lynes within those huge long netts” that they used, and which they laid hard by the shore, “whereas before they approached not nearer the coasts than fourty (sic) myles.” By fishing near the shore they had impoverished the whole trade of fishing; before they began to do so the herrings came close in, so that the poorest fisherman could enrich himself, while the shoals were now broken up and dispersed. So near did the busses come in stormy weather that they fished “hard by gentlemen’s doors,” where the fishing was “appropriate to the owners of the land nearest adjacent for their own fishing in the time of storms when they could not go to sea for the entertaining of their houses.”[332]
Since the States-General appeared to be tardy in admitting the offences with which their fishermen were charged, the king wished strong measures to be taken by the Council in Scotland, and he instructed Lord Binning, his Secretary there, to take steps “for interrupting and staying the Hollanders to fish in his seas within sight of the land.” The Council, however, pointed out in a very humble tone that inasmuch as it was a matter which concerned not only “thir Hollanders, who ar your Maiesties confederatis, pretending thair awne interes thairin, ather be right or lang possessioun,” but also the whole of the kingdom, it would be better if the king’s proposals were first imparted to the Privy Council in England. They requested, further, that the ambassador in Holland should again expostulate with the States as to the injuries caused to the king’s subjects by their “unjust usurpation to fish within sight of his Majesty’s land,” and to urge them to issue a proclamation to prohibit, under heavy penalties, their people from all further fishing within his Majesty’s seas, which, they said, ought by the Law of Nations to be exclusively reserved for his own subjects. They advised the king to make the States clearly understand that if they continued any longer in their “oppression,” he would so provide for the maintenance of his right and the freeing of his people as his honour and justice required; and if the answer was not satisfactory he might then resolve upon the “next expedient,” and the Council would be ready to obey whatever he should command.[333]
The States-General, while they did not go so far as the Council desired in prohibiting their fishermen from approaching near to the land, did all that they reasonably could do to prevent injuries being committed on the Scottish people. After an inquiry was made among those taking part in the great herring fishery, without any evidence being forthcoming in support of the Scottish complaints, they published an edict forbidding their subjects, under pain of severe punishment “as pirates and malefactors,” from interfering with the Scottish fishermen, with whom they were enjoined to maintain “true friendship, neighbourliness, and good correspondence.”[334] In forwarding a copy of this proclamation to the king, the States said that they had issued it for his satisfaction, and had given strict orders to their captains to apprehend any one who acted contrary to it. But they expressed the hope that he would not permit the fishermen of the United Provinces to be disturbed or troubled in the liberty and freedom of taking herrings throughout the whole sea, of which liberty they were in immemorial possession, and it had been confirmed to them by several treaties, in particular by that made in 1551 between the king’s predecessor and Charles V. The prosperity of their country, it was added, depended on navigation, traffic, and fisheries, and the freedom of these had been provided for in treaties.[335] James, however, was far from satisfied. He sent on the missive to the Privy Council in Scotland, with the request that the rolls and registers should be searched to see if any record existed of any such treaty, whether “with the said Emperor or any other potentate of the Low Countries.” The States, he said, had promised to send a copy of it, but they had not done so, and in the meantime he would cause the rolls in London to be searched.[336]
The negotiations with the States-General dragged on throughout the summer without much result, and in August James took the sudden resolution again to demand from the Dutch fishermen the payment of the assize-herrings. This was doubtless caused by the receipt of a letter from Sir Dudley Carleton, informing him that the herring-fishers had gone that year to the coast of Scotland with extraordinary convoy, the number of their men-of-war having been doubled, and expressing the hope that notwithstanding this the king would send some one to make the usual demand in a peaceable manner; otherwise, said Carleton, the Hollanders “will think his Majesty has laid aside his pretension.”[337] James accordingly wrote hurriedly to the Council at Edinburgh, saying it was necessary to make requisition of his duties from the Hollanders fishing on the coasts of Orkney and Shetland, in order both to keep possession of the fishing and to foil any plea from the States-General that no such duties had been demanded of them. He had intended, he said, to send a ship of war, but those which were ready were otherwise engaged, and there would not be time to equip a vessel in England before the Hollanders returned from the fishing. The Council were therefore instructed to fit out with all expedition either his own pinnace or any other ship which could conveniently be procured, and to send it to the North Isles with such person as the deputy of the Duke of Lennox should choose, who was to be instructed “in fair tearmes and calme and peciable maner to crave oure said dewties, and accept of any suche answer as they sall gif him, without making any furder questioun or dispute in the mater.”[338] Here was another Brown mission over again; but James forgot, if indeed he ever knew, that at that time of year the Dutch herring fishermen would be very far from the North Isles, and fishing along the English coast.[339] The fact was well known at Edinburgh, but, for whatever reason, it was not pointed out to the king; and the Council, urged to use “exceeding great haste,” chartered a Leith vessel, the Restore, put Mr Patrick Bruce on board to demand the tax from the Hollanders, along with a notary “to give instruments thereupon,” and despatched it on its bootless errand to the Shetlands. No Hollanders could be discovered, and the Restore came back to Leith.
The reason of the king’s action, as well as of Carleton’s advice, is doubtless to be sought in the desire to strengthen the case against the Dutch in view of an expected special embassy from The Hague, whose appointment was now mooted, and which was designed to settle various differences between the two countries that had become acute. Besides the herring fishery, which was a never-failing subject of dispute, there was the trade in cloth, the East Indies, and the “Greenland” whale fishery, about which it is necessary to say something here.
Allusion has already been made to this phase of the controversy respecting mare clausum which sprang up in the Arctic seas, and was now mixed up with the question of the liberty of fishing on the British coasts. Towards the end of the previous century English whalers, for the most part in the service of the Russia or Muscovy Company, frequented the coasts of Greenland, and the northern seas which had been opened up to English enterprise by the voyages of Willoughby and Chancellor;[340] and early in the next century they also began to catch whales at Spitzbergen, where they were found in enormous numbers.[341] The whalers of other nations followed in their wake, and in 1612 two Dutch vessels arrived at Spitzbergen to take part in the fishery, and although from their ignorance of the methods they failed of success that year, a company (Noordsche Compagnie) was formed at Amsterdam to continue the venture under better conditions.[342] The Muscovy Company, whose whalers in 1612 got within nine degrees of the North Pole, sighting 700 whales and bringing back 17,[343] became jealous of competitors. In 1613 they procured from King James a charter by which they were entitled to exclude all others, foreigners as well as subjects, from sailing to Spitzbergen; and in that year they dispatched thither a fleet of seven armed vessels to defend their rights by force as well as to catch whales.[344] In the seas at Spitzbergen they found a number of other whalers from Spain and France, as well as two Dutch ships which had returned to the fishery. The English vessels immediately attacked them, and drove most of the intruders away.[345] The Englishmen then set up a cross on the shore with the king’s arms on it, and they called the land “King James’s Newland.” It is noteworthy as indicating the attitude and practice towards France throughout almost the whole of the disputes about mare clausum, that the French whalers were allowed to continue their operations, subject, however, to the payment of a tribute of whales or train-oil, while the two Dutch ships were despoiled of their catches and fishing-gear and were sent home empty. On their arrival at Amsterdam the ill-treatment to which they had been subjected was naturally resented, and representations to King James were made through the ordinary channels, but without success. The Dutch founded their case partly on the general principle “that according to the practice of all times and peoples, navigation, fishery, and the use of the shore were free and common to all,” and partly on the claim of prior discovery. Spitzbergen, they said, was discovered by Jakob van Heemskerk, a Dutchman, in 1596; they had therefore at least as good a right as the English or any other nation to the fisheries there. On the other hand, the powerful Muscovy Company argued that Spitzbergen was discovered by Willoughby in 1553, and accordingly belonged to England; and the king adopted this view, notwithstanding the elaborate case drawn up by the famous cosmographer, Plancius, on the other side, which was submitted to him.[346] The seas around Spitzbergen were held to pertain to the British seas, and to be under the maritime dominion of the King of England,—a claim which Selden attempted to vindicate later.
Fig. 8.—Dutch Whalers at Spitzbergen. After Van der Meulen.
Having failed by diplomacy to obtain recognition of what they believed to be their plain rights, the States resolved to oppose force by force. Early in 1614 a new Dutch company was formed, and exclusive privileges were conferred on it “to navigate, trade, and fish, from the Netherlands on or to the coasts of the lands between Nova Zembla and Davis’ Straits,” including therefore Greenland and Spitzbergen.[347] A tax of “last-money” was established, and in the same year eighteen Dutch whalers, armed, and convoyed by three States’ men-of-war, left Holland for the Arctic seas, prepared to maintain their right to freedom of fishery by fighting for it if necessary. The English whalers did not venture to attack so powerful a squadron, and as the Hollanders came in 1615 and 1616 in even greater force, they were for these three years enabled to carry on their whale-fishing without molestation. In 1617, however, their convoyers having been reduced in numbers, they were again assailed by the English; one of the Dutch vessels was despoiled, and their “cookeries,” or the buildings on shore in which the oil was made, were destroyed. Then in 1618 the Dutch reappeared, and in strength sufficient not only to maintain the right they claimed, but to make reprisals. They attacked, despoiled, and drove off thirteen English ships, most of which returned to England empty, and the Muscovy Company were loud in their complaints to the king. They put their loss at £66,436, 15s., besides the spoiling of the ships and the killing of the men.[348]
At this time, as we have seen, James was pressing more than ever for the recognition of his claims to the herring fishery in the British seas, and it may be easily imagined how he was moved by the news of this fresh “outrage” at Spitzbergen. At a meeting of the States-General in October, the British ambassador used strong language in animadverting on these “violencies, robberies, and murders” committed by the Dutch on the king’s subjects in the Arctic seas, on the injuries inflicted on the English in the East Indies, and on other matters in dispute; and he demanded that the embassy so repeatedly promised by the States should be sent to England without any further delay. The embassy in question had been originally proposed by the Dutch with the view of arranging the differences as to the trade in cloth and the herring fishery. Their diplomacy through the ordinary channels had, however, been so successful in preserving their freedom of fishing, notwithstanding the harassing efforts of the king, whom they invariably foiled, that they preferred to procrastinate, and the proposed embassy had from time to time been put off. But now the minatory demands of Sir Dudley Carleton were reinforced by the insistence of the Dutch East India Company, for it had been proposed in England to arrest the vessels of that company in the Channel in reprisal for the wrongs done to the English in the East Indies, and one of their ships had just narrowly escaped capture.[349]
The Dutch ambassadors arrived in England on 27th November;[350] but notwithstanding the earnest exhortations of Carleton, their instructions were confined to the “Greenland” (Spitzbergen) and East Indian questions, and did not contain what the king most desired—full powers to treat on the herring fishery.
James had been looking forward to this embassy as providing an opportunity for the final settlement of the fishery dispute. Sir Dudley Carleton had informed the States-General that the king wished to go into the matter of the treaties on which their claim to liberty of fishing was in great measure based, adding jesuitically that it was probably with the view of confirming them. The king in reality felt that owing to the dissensions in the Low Countries and the general political state of Europe, the time was specially opportune for negotiating a treaty in his favour.[351] He had accordingly made considerable preparations to meet their arguments both with reference to the treaties and the Law of Nations. Early in November he wrote to the Council at Edinburgh, saying that the wrongs suffered by his Scottish subjects from the fishing of the Hollanders in the seas of Scotland had caused him to bring the matter before the States, and to acquaint them of his “resolution to have them duly repaired.” The States had signified their desire to have their rights and the actions of their subjects “orderly tried and determined,” and they were therefore about to send over commissioners “sufficiently authorised” for that purpose. As commissioners to meet them, he had chosen the Duke of Lennox, the Marquis of Hamilton, Lord Binning (Secretary), and Sir George Hay (Clerk of Register), and he asked the Council to expedite the issue of their commission under the great seal. He also desired them to send him, in writing, the most perfect information they could procure as to his right to exclude the States from their pretended right or alleged possession of the herring-fishing, with full particulars of the wrongs committed by the Dutch on the Scottish people, either by scattering the shoals of herrings or by “usurpation of farder libertie to themselves nor hes bene formerlie granted or tolerated be us or our prediceesoris to them.”[352]
The commissioners named were accordingly authorised to treat with the Dutch commissioners “anent the trial and verification of the rights, immunities, and privileges alleged to have been granted by his Majesty or any of his most noble progenitors, Kings of Scotland, to the said States-General of the United Provinces, or any others from whom they deduce and derive their claim to fish in the seas of the said kingdom of Scotland, or any part or place thereof.” They were further instructed to treat as to the redress required for the injuries committed by the Dutch fishermen, and for preventing in future any unlawful proceeding by the States, “either by fishing in his Majesty’s Scottish seas” or by doing wrong to the inhabitants. They were, moreover, “to concur” with the English commissioners to be appointed as to the “friendly behaviour” of British subjects and the subjects of the United Provinces in all other seas, fishings, voyages, and other foreign intercourse, necessary for the continuance of peace and amity.[353] The business of the herring fishery was thus placed in charge of the Scottish commissioners, while the English had specially to deal with the other subjects in dispute—the East Indian trade, the whale fishery, the coinage, and the trade in cloth. Towards the end of November Lord Binning informed the king that the Council had sent off the commission, together with a statement of the injury sustained by the whole kingdom by the daily increase of the Dutch usurpation in his seas.[354]
With regard to the other matter about which James had desired “the most perfect information,”—his right to exclude foreigners from fishing on his coasts,—the Council had the greatest difficulty in discovering anything whatever pertaining to it. It was the most important part of the question to come before the commissioners, because the States had already issued a strongly-worded edict forbidding their people from committing any wrongs upon the Scottish people ([p. 179]), and the king could scarcely make out a just case for prohibiting the Hollanders from fishing on this ground alone. He desired to show, what he no doubt fully believed, that his claims were supported by historical precedents and the laws of Scotland, and that none of the treaties on which the Dutch always relied in such negotiations were contrary to his claims. In his letter to the Council he therefore repeated the request that the public records should be searched, and desired that Lords Lauderdale and Balmerino, the Laird of Lundy, and others into whose hands such documents might have come, “from their ancestors, Chancellors, secretaries, clerks of register, ambassadors, or councillors of state,” should try to find any which bore upon the matter, and to have them forwarded to him without delay. The terms of the king’s letter show plainly enough the confusion and imperfection of the Scottish state records at that time; and the Lords of the Council sought high and low to discover copies of the treaties or any other official papers relating to the subject, but for a long time without any success. Copies of some of the treaties were afterwards found, but nothing to establish the king’s right to exclude the Hollanders from the fishery. In these circumstances the Council advised the commissioners “to proceed warily,” and to make the Dutch ambassadors produce what they had to show for their claim to the fishing, and then to answer that.[355]
But as things turned out, it was of no immediate importance whether or not the Scottish commissioners were armed with documentary proofs of the king’s claims to the fishery. The Dutch ambassadors, as has been said, came without any powers to treat on that subject. In their private instructions, indeed, they were enjoined to avoid carefully any discussion about the herring fishery. If it was forced upon them, they were to point out that the States had already issued a proclamation to prevent wrongs being done to Scottish fishermen, which would be strictly enforced. If this was not sufficient, they were to fall back on general arguments as to the natural freedom of the sea, their immemorial possession of the fishery and its paramount importance to their country, and to plead for delay on account of the confusion and difficulties of their home affairs.
On their arrival in London they were met by two high Scottish personages, who had been awaiting their coming for some weeks. They took this for a bad sign, concluding from it that the king was resolved to raise the fishery question. They had several interviews with the Council and the king. On finding that their instructions limited them to the discussion of the two points on which there was least anxiety in England, the East India business and the whale-fishing, the Council received them coldly, Bacon indeed rating them soundly for coming without adequate powers. James himself was very angry, and made no effort to conceal his disappointment. He expressed astonishment that after all the complaints that had been made, and after all the negotiations that had gone on through the ambassadors at London and The Hague, they had ventured to come unprepared to deal with the principal matter in dispute. “The fishing,” he told them, “on the coasts of England, Scotland, and Ireland, as a regality and point of sovereignty, was possessed by him alone, to the exclusion of all others.” Spain, he said, had asked leave to negotiate about freedom of fishing, while France enjoyed the privilege only under great limitations, a few small vessels being allowed to fish for the use of the Court and the king’s family.[356] How little becoming was it therefore, continued James with heat, that a Republic which had only been recognised for a few years should be the first to contest his sovereign rights! It was useless for them to plead unprofitable years and immemorial possession. He was king of the greatest islands in the world, and he knew very well the rights he had on the coasts of his three kingdoms.[357] He further informed them that he was bound by oath at his coronation to maintain the rights, liberties, and privileges of his crown, and that he would rather lose all that he had than give up his right to the fishings.[358] Declarations equally strong were expressed in despatches to the British ambassador at The Hague. The king, it was said, would not be taught the laws of nations “by them nor their Grotius.”[2] It would be to their advantage to ask the king’s leave for the fishing and to acknowledge his right as other princes had done, or it might well come to pass “that they that will needs bear all the world before them with their Mare Liberum, may soon come to have neither Terram et solum nor Rempublicam Liberam,”—phrases which lead one to think that James penned the missive himself.[359] The Council intimated to the ambassadors that the king declined to discuss only the two points mentioned in their instructions, and that they must get powers from the States-General to deal with the question of the herring fishery.
Language of this kind from the king and Council disturbed and perplexed the envoys. They were anxious that the friendly relations between the two countries should be strengthened, and yet it appeared not unlikely that they would have to return home without having been heard on any of the matters in dispute. They began to think that after all it would be better if the fishery question were taken up and settled, and they advised the States-General in that sense. The British ambassador at The Hague was using pressure with the same object. But the Prince of Orange told him that in his opinion the States of Holland would refuse to give authority for the fishery question to be opened, “for fear of the people,” because the livelihood of 50,000 of the inhabitants of that province depended on the herring-fishing, and they feared that the same thing would happen with the tribute the king claimed as had happened with the dues at the Sound, which had been gradually raised until they had become an intolerable burden. He threw out the suggestion at the same time that perhaps the freedom of fishing might be purchased by a lump sum. A little later Carleton proposed to the States-General that the three subjects omitted from the ambassadors’ instructions should also be brought into the negotiations—viz., the trade in cloth, the coinage, and especially the herring fishery. In a minatory speech he declared that the king, who had “a legitimate title and the exclusive sovereign right and propriety to the fishery on the coasts of his three kingdoms,” would not any longer permit the subjects of the United Provinces to encroach on his rights, which were recognised by all other princes and states. The condition of affairs, he said, had been brought to extremities by the extravagant discourses of one of their politicians and the violent conduct of the commanders of their ships.[360] Sweeping aside the treaties and the claim to immemorial possession, and using much the same language as the king had done as to the hardihood of a young republic flouting the sovereign rights of princes, he ended a long harangue by declaring that if there was any further delay in dealing with the fishery question, England would take measures to provide for her rights by force of arms, “for such,” he said, “was the demand of the people, the advice of the Council, and the resolution of the king.”
But all those strong speeches and brave words came to nothing. The leaders in the States knew the character and difficulties of James, and felt that the warlike threats of a monarch whose greatest desire was that he should be known as Rex pacificus[361] were not likely to be carried to the extremity of the sword. A little more delay brought about a change in the English attitude. In the Privy Council there were signs of wavering and evident hesitation to recommend extreme measures against an allied and Protestant state. In the political condition of Europe—troubles in Bohemia, the King of Spain threatening the overthrow of Venice, &c.—it was urged that harsh measures might drive the Dutch to have recourse to France, which supported Barnevelt, the king’s enemy. Above all, it was feared that the Protestants throughout the world would be unable to understand how the king could attack the Dutch at that critical time over so small a matter. On the whole, “for the sake of the peace of Christendom,” it might be better to “continue” the question to another time, and thus avoid an immediate rupture. The faltering in the Council coincided with a humbler tone on the part of the Dutch ambassadors. They strove to convince James that it was by no means the desire of the States to refuse to treat of the fishery, or absolutely to deny his right to regulate it on his own coasts. All they asked was that the matter might be delayed a little owing to the religious troubles which were raging in the Netherlands, and because as all the provinces were concerned and the records and treaties would have to be searched, it would take some time before they would be in a position to deal with it in an equitable way. The States-General used language equally conciliatory to Sir Dudley Carleton, and promised to send other ambassadors later, fully empowered to treat of the herring fishery and the trade in cloth. James was appeased and agreed to the delay, but he told the ambassadors that unless the States gave an undertaking in writing to send commissioners sufficiently authorised to settle the matter before a year had expired, he would take it as “a plain and perpetual declining of the treaty.”[362]
Thus James was again baffled in his endeavour to force the United Provinces to acknowledge his rights in the fishery. But scarcely had the arrangement been completed when he brought forward another proposal. Pending the conclusion of the final treaty, he wished the States to issue a provisional edict forbidding their fishermen from approaching within fourteen miles of the British coasts, to which they had been coming closer and closer in recent years, a proceeding which was the principal cause of the complaints from Scotland.[363] The distance mentioned was that embodied in the Draft Treaty of Union in 1604, and was supposed to be equivalent to a “land-kenning.”[364] Carleton, however, thought the States would not immediately agree to this,—their cumbersome system of government would alone cause great delay,—and he counselled the king “to begin with the fishers themselves,” by publishing a proclamation fixing the distance at which they would be permitted to fish.[365] But the States were disposed to go so far to meet the wishes of the king. They objected, indeed, that fourteen miles was a greater distance than that at which a person could see the coast from the sea, and thus exceeded a “land-kenning” or the range of vision, but they promised to issue orders to their fishermen to keep so far from the land as to be out of sight of people on the shore, and to strongly prohibit them from going nearer.[366]
The business of the herring fishery having thus been shelved, the negotiators took up the other matters in dispute. The East Indian question was settled by a treaty,[367] but the differences as to the whale fishery were not so easily adjusted. The English case was founded on the contention that Spitzbergen belonged to King James, on their prior fishing in those seas, and on the depredations committed by the Dutch in 1618 on English vessels. The Dutch claimed a right to the fishery from their discovery of the island, and they proposed three alternatives: (1) that both nations should fish at Spitzbergen with an equal number of ships, the bays to be divided by drawing lots;[368] (2) that fishing should be carried on by both parties everywhere with an equal number of ships of equal size, disputes to be settled by regulations; (3) that the island should be divided by an imaginary line into two equal parts, the Dutch to have one part and the English the other. The English declined all these proposals, and James informed the ambassadors that even if the island had been discovered by their nation the English had the right to the fishery because they were the first to practise it,—an argument which, it may be remarked, if applied to the herring fishery, would have been unfortunate for the king’s claim to it. But while maintaining his abstract right to the sea at Spitzbergen, James gave way on the immediately practical point, consenting that the Dutch should continue their fishery at the island for three years longer.[369]
We have mentioned that late in 1618 James caused the Scottish Council to send a vessel (the Restore) to the Shetlands to demand the assize-herrings from the Dutchmen, and that it arrived on the scene too late. Next year he resolved to be in time, and while the Dutch ambassadors were still in London he wrote to the Council saying it was necessary “for divers imperative reasons” that the duties should still be craved, and requesting them to send a ship that summer with some discreet person on board, “who in fair terms may require our duties of the said Hollanders and report their answer”; and the Council were desired to take special care that the business should not fail through negligence.[370] At a meeting of the Council at Holyrood House on 29th June, arrangements were made to carry out the king’s wishes. Mr John Fenton was appointed “his Majesty’s commissioner” for “craving his Majesty’s rent of assize and teind from the Hollanders and other strangers fishing in his Majesty’s seas,” and a Mr James Brown was instructed to accompany him as notary.[371] Fenton’s commission, under the great seal, commanded him to repair to the north seas, and there “in his Majesty’s name to ask, crave, receive, intromit with, and uplift from those of Holland, Zealand, Hamburg, Embden, and Rostock, and from all other strangers following the trade of fishing in his Majesty’s said seas this present year, his Majesty’s rent of assize and teind of the whole fishes taken, or to be taken by them in his Majesty’s said seas and waters this present year.” The tribute levied by John Brown, in 1616, on behalf of the Duke of Lennox, amounted to only one angel (about ten shillings) or a barrel of herrings from each buss, or twelve cod from a line-boat. But that claimed by the king was now considerably greater. The “assize” was to be computed at ten thousand herrings (which would be fully ten barrels) for every buss that fished for herrings, and a last of white fish for every buss that fished for white fish, that is to say, cod and ling; or, if the fishermen preferred to pay in money, they were to pay at the rate of £6, 13s. 4d. Scots for every thousand of the assize-herrings, and at the rate of £50 Scots for every last of the assize white fish; and the same equivalents were to be asked for each thousand “teind herrings,” and for each last of “teind white fish,”—a new duty now first mentioned, “teinds” being the Scottish term for ecclesiastical tithes. The value of the assize-herrings to be levied from each buss was thus about £5, 11s. 1d. sterling, and the value of the assize white fish from each dogger about £4, 3s. 4d. On the basis of two thousand Dutch herring vessels the total duty would amount to the respectable sum of about £11,000, while the dogger-boats would yield some £1500 additional. On receiving payment Fenton was to give an “aquittance and discharge,” which would be as valid and sufficient as if given by his Majesty’s comptrollers or ordinary receivers of his Majesty’s rents.[372]
In the particular instructions given to Fenton,[373] and which, there are reasons for thinking, were essentially the same as those previously given to Brown, he was enjoined to proceed to the north seas in H.M.S. Charles, under the command of Captain David Murray, and in the first place to inquire the names of the admirals and vice-admirals of the Dutch fleet, the names of their ships, to what towns and provinces they belonged, and also the number of the convoys and busses sent out to the fishing by every town, province, and state. This having been done, he was “in fair and gentle terms and with modesty and discretion” to demand from the admirals or vice-admirals, and from two or three of the convoyers and busses of each state, “his Majesty’s rent of assize and teind” as specified. He was not to dispute with them as to the amount of the duty. If they offered a smaller amount, “although it were only an angel for every buss,” he was to accept it, but not less; so also if he were offered fish instead of money. It was left to his discretion to make a differential duty according to the size of the busses, if that point was raised, and also to compound with the admiral for the whole of the busses of a town, state, or province. If payment of the duties were refused, Fenton was merely “to take instruments upon the said refusal without further contestation,” and to report the result. He was also to inform the Dutch of the oppressions made by those landing from the fleet at Shetland, and to demand redress and a promise that such conduct would not be repeated.[374]
A short time before this the Council, for the sake of economy, had ordered the Charles to be disfurnished, but now, in view of her important mission, they judged it to be “no ways meet or expedient” that she should be made altogether empty of her furniture and munitions of war, so that she might be able to resist any sudden or secret onslaught by the Hollanders or others. They therefore instructed that there should be left on board “twa of the smallest pecceis of hir ordinance and ten muscattis, with some few bullets ansuerable thairto, and a litill quantitie of poulder, yf ony be within the schip.”[375] Orders were given for the manning of the vessel, which was to be ready to sail before 1st July. It was with this scrimp and penurious armament, and in this attorney-like manner, that James prepared to obtain an acknowledgment from the Dutch of his rights in his seas, whereas Charles I., as we shall see, employed his great ship-money fleet for the same purpose. But apparently the king would be almost as satisfied with a refusal as with the payment of the tribute, either of which he would be able to make use of in the negotiations for the “final treaty” on which he had set his heart. It is therefore unfortunate that we can discover no further information as to the expedition of Fenton. That the Charles left on its mission we know,[376] but the records are silent as to the result. It may perhaps be inferred from this circumstance alone that the Charles was no more successful than the Restore in the year before.
Early in 1620 the States, which had taken no steps to redeem their promise to send another embassy to deal with the question of the herring fishery, were reminded of it, and Carleton urged this course as a point both of policy and honour. But they were as reluctant as ever to handle the matter. The increased duty which Fenton was commanded to ask—of which very probably they had heard—was not likely to make them more willing, and they continued to procrastinate, alleging the unsettled state of their affairs at home and the troubles in Bohemia and Germany as reasons for further delay. Some prominent men in Holland indeed began now to assume a firmer tone. Hints were thrown out to the British ambassador that there was really little difference between forcing on the matter and declaring war, since freedom of fishing was of fundamental importance to the people of the United Provinces. The Prince of Orange gave it as his opinion that the seaport towns of Holland would never be brought to consent to “any innovation” in the herring fishery, even if it were urged at the cannon’s mouth. Still more significant was the action of the States in now voting large additional sums for the equipment of a greater number of men-of-war to guard the herring-busses from molestation.[377]
To all appearance, therefore, the Dutch had now stiffened their backs and were prepared to fight for their liberty to fish on the British coasts, as they had done at Spitzbergen, instead of sending commissioners to London to haggle over it. But their uncompromising attitude was soon modified owing to certain political events, which taught them the need of caution in flouting the wishes of the King of England. In the autumn of 1619, Frederick, the Elector Palatine, who had married Elizabeth, the daughter of James, was offered and accepted the crown of Bohemia under circumstances pregnant with troubles. In consequence of this, Spain, in alliance with the Emperor, attacked and took possession of the Palatinate. The strengthening of the Spanish power in Germany was by itself inimical to the United Provinces, and the sense of danger was intensified when it was found that the occupation of the Lower Palatinate was part of a plan for marching the Catholic troops overland from Lombardy to the Spanish Netherlands. In view of an impending conflict with their hereditary enemies, it became a matter of grave anxiety to the States to retain the goodwill of England. Accordingly, after many discussions, the States-General at the end of 1620 appointed another embassy to go to London; but it was rather with the view of meeting the political dangers with which they were threatened than of dealing effectually with the subjects in dispute. The ambassadors’ official instructions, which were most carefully considered, referred in general terms to the affairs of Germany and the approaching expiry of the truce with Spain, and more particularly to the cloth trade, the coinage, and the East Indies. On the all-important subject of the herring fishery they were mute. In their private instructions the envoys were enjoined to avoid all discussion about it; if pressed, they were to assure the king that the States would be glad to consider it “later”; and in any discussion that did arise, they were to bear in mind that they always had been in undisturbed possession of it, and that the profit they derived from it had been greatly exaggerated and was far less than the king supposed—so little indeed that they would be quite unable to carry it on if any “innovation” were made.[378]
The embassy of six persons arrived in London towards the end of January 1621. At their first audience with the king they spoke only of the affairs in Germany and the seizure of the Palatinate, desiring it to be understood that this was the principal matter to be considered; and when they met the Council they raised the question of a warlike alliance between the two countries against Spain. But the herring fishery had not been forgotten by the English, and when the subject was mooted the Dutch begged that it might be allowed to rest for a time, pleading in particular that the expiry of the truce with Spain would leave them face to face with a powerful foe. The Council reminded them of the promise given, and James bluntly expressed the hope that they had come on this occasion fully empowered to treat of the business of the fishery, which had been suspended at the conferences two years before. While disclaiming any wish to diminish their legitimate profits from the fishery, he warned them that the question touched his honour and sovereignty so closely that it could not be always left undecided and in dispute; and that he would only agree to further delay when he was informed at what time it would suit the States to conclude an agreement both about the fishing on the coasts of Great Britain and at “Greenland.”[379] After many conferences and much negotiation it was arranged that another embassy should be sent by the States before the lapse of a year, and the Dutch commissioners quitted London on 16th April.
In accordance with this understanding, still another embassy came to London, in November 1621. On this occasion the ambassadors were provided with full powers to settle the East Indian disputes, and with less ample authority to deal with the Spitzbergen fishery question. But, astonishing as it appears, they were again sent without any power to negotiate any treaty about the herring fishery. That the States, after so many delays and evasions, in the face of so many protests from the king, should again break their promise, shows both the great importance they attached to the matter and their belief that James would not force on a quarrel about it. In their secret instructions the old injunctions were repeated. They were to beg that as a year had not yet elapsed a little further delay might be granted; laying stress on the danger to the Protestant cause, in view of the relations with Spain, if anything were done to lessen the sea-power of the Netherlands, which depended so much on their fisheries. At this time the East Indian question had become important and pressing in England, and the early conferences were confined to it. But later the king broached the subject of the herring-fishing; and after listening to the ambassadors for a while, he peevishly asked them to make an end of their long harangue, called them leeches and blood-suckers, who sucked the blood from his subjects and tried to ruin him,[380] and then treated them to the same sort of disquisition as on former occasions. To the king’s railing and reproaches the ambassadors made such answer as they could, and the upshot was that they were allowed to go on with the conferences on the East Indian question. This embassy, at the head of which was François Van Aerssen, Lord of Sommelsdijck, remained in England until the spring of 1623, engaged in negotiations, often interrupted, on political affairs, and on the East Indian and Greenland fishery questions. James did not harass them further about the herring fishery. At the farewell audience he spoke of it in a good-natured way. He must, he said, resume his old song, veterem cantilenam, but not at that time. But whenever the condition of the Netherlands was favourable, he would, he said, be glad to resume the negotiations.[381]
During their long stay in England the ambassadors had an opportunity of learning what was thought about the fishery question. On their return to the Netherlands they earnestly counselled the States-General to come to some agreement with England both on the herring fishery on the British coasts and the whale-fishing at Spitzbergen. These matters, they said, were close to the king’s heart, and many people whom they had met had shown much irritation in speaking of them, and had even advised forcible measures against the Dutch. By this time the Republic was again at war with Spain, while Prince Charles and Buckingham had gone to Madrid to woo the Infanta: it would be prudent to do all that could reasonably be done to cultivate good relations with England. The States therefore wrote to Sir Noel Caron telling him they had resolved to take the fishery matter into serious consideration, and their efforts were directed to the removal of all cause of complaint in Scotland. Two edicts had already been issued—one, in 1618, prohibiting any wrong from being committed on Scottish subjects; the other, in 1620, ordering their fishermen to refrain from taking herrings within the rocks and reefs of Shetland, Ireland, and Norway, on the ground that such herrings were inferior in quality and unfit for curing.[382] The technical reason given in the latter for keeping away from the coast had some foundation, but the real motive was probably to redeem the pledge which the States had given in the year before ([see p. 193]). What the States now did was to renew the edict of 1618, and, after a conference between the ambassadors who had returned from England and the College or Board of Fisheries, to issue orders that the herring-busses were not to go too near the coast of Scotland, which had, indeed, been agreed upon some years earlier, so as to avoid causing inconvenience to the native fishermen.[383]
There is evidence that the warning which the ambassadors gave to the States-General as to the feeling in England was well founded, and there occurred at this time, both in England and Scotland, a revival of proposals aimed against the Hollanders. The Scottish burghs complained of the “heavie hurt” they sustained owing to the English and the “Fleymings,” who had lately taken up the “trade of fishing” in the North and West Isles, by which was probably meant the curing of herrings and other fish. The Council accordingly ordained that the Islesmen should “suffer no strangers to come within their bounds to the fishing,” and that none of the country people should sell fish to them; and they issued a proclamation forbidding “all and sundry strangers” to “slay or take any fish within the Isles, lochs and bays of the kingdom, and that they buy no fish but salted and barrelled, and at free burghs.”[384]
In England fresh attempts were made to establish a great national herring fishery which might rival that of the Dutch. Within a month of the departure of the ambassadors, Lord George Carew, Master of the Ordnance, was busy with a project. Along with Lord Hervey and Sir William Monson—who was perhaps the prime mover in the matter—he had several conferences with “skilful fishermen,” and then he sent for the city merchants to consider how the scheme might be floated. To them he proposed that six busses and four doggers should be bought or built at a cost not exceeding £10,000, explaining, after the usual manner, how the return from the first year’s fishing would repay the whole of that sum and encourage “all men” to adventure. The city merchants, one of whom was Sir William Cockaine, were loud in their praises of the scheme,—“it was the best work for the public and the most profitable that the wit of man could imagine,”—but as for the money required, they were afraid that it could not be raised. Then the promoters asked the Lord Mayor to propound the plan to the Court of Aldermen. But the Lord Mayor curtly replied that the Aldermen were engaged in other adventures, and were “utterly unwilling” to enter into the project of building busses, while the Merchant Companies were too much in debt to undertake it. On a second appeal being made to him, he said the Court of Aldermen “absolutely declined” to entertain either the general project for fishing-busses or the lesser scheme of building six busses and four doggers. They would have nothing to do with it;[385] and this scheme was therefore nipped in the bud.
Fresh proposals were now brought forward by others, based on Government support, and a plan was propounded similar to the old one of Hitchcock and Dee in the reign of Elizabeth, but to be carried out under an Act of Parliament. Each city, county, and seaport town was to be encouraged to equip fishing-busses at their common charge and for their common benefit, with power to employ their idle inhabitants in manning them. For the security of the fishing fleet the king was to provide twenty ships of war, five of which were to belong to the royal navy, and they were to continue at sea from the beginning of April till the end of September. To meet the cost of this guard the king was to receive the tenth fish taken both by English and foreign fishermen, the promoters thinking that the latter would be quite willing to be taxed when the tax was demanded by an “Act of the King and Kingdom,” and when they knew they would be protected by a squadron of men-of-war.[386] It was a pretty scheme, well-intentioned, but innocent of information as to the actual state of affairs.
Scarcely anything more was heard about the herring fishery or the taxation of Dutch fishermen during the brief remainder of James’s reign. Another embassy came from the Netherlands in 1624, but it was to conclude a defensive alliance against Spain, and in the shadow of this new alliance the Dutch fishermen quietly reaped the harvest of the sea without fear of English interference. James’s policy of the assize-herring had thus completely failed. All his efforts to induce or to force the Netherlands’ fishermen to acknowledge his right were baffled by the superior diplomacy of the States,—their “artificial delays, pretences, shifts, dilatory addresses, and evasive answers.” The only immediately practical result of the king’s policy was that the herring-busses kept for a time farther from the coast of Scotland. But a new weapon had been forged for the contest with the United Provinces for supremacy at sea, and one which was to be used by his successors with much more skill, if with little greater ultimate success.
Of one symbol of this sovereignty of the sea comparatively little was heard during James’s reign—namely, the salute or homage to his flag. This traditional custom of the narrow seas, while maintained on important occasions, was not enforced with the vigour and arrogance which characterised it later, perhaps less rigorously than under the Great Queen. “I myself remember,” said Raleigh a few years before his execution, “when one ship of her Majesty’s would have made forty Hollanders strike sail and come to anchor. They did not then dispute de mari libero, but readily acknowledged the English to be domini mavis Britannici.”[387] Sir William Monson, too, who was Admiral of the Narrow Seas in the earlier part of James’s reign, tells us that the Hollanders were very “stubborn” about striking their top-sails and performing the duty due to the king’s prerogative, and that he earned their lasting ill-will by compelling them to do it.[388]
But the English commanders were punctilious in enforcing the salute in the narrow seas on state occasions. A notable instance occurred in 1603, when King Henry IV. of France sent over the famous Sieur de Rosny, afterwards Duke of Sully, to congratulate James on his accession to the throne of England. With a numerous retinue he went on board an English man-of-war at Calais, which then made sail for Dover accompanied by a French warship under the command of M. de Vic, the Vice-Admiral of France. The English captain observed with displeasure that the French vessel bore the arms of France at his top, “contrary to the custom of the narrow seas”; but on account of the important personage on board and the nature of his mission, he restrained himself from challenging the “indignity” until they approached Dover Road. Unable to brook the affront any longer, he fired at the French ship, and so “constrained her to strike her flag.” The shot did no harm, but M. de Vic at once turned round his vessel and went back to France in high dudgeon. Cecil thought it necessary to send a despatch to the English ambassador at Paris explaining the circumstances, and while saying that the English captain “rashly discharged” his gun, he thought that if the matter was “well looked into, and the former customs observed, there would be reason found for us to stand upon.”[389]
A somewhat similar incident happened two years later, when Sir William Monson was bringing over an ambassador of the Emperor from Calais to Dover. In Dover Road he found a number of States’ men-of-war, and their admiral, as Monson drew near, struck his flag thrice, but then “advanced” it again and kept it flying in the presence of the king’s ship. Monson believed the Dutch admiral had come in on purpose to put this “affront” on him, so that the ambassador, as well as the Spaniards then at Dover, might “spread it abroad throughout all Europe” that the Dutch, “by their wearing their flags, might be imputed kings of the sea as well as his Majesty,” and so lessen the esteem of the king’s prerogative in the narrow seas. Instead of firing upon the Dutch ship, he sent to invite the admiral to dinner, and to tell him that he must take in his flag. To this request the admiral demurred, saying that he had struck it thrice, and that no former admirals of the narrow seas had required more at his hands. Monson rejoined that “times were altered”; that when the mere striking of the flag as he had done was sufficient, England and Holland were both at war with Spain and it was tolerated; but now, since the war was ended so far as England was concerned, his Majesty required “such rights and duties as have formerly belonged to his progenitors.” On the Dutch admiral still refusing, Monson threatened to weigh anchor and come near him, and that the force of their ships should determine the question; “for,” said the English admiral, “rather than I would suffer his flag to be worn in view of so many nations as were to behold it, I resolved to bury myself in the sea.” The flag was then struck, and the Dutch ships stood out to sea. Monson tells us that he was congratulated by a Spanish general who had been watching the proceedings, who said that if the Hollanders had worn their flag times had been strangely altered in England, since his old master King Philip II. was shot at by the Lord Admiral of England for wearing his flag in the narrow seas when he came to marry Queen Mary.[390]
Sometimes, however, the zeal of the naval officers led them too far in their resolution to compel the salute. Thus in 1613, when the Count of Gondomar, the Spanish ambassador, was returning to England accompanied by two galleons, an English man-of-war forced the Spanish ships to take in their flags off Stokes Bay. The ambassador complained to the Lord Admiral (the Earl of Nottingham), who decided that the captain had exceeded his authority, for the Spaniards were not bound to strike their flag unless to the admiral of the narrow seas, and the captain was neither admiral of the narrow seas nor employed under his commission. The rules or etiquette regarding this ceremony were indeed somewhat complicated, occasionally changed, and not always well understood, and as a good deal will be heard of the striking of the flag in the following chapters, it may be well to say something here about the practice. It appears that it was customary from a remote period for merchant vessels to lower their sails on meeting a ship of war in seas under the dominion of the state to which the latter belonged,[391] but the ceremony only attained to international notoriety in connection with the claims of England to the sovereignty of the narrow seas. The practice varied at different times. Generally speaking, by the custom of the narrow seas as interpreted in this country, any foreign man-of-war meeting with an English man-of-war in those seas had to take in her flag and strike her top-sails as soon as she came within sight or within range of the English guns, and she had to keep in the flag until she had passed out of range. A merchant vessel had to strike in the same way. Further, no vessel in the narrow seas was to pass to windward of an English ship of war, but must “come by the lee”; the inferior had to make way for the superior.[392] In an English port or road no foreign ship or English merchant vessel could wear her flag in the presence of a king’s ship. This custom was also sometimes enforced in foreign ports and roads, but usually only when out of range of forts on shore. If a foreign vessel, whether man-of-war or merchant ship, did not thus “do her duty” or “perform the homage of the sea,” the English ship of war might hail her or send a boat to command her to strike. Or they might at once, without any parley, fire a shot across her bows, and after an interval another, also across her bows or over her poop, and if this was ineffective, then a third between her masts or at her flag. If the foreigner still refused to strike, a broadside was usually poured in, and the vessel might be carried into port and the offender punished. In the reign of Charles II., Spaniards, Dunkirkers, Frenchmen, and other foreigners, were not infrequently brought before the courts and fined for refusing to strike. If a merchant vessel refused to strike until she was shot at, she was compelled to pay to the king’s ship twice the value of the gunpowder and shot expended.
In England the custom, no doubt, originated in the Channel, probably in the time of the early Angevin kings, when the opposite coasts were under the same rule; and it is most probable, as formerly said, that it arose in connection with the exercise of jurisdiction over pirates and for securing peaceful commerce. In early times the utmost lawlessness prevailed on the sea: it would be a common duty of the king’s ships to satisfy themselves as to the character of the vessels they encountered, and the lowering of the sails and the coming under the lee, for “visit and search,” might well be a relic of a duty enforced for that purpose. With regard to ships of war, the ceremony appears to have been first confined to the Channel, and was held to be peculiarly a privilege of the admiral of the narrow seas. Thus, when Captain Plumleigh was appointed admiral of a squadron for service in Ireland in 1632, he was ordered by the Admiralty if he met “in any part of the narrow seas with the Convertive, in which Captain Pennington commands as admiral of those seas,” to take in his flag, and to “continue it furled whilst in sight of that ship, it being an ancient honour and privilege belonging only to that admiral to carry the flag in the maintop in those seas.”[393] Monson also tells us, in referring to the decision of the Lord High Admiral in Gondomar’s case, above alluded to, that every ship of the king’s serving under an admiral could not demand the striking of the flag when out of sight of the admiral; but the foreign ship, “be he admiral or no, is to strike his top-sail and hoist it again, to any one ship of the king’s that shall meet him.” He further states that any foreign ship or fleet arriving in an English port, or passing by a fort or castle, had to take in their flag three times, and advance it again, unless the English admiral’s ship was in the same harbour, in which case they were to keep it in so long as the admiral was present; “but if any other ship of his Majesty’s be there but the admiral’s, they are not bound to keep in their flag, but only to strike it thrice as aforesaid.” Monson added that he wished, in these later times (the reign of Charles I.), “that his Majesty’s ships would take more authority upon them than is due,” in order to curb the insolence of the French and the Hollander—a wish which, as we shall see, must have been fully gratified. It was against the Dutch that the striking of the flag was most thoroughly enforced, and one cannot but admire the patience and restraint they exhibited under great provocation. The French and Swedes avoided giving the salute as much as they could. As the century wore on, the English exaction on this point grew more outrageous. Foreign ships of war were forced to strike on their own coast even to our royal yachts, and the Hollanders were asked to strike not merely in the British seas, but wherever they were encountered. To the old sea-dogs all seas were “British” where their fleets were strongest.
CHAPTER VI.
CHARLES I. FISHERIES AND RESERVED WATERS.
It was during the reign of Charles, into whose hands the sceptre passed in the spring of 1625, that the English pretensions to the sovereignty of the sea attained their most extravagant proportions,—a circumstance which was owing in great measure to the condition of domestic affairs and the king’s assumption of personal government. James had been content to limit his assertion of sovereignty to the question of the rights of fishing and the preservation of the “King’s Chambers” from the hostile acts of belligerents. But Charles, while vigorously pursuing this policy so long as he was able, combined with it the most extreme claims to dominion on the neighbouring seas that had ever been put forward by an English king. The sovereign rights of jurisdiction over the “Sea of England” which were supposed to have been exercised by the early Plantagenets, were now roused from the slumber of centuries and revived in their most aggressive form. The King of England was to be lord of the surrounding seas, and to rule over them as a part of his territory. A beneficent and universal peace was to reign over the waters of the German Ocean and the Channel, unbroken by the sound of an angry shot. No other fleets or men-of-war—be they Spanish, or Dutch, or French—were to be allowed “to keep any guard” there, to offer any violence, to take prize or booty, or to search the merchant vessels of other nations. The blockade of the opposite coasts of the Continent by an enemy’s fleet, as that of Flanders by the Dutch or French, was to be interdicted, because those coasts were washed by the British seas and blockading was a warlike operation. On the other hand the king was to protect the commerce and navigation of his friends and allies. Foreign merchantmen might go on their way in security, undisturbed by fears of pirates or enemies, for “all men trading or sailing within those his Majesty’s seas do justly take themselves to be in pace Domini Regis,”—under the peace of our Lord the King. And as an external symbol and acknowledgment of this absolute dominion, foreign vessels were “to perform their duty and homage” on meeting his Majesty’s ships by striking their flag and lowering their top-sails. If they refused to do so, they were to be attacked and taken or sunk; the vessel was liable to forfeiture as “good prize,” and the offenders carried into port to be tried for their high contempt. Moreover—and it looks but a small thing by comparison,—no foreigners were to be permitted to fish in British waters without first receiving the king’s license so to do, and paying to him a tax in acknowledgment of the permission. In this way Charles hoped to restore the sovereignty of the King of England in the British seas—that “fairest flower of the imperial crown,” as he described it—to “its ancient style and lustre.”