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Title: 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
Author: Fulton, Thomas Wemyss
Language: English
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Internet Archive)



The Sovereignty of the Sea

[Illustration: _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_

  [Illustration]

  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 de
  Perre, and Jongestal--The attitude of Cromwell--Proposals for
  fusion abandoned--Cromwell’s twelve Articles--The sovereignty
  of the sea and the fishery put in the foreground--The twenty-seven
  Articles proposed by the Council of State--Claim to the
  fishery, the salute, the right of search, the exclusive guard of the
  British seas, &c.--The strong objections of the Dutch--Cromwell
  acts as spokesman of the Council--Discussion on the flag and the
  herring fishery--The negotiations come to a standstill--The Dutch
  ambassadors ask for their passports--Cromwell becomes Lord
  Protector--Negotiations continued--Dutch proposals regarding
  the salute--Cromwell withdraws the fishery article and the
  declaration respecting the sovereignty of the sea--The terms
  British Seas and Narrow Seas--Dutch propose to strike the flag all
  over the world--The ambassadors return to Holland--They come
  back again--Cromwell suddenly reopens the question as to the
  British seas--Conclusion of treaty of peace--Diplomatic success
  of the Dutch regarding the claim to the sovereignty of the sea--The
  article on the striking of the flag--Enforcing the salute--Complaints
  of 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.

  _A._ The Libel regarding Reyner Grimbald. De Superioritate Maris
  Angliæ et Jure officii Admirallatus in eodem                       741

  _B._ Abstract of Proceedings before the Auditors regarding the same
                                                                     744

  _C._ License for Fishing at the “Zowe” Bank in the Channel, 1615   749

  _D._ Proclamation of James I. relative to the King’s Chambers, 1st
  March 1604/1605                                                    750

  _E._ Declaration of the Jury of the Trinity House as to the Limits of
  the King’s Chambers, 4th March 1604/1605                           753

  _F._ Proclamation of James I. for the Restraint of Foreigners fishing
  on the British Coasts, 6th May 1609                                755

  _G._ Instructions by the Privy Council of Scotland for the Levying of
  the “Assize-herrings” from Foreign Fishermen                       757

  _H._ Proclamation of Charles I. as to preventing Abuses in the Narrow
  Seas and Ports, and claiming Sovereignty of the Sea                759

  _I._ Report of the Admiralty to Charles I. as to the Employment
  of the Ship-money Fleet in wafting and securing Foreign Merchants
  passing through His Majesty’s Seas, and in protecting Foreign
  Fishermen who accept the King’s License, 5th February 1635/1636    762

  _K._ Abstract of the Thirty-six Articles proposed by the Dutch to St
  John at The Hague, 1650, 1651                                      764

  _L._ Tromp’s Memorandum to the States of Holland as to the Custom of
  Striking the Flag to the English, 27th February/9th March 1651     770

  _M._ Copy of Originals of Letters between Tromp and Blake, after the
  encounter in the Straits of Dover, 1652                            771

  _N._ Concession to Bruges to fish in the British Seas, 1666        772

  _O._ Articles adopted by the Institut de Droit International at
  Paris, and by the International Law Association at London, with
  reference to the Territorial Waters                                774


  INDEX                                                              777



LIST OF ILLUSTRATIONS.


  FIG.                                                           PAGE

  THE “BRITISH SEAS,” ACCORDING TO SELDEN               _Frontispiece_

  1. EDWARD’S NOBLE                                                 37

  2. HITCHCOCK’S REPRESENTATION OF THE ENGLISH AND FLEMISH
  FISHERIES                                                         99

  3. CHART PREPARED BY THE TRINITY HOUSE, SHOWING THE
  BEARINGS OF THE KING’S CHAMBERS. FROM SELDEN                     121

  4. SHOWING THE KING’S CHAMBERS ON THE COAST OF ENGLAND           123

  5. FACSIMILE OF KEYMER’s SIGNATURE TO HIS ‘BOOK OF OBSERVATIONS’ 127

  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                                                           149

  7. FACSIMILE OF MINUTE OF THE DECLARATION OF THE DUTCH
  ENVOYS AS TO THE RANGE OF GUNS                                   156

  8. DUTCH WHALERS AT SPITZBERGEN. AFTER VAN DER MEULEN            182

  9. SHOWING THE LIMITS OF THE “RESERVED WATERS” CLAIMED
  BY SCOTLAND                                                      231

  10. DUTCH HERRING-BUSSES UNDER SAIL. AFTER VAN DER
  MEULEN                                                           297

  11. DUTCH HERRING-BUSSES HAULING THEIR NETS, WITH CONVOYING
  SHIP-OF-WAR. AFTER VAN DER MEULEN                                299

  12. FACSIMILE OF THE OFFICIAL ACCOUNT OF THE MONIES RECEIVED
  FROM THE DUTCH HERRING FISHERMEN FOR THE
  KING’S LICENSES                                                  310

  13. THE “SOVEREIGN OF THE SEAS.” AFTER VANDEVELDE                324

  14. FACSIMILE OF PART OF THE CHART, SHOWING WHERE THE
  “TWEE GEBROEDERS” WERE TAKEN. FROM ROBINSON,
  ADMIRALTY REPORTS                                                578

  15. THE BRISTOL CHANNEL                                          587

  16. SHOWING THE LIMITS RESERVED FOR FRENCH FISHERMEN IN
  GRANVILLE BAY                                                    613

  17. BAY OF FUNDY                                                 623

  18. BAY DES CHALEURS                                             625

  19. SHOWING THE SANDBANKS AT THE MOUTH OF THE EMS                635

  20. SHOWING THE LIMITS FOR THE ANGLO-DANISH FISHERY CONVENTION
  OF 1901                                                          648

  21. SHOWING THE TWO LIMITS IN DANISH WATERS. FROM
  ‘DANSK-FISKERITIDENDE’                                           654

  22. THE WHITE SEA, SHOWING THE LINE BETWEEN CAPE KANIN
  AND CAPE SVIATOI      656

  23. SHOWING THE LIMIT AT ROMSDAL AMT, NORWAY                     670

  24. THE VESTFJORD, LOFOTEN ISLANDS                               673

  25. THE VARANGERFJORD                                            675

  26. SHOWING THE THREE-MILE LIMIT AND A THIRTEEN-MILE
  LIMIT IN THE NORTH SEA                                           703

  27. SHOWING THE AREA OF THE SMALL-FISH GROUNDS, WHICH
  THE ENGLISH TRAWLERS DESIRED TO HAVE CLOSED FOR
  THE PRESERVATION OF IMMATURE FISH                                705

  28. CHART SHOWING THE FISHING-GROUNDS FREQUENTED BY
  BRITISH TRAWLERS. FROM REPORT OF THE BOARD OF
  AGRICULTURE AND FISHERIES FOR 1906                               712

  29. THE FIRTH OF CLYDE, SHOWING THE LINE OF CLOSURE AND
  THE ORDINARY THREE-MILE LIMIT                                    719

  30. THE MORAY FIRTH, SHOWING THE LINE OF CLOSURE                 723



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]

[Illustration: 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]

[Illustration: 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]

[Illustration: 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.”

[Illustration: 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]

[Illustration: 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]

[Illustration: 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.

[Illustration: 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.”

That a scheme so preposterous was seriously entertained and for a time
attempted to be realised showed the inherent incapacity of the king
for rational government. He was no more able to gauge his strength in
relation to foreign Powers than he was to foresee that the contest he
had entered into with his own subjects would end in rebellion and the
scaffold. It was ridiculous to suppose that other nations would tamely
surrender their sovereign rights in the seas off their own coasts and
ports, abandon the protection of their commerce and shipping and their
rights as belligerents, simply because the King of England wished
to be lord of the sea. Had Charles been able to give effect to his
selfish and ambitious scheme, he would soon have been confronted with
an overwhelming coalition of maritime Powers, to whom the free use of
the sea was as necessary as it was to England. As it happened, war was
averted by the dexterity of Richelieu and the prudence and patience of
the Dutch; and also, it must be added, by the vacillation of Charles
himself, who was always trying to arrange some new combination with
Continental Governments to carry out the only policy to which he was
true--the recovery of the Palatinate for his nephew.

It may be supposed that the splendour of the _rôle_ attributed to the
early kings of England as lords of the sea, would by itself appeal to
the narrow imagination of one so deeply imbued as Charles was with a
belief in the divine prerogative of kings; and the dominion of the
seas was claimed as peculiarly a prerogative of the crown. But there
were other more practical and less exalted inducements. The assumption
of the _rôle_ of the Plantagenet kings was intimately related to the
state of home affairs and the means taken for the equipment of a
fleet. Parliament having refused supply and been dissolved, recourse
was ultimately had to the famous ship-money writs, by which it was
possible to obtain the necessary ships independently of Parliament, as
had been done by the early kings. To declare that these measures were
indispensable for the maintenance of the sovereignty of the sea in its
ancient style and lustre was well adapted to lessen their unpopularity,
if anything could. It was a declaration “exactly calculated for the
meridian of England,”[394] for the English people in all ages have been
prone to maritime glory and willing and anxious to make sacrifices for
the sake of the navy, upon which their national safety depends.

It was in connection with the policy of the ship-money writs that the
old doctrine of the Plantagenets came again into being. In the writs
themselves the very words were copied that Edward III. had used in
1336 in his mandate to the admirals; but some years before they were
issued one may trace the growth of the idea. In the period from 1631 to
1633 there was much searching of records with the view of establishing
the king’s rights in his seas. Negotiations had been proceeding with
Scotland, described below, with reference to a great fishery scheme,
and the Scots had been very troublesome and persistent about their
“reserved waters,” which the scheme threatened, the “land-kenning,”
and the encroachments of the Dutch. They only agreed to give up their
exclusive claim to the “reserved waters” for the benefit of the fishery
association, provided that Charles would free the Scottish seas of
the Hollander busses. In the long series of papers respecting the
fishery project, mostly prepared by the indefatigable Secretary Coke,
the change referred to may be perceived. In those of 1629 and 1630
there is no suggestion of the sovereignty of the seas, but in 1631
instances become numerous. Coke claims the sea fishings as belonging
to the crown; he begins to speak of the king’s “undoubted right of
sovereignty in all the seas of his dominions,” and plainly says it will
be necessary to exclude foreign fishermen from the British seas once
the fishing society is a success. In the next year he goes further. He
begins a long and formal document--also on fisheries--in the following
words: “The greatnesse and glorie of this Kingdom of Great Britaine
consisteth not so much in the extent of his Majesty’s territories by
land, as in the souerantie and command of the seas. This command is
in peace over trade and fishing: and for warre in the power of his
Majesty’s Navie to incounter the sea-forces of anie foren prince.”
And he goes on to say that while Spain alone used to oppose it, it
was now opposed by France and the Low Countries.[395] Still more to
the point were the words of Charles himself. A few months after the
fishery negotiations with Scotland were concluded, he wrote to the
Clerk-Register in Edinburgh saying that, as the fishing business was
now completed, he was desirous that it should be known abroad by his
neighbours through some “public writing,” and asking him to search the
records of the kingdom for authentic evidence to show his rights to the
fishings, and to send such evidence to him.[396]

At this time also the English records were being subjected to search
and scrutiny with the same object, but for other reasons. The “homage”
of the flag was being hotly enforced in the Channel and disputed by
France. Pennington, the Admiral of the Narrow Seas, reported cases in
which the French demanded the salute from English merchant vessels, and
rumours that it was the intention of the French admirals to wrest the
regality of those seas from England on the ground that the Pope had
given it to France.[397] This news caused Viscount Dorchester--the Sir
Dudley Carleton who had represented King James at The Hague, now a peer
and Secretary of State--to write to Boswell, Clerk of the Privy Council
(soon also to be ambassador at The Hague) for some information, however
little, concerning the King’s admiralty in the narrow seas. Boswell
sent a few brief notes of little relevancy about the jurisdiction
of the admiral and the Cinque Ports; but he added the interesting
information that he believed Sir John Boroughs, the Keeper of the
Records in the Tower, was able to produce an “original” concerning
the first institution of “La Rool d’Oleron” by Edward I., in which
the sovereignty of the kings of England in those seas appeared. This,
said Boswell, was therefore before the kings of France could pretend
to any sovereignty there, having “neither right nor possession of any
part, or part of Britany, Normandy, or Aquitaine.”[398] This, then,
was the famous roll of 26 Edward I. now brought to light, or at least
into use in the sphere of practical affairs. The discovery of Boroughs
led Nicholas, the Secretary of the Admiralty, to draw up a note about
the roll, “by which,” he said, “it is apparent that in those tymes ye
soueraignty of those (Narrow) Seas was acknowledged by those princes
(of Denmark, Sweden, &c., as mentioned in the roll): and justly, though
no man can be said to have ye property of the sea, because a man
cannot say this water is myne which runs, yet it is manifest that ye
Kings of England have and had ye soueraignty and jurisdiction of those
seas; that is, power to give laws and redresse injuries done on the
same.”[399]

The germ of the new pretension of Charles to play the part of
Plantagenet on the adjoining seas appears to have been this disclosing
by Boroughs of the ancient roll. All the later writers on the English
side of the controversy about _mare clausum_ and _mare liberum_, as
Selden, Coke, Prynne, as well as Boroughs himself, laid great stress on
it.

It was, however, as we have already hinted, in connection with the
fisheries that Charles’s first actions were concerned. He earnestly
believed in the common opinion of the age that sea fisheries formed a
principal means of developing commerce and navigation and maintaining a
powerful navy, and early in his reign, before the new idea of maritime
sovereignty dawned upon his mind, he did what he could to promote
and foster them. The old laws for the preservation of the spawn and
brood of fish, which had fallen into disuse, were put into force;
proclamations appeared prohibiting wasteful fishing; a vigorous effort
was made to suppress the use of injurious appliances; the strict
observance of Lent was repeatedly enjoined. But what proved most
attractive was the notion which had haunted men’s minds since the time
of the Great Queen, and had always eluded realisation. Charles became
convinced that the formation of a grand national fishery association
would wrest from the Dutch their predominance in the fisheries, drive
their busses from our seas, and transfer to the English people the
herring-fishing, with all the blessings which flowed from it--commerce,
wealth, and maritime power. The last attempt which had been made in
this direction, in 1623, had, as we saw, signally failed, the Lord
Mayor and the opulent aldermen of London “absolutely refusing” to have
anything to do with it. The scheme was now, however, to be launched
by the king himself, who undertook to favour it with important
privileges and immunities, and intended at a suitable time to aid it by
prohibiting foreigners from fishing on the British coasts.

Shortly after Charles began to reign, the old proposals to tax the
Dutch were renewed. In 1626 a petition was presented to the House of
Commons praying that a duty of 10 per cent might be laid upon all
Dutch or foreign ships fishing in the narrow seas; with what result
the records are silent. Two years later the proposal got a step
further, for in 1628 a Bill was drafted to empower the king to levy
two shillings in the pound on all herrings or fish exported in foreign
vessels, and the tenth of the fish taken by foreigners in the British
seas, the revenue so obtained to be employed for the king’s use. The
latter suggestion looks almost satirical in view of the failure of
the many attempts of James to get revenue from that source, and in
the midst, too, of the squabbles then occurring between Charles and
the Parliament, which refused supplies and was abruptly prorogued;
especially as the House “humbly beseeched” him, “in recompense of the
great sums which your Commons have thus cheerfully granted,” “yearly
to provide and maintain a strong fleet of able ships upon the Narrow
Seas.”[400]

The original plan of the new fishery association was drawn up by
Secretary Coke and was submitted to a meeting held at Suffolk House on
29th November 1629. The two main points for consideration were: how
they should obtain command of the fishery and be able to supply both
themselves and foreign people, and how to find a “vent” for the fish
taken and encourage merchants to purchase and export them. With regard
to the first point, Coke said that to command and govern the whole
fishing so as to make it a foundation of wealth to the kingdom, “equal
to the Indies,” as it was then to the Hollanders, would require not
fewer than 1000 busses, the cost of which would exceed £800,000. This,
he admitted, would be a work of time, and he proposed, for a beginning,
that timber should be felled in England, Scotland, and Ireland so as
to be seasoned for the construction of 200 busses in the following
year--40 in Scotland, 40 in Ireland, and 120 in England. Meanwhile,
for the year beginning in January 1630, he recommended that ten or
twelve busses should be bought in Holland, six Dutchmen to serve in
each for the year; and that the necessary salt and timber for casks
for curing the herrings should be got at Dunkirk from the prizes taken
from the Dutch. As the cost of ten new busses built in England, fully
equipped, would amount to £8390, including the cost of maintenance for
four months, the plan suggested would be the best, and it was proposed
to raise the money required by the “contributions of such adventurers
as may be persuaded upon hope of the gains and by privileges from
his Majesty.” It was intended that the busses should fish along with
the Dutch on the east coast, beginning like them at Bressay Sound,
Shetland, on 23rd June, and the herrings were to be put ashore to be
repacked, after the Dutch method, at Aberdeen, Tynemouth, and Yarmouth.
Supplementary to the busses, it was proposed to have six “doggers” to
fish for cod and ling at Orkney and Shetland in the spring.

With respect to the second head, the prospect of obtaining markets for
the produce, Coke said that English fishermen did not catch above 2000
lasts of herrings in a year, of which not more than 1000 lasts were
consumed in England;[401] and he calculated that the ten busses would
catch another thousand lasts, which he thought might be mostly exported
to Prussia and along the German coast. The first step in carrying out
the scheme was to form a company to raise a capital of about £11,000 or
£12,000, and a committee was appointed for the purpose.[402]

Coke’s scheme, which, like all the others, was based upon a close
imitation of the Dutch system, met with great favour from the king
and the court. Further consideration, moreover, led the promoters
to believe that the success of the enterprise would be increased if
operations were also undertaken at the Lewes instead of being confined
to the east coast, and various schemes were propounded with this end in
view. The suggestion appears to have emanated from Captain John Mason,
and it was made at a time when the island was a bone of contention
between the royal burghs of Scotland and the Earl of Seaforth, who had
obtained from the king a charter to “erect” Stornoway into a royal
burgh.[403] The burghs strenuously resisted the confirmation of this
charter and refused to give effect to it, all the more since Seaforth
had settled at Stornoway a number of Dutch people who were engaged
in the fisheries there. From an interesting report by a Captain John
Dymes, who visited Lewis in 1630 at the request of certain members
of the Privy Council, and apparently in the interest of the proposed
fishery society, we learn that the Dutch had been fishing there with
great success. Their four busses, each with twenty-five nets and a crew
of sixteen men, caught 300 lasts of herrings in three months, which
were sold at Dantzic for 400 guilders or about £38 a last, which Dymes
calculated would total £11,400, showing, after charges had been met,
a gain for the three months’ work of £7500.[404] The Scottish burghs
protested against the introduction of the Hollanders, which they said
would ruin the whole trade and navigation of the kingdom and completely
destroy the native fisheries. They petitioned the Privy Council to
restrain strangers from resorting to the North and West Isles, pointing
out that from the numbers of the Hollanders, their numerous ships
and great commerce, they would draw the whole trade of the country
into their hands, as they had done everywhere they had gone; and in
a petition to the king they accused them of “great oppressions” in
the Isles and on the coasts of the kingdom, and declared that by a
“pretendit libertie obtenit of his father” they were “the over-throwes
of the haill fischeing of this cuntry.”[405]

Mr John Hay, the Town-Clerk of Edinburgh, was despatched to London to
the king, to ask that the country might be freed of the objectionable
Hollanders and the Seaforth charter withdrawn; and to declare that the
Scottish burghs would themselves undertake the whole of the fishings
at the Lewes and erect a burgh there. Secretary Coke, full of the
fishery scheme, took advantage of Hay’s presence to obtain from him a
detailed account of Lewis and its fisheries, and of the Dutch fishings
on the coast of Scotland, which, it was said, sometimes employed a
fleet of 3000 busses; and from the information acquired an “estimate
of the charge of a fishing to be established in the island of Lewes
in Scotland” was prepared. This document showed that ten Scottish
fisher-boats, of from twenty-five to thirty tons each, might be bought
for £1200, and other ten boats, of twelve to fourteen tons, for a
proportionately smaller sum. Each of the large boats was to be equipped
with 120 nets of twenty yards in length, and the smaller boats with
forty nets of the same dimensions; and it was calculated that with a
stock of £6743, 6s. 8d. a clear profit of £18,270 might be earned in
one year.

This alluring prospect was no doubt encouraging to Coke and his
friends; but he learned from Hay some further information which must
have been disquieting. He was told that the Scottish people would not
permit any foreigners to fish within twenty-eight miles of their coast,
or within the lochs, the fishings there being reserved for the natives;
that by the laws of Scotland any stranger found fishing within these
limits was liable to confiscation of goods and loss of life, citing
as an example the story of the barbarous treatment by James V. of the
Dutch fishermen who had transgressed the “reserved waters” by fishing
in the Firth of Forth.[406] This point about the reserved waters was
indeed the main difficulty which soon confronted the fishery scheme.
To be successful, the fishing must be carried on along the Scottish
coast and at the Isles, for it was there the great shoals of herrings
resorted, but the objections of the Scottish Parliament, Council, and
burghs had first to be overcome.[407]

The first important step was a declaration by the king of his
intentions. On 12th July he wrote to the Privy Council of Scotland,
laying before them his scheme for a great fishery association. With
the advice of his Privy Council in England, he said, he had maturely
considered that “als weill in thankfulnesse to Almighty God as for the
benefite of all our loving subjects we ought no longer to neglect that
great blessing offered unto us in the great abundance of fishe upon all
the coasts of these Yllands. To the end we may at lenth injoy with more
honnour these rights whiche properlie belong to our imperiall crowne
and ar vsurped by strangers, We have considered of a way whiche in
tyme by God’s favour may produce this good effect and also increasse
our navigatioun and trade. And becaus this worke concerneth equallie
all our three Kingdomes and must thairfoir be vndertakin and ordered
by commoun counsell and assistance,” he had taken the opportunity of a
meeting of the Scottish Parliament to send his “instructions” on the
subject by his Secretary for Scotland, Sir William Alexander.[408]

In his instructions the king, after a preamble reciting the abundance
of fish on our coasts, the benefit which was reaped by strangers, “to
the great disparagement and prejudice” of his loving subjects, declared
his “firm resolution” to set up a “commoun fishing to be a nurserie
of seamen and to increase the shipping and trade in all parts of his
dominions,” and added--what must have been unwelcome news to the
Scottish burghs and people--that as it was to be a “common benefit” to
all the three kingdoms, so it could not be “dividedly enjoyed” by any
one nation in particular. The Council were enjoined to take the matter
into serious consideration, and to give their advice and assistance in
bringing it to a successful issue; and as it was necessary to raise a
“great stock” from adventurers, who would not be drawn into the scheme
except by hope of great and immediate gains, an estimate of the outlays
and profits was submitted to the Council, showing that 200 busses would
earn a clear profit of £165,414 in a single year, after paying all
costs.[409]

Sir William Alexander was also requested to ascertain how many busses
and how much money might be contributed in Scotland, and he was to urge
the Council to confer on the subject with the nobility and gentry,
and especially with the burghs. Moreover, as it was not thought to
be feasible to manage the whole project by one common joint-stock,
the king advised that subsidiary companies should be formed in the
principal town or burgh of each province, to be related to one central
body or corporation. No foreigners were to be admitted as members of
the company, although they might be employed as servants. All the
adventurers, whether English, Irish, or Scottish, were to be allowed to
fish freely “in all places and at all times”; and the king signified
that as the Lewes was “the most proper seate for a continuall fishing
along the westerne coasts,” it was his resolve to take it from the Earl
of Seaforth into his own hands, as “adherent” to the crown, and to
erect one or more free burghs in the Isles. If difficulties arose in
the acceptance of the scheme, the Lords of Council were to be asked to
appoint commissioners to treat with those he would nominate to act on
behalf of England and Ireland.

The king’s proposals were brought before the Scottish Parliament on
29th July 1630, and remitted to a large committee to report upon
them.[410] They were ill-received in Scotland. The free burghs in
particular opposed the scheme with great energy. They had brought about
the withdrawal of the charter obtained by the Earl of Seaforth, and
were negotiating among themselves for the formation of a company to
carry on the fishing at the Lewes and establish a free burgh there.
But the charter of the Highland Earl was a small thing to the scheme
of the king. They saw in it an invasion of their special rights and
privileges in trading and fish-curing, which had been conferred on
them and confirmed by many Acts of Parliament, not merely at the Lewes
but throughout the country. The “reserved waters,” moreover, sacredly
preserved for the industry and sustenance of their own people, were to
be thrown open to Englishmen and Irish, whereby the nation would suffer
greatly.[411]

On 9th August a statement was drawn up by the Convention and circulated
to all the burghs, in which their opinion was asked as to whether any
association with England in the fishings was expedient; whether the
English should be suffered to “plant” or settle in any part of the
Isles; whether, if the burghs undertook the fishing themselves, they
should allow the nobility and gentry to “stock” with them, and if so
on what conditions; and if not, whether the burghs should undertake
it themselves by a company or by burgesses, and what sums might be
subscribed for an exclusive company. On the following day it was
complained in the Convention that, though the king had cancelled the
patent to the Earl of Seaforth, the “Flemings” still remained in the
Lewes; and the burghs thereupon decided that as the Privy Council had
appointed commissioners from each of the Estates of Parliament to treat
on the king’s proposals, their own commissioner, Mr John Hay, should be
empowered to deal with the king in order to have the “Flemings” removed
and the fishing “devolvit in thair hands”; to “stay” the proposed
association with the English, or the plantation of strangers at any
part of the kingdom where fishing was carried on; and to cause the
“Flemings” to forbear from fishing on the Scottish coasts, “or not to
cum neirer to the schoire of anie pairt of this kingdome than ane land
kenning of the said schoire.”

Meantime a smaller committee which had been appointed by Parliament,
no doubt under the inspiration of the opposition of the burghs,
reported against the association with England in the fishings. Such
a course, they said, would be “verie inconvenient to the estait; and
tuiching the land fishing, whilk consists in fishing within loches and
yles and twenty aucht myles frome the land, and whilk is proper to the
natives, and whairof they have been in continuall possessioun and neuer
interrupted thairin be the Hollanders,”--a statement inconsistent with
the frequent complaints made by the burghs in the reign of James. The
burghs, they said, were able and content to undertake the “said land
fishing” by themselves, without “communicating” therein with any other
nation; and as for the buss-fishing, to which the king’s proposals
specially referred, they stated that the season for it that year was
passed, and that as it was a matter of great importance, it required
time for consideration. The burghs reported to Parliament in the same
sense.[412]

Thus Charles, in endeavouring to carry out his laudable desire to
create a great national fishery to oust the Hollander from his seas,
had suddenly raised against him a Scottish claim of _mare clausum_,
which he found very provoking. Not only did the Scottish Parliament
declare that a great extent of the sea around Scotland pertained
exclusively to the natives so far as concerned fishing, but they
coupled this with the request that the king should exclude foreigners
from fishing within that area. It must be said that, apart altogether
from the unwritten law as to the “reserved” waters pertaining to
Scotland, the Scottish people had some ground of complaint against
the king for his sudden proposal to open up the whole of their seas
and lochs to the English; for it was well known that in the Draft
Treaty of Union which James had caused to be prepared in 1604, and
which would also have conferred important privileges on Scotland in
matters of trade, words had been inserted reserving to each nation the
fishings within all lochs, firths, and bays within land and up to a
distance of fourteen miles from the coast. This treaty was drawn up by
commissioners appointed by the respective Parliaments, the most active
of whom were Secretary Lord Cecil (afterwards Earl of Salisbury) and
the illustrious Sir Francis (afterwards Lord) Bacon on the English
side, and Lord President Fyvie and Sir Thomas Hamilton (later Earls of
Dunfermline and Haddington) on the part of the Scots. It was signed by
thirty-nine of the forty-four English and by twenty-eight of the thirty
Scottish commissioners; it was approved by the king and adopted by the
Scottish Parliament, and it was thus an instrument of high authority
with respect to the delimitation of the waters of exclusive fishing.
The clause in the treaty dealing with freedom of commerce contained
the reservation referred to, which was as follows: “Exceptand also and
reserveand to Scottishmen thair trade of fisheing within thair loches,
ffirthis, and bayis within land, and in the seas within fourtene mylis
of the costis of the realme of Scotland, wheir nather Englishmen nor
ony stranger or forinaris haue use to fishe, and soe reciprocally in
the point of fisheing on the behalfe of England.”

Unfortunately, the treaty was never ratified by the English Parliament,
and therefore did not come into force. But the objection of the English
members was not in the least degree founded upon the reservation of
fishing rights, but upon the nationalisation clauses, which caused them
to dread the influx of an army of “hungry Scots” into England, Scotsmen
being at the time very unpopular in London.[413]

The stipulation in the treaty of 1604 was now brought to mind in the
negotiations on Charles’s fishing scheme. These negotiations, which
were carried on for more than two years, were conducted on the part of
Scotland with an ingenuity and refinement of procrastination scarcely
surpassed by the Dutch in the previous reign.

After the report above mentioned, a large committee was appointed to
discuss the business with the English authorities, and to report to
the meeting of Parliament in November. Accordingly, on 3rd November
the committee submitted the report of their proceedings with the
English commissioners, which was signed by the Earl of Monteith, the
President of the Council. They understood, they said, that the general
fishing proposed by the king referred only to those fishings of which
the benefit was exclusively reaped by strangers (that is to say, to
deep-sea buss-fishing), and did not in any way touch the fishings which
were enjoyed by the natives of any of the three kingdoms, so that the
laws and freedom of every kingdom might be preserved, as indeed was
“contained in the said instructions.” It was therefore necessary, they
said, in the first place, that such fishings “in everie kingdom whiche
ar onely injoyed be the natives be made known,” and that it should be
clearly determined what those fishings were which were called “common
benefits” that could not be “dividedly enjoyed.” With their eyes
probably on the fate of the nationalisation clauses in the Draft Treaty
of 1604, they declared it to be desirable that Scottish adventurers in
the proposed association should be naturalised in England; and with
reference to the commodities brought back for exported fish, they said
it was necessary to inquire how the return for the fishes exported
out of each kingdom should be made to the kingdom in which they were
actually taken. As to founding a burgh in the Lewes, that, they said,
would be an infraction of the rights of the existing burghs.

The reply of the English commissioners was somewhat vague and general.
It was, however, made clear that the king’s intention was that every
member, or “brother,” of the company should be free to fish “in places
near and remote, where common fishing is, or may be, used by any of his
people,” this “mutual participation being the bond of union and sole
means to recover his Majesty’s right and power at sea, and to enrich
all his subjects, and those chiefly where the greatest fishings are.”
On the other points they said, in effect, that the king would do what
was best.

A letter from the king to the Parliament was also read, expressing his
desire that the business should be advanced, as it would be “a worke
of great consequence for the generall good of our whole kingdome, and
more particularlie for the benefite of that our ancient kingdome” by
the improvement of its trade and shipping. So anxious was Charles for
the success of his enterprise, that he added a postscript in his own
hand, in which he said: “This is a worke of so great good to both my
kingdomes that I have thought good by these few lynes of my owne hand
seriouslie to recommend it unto yow. The furthering or hindering of
whiche will ather oblige me or disoblige me more then anie one business
that hes happened in my tyme.” He also sent a letter to the burghs to
mollify them, saying that it was in no ways intended that they should
be wronged in their ancient privileges or benefits; and he requested
Parliament to appoint commissioners charged with absolute powers to
settle the matter with the English commissioners, so that there should
not be undue delay.[414]

The Parliament thereupon appointed commissioners, on 11th November
1630, to treat with those of England.[415] Nominally they were given
full powers to treat, but their instructions, dated 23rd December,
were so detailed and remarkable that it must have been obvious to
every one that rapid progress was not intended. Nothing was to be
done prejudicial or derogatory to the liberties and privileges of the
kingdom, the crown, or the laws of Scotland; special care was to be
taken that the natives of Scotland were to be preferred in the choice
of the best places for establishing “magazines” for the fishery, and
that the places appointed for the English should be such as would not
prejudice the “land fishing” of the Scotch; the Scottish members of the
association were to have the same privileges and immunities, with power
to erect magazines, in England and Ireland; English members who settled
in Scotland were to be debarred from fishing in the reserved waters, or
from buying fish from the natives, except for their own sustenance, as
well as from any trade or commerce, unless for the same purpose; they
were to be prohibited from importing or exporting commodities except
fishes taken by their own vessels, and they were to pay customs and
other duties for the fish they cured in Scotland and exported--and many
other conditions were laid down which showed how little the Parliament
had been moved by the personal appeal of the king.[416]

With respect to the fundamental question, the limits of the territorial
seas pertaining to Scotland, the demands of the Parliament went much
further than any previous claim. The old principle of division by the
mid-line, which was held by some lawyers in the reign of Elizabeth,
was now put forward. The commissioners were instructed to take care
that a clause was inserted in the treaty to make it clear, “that the
seas foreanent the coasts of this kingdome and about the Yles thairof
and all that is interjected betuix thame and that mid-lyne in the seas
whilk is equallie distant and divyding frome the opposite land, ar the
Scotish Seas properlie belonging to the crowne of Scotland, and that
the English hes no right nor libertie to fishe thairin, nor in no part
thairof, bot be vertew of the association and not otherwayes.” But
while these were the Scottish seas ideally regarded, English members
of the association were to be permitted to fish in them, except in
the waters which were reserved to the Scottish people in the Draft
Treaty of Union of 1604--namely, bays, firths, and lochs within land,
and a belt of fourteen miles along the coast. These waters were to be
strictly preserved for the native fishermen.[417]

The instructions which the burghs gave to their representative, Mr John
Hay, although less ample, were equally to the point. He was to agree
to the proposal for the establishment of an English settlement at the
Lewes, provided they did not fish in the reserved waters, and had no
magazines or settlements in any of the other West or North Isles, or
north of Buchan Ness or Cromarty, and not at Aberdeen if they wished
any south of Buchan Ness; and the burghs were also to have the right
to establish colonies at the Lewes. In “retribution,” as they said,
for these privileges to be granted to the English in Scotland, they
required the “liberty” of the pilchard-fishing in England and Ireland,
with equal privileges regarding it. The king was also to remove the
“Flemings” from the Isles, and to prohibit them and all other strangers
from fishing within a “land-kenning” (that is, within a distance at
which the land was visible from the sea), and power was to be conferred
upon the burghs, with the assistance of the Sheriffs and other officers
to prevent their fishing nearer. “Hamburgers, Bremeners,” and all
other strangers, were also to be removed furth of Shetland, Orkney,
Caithness, and other places.[418]

A week or two before the Scottish commissioners were selected, Charles
issued a commission appointing Lord Weston (High Treasurer of England),
the Earl of Arundel and Surrey (Earl Marshal), the Earl of Pembroke
(Lord Chamberlain), the Earl of Suffolk (Lord Warden of the Cinque
Ports), and eight others as commissioners on behalf of England and
Ireland.[419] His object, he said, was to establish a “common” fishing,
both to be a nursery of seamen and for the increase of navigation,
and “to make the store of fish of all kinds, being a necessary food
for the people on fish-days, to be had at reasonable prices, and the
overplus thereof to be a principal addition to the staple commodities
of our kingdom for the increase of trade.” In order that this common
fishing might be extended and freely exercised in “all places by his
subjects of each of the three kingdoms,” he appointed them “with full
power and authority to confer severally and jointly, and to consider,
treat, propose, determine and conclude what they concurrently found fit
and expedient for the ordering, establishing, and advancing of the said
common fishing.” Power was also given to them to call for any of the
records in the Tower or elsewhere which might bear upon their labours.

The commissioners from both countries met early in 1631. In March
the Privy Council of Scotland received a report from the Scottish
commissioners in London, stating that several meetings with the English
commissioners had been held, and that the extent of the waters proposed
to be reserved “was thought too much,” unless it could be shown that
“the intention was only to reserve so much without which the natives
could not subsist, and not to hinder the good public work,” and they
craved full and particular instructions on this point. The Privy
Council at once summoned the Lord Provost and Bailies of Edinburgh
before them to furnish the information required, but they replied that
it was a subject which concerned all the burghs, and that time must be
given to consult them. After some further delay the burghs submitted
an elaborate and interesting report to the Council on 21st April, in
which, after citing the clause in the Draft Treaty of Union, they
proceeded to define the bounds of the waters “without the whiche the
countrie can not subsist,” and “whiche trewlie is the bounds whairupon
if anie stranger sall resort this countrie sall suffer utter ruine.”
These bounds were as follows:--

 “Vpon the east side of Scotland, frome Sanct Tabsheid [St Abb’s Head]
in the shiredom of Beruick directlie north to the Reidhead in Angus
whiche comprehends the coast of the Merce, Lothiane, the Firth, Fyfe
and ane part of the coast of Angus, and 14 myles without the course
frome the said Sanct Tabsheid to the Reidhead. Frome the Reidhead
north north-east alongs the coast of Angus, Mernes, Mar and Buchan
to Buchannesse, northwards and be north to Dungisbeyheid [Duncansby
Head] in Caithnes, comprehending thairin the coast of Bamf and Murrey
upon the south side, Murrey firth and the coast of Rosse, Sutherland
and ane part of Caithnes vpon the north, and fourtene myles without
the course frome the said Buchannesse to the said Dungisbiehead,
and frome the same Dungsbie in Caithnes west alongs the coast of
Caithnes and Strathnauer to Farrayheid in Stranauer [Cape Wrath],
and fourteine myles aff the said coast, with fourtene myles round
about the yles of Orkney and Yetland. Frome the Farrayheid alongs the
coast of Stranauer to the head of Stoir of Assint [Stoir Head] and
14 myles aff the said coast, and frome the said heid of Stoir Assint
directlie west north-west to the eastmost point of the yle of the
Lewes, comprehending thairin the haill seas interjected betuixt the
said heid of Stoir of Assint and eastmost point of the said yle of
the Lewes, with all the yles and loches within the same, and 14 myles
without the course frome the said heid of the Stoir of Assint to the
said east point of the Lewes; frome the said eastmost point of the
Lewes south about the haill yles of the Lewes to the westmost part of
Barra, and 14 myles without the samine; frome the said westmost part
of Barra n-west, south, south-east to southmost part of the yle of Yla
[Islay], frome the said southmost part of yla south-east to the mull
of Kintyre, frome the said mull of Kintyre n-west, south-east, to the
mull of Gallouay: Whiche bounds frome the said heid of Stoir Assint
west north-west to the eastmost point of the Lewes and frome thence
south to Bara be Yla, and mull of Kintyre to the mull of Gallouay,
comprehends the haill west yles and loches within the samine with the
loches vpon the mayne of Stranauer, Tarbet, Lochaber, Kintyre, Argyle,
Renfrew, Cuninghame, Kyle, Carrick, Gallouay, Quhithorne; alongs the
coast of Gallouay eastward to Solloway [Solway] sands and 14 myles
aff the said coast. Quhilk bounds above designed being so necessar
both for the haill lieges living vpon the saids coasts and yles, as if
these sould be exhausted be strangers of fishes, they sould be depryved
of all benefite of living and so be tyme bring ane vtter desolatioun
vpon the land, as lykeways so necessar for ws of the borrowes [burghs]
as without the said fishing the most part of our inhabitants sould
be brought to extreem miserie. Quhairfoir we of the burrowes doe
humbelie beseeke your Lordships to recommend the bounds abone designed
to the saids commissioners in suche maner as they give not way that
strangers be permitted to fishe within the saids bounds vpon anie
conditioune.”[420]

       *       *       *       *       *

A glance at the accompanying chart, indicating the boundary of the
“reserved” waters as claimed by the burghs, will show how large an
extent of the neighbouring seas was considered to be necessary for the
subsistence of the people. Not only were all the great firths included,
and the waters of the Minch and within the Isles, but it will be
observed that the fourteen-mile limit around a very great part of the
coast was drawn, not from the shore, but from an ideal straight line
uniting the headlands.

When this report from the burghs was submitted to the Privy Council,
they professed to find it “to be of too large an extent”; and they
therefore, as they said, “out of their desire to his Majesty’s
contentment and for the advancement of the great work,” proceeded to
“retrench and restrict the universality of the exceptions” made by
the burghs. The true spirit of the Council was, however, shown by the
fact that their alternative scheme was practically the same. They
rearranged the description of the lines at the Orkneys and Shetlands
without diminishing the extent of the enclosed sea, and they carried
the boundary down the east instead of the west side of the Hebrides,
and so on to Islay. They thus reduced the area of the waters proposed
to be reserved by omitting only the strip of fourteen miles to the west
of the Hebrides. The Council declared that they had reserved an area
of fourteen miles off such coasts as were well peopled, and where the
inhabitants lived mostly by fishing, and could not possibly subsist
and pay their rents and duties without it. They also stated that if a
buss-fishing had been established in Scotland,[421] the fishing would
have been reserved for the use and benefit of the country people,
“seeing it cannot be qualified that ever any Hollanders or other
strangers fished in these waters.”

In transmitting the two schemes to the commissioners in London, on
31st April 1631, the Council observed that at first the burghs had
“stood very punctually” on the instructions at first issued to the
commissioners, saying there was no need to particularise the reserved
waters, since they had been included in the Act of Union, but that
they had been persuaded to abandon this attitude and condescend to
particulars. If this was not a stroke of Scotch humour, it would
indicate that the measurement of the fourteen miles mentioned in the
Draft Treaty was to be understood as expressed in the report of the
burghs.[422]

[Illustration: Fig. 9.--_Showing the limits of the “Reserved Waters”
claimed by Scotland._]

This kind of zeal for the “great work” on the part of the Scottish
Council and burghs was naturally displeasing to the king and the
English commissioners. Coke fumed at the obstacles raised by the
Scottish commissioners against the realisation of his pet scheme. They
disclaim not the name of association, he said, but they decline the
only way of establishing it; we propound a government, and they say
their laws are against it; we desire freedom to fish in all places
where, by his Majesty’s license, it may be lawfully granted to us, and
they reply by the “reserved waters” which “would leave no more scope
to the company than strangers now enjoy.” Nay, they even propound a
further limitation, and request that bounds may now be set to the
seas of England and Scotland; “which debates,” he adds, “tending to
division, we labour to avoid.” At this time the minds of English
statesmen had not yet become saturated with lofty ideas of the king’s
sovereign prerogative in his seas, and Coke did not then, as he did a
little later, make use of high arguments of that kind. But he believed
that the opposition of Scotland would be prejudicial to the scheme,
and that further negotiations would be vain; and he proposed that an
English company should be formed without waiting for the concurrence
of Scotland.[423] But Charles was more patient. In June he again sent
Sir William Alexander, the Secretary for Scotland, to Edinburgh, and
despatched a letter to the burghs assuring them that he would be
careful to preserve their privileges and liberties, and another to the
Privy Council in which he expressed his astonishment that they had
reserved so many places, and likewise “fyftene myles [_sic_] within
the sea distant frome everie shoarr, where it would seeme expedient
that these of the association for this generall fishing, as they have
libertie to land in any place, paying the ordinarie dewteis, sould
lykewayes be free to fish where ever they ar to passe.” He plainly told
the Council that while he was willing to reserve for the natives all
such fishings without which they could not well subsist, and which they
of themselves “have and doe fullie fishe,” he would not allow anything
to be reserved which might hinder the general work which was so
important for all the kingdoms; and he enjoined them to give their best
attention to everything that would conduce to the accomplishment of
his desire. In a later letter to the President of the Council, Charles
expressed his fears that if the places proposed were reserved the
great business of the fishing would be put in hazard.[424] On receipt
of the king’s letter, the Council, on 28th July, summoned before them
the representatives of the burghs, who on being asked if they were
yet resolved on their answer, said they were not; they were thereupon
requested to consider the matter and to report at the meeting on 21st
September.

The resolute attitude of the king was not without its effect. The
burghs now modified their demands, but they still declared that it was
necessary to reserve the “Firth of Lothian” within a line between St
Abb’s Head and Red Head; the Moray Firth within a line between Buchan
Ness and Duncansby Head; the Firth of Clyde between the Mulls of
Galloway and Cantyre, and also the waters within fourteen miles along
the coast between Red Head and Buchan Ness. They further desired that a
space of fourteen miles outside the boundary lines of the Firths should
be reserved, but on this point they stated their willingness to submit
themselves to the king.[425]

The modified proposals of the burghs were submitted to the Privy
Council on 22nd September by certain noblemen, gentry, and
commissioners of the burghs, and an additional reason for reserving
the fourteen miles along the coast between Red Head and Buchan Ness
was now brought forward. If this space were opened to buss-fishing, it
would, they said, ruin the salmon-fishings of the Dee, Don, Ythan,
and the two Esks, “to the great prejudice of the whole kingdom.” The
question of the reserved waters at the Isles and on the west coast
had not been dealt with by the burghs, and the Council asked them to
report on these. The burghs thereupon modified their original demands,
specifying certain places that should be reserved, where the fishings
had been continually carried on by Scottish fishermen and merchants,
who were able, they said, to undertake and fish the same “to the full,”
and within which no stranger had ever been admitted to fish. These
places were as follows: (1) all lochs on the mainland between Farryhead
(Cape Wrath) and the Kyle, together with Loch Hourn on the south side
of Kyle; (2) the east side of Lewes, Uist, Barra, and “Muggersland” (?
Mull), and the lochs of the same, together with the Broad Loch and the
“Bybleheid” on the north-east part of the Lewes; (3) “Lochusherd” (?
Loch Eishort) in Skye; (4) between the islands and the mainland, from
“Farayhead” to the north-east point of Lewis, and for fourteen miles
without the line between them it was “absolutely necessary,” for the
good of the fishings in the lochs above mentioned, that no buss-fishing
should be permitted. All the salmon-fishings were to be wholly reserved
for the natives, and the burghs expressed the wish that fourteen miles
around the Orkneys and Shetlands should also be reserved, but they
referred this to the king. The question of the remaining lochs on the
mainland between the Kyle and the Mull of Cantyre, and of the waters
on the “backside” of Lewis, Uist, Barra, “Muggersland,” and Skye,
except those previously mentioned, was to be “remitted” to the king’s
consideration.[426]

The Council forwarded these propositions to London, and the burghs
instructed their own commissioner in a like sense, but with an
important qualification as to the Hollanders fishing on the coast
of Scotland. The king was to be informed of the great oppressions
and wrongs suffered by his subjects from the encroachment of the
Dutch on the seas and coasts of the kingdom, at Shetland and Orkney,
and lately at the Lewes. If these encroachments were allowed to
continue, the burghs declared that the rich fishings would be made
quite unprofitable, and they appealed to the king “to free the seas
of Scotland and the Isles of the busses of the said Northlands
(Netherlands),” and of other strangers, from Hamburg and Bremen,
resorting to Orkney and Shetland. At the very least, they said, he
ought to free the seas of the Dutch busses or fishing-boats “for the
space of twenty-eight or fourteen miles, and to discharge them to have
any fishing near the coasts of the said mainland or isles.” If the
king would do this, the burghs promised to further to the utmost of
their power “his Majesty’s most royal work of fishing,” to supply the
proportional number of busses that might fall to their part, and to
consent that liberty should be granted to Englishmen and Irishmen to
fish in all the waters around Scotland, except the Firths of Lothian,
Moray, and Clyde, and those reserved for salmon-fishing; but they would
only agree to this on the condition stated and not otherwise. They
also asked that the buss-fishing should not be allowed at the Lewes,
that it should begin on the east coast on 24th June and the fishing at
the Isles on 1st September, and that they should receive equal liberty
to fish in the seas of England and Ireland for pilchards and white
fish.[427]

In the debates between the Scottish and English commissioners in
London, at most of which the king was present,[428] Coke exerted
himself to reconcile the differences that existed. He adroitly
pointed out that, as the complaints from Scotland showed, strangers
now possessed their fishings, and said they would be able to oust
them only by degrees and by making the most of the natural advantages
on the sea which both nations had. And while claiming that all the
fisheries in the British seas (and even in America) belonged to the
crown, and that there could not therefore be, strictly considered, any
right to “reserve” certain of them, still the king, by the undoubted
right of sovereignty he had in all his seas, had power to give license
of fishing within them, either to subjects or foreigners as he might
think fit, and by his royal prerogative alone he could establish the
proposed company “whereby all his subjects which are brethren thereof
may enjoy that fishing by right which strangers have by usurpation in
our seas.”[429] By this time the Scottish commissioners were becoming
reconciled to the proposal of forming the society on very much the
original plan, and their opposition, perhaps partly from the presence
of Charles at the conferences, was beginning to give way. They had been
told, too, in answer to some of their objections, that while it was
the king’s intention to maintain existing rights, all their liberties
depended wholly upon the king’s grace, and he had expressed his purpose
that his Council in both kingdoms should advise them in anything that
required further consideration. It was much to be desired, they were
told, that his Majesty’s clear intentions should prevail with them as
they had done with the English commissioners, not to question, but to
advance and settle so needful a work.[430]

Charles himself came forward to help them with an alternative plan
to that of the “reserved waters.” The ground upon which the claim
to the latter was based had gradually shifted. The initial argument
that the surrounding seas pertained to Scotland as an independent
kingdom--that they were the “seas of Scotland”--had been disposed of
by the declaration that the right to the sea and to its fisheries was
a prerogative of the crown; and it could not be denied that though
no union of the kingdoms had taken place, there certainly had been
union of the crowns. The question of the prerogative was a thorny one,
which the Scottish commissioners had to avoid; and the claim to the
reserved waters was now made solely on behalf of the poor inhabitants
of certain parts of the coast, who subsisted mainly by their fishing in
the sea, and would, it was said, be reduced to poverty and indigence
unless these waters were reserved for their exclusive use. To meet
this objection, Coke proposed a resolution at one of the meetings that
the king should be asked to lay down a regulation to guard against
interference with the poor fishermen at the places where the fishing
of the company would be carried on, and at the next meeting a draft in
the king’s handwriting, perhaps laid on the table by Charles himself,
was read as follows: “The English commissioners desire to take away
all showes of wordes that may show diffidence between the two nations,
and hauing heard that the Scots commissioners are to desire some
places to be reserved from the company or association, it is conceived
this to be the fitter way:--That instead of those reservations, that
the association should appoint the same fishermen that now fishe in
them, [so that they] may continue as particular company of the said
association, and to be subject [to] the law of the same, and are
willing that no others should fish in those places, [unless] it be
found upon examination that those places may admit more fishermen than
those that now fish in them, and in that case the great committee
of the association shall add such to them as they shall think fit,
desiring them always to remember that the said committee is compounded
equally of both nations.”[431] The king’s proposition was in keeping
with the intention of Coke, “to bring all private fishing vessels under
the company,” and though it was obviously impracticable, it furnished a
plausible argument against the claim to reserved waters.

After further conferences a number of articles were agreed to: That
an association should be established, with no joint-stock except that
received from those who voluntarily joined the undertaking; that a
standing committee of the two nations in equal numbers should be
formed, some of whom were to be appointed, also equally from both
nations, to judge of controversies amongst the busses according to
regulations to be made, with the right of appeal to the standing
committee. Two hundred busses were “propounded” for the first year;
“whereof,” said the Scots commissioners, “wee gott to advise what
number we would undertake, but our answer was never yet sought; always
we intend, God willing, to sett out 100 busses.” The main point, in
regard to the reserved waters or fishing-places, was left for the
king’s consideration. Finally, the king was to be asked to give order
for drawing up the charter of association.[432]

In July 1632 Charles was able to announce that the difficulties were
overcome and the negotiations completed, to his “great contentment,”
and with the mutual consent of both parties. Desirous of removing as
soon as possible the causes of the complaints which had been made
by the burghs, he wrote to the Privy Council at Edinburgh about the
great wrongs done by the Dutch inhabiting the Lewes and fishing
there “against the laws of that our kingdom,” instructing them to put
in force a decree which had been previously issued at the request
of the burghs, to prevent all strangers from trading or fishing
there or at Shetland.[433] He also requested the Council to prohibit
unseasonable fishing for herrings at Ballantrae Bank near the mouth
of the Clyde, which, he had been informed, was very injurious to the
herring fisheries on the west coast of Scotland, the Isles, and the
neighbouring coast of Ireland, by destroying the fry of herrings at
unseasonable times, which, he was informed, if they were spared, might
produce such plenty in all these coasts as might very much advance
the intended work of fishing. At the same time he declared that it
was necessary to establish settlements for the fishings at the Isles,
and the Council were asked to take sureties from the landlords of
the Isles, and of the lochs of the mainland, against violations or
oppressions on those of the association engaged in fishing there, and
from exacting any duties or impositions from them. The Council was also
invited to take into serious consideration the Act of the Scottish
Parliament “of 4 James IV.” respecting the building of busses by the
noblemen, and to use their best means to put it into execution.[434]
The nobility and gentry of Scotland were apparently expected to build
forty busses for fishing on both coasts, at an estimated cost of
£10,960; and in addition to equip them with nets, salt, casks, and
victuals.[435]

On the all-important question of the reserved waters the king did not
grant the “irreducible minimum” of the burghs. The condition which
the burghs attached to their surrender of everything except the three
great Firths, that is, the exclusion of the Hollanders from fishing
on the coasts of Scotland, was in the meantime nominally met by the
instructions to the Council mentioned above. In two or three years, as
we shall see, when his naval power was greater, he would attempt to
carry out their desire in quite a forcible and dramatic way. Charles
would not concede the Moray Firth as an exclusive preserve for the
Scottish fishermen, but he gave up to them the Firth of Lothian within
a straight line from St Abb’s Head to Red Head in Forfarshire, and also
the Firth of Clyde within a line drawn between the Mulls of Galloway
and Cantyre; because, as he said, the inhabitants of the coasts of
these parts were chiefly maintained by the fishing within them and
could not well subsist otherwise. These waters were therefore to be
reserved to Scottish fishermen, “according to ancient custom.”[436]

Everything having been arranged to the king’s satisfaction, he issued a
commission providing for the establishment of a Fishery Society under
the great seal of both kingdoms, which was approved by the Scottish
Parliament on 7th September 1632.[437] The Society was to consist of
twelve councillors appointed by the king, six of them to be English or
Irish and six to be Scots,[438] and also a “commonalty” composed of
a large number of noblemen and other persons. They were empowered to
appoint officers, to make laws, and to punish transgressions. In every
“province” of the kingdom and in the towns most convenient, “judges”
were to be elected by the resident members to settle disputes and make
regulations. The members, their servants and fishermen, were favoured
by certain immunities and privileges; they and their vessels were
exempt from impressment for the king’s service and relieved of certain
civil obligations. They were to be free to fish for sea-fish wherever
they pleased “within his Majesty’s seas” and dominions, and at the
isles pertaining thereto, as well as in the “lochs, creeks, bays and
estuaries” wherever herrings or sea-fish were or might be taken, except
in such creeks or firths as might be reserved in a proclamation of the
king. On the trading side of the enterprise, they were to be at liberty
to carry the fish to any place within the kingdom, “as well within free
burghs as without them,” to salt, dry, and barrel them, to erect the
necessary buildings and magazines, and to dispose of the fish as they
thought best, within the realm, or to export them either in their own
vessels or in others. Other clauses prohibited any person not a member
of the Society from exporting, or causing to be exported, abroad any
sea-fish taken within, or brought within, his Majesty’s dominions.
Charles and his advisers aimed at no less a thing than to bring the
whole of the sea fisheries and fish-curing industries of the country,
as well as the foreign exports, under the control of the Council of the
Society. The whole business was then to be organised and developed in
such a manner that the Dutch fishermen would be driven from the British
seas, and the nation to which they belonged deprived of the commanding
position which, it was believed, their fisheries had been the chief
means of conferring.

But the patience and perseverance of Charles in wearing out the
opposition of Scotland to his scheme, and in giving it the semblance
of a national design, were most inadequately rewarded. Like almost
everything to which he put his hand, the fishery association failed
miserably. The Scottish burghs promised to equip sixty busses for
the fishing in the following year, but in point of fact the Scottish
people took scarcely any part in the operations of the Society. The
London merchants, canvassed personally by Sir Thomas Roe and appealed
to by Pembroke, also held aloof. They gave “fair answers,” but kept
their money. The subscriptions, or stock, came almost exclusively
from persons about the Court, from naval officers and others desirous
of preferment. The first meeting of the Council was called for 24th
January, but so few members attended that the meeting had to be
adjourned until 19th February, when it took place in the Star Chamber.
Oaths were administered, two silver seals were ordered (and never
paid for) at a cost of £12, and Captain John Mason was made “Admiral
of their fleet” of busses. Differences of opinion soon arose in the
Council, and the Society split up into two branches or associations,
one under Weston (now Earl of Portland),--that “man of big looks and
of a mean and abject spirit,” as Clarendon describes him,--and after
his death, under the Earl of Arundel; the other branch under the Earl
of Pembroke, the Lord Chamberlain, who appears to have been almost
the only one, besides the king and Coke, who took a sincere personal
interest in the Society. Portland’s society had its headquarters at
Lewis, while Pembroke’s was more particularly designed to carry on
operations at Shetland and the east coast, but also had a station in
the Lewes. The total amount of the subscriptions to the Society up to
3rd February 1636 was £22,682, 10s., of which only £9914, 10s. was
paid up, and the company had been forced to borrow £3550 at interest
to set the scheme afloat. The stock of Portland’s association amounted
altogether to £16,975 up to and including the year 1637, while the
losses in the same period reached £21,071, 5s. 7d.

Ground was acquired and houses and magazines for salt and casks erected
at the Lewes,[439] and several busses were purchased in Holland by
both associations, ready for fishing and manned entirely by Dutchmen.
Agents despatched to Shetland and Lewis sent favourable reports of
the prospects. “We hope,” said the one at Lewis, “to furnish London
with some plenty against the hard times of winter”; yet the total
quantity of herrings cured at the island in that the first year of the
Society’s fishing was only 386 lasts, and the price obtained for them
was so low that the loss amounted to £4261. This, according to the
agents, was due to want of proper means of curing them (salt, casks,
hoops, &c.), otherwise they said they might have obtained 1000 lasts
or more. A great effort was therefore put forth in the following
year. Preparations were made to deal with 1500 lasts, and vessels were
chartered to carry them from Stornoway to various Continental markets.
But less than 443 lasts were cured in the second year; some were sent
to Dantzic and fetched “mean prices,” the rest reached London “when
Lent was wellnigh over,” and were sent on to Dunkirk and Dantzic, the
vessels coming back in ballast, and the loss in this year was £8163,
19s. 4d.[440] In this way the operations of the Society went on. The
herrings then failed to come into the lochs, and the Society turned
its attention to the salting and exportation of beef, salmon, cod, and
coal-fish,--a course fraught with less disastrous financial results,
but not well calculated to carry out the objects for which it was
founded.

Ill-fortune was encountered in other directions. Both the islanders and
the Scots from the east coast treated the English adventurers badly.
The Bishop of the Isles and the heritors insisted on their tithes
and dues in spite of the king’s charter. The busses were attacked
by bands of Highlanders, armed with “swords and bows and arrows and
other warlike weapons,” who took various articles from them in lieu
of dues. The Lowlanders, under the leadership of “one Thomas Lindsay,
a fisherman of Crail,” who pretended to be the deputy to the deputy
of the Vice-Admiral of Scotland, were still less considerate. Lindsay
“villified” their certificates, declared that King Charles had nothing
to do with the Lewes, and vowed that “he would be the death of every
Englishman on the island.” He forcibly seized one of the vessels laden
with herrings which had gone ashore, on the ground that it was wreck,
and wreck belonged to the Admiral of Scotland, and committed other
hostile actions. The grievances of the Society became so acute, and
redress from the Privy Council and the Admiralty Court so tardy and
imperfect, that Charles in May 1635 appointed a commission, consisting
of Archbishop Laud, the Earl of Pembroke, Sir Thomas Edmonds, and
Secretaries Coke and Windebank, as judges, according to the charter, to
deal with cases as they thought fit.

Disasters at sea were even more injurious to the Society than the
troubles ashore. Again and again the busses were taken by Dunkirk
privateers, who threw the crews into prison and held them for ransom.
When those freebooters came across a Dutch-built buss, with a Dutch
crew on board, they did not quite see why they should relinquish it
because they were told it belonged to an English society; and the
letters of “denization” which were provided by the king did not avail
them much.[441] Notwithstanding strong protests, prolonged negotiations
with the Cardinal Infanta, and reprisals made by English men-of-war on
Dunkirk shipping, the Society suffered great loss in this way.

The misfortunes of the Society caused many of those who had promised
subscriptions to withhold them. Then followed drastic measures:
summonses before the Star Chamber, warrants for apprehension, threats
of imprisonment, and most of the subscriptions were squeezed from the
unwilling adventurers. On the other hand, creditors sued the Society
for goods supplied and money lent; seamen sued it for wages; even the
clerks had to petition the king for theirs, appropriately suggesting
that they might be paid from the license-money that Northumberland’s
fleet had extorted from the Dutch herring-busses.[442] As Charles’s
domestic troubles thickened and his power on the sea began to wane,
Pembroke and his associates became more and more importunate for help.
Petitions were conveyed to him, and then “remonstrances.” He was
pointedly reminded that he was the originator and “Protector” of the
Society; unless he “really” helped them the work must stop. But Charles
was then unable either to compel the restitution of the captured
busses or to induce his subjects to subscribe to the Society’s funds.
He did what he could. Pennington and the Warden of the Cinque Ports
were ordered to seize Dunkirk ships to be sold for the benefit of the
Society; he granted them a standing lottery, and issued a proclamation
enjoining the strict observance of Lent, which might possibly help them
by increasing the consumption of fish, and could at least do them no
harm. Almost his last act in connection with the fishery association
was to issue an Order in Council in which, somewhat irritably, he
blamed the Dutch for the failure, and remitted to an influential
committee to consider some means by which the fishery in the north
seas might be “advanced and settled,” and particularly whether the
Dutch should not be deprived of English lampreys for bait, which were
necessary for their cod-fishing.[443] It was a great fall for Charles
as Lord of the Seas, with a policy as sketched at the beginning of this
chapter, to use the lampreys of the Thames as a weapon against the
Dutch rather than a powerful armada. But by this time his power at sea
had vanished. The Dutch lorded it in the Channel.

When the Order in Council was penned, Tromp had hemmed in the Spanish
fleet in the Downs and was ready to pounce on it the moment it quitted
English waters, or to destroy it there if he only could get a plausible
excuse. Charles and his Council were trembling with fear lest the best
known of all the “King’s Chambers” should be flagrantly violated by
the impatient Dutchman, with all the world looking on. And twelve days
after the Council meeting this is just what Tromp did, and Charles’s
sovereignty of the seas vanished for ever. And the fishery scheme, “the
Royal Fishery of Great Britain and Ireland,” set agoing after so much
patient labour, heralded by so many promises of profit and success,
designed to be a great instrument for the development of naval power
and commerce, was extinguished in the following year, with no tangible
result save that those who had given their money to it were left “great
losers.”



CHAPTER VII.

CHARLES I.--_continued_. THE NAVY.


Since Charles had resolved to assert his claims to the sovereignty
of the sea by force if necessary, it was obviously essential that he
should have a strong and capable fleet. During the peaceful reign of
James the navy had greatly deteriorated from what it had been under
Queen Elizabeth.[444] The expedition to Cadiz in 1625, and that to Rhé
two years later, revealed startling inefficiency and disorganisation,
and efforts were soon made to bring it into a better state. When he
assumed the crown, his fleet consisted of thirty ships; in 1633 it
numbered fifty, including the ten small vessels called the “Lion’s
Whelps”; and when the Civil War broke out there were forty-two, the
difference being due to the shedding of the smaller ones.[445]

There were many reasons why a strong fleet should be provided, apart
from any question of enforcing a new political sovereignty over
the North Sea and the Channel. The maritime strength of the United
Provinces was growing quickly, and France, under the wise and energetic
guidance of Richelieu, was rapidly becoming a formidable naval power.
Within the space of about five years before 1631, as Charles knew, the
Cardinal had created a fleet of thirty-nine ships, of which eighteen
were of 500 tons or over, and no less than twenty-seven had been built
in French ports.[446] These two states were drawing closer together,
and while it was known that their alliance, which was then mooted and
was soon realised, would be chiefly directed against Spain, it was
nevertheless a danger to England unless she was strong enough to defend
her rights on the sea.

Other reasons were the insecurity of the seas from the prevalence
of piracy, and the violation of the “King’s Chambers,” and even of
English ports, by the Dunkirkers and the Dutch. Moorish pirates swarmed
in the Channel and made havoc amongst English shipping. So bold and
successful were they, that in 1631 they seized and sacked Baltimore,
on the coast of Munster, and carried off over 200 English subjects
into slavery. Within a space of ten days they captured twenty-seven
ships and 200 men.[447] The Dunkirkers played a corresponding _rôle_
in the North Sea. In a petition to the king in 1627, the ship-owners
of Ipswich complained that within a year the Dunkirkers had captured
five of their ships, valued with their cargoes at £5000, and carried
the crews to Dunkirk. No ship, they said, could go to sea, and the
livelihood of seafaring men was taken from them, and the king’s service
would thus suffer. The Mayor and burgesses of King’s Lynn put the
losses of the town at twenty-five ships, worth £9000, and complained
that they were unable to carry on the Iceland fishery. The Cinque Ports
also complained that the Dunkirkers had taken their goods, imprisoned
their mariners, and rifled and sunk their ships on the English shore;
and they asked for a guard to enable them to go to the fishing in the
north and at Scarborough and Yarmouth. The alarm was general all along
the coast. In February 1629 the bailiffs of Yarmouth reported that the
sea was overrun with Dunkirkers, who had even rifled and fired one of
their ships close under the cliffs at Mundesley, notwithstanding the
efforts of the sheriff and posse of the county; they said 250 fishing
vessels were ready to go to the northern fishing and awaited convoy.
In the next year they and other towns of Norfolk and Suffolk stated
their intention of sending out two fishing fleets of “ships, barks, and
crayers,”--one of 160 sail to Iceland and Westmony, and the other of
230 sail for the north seas,--and they begged for ships of war to guard
them, as the livelihood or “utter ruin” of 10,000 people and their
families depended on these fleets. Two years later they repeated their
request to the Admiralty, saying they usually sent out a fleet of
about 300 sail, with 5000 persons, to the fishings mentioned, but the
fishermen were now so terrified by the Dunkirkers that they refused to
go. The Mayor of Newcastle also informed the Council that they had been
despoiled to the extent of £7000; he said there were 300 sail in port
which dared not venture out; and the Council were asked to take means
to secure safe passage on the sea. At this time there were said to be
forty Dunkirk privateers scouring the North Sea, many of them with
English sailors on board.[448] We have already seen how successfully
these freebooters preyed upon the busses of the Fishery Society.

Here then was a clear case for a navy, when an effective navy did
not exist. The Council and the Admiralty took such isolated measures
as they could; but the Dunkirkers were almost always too nimble to
be caught. “They take ships,” wrote the commander of a man-of-war
convoying the Iceland fishing fleet, “and we in sight and cannot come
up to help it.” The duty and expense of providing convoys to protect
the fishermen were thrown on the fishing ports and the counties. In
1627 the Council ordered four Newcastle ships to be taken up for eight
months, to convoy the Iceland fleet, at a cost of £1768, to be paid
out of the “loans” in Suffolk. The estimate in the following year for
a guard of four merchant ships, of 400 tons each, with 120 men for
one month in harbour and 240 men for six months at sea, was £4399;
and the Council in authorising the Admiralty to “press, victual, arm,
and man” the ships, instructed that if Yarmouth and the other towns
wanted convoy in future they should first consult together as to some
mode of levying monies for it, either upon the coast towns or upon the
counties of Norfolk and Suffolk. This was done, in part at least, by
levying a contribution of twenty shillings from each fisherman; and
fishermen also protected themselves by insuring their vessels in London
against the risks of capture by the Dunkirk privateers. The owners and
masters of the merchant ships thus pressed to act as guards to the
fishing fleets were usually most unwilling to serve, and sometimes
“utterly refused,” and the Admiralty had to get an Order in Council
to compel them.[449] Provision of a guard for the east coast generally
was attempted by levying a duty of two and five shillings a ton on all
coal laden at Newcastle or Sunderland for English and foreign ports
respectively.[450]

Equally impressive evidence of the lawlessness that then reigned on the
sea, and of the inability to deal with it effectively, was furnished by
the flagrant violation of English ports and roadsteads, by the Dutch
as well as the Dunkirkers, who waged incessant war with one another.
The herring-busses and merchant vessels of the former were frequently
captured, rifled, and burned by the privateers, and when the commander
of a Dutch man-of-war had a chance of destroying one of the pests, he
was not always deterred from vengeance by the Dunkirker taking refuge
in English waters; and in like manner the privateer did not scruple to
pursue his prey into English ports and anchorages. Sometimes, indeed,
the warfare was continued on English soil and the lives of the king’s
lieges endangered. In 1634, for example, a Dunkirker chased a Hollander
vessel into Yarmouth harbour and robbed her, and a lively fusillade
went on between the Dutchmen, who had taken refuge on the pier, and
the crew of the privateer, and one of the former was killed. As the
Dunkirkers refused to stop their “furious assault,” the bailiffs
ordered two of the town’s guns to be fired at them, “which they only
scoffed at”; and when the marshal called upon them in the king’s name
to desist and begone, they only “answered with unseemly gestures and
scorn,” and they did not make off until a company of musketeers went
down to them. But next day as the privateer was hovering off the coast,
two States’ men-of-war bore down upon her and she ran for shelter to
the beach near Lowestoft; but the Dutch followed, seized her, and
carried her off, the crew escaping to shore, where they were promptly
arrested and lodged in Yarmouth jail.

A still more outrageous transgression of the neutrality of an English
port took place in the following year, at the very time that Lindsey’s
fleet was cruising in the Channel. A Dunkirker brought a Hollander buss
into Scarborough harbour, and she was followed by a States’ man-of-war,
which opened fire, and a fight both with cannon and muskets took
place. The bullets, flying into the town, hit several of the citizens,
and some strangers on the sands were also hurt, “to the amazement
and discouragement of the whole town.” Twelve Dunkirkers were slain,
and the rest only saved themselves by swimming ashore, while the
man-of-war went off with both the privateer and the buss. A fortnight
later another privateer was chased into the harbour by a Hollander
man-of-war, which landed three or four score of men, armed with muskets
and pikes, to set upon the Dunkirkers when the ship lay dry; and the
Dutch captain only consented to re-embark them, on condition that the
bailiffs of the town would themselves place a guard of fifty men to
watch the privateer, so as to prevent any of the crew escaping.[451]

This glaring outrage on English soil caused the Council to arrest a
Dutch man-of-war, to be held until the one that had committed the
misdeed should be delivered up; for, said Windebank, it was a matter
that concerned the king himself in point of honour and the safety of
the kingdom, as an act of hostility, “little less than an invasion,”
had been committed in landing armed men on his Majesty’s territories,
“violating his imperial chamber and threatening his subjects.”
Nevertheless, in the next month a like offence was committed at Blyth,
when a Dutch man-of-war not only attacked a Dunkirk privateer lying
in the harbour, but landed fifty men armed with muskets, who marched
in military order nearly half a mile, “to the great terror of the
inhabitants,” and by seizing the fishing-boats, captured the Dunkirker
and took her away. Not only so, but thirty of the Hollanders, armed,
and with trumpets, pursued the crew of the privateer on land for
a distance of two miles.[452] There was a natural excuse for the
violence of the Hollanders in these proceedings. They were exasperated
by the immense havoc which the privateers had just committed on their
herring-busses, by sinking or burning over 100 of them, the remainder
of the fishing fleet escaping into Scottish and English harbours.[453]

This insecurity of the sea and the open and daring violation of English
ports remind one of the conditions that too frequently prevailed in
earlier centuries. The misdeeds must have been galling to Charles,
for only a short time before he had issued a public proclamation with
the object of putting a stop to them. In February 1633 Sir H. Marten,
Judge of the High Court of Admiralty, along with the Attorney-General,
had been instructed, in view of the war between Spain and the United
Provinces, to draw up a regulation whereby “his Majesty’s ancient
rights, honours, and sovereignty in the narrow seas and in the chambers
and ports may be preserved, and the trade of the kingdom of England
and Ireland secured.”[454] In this regulation (which is printed in
Appendix H) a claim to absolute dominion over the Four Seas was made.
The king spoke of “that sovereignty and especial and peculiar interest
and property which he and his predecessors, time out of mind, have
had and enjoyed in the said seas, and so approved not only by the
fundamental laws of this his kingdom, but by the acknowledgment and
assent of the bordering princes and nations, as appeareth by undoubted
records”--language which seems like an echo of Selden’s _Mare Clausum_.
Moreover, in referring to the limits of the “King’s Chambers,” he
continued: “Albeit his Majesty doth justly challenge sovereignty and
property in all those his seas, far beyond the limits hereafter to be
described, and might with like justice require from all persons using
those his seas a forbearance from injuries and all hostile actions, yet
(in and through all the same) suddenly to tie the hands of his friends
and allies in open hostility each with other, is not for some reasons
held convenient at this time,” and therefore he would cause the bounds
to be laid down within which he would yield peace and security to his
friends and neighbours.[455]

Clearly, however, something more than a proclamation was required to
ensure the security of the seas and the neutrality of the chambers
and ports. As early as 1627 official proposals had been made to build
thirty ships of a small class to guard the narrow seas, which might
compete in swiftness with the privateers and freebooters infesting
them,--a plan that was partly carried out by the building of the ten
“Lion’s Whelps,” which, however, proved complete failures. An estimate
was also procured for building eighteen ships and two pinnaces, at a
cost of about £43,000, the estimated expense of the crews being £6100
per month.[456] Various other schemes were considered, including one
to form a fleet of forty armed Newcastle colliers, to be employed
primarily in convoying the coal ships, but capable of being called
off at any time for the king’s service. The want of money was the
great obstacle to the formation of a strong fleet. The wages of the
seamen and others employed were always in arrear,--at the end of 1627
the arrears amounted to £251,361,--and the victualling and furnishing
of the ships afloat were of the worst possible description.[457] The
necessity of a fleet to maintain the dominion of the sea and defend the
coasts was being constantly urged upon the king. The Attorney-General,
Heath, in 1632, called attention to the truism that our strength and
safety lay “in our walls, which is our shipping,” and he strongly
recommended that a powerful fleet should be maintained because of
the boldness of the Hollanders, and in order to preserve the king’s
prerogative in the fisheries in the British seas, as well as to secure
the mastery of the narrow seas.[458]

Charles required no spur in a matter the importance of which he
thoroughly understood, and he had private and personal reasons for
wishing that a strong force should be placed on the sea. It was the
family policy as to the restoration of the Palatinate that chiefly
guided him. At the end of 1633 he entered into negotiations with
Spain for an alliance against the Dutch, and in the following year a
secret treaty was drafted and sent to Madrid (four days before the
issue of the first ship-money writs) in which Charles undertook to
provide a fleet, partly at the charge of the King of Spain, who was to
advance a sum of £50,000 and help to recover the Palatinate for his
nephew.[459] It was intended that the fleet should co-operate with
the Spaniards against the United Provinces; the ports of Flanders
were to be freed from the blockade maintained by the Dutch, and
Spanish vessels carrying soldiers and money for Dunkirk were to be
protected by English ships; the mastery of the Dutch at sea was to be
destroyed, the Republic was to be attacked and overthrown, and the
country divided between the allies. The open avowal of such a policy
would have been equivalent to making it almost impossible, for an
alliance with Catholic Spain against the Protestant Republic was in
the highest degree unpopular in England, and the fleet, moreover,
was to be created by means of the ship-money writs. The negotiations
had been carried on with the greatest secrecy; only three members of
the Council (Portland, Cottington, and Windebank) were in the king’s
confidence, the others remaining in ignorance. It was thus necessary
to deceive them as well as the nation as to the object of equipping a
fleet. The insecurity of the seas from the prevalence of piracy and the
violations of English waters, referred to above, were put forward among
the ostensible reasons to justify it. “The pretext of this arming,”
it was distinctly stated in 1634, “shall be to secure the coasts of
Great Britain and Ireland, and to free them from pirates and others
that commit hostilities and insolencies there.”[460] To deceive the
people by fears of invasion, owing to the “great preparations both by
sea and land of the neighbouring princes,” orders were given to have
the beacons along the coast examined; to muster and make ready the
trained bands to join their colours at an hour’s warning; to enrol all
untrained men between the ages of sixteen and sixty, so that levies of
them might be made “on any sudden occasion.”[461]

Another reason put prominently forward to cloak the nefarious scheme
was the need of maintaining the ancient sovereignty of the sea. While
the Spanish negotiations were proceeding, Boroughs, as we shall see,
had finished his treatise on the rights of the crown in the adjoining
seas, and Selden was busy with his _Mare Clausum_. The language of the
ship-money writs, sent out in October 1634, and the charge of Lord
Coventry to the Judges, breathed the same spirit as these treatises.
In the writs, which were founded upon extracts made by Boroughs from
records of the times of Edward I., II., and III.,[462] the king
described how “thieves, pirates, and robbers of the sea” were “taking
by force and spoiling the ships and goods and merchandises, not only
of our subjects, but also of the subjects of our friends in the sea
which hath been accustomed anciently to be defended by the English
nation,” delivering the men into miserable captivity. The pirates, he
said, were daily preparing all manner of shipping further to molest the
merchants, unless a remedy was applied, and that in view also of the
dangers menacing the realm “in these times of war,” it was necessary
to hasten the defence of the sea and kingdom. Therefore, he continued,
“We willing by the help of God chiefly to provide for the defence of
the kingdom, safeguard of the sea, security of our subjects, safe
conduct of ships and merchandises to our kingdom of England coming,
and from the same kingdom to foreign parts passing; forasmuch as we
and our progenitors, Kings of England, have been always heretofore
masters of the aforesaid sea, and it would be very irksome unto us
if that princely honour in our time should be lost or in anything
diminished,” it was necessary for the sea-coast towns to furnish ships
or an equivalent in money.[463] In similar language Coventry told the
Judges in 1635 that the dominion of the sea, “as it was an ancient and
undoubted right of the crown of England,” so was it the best security
of the land, which was impregnable so long as the sea was well guarded;
and that those subjects “whose minds are most fixed upon the honour of
the king and country” would not endure that it should be either lost
or diminished. The safety of the realm, he said, required the dominion
of the sea to be kept and the sea guarded: “The wooden-walls are the
best walls of the kingdom; and if the riches and wealth of the kingdom
be respected, for that cause the dominion of the sea ought to be
respected; for else what would become of our wool, lead, and the like,
the price whereof would fall to nothing if others should be masters of
the sea?” If the dominion of the sea was lost, trade and commerce would
be lost by being placed at the mercy of the neighbouring nations, and
the whole kingdom would suffer.[464]

In carrying out his Spanish policy, Charles’s first task was to deceive
his Council.[465] For this purpose no better agent could have been
chosen than Coke, who, as we have seen, was by this time enthusiastic
about the sovereignty of the seas, and was known to be hostile to
Spain. He was accordingly directed to prepare a report for the king on
the unsatisfactory relations between England and foreign countries,
and the need of providing a fleet. In the long statement he drew up,
Coke described how the credit of the country had been lowered abroad,
and innumerable wrongs and insolences suffered in various parts of
the world, because of the want of a sufficient navy to make our name
respected. “All free trade,” he wrote, “is interrupted”; within the
king’s own chambers squadrons of men-of-war from Biscay and Flanders
took not only Hollanders, but Frenchmen, Hamburgers, and his Majesty’s
subjects. From the Hollanders “we suffered most by their intrusion on
our fishings and pretence of _Mare Liberum_,” and they pursued and
took prizes in our ports and rivers. But our trade and rights were
injured everywhere,--from Constantinople and Morocco to Denmark and
Sweden,--and Coke recommended that the navy should be reinforced in
order that the king might obtain justice and “recover his undoubted
right of sovereignty in all his seas.”[466] Coke read his report to
the Council in June 1634; the ship-money writs were issued in October;
and in May next year the first of the “ship-money fleets” was ready
and was placed under the command of the Earl of Lindsey, with special
instructions to maintain the king’s sovereignty of the sea.

On the Continent the naval preparations of England were followed with
close attention. As early as 1633, Joachimi, the States’ ambassador in
London, informed his Government that the English were putting forth
pretensions to be sole lords and masters of the narrow seas, and he
earnestly advised the States to avoid everything which might give the
English offence in their excitable condition, on a matter which they
had so much at heart.[467] An indication of the feeling prevailing in
England was observed by the ambassador early in the year, for when he
complained that Dutch vessels had been fired on from Portland Castle
and then detained, he was told they had presumed to put up their flags
in the face of the king’s colours flying on the walls.[468] Next year
the repeated complaints from England as to the violation of the King’s
Chambers by Dutch vessels of war, and the seizure of one of them by the
English in consequence of the attack at Scarborough, did not lessen
the apprehensions that began to be entertained in Holland. Rumours
circulated that the English fleet was being prepared for the purpose of
waging war against the Republic, and the answer given by the English
ambassador at The Hague to inquiries as to the object of the fleet
was not calculated to allay anxiety. In the spring of 1635, a little
before the Earl of Lindsey hoisted his colours on the _Merhonour_, Coke
wrote a long and resounding despatch to Boswell, the English ambassador
at The Hague, explaining the reasons for the naval preparations.
“First,” he said, “we hold it a principle not to be denied, that the
King of Great Britain is a monarch at land and sea to the full extent
of his dominions, and that it concerneth him as much to maintain his
sovereignty in all the British seas as within his three kingdoms;
because without that these cannot be kept safe, nor he preserve his
honour and due respect with other nations. But, commanding the seas, he
may cause his neighbours and all countries to stand upon their guard
whensoever he thinks fit. And this cannot be doubted, that whosoever
will encroach upon him by sea, will do it by land also when they see
their time. To such presumption,” he added, “_Mare Liberum_ gave the
first warning-piece, which must be answered with a defence of _Mare
Clausum_: not so much by discourses, as by the louder language of a
powerful navy, to be better understood when overstrained patience seeth
no hope of preserving her right by other means.” The innuendo against
the United Provinces was still further developed. They had impeached
the king’s dominion in his seas for a long course of years. They had
been permitted to gather wealth and strength in our ports and on our
coasts by trade and fishery, for which they had “sued to King James
for license,” granted under the great seal of Scotland; and when they
had possessed themselves of our fishings “by leave or by connivance,”
and obtained a great trade by our staple, they so increased their
shipping and naval power that now they would not endure to be kept
at any distance. “Nay,” exclaimed Coke, “to such confidence are they
grown, that they keep guard upon our seas,” and prohibit us free
commerce within them; they take our ships and goods unless we conform
to their placards. Besides all which, “what insolencies and cruelties”
they have committed against us in the past, in Ireland, in Greenland,
in the Indies, as known to all the world; care would be taken to
refresh their memories on these wrongs “as there should be cause.”
After a preamble of this sort one might expect a declaration of war
to follow. But the fleet, Coke continued, was neither for revenge nor
for the execution of justice for past wrongs. It was primarily to put
a stop to the “violent current of the presumption” of men-of-war and
freebooters, who had abused the freedom allowed by the king to friends
and allies to make use of his seas and ports, by assaulting one another
within his Majesty’s chambers and in his rivers, “to the scorn and
contempt of his dominion and power.” The king intended no rupture with
any prince or state; he was “resolved to continue and maintain that
happy peace wherewith God hath blessed his kingdom, and to which all
his actions and negotiations have hitherto tended.” But that peace
must be maintained by the arm of power, “which only keeps down war by
keeping up dominion.” Therefore the king found it necessary, even for
his own defence and safety, “to re-assume and keep his ancient and
undoubted right in the dominion of these seas, and to suffer no other
prince or state to encroach upon him, thereby assuming to themselves
or their Admirals any sovereign command; but to force them to perform
due homage to his Admirals and ships, and to pay them acknowledgments,
as in former times they did. He would also set open and protect the
free trade both of his subjects and allies, and give them such safe
conduct and convoy as they shall reasonably require. He will suffer no
other fleets or men-of-war to keep any guard upon these seas, or there
to offer violence, or take prizes or booties, or to give interruption
to any lawful intercourse. In a word,” Coke concluded, “his Majesty is
resolved, as to do no wrong, so to do justice, both to his subjects and
friends within the limits of his seas.”[469]

The substance of this bombastic despatch, in which Charles was fully
displayed in his new figure as a Plantagenet, was communicated by
Boswell in a memoir to the States-General, and their High Mightinesses
must have rubbed their eyes as they read it.[470] But it at least
removed their fears of immediate war. Explanations of similar tenour,
but couched in more moderate language, were made to other Courts. The
intentions of the king were declared to be quite peaceful, and stress
was laid on the violations of the King’s Chambers, “to the great
derogation of that dominion at sea which has always of right belonged
to the Imperial crown of this kingdom”; the fleet was to free his
coasts and seas from such disturbances, to secure free trade to his
subjects and allies, and “to reduce his dominion upon the British seas
to the ancient style and lustre.”[471]

Let us now turn to the fleet which was to carry out this grand
programme and see what it actually accomplished. The ships began to
assemble in the Downs in May, the Earl of Lindsey being appointed
“Admiral, Custos Maris, Captain-General and Governor” of the fleet,
with the veteran Sir William Monson as Vice-Admiral, and Sir John
Pennington as Rear-Admiral. It consisted of nineteen of the king’s
ships and five armed merchant vessels, making twenty-four in all;[472]
and though other ten royal ships which were being prepared to reinforce
it were ultimately discharged, it was said by the common people that
“never before had such a fleet been set out by England.” In the
king’s commission appointing the Earl of Lindsey it was stated that
he had thought fit, by the advice of his Council, to set forth to
sea a navy as well for the defence and safety of his own territories
and dominions as for the guard and safe-keeping of his seas, and of
the persons, ships, and goods of his own subjects and of his friends
and allies “trading by sea to and fro our dominions for commerce and
trade, and other their just and necessary occasions, from those spoyles
and depredations committed at sea ... and for sundry reasons and
considerations of state best known to ourselves.”[473]

In the official instructions from the Lords of the Admiralty, issued
on the day after the secret agreement with Spain had been drawn up,
the Earl was ordered principally to guard the narrow seas and the
king’s subjects and allies trading through them, and so to dispose his
ships that “all parts of the seas, as well from the Start westward as
the rest of the Sleeve from the Start to the Downs, and from thence
northward, might be secured from men-of-war, pirates and sea-rovers and
of picaroons that interrupt the trade and commerce of his Majesty’s
dominions.” It was to be his principal care to preserve the king’s
honour, coasts, jurisdiction, territories, and subjects within the
extent of his employment, “that no nation or people whatsoever intrude
thereon or injure any of them.” If he met “in his Majesty’s seas” any
fleet or ships belonging to any foreign prince or state, he was to
expect that the admiral or chief of them, in acknowledgment of his
Majesty’s sovereignty there, should perform “their duty and homage in
passing by”; if they refused and offered to resist, he was “to force
them thereunto, and to bring them in to answer this their high contempt
and presumption according to law.” He was to suffer no dishonour to be
done to the king or derogation to his power or sovereignty in those
seas. If English ships so far forgot their duty as not to strike their
top-sails in passing, the commanders were either to be punished on the
spot or reported to the Admiralty, who would punish them exemplarily.
When he met with foreign men-of-war or merchant vessels, either at sea
or in any road “or other place,” he was to send to them to discover if
any English subjects were serving on board; and if so he was “to cause
them to be taken forth and committed,” to answer their contempt of the
king’s proclamation forbidding such service, and also to caution the
commander of the vessel in which they were found not to receive English
subjects again; but the Earl was expressly forbidden to send any of his
men on board the foreign vessels to search for English subjects.

The most remarkable part of the instructions issued to the first
ship-money fleet referred to the hostilities between the ships of
other nations, not merely in the King’s Chambers, but throughout the
narrow seas. “In this your Lordship’s employment,” wrote the Lords
of the Admiralty, “you are not to permit or suffer any men-of-war to
fight with each other, or men-of-war with merchant, or merchant with
merchant, in the presence of his Majesty’s ships in any part of the
Narrow Seas. But you are to do your best to keep peace in those seas
for the freer and better maintenance of trade and commerce through the
same, so that all men trading or sailing within those his Majesty’s
seas do justly take themselves to be _in pace Domini Regis_. And
therefore his Majesty in honour and justice is to protect them from
injury and violence.”[474]

It is interesting to compare these instructions to Lindsey with those
given earlier to Pennington as admiral of the fleet for the guard
of the narrow seas. His private instructions from the Lords of the
Admiralty in 1631 contained a clause regarding the homage of foreign
vessels on meeting the king’s ships. He was to expect the admiral or
chief, in acknowledgment of the king’s sovereignty in the narrow seas,
“to strike their toppe sayles in passing by,” and if they refused he
was to force them to do so; and in no wise suffer any dishonour to be
done to his Majesty, or derogation to his sovereign power in those
seas. At that time the efforts of Richelieu to create a French navy
had caused some disquiet in England, and Pennington was also ordered
to do his utmost, by spies and otherwise, to discover whether any
considerable preparations were being made abroad.[475] The instructions
in 1631 appear to have represented the English pretensions so far as
they were understood at the time. There was nothing about forbidding
the hostilities of belligerents, as in Lindsey’s instructions. On
the contrary, Pennington was told that if he saw any Hollanders and
Dunkirkers in fight at sea he was to take no part with either, “but to
pass by and leave them to their fortunes”; and he issued orders to his
subordinates to that effect.[476] In his instructions in 1633 this
clause was repeated, but in other respects they resembled those of
Lindsey.[477] The same duties were allotted to him in 1634, and he was
specially charged to free the narrow seas of pirates and sea-rovers,
and to prevent hostilities in the King’s Chambers. “If,” he was told,
“any man-of-war, or other, _in any of his Majesty’s roads, harbours,
or coasts_, shall offer any violence by unduly taking out any ships,
vessels, goods or merchandise, of what nation soever, or commit any
other insolency, you shall do your best to recover the same again from
them, and reform the abuses, either by due admonition, or (if that will
not serve) by bringing the offender to answer to justice, preserving
by all means the honour of his Majesty from such insolencies (as much
as in you lieth), having always a due regard to the amity between his
Majesty, his friends and allies.”[478]

But a change took place, as we have seen, in the following year. Among
the suggestions made by Pennington to the king, and repeated to the
Admiralty, was one that any foreign ship attacked by another foreigner
in the narrow seas might put herself under the protection of any of the
king’s ships by coming under its lee, “in the same manner as under a
castle on shore.”[479] It was certainly a proposal as bold as it was
brilliant. Ships of war have long been regarded by certain writers on
international law as being essentially an extension of the territory of
the state to which they belong; but no writer ever suggested that the
water around them on the high sea should be looked upon as partaking
of the same character. The sea round a king’s ship, within range of
the guns on board, was to be a sanctuary like the waters of the King’s
Chambers,--a sort of territorial girdle which it carried about with
it like an aureole round the head of a saint. Pennington’s suggestion
was considered by the Admiralty early in April 1634, and Nicholas,
the Secretary, was instructed to confer with Sir Henry Marten, the
Judge of the Admiralty Court, with regard to it. Nicholas summed up
his own views oracularly in the sentence, “If a merchant fly from
men-of-war, it concerns the king’s ships to preserve trade.” Sir Henry
Marten gave a clear opinion. “It is not fit,” he said, “nor honourable
for the king’s ships appointed to guard the Narrow Seas to suffer any
men-of-war to fight with each other, or men-of-war with merchants, or
merchant with merchant, in the presence of the king’s ships within the
Narrow Seas, for that the king’s ships are set forth to keep peace in
those seas for the freer and better maintenance of trade and commerce
through the same: and all men trading or sailing within the king’s seas
do justly take themselves to be _in pace Domini Regis_; and since such
are _in pace Domini Regis_, it doth concern the king in honour and
justice to protect them from injury and violence.” The language of the
first part of this statement is the same as in the regulation prepared
a little before with respect to hostilities within the King’s Chambers
(p. 251); but its purport went much further than the recommendation
of Pennington, and in effect extended the protection afforded by the
King’s Chambers, and the regulation applying to them, to the whole of
the narrow seas.

The Admiralty approved of the opinion of Sir Henry Marten, and Nicholas
was directed to embody it in Pennington’s instructions. Before doing
so, however, it was deemed desirable to get the king’s own opinion, and
he was asked by Windebank, at the instance of the Admiralty, whether
Pennington should be instructed not to permit any man-of-war to fight
in the narrow seas in the sight of his Majesty’s ships, while he
commanded there as Admiral. Pennington had then only two ships and two
“Whelps” under his command,--a force quite inadequate to enforce an
innovation so revolutionary,--and Charles apparently did not think the
time or circumstances fitting for it, for the Admiral’s instructions in
1634 were virtually the same as in 1633, except that the clause about
passing by Dutch and Dunkirkers in fight and leaving them to their
fortunes was omitted at the special request of Lord Cottington.[480]
But next year, when the imposing ship-money fleet was ready, Sir H.
Marten’s memorandum was inserted, almost verbatim, in the Earl of
Lindsey’s official instructions.

In addition to the official instructions, the Earl received private
commands from the king. In these the new doctrine as to the sovereignty
of the seas received a new gloss, corresponding to the tenour of
Coke’s despatch to Boswell, and they were clearly intended to embroil
us with the Dutch Republic, as well as with France, and thus enable
Charles to carry out his clandestine agreement with Spain. He was
not to permit the warships of other states to keep guard, or commit
acts of hostility, or take spoil or booty, “within his Majesty’s
seas”; and it was also resolved that the fleet should be employed
in forcing the Dutch herring-busses to take the king’s licenses for
permission to fish, or in interrupting them in their fishing. It was
a common practice for orders of this kind given to naval officers to
be expressed in general or indefinite language, leaving to them the
responsibility of applying them to specific cases according to their
judgment and discretion. Both Pennington in the previous year, and the
Earl of Northumberland in the following year, had to ask for further
and more precise directions. So also did Lindsey now. He wrote to
Charles on receipt of the royal commands, asking a number of questions.
In the first place, he asked that the “bounds of his Majesty’s seas
might be expressed”--a reasonable request, and one frequently made by
naval officers. He was loftily told by Coke, who replied, that “his
Majesty’s seas are all about his dominions, and to the largest extent
of those seas,”--an answer not very illuminating, and of little use
to the Admiral.[481] His second question was whether the ships of the
King of France, or the Archduke, or the Dutch States, might not “lie
to and again” upon their own coasts, as they have anciently done? To
this the reply was that they might stay in their harbours or roads, or
pass “to and again for trade,” but not otherwise. Then he asked whether
the Dutch men-of-war might not lie before Dunkirk, “as they have been
accustomed to do”? (in blockading the port, which belonged to Spain).
For answer, he was curtly referred to his instructions. Then there was
another disturbing suggestion: If no men-of-war were to be permitted
“to lie in the King’s seas,” notice, he said, should be given of the
fact by proclamation or otherwise. He was told that this was already
done--the remark having reference, no doubt, to the despatches sent
to foreign Governments. Finally, he inquired what he should “do with
the herring fishers.” But the patience of Coke appears to have been
exhausted, and no answer at all was given.[482]

It was obviously the intention of Charles to force a quarrel with
France and the Dutch Republic on a point or points connected with the
sovereignty of the sea, which might rouse popular enthusiasm in England
and enable him to attempt to recover the Palatinate for his nephew,
while ostensibly defending the national honour. But the punctilios and
hesitation of Lindsey about the duties before him must have raised
misgivings at Court as to whether the right man had been chosen for the
job. It was not long before this feeling deepened into mortification
and disgust.

The fleet was ready at the beginning of June. Before its setting off
one or two incidents happened which might have seemed ominous to the
superstitious. A shot fired from the Admiral’s ship, in answer to the
salutation of the rest of the fleet as he sailed into the Downs, hit a
poor woman on shore and broke her leg; the same day, during musketry
exercise, a seaman nearly killed a master of the navy,--and these, as
it turned out, were the sole effective warlike operations of the fleet.
On the very day of departure a couple of Dunkirk privateers “were so
insolent” as to set upon a Dutch merchantman in Dover Road, under the
Admiral’s nose and in sight of the fleet, battering the ship, slaying
the gunner, and wounding the men. As an offset, the fleet captured a
small prize from a Dunkirker, which was to be sold for the benefit
of the Fishery Society. Then the Earl himself had been snubbed by
the Admiralty, and left with a flea in his ear. He wanted a vessel
to serve as a “kitchen” to accompany the fleet, and a salary for a
secretary; but there being no precedents, the requests were refused.
Then he complained that he had not enough flags, and above all that he
lacked a standard, which made him “not a little wonder, considering
his commission gave him as much power as a Lord Admiral of England--or
rather more by being General, who is always a representative person of
his prince”; he said he was “a little maimed” without it.[483]

The fleet weighed anchor early on the morning of the 7th June, and
steered down Channel on its mission. At that time a combined Dutch and
French squadron blockaded Dunkirk--France, which in January had entered
into a treaty with the States for an invasion and partition of the
Spanish Netherlands, having declared war against Spain a month before
Lindsey left the Downs. There was thus every prospect of a collision
if the English Admiral carried out the king’s wishes, and both the
Court and the capital were on the tiptoe of expectation of stirring
news. The fleet had scarcely quitted its anchorage when London was full
of rumours. The _Swallow_ got credit for having sent to the bottom a
Dutch man-of-war before she had even left Deptford. A few days later
it was reported that a fight had taken place in the Channel, a violent
cannonade having been heard on the English coast, whereat Charles
looked anxious and moody.[484] But it was only a peaceful salutation
between the English fleet and a Danish man-of-war, “who did their duty”
in passing by. On 12th June “certain news” arrived by express from
Dungeness that a great battle had been fought off Calais, in which the
Hollanders were totally defeated. Authentic despatches from the fleet
soon put an end to such rumours. Very bad weather had been experienced,
which forced them to take shelter at the Isle of Wight; thereafter
they sailed for Portland, having received intelligence that a French
squadron of fourteen sail and a Dutch one of the same number were
there, each flying its national flag.

At a council held on board the Admiral’s ship, it was resolved that
if the Dutch struck when they came up with them and the French did
not, a message was to be sent to the Dutch Admiral “that we did not
expect to see the friends of the king our master in company of them
that do affront him, therefore we desire them, like friends, to stand
by and see the sport.” But there was no “sport,” for when the English
fleet got to Portland on 20th June, the allies had gone; “the same
wind,” wrote Lindsey, “which brought me thither carried them out to
sea” the day before. Learning from the Mayor of Dartmouth that a fleet
of fifty-six sail had been seen off Falmouth on the 19th, the fleet
went off westwards, calling at Plymouth, where it stayed for a few
days. On one occasion they thought they had come up with their quarry.
They espied a great number of ships at a distance, dimly visible in
the morning mist, which made them “provide their guns” and get ready
for action. But they turned out to be only peaceful salt-ships from
Rochelle. Despatches were sent to the Court from Plymouth on 23rd June,
in which Lindsey stated he was going on to Land’s End, “and so to make
a short return from thence.” He also defended himself from complaints
that seem to have been made against him from Dunkirk, apparently owing
to his seizure of the prize for the Fishery Society. He told Windebank
that two or three more Dunkirk men had been brought to him who had
taken prizes from the French, but that he had dismissed them without
meddling with their prizes. And then he added--what must have been
unpleasant reading to Charles--that the king’s instructions had bound
him to carry an equal hand between the subjects of his allies, and from
that “compass” he would not vary. He would perform as friendly offices
to the Dunkirkers as to either the French or the Hollander.

Neither the impartial sentiments of the Admiral nor his proceedings
were approved at Court, where the king was getting impatient. The
summer was passing, and the opportunity of forcing a conflict was
passing with it. He soon learned how his conduct was regarded from
despatches from Coke. Since the Earl went to sea, wrote the bustling
Secretary, the account he had been able to give the king out of his
despatches had been only of a fall from his coach, and of the stay his
fleet had made in the Downs, then near St Helens, and thence of his
plying along the coast to Plymouth, where the Mayor had advised him he
was on Sunday, five days earlier. All this, he said, gave his Majesty
little satisfaction, who expected to hear the fame of his acts in
the open sea, whereof he had committed the custody to his trust. And
though the civil answer sent by the French Vice-Admiral to the Mayor of
Weymouth[485] had been well taken, yet it would have been more for the
king’s honour and the Earl’s also if this office had been done with due
homage to the Earl. And this all the more because there was a common
report that the French had forced some English merchant vessels to
strike sail to them, and that the French and Dutch had visited English
ships,--an act, said Coke, of direct pretence to equal rights in our
seas which the Earl must not suffer; he must not allow English ships to
be visited by the men-of-war of any nation whatsoever, and he must be
careful to protect them from all wrongs. In particular--and the request
should have opened his eyes,--if any English merchant ships came from
the Straits, Spain, or Portugal, with Spanish coin or other commodities
(for Dunkirk), he must take care that no man go on board or interrupt
them. He should convoy English ships in the same way, and for the
honourable execution of his employment he should “strive to keep the
open sea.” Coke concluded by telling him that he “thus freely enlarged
himself” chiefly by the direction of the king, out of his own honour
and interest. In another letter to Viscount Conway, who was on board
the Admiral’s ship and had written a note to Coke of their proceedings,
he used similar language. He did not want to hear of “misinformations,”
but of “noble effects”; he had written to the Admiral whereby he would
“perceive that neither spending time in harbour, nor at anchor, nor
coasting along our shore, would answer the expectation they had of
the fleet.” “You must command the seas or be commanded,” said Coke in
his pompous vein. “Wisdom seeks not danger when with honour it may be
shunned; but where honour and dominion lie at stake, brave men will set
up their rests.”[486]

All which, when he came to know of it, very naturally nettled the
Admiral. He had obtained the information about the allied fleet on 9th
June, three days after he left the Downs, and he had gone in pursuit
as speedily as the weather and the heavy-sailing English vessels would
allow. He was now away at the Scilly Isles, but he failed to see any
French ships, and was duly honoured in the matter of the flag by the
few Dutch men-of-war encountered. He sent further despatches from off
the Lizard on 28th June, explaining his movements, stating that his
ship was leaking, grumbling again about the want of a standard,--“his
commission making him equal to a Lord High Admiral of England,” &c.,
&c.,--and complaining that his letters were not answered. Coke’s letter
awaited him at Plymouth, and in reply to it he said, on 5th July, that
he neither deserved his scorn for a fall in a coach nor his blame for
negligence. Was it his fault that the French sought to avoid him? They
had left the English seas, and they could have done no more if he had
fought with them; but if they came again he should meet and fight
them, time enough. Sir Henry Vane had also written to Conway of the
discontent about the fleet. It was not well taken, he said, that they
did not put over to the coasts of Flanders, Holland, and France,--not
indeed that they should go into the harbours and force them to salute
and strike, but to keep at sea upon these coasts and act according to
their instructions.

Lindsey then stood to sea and plied about in the middle of the
Channel, off the coast between the Lizard and Plymouth, and sometimes
standing over to the coast of France, until the beginning of August,
without finding any trace of the French and Dutch fleet, which was
supposed--and rightly--to be to the southward on the Biscay coast. No
glimpse of the lilies of France could be obtained; not even a pirate
was seen, the presence of the fleet no doubt having scared them from
their haunts in the Channel. On 3rd August Lindsey’s fleet returned
to the Downs for revictualling, what remained of the victuals on board
being very bad,--“the beef is so extremely tainted,” he had written on
21st July, “that when the shifter stirs it, the scent over all the ship
is enough to breed a contagion.” No sooner was he in the Downs than
news came that the French squadron had come back to the English coast,
twenty-six sail of them having been seen about the Lizard. “They haunt
us like a shadow,” murmured the Admiral from his anchorage, “flying
when we pursue, and following when we retreat.”

Lindsey was not far wrong on this occasion, for the withdrawal of the
French ships from the narrow seas on the approach of the English fleet
was due to the sagacious plan of Richelieu. He appears to have been
well aware of the pretext and design of Charles, and endeavoured to
outwit him. At war with Spain, he desired to avert an open rupture
with England. At the same time, it was not fitting that he should
break the tradition of France, or check the maritime ambitions which
aimed at rivalling England on the seas, by lowering the French flag to
the English Admiral. While the Earl was still at the Isle of Wight,
Richelieu ordered the French Admiral to retire with three of his
smallest vessels round Cape Finisterre to Belle Isle, off the coast of
Brittany and well out of the Channel, and to put the rest of the French
squadron under the command of the Dutch Admiral. The French ships
left in the narrow seas were to carry no flags at all, and therefore
could not strike them; and if the combined fleet met the English,
the Admiral of the States would, in his accustomed manner, strike,
without the dignity of France being compromised or Charles being given
the rebuff for which he was seeking.[487] When on the following day
Richelieu learned that the Spanish transports for the relief of Dunkirk
had entered that port, he ordered the combined fleet to withdraw
altogether from the Channel, as their further presence there was
useless and might give occasion for a conflict.[488] Thus it was that
Lindsey could not find them. While Richelieu’s strategy succeeded, the
course adopted was somewhat pusillanimous and not calculated to add
to the laurels of France. He therefore took advantage of an incident
to raise the question of the flag diplomatically with England, in the
hope of having the respective rights of the two nations settled, and
no doubt for other reasons. He complained to Charles that the Earl of
Lindsey--who denied the story--told a Dutch captain of whom he inquired
the whereabouts of the French fleet, that he was “going to make them
lower their colours”;[489] he inquired as to the intentions of the
king, and he proposed that in future the French should salute the
English on the coast of England, and, reciprocally, that the English
should salute the French on the coast of France; while if the fleets
were in the middle of the sea they should either pass one another
without saluting, or the weaker fleet should first salute the stronger.
If Charles did not like these proposals, he was invited to suggest
others.[490] It appears indeed that instructions of a similar tenour
had been actually given to the French Admiral, except that they might
strike to the English when out of sight of the French coast.[491]

Richelieu’s proposals for equality and reciprocity in the narrow seas
were instantly rejected. Coke, in a despatch to the English agents
at Paris, the draft of which was revised by the king, expressed
astonishment that the French ambassador, instead of the negotiation
of a treaty for a confederation between England, France, and the
States-General for the restitution of the Elector Palatine, should
raise “impertinent questions” about the king’s dominion at sea. The
king could enter into no such debate with the French ambassador. But
Coke had assured that personage that the instructions given to the Earl
of Lindsey were no other than had been given in effect in all former
times, and “for near forty years within his own knowledge,”--that the
Admiral should defend and maintain the ancient known rights of the
crown; guard the seas, secure freedom of commerce, suppress pirates,
and oppose hostile acts in prejudice thereof; assist his Majesty’s
friends and allies, attempt no innovation, nor do anything contrary
to his treaties,--and so he presumed that no one would do anything to
impeach his Majesty’s ancient and undoubted rights. But instead of
being satisfied with this “fair answer,” the French ambassador put
into Coke’s hands a regulation he had drawn up, prescribing to both
kings “when and where the one shall vail his bonnet to the other.”
Coke informed the agents that it was hoped this proceeding would be
disavowed; and he instructed them, pending the arrival of the new
English ambassador (Lord Scudamore), to refrain from all discussion
with the French king or his Ministers as to the king’s right to the
dominion of the sea, or about the extent thereof, and to say nothing
further as to the designs of the fleet.[492] Richelieu, who had quite
enough to concern him in the failure of his attack on the Spanish
Netherlands, was content to leave alone the dispute about the flag,
and the French ambassador was requested to say as little as possible
concerning it.[493]

The Earl of Lindsey, failing to find the French fleet and coming to
revictual in the Downs, now bethought himself of the other part of the
king’s private instructions, about the Dutch herring-busses. If he had
been baffled in the attempt to lower the lilies of France, might he
not yet force the herring-boats to take his Majesty’s license before
they cast their nets in his Majesty’s seas? But here, too, obstacles
arose. He wrote to Charles on 2nd August that he had consulted the
ablest men in the fleet, the captains and masters, and they were of
opinion that “his Majesty’s great ships would run much hazard” upon
the northern coasts. Moreover, if the fleet went north, would it not
encourage the French to quit their retreat and “embolden them perhaps
to do that which now standing in awe they forbear to do?” Still, he was
willing to do whatever the king thought best. The king agreed that it
might be better to stay, especially as he thought that before the Earl
could apply himself to that service the fishing season would be past.
Besides, said Coke, who penned the despatch, the fleets his Lordship
had left behind him--“pressing after him,” as he said--were of more
consideration. The king therefore ordered that when the victualling was
completed the fleet should again keep the sea to the westward.[494]

This decision probably saved the Earl of Lindsey, as well as the
king, from further humiliation and disappointment. Even had he at
once sailed to the north, he would have found no Dutch herring-busses
to deal with, any more than he had found the French fleet. For the
Dunkirk privateers, swiftly taking advantage of Richelieu’s withdrawal
of the blockading squadron from their port, had made a bold dash
into the North Sea and overwhelmed the Hollanders off the coast of
Northumberland. More than 100 busses had been sunk or burnt, and 1000
fishermen carried prisoners to Flanders; the rest were in full flight
homewards or pent up in British ports, and the herring-fishing was
ruined for that year.[495]

The calamity soon brought over the Dutch fleet to protect the remaining
busses. Van Dorp, with fourteen French and Dutch men-of-war, arrived in
Calais Road about the middle of August and sailed thence northwards,
thirsting for vengeance on the freebooters. Lindsey detached some
of the ships from his fleet, which lay victualling in the Downs,
for convoys, as well as to punish the “contempt” of the Dutch at
Scarborough (see p. 250), and a few of the smaller vessels were engaged
in looking for “picaroons” in the Straits of Dover. For during the
absence of the fleet, the post-boat between Dover and Dunkirk had been
attacked and pillaged five times within seven weeks, and the packages
containing the king’s letters opened.[496] A French man-of-war, too,
had taken an English ship off Harwich and carried her off to Boulogne.
Such occurrences, and the presence of Van Dorp in the north, delayed
Lindsey’s departure. But on 4th September he again left the Downs with
most of his ships, stood over to Calais and ranged the French coast for
some distance southwards, and then out to sea. Heavy weather coming on,
he had to run for shelter to the Isle of Wight, where the fleet lay
weather-bound, and with much sickness on board, from the 12th till the
29th September. The Admiral then made for the Downs, where he arrived
on 4th October, and on the 8th he struck his flag.[497]

Pennington was left with seven ships for the winter guard of the narrow
seas; and with “private” instructions from the Earl not to suffer any
breach of the peace to be done to any of his Majesty’s allies, nor
to permit his sovereignty to be infringed upon; to give convoys to
merchants when they wished it; to clear his Majesty’s seas of pirates,
and to compel the “due homage of the sea.” Finally, he was to assist
the farmers of the customs, particularly in preventing the smuggling of
tobacco.

It was a fitting close to the first ship-money fleet. The great armada
by which Charles expected to recover the Palatinate, and restore his
sovereignty of the seas to its ancient style and lustre, upon which
the eyes of Europe had been fixed, accomplished practically nothing.
It had snatched a petty prize from a Dunkirk privateer and seized a
Dutch man-of-war in reparation for the “contempt” at Scarborough;
it had convoyed a few vessels, English and Spanish, to Dunkirk, and
as its greatest achievement had caused the blockade of that port to
be raised. No wonder that that tough sea-dog, Sir John Pennington,
when he heard that a still stronger fleet was preparing for the next
year, should exclaim, “God grant they may do more than the present
fleet has done, or the money were as well saved as spent.”[498] No
doubt the fleet had a moral value, if that term can be used about
it, the naval demonstration being an intimation to France and to the
Dutch Republic that Charles was resolved to assert command of the
sea. Whether England could have proved herself mistress of the seas
in 1635, had Lindsey’s fleet been opposed, is problematical. But, at
all events, Charles attained none of his special objects. The sudden
and successful uprising of the Spanish Netherlands against the armies
of France dispelled the fears of Spain, and that power having no
further immediate need of England, the nearly completed alliance came
to naught, and the recovery of the Palatinate was further off than
ever.[499] On the other hand, the Dutch were much irritated. Charles
had denied their right to blockade the Flemish ports against free
commerce,[500] and it was through his action that the privateers had
been able to work such havoc and destruction among the herring-busses.

Something more must be said about one of the duties imposed on
Lindsey, in regard to which it was expected the English fleet would
shine--namely, the homage of the flag. Apart from forcing a number
of merchant vessels, English and foreign, to lower their top-sails,
and some Dutch men-of-war and Dunkirkers, and even one or two of the
French (on the English coast) to strike their flag to the king’s ships,
nothing was accomplished. The politic arrangement of Richelieu foiled
Lindsey and Charles alike, and the great spectacle of the Admiral of
France lowering his flag to the Admiral of England, or giving battle
and refusal, was not witnessed. The disappointment at the English
Court was all the more keen, inasmuch as France, in the treaty of
confederation with the States-General in the beginning of the year, had
stipulated that the Dutch men-of-war should salute the French flag in
the same way as they saluted the flag of England, thus “challenging a
dominion,” as Sir Thomas Roe said, “where anciently they durst not fish
for gurnets without license.”[501]

By this time the question of the striking of the flag had been forced
into great prominence: even the “footpads” of the Channel, the humble
picaroons and shallops, hailed the English ketches which they pillaged
with the cry of “Strike, you English dogs!” It has been shown in a
previous chapter that though the ceremony was enforced in the narrow
seas in the reign of James, it did not then become a burning political
question, and the same is true of the early part of the reign of
Charles. The English commanders were then satisfied with a moderate
acknowledgment of the “honour,” and the Dutch at least rarely ever
contested it. That it was enforced in 1627 appears from the narrative
of the Earl of Warwick’s voyage in that year, when a French man-of-war
was compelled off Falmouth “to come up by the lee,” though nothing is
said about the flag itself.[502] But when France openly aspired to
become a great naval Power, England began to force the salute with
a high hand. It is from the year 1631 that we may date the marked
development of this symbol, as it was claimed to be, of the sovereignty
of the sea. We have already seen Pennington’s instructions in that
year, which, however, only mention the striking of the top-sail; and
although the omission of the flag may have been only verbal, there are
reasons for thinking that the custom and etiquette of the ceremony were
not well understood at the Admiralty. Thus on Pennington reporting
that French men-of-war were trying to force English merchant vessels
to strike to the French flag,[503] he was ordered by the Admiralty “to
see that no one presumes to carry the flag in the Narrow Seas”; all
the more since “some” pretended to have an interest in the sovereignty
of these seas.[504] When Pennington pointed out that this “was more
than ever was done, for our own merchants’ ships and all other nations
ever have and do wear their flags, till they come within shot of the
king’s ships: if they take them in and keep them in till they are out
of shot again, it is as much as has ever been expected,”--when he
told the Admiralty this, he was informed that the “Lords would not
expect impossibilities”--the main business he was to take care of was
to see that no foreigner carried the flag where his Majesty’s ships
were present in the Narrow Seas.[505] Then Captain Plumleigh in the
_Antelope_ reported that on meeting two States’ men-of-war guarding
the herring-fishers off Orfordness, the Admiral had “stood” with the
_Antelope_ with his flag aloft, and did not take it in till several
shots had been fired at him; and when requested to come on board
and explain his conduct, he refused. How, asked Plumleigh, was he
to comport himself in such cases? The matter was brought before the
Admiralty, but no answer appears to have been then given.[506] Two
or three years later Pennington put the same and other queries to the
king. He had been appointed in April 1633 Admiral of the Narrow Seas,
with general instructions already quoted (see p. 262), to preserve the
king’s honour, coasts, and jurisdiction, and to compel homage to the
flag. Pennington asked whether, when a stranger refused to take in
his flag till forced, he should not be “brought in as a delinquent”;
whether, if he met a foreign fleet of far greater strength than his
own, and they refused to take in their flags, he should fight with
them about it “upon so great disadvantage,” or make “a fair retreat”;
whether on going into Calais, Dunkirk, or the Briel--that is to say,
ports in France, Flanders, and Holland--and finding strangers riding
there with their flags aloft, he should force them to take them
in?[507] He also wrote to the Admiralty in 1634 substantially repeating
these inquiries, and asking for a positive or negative expression in
regard to them in his instructions. The Admiralty remitted Pennington’s
letter to Nicholas and Sir Henry Marten to frame answers. The final
opinion on the first point was that by the law of the Admiralty both in
England and France, the ships were forfeited--that is to say, the same
penalty applied as was prescribed in King John’s ordinance. It was,
however, rarely, if ever, carried into effect. The instructions on this
matter usually ran that punishment was to be inflicted at the place,
or the commander brought in to answer his contempt. When the Earl
of Northumberland asked a similar question in 1636, he was told the
offender should be “punished on the place.”[508] In Nicholas’ opinion
much more than the forfeiture of the ship was required; the offender,
he thought, should be brought in as a delinquent, and if he resisted
he should be tried as a pirate; but this absurd interpretation was
overruled.

On the other points it is not quite clear what the final official
answers were. Nicholas thought that when a superior fleet was
encountered, the English Admiral ought not to engage rashly about
the flag; but if he once commanded the foreigners to strike, then
“the ships were better to be lost than his (the king’s) honour and
sovereignty yielded.” The opinion he gave with regard to forcing
foreign vessels to strike in foreign ports was in these words: “For
ye French roades,” he said, “ye king of England’s ships should suffer
none to wear ye flag but themselves: but in other roades after salutes
both may weare ye flag without dishonour.” The exceptional treatment
proposed for ships in French roads may have been in part owing to the
political circumstances of the time, but probably chiefly had reference
to ancient custom and the old claims of England to the soil of France.
Charles still styled himself King of France; and later Selden argued
that though English dominion had been lost in France itself, it
nevertheless extended over the sea up to the very shores. It became the
common practice to enforce the homage on the coast of the Continent,
but not within harbours, ports, rivers, or within buoys, or at any
place under the command of the guns of forts or castles.[509] The Earl
of Northumberland, on repeating Pennington’s question in 1636 as to
Calais, Dunkirk, and the Briel, was told that the homage was to be
exacted “in the roads out of command of any forts.”[510]

There was always some doubt as to the etiquette of the salutation
between ships and forts or castles. Dutch vessels were fired on and
detained at Portland Castle in 1633 for putting up their flags in the
presence of the king’s colours, which were flying on the walls; and
the act was justified to the States’ ambassador when he complained
about it. In the year before, the commanders of the Castles at Deal and
Walmer fired upon a French man-of-war that came in with his flag in
the main-top, because after taking it down when requested, he hoisted
it again on going away. “I gave him five shots,” said the Captain
of Deal, “without hitting him,” and he added that the Council on a
previous occasion approved of a like action against the Dutch, who had
never since offended, but he had never heard of the French attempting
it before. The Admiralty asked Pennington’s opinion as to the proper
course, and he said he thought that all the ships of his Majesty’s
subjects and of foreigners and strangers should strike their flags and
top-sails as they passed by any of his Majesty’s castles; such, he
said, was the custom in all parts of Christendom, “which, being done,
they may ride under the castles with their colours flying abroad if
there be none of the king’s own ships present.” The king’s castles had
thus not so high a status as the king’s ship; but the military officers
were not less zealous than those of the navy. Pennington himself
had an amusing illustration of their zeal, for in 1631 Sir William
Killigrew, the Captain of Pendennis Castle, persisted in “spending
the king’s powder” in shooting at the _Bonaventure_, Pennington’s
ship, for not striking its flag to the castle,--“a thing,” said the
Admiral, “never used by a king’s ship, nor would he be the beginner of
it.” Fortunately, the gunnery of the time was wild; but Killigrew had
to be summoned before the Admiralty, rebuked, and, “upon submission,
discharged with strict command never more to offend in that kind,”
before the practice ceased. The Admiralty also issued an order to the
notorious Sir James Bagg, the Governor of Plymouth and the Vice-Admiral
for South Devon, strictly forbidding that any castle or fort under his
command should fire upon the king’s ship, even if passing near with
their flags on the top of any of their masts, “for,” he was told, “they
are as absolutely his Majesty’s castles or forts, though floating, as
that under your command.”[511]

As was to be expected from the attempted maritime rivalry openly
displayed by France, and from English policy at the time, our naval
officers vied with one another in compelling homage to the flag. The
Dutch, both merchant vessels and men-of-war, more particularly the
latter, usually struck at once to the English ships. If they showed
reluctance, or hoisted their flag again too soon, they were fired at.
The English captains insisted on the right off Continental ports. Thus
Captain Richard Plumleigh, having gone to Calais in 1632 to bring over
the corpse of Sir Richard Walker, late British ambassador, in his
ship--well named the _Assurance_,--“bestowed some powder on the French
flags,” and caused all the French shipping in Calais Road to take in
their colours, “at which,” he said, “they repined heavily.” Some of
the States’ men-of-war also riding in the Road took the side of the
French, and sent to Plumleigh to say that they knew no reason why he
should demand superiority on that side of the sea, and “threatening”
to wear their flags there as well as he. But Plumleigh boldly returned
a message--what he called “a cooling card”--to their Admiral, saying
that if he showed a Dutch flag there, he “would sink him or be sunk by
him,” which caused him to keep his colours close.[512] In the following
year, Captain Ketelby, of the _Bonaventure_, was sent to Boulogne to
bring over another ambassador (Lord Weston), and finding the Admiral
of Amsterdam in the Road with his flag up, he “gave her a shot,” when
she struck it and presently hoisted it again. Ketelby then sent his
lieutenant to command him to take in his flag or prepare to defend it.
The Dutch Admiral argued, and kept it up till Ketelby was preparing to
shoot again, when he took it in. Two days later another Dutch admiral,
this time the Admiral of Holland, came into the Road with ten or twelve
ships of war; within a reasonable distance he struck his flag twice
and saluted with seven pieces, and then he also hoisted it again.
Ketelby “conceived this homage not sufficient,” and notwithstanding
the disparity of force, sent him a command to take in his flag, which
he did, and kept it in till the _Bonaventure_ departed. Such incidents
show both the domineering conduct of the English captains and the
forbearance and good sense of the Dutch, who acted in obedience to
the strict orders they had received to strike to the English ships.
But nearer home Ketelby had not so much glory. On returning with the
ambassador he met ten sail of Hollanders on the English coast between
Dover and Folkestone, one, a States’ man-of-war, bearing his flag on
the main-top, while a merchant vessel had his top-sails “a-trip.” Both
were obdurate as to rendering the accustomed homage, and in spite of
the fact that Ketelby sent twenty shot “in and through” the sides of
the merchantman, she would not lower her sails in the least.[513]

In many instances peaceful merchant vessels suffered greatly over this
question of striking. During the cruise of Lindsey’s fleet, Dutch
men-of-war, and also a Danish warship, struck without hesitation, even
at Calais. So also as a rule did the merchant vessels; but sometimes
they transgressed the rule, it might be from ignorance, and then
they were exposed to harsh treatment. Thus, three great ships of
Amsterdam bound for Pernambuco, on meeting the _Constant Reformation_
off Plymouth, did everything required of them; but hoisting their
sails before they got clear of the _Vanguard_, the latter gave them
six pieces of ordnance, twice sending a cannon-ball through the hull
of one of them. Then for a similar reason, too great an alacrity in
re-hoisting her flag, another Hollander was shot through with five
pieces by the _Rainbow_. So anxious were the English officers to compel
the homage that they sometimes demanded it at night. The _Freeman_,
returning from convoying merchant-ships to Dunkirk, met in the
night-time a fleet of Dutch merchantmen with one convoy accompanying
them, and shot to make them strike. In the darkness the traders took
the English ship for a Dunkirk privateer and made what haste they could
away. The States’ man-of-war, coming up to the rescue, approached
so near the _Freeman_ before she discovered what she was (and then
immediately struck) that a collision occurred, the bowsprit of the
English ship being broken, while her anchor carried away the Dutchman’s
chains and stays. The Dutch captain then came on board, humbly asked
pardon for what had happened, excused himself by the night and the
mistake, offered to go before the Lord Admiral, and paid for the
bowsprit and the shot.[514]

While the Dutch were thus forbearing, the Dunkirkers, the _protégés_
of Spain, for whom Charles was supposed to be making sacrifices, were
refractory. They refused to strike to the _Vanguard_ lying at anchor
off Gravelines, although it fired many times at them: before the anchor
could be got up they were off, and it was useless to follow. They
sent a message that they did not care for the English now, and would
not strike. On the other hand, just as Lindsey reached the Downs at
the beginning of October, Captain Stradling in the _Swallow_ met the
French Admiral, for whom the Earl had been searching all summer, off
Falmouth with two ships. He immediately shot at him, and he struck his
top-sails and saluted. But this was on the English coast, and was not
contrary to Richelieu’s instructions. The French, on their part, a week
or two afterwards forced an English merchant vessel to strike “for the
king of France.”[515]

Perhaps the worst offenders of all were the British merchantmen.
Again and again the naval commanders complained to the Admiralty of
their remissness or neglect to strike, which they said set a very bad
example to foreigners. Pennington reported to the king that they passed
his ships in the narrow seas, not only without speaking, but even
“presumptuously wearing their flag at the topmast head” until forced
to take it in; and he recommended the king to issue a proclamation
commanding all ships to speak with the king’s ships and give an account
of themselves, or be subject to fine and punishment. Pennington asked
what he was to do if any of the king’s subjects were so stubborn as not
to strike their flag and top-sails in due time: “I meane,” he said,
“soe soone as they come within distance of our ordynaunce.” On this
Sir Henry Marten recommended that when an English ship did not strike
in time, the naval captain should complain to his Admiral or to the
Admiralty. He was strongly of opinion that too much discretion should
not be left to the naval officers in this matter. It was, he said,
too much to hazard an English ship being sunk or English lives lost
on a point on which a mistake might easily be made.[516] The official
instruction given to the officers was either to punish the offenders
themselves or to report them to the Admiral or to the Admiralty.
Neglectful merchant vessels were sometimes severely punished. In April
1632, when Lady Strange and a large party of Lords, with a great
retinue, went on board Pennington’s ship, the _Convertive_, lying in
Tilbury Hope, a merchant ship, the _Matthew_ of London, passed up the
river “in an insolent manner,” not striking his flag until he had come
up with the _Convertive_, and soon hoisting it again notwithstanding
the shots Pennington fired at him. For this the master was lodged in
jail, and was only released on expressing his contrition to the Lords
of the Admiralty. The Earl of Lindsey took a sharper course in a
similar case. On returning to the Downs, no doubt irritated from his
failure and smarting under Coke’s gibes, he pounced upon two English
merchantmen who had presumed to wear their flags within full view of
the fleet, “almost within command of shot,” and in the presence of
nearly 200 sail of British and foreign ships. The masters were at once
seized, brought on board and put in custody, and a day or two later, a
council of war having been called and Sir H. Marten consulted, one of
them, William Bushell of Limehouse, captain of the _Neptune_, was fined
£500, and the other, Thomas Scott of Ratcliffe, was fined £100, for so
gross a misdemeanour.[517]

From the foregoing it is evident that in those days peaceful merchant
vessels traversing the narrow seas had not a very happy time. It must
often have been irksome in the extreme to the masters, probably not
always understanding the minutiæ of the rules,--which, indeed, the
naval captains themselves sometimes failed fully to comprehend,--to
render due and proper homage to the English flag. To compel foreign
men-of-war to salute the king’s ships was a different matter. It
flattered the national vanity and kept alive the national aspiration
for power on the sea, and it did not interfere with the duties of the
men-of-war which gave the salute. But to the merchantman anxious for
his voyage, often undermanned and contending with turbulent seas, it
must have been vexatious to be called upon every now and again to lower
his top-sails to a king’s ship, or take the risk of a shot through his
sides or a heavy fine. The inconvenience led later to a modification in
the practice, so far as concerned English vessels, it being insisted
on only “when it could be done without loss of the voyage”;[518]
but it may be said here that the regulation with regard to merchant
vessels striking to a man-of-war was always afterwards embodied in the
Admiralty instructions, offenders being reported to the Admiralty, and
proceedings often taken against them in the Admiralty Court.[519]



CHAPTER VIII.

CHARLES I. NAVY--_continued_.


Considering the failure of his foreign policy and the inglorious fiasco
of the first ship-money fleet, it might be supposed that Charles would
pause in the unusual method he had adopted of wringing money from
the country for empty displays. While the Earl of Lindsey was still
cruising at sea, and before the issue of the second ship-money writs,
he knew that his schemes had miscarried. He was left drifting about
without any definite policy, but still clinging to the plan of the
restoration of his nephew to the Palatinate as the one thing before
him. He was equally ready to ally himself with France against Spain, or
with Spain against France, whichever would be most likely to aid him in
realising that object;[520] and as he had neither money nor troops to
attract a Continental alliance, his only pawn lay in the navy. In the
summer of 1635, while Selden was busy in the Temple at his book, it was
resolved to equip a fleet far more formidable than Lindsey’s for the
following year. Coventry made his speech to the Judges in June, and in
August the second writs for ship-money were sent out. In this case, as
is well known, they were addressed not only to the coast towns but to
the whole of England, with consequences notorious in English history.
The number of ships it was at first intended to set out was forty-five,
totalling 21,850 tons, and with 8650 men, the estimated cost being
£218,000.[521] At the beginning of December the Admiralty considered
what number should be set out in the spring; and by an Order of the
King in Council on December 27th, it was decreed that twenty-four
should be prepared “for guarding the narrow seas,” while ten other
ships should be got ready as a second fleet to reinforce the first, or
to take its place later.[522]

The second ship-money fleet was placed under the command of the Earl
of Northumberland, an able, accomplished, and high-spirited young
nobleman, much better fitted than Lindsey was for the office of
Admiral. This fleet is usually said to have been the most powerful ever
set out by England up to that time.[523] According to Northumberland’s
Journal, it consisted of twenty-seven vessels, all of which were
king’s ships, except three which had been fitted out by London. Sir
John Pennington was appointed Vice-Admiral and Sir Henry Mervin,
Rear-Admiral.[524]

But what was to be done with the fleet? That was a question put by
Windebank in the autumn of the previous year. The king had remitted
to the Foreign Committee two inquiries: what answer he should make to
the French ambassador concerning “a nearer conjunction” with France;
and whether he should declare his neutrality. Windebank argued against
either a French alliance or a declaration of neutrality. Against the
former proposition he urged four reasons, one being that the French
“had challenged a joint sovereignty on the sea with his Majesty”;
and against the latter that the French and Hollanders would besiege
Dunkirk or some part of Flanders, and the king would have to sit still
and suffer it to be lost, or break his neutrality. “Besides,” said
Windebank, clinching his arguments, “what was to be done with the
fleet next year if his Majesty declared his neutrality? it must lie
still and do nothing.”[525] Apparently the problem of what was to be
done with the fleet was not quite solved until the February following,
though there had been several tolerably clear indications that one part
of its duty at least would be the suppression of unlicensed fishing on
the British coasts. Selden’s _Mare Clausum_ was issued from the press
in December 1635, and it was with great satisfaction that Charles
welcomed it (see p. 368). The idea of playing the more distinguished
_rôle_ of Lord of the Sea was not therefore likely to be abandoned
because Lindsey’s fleet had been able to do nothing.

At the same time Charles thought he might get some money as well as
honour by means of his fleet, and he submitted two propositions to the
Lords of the Admiralty for their consideration in employing the fleet
“for his honour and profit”: first, in “wafting and securing” foreign
merchant vessels passing through his seas; second, in protecting all
such fishermen as should fish under his license upon his seas and
coasts. With reference to the latter suggestion, Sir Henry Marten
delivered an elaborate opinion to the Admiralty. He recited how King
James, after long and mature deliberation, had satisfied himself
and resolved that the fishing “in his seas and upon the coasts of
his dominions, did justly appertain unto him as a right incident to
his crowns,” and had issued a proclamation declaring his title and
forbidding unlicensed fishing by foreigners. He also explained that the
United Provinces had then sent over commissioners who alleged continued
custom and present possession of the fishings, “mentioning withall
some treaties that had been heretofore between the Kings of England
and the Dukes of Burgundy” in favour of their liberty of fishing.
After hearing Sir Henry, the Admiralty expressed a unanimous opinion
that “the right and royalty of that fishing upon your Majesty’s coasts
doth undoubtedly belong unto your Majesty by inheritance, so as you
may justly prohibit or license all strangers at your royal will and
pleasure.” They further declared that by reason of his strength at sea,
the time was then most fitting to put his claim into execution; and
they recommended that the States’ ambassador should be informed that
the king had not relinquished his right to the “royal fishing,” but
was “resolved to defend it as the hereditary right and possession of
any other of his dominions.” This intimation was to be wrapped up in
sophistries, lest the Dutch should think the king challenged it at a
time when they had most need of his favour and grace. James had offered
them a bare license for liberty to fish; Charles was to offer them
safety and security as well, and the depredations which the Dunkirk
privateers had committed on the herring-busses were to be used as an
impressive argument to convince them of the benefits they would receive
from his protection. The privateers had driven them from the fishing,
even in sight of English harbours, by which the king was prejudiced
both in honour and interest; but if they accepted his licenses he might
feel justified in drawing his sword in their defence, in spite of any
league or treaty. If, however, the Hollanders should be so wanting in
discretion as to refuse the royal licenses, the Lords of the Admiralty
were “all clear of opinion that his Majesty should renew and publish
the like proclamation to that of the King his father, and prosecute
the settling of that his right as a thing so highly concerning him in
honour, dominion and profit.”

As to the second proposition, the convoying of foreign merchant
vessels, the Admiralty were more guarded in their opinion. They all
agreed that the king was entitled to have profit by it, but not by
way of a general imposition on all ships passing through his seas,
as Charles, fresh from the perusal of _Mare Clausum_, apparently had
proposed. That, they said, would doubtless “draw a just complaint and
clamour” from the neighbouring princes and their subjects. The best
course, they thought, was for a tribute to be taken from such vessels
as desired convoy, in proportion to the value of the ship and the
length of the waftage. The King of England was thus to hire out his
ships of war when any foreign vessels were willing to pay for their
employment.[526]

The instructions to the Earl of Northumberland were issued by the
Admiralty on 7th April, and they were substantially the same as those
given to Lindsey in the previous year. In the clause referring to
hostilities in the presence of the king’s ships, the phrase, “in any
part of the Narrow Seas,” in Lindsey’s instructions, was replaced by
the words “in any part of his Majesty’s seas,”--an alteration of some
importance in view of Coke’s description of the extent of them; and the
same change was made in the title of his instructions.[527] The king
also gave the Earl private and verbal commands, particularly as to the
operations to be conducted against the Dutch herring-busses.

The fleet mustered in the Downs, the Earl embarking in the _Triumph_
on 14th May. Leaving some of the ships to convoy merchant vessels and
guard the Straits of Dover, he hoisted sails on the 20th, and stood
away westwards in search of the French fleet. It was known that a large
number of ships had been equipped by France and lay at Rochelle; and
Pennington had reported at the end of February that twenty-four States’
men-of-war were at Amsterdam, ready to come out and join the French,
and that they were to wear French colours. It was believed that the
intention of the allies was to lay siege to and blockade Dunkirk, and
Northumberland was ordered to keep a watch on them and to force them
to strike. On leaving the Downs he passed over to the French coast,
sailing along it within sight of Calais, Boulogne, and Dieppe, and
then stood over for the English coast. On 26th May he was at Portland;
thence he passed westwards to the Lizard, and cruised between it and
Ushant and within sight of the French coast till 11th June, when the
fleet put into Plymouth. During all this time they got no glimpse of
the fleet for which they were seeking, but they had frequent reports
from passing vessels that it was at the Isle de Rhé, and numbered
between forty and fifty sail, most of which were small and unprepared
to put to sea. Within ten days of leaving the Downs, Northumberland had
apparently satisfied himself that they would see nothing of the French
that summer; he thereupon reminded the Admiralty that the fishing
season was approaching, and requested to know the king’s pleasure as to
whether he should go northwards. On the 14th, the Admiralty informed
him that as the season for fishing began about the 20th June, he was
to repair to the northwards as soon as his other business would permit.
Northumberland received this letter at Plymouth on the 22nd, together
with other information that the French fleet had passed towards
Dunkirk. He thereupon hurried eastwards, arriving at the Downs on 24th
June, and finding that the report as to the movement of the French
fleet was false, prepared for the campaign against the Dutch fishermen.

The Channel cruise of Northumberland’s fleet was thus as barren of
result as had been Lindsey’s in the year before. He fell in with a
few Dunkirk privateers, far too nimble to be caught up by the “great
unwieldy” English ships. When in Portland Road, a glimpse was got
of eight large ships at a great distance, which were thought to be
States’ men-of-war. Northumberland stood towards them, but as soon as
they perceived the movement they tacked about and were speedily out
of sight. “They are so well built and fitted for sailing,” remarked
the Earl, “that I can never come near when they have a mind to avoid,
unless by chance.” It has indeed been well said that whether Charles
was sovereign of the seas or not, he could not build ships that would
sail.[528] For the same reason the English vessels were unable to find
the “Turkish” pirates, which, when the Earl put into Plymouth, came
out of the Irish seas, and carried off about thirty English fishermen
into captivity. During Northumberland’s cruise, Captain Carteret with
six ships was busily employed in convoying such trading vessels “as
desired it” from the English coast to Dunkirk or Ostend, “taking an
acknowledgment in money of strangers.”[529]

But if Northumberland was foiled by the Fabian tactics of Richelieu, as
they had foiled Lindsey, with regard to the striking of the flag, he
succeeded in forcing the Dutch fishermen to take the king’s license,
a policy which Charles had contemplated long before even the first
ship-money fleet was equipped. We have already seen how the Scottish
burghs in the course of the negotiations about the Fishery Society,
repeatedly insisted that the unwelcome Hollander should be driven
from their seas (see pp. 227, 234). As early indeed as 1630 rumours
were rife in Paris that a fleet of fifteen English ships, under the
command of Sir Kenelm Digby, was to be equipped for this purpose;[530]
and there were signs from other quarters of what was impending. In
1634 Sir Nicholas Halse addressed a treatise to the king on Dutch
trade and fisheries, like those so profusely bestowed on James, in
which he drew a lively picture of the ills which arose from their
predominance. The yearly profit derived by the Hollanders from their
fishing in the British seas he placed at £6,000,000 sterling, which
enabled them to maintain their wars; and yet they were so ungrateful
as to say that England would never be well governed until they had
the governing of it. He recommended that the Hollanders should be
licensed to enjoy half the fishings, a course which he said would make
Charles the most powerful sovereign in Christendom,--superlatives
and hyperbole never being stinted in such forecastings.[531] Then
a very influential body, the Merchant Adventurers, exasperated by
certain measures taken by Holland and the States-General with respect
to their staple at Amsterdam, petitioned the Council to retaliate,
and among their retributory suggestions was the prohibition of the
Hollanders from fishing on the British coasts or drying their nets on
the English shore.[532] It would appear indeed that originally one of
the principal ostensible objects of the fleet of 1635 was to force
licenses on the Dutch. Thus Nicholas, the Secretary to the Admiralty,
who was not in the secret of the Spanish negotiations, in a memorandum
drawn up in that year, suggested that the duties of the fleet should
be the suppression of piracy about the mouth of the Straits, and the
establishment of the king’s rights to the fishings in the eastern and
northern seas.[533]

The course upon which Charles had now embarked in reference to
foreign fishermen was a revival of the policy of the “assize-herring”
of James. No foreigner was to be allowed to fish in the British seas
without obtaining, and paying for, a license from the king. James,
as we have seen, demanded his right in a pettifogging way, sending a
scarcely-armed and half-dismantled pinnace among the busses, with a
lawyer on board, to ask the tribute in fair and gentle words, and if
refused “to take out instruments upon the said refusal.” Charles sent
his Admiral with a powerful fleet, and with instructions to force the
fishermen to take the licenses in spite of all opposition. The first
step was to issue a formal proclamation like that issued by James in
1609, forbidding unlicensed fishing by foreigners. The opinion of the
Lords of the Admiralty and their legal adviser (to whom appertained
the jurisdiction of the fisheries) being emphatically in favour of the
king’s claims, the draft proclamation was drawn up and submitted to
them on 3rd May.[534] It was approved, and published to the world on
May 10th, four days before Northumberland joined the fleet.

In this proclamation Charles recited the provisions contained in
the earlier one of 1609, “since which time,” he said, “neither Our
said father nor Our Self have made any considerable execution of the
said Proclamation, but have with much patience expected a voluntary
conformity of our neighbours and allies to so just and reasonable
prohibitions and directions as are contained in the same.” But finding
by experience that all the inconveniences which occasioned the previous
proclamation had rather increased than abated, being “very sensible
of the premises, and well knowing how far we are obliged in honour
and conscience to maintain the rights of our Crown, especially of so
great consequence,” he thought it necessary, by the advice of his
Privy Council, “to renew the aforesaid restraint of fishing upon our
aforesaid coasts and seas, without license first obtained from Us, and
by these presents to make public declaration that Our resolution is (at
times convenient) to keep such a competent strength of shipping upon
Our Seas, as may (by God’s blessing) be sufficient, both to hinder such
further encroachments upon Our regalities, and assist and protect those
our good friends and allies, who shall henceforth, by virtue of our
license (to be first obtained) endeavour to take the benefit of fishing
upon our coasts and seas, in the places accustomed.”[535]

In connection with the proclamation several hundred licenses were
prepared, the precise form of which appears to have occasioned some
trouble.[536] The duty of drawing them up had been remitted in April
to Nicholas and Sir Henry Marten, and on June 14th a hundred of
them were sent to Deal Castle for the Earl of Northumberland, with
instructions from the Lords of the Admiralty. The king, they said, had
told them he had already verbally given the Earl directions to charge
the busses which took the licenses at the rate of twelvepence a ton;
with respect to such as might refuse to accept the license, he was “to
take order that they may not fish in the said seas; and in case they
shall fish without license, he is to send their vessels and fish into
some of his Majesty’s ports till further order.” The Admiralty left
to his own discretion what ships he should take with him, but they
said he would require the bigger ships to repel such force as he might
encounter, and the smaller ships to apprehend the fisher-boats.

The fleet remained at the Downs, victualling, taking in stores, and
waiting for pilots acquainted with the northern coasts, from 24th June
to 19th July. The masters of the ships were unwilling to risk the
large vessels among “the sands and flats” of the east coast, or where
there were no good harbours; and they were all of opinion that if they
went at all, they ought to leave before 12th July, in order to fall in
with the herring fleet north of Buchan Ness. In any case they declined
to go unless pilots were provided, and these had to be obtained from
the Cinque Ports and Yarmouth. There was obviously much reluctance in
the fleet to go on this expedition. The objections and difficulties
were brought to the notice of the king, but Charles stood firm, and
expressed his “pleasure” that the northern voyage should be undertaken;
and Northumberland before leaving wrote to Windebank to assure him
that the fleet would decide the business they had in hand, for either
the Dutch would take the licenses and pay the acknowledgment, or else
the fleet “would put an end to that work.” There could be no doubt of
success, because the men, he assured Windebank, were full of resolution
to do the king’s service and gain credit to themselves. At the same
time, he asked for further instructions with regard to his stay among
the busses--those he had received, he said, being like oracles.[537]

On July 19 the English fleet weighed anchor and shaped its course
northwards in its expedition against the Dutch herring-boats. It
consisted of sixteen ships, one Whelp, and a frigate; and both
Vice-Admiral Sir John Pennington and Rear-Admiral Sir Henry Mervin
accompanied the Earl. Contrary winds compelled them to come again to
anchor, but on the 22nd a fair breeze carried them to the north of
Cromer, on the Norfolk coast. On Sunday, 24th, when at Tynemouth,
the Admiral called all his captains together and gave them precise
instructions in the event of their meeting with any considerable
opposition from the States’ men-of-war guarding the busses. On the
25th, 26th, and 27th, foul and misty weather caused them to ride at
anchor ten leagues off the coast. About noon on the 28th they descried
sixteen sail of herring-busses accompanied by one man-of-war; and
immediately the Dutch skippers observed the English fleet they made
off “with all the sails they could pack on.” Northumberland’s unwieldy
ships started in pursuit--“but in vain,” wrote the Earl, “for none
of our ships could come near them.” The States’ man-of-war was less
fortunate or more courageous. It was from the first far astern of the
busses, and it was soon overtaken by the _Swan_--which, it may be
noted, was a Dunkirk privateer that had been captured and converted
into an English warship. Northumberland kept the Dutch captain on
board his own ship, the _Triumph_, all night, expecting, as he said,
that the busses would not go far without him--for of course they were
liable to be swooped upon by the privateers. But the fishermen now
feared the Dunkirkers less than they feared the English fleet, and
the Earl’s ruse failed. After dark he sent off four ships to try to
surprise them at their nets, but “they plied away all night without
making any stop.”[538] They were well aware of the mission of the
fleet, but they had no mind either for the license or the protection of
the King of England. Next day Northumberland, finding that the busses
“trusted only to their good sailing” and did not return, and that the
convoying men-of-war were not likely to be able to oppose him,--two
or three “very meane ships only able to defend them from the Dunkirk
frigates” accompanying each fleet of busses,--and hearing, moreover,
that the principal fishing was past and most of the busses gone home,
resolved to divide his fleet into three squadrons, the better to meet
in with those which remained. Sir John Pennington was sent to the north
as far as Buchan Ness, and Sir H. Mervin to the south as low down as
Flamborough Head, each with instructions to use his best endeavours to
get the Dutchmen to take the king’s licenses, while the Earl himself
plied “to and again” between them. Next day--Saturday, 30th July--being
misty and calm, Northumberland’s squadron lay at anchor. About noon
they espied four or five sail at a distance, and as there was not a
breath of wind, the boats were ordered to take the frigate in tow and
go towards them; but a breeze soon springing up, all the ships weighed
anchor and stood after them. On getting up to them they proved to be a
Hollander man-of-war and a few busses; but the fog was so great that
they were unable that night to get more than three of the busses,
the skippers of which, as well as the commander of the man-of-war,
were brought on board the _Triumph_. On Sunday four other busses were
captured, and having been manned with English sailors and threats made
that their nets would be taken from them, they at last consented to
receive licenses and pay the acknowledgment, and Northumberland sent
them away “very well satisfied.”[539]

[Illustration: Fig. 10.--_Dutch Herring-busses under sail._ After Van
der Meulen.]

On August 1 the Admiral stood into the Firth of Forth and despatched
to Edinburgh a missive for the Court, telling the good news. Then
the squadron from the 2nd to the 8th of August beat off and on the
coast, going as far north as Aberdeen (5th August) and reaching twenty
to thirty leagues off without seeing any busses. It then turned
southwards, and on the 9th gave chase to two men-of-war guarding a
fleet of busses, the latter, as before, making all haste away. The
Dutch men-of-war coming up to the English squadron, no doubt to inquire
and protest, were promptly manned with English sailors and sent in
hot haste after the busses that had fled. “Yet,” said the Earl, “with
all the wayes we could use, we gott not above 20 of them, though wee
spent divers shott to make them come in.”[540] On the same afternoon
Pennington’s squadron came up from the northwards, where they had
succeeded in distributing only three licenses; and on this day three of
the ships were sent back to port by reason of “divers desertes,” which
made them unfit to keep the sea longer.[541]

[Illustration: Fig. 11.--_Dutch Herring-busses hauling their nets, with
convoying ship-of-war._ After Van der Meulen.]

Passing to the southward of the Firth of Forth on 10th August, the
English squadron, before the day broke on the 11th, had the good
luck to sail into a great fleet of about two hundred busses, which
were guarded by five States’ men-of-war. To thirty-five of these
fishing-boats Rear-Admiral Mervin, whose squadron was found here, had
given licenses on the previous day, and Northumberland now distributed
about a hundred more amongst them, and left the _Convertive_, the
_Bonaventure_, and the _Fifth Whelp_ to act as a guard to them on
behalf of the King of England, with spare licenses for any other busses
that might require them. Next day Northumberland disposed of a few
more licenses and came to anchor, lest the ships should damage the
long drifting-nets of the fishermen. But a heavy gale coming on and
threatening to increase, the Admiral fired a warning gun and weighed
at break of day on the 13th: so furious was the wind and sea that two
of the vessels broke loose, and others had the greatest difficulty in
getting up their anchors, and the English fleet was dispersed. The
_Triumph_ made for Scarborough, where it was joined during the next few
days by the rest of the fleet, and then they all left for the Downs.
On the morning of the 20th they descried twenty sail of good ships,
and on filling sails and standing to them they found they were Dutch
men-of-war, under Van Dorp, who, as we shall see, had been sent by the
States-General to protect the busses and prevent the acceptance of
the English licenses. The Dutch ships, as the Earl carefully recorded
in his Journal, “tooke in all their flaggs, strucke their topsails,
and every ship one after another saluted us with their guns, which
we answered.” Van Dorp went on board the _Triumph_ to explain to the
English Admiral the reason of the presence there of the Hollander
squadron, and when they departed they again saluted. On 22nd August the
English fleet cast anchor in the Downs, and Van Dorp, having arrived
too late to carry out the instructions of his Government, returned to
the Flemish coast.[542]

From the foregoing narrative it is clear that the Dutch fishermen
evaded as much as they could the acceptance of the king’s licenses.
They endeavoured to escape when escape was possible, and only
yielded when they were threatened with the loss of their nets and
the interruption of their fishing; and it would have shown little
wisdom for the few small men-of-war guarding them to have attempted
resistance to a force so superior. Northumberland, however, in his
report, while explaining that from the lateness of the season they had
encountered fewer busses than they expected, said that “those we could
come to speak with, when they were made to understand the business,
have been very willing to take licenses, and are most desirous of the
King’s protection.” About two hundred licenses, he stated, had been
distributed among the busses, and others were left with the ships he
had appointed as their guard.[543]

As was to be expected, the revival in England of the policy of James as
to unlicensed fishing by foreigners on the British coasts occasioned
serious concern in the United Provinces. Since Charles came to the
throne the Dutch had been careful to repress as much as they could
any cause of further complaints from Scotland. In 1628, when they
were informed of the continued “insolencies” of their fishermen, the
States-General renewed their previous edict (see p. 179), and gave
instructions that extracts from it should be sent to the Chancellor
of Scotland; and they issued peremptory orders to the captains of the
convoying ships and the masters of the busses and others to obey it
strictly.[544] When the Fishery Society was instituted, the States were
kept advised by their ambassador in London of its progress and of the
measures proposed to be taken at the Hebrides and on the east coast;
and although they soon perceived that they had very little to fear from
it in the sphere of commercial competition, they rightly suspected
that the project foreshadowed the revival of exclusive claims to the
fishery, such as had given them so much trouble under James.[545] We
have noted also how anxiety was aroused in Holland over the equipment
of Lindsey’s fleet, and that Joachimi, their ambassador, had got wind
of the intention to send some of the ships northwards among the busses.
But the proclamation of 10th May as to “restraint of fishing” removed
any lingering doubts they had of the king’s intentions, especially as
it appeared so soon after the publication of _Mare Clausum_. At that
time the policy of the Dutch was earnestly directed towards detaching
England from the side of Spain and bringing her into line with France
and the Republic, and a special ambassador, Van Beveren, was sent
over to the English Court to help Joachimi in bringing this about.
He arrived in London in March 1636, and in April Coke and Windebank
explained to him that the intention of the king in setting forth the
fleet was to preserve and maintain his sovereignty and hereditary
right over the sea, as well as to furnish convoys for the protection
of traffic; and further, that no one could be allowed to fish in the
British seas without express license from the king, and the rendering
of a proper acknowledgment for the liberty. They told him that the
Dutch fishermen would find the king’s protection against the Dunkirk
privateers both advantageous and profitable. On asking for a statement
in writing of the king’s claims, the Dutch ambassadors were coldly
referred to Selden’s _Mare Clausum_.

In notifying the States-General of this conversation, Van Beveren
asked for prompt and precise instructions how to deal with what he
described as an important, dangerous, and far-reaching business. He
was told by De Seneterre, the French ambassador, that he had received
a similar notification, and that he had expressed the opinion that
it was inopportune to raise at that time a prickly question that had
been sleeping for five-and-twenty years, and which was equivalent to a
tacit declaration of war against the United Provinces. At an interview
which Van Beveren had with Charles on April 25th, he explained that the
main object of his coming was to arrange for open and combined action
against Spain and help to the young Elector to recover the Palatinate;
but the king in a few words put the proposed alliance aside, and began
to speak of the herring fishery. The States-General, always anxious
to burk discussion of this matter, had postponed giving Van Beveren
definite instructions about it, in the hope and expectation that it
would be submerged in the more important business of the alliance.[546]
There were other circumstances which led them to think the king would
not press his claim to the fishery. One was that the publication of the
proclamation for restraint of fishing had been delayed, and even its
promulgation denied. It seems, indeed, that the opinions of Charles as
to his policy on this question were constantly fluctuating, and that
he could scarcely make up his mind as to what it were best for him to
do. Both the young Elector, his nephew, whom Van Beveren had gained
over to his views, and his sister, the Elector’s mother and Queen of
Bohemia, were against any interference with the Dutch fishermen at that
time. It was doubtless with some knowledge of the state of affairs,
that the Earl of Northumberland inquired in May if the king was still
desirous that he should go north against the busses. But in June all
scruples had vanished: the instructions were sent to Northumberland
and the proclamation was widely disseminated. In the States of Holland
the king’s edict was discussed at the beginning of June, and it was
remitted to a committee, with Joachimi (then in Holland) and the Prince
of Orange, for consideration, and to report as to what measures should
be taken to protect the interests of the fishermen. The States finally
resolved to do two things--first, to endeavour by all diplomatic means
to get the proposed action of the king delayed, and second, to equip a
strong fleet to protect the fishermen by force lest diplomacy failed.

In these anxious days Van Beveren kept a tireless eye on the English
fleet lying in the Downs, and reported to the States-General from time
to time anything he learned of its movements or the rumours he heard
concerning it.[547] Twelve days before it sailed for the north, he
informed them that the general opinion was that it would return to the
westwards to look for the French fleet. A few days later he discovered
its real destination, and at once demanded an audience of the king.
Charles received him very courteously at Windsor on the 17th July;
assured him that he would treat the Dutch “as friends”; and explained
that the measures to be taken by the fleet were of a peaceful nature,
and were intended to benefit the fishermen by extending to them the
protection of England against the Dunkirk privateers, from whom they
had suffered so much in the previous year. The payment of a small
acknowledgment would in reality, he said, be very profitable to them.
Van Beveren had accordingly to content himself as well as he could with
these assurances. He received the condolences of the French ambassador,
with whom he had frequent interviews, and who pointed out to him that
the circumstances of the time were such that the wisest course would
be to deprive the king of every pretext for open hostility. If the
matter could only be prolonged under the pretence of negotiations
until peace was concluded with Spain, then indeed France--ay, and even
Spain too, he added--would join with the States in bringing the King
of England speedily to reason. When Northumberland actually departed
for the north, Van Beveren immediately informed the States-General of
the important fact; but it was not long until the king was able to
tell him that the fishermen had accepted the licenses and paid the
acknowledgment “with good contentment.”[548]

The ambassador’s reports, and still more the accounts which soon poured
in from the busses and the convoys of their treatment by the English
fleet, raised a storm of indignation in the United Provinces. Captain
Ruyter sent on, for visual inspection, the safe-conduct or passport
which the Earl of Northumberland had forced upon him; and Joost
Bouwensz, and some of the other skippers who had taken the licenses,
were loud in their complaints. The unheard-of proceeding was discussed
in every seaport town.

The ordinary ambassador, Joachimi, then in Holland, was hurried back to
England--at such a pace, indeed, that two of the horses in his carriage
dropped dead in one day from exhaustion as he sped Londonwards. He was
to express to the king the regret of their High Mightinesses that he
should send his powerful “armada” among the poor herring fishermen, who
had been so much scared and frightened that many had withdrawn from
the fishing altogether and returned home; and the king was to be urged
to suspend further action until the matter had been considered by
commissioners to be appointed by both sides.[549] In his audience with
Charles, Joachimi avoided the long juridical arguments which used to
tire the patience of King James. He laid stress on the close connection
of the fishery question, so dear to the United Provinces, and the
restoration of the Palatinate, in which the States might be able to
afford valuable aid; expatiated on the long and close friendship that
had existed between England and the Netherlands; and depicted in moving
terms the poverty and hard life of the poor fishermen. But it was all
in vain. Charles declared that to ask him to abdicate his sovereignty
of the sea was as absurd as if Spain should ask him to give up Ireland;
and he added--probably with the knowledge that the States-General
had commissioned Graswinckel to answer Selden (see p. 375)--that the
publication of books in France, Spain, and the Netherlands, contesting
his rights, made it necessary for him to vindicate his sovereignty with
all the more strength. The same attitude was maintained in a formal
paper handed to Joachimi a little later, in reply to his proposals
and representations. In this Charles announced his firm intention to
control the fisheries in his own seas. He would only permit foreigners
to fish there if they accepted his license and “acknowledged” his
right, that is, paid tribute. The request for a conference of
commissioners to consider the question was rejected. The king could
not with honour, it was said, listen to such a proposal. His right
had already been publicly confirmed before the whole world, and was
sustained and recognised by all the great kings in performing homage
to the fleet at sea, as well as by the Dutch themselves, who were very
glad of the protection afforded to them.[550] Joachimi had to return to
The Hague without having accomplished anything.

By another channel influence was brought to bear on the king to induce
him to suspend the campaign against the Dutch fishermen. Elizabeth,
the widowed Queen of Bohemia and the sister of Charles, resided at The
Hague, patiently waiting for some lucky turn in the wheel of fortune
which might replace her son in possession of the Palatinate. She
was led to believe that the States would aid in this project, and in
her correspondence with Sir Thomas Roe and Archbishop Laud she often
murmured gently against her brother’s policy. When Joachimi was hustled
back to London, she wrote to Roe that the Dutch were in great alarm
about the herring-busses, and she breathed the wish that “all might
be laid aside at that time” when they had so much need of the States;
“the king,” she said, “might do it upon that consideration, and keep
his claim still good, to take it up again when he would.”[551] Roe
argued on the other side. He thought it would show wisdom on the
part of Holland, and be greatly to her advantage, if, avoiding an
open breach with England, she acknowledged the right of the king and
accepted his protection for her fishermen. In this way the States
would reap all the advantages they already had, and be relieved of
the expense of maintaining a fleet to protect the busses. The king,
he felt sure, could not now recede “without weakening or blemishing
his right, or his power, to all posterity”; he was prepared to guard
the Dutch fishermen and to fight for them as his own subjects; and
as for the “acknowledgment,” that would be really only a small thing
and would not burden the fishing--which would never be thought of. “I
doe confidently affirme to your Majesty,” continued Roe, “that this
affair of ye king is a safetye, an honour, an happines, and utilitye
to them, and will, if they know how to use it as a medicine, heale all
ulcerations and discontents that have beene bred, or aggravated, by
enemies of our mutuall and necessarye amitye.... Therefore I beseech
your Majestie to inform the Prince of Orange clearely, there is noe
other way, if they desire to reconcile, and to oblige the king at once;
and if our amity be to them of any value, lett them beginn to doe right
and honour to his Majestie,”--and they would get more than they hoped
for in other things. At all events, he said, Joachimi had failed to get
any satisfaction of his request to have the “execution” on the second
fishing suspended, for a new command had been sent to the Admiral to
visit the busses again.[552]

This was indeed the case. Northumberland’s success had gratified the
king, and yet it was felt it had fallen short of what it might have
been if they only had got among the busses in time. It was therefore
resolved to send the fleet among the Dutch fishermen who came to the
Yarmouth fishing in September and October, and to continue the process
of forcing licenses upon them. The Earl of Northumberland left the
Downs for Yarmouth on 16th September, taking with him eight ships and
a pinnace; another ship was to follow later. He felt that his task at
Yarmouth would be more difficult than his first had been. Then, the
only advantage the busses had was their good sailing; now they would
have others owing to the season and the place--shoal waters; and if
they avoided the king’s ships, he said, as they did in the north, it
would be impossible to bring any numbers of them into “conformity.” He
also requested fresh licenses, because some words in those he had would
require to be blotted out, which “would not be so handsome to be seen
abroad.”[553]

The weather being stormy, they had to anchor one night off the
North Foreland and the next off Lowestoft, reaching Yarmouth Roads
on the 18th, where they lay for a few days getting pilots and
gathering information about the Dutch fishermen. Hearing that some
Holland men-of-war were cruising outside, the Earl guessed that the
herring-boats would not be far off, and the wind being fair, the
fleet weighed anchor on the morning of the 22nd and stood out to sea.
When clear of the sands they again anchored, and the ketch was sent
out during the night to discover the whereabouts of the busses, but
without success. Next day the fleet stood off farther to sea, but
failed to see or to hear anything of the Hollanders, and being joined
by a ninth ship, the _Swallow_, the fleet lay at anchor in “blowing
weather” about ten leagues from the coast until Monday, September 26.
Two of the ships, the _James_ and the _Nonsuch_, had been driven out
of sight by the gale; two, the pinnace and the _Fortune_ pinck, had
to run nearer shore for fear of foundering; and the Admiral sent the
two London ships, the _Jonas_ and the _Neptune_, into port, because
they were insufficiently victualled. On this day news was brought from
Yarmouth, received from a Scottish ship which had arrived from Zealand,
that the Dutch had forbidden any more busses to go to the fishing that
year, and the Earl advised Windebank to this effect.[554] The rumour,
however, was false, for on the 28th a fleet of fifty sail of busses and
two or three men-of-war was descried to windward, but Northumberland
was able to speak to only three of them that “wanted licenses.” On the
next day, as they were following the busses that “would not come near
them,” they caught sight of another fleet of about sixty sail, with
three men-of-war, and the English ships went amongst them and cast
anchor, and made the convoyers anchor also; “then,” said the Earl, “all
the busses of both fleets came about us; most of them had formerly
taken licenses, and such as were unprovided were then furnished by us.”
Next day, finding no more of the herring-boats “that wanted licenses,”
the English squadron weighed anchor and shortly afterwards perceived
a third large fleet of busses, guarded this time by ten men-of-war.
To this fleet they gave chase, plying up to windward all night, and
on October 1, as the wind prevented the boats being sent out, they
anchored in sight of them. All Sunday it also “overblew,” but as the
weather grew calmer at night the squadron again got under way, and by
daybreak was among the busses, which were, no doubt, busily engaged in
hauling their nets. Northumberland stayed amongst them until October
5, the ships’ boats being kept occupied each day in distributing the
licenses; but they “found it a very troublesome business,” as the
busses dispersed, and it became difficult to distinguish those that
had taken licenses from those that had not. The weather growing misty
and unsettled, and the Admiral being “out of all hope to give out any
more licenses,” the squadron quitted the herring fleet and made for
Yarmouth, where the Earl landed on October 9 and journeyed to the
Court. Altogether, at the Yarmouth fishing, more than 200 licenses
were distributed among over 400 busses which were present, and no
opposition was offered by any of the fifteen men-of-war which were
guarding them. “The unwillingnesse of the busses to come neere us,”
wrote Northumberland to the Admiralty, “hath found us intertainement
for 8 dayes together in following them, but now we have left verie few
of them unprovided of his Majesty’s licenses.”[555]

Thus ended the campaign against the Dutch herring-boats, from which, as
we have seen, Charles desired to reap profit as well as honour. So far
as the profit went, it did not amount to much. Appended to the official
journal of the voyage of the fleet is a statement of the sums received
for convoying shipping,--which, in accordance with the advice of the
Admiralty, was voluntary,--and also of the “acknowledgment money”
taken from the fishing-busses. The former amounted to £999, nearly
all of which was earned by the convoying of merchantmen and small
traders to Dunkirk and Ostend.[556] Small as the amount was, it greatly
exceeded what was exacted from the Dutch busses for king’s license and
protection, the total being £501, 15s. 2d., collected in a variety of
coins.[557] The detailed schedule is as follows:--

  “In Rix Dollo^{rs}      878     163   10  08
  In halfe Crownes        145     018   02  06
  In pieces of 3^s         40     006   00  00
  In Kunnings Dollo^{rs}  100     025   00  00
  In Ryalls of 8          134½    029   02  10
  English money                   018   12  08
  English Gold                    119   13  00
  Dutch and Scotch Angells        015   15  00
  Hungare Duckats           7     002   09  00
  Dutch and French money          001   05  00
  Dutch shillings                 066   00  00
  Double Stivers                  030   00  06
  Single Stivers                  005   06  00
  In Silver                       000   18  00
                                  ------------
                                  501   15  02”

[Illustration: Fig. 12.--_Facsimile of the official account of the
monies received from the Dutch herring fishermen for the king’s
licenses._]

There is probably no circumstance connected with the English claims
to the sovereignty of the seas that has been more frequently
misrepresented by historians, pamphleteers, and writers on
international law than the operations of Northumberland’s fleet, and
in particular the amount paid by the Dutch herring fishermen for the
king’s licenses; and so far as appears, the account given here is the
first that is authentic and correct. Although Northumberland’s Journal
is preserved among the national records, only one author seems to have
quoted from it, namely, Evelyn, and he deliberately misrepresented it.
Under the hands of various authors the sum of money gradually became
swelled to £30,000, or even to £100,000, and it was represented as a
rent paid by the Dutch for permission to fish, and played an important
part in all later controversies and negotiations.[558]

The doings of Northumberland’s fleet at the Yarmouth fishing caused
increased excitement in Holland. Van Beveren knowing, as he said, that
the English ships had not gone northwards “to catch flies,” immediately
sent intelligence of its departure to Admiral Van Dorp, so that he
might extend his protection to the Dutch fishermen. Early in August the
Admiral had been expressly instructed to guard the fishermen “from the
Spanish and all others inclined to molest them”; and he had a fleet
of fifty-seven sail under his command for this purpose.[559] But Van
Dorp was too late. As we have seen, he met the Earl of Northumberland
on the 20th August returning triumphantly to the Downs. On asking the
English Admiral why he was among the busses, he was politely told
“to protect the fishermen,” and when Northumberland asked the reason
of the presence of the Dutch fleet, he received the same answer, “to
protect the fishermen.” It was a perplexing position for Van Dorp.
His instructions were to guard the busses from molestation, but they
contained no article which covered the case as it now presented itself,
and to attack the English squadron under the circumstances would have
been foolish. He therefore sailed back to the coast of Flanders to
watch the Spanish ships. He returned to the English coast in September,
and on the very day that Northumberland left the Downs for Yarmouth the
Dutch fleet was actually lying at that port. Van Dorp again missed both
the English squadron and the herring-busses, and resumed “plying to
and again” between Dover and Calais.[560] The States-General were much
incensed at this failure of their Admiral to prevent the distribution
of the licenses. As they well knew, it furnished Charles with a
precedent, and with the argument that the Dutch fishermen desired his
protection and were willing to accept and pay for his licenses. When a
suitable opportunity occurred in the following year, they forced Van
Dorp to resign his office.[561]

As the herring-fishing was now over for the year, the States had time
to consider what they ought to do in the following season if Charles
persisted in his attempts. On two occasions it was resolved to issue
an edict forbidding the fishermen to accept licenses from any foreign
prince;[562] and this would certainly have been done had Charles
adhered to his policy. But the States naturally hesitated, until it
should be absolutely necessary, to take a step which would at once have
placed them in direct antagonism to England in the eyes of the whole
world, and the publication of the edict was from time to time delayed.
This cautious conduct served their purpose much better, for before
the fishing season of 1637 arrived, the kaleidoscope of Charles’s
foreign relations had taken another turn, and he was anxious to avoid
further trouble with the Dutch. The Earl of Arundel, who had been
sent to Vienna on one of the king’s wild-goose missions, to negotiate
a treaty with the Emperor for the restoration of the Palatinate,
returned unsuccessful to England at the close of the year. He came back
full of bitterness at the perfidy of Spain, and persistently urged a
French alliance, even if it should lead to war with the former Power.
The strenuous arguments of Arundel, as well as the treatment of his
mission, caused Charles to turn again to France, the ally of the Dutch
Republic; and Richelieu promptly proposed an alliance against Spain and
the Emperor, one result of which would have been to range England and
the States on the same side in a maritime war.[563]

At such a conjuncture the promulgation of the edict of the
States-General would have been unfortunate, and Arundel requested
George Goring, who had gone to The Hague, to see the Prince of Orange
in order to get it suppressed. But the Prince of Orange, while anxious
enough to avoid further trouble with England, desired, before he
consented, to receive an assurance that the king would cease from
molesting the Dutch fishermen in the ensuing season. The Queen of
Bohemia urged the same course. She “humbly besought” her royal brother
to suspend further execution of his right, which, she said, he might
take up again when he would, without any prejudice, “as the king,
our father, did.” Charles was loth to give an assurance so wounding
to his vanity, and so opposed to what he conceived to be a chief
prerogative of his crown. In the autumn Sir Thomas Roe had declared
that the difficulty in the way for the benefit of the Prince Elector
arose from the fishery dispute, and that upon nothing was the will
of the king more firmly bent: if the Dutch did not yield, he feared
“another procedure” next season. Even in February, Archbishop Laud told
Elizabeth that the king was “so set to maintain the dominion of the
sea” that he durst not speak to him any more about it. At the same time
he gave a broad hint that nothing further would be attempted against
the Dutch fishermen in the approaching season. He much wondered,
he said, that the Prince of Orange and the States should trouble
themselves to gain an overt concession from his Majesty to leave their
fishing that year, since it was “more than manifest” there would
be so much other work for his navy that the business of the fishing
must needs fall asleep of itself. He would advise a silence on all
hands in regard to it, and not to interrupt “business with moving a
question about that which would necessarily do itself (_sic_) without
questioning.” Sir Thomas Roe also sent the queen assurances in the same
sense. The king, he said, would never retract his declaration of the
dominion of the sea, but “only for this year, and at the request of
the Prince (her son) and in contemplation of concurrence expected with
him, he will not trouble their fishing.” These assurances seemed so far
satisfactory to the States that the edicts were suppressed. They would
be well content, they informed Elizabeth, if the king “forgot it and
spoke no more of it,” which she told them she was confident he would
not, having things of greater importance on hand.[564]

The young Elector, Prince Charles Louis, took a considerable part
in the conversion of the king; or rather, he was made use of by the
Dutch ambassador for this purpose. When Van Beveren first arrived in
London, he let it be known that the States were desirous of doing
something for the Prince; but his hint was not then taken up, since
hopes were entertained that Arundel’s mission to Vienna would make
other aid unnecessary.[565] Arundel was recalled in September; it was
known that his mission had failed, and early in October Van Beveren saw
his opportunity. Through a trustworthy friend[566] the suggestion was
made to the Elector that if some arrangement could be come to about
the fishery question, negotiations might be begun for a treaty between
the States and England relating to the recovery of the Palatinate.
The ambassador learned that the Prince had already taken steps in the
same direction. Through the intermediary of Laud, the proposal had
been made to Charles that the Dutch, instead of paying license-money
for liberty to fish in the British seas, should place at the disposal
of the Elector some ships and soldiers, the king’s proclamation for
restraint of fishing being meanwhile suspended. Charles would not
agree to this. The ambassador, he said, had offered assistance when he
arrived without any hope of an equivalent on his part, and he could
not give up his claim to an acknowledgment of his rights. Van Beveren,
on the other hand, informed his confidant that it was a question of
principle with the States, and that it would be better to break off all
negotiations if the “acknowledgment” was insisted on. Nevertheless,
these private negotiations continued, and finally a draft treaty was
prepared embodying two proposals. The first agreed well enough with
Van Beveren’s instructions. It was to the effect that a fleet should
be equipped to which England should contribute thirty ships and 8000
men, and the States fifteen ships and 4000 men; and France was to be
asked to furnish the same force as England. The combined fleet was to
attack Spain by sea and effect a landing. The second proposal related
to the fishery, and it provided that while these operations were going
on, the Dutch herring fishermen would be allowed to fish freely and
in security, as they had always done from the time of Queen Elizabeth
and King James, approaching the coasts near enough to carry on their
fishing profitably, and to dry their nets on shore, without the king
interfering with them in any way.[567]

This proposition, at first sight apparently favourable to the States,
was rejected by Van Beveren. Although it got rid of the difficulty for
the time, the question was sure to be raised at a later period when the
naval and military operations were concluded; its acceptance would,
moreover, be equivalent to a tacit acknowledgment that the king had the
right to exclude them from the fishery. The ambassador was afraid of a
precedent which bargained as a _quid pro quo_ for what was claimed as a
right; and the negotiations went no further.

But Charles, although unwilling to risk the success of the treaty with
France, from which great things were expected, by openly insisting
upon the acceptance of his licenses by the Dutch fishermen, was
reluctant to abandon his policy. From the readiness with which the
fishermen had taken the licenses after they “understood” them (as
Northumberland reported), he was apparently led to believe that they
really desired his protection, and that the only obstacle in his way
was the opposition of the States’ Government. He therefore decided that
instead of trying--or at least before trying--to enforce the licenses
by means of the fleet in the ensuing summer, the attempt might be made
secretly to induce the fishermen to accept them in Holland before they
left for the fishing. Boswell, the English ambassador at The Hague,
was instructed to try what could be done in this way, and so anxious
was Charles for such acknowledgment of his sovereignty of the sea as
acceptance of the licenses implied, that the ambassador was authorised
to reinforce his persuasion by bribing those who were most influential
among the fishermen. The fishermen, according to Boswell, were not
averse to the proposal, but they very naturally wished to know, first
of all, how the licenses of the King of England would protect them
from the Dunkirk privateers. If the Government at Brussels would
acknowledge the validity of the licenses, or if the Cardinal Infant
agreed to back them with passports of his own, the offer, they said,
would be worth considering; but they could scarcely depend on the
protection of the English fleet alone. As a sign that they were in
earnest, they offered to place £2000 at Boswell’s disposal if he could
get the matter settled in this way. This sum, with the king’s approval,
was forwarded to the English representative at Brussels, to be used in
gaining over the Spanish authorities.[568] The Dutch fishermen were a
practical race of men. They cared little for abstract questions about
the sovereignty of the sea. But they suffered much from the Dunkirk
privateers, and the burden of maintaining convoys was a heavy one.
Any reasonable scheme which promised to free them from the attacks of
their relentless enemy at small cost was bound to be attractive. That
the proposal was seriously considered was also shown by a spontaneous
application made to the Secretary of the English Admiralty on behalf
of the fishermen of Schiedam. The agent in London, Mr Brames, who
supplied them with lampreys for bait, wrote to Nicholas for a copy
of the license granted in the previous year, with a statement of the
rates charged. If the fishermen were pleased with the license and
the price, they would, he said, come themselves for them. Charles
instructed Nicholas to give the information wanted, but only “as from
himself.”[569]

An unexpected obstacle intervened to prevent the plan being carried
out. Gerbier, the British agent at Brussels, chiefly by bribing
the mistress of the Cardinal Infant, had secured a promise that
the passports would be granted; but the Spanish Admiral absolutely
refused to be bound by them. He declared he would not spare a single
herring-boat, even if the Cardinal went down on his knees to him.
He would pay attention to no passport that did not come direct from
Madrid.[570] Thereupon the Dutch fishermen refused to have anything to
do with the licenses which had been sent to Boswell “under the King’s
hand and signet.”[571]

Still, the peculiar resources of Charles were not exhausted. He might
yet, he thought, be able to distribute the licenses among the fishermen
when they came to fish off the British coast, without employing his
fleet for the purpose, or running the risk of war with the Republic.
The third ship-money fleet had assembled in the Downs in April and
May; it consisted of twenty-eight ships, of which nine were merchant
vessels, and the Earl of Northumberland was again appointed Admiral,
his instructions, dated 15th April, being identical with those of
the previous year.[572] The state of the negotiations with France,
and other causes, prevented the king from renewing his enterprise
against either the French for the honour of the flag or the Dutch in
connection with the fishery. The fleet, therefore, to the wonder and
discontentment of the officers, was kept for the most part lying at
anchor, ships being occasionally detached for special purposes.

On 3rd July, Windebank wrote to the Earl of Northumberland telling
him of the failure of the secret treaty with the Cardinal Infant, and
saying that it was the intention of the Hollanders, who had refused
the king’s licenses sent to Boswell, to fish in his Majesty’s seas as
heretofore, many of the busses having already left Holland under strong
convoys. By the king’s commands he sent him about 200 licenses, “and
withal his pleasure is,” said Windebank, “that you dispatch immediately
one of the merchant ships under your charge (being not willing to
employ any of his own until it appear what the success will be) toward
the north with these licenses, with order to make offer of them to
the fishers, and if they accept them to distribute them at the same
rates they were taken the last year. And if such as take them,” he
continued, “desire to be safe-conducted in their return, your Lordship
is to assure them his Majesty will take them into his protection, and
cause some of his fleet to accompany them homewards for their defence.”
But if the fishermen refused to take the licenses, then the Earl was
to notify the fact to the king, who would “take further resolution.”
Sir William Boswell, added the Secretary, had been informed of the
king’s intentions, and told to assure the fishermen willing to take
the licenses of his Majesty’s protection. The Cardinal Infant and
the Spanish Ministers had also been informed, and did not well relish
it.[573]

This despatch, sent by express messenger, appears to have somewhat
surprised the Earl. His clear intelligence must have told him that a
tortuous and fatuous proceeding of this kind could only end by making
the king ridiculous. He apparently wished Charles to reconsider the
matter, and asked for further directions. Ignoring part of Windebank’s
letter, he inquired how Captain Fielding, whom he intended to send,
should behave himself if the fishermen proved obstinate and refused the
licenses; and he pointed out that if they accepted them and the king
resolved they should be convoyed home, it would need a large number of
ships, as the busses returned in small fleets.[574] Windebank two days
later repeated the instruction that, if they refused, the fact was to
be immediately notified, when the king would take further resolution.
“The truth is,” he said, “his Majesty in this present conjuncture is
not willing to proceed so roundly with them as he hath done heretofore,
and therefore thinks fit to hold this way of inviting them fairly to
acknowledge his right without sending his whole fleet, which would be a
manifest engagement and obligation to him in honour to perfect the work
upon any conditions, and notwithstanding any opposition whatsoever,
and might be of dangerous consequence, and destructive to the present
condition of his affairs. And therefore he chooses rather to attempt it
with as little noise as may be, that if the business take not in this
way it may receive the less blow, and in case of their refusal he may
have time deliberately to consider what resolution to settle.”[575]

At this time Charles was very anxious to be on good terms with the
States. Van Beveren, the special Dutch ambassador, who was returning
home, was very cordially received by him on taking his leave on 16th
July. The king then insisted on the States entering the alliance, and
he expressed his pleasure at the courtesies which had been shown to
the Prince Elector. Besides the usual gifts on such occasions, Van
Beveren tells us he sent him a few days later a handsome diamond
ring.[576] But even if Charles had been moved by no special desire
to conciliate the Republic, the preparations which were being made
in Holland to guard the fishermen from molestation might have given
pause to the attempt to repeat the operations of the year before. The
Dutch Government were perfectly aware of Boswell’s intrigues about
the licenses, and they put little faith in the assurances received
through the Queen of Bohemia. They resolved to err on the safe side by
equipping a powerful fleet to protect the busses. In April and May,
Pennington reported to the Admiralty that Van Dorp (not yet cashiered)
was cruising between the Downs and Dunkirk with twenty sail of stout
men-of-war, and that he heard that six French warships were bound for
the north to aid in guarding the fishermen.[577]

Fielding departed on his mission in the _Unicorn_, one of the ships
furnished by London, and on the morning of 18th July he came among the
busses fishing off Buchan Ness, Aberdeenshire. They numbered between
six and seven hundred, and were convoyed by twenty-three men-of-war.
Fielding, according to his account, “found the busses very willing” to
take the licenses, and two did so. Then one of the Dutch warships came
up and lay by him, and the captain asked him to speak to his Admiral
before sending for the busses; “but it blew hard that day and the next,
so that no boat could pass.” On the 20th he spoke with the Admiral of
South Holland and the Commander of North Holland, and explained his
mission; but they would not then give their answer. On the following
day all the commanders of North and South Holland and of Zealand, with
three other captains, told him “that they durst not let his boat pass
among the busses to give out his Majesty’s licenses before they had
orders from their Masters.” This was their answer, but they declined to
give it in writing. The _Unicorn_ then made sail for England to report
the rebuff.[578]

The result of his manœuvre was mortifying to the king. Fielding,
sailor-like, did not conceal the outcome of his mission in diplomatic
reserve. The story soon spread throughout the fleet, and occasioned
both hilarity and indignation. When Fielding left, Pennington expressed
the opinion to his friend Nicholas that the attempt would fail and
would bring greater inconveniences in its train. On his return,
Northumberland said it would have been much better if the king had
absolutely forborne his request to the Dutch than have demanded it
in the manner he did. After the successful campaign of the year
before, Charles was now practically warned off his own seas, “as he
is pleased,” said Pennington, “to call them.”[579] It was a pitiful
position for the Sovereign of the Seas, with a great armada lying idle
at the Downs and his bombastic declarations still echoing in the ears
of Europe.

As soon as it was known at Court that the story had got out, Windebank
was commanded to take such measures as he could to contradict it. To
duplicity was added mendacity. Fielding in his report had described an
occurrence he witnessed on returning along the coast to Scarborough.
Thirteen Dunkirkers had attacked a Dutch man-of-war, and as the
_Unicorn_ came upon the scene the latter sank, and the English captain
unsuccessfully endeavoured to save the drowning men. Windebank seized
upon this incident. He wrote to Captain Fogg, who was in command of
the ships in the Downs in the absence of the Admiral, that the report
spread about that the Hollanders had refused his Majesty’s licenses to
fish in his seas was “utterly mistaken.” Fielding had not been sent
to offer licenses to the busses, but to tender the king’s protection.
His Majesty, hearing “that the Dunkirkers had prepared a great
strength to intercept them in their return from the fishing,” had sent
Fielding, “in love to them,” to give them notice of it, and to offer
them safe-conduct. “This,” said Windebank, “you are publicly to advow
whensoever there shall be occasion, and to cry down the other discourse
as scandalous and derogatory to his Majesty’s honour.”[580] Similar
directions were sent to the Earl of Northumberland.

At the beginning of August 1637, Charles, conscious of the ridicule
that would ensue if the third ship-money fleet lay at anchor all the
year, and yet having nothing for it to do, sent it to the west--“to
make one turn in an honourable procession, to continue the boundaries
of our master’s dominion in the sea,” as Roe, with gentle sarcasm,
described it. It got as far as the Land’s End, and returned to the
Downs on 5th September, having “scarce seen a ship stirring on the sea,
except the poor fishers that dwell upon the shore.”[581] Windebank
told Northumberland that the king was “very sensible” of the story
which was being told about the licenses, and that he had been specially
commanded to give the refutation of it in charge of the Earl, “and
that you should do it in the same way that I have directed him (Fogg),
namely, that his being sent to the busses was to give them notice
of the forces prepared by the Dunkirkers to intercept them in their
return, and to offer them his Majesty’s protection, but no licenses;
that of the licenses to be cried down and the other to be advowed
and reported through the whole fleet.” Fielding was to be admonished
to be more reserved in future “in such great services,” and in the
meantime to “make reparation by divulging this and suppressing the
former report.”[582] Captain Fogg readily agreed to suppress “the false
report,” as he called it; but what Northumberland’s answer was does not
appear. He seems to have received the king’s commands only on returning
to the Downs, and he left the _Triumph_ a few days thereafter. What he
thought is not doubtful: he was getting disgusted at his employment.
“No man,” he wrote to Roe, “was ever more desirous of a charge than I
am to be quit of mine, being in a condition where I see I can neither
do service nor gain credit.”[583]

There is clear evidence indeed that by this time the naval officers, as
well as the people generally, were becoming tired of the king’s great
pretensions and small performance. Even Pennington, a simple, loyal,
unimaginative man, always ready to obey orders, had begun to joke, as
we have seen, at the king’s seas, “as he is pleased to call them.”
Throughout the country discontent was deepening. The opposition to the
collection of ship-money was growing formidable, and the declaration
of the Judges in favour of the king’s right to levy it only postponed
the inevitable for a little.[584] In his letter to the Judges, Charles
based his case on the necessity of maintaining his sovereignty of the
sea. The honour and safety of the realm of England, he said, “was
and is now more neerely concerned then in late former tymes, as well
by divers councells and attempts to take from Us the dominion of the
seas (of which we are sole Lord, and rightfull owner and proprietour,
and the losse whereof would bee of greatest danger and perill to this
kingdome and other our Domynions) as many other waies.”[585]

[Illustration: Fig. 13.--_The “Sovereign of the Seas.”_ After
Vandevelde.]

The king’s dominion on the sea was rapidly waning. Fielding’s ignoble
mission was the last attempt that fate permitted Charles to make in
actively asserting it. The shadow of the coming revolution was already
upon him. The trial of Hampden for refusing to pay the ship-money
focussed the attention of England, and it was followed by complaints
of other grievances arising from the personal government of the king.
The popular tumult in Edinburgh in the summer about the new Liturgy
had as a sequence the National Covenant and insurrection. Charles
found another use for his fleet than the enforcement of his sovereignty
of the sea in the expedition to Scotland to subdue his rebellious
subjects; and the British seas, even the King’s Chambers, were soon
again the scenes of flagrant acts in violation of his authority. By a
strange irony it was at this time that the king’s “Great Ship,” the
famous _Sovereign of the Seas_, whose praises were sung by Thomas
Heywood, the dramatist, was launched at Woolwich. Its construction had
been under consideration for several years; it was begun in January
1636 and launched early in October 1637. Charles took a keen personal
interest in his great ship, and supervised its details. He selected a
scutcheon and motto to be engraved on each of its 102 brass guns--the
rose and crown, sceptre and trident, and anchor and cable, with the
inscription, _Carolus Edgari sceptrum stabilivit aquarum_--Charles
established the dominion of Edgar over the seas; and on the “beak-head”
sat the effigy of King Edgar, trampling on seven kings.[586] As its
name implied, it was meant to be a symbol as well as an instrument of
the king’s sovereignty of the seas; and it was symbolical of it in
a sense undreamt of by Charles. It was costly, highly decorated and
begilt, but useless until it was cut down and made serviceable under
the Commonwealth. He inserted it in the list of ships to serve in the
fleet that assembled in the Downs in 1638, but it was not ready to
join.

This fleet consisted of twenty-four king’s ships and seven merchant
vessels, and, owing to the illness of the Earl of Northumberland, it
was placed under the command of Sir John Pennington.[587] It did still
less than the fleet of the previous year. Two ships were sent to the
westwards on an alarm that “Turkish” pirates were in the Channel; it
convoyed two vessels laden with gunpowder into Dunkirk, notwithstanding
the blockade by the Dutch, and returned to the Downs; and two ships
were despatched to the north to intercept supplies of arms and
munitions of war from Rotterdam and Bremen to the Scots. There was not
even the “one turn in an honourable procession” to the westwards as in
the previous year, and the fleet rode idly at its anchorage.

The question of the “homage of the flag” had by this time also fallen
somewhat into the background. In the two preceding years it had been
enforced with much zeal. In 1636, when Northumberland’s fleet was
among the herring-busses, Captain Carteret, in the _Happy Entrance_,
forced a Spanish fleet of twenty-six sail to strike to him off Calais,
though they tried their best to avoid it. A Dunkirker was also made
to strike and “lie by the lee” off Nieuport by Captain Slingsby. But
the French still refused to lower their flag when on the other side
of the Narrow Sea. Sir Henry Mervin, on meeting two French men-of-war
off Gravelines with their colours in the main-top, fired some twenty
shots at them without causing them to strike. In the Mediterranean the
French retaliated. An English vessel on the coast of Barbary was forced
to lower its flag to French ships of war, and because the captain
refused to go on board them when requested, the ship was attacked and
captured. In the following year Captain Straddling of the _Dreadnought_
used drastic measures against some Hollander merchant-ships. Falling
in with four of them off the Lizard, homeward bound from Brazil, with
their flags abroad, he commanded them to strike. One refused till many
shots were fired, excusing himself afterwards by saying he thought the
English ships were Dunkirkers. Straddling took him into custody, and
lodged him in Plymouth fort “to answer his insolence and contempt of
his Majesty’s regality in these seas,” and he remained a prisoner there
for a fortnight before he was released by order of the Admiralty.[588]
But in 1638 there were few incidents of this kind, probably because of
the fleet lying at anchor so long, though it may be supposed that the
general condition of public affairs did not whet the zeal of the naval
officers.

It was not long before advantage was taken abroad of Charles’s troubles
in Scotland. In the early part of 1638 Pennington reported that there
were many Hollander, French, and Dunkirk ships at sea, and that they
were pillaging English vessels;[589] but the king was unable to protect
even the herring-busses of the Fishery Society that he had taken under
his peculiar care. The Dunkirkers, emboldened by immunity, took four
of them in 1639, and then daringly anchored in the Downs. The Dutch
men-of-war became bold, and then insolent. They began by protecting a
Calais vessel that had rifled an English ship, their Admiral refusing
to surrender her. Soon their fleets visited the English coasts in
menacing strength, and although they “performed their duty” in the
matter of the flag, they insisted on their right to stop and search
English vessels, even in the King’s Chambers. “The Hollanders’ ships,”
wrote Northumberland’s secretary to Pennington in June 1639, “begin
to be very bold in our seas, and lie about Portland with fifty sail,
examining and searching all English ships and others which pass
by them, so that in effect they command where the King challenges
sovereignty.” The English merchants, he said, made great complaint that
their trade was likely to be destroyed; they were “much perplexed, and
called to mind tonnage and poundage, for which his Majesty was pleased
to promise thirty sail of his ships to secure trade in the Narrow
Sea.”[590]

The truth was that English ships had been engaged in transporting
Spanish troops and bullion to Dunkirk, and that the Dutch were merely
exercising their rights as belligerents. Their action was nevertheless
a plain flouting of the high pretensions of the king, and it was
the more disagreeable because Charles had now again veered round to
the side of Spain. He was much moved at the “insolencies” of the
Hollanders, which “concerned his honour” and “put his sovereignty in
hazard”; and the Earl of Northumberland, who had been created Lord High
Admiral in the preceding year, also expressed himself as much afflicted
that such affronts were put on the nation in his time. It was, said
Windebank, a very high disorder that any of the king’s neighbours
should presume to lie with a fleet in his Majesty’s Channel, near his
ports, and where he justly claimed sovereignty, and arrest and search
English ships, taking out of them “such persons, being passengers, as
they please”; “especially”--and this no doubt was a potent reason of
the king’s displeasure--“since the merchants and others took occasion
by such pretences of interruption of their trade to make difficulty to
pay their ship-money, which his Majesty is resolved to maintain.” The
king therefore commanded Pennington to put a stop to these affronts and
to preserve the sovereignty of the narrow seas, so “that trade may be
free and open, as well to his Majesty’s subjects as to others in league
and amity with his Majesty, and that peace be kept and the merchants
secured according to his Majesty’s proclamations and declarations
published heretofore to that effect.”[591]

It was one thing to indite imperious commands in London as to the
necessity of maintaining the king’s sovereignty of the seas; it was
quite another thing to carry them out in the Channel in the presence of
a powerful Dutch fleet under the new Admiral, Maarten Harpentz Tromp.
Pennington, conscious of his impotency, tried at first to justify, or
at least to extenuate, the action of the Dutch men-of-war. They only
took out of the English ships the Spanish soldiers, he said, who were
being carried to Flanders; they were most civil and courteous while
doing so; in reality, it was the English captains who had committed the
greater insolency. At all events, before attempting any reparation, it
would be only prudent to have an overmastering force, lest greater loss
and dishonour should happen, because, he said, the Dutch were in great
strength, and it was reported that the French fleet was about to put
to sea. Pennington was nevertheless ordered to prevent the affronts
as best he could. He then said he would do his best; but he had only
four ships available, and he asked for express orders how far he should
proceed if he were resisted with overmastering strength.[592]

But the question of the right of search was for the moment relegated
to diplomatic channels, and before anything could be done, either by
peaceful agreement or by Pennington’s ships, another event put an end
to it, and dissipated the king’s dreams of the dominion of the seas.
The battle of the Downs was fought between the Dutch and the Spaniards
on 11th October 1639, in spite of Charles’s express prohibition, and
in spite of his helpless fleet. So glaring a violation of one of the
King’s Chambers within three years of the appearance of Selden’s
_Mare Clausum_--an injury which he was as unable to prevent as to
redress--proclaimed to Europe that he was no longer sovereign over the
sea that was incontestably his own.

At the end of August a large Spanish fleet, consisting of some thirty
great galleons and thirty-six transports with troops for Flanders, set
sail from Corunna. On 6th September it was attacked in the Channel
by a Dutch squadron of seventeen ships, and a running fight was kept
up, the Spaniards passing eastwards off the English coast. Tromp,
engaged in blockading Dunkirk, heard the cannonading, and on the 8th
he joined the Dutch squadron with fifteen sail, when a fierce battle
took place in the Straits of Dover.[593] The Spanish Admiral, Don
Antonio de Oquendo, having expended all his powder, took refuge with
his shattered galleons in the Downs on 9th September, whither Tromp
followed him. Great anxiety was felt in London, first of all lest the
powerful foreign fleets should refuse to strike to the small English
squadron under Sir John Pennington, and then lest they should begin
hostilities in the King’s Chamber. On the former point doubts were soon
set at rest. Tromp at once took in his flag in the presence of the
English ships, a “civility” with which Charles was pleased. So also
did the proud Spaniard, but only after preliminary refusal and demur;
and Pennington’s insistence that the standard of Spain should be
lowered was made a subject of complaint at Madrid.[594] Anxiety on the
second point was protracted, and it was not diminished by the reports
that were received that the French fleet was coming to reinforce
their allies the Dutch. Pennington, in the most emphatic manner, had
forbidden hostilities within the King’s Chambers, and he assigned the
northern part of the anchorage to the Spaniards and the southern part
to the Dutch. For several weeks the belligerent squadrons remained in
the Downs facing one another. The Spanish Admiral, a few days after his
arrival, succeeded under cover of night in despatching to Dunkirk some
of his smaller vessels laden with soldiers. Tromp and Oquendo appealed
to Charles through their respective ambassadors, “and then ensued an
auction, the strangest in the annals of diplomacy, in which Charles’s
protection was offered as a prize to the highest bidder.”[595] On the
one hand, he demanded £150,000 from Spain, and better treatment in the
business of the Palatinate, as the price of securing the safety of the
Spanish fleet.[596] On the other hand, he declared himself ready to
abandon the Spaniards to Tromp, if France would come under a binding
promise to place Charles Louis at the head of the army which had been
commanded by Bernard of Weimar--as a means, of course, to recover the
Palatinate.[597]

While waiting the highest bid from one or the other, the king’s
commands regarding the fleet were puzzling and contradictory.
Smith, Northumberland’s secretary, who carried on a confidential
correspondence with Pennington, wrote to him that the king, when the
difficult situation of the English fleet was explained to him and he
was asked for explicit instructions as to how the Admiral should act,
“would not give any express declaration.” “I earnestly pressed his
Lordship [the Earl of Northumberland] to prevail with his Majesty,”
he said, “that you might have some justifiable instructions how you
should demean yourself.... To all this he told me that he had often
pressed his Majesty to declare his resolution, but never could get
any.” Smith privately advised Pennington to make a show of assisting
the Spaniards if there was a fight, but not to run himself or the
king’s ships into danger where there was no hope of victory and “the
only expectation was hard blows and hazard.”[598]

Desperate efforts were hurriedly made to strengthen the English fleet.
Ten additional ships were being got ready, and Northumberland intended
to take command himself as soon as they reached the Downs, but of the
3000 men which the Admiralty were “labouring” to procure for them,
only 300 could be obtained; they did not join Pennington till some
days after the battle. Pennington had been ordered to press into his
service all English ships he could lay his hands on, and to employ them
“in any warlike manner against any that shall presume to affront his
Majesty, or derogate from his sovereignty in these parts.”[599] Ten
vessels were thus pressed; but it was impossible to find seamen to man
them properly, and by command of the king some of them were dispensed
with. In presence of the powerful States’ fleet, to say nothing of the
Spaniards, Pennington’s instructions to the masters of the merchantmen
must have sounded somewhat ironical. If either of the “great fleets,”
he said, should presume to attempt anything in the King’s Chambers
“contrary to the laws and customs of nations and to the dishonour of
our king and kingdom, you are to fall upon the assailants, and to do
your best to take, sink, or destroy them.” Moreover, if any ships of
the hostile fleets assembled, “or any others that may come,” should
put out a flag, they were to cause them to be taken in; if refused,
they were to do their best to sink the offending ship.[600] The “any
others” meant the French, who were expected daily in the Downs, and
whose arrival there was regarded with apprehension. The general opinion
was that they would refuse to strike when they came, and, in that
event, what would happen? “That,” said Smith, “will set us all in
combustion, for then we must _strike_ them, although peradventure to
our own prejudice. But this punctilio of honour,” added the secretary
to the Lord High Admiral, with prophetic instinct, “will one day cause
more blood to be drawn than ere it will bring profit or honour to our
king.”[601]

Meanwhile Tromp and his resolute men were getting impatient. Since they
had cooped up the hated Spaniard in the English roadstead, they had
been reinforced from Holland, so that the Dutch fleet was soon in the
overwhelming strength of a hundred sail. Tromp also knew that Charles
had arranged (for a substantial consideration) to supply the Spanish
Admiral with gunpowder, of which he stood in dire need, and that thirty
Dunkirk sloops had succeeded in joining Oquendo. Above all, he had in
his pocket the express orders, just issued by the States-General, “to
destroy the Spanish fleet, without paying any regard to the harbours,
roads, or bays of the kingdom where it might be found.”[602] He
promptly seized an opportunity to carry out his orders. Information
reached London on 8th and 9th October that the Dutch were preparing to
attack. Commands were at once sent to warn them to desist, and they
were informed that the king was going to fix a short period for the
departure of both fleets; and this message was conveyed to the Dutch
Admiral. On the evening of the 10th, the gunpowder for the Spanish
fleet came alongside, and the accidental discharge of a gun on one
of the Spanish ships killed a Dutch sailor. This was enough. Before
the fog lifted next morning Tromp’s fleet was under sail; the roar of
cannon announced that the attack had begun; and within a few hours the
Spanish galleons were driven ashore, burnt, sunk, or in flight for
Flanders, with Tromp in hot pursuit. The English Admiral acted on the
prudent advice which had been given to him by Smith. He made a show
of resenting the violation of the King’s Chambers by firing at the
Dutch. In Madrid it was afterwards said he had fired his guns into
the air, but Pennington himself tells us that (although he affected
to believe the Spaniards had begun the combat) he “chased and shot at
the Hollanders” until they were all beyond the South Foreland; but the
Hollanders took no notice of him. On the morning of the battle Tromp
sent a letter to Pennington which was more than tinged with irony.
Since the Spaniards, he said, had infringed the conditions fixed by
firing at him first, the English Admiral should assist him in fighting
them, “according to his Majesty’s orders.” At all events he--Tromp--was
resolved, by instructions from his masters, to fall upon his enemies,
and to defend themselves “against those that shall resist them.” The
Dutch would rather die as soldiers, he said, “with his Majesty’s leave
in clearing his Majesty’s Road,” than fail to carry out their orders;
and he hoped that this would be “acceptable to his Majesty, but if his
Majesty should take any distaste we hope he will graciously forgive us.”

After pursuing the remnant of the Spanish fleet to Dunkirk, the Dutch
Admiral returned triumphant to the Downs, and saluted the English
squadron by striking his flag and firing nineteen guns,--“as a token,”
says an ironical observer, “that his Majesty was Sovereign of these
his seas!”[603] Tromp indeed, in those years, was most punctiliously
respectful to this symbol of the king’s sovereignty. Even during the
height of the battle, when he was violating not merely the sovereignty
claimed by Charles but the well-understood Law of Nations, he kept his
flag down until he was a good way off from the Downs,--a circumstance
which Pennington reported with satisfaction. Had the Dutch Admiral
shown the same willingness to strike to the flag of the Commonwealth
when he encountered Blake thirteen years later, the war that followed
might, perhaps, have been averted, or at least postponed.

Charles was very naturally highly incensed at this open flouting
of his authority. It was an ugly blot on the lustre of his ancient
prerogative, and a painful proof of the contempt in which his
much-vaunted naval power was held by the Dutch Republic, and--what
perhaps he felt quite as much at the time--it robbed him of all chance
of blackmailing Spain. When that Power was asked to pay the great
sum above mentioned, the Cardinal Infant put the proposal aside,
considering that it was the king’s own interest to protect the Spanish
fleet; and when Tromp’s precipitation broke in on the negotiations,
it was decided to withhold any payment at all until it was seen how
Charles would resent the injury done to Spain.[604] At first he
resolved to punish the affront. Pennington was ordered to cause the
Dutch fleet, which had returned to the Downs, and was suspected of
meditating further “insolency” by falling upon the stranded galleons,
to immediately quit the road. The king, he was told, had made up his
mind not to allow them the liberty of his ports or roads “until he
shall have received satisfaction for the insolency already committed.”
If they refused to leave, Pennington, immediately the other ten ships
had reinforced him, was to drive them out with all his power and
strength, or answer the contrary at his uttermost peril. Before these
orders could be executed, Tromp voluntarily departed.[605] Copies of
the letter to Pennington were sent to Brussels and Madrid to show
the Spaniards that the king was full of resolution. They were told
he was very sensible of the affront and insolence of the Hollanders,
and “would make such demonstration of it, and demand and expect such
reparation as in honour he is obliged.” But he was quite unable to
carry out his good intention. It was in vain that he was urged from
Madrid to take strong measures against the Dutch; to seize their
property; even to invade Normandy as a punishment to their ally.[606]
He had no fleet and no money to enable him to cope with the Dutch
Republic, even if the condition of home affairs had permitted the
attempt. On the contrary, to such a level had he fallen by his stubborn
ineptitude that the English Minister at The Hague was ordered to avoid
even a remonstrance about Tromp’s high-handed action in the Downs. If
the States-General mentioned the matter to him, he was to say that he
had received no instructions, “and so to refuse any conference on that
particular.”[607]

The Dutch Government had expected that Charles would raise loud
complaints, and they decided to take a bold attitude. On the day that
they received news of Tromp’s victory the proposal was made to send
over an ambassador, and Aerssen Van Sommelsdijck, who was chosen for
the mission, reached London early in November. There was to be no
attempt made on this occasion to appease the king with soft phrases and
show of submission. Aerssen was to complain of the action which England
had for a long time taken in favouring the Spaniards. The violation
of the King’s Chamber was to be passed over, and the battle in the
Downs represented as having been merely a continuation of the first
fight in the Channel, which forced the Spaniards to take refuge in
the English roadstead. But the pains taken by the States-General were
hardly necessary. Charles in his perplexity did not know to which side
to lean. He received the Dutch ambassador in a very friendly way, and
began to speak again of an alliance with the Republic.[608] In another
direction he was flouted by the Dutch. On the 1st October, while the
belligerent fleets were at anchor in the Downs, his representative at
the conference at Hamburg proposed that if the Republic joined the
projected alliance with France, Charles would grant them liberty to
carry on their herring fishery in the narrow seas. At the very time
that Tromp was battering the Spanish galleons in the King’s Chamber,
the States-General were engaged in passing the resolution “that they
did not intend to ask for the right of fishing in the North Sea from
any one.”[609]

A year later, the Long Parliament began its sittings at Westminster,
and Charles was rapidly stripped of sovereign power within his own
kingdom. The Dutch, conscious that they and not the King of England
were the real masters of the sea, became overbearing in their conduct.
More than ever their fishermen indulged in the bad treatment of British
subjects, which this country was unable to prevent. But their triumph
was short-lived. A decade later they were smitten by the heavy hand
of Cromwell, who resumed the sovereignty of the sea. It is to the
period beginning about this time that the Dutch trace the decadence
which set in in their great fisheries as well as the decline of their
trade. It is, however, a satisfaction to think that the part played
by this country in causing the misfortunes of Holland--a country to
which civilisation is indebted for immense advances, both material
and intellectual--was comparatively small. From about the middle of
the seventeenth century to the peace of Utrecht, in 1713, the Dutch
Republic was involved in almost constant wars with its Continental
neighbours, and the herring-fishery and the trade in general suffered
severely, and never afterwards regained the prosperity they formerly
enjoyed.



CHAPTER IX.

THE JURIDICAL CONTROVERSIES.


The great juridical controversies respecting _mare liberum_ and
_mare clausum_--the sea open to all, or that under the dominion of
a particular Power--which enlivened the international politics of
the seventeenth century, reached their highest pitch in the reign of
Charles I., and may be conveniently considered here. The writers who
touched upon the question in the previous century took it for granted
that the seas were capable of appropriation, and that they were almost
wholly under the dominion of one Power or another. It is true that
now and again a slender voice was raised in protest, on abstract
legal grounds, against the exclusive maritime sovereignty arrogated
by Venice, Portugal, or Spain. Queen Elizabeth too, as we have seen,
not only protested against these claims in certain cases, but actively
opposed them. Her action, however, pertained rather to the sphere of
diplomacy and politics than to legal controversy; and the protests of
the few jurists alluded to were too feeble to have practical effect on
the course of events or on the prevalent opinion.

It is noteworthy that the birth of modern international law was
associated with the origin of these juridical controversies as to
the freedom of the sea.[610] It was the appearance of _Mare Liberum_
in 1609 that heralded the dawn of the new epoch. The little book of
Grotius was at once a reasoned appeal for the freedom of the seas
in the general interest of mankind, and the source from which the
principles of the Law of Nations have come. The main reasons why
the controversy broke out at that time and the pleas of Grotius
had so much success are not difficult to discover. The period was
characterised by a great expansion of commercial enterprise. The
Western Powers of Europe, and above all the United Provinces, were
pushing into every sea for the sake of traffic and gain. In some
directions the trading adventurers found their way barred by claims to
_mare clausum_ and monopoly of trade; in other directions it was open
to them only under heavy burdens and aggravating restrictions. The
northern seas, in theory at least, were closed to the whaling vessels
engaged in what was then a most valuable business; and commerce and
fishing within them were permitted only under irksome conditions. The
passage through the Sound into the Baltic was subjected to high dues
by Denmark; Venice claimed dominion in the Adriatic and levied imposts
for the right of navigation there, and Genoa followed her example in
the Ligurian Sea. But it was not so much the claim of Denmark to the
sovereignty of the northern seas, or the rights asserted by Venice
in the Adriatic, that led to the outburst for the freedom of the sea
and of commercial intercourse at the beginning of the seventeenth
century. Except with regard to English traffic with Iceland and
Norway and the fishing there, more or less regulated by treaties, the
Scandinavian claim at this time was not of great practical importance;
and the dominion of Venice over the Adriatic was generally regarded
as beneficial on the whole, by interposing a powerful barrier to the
further extension of the Turkish empire in Europe, and by facilitating
the suppression of pirates and Saracens.[611] It was the extravagant
pretensions of Spain and Portugal to a monopoly of navigation and
commerce with the New World and the East Indies that constituted the
great obstacle to the new spirit of commercial enterprise. Founding
their title on the Bulls of the Pope, and the right of discovery,
conquest, and prior occupation, they arrogated to themselves the
exclusive sovereignty of the great oceans which were the pathways to
these immense regions,--the Atlantic, the Indian Ocean, and parts of
the Pacific. Thus, as Grotius remarked, the whole Ocean except a little
was to remain under the control of two nations, and all the other
nations of the earth were to content themselves with the remnant.

The commerce with the East Indies was of special value and importance.
The discovery of the Cape route by Vasco di Gama, in 1497, led to the
great stream of traffic between Europe and the East being diverted in
the next century from its old channel in the Mediterranean and Levant
to the Atlantic. The lucrative trade with the Indies was transferred
from the Venetians and the Italian Republics to the Portuguese, who
then became for a time the chief trading people of the world,[612] and
strove to keep it entirely in their own hands. It was particularly with
reference to this monopoly that the disputes about the freedom of the
sea began. The _Mare Liberum_ of Grotius was specially directed against
the prohibition by the Portuguese for any other nation to navigate
round the Cape of Good Hope or to trade with the Indies. It has been
well said by Calvo that the historical antecedents of the controversy
about _mare clausum_ are to be found in the voyages of Columbus and
Vasco di Gama.[613]

Very soon, however, the claims of other Powers to maritime
sovereignty--of Denmark, Venice, England--were similarly assailed, and
the controversy became general. It may be noted that those who took
part in it on the one side or the other, including some of the most
learned men of their age, were in large measure inspired by patriotic
motives. National interests as much as lofty ethics or legal principles
were at its root. Even Grotius, notwithstanding his impassioned
appeal to the conscience of the world for the liberty of the sea and
the freedom of commerce, was not exempt from this weakness. It was
his happy fortune that the cause he publicly advocated was equally
in conformity with the growing spirit of liberty and the immediate
interests of the United Provinces. Only four years later, when the
Dutch had obtained a footing in the East Indies in spite of the
Portuguese, they in turn wished to exclude the English from any share
in the trade with that opulent region: they did not want any freedom of
commerce that might tell against themselves. And then we find Grotius
arguing, in London, against his own declarations in _Mare Liberum_, and
in favour of commercial monopoly for his native land--a task, which,
we are told, he performed “with uncommon ability.”

This charge cannot be made against the two authors whose voices were
raised in opposition to the prevailing opinions as to the appropriation
of the sea before the work of Grotius appeared, and of whose writings
he made considerable use. One of these was a Spanish monk, Francis
Alphonso de Castro, who wrote about the middle of the sixteenth
century, protesting against the Genoese and Venetians prohibiting
other peoples from freely navigating the Ligurian and Adriatic Seas,
as being contrary to the imperial law, the primitive right of mankind,
and the law of nature; and also against the Spanish and Portuguese
claims for exclusive rights to the navigation to the East and West
Indies.[614] The other author, also a Spaniard, was Ferdinand Vasquez
or Vasquius, who expressed the same opinions as de Castro, and for
the same reasons. He held that the sea could not be appropriated, but
had remained common to mankind since the beginning of the world; that
the claim of the Portuguese to forbid to others the navigation to the
East Indies, and that of the Spaniards to a similar prohibition to
sail through “the spacious and immense sea” to the West Indies, were
no less vain and foolish (_non minus insanæ_) than the pretensions of
the Venetians and Genoese. The law of prescription, he said, was purely
civil, and could have no force in controversies between princes and
peoples who acknowledged no superior, because the peculiar civil laws
of any country were of no more value with respect to foreign nations
than as if they did not exist; to decide such controversies recourse
must be had to the law of nations, primitive or secondary, which it
was evident could never admit of such a usurpation of a title to the
sea. With regard to the right of fishery, Vasquius drew a distinction
between fishing in the sea and in rivers or lakes. He held that the sea
had been from the first, and still remained, by the primitive right
of mankind, free both for navigation and fishing, and that its use
could not be exhausted by fishing, while lakes and rivers may be so
exhausted.[615]

From the foregoing, it will be seen that Grotius had ready to his hand
many of the legal arguments of which he made so much use; but the
strength of his work lay rather in its appeal to the sense of justice
and the conscience of the free peoples of Christendom, to whom it was
dedicated. The Spanish authors, moreover, were not in a position to
assail the validity of the Papal Bulls, upon which the Spanish and
Portuguese claims were partly founded, whereas it was against them that
the Protestant writer levelled some of his most powerful philippics.

The _Mare Liberum_ of Grotius was published anonymously at Leyden,
Holland, in March 1609.[616] As the title declares, the author’s object
was to assert the right of the Dutch to trade with the Indies, and to
combat the pretensions of the Portuguese to a monopoly of navigation
and commerce in those regions; but the genesis of the book has only
been recently made known. At the end of the sixteenth century, when
the commerce of the United Provinces was expanding in all directions,
the Dutch merchants resolved to share in the lucrative trade with
the far east. Having failed to open up a passage to the Indies by the
north-east, they boldly sailed thither by the Cape of Good Hope, in
1595, through the seas and to the regions which Portugal claimed for
herself. Encouraged by success, other trading voyages by the same
route were undertaken almost every year. A United Dutch East India
Company was formed in 1602, and the States-General decided to maintain
their rights to the trade by force. The disputes and conflicts with
the Portuguese which followed were soon brought to a head by the
action of the redoubtable Jacob van Heemskerk in attacking and seizing
Portuguese ships.[617] The valuable booty taken from the Portuguese
was brought to Holland in 1604 and 1605, and caused much searching
of heart among the shareholders of the company. Many were gratified
by the spoil, but others of much influence, moved by conscientious
scruples or good policy, refused to share in it, and they threatened
to separate themselves from the company and form a rival association
to carry on peaceful trade under the protection of the King of France.
It was about this time that Grotius, incited by the condition of
affairs, began to write a treatise with the object of encouraging his
countrymen to resist the claims of the Portuguese by force. In a tract
written about 1614 to vindicate _Mare Liberum_ against the attack of
the Scotch lawyer, Welwood--which was not published, and the existence
of which was unknown till about forty years ago--he says that some
years earlier, perceiving the great importance of the East Indian
trade for the Netherlands, and that it could only be made secure by
armed resistance to the Portuguese, he had written a book in which he
explained the law of war and spoil; and in order to rouse the popular
mind he gave an account of the ill-treatment of the Dutch in the East
Indies at the hands of the Portuguese.[618] Grotius was then only a
little over twenty years of age, and it enhances our sense of the
precocity and fertility of his genius to learn that _Mare Liberum_ was
only one chapter (the twelfth) of this treatise. The treatise itself
was not published by Grotius; but in 1608, during the negotiations with
Spain which ended in the truce of Antwerp, on (March 30)/(April 9),
1609, the Spaniards demanded that the Dutch should relinquish the trade
with the West Indies and also with the East Indies (Portugal being then
united to Spain), and, probably at the request of the directors of the
East India Company, Grotius then detached the part of his work which
dealt with the freedom of commerce and navigation and published it in
March 1609, under the title of _Mare Liberum_.

In dealing with his theme Grotius attacked in succession all the
arguments put forward by the Portuguese to justify their claim. Their
titles from prior discovery of the Cape route, under Papal Bulls, by
the right of war or conquest, or from occupancy and prescription,
were all, he maintained, invalid; by the Law of Nations navigation
and commerce were free to all mankind. The action of the Portuguese
in attempting to restrain the trade with India furnished a just cause
of war; and the Dutch were resolved to assert their rights by force.
But _Mare Liberum_ was much more than a pleading in a particular case.
An earnest and powerful appeal was made to the civilised world for
complete freedom of the high seas for the innocent use and mutual
benefit of all. Grotius spoke in the name of humanity as against the
selfish interests of a few; and while he made full use of arguments
founded on Roman law, on the law of nature and of nations, it was
principally the lofty moral ideas which inspired his work that gave
it its reputation and charm. He entered into a subtle and learned
disquisition as to the origin of the idea of property from the
primitive times when all things were held in common; the conditions
under which private property is possible or lawful, and the distinction
between what is private, what is public, and what is common. Much of
the argument appears to us now to be of the nature of hair-splitting
and word-play; but inasmuch as it was made use of subsequently in the
numerous controversies regarding the freedom or the sovereignty of
the sea, as well as in diplomatic negotiations, it is necessary to
summarise it here. All property, he says, is based upon possession or
occupation (_occupatio_), which requires that all movable things shall
be seized and all immovable things enclosed; things that can neither be
seized nor enclosed cannot become property: they are common to all, and
their use pertains not to any particular people but to the whole human
race. The distinction is also made between things which are exhausted
by promiscuous use and those which are not: the latter are common, and
their free use belongs to all men. Thus the air is common, because it
cannot be occupied and because it cannot be exhausted by promiscuous
use; it therefore belongs to all mankind. And in the same way the sea
is common to all; it is clearly so infinite that it is not capable of
being possessed, and is fitted for the use of all both for navigation
and fishing.[619] It is also among those things which cannot be bought
and sold--that is, which cannot be lawfully acquired; whence it is,
strictly speaking, impossible to look upon any part of it as belonging
to the territory of a people. The sea is under no one’s dominion except
God’s; it cannot by its very nature be appropriated; it is common to
all, and its use, by the general consent of mankind, is common, and
what belongs to all cannot be appropriated by one; nor can prescription
or custom justify any claim of the kind, because no one has power to
grant a privilege adverse to mankind in general.

Grotius places navigation and fishing in the sea on the same footing,
or rather he looked upon interference with the freedom of fishing as
a greater offence than interference with navigation. With regard to
imposing tribute on fishermen, he said that such as are reckoned among
the Regalia are imposed not on the thing, that is the sea and the
fishing, but on the person; and while it may be levied by a prince on
his own subjects, it is not to be levied on foreigners, for the right
of fishing everywhere should be free to foreigners, lest a servitude be
imposed on the sea which it cannot bear. An action of this kind would
be worse than the prohibition of navigation; it would be barbarous and
inhuman. If any one, says Grotius, claimed jurisdiction and sovereignty
on the great seas for himself alone against promiscuous use, he would
be looked upon as one who was aiming at extravagant dominion; if any
one was to keep others from fishing, he would not escape the brand of
insane cupidity.[620]

It is hardly possible to escape the suspicion, which was apparently
shared by King James, as it was by many others, that Grotius in these
sentences was aiming obliquely at England. Such strength of language
about the right of free fishing in the sea was scarcely pertinent to
his theme, for neither the Portuguese nor the Spaniards contested that
right, and the Dutch did not fish in waters under their control. It
would, on the other hand, be explicable if Grotius had got a hint of
James’s intention with regard to the “assize-herring” (see p. 152), and
we know that as early as the beginning of 1606 proposals were made for
the formation of an English fishery society, with taxation of foreign
fishermen, and that in the beginning of 1608 negotiations were on foot
between the English Government and the Dutch Ambassador as to the
“assize-herring.”[621]

It is important to note--what many of his followers too often
forgot--that Grotius restricts the application of his general argument
for _mare liberum_ to the open sea. He does not, he says, deal with
an inland sea (_mare interiore_) which, surrounded on all sides by
land, did not exceed the breadth of a river; the question concerned
the ocean, which the ancients called immense, infinite, the parent
of things, co-terminous with the air. The controversy, he continues,
was not about a bay or a strait in this ocean, _nor concerning so
much of it as might be seen from the shore_: the Portuguese claim for
themselves whatever lies between the two worlds.[622] Again, referring
to the Italian publicists, he says their opinion cannot be applied to
the matter in question, for they speak of the Mediterranean, he of the
ocean; they of bays or gulfs, he of the vast sea, which differ very
much in respect of occupation.[623]

The opinions and reasonings of Grotius in _Mare Liberum_ as to the
free use of the sea were repeated more concisely and with some
modification in his greatest work, _The Rights of War and Peace_, which
was published in 1625.[624] No one, he affirmed, can have property in
the sea, either as to the whole or its principal parts; and as some
people admit this in respect to private persons but not in regard to
countries or states, he proceeds to prove its truth by both a “moral
reason and a natural reason.” The moral reason is the vast extent and
inexhaustibility of the sea, whether for navigation or fishing; the
natural reason is that it cannot be occupied or possessed because
of its fluidity, since liquids having no bounds of their own cannot
be possessed unless enclosed by something else, as a river by its
banks; but the sea is not contained in the earth, as it is equal to
it or even greater.[625] Grotius, however, admits that his argument
that rivers and lakes may be appropriated because their banks could
be appropriated, may be logically applied also to certain parts of
the sea. From the example of rivers he says, “It appears that the
sea may be occupied by him who is in possession of the lands on both
sides, although it be open either above, as a bay or gulf, or both
above and below, as a strait, provided that it be not so great a part
of the sea that when compared with the lands on each side it cannot
be supposed to be some part of them”; and what is lawful to one king
or people may be also lawful to two or three, if they have a mind to
take possession of the sea thus enclosed within their land.[626] He
also admits by another train of reasoning--concerning property in the
marine vivaria of the Romans--that if it is not repugnant to the law
of nature for a private person to appropriate a small enclosed part
of the sea, one or more nations possessing the shores might in like
manner appropriate a part of the sea, if it be small compared with the
land; and that might happen although the sea was not enclosed on all
sides. But this admission that the law of nature does not preclude
appropriation of a relatively small part of the sea by the neighbouring
state, he qualifies in a general way by saying that there are many
things tolerated by the law of nature which the law of nations, by
common consent, might prohibit; and where this law of nations was in
force and is not repealed by common consent, the most inconsiderable
part of the sea, although almost enclosed by the shores, can never be
the property of a particular people. And in places where the law of
nations was not received, or was afterwards abolished, it does not
follow that the people merely because they possess the lands also
possess the sea enclosed by them; the taking possession must be made
by an overt act, and signified and made known. And if the possession
thus gained by the right of prior occupation is afterwards abandoned,
the sea returns to its original nature--namely, to the common use of
mankind. Further, he who possesses any part of the sea cannot lawfully
hinder unarmed ships, giving no room to apprehend danger, from sailing
there, in the same way that he cannot justly prohibit innocent passage
through his lands. Grotius goes on to explain that it is more easy to
take possession of the jurisdiction (_imperium_) alone over part of
the sea than of the right of property, and that it is not contradicted
by the law of nations; and he points to a number of instances among
the ancients.[627] He admits that sovereignty or jurisdiction may
be acquired on the sea either in regard to persons or in regard to
territory (_ratione personarum et ratione territorii_),--in regard
to persons, as when a fleet, which is a maritime army, is maintained
in any part of the sea; in regard to territory, as when those who
sail along the coasts may be compelled from the land, as if they were
actually on the land.[628]

The latter statement of Grotius contains the germ of the idea
subsequently adopted by almost all the writers on international law,
that the extent of the adjoining sea over which the neighbouring state
is entitled to exercise dominion is limited by the range of guns from
the land. Grotius does not mention the means by which compulsion was to
be made effective, but there is little or no doubt of what was in his
mind.[629] It remained for Bynkershoek, at the beginning of the next
century, to give the doctrine precise expression.

It is obvious from the foregoing that the opinions expressed by
Grotius as to the appropriation of the sea were not always consistent,
and were sometimes self-destructive. If the fluidity and physical
nature of the sea made it impossible to occupy or appropriate it, the
objection applied as much to one part of it as to another, since it is
everywhere fluid; and the admissions in his later book stultify many
of the statements in the earlier one. It seems to be indisputable that
Grotius was to some extent influenced by his environment, and expanded
or contracted his argument to meet the conditions at the time--that he
was, in short, like all the others, more or less of an advocate. When
he published his greater work he was in the service of the Queen of
Sweden, who claimed a somewhat extensive maritime sovereignty in the
Baltic, and it is not unlikely that this influenced him in making the
admissions referred to.

The immediate object for which _Mare Liberum_ was published--the
recognition of the right of the Dutch to sail to the East Indies and
to trade there--was achieved by the treaty of Antwerp in the month
following its appearance,[630] and no reply from the Portuguese or
Spaniards to the arguments of Grotius was published till sixteen years
later. Grotius tells us that a work in refutation of _Mare Liberum_
had been prepared by a scholar of Salamanca, but it was suppressed
by Philip III.;[631] but in 1625, when Philip IV. was on the throne,
an elaborate defence of the rights of Portugal in the Indies and a
reply to Grotius was published by Franciscus Seraphinus de Freiras,
a Spaniard, who dedicated his book to the king.[632] The Venetians
also, whose power had by this time declined, began to defend with the
pen their rights in the Adriatic. These rights had been indirectly
assailed by the general argument of _Mare Liberum_, and directly in
the writings of de Castro and Vasquius, from which Grotius had quoted
liberally; and now at the beginning of the seventeenth century they
were actively contested by other Powers, and in particular by Spain.
Hence quite a number of works defending the claims of Venice appeared
at this period, the best of which was that of Pacius, who relied on
the opinions of numerous early jurists, as Bartolus, Baldus, and
Angelus; on immemorial possession and prescription, and stated that the
rights of the Venetians consisted in jurisdiction, the imposition of
taxes, the prohibition or regulation of navigation, the protection of
subjects, and the suppression of pirates.[633]

But it is probable that _Mare Liberum_ received as much attention
in England as it did in any other country. Grotius, as we have
seen, condemned any interference with the liberty of fishing or the
imposition of taxes on foreign fishermen in very severe language, and
his book appeared just at the time when King James had resolved on
both these courses, and within less than two months of the issue of
the famous proclamation forbidding unlicensed fishing by foreigners on
the British coasts. To be by implication branded as “insanely cupid”
by an anonymous Dutch writer, because he had decided to levy the
“assize-herring” from Dutch fishermen, must have irritated James; and
the irritation would not be lessened when he found the envoys from the
Netherlands in the following year vindicating their right to liberty
of fishing by just such arguments as were contained in _Mare Liberum_.
James, indeed, showed a somewhat bitter feeling towards the great
Dutch publicist when the authorship was revealed and the author lay in
prison; and Carleton, the English ambassador at The Hague, in a speech
to the States-General, held him up to opprobrium and stated that the
disgrace into which he had fallen should deter others from adopting his
opinions.

The task of replying to Grotius was taken up by a Scottish lawyer,
William Welwod or Welwood, a professor of the civil law. Welwood was
Professor of Mathematics at St Andrews University, but exchanged the
Mathematical for the Juridical Chair about the year 1587; at the royal
visitation in 1597 he was deprived of his office, on the ground that
the profession of the law was in no wise necessary at that time in
the University, but probably because his profession as a teacher of
jurisprudence was obnoxious in the eyes of James.[634] In 1590 he had
published at Edinburgh a treatise on the Sea Laws of Scotland, which
is believed to be the earliest regular work on maritime jurisprudence
printed in Britain, and which was dedicated to James;[635] but
it contains nothing bearing on the question of the fishery or
“assize-herring.” In 1613 he published at London a new and enlarged
edition of his early work, and in one of the chapters on “The Community
and Proprietie of the Seas,” he endeavoured to refute the arguments
advanced in _Mare Liberum_, which he seems to have looked upon as
a reply to James’s proclamation of 1609.[636] This work was also
dedicated to the king, and in a prefatory address to the three High
Admirals--the Duke of Lennox, the Earl of Northampton, and the Earl of
Nottingham--he impressed upon them the importance of the “conservacie”
of the sea, especially for the fisheries, and urged that strangers
should be stayed from scattering and breaking the shoals of fish on the
coast of Scotland, a duty on which some of his Majesty’s ships might
well be employed.

Welwood was scarcely fitted either by knowledge or capacity to be
a formidable antagonist to a giant like Grotius; and although his
writings contain quite a number of arguments which were later used
and expanded by Selden, it can hardly be said that they had a great
influence on the controversy. He looked upon _Mare Liberum_ as an
attack on the rights of King James and his subjects to the fisheries
“on this side the seas,” veiled under the pretext of asserting the
liberty to sail to the Indies. As befitted his nationality and his
time, many of his arguments were drawn from Holy Writ, and he had no
difficulty in placing Providence on the side of James and in opposition
to the Dutch. Others were more pertinent. He urged that the injunctions
of the Roman law applied only to the subjects of Rome, and not
internationally as between state and state,--an opinion also pressed,
as we have seen, by Vasquius; that the fluidity of the sea was no bar
to its occupation, and that it could be, and had been in certain cases,
divided up into marches and boundaries, by the ordinary methods used
by navigators, “so farre as is expedient for the certain reach and
bounds of seas, properlie pertaining to any prince or people,”--what
these bounds are or should be he does not say, though he quotes the
Italian limit of 100 miles with approval. He held that the liberty of
navigation was beyond all controversy, and agreed to the principle
of the complete freedom of the sea so far as concerned the “main
Sea or great Ocean,” which was “farre removed from the just and due
bounds above mentioned properlie perteyning to the neerest Lands of
euerie Nation.” To Grotius’ statement that it was worse to prohibit
promiscuous fishing than to forbid navigation, Welwood justly replied
that if the free use of the sea is interfered with for any purpose, it
ought to be chiefly for the sake of the fishings, if the fishes become
exhausted and scarce, as he says was the condition at that time on the
east coast of Scotland, from the “neere and dailie approaching of the
busse fishers” scattering and breaking the shoals, so that no fish
“worthy of anie paines and travels” could now be found.

Two years later Welwood returned to the theme, and published a formal
little book on the dominion of the seas.[637] It was dedicated to
Queen Anne, who had just been endeavouring to set up a fishery society
with power to tax foreign fishermen (p. 161), and, as explained in
the dedication, the book was specially directed against the freedom
unlawfully usurped by foreigners of fishing in the British seas. It may
be regarded as an amplification of his chapter in the _Abridgement_,
but is much superior and more logically arranged; and being written
in Latin, it attained, if not a reputation, at least considerable
recognition on the Continent. He urges strongly that the sea as well
as the land is capable of distinction and dominion, both by human and
by divine law, and explains the contrary opinion of many publicists,
poets, and orators (so copiously quoted by Grotius) by saying they
were ignorant of the true law of nature, and had infected the minds of
later generations with “a preposterous notion concerning some universal
community of things.” The adjacent sea is claimed for the neighbouring
state, because it is as necessary there as it is on land that some one
should have jurisdiction, and this jurisdiction ought to be exercised
by the neighbouring prince, so that both the land and the sea should
be under the same sovereignty. The part of the sea next the land is,
moreover, so joined to and, as it were, incorporated with it, that the
ruler of the land is not permitted to alienate either a part of it, or
the use of it, or to let it out (_locare_) any more than his kingdom or
the patrimony of his kingdom. He held that it was incontestable that
the vast and boundless waters beyond the _mare proximum_ were open
to all nations indifferently for all uses, but that in the adjacent
sea the neighbouring prince had in particular two primary rights
besides jurisdiction--namely, the right of navigation and the right
of fishing, with the power to impose taxes for either. He maintained
that fishing in the sea was for the most part appropriated, and for a
clear reason. God had appointed the fishes (herrings) to swarm along
the coasts of Britain and the surrounding isles at seasons and places
which He had pre-arranged, and for the benefit of the inhabitants: why,
then, should the people be hindered from possessing as their own this
benefit which God had granted them? He would be unwilling to deny the
communication of this natural advantage to other nations, “but only by
the same law by which they possess their own, that is by a just price.”
Yet, notwithstanding this special blessing which had been granted
to the British people, they were despoiled of it and of their just
rights, owing to their seas being taken possession of, as it were, by
a continual inundation of foreign fishermen, so that the shoals were
scattered and the fishery exhausted. Welwood then refers to the alleged
old agreement between the Scotch and the Dutch, whereby the latter were
not to fish within eighty miles of the coast of Scotland (p. 84), but
which they of late totally disregarded, fishing close to the shore,
in front of the houses. And while they were permitted to carry away
their fish from our seas without paying any tribute, the poor Scottish
fishermen had to pay tithes to the Church and the assize-herring to the
crown, as well as having their livelihood damaged by the action of the
foreigners.

The treatises of Welwood were composed to support the claim of James
to the assize-herring, and the project of the queen to monopolise the
fishings, as much as to demonstrate the law as to the dominion of the
sea. On one account if on no other his works deserve to be remembered.
He was the first author who clearly enunciated, and insisted on, the
principle that the inhabitants of a country had a primary and exclusive
right to the fisheries along their coasts--that the usufruct of the
adjacent sea belonged to them; and that one of the main reasons why
that portion of the sea should pertain to the neighbouring state was
the risk of the exhaustion of its fisheries from promiscuous use.

But they will be remembered in the history of international law for
another reason. The first of them called forth from Grotius the only
reply he ever vouchsafed to the numerous writers who attacked _Mare
Liberum_. In the year in which the work was published, he was in London
as one of the Dutch ambassadors, engaged in the somewhat ironical
task of defending a Dutch _mare clausum_ in the East Indies, and
probably the book then fell into his hands. In his _Defensio_ (see
p. 344) Grotius reaffirmed the position he took in _Mare Liberum_,
with the old arguments, and with some new ones to meet the criticism
of Welwood, and not without some of the customary logic-chopping and
wire-drawn reasoning. He held that the Roman law as to the sea being
common applied not merely among the citizens of one state, but among
mankind in general, because _communis_ was a different thing from
_publicus_.[638] While admitting the possibility of marking out the
sea by imaginary lines, he said this was not relevant to the question
of appropriation, since appropriation could not take place without
possession, and possession cannot be established merely by the mind
or intellect, but requires a corporeal act; otherwise the astronomer
might lay claim to the heavens or the geometrician to the earth.
Concerning the rights of fishery, with which the _Defensio_ largely
deals, he asserts that as the use of the sea is common to all, no one
can prohibit fishing in it or justly impose taxes on it. With respect
to the right of the Dutch to fish on the British coasts, he cites the
Burgundy treaties and uses the same arguments as the Dutch ambassadors
did in 1610 (p. 155). They had the right by treaties, immemorial usage,
prescription, and the Law of Nations. It is noteworthy that in the
_Defensio_, Grotius, no doubt owing to the polemical spirit inciting
him above all to refute the arguments of Welwood concerning the _mare
proximum_, as well as to demolish the claims of King James, denies the
existence of sovereignty or property in any part of the sea, whereas
it appears to be allowed by implication in _Mare Liberum_, and is
expressly admitted in his later and larger work. Here he says, and
more logically, that whatever applies to the whole sea applies to
all its parts, even to a diverticulum, and he allows no exception for
the sea washing a coast: a conclusion, however, at variance with the
general practice of the time. This tract, as already stated, was not
published by the author, probably because it was likely to excite still
more the ire of James at finding his “rights” again “questioned.”[639]

In contrast with the writings of Welwood may be cited the opinions of
another and more eminent Scottish lawyer, Sir Thomas Craig, who touched
upon the subject of maritime jurisdiction in a non-controversial work
published before the juridical controversy had arisen.[640] He states
that the sea is common to all for navigation, but that property and
jurisdiction in the adjacent sea pertains to the neighbouring territory
according to the current opinion--the sea washing the coast of France,
England, Scotland, Ireland, &c., to the respective countries. No limits
or bounds are laid down by Craig as to the partitioning of the sea in
this way, but when dealing with the theoretical question of islands
arising in the sea, he follows Bartolus in assigning a space of 100
miles from the coast. He admits that certain seas may be prescribed, as
the Adriatic, which Venice, though not possessing the shores, claimed
by prescription. With respect to fisheries, the Scottish author, as
might have been expected, holds that those in the adjoining sea belong
to the bordering state: they are prescribed, and fishing there may be
permitted or prohibited according to custom; and he says that it was
not without great injury to us that the Dutch carry on their fishery
around our islands.[641]

In the period that elapsed between the appearance of the works of
Grotius and Welwood and the publication of Selden’s _Mare Clausum_,
a number of other books were issued which dealt with the question
of the freedom of the seas and the extent to which they might be
appropriated. Gerard Malynes, in treatises on commerce which had a wide
circulation, re-echoed the opinions of Welwood, and of Gentleman and
Keymer. The “main great seas,” he said, were common to all nations for
navigation and fishing, but the bordering sea was under the dominion
of the prince of the adjoining country, and foreigners could only fish
in it by obtaining permission and paying for the privilege; within
this sea navigation was free unless it interfered with the fishings.
Malynes said that this was the practice in Russia, Denmark, Sweden, and
Italy; and he ascribed the decay of English fisheries and trade to the
admission of foreigners to fish in “his Majesty’s streames” without
paying for the liberty.[642] Two other authors, each celebrated in
his respective sphere, touched upon the king’s dominion in the seas,
and they may be regarded as representing two different aspects of the
subject, both of which became of great importance--namely, the limits
of neutral waters, and the rights of the crown by the Common Law of
England to the propriety of the sea and its bed. One was Alberico
Gentilis and the other Serjeant Callis.

Gentili, or Gentilis, who was a forerunner of Grotius in shaping
the Law of Nations,[643] was an Italian of the school of Perugia,
domiciled in England, where he held the Regius Professorship of Civil
Law at Oxford. In 1605, after the conclusion of peace with Spain,
he was appointed advocate for the Spanish embassy in London, and
was frequently employed in the Admiralty Court in cases where the
legality of the capture of Spanish vessels by the Dutch had to be
determined. His pleadings and the decisions in these and similar cases
were collected and published in 1613, after his death, and they form,
according to Wheaton, the earliest reports of judicial decisions on
maritime law published in Europe.[644]

In discharging his duties in the English Prize Courts, it often fell
to the lot of Gentilis to deal with the jurisdiction of England in
the seas, for while he held office war existed between Spain and the
United Provinces, and Spanish ships were frequently taken by the
Dutch in the neighbourhood of the British coasts. Of course, captures
made in the King’s Chambers after the proclamation of 1604 (see p.
119) were not good prize, and were restored.[645] But when a Spanish
vessel was seized clearly outside the limits of the King’s Chambers,
Gentilis argued that it was not good prize, because, first, the treaty
of peace[646] between Spain and England provided that the subjects of
either were to be protected in all places throughout the dominions of
the other; and, second, the dominion of the King of England extended
far into the neighbouring seas. He seemed to stretch the joint
sovereignty of Spain and England as far as America, pointing out that
the southern coasts of Ireland were opposite to Spain, and the western
coasts were bounded by the Indies belonging to Spain, while the
northern coasts of Britain, having no countries lying against them,
were washed by an immense and open sea. He held that the proclamation
of 1604, fixing the limits of the chambers in connection with acts of
hostilities between the Spaniards and the Hollanders, ought not to
prevail against the provisions of the treaty, for the proclamation
was subsequent to the treaty, and it would be unjust to allow it
to lessen the extent of the territory (sea) over which protection
was to be afforded by the terms of the contract. It was not a valid
argument, Gentilis continued, to say that the boundaries expressed in
the proclamation--that is, the King’s Chambers--had been observed long
before by common usage in relation to similar cases.[647]

There is no doubt, however, that although Gentilis as an advocate took
this line of pleading, the boundaries of the King’s Chambers from
headland to headland, as defined by James in his “plat,” were received
as settled law in regard to neutrality both in the English courts and
on the Continent.[648] Gentilis further urged that the limit fixed by
the Italian jurists for the extent of jurisdiction--viz., 100 miles
from the coast, unless the proximity of another state interfered with
its application--also was in force off the British coasts, a view which
the court declined to accept.

Yet, although this principle of extending and limiting the territorial
jurisdiction to 100 miles was not accepted in the English Courts, we
find it made use of in the diplomatic correspondence of the time. The
Earl of Salisbury in a letter to Cornwallis, the English ambassador
at Madrid, explanatory of James’s proclamation in 1609 forbidding
unlicensed fishing, did not seek to defend the action of the king by
reason of any intrinsic right of the crown of England to sovereignty
in the neighbouring sea, but rather upon what he alleged was the
practice of the civil law. A sovereign prince or state, he said, was
_Mundi Dominus, Lex Maris_, both because of the protection afforded to
navigation in the adjacent sea and from prescription: the adjoining
sea, as Baldus said, pertained to the territory of the neighbouring
state, and thus the Venetians, as lords of the Adriatic, could impose
taxes and penalties on navigation. “In respect of both which titles,”
continued the Earl, “the Kings and Princes in general fronting upon the
seas, as Spayne, France, Denmark, &c., have upon occasion offered, not
only made ordinances and published edicts for the ruling and better
ordering of the seas, but also have put them in execution; as well
civilly for deciding of contracts, as criminally for transgressions;
and have raised taxes and gabells in the seas as on the land to their
best benefit, as part of their regalities properly belonging unto
them, in sign of their sovereignty.” As to the distance to which this
sovereignty extended, he said it was “generally received to be about
one hundred miles at the least into the seas,” unless in narrow seas
only, in which case the limits are divided by the channel, “except the
princes of the one shore have prescribed the whole, as it falleth out
in his Majesty’s narrow seas between England and France, where the
whole appertayneth to him in right, and so hath been possessed tyme out
of mind by his progenitors.”

By another channel we may trace the course of the ideas which
converged and culminated in the claims of Charles to the dominion of
the surrounding seas--viz., in connection with the development of
the law relating to the rights of property in the foreshore and the
bed of the sea. Cases frequently occurred in which those rights were
contested between private individuals and the crown; and in the course
of litigation, or in writings dealing with the subject, the rights in
the sea which were alleged to belong to the crown were explained. We
have already seen that Plowden, in a case of the kind, argued that
Queen Elizabeth possessed jurisdiction as far as the middle line in
the surrounding seas,--a doctrine which the queen expressly repudiated
in 1602,--but denied to her any right of property in either the sea or
its bed. The claims of the crown to the ownership of the foreshores
originated in the reign of Elizabeth; under James and Charles I. they
were systematically pursued by the “title-hunters”; and while the legal
decisions in contested cases were for a long time adverse to the crown,
they began in the reign of James to be in its favour, and gradually
the idea was imported into and became a part of English law that the
ownership of the foreshore was _prima facie_ vested in the crown in
virtue of the royal prerogative.[649]

Along with the development of this idea came another, which was
ultimately likewise engrafted on English law--that the crown had the
exclusive right of property in the sea and in the soil beneath it.
The origin of the idea is to be found in a treatise written in 1569
by Thomas Digges.[650] He argued that as many things--as wrecks,
treasure-trove, waifs and strays, which were originally common by the
law of nature--now belonged to the Prince, so also should the sea,
which was the chief of all waters, and could not by the civil law
become the property of a subject. He held that just as the owners of
the soil had the property in a river and its banks, the king had the
interest and property in the “great salt river” environing the island,
and in its shores and bottom; and he speaks of the sea as the “King’s
river,” the “King’s streme,” and the “King’s water,” in which he had
also jurisdiction. Digges also claimed that the fishings in the sea
belonged to the crown, for “although the Kings of England have benne
content to suffer fishermen _Jure gentium_ to enjoy to theire owen use
such fishe as by theire charges travill and adventure they can in the
Englishe Seas take, Yet haue the Kings of England for remembrance of
this theire favoure that the memorie of theire propertie in the Seas
shoulde not be extinguished, alwaie reserved to them selves the cheif
fishe as Sturgeon, Whale, &c.”[651]

The contention that the crown had the right of property in the sea
and its bed, denied by Plowden, received in the reign of James much
fuller amplification at the hands of Serjeant Callis, whose well-known
lectures on the Statute of Sewers were delivered in 1622.[652] Callis
argued that in “our _Mare Anglicanum_” the king had, by the common
law of England, four “powers and properties”: sovereignty (_imperium
regale_), legal jurisdiction for the administration of justice,
property in the soil under the sea and in the water, and possession
and profits both real and personal. He cites in proof a number of
authorities, legal and historical, such as were cited later by Selden.
The statement in a case decided in the reign of Richard II. (1377-99),
that “the sea is within the legiance of the king as of his crown of
England”; the charter of the Admiral giving him power in maritime cases
throughout the realm of England; the phrases in certain statutes; the
right to wreck and royal fishes, and so forth, “proved the King full
Lord and owner of the seas, and that the seas be within the realm of
England.” The king rules on the sea, he held, “by the laws imperial”
as by the Roole d’Oleron and others, but only in the case of shipping
and for merchants and mariners; his rights of property in the bed and
waters of the sea, and the personal profits (wreck, flotsam, &c.)
accruing, were his by the common law. Callis did not deal with fishing,
nor attempt to define the bounds of “the seas of England” in which the
king had property and jurisdiction.

The interpretation of the law as to the rights of the crown in the
seas, as propounded by Callis, was followed by Selden and Hale, and
generally by the lawyers who came after him. Lord Chief-Justice Coke,
in his _First Institute_, which was published in 1628, explains the old
phrase “within the four seas” (_infra quatuor maria_) as meaning within
the kingdom and dominions of England; for if a man be upon the sea
of England he is “within the kingdom or realm of England, and within
the ligeance of the king of England, as of his crown of England.” In
his _Fourth Institute_, which was not published, however, till 1644,
ten years after his death, when treating of the Admiralty Court, Coke
entered more fully into the question of the rights of the crown in the
seas of England; and, as already mentioned, he looked upon the roll
of Edward I., _De Superioritate Maris_, as proving that the king’s
right of dominion over the sea had been expressly acknowledged by
neighbouring nations.

But none of the works on the rights of England in the adjoining
seas, which had appeared when the new policy of Charles began to be
fashioned, was sufficiently profound or authoritative to furnish
reasonable justification for that policy in the eyes of the world. The
king in 1632, as we have seen, desired to demonstrate his rights by
means of “some public writing,” founded upon the historical records
of the realm,--a demonstration which was to precede the revival of
the English pretension to the dominion of the seas in what Secretary
Coke called its ancient style and lustre. As a result of the search
made amongst the records in the Tower and elsewhere for evidence and
precedents to establish the claim, several treatises and collections
were compiled. Most of these were of little account,[653] but one of
them attained an authority and celebrity only second to the great work
of Selden. Before Charles wrote to the Clerk-Register in Edinburgh
for Scottish documents to substantiate his claims (p. 212), it seems
that Sir John Boroughs, the Keeper of his Majesty’s Records in the
Tower, had been commissioned by the king to prepare the “public
writing” to which he referred. We have already seen that in 1631
Boroughs brought forward the important roll of Edward I.; he tells us
in his preface that his work was composed at the request of “a great
person”; it was written in Latin, the language which fitted it for
foreign Courts; and it deals very largely with the Dutch and English
fisheries, even recommending the construction of 250 busses for the
fishery association. Boroughs’ treatise, entitled “The Soveraignty of
the British Seas, proved by Records, History and the Municipall Lawes
of this Kingdome,” was completed in 1633, but it was not published
until 1651, when the question of maritime rights had been again raised
between England and the United Provinces.[654] It is probable that
the king discarded it for _Mare Clausum_, the incomparably superior
treatise by Selden, of the existence of which he was probably made
aware as early at least as 1634.

Nevertheless, Boroughs’ work was the first successful attempt to bring
together a great array of historical facts in favour of the English
claims to the dominion of the seas. Like Selden, he begins with the
Roman occupation of Britain in order to show that from the first the
“British nation had the supreme power of command of their own seas”;
and, moreover, he gives all the more important documents to be found
in _Mare Clausum_,--the ordinance of John, the rolls of Edward I. and
Edward III., the charter of Edgar, the Laws of Oleron, commissions to
the admirals, safe-conducts, and extracts from the Burgundy treaties.
He is very emphatic as to the king’s right to the dominion of the seas
and the fisheries. “That princes,” he says, “may have an exclusive
property in the soveraigntie of the severall parts of the sea, and in
the navigation, fishing and shores thereof, is so evidently true by
way of fact, as no man that is not desperately impudent can deny it”;
and--no doubt for the benefit of the Dutch--he adds that “if any nation
usurp our rights, the king has a good sword to defend them.” He asserts
that the kings of England in succession had the “sovereign guard” of
the seas; had imposed taxes and tributes upon all ships navigating or
fishing in them; and had closed and opened the passage through them
to strangers, as they saw cause. The sovereignty of the sea he calls
“the most precious jewel of his Majesty’s crown, next (after God) the
principal means of our wealth and safety.” A considerable part of the
treatise is taken up with the fisheries, the information being almost
wholly derived from previous writers; the usual comparisons are drawn
of the flourishing state of the fisheries of Holland and the poor
condition of those of England, and the usual statements made as to
the benefits that would accrue to the kingdom if the fisheries were
developed.

Boroughs’ treatise, however interesting from the historical documents
it contained, had serious defects when considered as a formal
justification to Europe of the policy of Charles. The facts were not
skilfully marshalled; the deductions were bald and crude; and above
all, it was destitute of arguments and reasoning founded on law.
Grotius was then the Swedish ambassador at Paris, his works were well
known and esteemed throughout Europe, and it would have been indiscreet
to attempt to answer his elaborate arguments against such claims to
_mare clausum_ by saying that these claims were self-evident and that
only an impudent person would deny them.

Fortunately for Charles, Selden now came upon the scene to vindicate
and glorify his prerogative in the surrounding seas. The distinguished
author tells us that his great work, _Mare Clausum_, was begun long
before at the desire of King James, and had been lying in an incomplete
and imperfect form for fully sixteen years.[655] It was presented to
James in 1618, but several reasons prevented its publication, one
of the chief being that the king was afraid that some passages it
contained might give offence to the King of Denmark, from whom he was
then endeavouring to obtain a loan of money.[656] At the request of
Charles, Selden now recast his treatise, added to it, and completed it.
It was dedicated to the king and published by his “express commands,”
as he explained a little later, “for the manifesting of the right and
Dominion of Us and our Royal Progenitors in the seas which encompass
these our Realms and Dominions of Great Britain and Ireland.”[657]

Selden, as is well known, had taken a prominent part in the Parliament
of 1629, in the majority which resisted the king’s wishes, and was
for a time imprisoned in consequence of his share in the historic
disturbances with which it had ended, when the Speaker was held
down in the chair. He was released on bail under sureties for good
behaviour, and he was bound to present himself, on the motion of the
Attorney-General, in the Court of King’s Bench, on the first day of
each term, as a person under surveillance.[658] Selden was not of the
stuff of which martyrs are made. After his release, we find him among
the lawyers of the Inns of Court arranging for the masque which was
performed before the Court, at Whitehall in February 1634, as a token
of the detestation in which they held Prynne’s innuendo concerning the
queen in his _Histriomastix_.[659] Towards the end of the same year, in
a humble petition to the king (“prostrating myself at the feet of your
sacred Majesty”), he begged that the royal displeasure might be removed
and the bail discharged, assuring Charles of his readiness to serve him
with gladness and affection. In February 1635 the king forwarded to
the Judges of the Court of King’s Bench a mandate, the draft of which
had been prepared by Selden himself, instructing them to discharge him
of their recognisances;[660] in August we find the Dutch ambassador
writing to The Hague that the book was being printed;[661] and in
December of that year it was given to the world.[662] There is little
doubt that Selden’s petition to the king and its favourable reception
covered the negotiations concerning the completion and publication of
_Mare Clausum_, which were carried on under the auspices of certain
eminent personages at Court, and probably of Laud.[663] He tells us
that the early work was very imperfect, and required to be completely
reconstructed, and that he was able to devote some months of leisure to
the task. But even Selden’s extraordinary erudition and great industry
could not have produced such a book without prolonged labour; and it
may be guessed that, observing the trend of the king’s policy and
becoming desirous of royal favour, he began to reconstruct his treatise
very soon after leaving prison.

The political significance of Selden’s work was instantly recognised
both at home and abroad. It appeared at the time when the pretensions
of Charles to the dominion of the sea were astonishing Europe. While
the printers were still busy with it, the Earl of Lindsey’s fleet was
scouring the Channel to force the elusive squadrons of France to strike
to the king’s flag. The longing to compel homage to the flag burned
like a fever in the breasts of naval officers; and despatches poured in
from them announcing that Dutch, Danish, and even occasionally French,
ships had been forced to strike, sometimes in their own waters. The
supposed policy of the Plantagenets had been expounded in high-sounding
despatches to foreign Courts, and formulated in Admiralty instructions.
The Dutch fisheries had been threatened; and it was known everywhere
that the King of England was preparing a formidable fleet to sweep the
seas in the following year.

Charles did what he could to emphasise the importance of the book.
When a pirated edition appeared within a few months at Amsterdam,
bearing the name of the king’s printers and the word London in
imitation of the original edition, and with a print of the great
Burgundy treaty, the Intercursus Magnus, and a tract appended by way
of antidote, he complained to the Dutch ambassador, and issued a
proclamation declaring that _Mare Clausum_ had been published by his
express commands, denouncing those who had produced the pirated copy,
and banning it from the realm.[664] On 26th March, as the following
record shows, he brought it before the Privy Council with high eulogy,
and for a definite purpose: “His Majesty this day in Council took
into consideration a book lately published by John Selden, Esquire,
intituled _Mare Clausum, seu de Dominio Maris_, written by the king’s
command, which he had done with great industry, learning and judgment,
and hath asserted the right of the Crown of England to the Dominion of
the British seas. The King requires one of the said books to be kept in
the Council-Chest, another in the Court of Exchequer, and a third in
the Court of Admiralty, as faithful and strong evidence of the Dominion
of the British seas.”[665]

There was good reason for the king’s eulogy of Selden’s treatise. From
the point of view of his policy nothing that the pen can do could have
been better done. It is an elaborate and masterly exposition of the
case for the sovereignty of the crown of England in the British seas,
which throws into the shade all the other numerous works which were
written on that side of the question. One of the most eminent lawyers
of his time, a scholar, an antiquary, an historian, the author brought
to his task a keen intellect, an immense erudition, and the ability
of disposing his material and arguments to the best advantage. In
learning at least he far surpassed Grotius, and he was not inferior to
his illustrious contemporary in ingenuity of reasoning. It was Selden’s
misfortune that the cause he championed was moribund, and opposed
to the growing spirit of freedom throughout the world. At the same
time it must be said that, apart from its extreme doctrines as to the
sovereignty of England in the seas, it more correctly represented what
are now the admitted principles as to the appropriation of the adjacent
sea than did most of the works written on the other side, not excepting
even those of Grotius.

But in relation to the cause for which it was written, the merit of
_Mare Clausum_ lay not merely in the enunciation of the theoretical and
legal aspects of the claim to maritime sovereignty, but also in the
imposing array of historical facts and arguments by which the right
of England was sought to be established. The defects of the work are
scarcely less apparent. There is no ground to suppose that Selden was
guilty of the offence attributed to him by some of his foreign critics,
of inventing part of the evidence he cites. But the interpretation he
placed upon much of it was strained or erroneous. Great conclusions
were drawn from things which had in reality no connection with his
case; laws and events which referred solely to English subjects were
improperly extended to include foreigners; the bearing of many records
was misrepresented, others were passed over in silence, or, as with
the “Burgundy” treaties, referred to in such a way as to distort their
plain meaning.

In the first book the author endeavours to prove that the sea is not
everywhere common, but is capable of appropriation, and has been in
fact in numerous cases appropriated. The objections to that opinion
are classified in three groups: first, that it is contrary to the
law of nature and the law of nations to forbid free commerce and
navigation; second, that the physical nature of the sea, its fluidity
and fluxion, renders it incapable of occupation; third, the opinions
of certain learned men. He argued that the ancient law as to the
community of things had become modified in certain particulars, and
that the received practice and custom of many nations, ancient and
modern, showed that the sea was capable of private dominion, and that
such dominion or appropriation was therefore not contrary either to
the law of nature or the law of nations. In support of his argument
Selden drew freely upon the vast stores of his erudition. He began,
like Welwood, by quoting Scriptures to show that the divine law (_jus
divinum_) allowed private dominion in the sea, and that according to
the opinion of those learned in the Jewish law, a great part of the
sea washing the west coast of the Holy Land had been annexed to the
land of Israel by the appointment of God. Among almost all the nations
of antiquity, he said, it was the custom to admit private dominion in
the sea, and many of them exercised maritime sovereignty.[666] Among
modern nations, sovereignty was exercised by the Venetians in the
Adriatic, by the Genoese in the Ligurian Sea, by the Tuscans and Pisans
in the Tyrrhenian Sea, and by the Pope over a part of the sea called
_Mare Ecclesiæ_. Then the sovereignty claimed by the Spaniards and
Portuguese, and the maritime dominion of the Danes and Norwegians, were
notorious. Even the Poles and the Turks possessed sovereignty in the
Baltic and the Black Sea respectively.

How then could it be denied, with all these examples, ancient and
modern, that the sea could not be appropriated? Selden indeed agreed
with Grotius in repudiating the sovereignty claimed by Spain and
Portugal in the great oceans,--not, however, because it was opposed
to reason and nature, but because it was founded on no legitimate
title, and these nations had not a sufficient naval force to assert and
maintain it.[667]

As to the free use of the sea, Selden admits that to prohibit innocent
navigation would be contrary to the dictates of humanity;[668] but he
held that the permitting of such innocent navigation does not derogate
from the dominion of the sea--it is comparable to the free passage
on a road across another’s land--and it cannot always be claimed as a
right. With respect to the argument that the sea cannot be appropriated
because of its physical properties, he points to the example of
rivers and springs, which even by Roman law may be appropriated, as
well as of lakes. It is not true that the sea has no banks or limits:
it is clearly bounded by the shores; some seas, as the Caspian, are
completely enclosed, and the Mediterranean is so everywhere except
at the Straits of Gibraltar. Elsewhere there are islands, rocks,
promontories, by which boundaries may be determined; and limits may be
set in the open sea by nautical science, as in the fixing of latitude
and longitude; and that was shown by the Bull of Pope Alexander VI.,
and the hundred-mile limit of the Italians. Selden denies that the
sea is inexhaustible from promiscuous use. On the contrary he says a
sea may be made worse for him that owns it by reason of other men’s
fishing, navigation, and commerce, and less profit accrue from it, as
where pearls, corals, and other things of that kind are produced. In
such cases the abundance may be diminished by promiscuous use just as
readily as in the case of metals and suchlike on land; and the same
argument applies to all kinds of fishing.[669]

It was, however, the second book of _Mare Clausum_ which gave it its
chief political importance. It was appropriate and necessary that
the claims of Charles should be justified in the domain of law and
custom; it was still more necessary that they should be supported by
weighty precedents existing in the history of England--that some of
his predecessors had been styled Lords of the Sea, and had exercised
sovereign jurisdiction over foreigners even on their own coasts. After
partially defining the British seas (see p. 19), Selden, as mentioned
in a former chapter, labours to show that maritime sovereignty had
been continuously exercised within them by the ancient Britons, the
Romans, and the Anglo-Saxons in succession, and then by the Norman
and later kings. He strove to prove by a multitude of citations from
records that the kings of England had perpetually enjoyed exclusive
dominion and jurisdiction in the surrounding seas as part of their
territory, and were hence styled Lords of the Sea; that they had always
preserved the right to forbid fishing and even navigation by foreigners
within the British seas, or to exact tribute for that liberty; that
the rights of the crown in the seas, asserted both by kings and
Parliaments, were in conformity with the common law of England, and
had been in several important respects acknowledged by other nations.
A great deal of the evidence adduced is, as has been said, irrelevant.
The long recital of facts connected with the guarding of the sea, the
disposition of fleets, the office and jurisdiction of the admirals,
the raising of special taxes--as the Danegeld--for defensive purposes
or the equipment of ships of war, might have been paralleled in the
records of other maritime states, as France or Flanders.

The maritime sovereignty claimed by Selden for the kings of England
was of the most absolute kind. Speaking particularly of the eastern
and southern parts of the English sea, lying between England and
the shores of France and Germany,--in which Charles was especially
interested,--he declared that the powers exercised by the kings of
England from the time of the Norman Conquest were as follows: (1)
the custody, government, and admiralty, as if it were a territory or
province of the king; (2) leave of passage granted to foreigners at
their request; (3) liberty of fishing in them conceded to foreigners,
and protection afforded to their fishermen; (4) the prescribing of
laws and limits to foreigners in hostility with one another as to the
taking of prizes.[670] It is to be noted that Selden in expounding his
case expressly rejected the principle of the mid-line, the limits laid
down by the Italian writers, and those prescribed by King James in
defining the King’s Chambers; and he disclaimed the arguments used by
the English commissioners at the Bremen Conference in 1602, as to the
freedom of the seas, as being contrary to English rights. He concludes
his famous book in the following words: “It is certainly true,
according to the mass of evidence set forth above, that the very shores
or ports of the neighbouring sovereigns on the other side of the sea
are the bounds of the maritime dominion of Britain, to the southwards
and eastwards; but in the open and vast ocean to the north and west
they are to be placed at the farthest extent of the most spacious seas
which are possessed by the English, Scots, and Irish.”

It may be added that _Mare Clausum_ became in a sense a law-book, an
authoritative work to which eminent lawyers, as Lord Chief-Justice Hale
and Hargrave, appealed as proving the existence and the legality of the
rights of the crown of England to the dominion of the British seas.
Even as late as the year 1830 this doctrine held its place in certain
recognised treatises on the law of England, together with Selden’s
definition of the extent of those seas. (See p. 580.)

As was natural, the appearance of Selden’s book created anxiety
in Holland. Its very title was a challenge to the much-cherished
principles in _Mare Liberum_, and the circumstances connected with its
birth heightened its political importance. It was felt to be almost
equivalent to a declaration of the king himself. The simultaneous
measures for the formation of an English fleet of unexampled strength
made the Dutch fear for even more than their herring fishery. Their
interest in the book was shown by the fact that within a year of
its publication no less than three editions were brought out in
Holland.[671] It was promptly brought before the States of Holland, on
11th December 1635, and remitted to one Professor Petrus Cunæus for
examination and report.[672] His report was read on 31st March 1636,
and the States of Holland, after hearing it, resolved to look upon
_Mare Clausum_ merely as the work of a private person, which did not
require any special procedure on their part.[673] The States-General,
however, took another view of the book, and decided that it should
be formally refuted, since they had learned that King Charles would
attempt to establish his pretended rights over the so-called four seas
by arguments borrowed from _Mare Clausum_. No doubt at this juncture
the thoughts of men in Holland were turned towards Grotius, the one
above all others most worthy of the task of refuting Selden. But
Grotius was then the Swedish ambassador in France, and did not wish to
offend his royal mistress by publicly opposing claims not dissimilar
to those she herself made in the Baltic.[674] If we can trust Sir
Kenelm Digby, Grotius was even pleased to see his works refuted. In a
letter from Paris about Selden’s book, which was “much esteemed” there,
Digby said Selden was not to expect a reply from Grotius, “who wrote,
he says, as a Hollander, and is exceeding glad to see the contrary
proved.”[675]

The official refutation of _Mare Clausum_ was, by a resolution of the
States-General on 28th April 1636, entrusted to a lawyer of Delft,
called Dirck Graswinckel, who does not appear to have been very well
fitted for so onerous a duty. His treatise in reply to Selden was not
submitted to the States-General until 13th April in the following
year, and by that time much had happened to alter the political
complexion of affairs. The States-General had then reason to believe
that the campaign which Charles had been carrying on against the Dutch
herring-busses would be suspended (p. 315), and probably never resumed;
and after remitting Graswinckel’s work to a committee, it was finally
set aside and was never published, while the author was soothed by the
substantial pension of 500 gulden a-year for his pains.[676]

But another Dutchman in this year assumed the task which Graswinckel
had fruitlessly essayed. This was Pontanus, Professor of Philosophy and
History in the College of Harderwyck in Guelderland, who also occupied
the office of Historiographer to the King of Denmark. He had thus,
like Grotius, to be cautious in his refutation of Selden’s general
arguments upon the appropriation and dominion of seas, because the
claims of Denmark to such property and dominion were notorious. But he
was free to contest the particular rights of England, which he did with
zest. He subjected Selden’s chapters, almost _seriatim_, to a rigorous
criticism, beginning with the Romans and the Anglo-Saxons. He made the
most of the declarations of Elizabeth as to the freedom of the seas for
navigation and fishing, and of her State Paper of 1602 (see p. 110);
and he dealt specially with the sovereignty over the northern seas--the
_Mare Caledonium_ and those flowing between the Scandinavian countries
and Iceland and Greenland--which he asserted were not, and never had
been, under the dominion of England, but always appertained to the
Scandinavian nations. Pontanus entered very fully into the negotiations
which had taken place between England and Scotland on the one hand, and
Norway and Denmark on the other, concerning those seas and the rights
of navigating and fishing at Iceland and Greenland--subjects on which,
from his official position, he had special knowledge.[677] In the same
year another author, and he a Frenchman, entered the field in defence
of the appropriation and dominion of seas,[678] while a somewhat
virulent controversy broke out between Poland and Denmark as to the
sovereignty of the Baltic Sea, which was claimed by each, as it had
been shortly before by Sweden, and formed, indeed, one of the causes of
the war by Gustavus Adolphus against Germany.[679]

The juridical controversies respecting the appropriation and dominion
of the seas continued throughout the whole of the seventeenth century
and well on into the next, and so far as this country was concerned,
they were particularly vehement during the first and the third Dutch
wars.



CHAPTER X.

THE PARLIAMENT, THE COMMONWEALTH, AND THE PROTECTORATE.

THE FIRST DUTCH WAR.


On the 3rd November 1640 the Long Parliament commenced its sittings
at Westminster, and within two years thereafter--on 22nd August
1642--Charles raised the royal standard at Nottingham, and initiated
the great Civil War. During the period of strife little was heard
of the claim to the sovereignty of the sea, although the Parliament
continued to issue the usual instructions to the naval commanders to
compel homage to the flag. But under the Commonwealth and Protectorate
the English pretensions were carried to as high a pitch as ever they
were under the Stuarts. The stern men who then guided the destinies
of England were as jealous of the symbols of the nation’s greatness
as had been the vacillating king they destroyed. In particular, the
salutation of the flag was enforced with great vigour. A dispute on the
point between Tromp and Blake occasioned the first Dutch war, and the
result proved to the world that after all England possessed the actual
dominion of the sea by reason of her naval power. In the negotiations
with the Dutch which preceded the treaty of peace, we shall find that
Cromwell put in the forefront of his conditions the recognition of
England’s right to the herring fishery, and to the striking of the flag
within the British seas.

At first, as might have been expected from the actions of the king
with regard to the ship-money collections, little sympathy was shown
by the Parliament for the claim to the sovereignty of the sea. The
necessity of maintaining that sovereignty had always been put forward
as a principal argument for levying the money, and on that ground it
was objectionable to many of those opposed to the king. In a work said
to have been presented to the Parliament at its first meeting, forcible
opinions were expressed against the pretension. It was doubtful, it
was said, whether the sea really belonged to the crown, as the king
claimed. Even if it did, it was not apparent that the fate of the
land depended upon the dominion of the sea. That dominion might be
considered as a right, an honour, or a profit. As a right it was a
theme “fitter for scholars to fret their wits upon than for Christians
to fight and spill blood about”; as an honour, by making others strike
sails to our ships as they passed, it was “a glory fitter for women
and children to wonder at than for statesmen to contend about”; as a
matter of profit, to fence and enclose the sea, it was of moment, but
not more to us than to other nations: by too insolent contentions about
it we might provoke God and dishonour ourselves, and rather incense our
friends than quell our enemies.[680] If such sentiments reflected the
feeling of the Parliament at the beginning of their labours, they were
not of long duration. Within a few years a change was wrought, which
was probably in large measure due to the part taken by the fleet in the
struggle with the king, as well as to the abiding spirit of the people
for predominant power on the sea.

From an early stage in the conflict the control of the fleet passed
into the hands of the Parliament. In the summer of 1642, when the Earl
of Northumberland, the Lord High Admiral, was laid aside by illness,
the Parliament succeeded, with his connivance and assistance, in
placing the Earl of Warwick in actual command; Sir John Pennington, the
nominee of Charles, having to stand aside.[681] Under the management
of its new masters the navy rapidly became a powerful and efficient
instrument for the defence of the realm, as was shown at the opening
of the Dutch war. The general instructions given by the Parliament
to its naval officers respecting the honour of the flag and the
sovereignty of the sea were almost identical with those which had been
issued to the Earls of Lindsey and Northumberland, but the phraseology
was sometimes a little varied. On 5th April 1643 the Parliament, in
view of the attempt organised by Queen Henrietta Maria to smuggle into
England military supplies from the Netherlands for the use of the
royalists, ordered the Earl of Warwick, if he met with “any foreign
forces, ships, or vessels, as Spaniards, French, Danes, Dunkirkers, or
any other whatsoever, making towards the coasts of England, Ireland, or
any other of his Majesty’s dominions,” to command them, “according to
the usual manner, to strike their flags or top-sails,” and cause them
to be examined and searched for soldiers or munitions of war. If they
refused to strike, he was “to compel them thereunto by force of arms
and surprise, and to take all such ships and vessels, or otherwise to
burn, sink, or destroy them.”[682] In the following year the Committee
for the Admiralty instructed Vice-Admiral Batten, who was in command of
the fleet, “upon all occasions, as you shall be able, to maintain _the
Kingdom’s_ sovereignty and regality in the seas.”[683]

In the spring of 1647, the Committee of the Admiralty, for some reason
or other, appears to have devoted special attention to the question of
the flag and the sovereignty of the sea. Collections were made from the
Admiralty archives of precedents showing that all ships refusing to
strike in English waters were to be reputed enemies, and were liable
to forfeiture,--the examples beginning with the Ordinance of King
John and ending with the instructions issued by Charles.[684] These
collections were probably made in connection with the instructions
which the Committee drew up at this time for the guidance of the
captains and officers of the navy, and which were essentially similar
to those given by Charles to his ship-money fleets. “It must be your
principal care,” they ran, “to preserve the honour of this kingdom, and
the coasts, jurisdictions, territories, and subjects thereof, being in
amity with the Parliament, and within the extent of your employment,
as much as in you lieth; that no nation or people whatsoever intrude
thereon or injure any of them. And if you chance to meet in any of the
seas that are under the jurisdiction of England, Scotland, and Ireland,
with any ships or fleets belonging to any foreign prince or state, you
must expect that they, in acknowledgment of this kingdom’s sovereignty
there, shall perform their duty and homage in passing by, in striking
their top-sails and taking in their flags.” If they refused they were
to be forced to do so in the usual way. It will be noticed that the
region within which foreigners were to be compelled to strike was
greatly extended by the Parliament. Up to and including the reign of
James the “acknowledgment” was confined to the narrow seas, in which
it had been exacted for centuries; Charles in 1635 ordered Lindsey to
compel it “in his Majesty’s seas,” and now the Parliament extended
it specifically to all the seas under the jurisdiction of England,
Scotland, and Ireland. From a clause in the instructions it is clear
that the seas over which the Parliament claimed sovereignty reached
to the coasts of the Continent; but a territorial limit was excepted
on foreign coasts. The clause in question enjoined the naval officers
“to be very careful not to meddle with any ships within the harbours,
or ports, or under the command of any of the castles of any foreign
prince or state, or within any buoys (Buoyes) or rivers, that they may
have no just cause of offence.” Another feature of these instructions
is of interest. The clause which was inserted in the instructions to
Lindsey and Northumberland in 1635, 1636, and 1637, commanding them
to prevent all hostilities between men-of-war or merchant vessels in
the presence of the king’s ships, was repeated.[685] The Parliament
clearly intended to abate no jot of the pretensions which had been put
forward by the king.

An opportunity soon came for putting the instructions regarding the
flag into force. In May of the same year a Swedish fleet of fifteen
sail, consisting of ten merchantmen bound for the Mediterranean and
five ships of war convoying them, was met by Captain Owen in the
_Henrietta Maria_ off the Isle of Wight. On being called upon to
strike, the Swedes refused, declaring that they had been commanded by
the Queen of Sweden “not to strike to any whatsoever.” Owen, reinforced
by Batten, thereupon attacked them, the fight continuing till night.
The Swedes suffered much loss; the colours of their vice-admiral
and rear-admiral were shot away, a “great breach” was made in the
vice-admiral’s ship, and their vessels were captured and taken into
Portsmouth. They were afterwards released, but the Admiralty Committee
expressed the opinion that the proceedings of their officers “in
order to the maintenance of the kingdom’s sovereignty at sea” were
to be commended, and this resolution was reported to both Houses of
Parliament.[686] The question of the salute between ships of war of
different nations had been brought to the front in most other maritime
countries by the forcible measures taken by Charles in 1633 and later.
Two years before the encounter with the Swedes in the Channel, Denmark
and Sweden had regulated the ceremony, as affecting their own ships of
war, in the treaty of peace then concluded between them.[687]

From this time until shortly before the war with the Dutch there
is little to record about the claims to the dominion of the sea.
In 1649, the instructions issued to Popham, Blake, and Dean, the
commanders of the fleet, included the guarding of the North Sea and
the mackerel-fishing, as well as the maintenance “of the sovereignty
of the Commonwealth in the sea,” all in the prescribed form.[688] In
the following year the Council of State issued express commands to
Blake on the subject when he was ordered to proceed against Prince
Rupert and the revolted ships at Lisbon. The dominion of “these seas,”
they said, had anciently and time out of mind belonged to the English
nation, and the ships of all other nations in acknowledgment of that
dominion had been accustomed to take down their flags “upon sight” of
the Admiral of England, and not to bear them in his presence. Blake was
therefore, to the best of his powers, and “as he found himself and the
fleet of strength and ability,” to do his utmost endeavours to preserve
the dominion of the sea, and to cause the ships of all other nations
to strike their flags and keep them in in his presence, and to compel
such as were refractory, by seizing their ships and sending them into
port, to be punished according to the “laws of the sea,” unless they,
submitted and made such reparation as he required. At the same time,
although the dominion of the sea was so ancient and indubitable, and it
concerned the honour and reputation of the nation to uphold it, Blake
was not to imperil his fleet over it in the expedition on which he was
employed. If he was opposed in the question of the flag by a force so
considerable as to prove dangerous, he was not to press it, but to note
who they were that refused, so that they might be forced to strike at
some better opportunity.[689]

Such were the instructions of the Government to the English naval
commanders, and they were soon to bear bitter fruit. At this period
the Dutch men-of-war apparently did not show unwillingness to salute
the English flag, even sometimes in distant seas. Penn notes in his
journal, on 13th September 1651, that on meeting with the Dutch Admiral
with his vice- and rear-admirals between Cape Trafalgar and Cape Sprat,
they struck their flags to him and saluted; but they then hoisted
them, which would have been contrary to the custom in the narrow sea,
and Penn thereupon called his captains together for advice, but they
said the Dutch “had done enough.” A little later he records that young
Tromp, convoying thirteen merchantmen, came into Gibraltar Road, where
Penn was lying, with his flag in the main-top. The English Admiral,
however, did nothing, since Tromp was in a port of the King of Spain.
Shortly afterwards in the same place eight sail of Hollanders, four of
which were men-of-war, all struck their flags and saluted the English
fleet.[690]

The claims of England to the sovereignty of the seas were now about
to enter on a new phase, which culminated in the first Dutch war. So
long as the ambitious and energetic Prince William II. of Orange was
alive, the relations between the United Provinces and the Parliament
were strained and menacing. The States-General, under Orange influence,
refused to enter into diplomatic communication with the English
Government, or to admit their ambassador, Strickland, to audience. The
execution of Charles I. had raised strong feelings of reprobation and
horror in the Netherlands, even amongst the Hollanders and Zealanders,
who sympathised with the Puritans; and it was believed in England
that the Prince of Orange was contemplating war against them for the
restoration of his brother-in-law, Charles II., to the throne. The
death of the Prince, on 27th October 1650, produced a great change. It
was followed by a political revolution in the United Provinces, the
chief outcome of which was the predominance of the States of Holland
and of the party opposed to the Orange faction, and most favourably
inclined to maintain good relations with the English Commonwealth.[691]
It was therefore agreed at The Hague to send back Joachimi, who had
been dismissed by the Parliament in the previous year, with credentials
as ambassador from the States-General to the Parliament.

In London the accession to power of the republican party in the
Netherlands had been watched with keen interest. The time, it was
believed, was come for a close alliance between the two great
Protestant Republics for safeguarding their religious and political
liberties; perhaps, it was thought by some, for even a closer union
than was implied in the strictest alliance known to diplomacy. The
Parliament accordingly lost no time in opening negotiations with the
States-General. On 17th March, 1651, Lord Chief-Justice St John and
Walter Strickland entered The Hague with great pomp and splendour as
ambassadors from the Commonwealth, attended by an imposing retinue
of 246 persons. They were greeted in the street with insulting cries
from Orange partisans and royalist refugees. On the following days
their suite only ventured abroad in parties, and with their rapiers in
their hands. The ambassadors themselves were openly jeered at, and
threatened by Prince Edward, son of Elizabeth, Queen of Bohemia; and
though the States-General received them with ostentatious courtesy, and
prompt measures were taken to suppress the disorders and insults, the
conditions of their surroundings produced irritation and impatience in
their minds, with important results in the sequel.[692] The principal
object of the Parliament was to make use of the Dutch Republic to help
them to maintain the Commonwealth, and to resist any attempt to place
Charles II. on the throne. In return they were willing to aid the
Republic against the House of Orange or any other inclined to disturb
it.

St John had with him two series of propositions,--one relating to
a strict alliance and union; the other, private and never fully
disclosed, included a novel scheme for the coalescence and fusion of
the two states and peoples, on the lines propounded by the Council
of State in the following year. He brought out his propositions one
by one, requiring categorical acceptance of each before dealing with
the next, the design being to lead step by step to the proposals for
coalescence and fusion. His first proposition was in substance for
“a more strict and intimate alliance and union” than any before, by
which there might be “a more intrinsical and mutual interest of each
in other” for the good of both.[693] After some fencing and much
hesitation and delay--the Dutch proferring a qualified acceptance,
which the ambassadors rejected--a guarded assent was given. St John,
though not satisfied, thinking the “manner of penning the answer was
dark and doubtful,” “determined to proceed into some further thing
which might come nearer to make a discovery of their temper and
inclination in point of their neutrality, than stay any longer upon
general terms,” and he accordingly at the same meeting submitted
another proposition requiring the confederation of the two states
for the defence and preservation of the freedom and liberty of the
people of each against all that might attempt to disturb them, or that
were declared to be enemies to the freedom and liberty of the people
living under either Government.[694] The Dutch commissioners, however,
declared that this was a general proposition, and they insisted on
a request they had made from the first, to be furnished with the
“particulars”--they wanted the particulars, _simul et semel_, that were
intended to be insisted upon.

The negotiations had been protracted. By this time a month had elapsed
since the ambassadors arrived, and St John, now conscious that his
mission for coalescence would fail, and irritated by the indignities
to which he had been subjected, obtained an order from the Parliament
for his recall. At the urgent entreaty of the States of Holland
the Parliament allowed their ambassadors to stay for other forty
days, and also gave them authority to treat on the basis of the old
Intercursus Magnus of 1496, which the Dutch had suddenly proposed. The
States, in truth, had totally different aims from the Commonwealth.
They were thinking about their commerce, their navigation, and their
fisheries, rather than about the repression of “rebels”; and they
desired that their alliance with England should confirm and extend the
benefits conferred upon them in these respects by the old treaty. The
Intercursus Magnus had for generations been the sheet-anchor of Dutch
policy towards England. It gave them the utmost freedom of commercial
intercourse, and complete liberty of fishing on the English coasts.
But it contained other clauses appropriate in spirit to the political
conditions of 1651. The treaty had been concluded by Henry VII. in
the year in which apprehensions were entertained that Perkin Warbeck
would effect a landing in England; it provided for mutual military aid
against the enemies of either country, and the expulsion of rebels
and fugitives from the territories of the other. St John naturally
took the clauses embodying these stipulations as the basis of his
new draft articles, which he submitted to the Dutch commissioners
on 10th May. They were seven in number. The first required that the
proposition made on 17th April for mutual defence of the freedom and
liberty of each people should be an article of the treaty. The second
provided that neither party should afford any aid or favour to any
one whomsoever to the injury or prejudice of the other, but should
expressly oppose “and really hinder all whomsoever,” abiding in either
commonwealth or under its power, that should do or attempt anything
against the other; and the remaining articles were of similar tenour,
relating to “rebels” and enemies. They were, in short, political
articles of the most comprehensive scope, aimed against the royalists;
so comprehensive and thorough that the English Commonwealth might, by
declaring the Prince of Orange himself its enemy, demand his expulsion
from the Provinces.[695] St John’s articles were by no means to the
liking of the Dutch; and though he pointed out that they were “but a
translation of the old treaty, only enlarged for the better assurance
of performance,”--the treaty which they themselves had proposed as
the basis for the new one,--they insisted on sending the articles to
the various Provinces for their opinion. For a full month the English
ambassadors waited without an answer to their articles--a delay which
they believed was meant “to spin out the treaty until the Scotch mist
was over” and the result of the struggle in Scotland apparent. But the
Dutch, though slow, had not been idle. On 14th June, when only four of
the forty days allotted by the Parliament remained, the Dutch produced
counter-proposals in the form of draft articles, thirty-six in number,
which were paraphrased from the Intercursus Magnus, the treaty with
King James VI. of Scotland in 1594, the treaty of Southampton with
Charles in 1625, and the marine treaty with Spain in 1650.

These articles had been submitted by Holland to the convocation of the
States-General on 15th May, and were under the consideration of the
provincial states for nearly a month. They provided for a “perpetual
friendship, unity, correspondence, and a further and nearer alliance,
confederation, and union” against all who should attempt anything
derogatory to the liberties of the two peoples, their commerce, and
common interests; mutual defence and mutual assistance with men and
ships against “notorious or known” enemies of the other, and the
prohibition of assisting rebels. But there was no article under which
the royalists could be expelled from the United Provinces, or which
prevented the House of Orange from aiding or harbouring declared
rebels of England; and it was expressly stipulated that the States
should in no way be drawn into the disputes and war between Scotland
and the Parliament. Having thus whittled down the proposals of the
Parliament for a close alliance directed against the royalists, the
Dutch propounded a whole series of articles providing for the freest
commercial intercourse between the two countries, for freedom of
navigation and of fishing. The trade to Virginia and the Caribbean
Islands, which had been closed by the Parliament, was to be thrown
open to both nations; ships were to be free to anchor without seizure
of goods; the subjects of one state were not to be taxed higher in
the territories of the other than the natives, and they were to be
free to carry on their business or profession with the same liberty.
A number of articles dealt with questions relative to the sovereignty
of the seas, in such a way as to show clearly that the design of the
Dutch was to render harmless a pretension which had caused them so much
trouble. They had not forgotten the declarations of Charles sixteen
years before, or the forceful operations of Northumberland against
their herring-busses. With regard to fishing, they wished the subjects
of either state to be at liberty to go to any part of the sea to fish
for herrings and all other kinds of fish, great or small, without any
license or pass being required. If the fishermen were forced by storms,
pirates, enemies, or any other cause, to go to land, they desired that
they should be courteously received and well treated in the ports of
either country, and permitted to depart with their ships and cargoes,
and if they had not broken their cargoes, without paying any customs
or dues.[696] These stipulations paraphrased corresponding provisions
in the Intercursus Magnus, and rather more favourably to the Dutch. If
they had been accepted, they would have destroyed the English policy
which had been pursued, though fitfully, from 1609 to the outbreak of
the Civil War, of requiring foreigners to pay tribute and take out
licenses for fishing on the British coasts.

Some of the other articles proposed by the Dutch were directed against
the claims put forward in Selden’s _Mare Clausum_, and by Charles
himself, to a special dominion and jurisdiction of England in the
surrounding seas. If the freedom of commerce and navigation was to
be assured, it would be necessary, it was said, for both countries
to equip fleets to secure the safety and liberty of the subjects of
both, to purge the sea of pirates and sea-rovers, and to preserve
the security of commerce and of fishing. The proposition was that
each state should set forth a fleet yearly, its strength to be fixed
by mutual agreement, and the ocean as well as the North Sea and the
Mediterranean, with their straits and channels, were to be patrolled
by the two fleets, each under its own admiral and flag. This was in
effect asking the Commonwealth not only for equality of sovereignty on
the sea, but for the assistance of England in protecting the immense
commerce and shipping of the United Provinces. They desired that each
nation should shield and defend the merchant vessels of the other, and
help to recover them if taken by an enemy.

Among other proposals were that men-of-war, but only in small
numbers, should be allowed freely into the ports and havens of the
other, and were not to be subjected to visitation and search, the
showing of the commission to be sufficient; and that no sea-rovers
were to be tolerated in harbours, and no ships with letters of
marque allowed to leave without first providing security that they
would not exceed their commissions. One of the provisions went much
further, and seems to smack of Dutch humour, when we think of the
action of James and Charles. For the sake of liberty, both peoples
were to use their fleets, not only against pirates, but against all
and sundry, whomsoever they might be, who should attempt to molest,
hinder, or--“against the right of all peoples”--impose exactions on
their commerce, navigation, or their fishery. In such an event, if
amicable remonstrances failed, the whole sea forces of each nation were
to attack the depredators and wage war against them until complete
satisfaction had been obtained.[697]

So resolved were the Dutch to have a general clearing-up with England
on all points concerning the sovereignty of the sea, that they at
first proposed to insert among their draft articles one relating to
the striking of the flag and similar ceremonies, which frequently gave
rise to differences. The States-General, however, considered the matter
“too delicate” to be raised at that time, and the article was not
inserted.[698] Two or three months before this, as elsewhere mentioned
(p. 398), the question of striking the flag to the English had been
raised and debated in the States-General in connection with Tromp’s
expedition to the Scilly Islands.

With the foregoing proposals before him, it is not to be wondered at
that St John was dissatisfied, and longed more than ever to get away
from The Hague. The Commonwealth had asked for a strict and close
alliance at the very least, for the security of religious and political
liberty and the common interests of both Republics, but in reality
and above all for aid against the royalists. The Dutch also desired
security for liberty, but it was chiefly for the liberty of commerce,
navigation, and fishing; and they were anxious, if they could, to get
rid of the troublesome English pretension to a sovereignty of the sea.
The proposals of the two sides were incompatible, and St John left
The Hague a few days later with the unuttered plan for the fusion
of the nations in his pocket and with bitterness in his heart. His
disappointment was to cost the Dutch dear. Within a few months of his
return the Navigation Act was passed, mainly by his impulse, and it
dealt a serious blow to the commerce of the United Provinces.[699] It
was the retort of the English Commonwealth to the rebuff of the States.
If the Dutch put their commerce and fisheries above everything else,
the Parliament would show them how they could injure them and at the
same time foster English shipping and fisheries.

But much more than the Navigation Act, some other proceedings of the
Parliament increased the tension between the two countries. In November
they renewed certain letters of reprisal against the Dutch, under
which a few of their vessels were captured. More serious were the
actions of English men-of-war and of some privateers who held letters
of reprisal against the French. An informal maritime war with France
began in 1649 and continued till 1655, and though there was nominally
peace, the English captured French vessels, and _vice versâ_. They then
began to seize Dutch ships, suspected of having French goods on board,
and brought them into English ports for trial in the Admiralty Court.
This was an interference with freedom of commerce which the States
could not tolerate, and an embassy to England, which had been decided
upon after St John left The Hague, was despatched thither.[700] The
three ambassadors, Cats, Schaep, and van de Perre, arrived in London
on 15th December 1651. They were instructed to renew negotiations
for a treaty on the basis of the thirty-six articles, to endeavour to
get the Navigation Act repealed, the captured vessels released, and
the letters of reprisal withdrawn, with compensation for the losses
suffered by reason of them. The question of adding another article to
their instructions, about the striking of the flag, which had been
omitted from the thirty-six articles, had again been considered. But,
for the same reason as before, it was withheld. “The carrying or
striking of the flags by the one side or the other” was judged to be
“very delicate”; and it was decided (on 10th November 1651) that the
States-General should deliberate further on the matter, and send later
to the ambassadors such instructions “as should be found suitable for
the removal of misunderstandings and hostilities.”[701] We thus see
that in 1651 the Government of the United Provinces was fully alive to
the risks and difficulties about the flag. But from their proceedings
at this time it would seem that they were unwilling to acknowledge
unreservedly the claim of the Commonwealth to the salute, which was
looked upon as a symbol of England’s sovereignty of the sea. The
question was only rendered “delicate” because of certain qualifications
and conditions of reciprocity which they desired to attach to it, and
for which they struggled hard with Cromwell during the subsequent
negotiations for peace.

The ambassadors had an audience with the Parliament on 19th
December,--Cats treating the members to a long and flowery oration
in Latin,--and with the Council of State on 1st January 1652; but it
was not until the 16th that commissioners were appointed to deal with
them. The English commissioners[702] showed no anxiety to facilitate
the negotiations. The spirit with which they were animated was evident
from their eagerness to bring forward all imaginable reasons for
dispute,--the interest taken by the Dutch in the fate of Charles I.;
the partiality of some of their ambassadors at foreign Courts; their
refusal to receive Strickland; and so forth. In the end, the Dutch
ambassadors failed to get what they wanted. The English refused to
cancel or modify the Navigation Act, to release the captured ships
before the cases had been tried in the Admiralty Court, or to make
reparation. They suspended the letters of direct reprisal against the
Dutch, but not those against the French, which were by far the more
important.

It was felt in Holland that such interference with their trade could
not be endured. There were loud complaints about the seizure of the
ships, and the opinion was growing in the Netherlands that it was
the intention of the Commonwealth to force a war upon them. As a
precautionary measure the States-General decided on 22nd February to
add 150 ships to the existing fleet, “for the security of the sea and
the preservation of the shipping and commerce of the United Provinces”;
and the ambassadors were requested to inform the English Council of
their intention, which was done on 5th March, with the explanation that
it was not with the object of doing the slightest harm to any nation,
and least of all to England, that the increase in the fleet was to be
made, but only to preserve their freedom of navigation.[703] As this
extraordinary addition to the navy of the Dutch Republic would raise
it to the formidable number of 226 ships, it is not surprising that
the proceeding was viewed in England as a preparation for war. The
Council, on their part, put forward a series of more or less provoking
claims. They demanded reparation for wrongs and losses suffered by the
English at the hands of the Dutch at “Greenland” in 1618, in the East
Indies since 1619, and at Brazil; and they complained of various other
wrongs and affronts they had suffered. But pending an answer from the
States-General to their complaints and requests, they agreed, on 3rd
May, to discuss with the ambassadors the thirty-six articles.

These articles had been previously considered by the Council of State,
which had prepared a commentary on them; and now both documents were
taken up together. On the proposals concerning the sovereignty of the
sea many differences arose. With regard to the right of the English
to visit and search vessels, men-of-war as well as merchantmen, the
ambassadors referred to the edicts of the States forbidding warships to
take merchandise on board, and to the certificates of their Admiralty
to the same effect; but it was argued on the other side that these
measures had not stopped the abuse, and that the visitation was
not prejudicial; and no agreement on this clause was reached. The
commentary of the Council on the fishery article (see p. 388) was
that, saving and asserting the right of the Commonwealth, they would
be willing to proceed to such an agreement as should be found fit
and reasonable; while the Dutch took their stand on the provision in
the Intercursus Magnus, and urged that it would be unjust to deviate
from an agreement which had endured for a century and a half. It was
admitted by the English commissioners that the treaty gave liberty of
fishing, but they asserted that long before the time of Henry VII.
the right to the fisheries and to the sovereignty of the sea belonged
to England. It had, moreover, been impeached by succeeding kings and
especially by James, to whom, as King of Scotland, the right to the
fishery pertained; while after the union of the crowns he pursued the
same policy as King of England, and now that Scotland had been brought
under the dominion of the English Republic, it was thought that the
best course was to make a new treaty about the fisheries.[704] The
ambassadors could obtain no definite information as to the nature
of the treaty proposed, but it would not be difficult for them to
comprehend its general tenour, for they had to listen to the recital
of the “evidences” that England had constantly made use of her rights
in the fishery, and of the care she had always exercised as to the
sovereignty of the sea. The Dutch endeavoured to avoid mixing up these
two questions, pleading that the fishery concerned the lives of a
multitude of poor fishermen; but the commissioners retorted that it was
a very valuable industry, the right to which belonged to England, and
this, they said, had been acknowledged by neighbouring nations paying
taxes for liberty to fish in their seas, adding that all peoples had
been accustomed to recognise in them the masters of the sea by striking
the flag to them, and that the Dutch themselves had earlier instructed
their naval officers to salute English ships “_cum debita reverentia_,”
and it was also expressly ordered in the commissions issued by Prince
William and Maurice. From the language of the English commissioners,
it appears probable that they were acquainted with the proceedings of
the States-General as to the proposed article on the striking of the
flag, and with the debates in the previous year concerning Tromp’s
instructions (see p. 398). The negotiations on the fishery question
were not carried further at this stage.

With regard to the article relating to the equipment of a fleet by each
nation for the protection of commerce, the commentary of the Council
of State was that “the Commonwealth of England shall take such care
for the guard of their seas and defence of the freedom of trade and
commerce therein as shall be fit”; and with respect to the next, which
stipulated that both countries should protect commerce and fisheries
from molestation or impositions, the reply was equally uncompromising.
“If any person,” it was said, “shall, within those seas, trouble,
hinder, or unlawfully burthen any in the exercise of that freedom of
trade which belongs of right unto them, this Commonwealth will use all
means just and honourable to restore and preserve freedom to all lawful
commerce in those seas as aforesaid.”[705] The meaning of this language
was unmistakable. The Commonwealth intended to adhere to the old claim
to the dominion of the seas, which had been revived by Charles. And
this exclusive sovereign jurisdiction, it was explained, would be of
advantage to the Dutch, since they would bear no part of the cost; they
must be content with freedom of navigation and commerce, and leave
to the English the duty of maintaining the security of “their seas.”
On inquiring what means the Commonwealth proposed to take for this
purpose, the ambassadors were told that the intention of the Council
was “to defend the sea in their own right,” and that any further
explanation would be given by the Council if they applied to it.

At this stage of the proceedings William Nieuport, a member of the
States-General, came to London with fresh instructions for the
ambassadors. That body had been considering the English demands for
reparation, above alluded to, and also the commentary of the Council
on the thirty-six articles; but the refusal to liberate the captured
ships, or to stop the operations of privateers against Dutch vessels,
made them obdurate. The ambassadors were now told to insist on the
articles relating to visitation and search as an essential part of
the treaty. No Dutch vessel was to be visited, whether it was on the
sea, in harbour, or in a roadstead. The principle of “free ship, free
goods,” was to be strictly enforced, and no investigation of the cargo
of a merchant vessel was to be permitted; still less should they agree
to the visitation of a man-of-war. The ambassadors were specially
requested to avoid discussion as to any claim on the part of England
to exclusive right in any portion of the sea; in any case, they were
not to admit that such right existed, but were to treat only about the
liberty and security of the fishery on both sides.[706] If the English
protested that they would not allow themselves to be prejudiced in any
of their “pretended rights,” the ambassadors were then to make a formal
declaration that they, on their part, could not allow the freedom of
navigation and of fishery, or the free use of the sea, to be called
in question, nor could they recognise the special claims of any one
over the sea which might prejudice those rights. In order to avoid, if
possible, directly raising the question of the dominion of the sea,
they were requested when dealing with the crucial articles to speak
only of commerce and fishery, and not of the “purging” of the sea of
pirates; and they were also to abandon the proposal for a division of
the sea into districts.[707]

So passed, peacefully enough, the early weeks of May at the conferences
in London. The States’ ambassadors, on the one hand, demanding freedom
of navigation and fishery; above all, that the visitation and seizure
of their vessels should cease. The English commissioners, on their
part, putting forward incompatible claims to the sovereignty of the
British seas: the right of exclusive jurisdiction, of guardianship,
the right to the fishery. Whether the negotiations would have reached
a happy conclusion, as the ambassadors, and apparently also the
States-General, believed they would, may only be conjectured. For an
event of momentous importance now occurred which swept their labours
away and embroiled the two nations in war. On the 19th May, at the very
moment when the Dutch ambassadors were conveying their new instructions
to the English commissioners, Tromp and Blake were engaged in furious
battle in the Straits of Dover about that very matter which the
States-General had found to be “so delicate”--the striking of the flag.
The long-impending struggle engendered by years of mutual jealousy and
commercial rivalry had now come suddenly. The claim of England to the
sovereignty of the sea was to be decided, in the words of Sir Philip
Meadows, by a longer weapon than a pen.

Tromp had put to sea early in May, 1652, with a fleet of forty-two
sail, and bearing instructions to prevent the searching of Dutch
merchantmen, to protect them against any who interfered with them, and
to free them, by force if necessary, if they were captured. He was
further told to refrain as far as possible from going on the English
coast.[708] On one important point his instructions were defective.
He received no definite orders as to how he should act if the fleet
of the Commonwealth called upon him to strike his flag. The subject
of the salute had been much discussed in the Netherlands, and an
opinion was widely held that while their ships would suffer no loss
of dignity in striking to a fleet belonging to a crowned head, it was
doubtful whether the same homage should be rendered to the ships of a
republic like themselves. The question had been definitely raised and
fully discussed early in the previous year in connection with Tromp’s
expedition to the Scilly Isles, in view of the likelihood of his
falling in with the English fleet,--its consideration, indeed, delayed
his departure,--but the Government hesitated in coming to a decision,
and a general wish was expressed to hear Tromp’s own opinion first. He
accordingly prepared a memorandum describing what the States’ ships
had done in the past. He said that whenever their men-of-war met at
sea a ship of the King of England carrying the flag of an admiral,
vice-admiral, or rear-admiral, they struck their admiral’s flag,
lowered top-sails, and fired nine, seven, or five guns, the English
answering with a like number, and the States’ flag remained struck
until the ships separated, when three or one adieu-shots were fired,
and the flag was then hoisted. On meeting a single king’s ship, he
said, they did not strike their flag, but only exchanged guns; but
it sometimes happened that an English ship of little power tried to
compel them to strike, out of pride (“uyt hooghmoet”), but when they
fired back and showed their teeth, and the English ship found it had
not power to force them, it went on its way with derision; in such
cases striking was a matter of discretion. When they entered a harbour
or came before a castle they fired a salute, which was returned; the
flag was taken in and a pennant run up in its place, and kept flying so
long as they were there, particularly if a king’s ship, carrying the
king’s flag, was present. If no king’s ship was present, the governor
sometimes gave his permission, out of courtesy, for the admiral to wear
his flag until his departure, when it was again struck and a salute
exchanged.[709]

The substance of Tromp’s report was communicated to the States of
Holland by De Witt on 1st/11th March 1651, stress apparently being laid
on the point that it had been the custom in earlier times for the
States’ ships, “particularly when they were weakest,”[710] to salute
with guns and strike their flag on meeting the English fleet.[711] The
Government, however, thought that the conditions had changed; but they
failed to give the admiral definite directions one way or the other
as to how he should act if he met the fleet of the Parliament. He was
merely told in general terms that he must so manage matters, if he met
with the English fleet, that the state should suffer no affront (“geen
cleynicheyt”),--a decision which left everything to his own discretion.
There was the more risk in this course as the English at this time were
said to be jealous of Tromp, owing to his reluctance to strike his flag
to them.[712]

Later in the same year, the question was again raised by Vice-Admiral
Jan Evertsen, who was placed in command of a squadron to cruise
between Cape Ortegal, the Scillies, and Ushant. Before his departure
he endeavoured to obtain precise orders as to how he should comport
himself if called upon to strike, so that no “inconvenience” might
be caused. The States thereupon merely renewed the instructions they
had given to Tromp in March, and they ordered that copies of Tromp’s
memorandum should be distributed to the other commanders.[713]

No further directions on the matter were given to Tromp when he took
command of the fleet in 1652, though it ought to have been evident
to the States that in the delicate position of affairs with England,
and from the nature of the duties they had laid upon their admiral,
the risk of misunderstanding and collision with the English fleet was
great and imminent. They hesitated to give decided orders to strike,
apparently lest such action might be construed into an acknowledgment
of the inferiority of the Dutch Republic to the English Commonwealth,
especially at a time when they believed themselves to be superior to it
in naval power;[714] and though alive to the importance of the matter,
they were very reluctant to have it discussed in the negotiations in
London. But if the Dutch had no clear idea as to what they were to do
about the flag on meeting the English fleet, the English commanders
had no doubt about their own line of action. Their instructions were
explicit. They were, by force if necessary, to compel the ships of all
nations to this acknowledgment of England’s sovereignty of the sea.

Tromp proceeded to his cruising station off the coast of Flanders,
between Dunkirk and Nieuport, and while riding at anchor there a
strong north-east gale set in, which damaged some of his vessels, and
on the evening of the 18th May he crossed over to the English coast
for shelter and repairs. At this time Bourne was lying in the Downs
with eight Parliamentary ships, and Tromp sent two of his captains
to him to explain the accidental cause of his coming, the ships
conveying them saluting Bourne’s flag. One of the officers, according
to Bourne’s account, said that Tromp himself would have gone into the
Downs “but that he was not willing to breed any difference about his
flag, forasmuch as he had not orders to take it down”; to which Bourne
replied that he “presumed there would be no new thing required of them,
and neither more nor less would be expected from them but what they
knew to be the ancient right of this nation”; and he added that the
reality of the explanation given for their presence “would best appear
by their speedy drawing off from this place.”[715] According to Tromp’s
account of the interview, Bourne merely thanked him courteously for the
message.[716]

At all events, the Dutch fleet passed along the English coast in all
its bravery, the admiral’s ship with his flag on the main-top-mast
head, the rest with “jacks and ancients” flying, and about seven in the
evening they cast anchor off Dover, within little more than gunshot of
the castle. Here they remained till the following afternoon with all
their flags displayed, and without saluting. Three times a gun was
fired from Dover Castle, according to the usual practice, warning the
Dutch admiral to strike his flag; but Tromp--strictly within his right
if beyond gunshot--took no heed. He had probably purposely selected
an anchorage beyond the range of cannon in order to avoid striking to
the English flag. Not only did he not strike, but he exercised his
raw musketeers in discharging volleys of small-shot for many hours
together, in a way that must have been provoking to the English. On
the afternoon of the 19th, Blake, who had been lying at anchor in Rye
Bay a little to the westward, and who had received intimation from
Bourne of the presence of the Dutch fleet, came upon the scene with
fifteen ships. As he approached Tromp weighed anchor and stood off
to sea towards Calais,--a movement which Blake thought to be due to
a desire to avoid “the dispute of the flag.”[717] So far Tromp had
carried out his instructions. He had indeed, through stress of weather,
gone upon the English coast, which he had been requested to avoid as
far as possible. But he had preserved the States from suffering any
“indignity” about the flag. Obviously there was great tension between
the fleets as to the question of striking. Not unnaturally, Tromp’s
proceedings were regarded by the English as an attempt to brave them
upon their own coast; and the English admirals, who were vigilantly
watching, would not be slow to challenge any infraction of the custom
of the narrow seas. They too had to take care that their country
suffered no dishonour, as they understood it.

When Tromp was on his way to Calais, and about half seas over, a
small Dutch vessel fired a gun and came up to him, and communicated
the intelligence that a week earlier a Dutch convoy had been attacked
by the English for not striking their flags; and, above all, that
the seven homeward-bound merchant vessels which had been under their
charge, with valuable cargoes on board, were at that moment lying at
anchor off the English coast, and, it was believed, in danger from the
English fleet.[718] The occurrence referred to took place on 12th May.
Captain Young, in the _President_, while off the Start, accompanied
by two other English men-of-war, fell in with seven Dutch merchantmen
from Genoa and Leghorn, convoyed by three men-of-war, with their
flags displayed. Young sent a boat to their admiral to request him to
strike his flag “before any blood was shed in the controversy,” which
he did. But the vice-admiral, contrary to the custom in the narrow
sea, came to the windward of Young, and refused to strike, telling
him to come on board and strike the flag himself. The _President_
then poured a broadside into the Dutch ship, together with a volley
of small-shot, and several broadsides were exchanged before the
vice-admiral struck, and then the rear-admiral did the same. On Young
demanding the vice-admiral or his ship to carry into port to make good
the damage done, he was told by the admiral that he himself had not
interfered so long as it was only a question of striking the flag, but
if he attempted to seize the ship he would resist him; and the matter
was carried no further. “I do believe,” said Young, “I gave him his
bellyful of it, for he sent me word he had order from the State that if
he struck he should lose his head.”[719] It is probable that the Dutch
vessels encountered the north-east gale that forced Tromp from his
anchorage; at all events, they were brought by their convoyers along
the English coast to Fairlight,[720] between Hastings and Winchelsea,
where they cast anchor; then the Dutch captain who had been attacked,
Joris van der Saen, went in search of Tromp to tell him of their plight.

On hearing his story, Tromp instantly turned about and made straight
for the English coast, which he had left only a few hours before.
In this case, at all events, his instructions were explicit. He had
been ordered to prevent Dutch vessels from being visited or searched,
and to recover them if captured. Blake, on seeing the Dutch fleet
returning, stood off to meet it. He did not know the real reason that
had made Tromp alter his course: he had passed the merchant-ships a few
days after their meeting with Young, and had done nothing to them. He
believed that Tromp was seeking an occasion of quarrel, and watching
for an advantage to brave them on their own coast. The Dutch admiral
came on with his flag at the main-top, and when he was well within
range, Blake fired a gun across his bows to make him strike, and after
an interval a second, and yet again a third at his flag; the ball going
through the main-sail and killing a man on deck. Tromp then, still
with the States’ colours aloft, fired a single gun at Blake’s flag,
ran up a red flag,--the prearranged signal for battle,--and poured a
broadside into Blake’s ship, and the two fleets entered into a fierce
encounter.[721] The fight lasted from four or five o’clock until nine,
Blake being assisted by Bourne, who came from the Downs with his small
squadron and assailed Tromp in the rear. The Dutch fleet, with the loss
of two ships, gradually drew off towards the French coast, and Blake
kept his position all night and anchored some leagues off Dungeness.

This was the first great fight over the striking of the flag, and it
occasioned immediate war between the two countries. Encounters on a
small scale had been not infrequent before, but no foreign fleet had
hitherto ventured to challenge an English fleet in this way off the
English coast. Tromp himself, thirteen years before, when he possessed
an overwhelming force, readily struck his flag to Pennington’s small
squadron in the Downs. After the battle attempts were made to justify
Tromp’s action, but not at all on the ground that the demand for him
to strike his flag to the English admiral was unjust or contrary to
custom. Blake was accused of having precipitated the battle. Tromp, it
was said, had men aloft ready to strike the top-sails, or had already
done so; he had sent a man up to strike his flag; he was preparing to
send his boat to Blake after the second gun was fired to ask him the
reason of his firing, and so forth. But the Dutch admiral well knew the
custom of the narrow sea, and had no need to ask Blake the reason of
his firing across his bows.[722] When the nature of his instructions
with reference to saluting is considered, along with his memorandum
and the discussions connected with it, his action before Dover Castle
on the day before, and the variation in his own subsequent accounts of
his intentions and proceedings, the inference is strong that he had
resolved not to strike to the weaker fleet of the Commonwealth.

In London the news of the battle aroused intense indignation. It was
everywhere believed that Tromp had deliberately attacked the English
fleet,--an opinion confirmed by the commissioners, of whom Cromwell was
one, sent to Dover to inquire into the facts. The meeting of Joris van
der Saen with Tromp, which had been seen from the English fleet, was
viewed in a sinister light. The little Dutch ship was thought to have
carried instructions from the States for Tromp to make the attack. The
Parliament thought so also: “They found too much cause,” they said,
“to believe that the Lords the States-General of the United Provinces
have an intention by force to usurp the known rights of England in
the seas, to destroy the fleets that are, under God, their walls and
bulwarks, and thereby expose this Commonwealth to invasion at their
pleasure.”[723] It was in vain that the States disowned responsibility
for Tromp’s action and sent over a copy of their instructions to
him, showing that he had been commanded to avoid the English coast.
The ambassadors appealed to the Council to hold their hand until the
States-General had made an inquiry. Tromp was cautioned to use the
greatest circumspection, so that while preserving the reputation
of his country, nothing further should be done to widen the breach
with England. And now, when too late, the Dutch Government came to a
definite decision as to the striking of the flag. Tromp was expressly
ordered to strike his flag on meeting the English fleet, according to
the manner that had been customary when England was under its kings;
and not to attack them, but only to defend himself if assailed.[724]

The States also sent over a special ambassador, Adrian Pauw, the Grand
Pensionary of Holland, and the most venerable and influential personage
in the Republic, to assure the Parliament of their pacific intentions,
and to strive to maintain peace. He urged that the encounter of the
fleets should be looked upon as an “accident,” and that a joint inquiry
should be made and the admiral found to have been in fault duly
punished. He proposed, further, that regulations should be drawn up for
the fleets, so that in future such disputes might be avoided,--not,
he said, that it was the wish of the States to dispute the honour and
the dignity of the English Republic, which they esteemed the first
and greatest in Europe.[725] But the Parliament insisted that the
States should first pay them the costs and compensate them for the
injuries they had sustained by the Dutch naval preparations and Tromp’s
attack, and give security for an alliance between the two countries.
Meanwhile, the Parliament had been seizing Dutch vessels and preparing
for war, while in the United Provinces feeling was rising steadily and
angrily against England. The ambassadors were recalled and the naval
preparations on both sides pushed on with energy.

It was well understood that the most vulnerable part of the States lay
in their shipping and fishery. A day or two after the news of Blake’s
encounter with Tromp reached London, the Council issued instructions
to Major-General Dean, who commanded the troops in Scotland, that in
view of the fishery carried on every year by the Dutch about Orkney and
Shetland, the forces there should be increased.[726] A month later,
on 26th June, before the ambassadors had left London, Blake himself
sailed northwards with a fleet of about sixty ships, with a double
object of putting a stop to the Dutch herring fishery and intercepting
their homeward-bound East-Indiamen, which were expected to return to
Holland by way of the Shetlands.[727] On 12th July he sent forward in
advance eight frigates to discover the Dutch convoying men-of-war,
which they soon fell in with, guarding the herring-busses, to the
north of Buchan Ness. They were twelve in number, and after a stubborn
fight of over three hours’ duration, towards the end of which the
English frigates were reinforced by other five, they were all taken,
before the main fleet came up. The English wounded were sent in three
of the captured ships to Inverness; other three ships were so much
shattered that they were sunk. While the fight went on, most of the
herring-busses escaped and made their way homewards with all speed,
but about thirty were taken by the English. Blake dealt with them very
leniently. He took from them “a taste and toll” of herrings, and then
sent them home with this “lesson,” that they “fish no more in those
seas without leave from the Republick of England.”[728] For this humane
action Blake was subsequently blamed, on the ground that the busses
might have been made use of in establishing a native fishery, while the
detention of their crews would have helped to cripple the resources of
the Dutch in manning their fleets.[729] The same generous spirit was
shown towards the French boats that fished in the Channel, which were
excepted from the general seizure of French shipping, unless they acted
improperly.[730] In the course of the war, however, it became the rule
for both the Dutch and the English vessels to bring into port all the
fishing-boats captured from the enemy.

After Blake dispersed the Dutch busses, the States of Holland at
first thought of calling home the rest of the herring fleet (only
about 600 or 700 had returned), and for that year to put a stop to
the fishing, which had just begun; but it was finally decided to
continue it with twenty-four armed busses and six men-of-war as a
guard,--a conclusion, no doubt, helped by the gentle way in which the
English admiral had dealt with the busses that fell into his hands.
When English herring-boats were seized and taken to the Netherlands,
Holland, which had the greatest stake in the fishery, tried to induce
the States-General to release them, and to issue orders that British
fishermen were not to be molested, in the hope that such forbearance
would be imitated in England. But the policy failed, and orders were
given to do the English fishermen all harm possible. In the following
year the States-General forbade the whaling-ships sailing for
Greenland, but they did not prohibit the herring fishery, though the
greater number of the busses were kept at home by the prudence of their
owners. Many were captured by English cruisers. More than fifty were
taken by the English fleet on the Dutch coast in May 1653, most of them
being brought into Aberdeen and there sold. Some of those seized in
the course of the war were handed over by the Council of State to the
London Corporation for the Poor, to be used in fishing on the English
coast. On the other hand, the English fishermen suffered greatly. The
Iceland and North Sea fishing came almost to a stop, and men-of-war had
to guard the herring and mackerel boats. In September 1653 the Council
sent a force of men and three “fit and nimble” ships to the Shetlands
to ply about the islands, to intercept the enemy’s trade of fishing,
with what results do not appear.[731]

But the operations against the enemy’s fisheries played only a
small part in the war. The struggle for the command of the sea was
concentrated in many fierce battles between the contending fleets in
1652 and 1653. The exploits of Blake, Dean, Monk, and Penn on the one
side, and of Tromp, De Ruyter, Evertsen, and De With on the other,
are famous in the naval history of the two countries; and although
victory finally rested with England, there were times when the actual
control of the British seas was in the hands of the Dutch. It was on
one of those occasions that the Dutch admiral was said to have hoisted
a broom at his mainmast-top as a sign that he would sweep the seas of
all Englishmen. Tromp unexpectedly appeared in force in the Channel
in the winter of 1652, and on 30th November he defeated Blake off
Dungeness. From that date till the end of February in the following
year no English fleet was able to oppose him. The Dutch were “lords
and masters” of the sea, and English commerce suffered severely. But
the popular story about the broom seems to have uncertain foundation.
It was first set afloat in two English newspapers, published on 9th
March 1653, after the decisive “three days’ battle.” In one it was said
that Tromp had set forth “a flag (or standard) of Broom; and being
demanded what he meant by it, reply’d, That he was once more going to
sweep the Narrow Seas of all Englishmen.” The other paper gave a letter
from the _Nonsuch_ frigate at Portsmouth, stating that the Hollanders
had probably gone home after the battle, and that “their gallant Mr
Trump when he was in France (we understand) wore a flagg of Broom,
and being demanded what he meant by it, replied that he was going to
sweep the narrow seas of all English men.” The story is not mentioned
by Dutch authorities, and is now generally discredited, but in an
earlier century the broom had been used in this way by a Dutch admiral
to signalise a victory in the Baltic;[732] and it is said that after
the two days’ battle in the following summer, when the Dutch had been
driven from the sea, the English fleet rode triumphant off the Texel
with a broom displayed at their mast-heads, perhaps in ironical parody
of Tromp.

While the fleets were contending for actual dominion over the sea, the
Parliament took care to keep alive the historic claims to maritime
sovereignty and to place them well before the people. As early as 25th
June 1652--the day before Blake sailed away to the north in quest of
the herring-busses--they passed a resolution: “That it be referred to
the Council of State to prepare a declaration to assert the right of
this Commonwealth to the Sovereignty of the Seas, and to the fishery;
to be made use of when the Parliament shall see cause.”[733] No time
was lost, for on the same day the Council remitted the instruction
of the Parliament to the Committee for Law and Examinations, with
the request that they should bring the declaration to the Council
with all speed, and Bradshaw was desired to see that this was
done.[734] Apparently, for the use of the Committee in drawing up this
declaration, Mr William Ryley, the Keeper of the Records in the Tower,
made transcripts of several of the records in his charge referring to
the sovereignty of the sea, as the ordinance of King John, Edgar’s
charter, the mandate of Edward I. to the Bailiffs of Yarmouth, the
rolls of the same king concerning Grimbald, and of Edward III. on the
laws of the sea, and some others.[735]

It was soon apparent to the Council that the task of again attempting
formally to vindicate the claims of England to the sovereignty of the
seas, while Selden’s _Mare Clausum_ was at their disposal, would be
like painting the lily. They therefore instructed the Committee for
Foreign Affairs “to take order for printing the book called _Mare
Clausum_ and Mr Dugard to print it.”[736] But simply to reprint
Selden’s work, with its fulsome dedication to Charles II., and in the
Latin tongue, would not have served the purpose in view, and it was
then resolved to translate it. This task was assigned to Marchamont
Needham, who had deserted the royalist cause and placed his pen at the
service of the Commonwealth, writing the _Mercurius Politicus_, in
which he had latterly the assistance of Milton.[737] The translation
was rapidly made, and the work was published later in the year.[738]
And just as the original had been dedicated to the king, so now the
translation was dedicated to “the Supreme Authority of the Nation,
the Parliament of the Commonwealth of England”; and so pleased were
the Council of State with it that they, on 8th November, ordered
two hundred copies for their own use, and paid Needham £200 for his
labours, as the book, they said, “learnedly asserted the rights and
interests of the Commonwealth in the adjacent seas, and would be of
good use for these and future times.”[739]

The “additional evidences” brought forward by Needham comprised the
proclamation of James in 1609, and of Charles in 1636, forbidding
unlicensed fishing; some of the letters that passed between the English
Government and their ambassadors at The Hague; extracts from Sir John
Boroughs’ _Sovereignty of the British Seas_, which was first published
in the previous year; and a few other papers of little importance. The
purpose of the book was better served by Needham’s bitter if rather
frothy invective against the Dutch, and by his ranting appeals to
English patriotism to conquer the foe and establish our interests on
the sea beyond the possibility of future question.[740]

Selden was still alive, and the translation was doubtless made with
his concurrence, whatever he may have thought of it. He was himself
soon drawn into the controversy which the book evoked. Graswinckel,
the Dutch lawyer who had been chosen by the States-General in 1636 to
reply to Selden’s _Mare Clausum_, and whose neglected treatise had
ever since being lying in the secret archives at The Hague, again
entered the lists. His shaft was ostensibly directed against a certain
Italian writer, P. B. Burgus, who had published a work eleven years
before in support of the right of Genoa to the dominion of the Ligurian
Sea.[741] There was no apparent reason why the Dutch lawyer should
be at the pains to attempt to refute a claim so remote and after so
long an interval; but Burgus quoted largely from _Mare Clausum_, and
Graswinckel seized upon the opportunity to attack Selden, and to
gratify his feelings by making use of his early abortive treatise,
under the guise of replying to the Italian author. And his attack
on Selden was very bitter.[742] On the main question, the familiar
arguments were adduced against the appropriation of seas, with the
usual seasoning of Scriptural and classical quotations; the historical
claims of England to the sovereignty of the sea were treated in a
sarcastic and bantering spirit, and the authenticity of some of the
records cited by Selden was questioned; while he said that in many
respects the Hollanders were the real lords of the British seas. But
he made a personal attack on Selden, accusing him of having written
_Mare Clausum_ in order to get out of prison.[743] Selden made a strong
reply, explaining the circumstances under which his treatise was
written, and entering into a minute description of the documents which
Graswinckel suggested he had invented; but on the controversy as to the
dominion of the seas he contributed nothing new.[744]

Stimulated by the war and the dispute which had precipitated it, a
number of works were now published in Holland in defence of the freedom
of the seas and the liberty of fishing, and opposing the claims of
England to any special maritime jurisdiction. Among them was another
dissertation by Graswinckel, published before he was aware of Selden’s
reply to his attack, and apparently containing further extracts from
his stillborn treatise. This time the earlier Scottish lawyer, Welwood,
was assailed, and his book, _De Dominio Maris_, was republished
in Holland in order to serve, apparently, as a theme and target.
Graswinckel was especially severe against any claim to interfere with
the herring fishery or to impose tribute on the fishermen.[745] The
controversy continued to rage on both sides of the North Sea, but
in England it fell for the most part into the incompetent hands of
ignorant pamphleteers, who vilified the Dutch in pious but intemperate
language without shedding much light upon the question.

But if there was a dearth of competent pens in England able to carry
on a juridical controversy about the sovereignty of the sea, it was
not for lack of belief in the importance of the matter. At no previous
time in English history had popular feeling been more aroused or was
the general resolution stronger to maintain the rights of the country
in the seas. The traditional sentiment of the nation, which Charles had
in large measure alienated by his ship-money exactions and his bungling
and fruitless attempts to maintain those rights, was revived in full
force, and it was greatly strengthened by other considerations relating
to commerce and trade. Though English commerce and shipping had greatly
developed since the earlier part of the century, by far the larger part
of oversea traffic was still in the hands of the Dutch. It was against
this predominance that the Navigation Act was aimed. The pre-eminence
of the Dutch excited the emulation of the nation to outvie and outdo
them, and success in this policy was believed to be closely bound
up with the assertion of the sovereignty of the sea. Before the war
began, the authors of works on commerce and navigation had urged the
Parliament to enforce these claims, even in the Mediterranean against
France, and for the same reasons that were formerly used by Sir Walter
Raleigh.[746] To the national sentiment and commercial ambitions was
added the zeal of religious fanaticism. The godly Barebones Parliament
of 1653, who looked askance at the Dutch as carnal and worldly
politicians, held it necessary that the seas should be secured and
preserved as peaceable as the land, in order to prepare for the coming
of Christ and the personal reign.[747]



CHAPTER XI.

THE PARLIAMENT, THE COMMONWEALTH, AND THE PROTECTORATE--_continued_.

THE PEACE NEGOTIATIONS.


The importance of the questions connected with the claim to the
sovereignty of the sea was revealed in the long negotiations with the
Dutch which preceded the conclusion of peace. These were begun at a
very early stage of the contest. From the first the war had been as
distasteful to Cromwell as it was to John de Witt and the leading
men in the States of Holland, and so soon as the beginning of August
1652, within three months of Tromp’s encounter with Blake, clandestine
negotiations were set on foot, with the approval of Cromwell, Vane,
Whitelock, and other leaders in England, with the object of bringing
about peace; and though nothing came of them at the time, they
were resumed early in 1653. The Speaker informed the Parliament on
22nd March that he had received a formal letter from the States of
Holland desiring that the negotiations might be resumed, and on 1st
April the Parliament replied favourably, offering to take up the
negotiations at the point at which they had been broken off when the
special ambassador, Pauw, quitted London in the previous year.[748]
This implied payment to the Parliament of the expense incurred in
consequence of the Dutch naval preparations and of Tromp’s fight with
Blake, and “security” for a close alliance,--conditions unacceptable by
the ruling oligarchy at The Hague.

In order to find some more satisfactory basis for the negotiations, the
States-General in June 1653, immediately after the two days’ battle,
and when the English fleet was blockading the Dutch ports, sent four
deputies to London. One of them, Hieronymus van Beverning, a trusty
friend of De Witt’s and a representative of the States of Holland, came
on in advance, reaching London on June 17; the others, Nieuport, van
de Perre, and Jongestal, following a few days later.[749] The deputies
arrived at a time when Cromwell, having dissolved the Long Parliament
and the old Council of State, was dictator, and the new Council was
composed of his own nominees; and Cromwell, as is well known, had
been against the war and was favourable to peace.[750] Nevertheless,
a stiff attitude was adopted towards the envoys. To their request
that negotiations might be resumed on the basis of the thirty-six
articles the Council turned a deaf ear, putting forward the demands for
reparation and security, and refusing to proceed with the negotiations
until they had received a satisfactory answer.[751] Cromwell, however,
sent a private message to Nieuport, on 30th June, that the Council
would not insist on satisfaction and security. He suggested that
Tromp should be suspended for a few months; that a binding treaty
and alliance should be concluded; and that for security two or three
Englishmen should sit in the States-General or Council of State in the
Netherlands, and the same number of Dutchmen in the English Council. If
these conditions were agreed to, little difficulty would be made about
the thirty-six articles, the Dutch would be allowed to carry on their
herring fishery in the British seas, and a truce probably granted.[752]
But by the next day Cromwell, after discussion with the Council, had
changed his mind, and the debate went on about reparation and security.
The deputies were told that the Council did not ask for a great sum,
but that the “security” meant “uniting both states together in such
manner as they may become one people and Commonwealth, for the good of
both,”[753]--a scheme apparently much the same as St John had taken
with him to The Hague.

This extraordinary proposal for a union, closer even than that which
existed among the seven United Provinces themselves, astonished the
envoys of the many-headed Government. They pretended at first not to
understand it, and went on talking of “alliance” and the Intercursus
Magnus; but the Council pointedly declared that what they meant was
not the mere “establishing of a league and union between two sovereign
states and neighbours, but the making of two sovereign states one,”
under a joint Government, all the subjects to possess equal privileges
and freedom in either country “in respect of habitations, possessions,
trade, ports, fishing, and all other advantages whatsoever.”[754] The
deputies considered such a scheme “absurd,”--nothing of the kind had
ever been heard of in history; it was opposed to the constitution of
the United Provinces and was impossible; and they hinted that if the
proposal was pressed they would have to return home. They thought it
was far better to take as a basis for the negotiations the treaty of
1496, which was a perfect, true, and sincere alliance, league, and
confederation by land and sea. To this the Council replied that they
had desired a coalescence of the two countries as the best security
for the future of both, and especially of the United Provinces; and
that the deputies offered nothing more than they did at first, by which
they demanded free trade to the English colonies and the suspension of
the Navigation Act; “nay,” the Council continued, “they do in effect
demand to share with this state in the sovereignty of the narrow seas,
and in their right of fishing,” whereas these advantages could only be
obtained by such a coalescence as had been proposed.[755]

The negotiations had now come to such a pass that the Dutch
commissioners judged it to be necessary to report verbally to the
States, and Nieuport and Jongestal left for home with this object on
3rd August. They did not return until the end of October; and while the
official conferences with the Council were suspended in the interval,
the two deputies who remained in London carried on important private
negotiations with Cromwell, mostly through an intermediary. At first
Cromwell descanted on the advantages to the United Provinces of the
proposed coalescence, including the complete liberty they would have of
fishing on the British coasts. Later he put forward the extraordinary
schemes which remind one of the dreams of Napoleon--a confederation
of the Protestant states of Europe for the propagation of the Gospel;
the partition of the rest of the world, Asia to fall to the share of
the Dutch and America to England; a war of conquest against Spain and
Portugal, and then there would be complete freedom of commerce and of
fishery in all seas, without molestation or disturbance.[756] A less
extravagant alternative offered was an alliance of the Protestant
states, without the partition of the globe or the war of conquest;
but this smaller scheme was not to carry with it either freedom of
commerce or liberty of fishing. And now, for the first time since the
negotiations began, a formal stipulation was asked that all ships of
war of the Dutch Republic, on meeting “on the sea” with the ships of
war of the Commonwealth, should show them the same respect and do them
the same honour as had been practised in any former time.[757]

The two deputies in London could do nothing with these proposals until
the States-General had decided about the original project of coalition,
with reference to which Nieuport and Jongestal had gone to The Hague.
But they expressed their own opinion on the twelve articles which had
been submitted to them; and with regard to the striking of the flag,
they thought the word “respect” conveyed the impression of too great
a sovereignty on one side and of submission on the other, but they
agreed that another word might be chosen and a “good regulation” made.
The objection was curious, because during the negotiations of 1673
the envoys of the States--and the same able Beverning was the chief
of them--themselves proposed that the striking of the flag should be
done “by way of respect”; and when that word, respect, was inserted in
the treaty of 1674, it was said in England that the Dutch had scored a
great diplomatic victory, since to show respect was not to acknowledge
sovereignty.

When the two absent deputies returned to London they brought back with
them the old instructions for a “close alliance and strict union,”
nothing being said about the proposal to fuse the two nations into one.
Their memorandum was submitted to the new Council of State, on which
Cromwell had a working majority; the only coalition suggested was a
“coalition of interests,” and a “brotherhood” of the peoples. Cromwell
at once called it a mutilated coalition, and some of the Council are
said to have expressed strong opinions as to the “contumelious” tactics
of the Dutch. If they refused real coalition, it was our duty, they
said, to make them and keep them our inferiors, so that they might
never attempt this nation again; they must pay for liberty to fish
on our coasts; render the usual submission at sea; give up their own
wafters and pay us for convoys, since we were the proper guardians
of the British sea; they must not equip many great ships, without
explaining their intentions and asking leave to pass through our
seas; and they must pay the costs of the war. Such were the opinions
attributed to the Council by a well-informed author who wrote a little
later,[758] and they indicate tolerably well the demands which were
subsequently made. The Council then prepared draft articles for a
treaty on the lines the Dutch desired, and Cromwell informed them
that since they were averse to a coalition which would have made the
privileges of both countries equal, it would be necessary first of all
to define clearly their respective rights, so that disputes might be
avoided in future. And in the first place, he said, they must settle
their right and dominion in the narrow sea and the question of the
fishery, remarking that if these points were adjusted the work in hand
would be much facilitated.[759]

In putting the question of the sovereignty of the sea and the fishery
in the foreground of the negotiations, Cromwell placed the envoys
in a difficulty. In conformity with their traditional policy on
like occasions, the States-General had expressly instructed their
representatives to avoid discussion on these thorny subjects,--a
circumstance no doubt well known to Cromwell. They therefore fenced
with them. With regard to the “honour of the sea,” they had never
desired to dispute with the Parliament of the Republic of England any
honour or dignity which had been rendered to former Governments, and
they declared their willingness to pay the same “honour and respect”
to the English flag as had been previously shown to it. They thought
it would be better to defer consideration of the fishery question
until the articles of a “strict union” had been adjusted, when the
whole business of commerce, fishery, and the immunities on both sides
might be dealt with. But Cromwell was not to be turned from his
purpose. On the following day, after a long and remarkable speech on
the advantages of coalition--which the Dutch once more put aside,--he
again declared that the matter of the sea and the fishery must be
first of all settled; and he ended the discussion by handing to the
deputies the draft articles which the Council had prepared.[760] The
articles were twenty-seven in number. Some of them provided for a
defensive alliance and arranged details of peace. Freedom of trade was
to be allowed, provided the laws in force--the Navigation Act--were
observed; the rebels of the one were not to be assisted by the other,
and so forth. But the Dutch were to pay a sum to be agreed upon, by
way of reparation, and there were several articles dealing with the
sovereignty of the sea and the fisheries.

The article[761] on the fishery was framed on the model of the
proclamations of James and Charles relating to unlicensed fishing.
It was as follows: “The people and inhabitants of the said United
Provinces, of what condition or quality soever they be, shall with
their busses and other vessels fitted to that purpose, have liberty
from time to time, for the term of one and twenty years, next coming,
to sail and fish as well for herrings, as all other sort of fish, great
and small, upon any of the coasts or seas of Great Britain and Ireland
and the rest of the Isles adjacent, where and in such manner as they
have been formerly permitted to fish. In consideration whereof, the
States-General of the United Provinces shall during that term pay into
the public treasury of this Commonwealth at the City of London the sum
of ... at two equal payments upon every 24 day of June and 24 day of
December; the first payment to begin on the 24 day of June next.” When
it is remembered that the Dutch in the reign of James, and again in the
reign of Charles, were prepared to go to war with England rather than
surrender their liberty of fishing, the objectionable nature of this
article is apparent. No glimpse is obtained throughout the negotiations
of the sum that was to be asked for the liberty of fishing, possibly
because it was never definitely fixed by the Council. It is, however,
stated by Stubbe, who had special sources of information, that it was
the intention of the Council to demand £100,000, as well as payment
for constant wafters or convoys,[762]--a statement which is credible
only on the supposition that it was desired utterly to ruin the Dutch
herring fishery.

Some of the other articles were equally or even more objectionable.
That concerning the striking of the flag,[763] though not feasible in
its original form, was capable of adjustment. It provided “that the
ships and vessels of the said United Provinces, as well men-of-war as
others, be they single ships or in fleets, meeting at sea with any of
the ships of war of the State of England, or in their service, and
wearing their flag, shall strike their flag and lower their top-sail,
until they be passed by, and shall likewise submit themselves to
be visited, if thereto required, and perform all other respects
due to the said Commonwealth of England, to whom the dominion and
sovereignty of the British sea belong.” By this article the whole
of the Dutch fleet would be bound to strike to a single ship in the
English service anywhere on the sea, and, what was a far more serious
matter, to submit to be visited and searched. A stipulation of that
kind was unacceptable. Tromp’s fleet had been fitted out before the war
expressly to prevent the visitation and search of merchant vessels;
if no conflict had occurred with Blake about the flag, it would
almost certainly have happened on this other point.[764] And now the
States were asked to confirm in a formal treaty the right claimed by
England; and above all to make it applicable to their ships of war.
Another article with reference to the measures to be taken against
pirates embodied the old doctrine attributed to the Plantagenets. The
Commonwealth of England, it stated, had declared their resolution
“to put upon these seas a convenient number of armed ships, for the
defence and safeguard thereof, and to maintain and preserve all
lawful navigation, trade, and commerce therein, against pirates and
sea-rovers.”[765] Another article which raised the strongest objections
provided that the Dutch fleet passing through the British seas should
be limited to a certain number, to be agreed upon in the treaty, and
that if the States had occasion for a larger number to pass than that
agreed to, they should first give the Commonwealth three months’ notice
and obtain their consent. The article also provided that Dutch merchant
vessels should be allowed freely to navigate the British seas, as if
the right of permitting or forbidding navigation there belonged to
England.[766]

Such conditions could only have been imposed on a nation hopelessly
vanquished. They were conditions, the ambassadors declared, which would
not be demanded from rebels or slaves. On the English side there was a
strong feeling that since coalition had been rejected, the “security”
for the future ought to be rigorous and complete. It was still firmly
believed by the mass of men, and doubtless by many in the Council, that
Tromp had attacked Blake in overwhelming force in order to destroy the
English fleet; and that too by the implicit or express orders of the
States. There was doubtless also a desire to cripple Dutch commerce
and power as far as was possible. Commercial jealousy had long been
simmering, and now that the English thought they had the power they
were resolved to use it to their own advantage.[767]

The Dutch deputies were astonished and indignant at the English
demands, which, as they sarcastically noted in their journal, they
could scarcely reconcile with the professions of friendship and
the pious words of Cromwell. Had they communicated them to the
States-General all thoughts of peace would have been at an end, for it
had required the most adroit diplomacy of John de Witt to induce that
body to allow the negotiations to be set agoing. They therefore sent
home only an imperfect official account of them, pleading that Cromwell
had tied them down to the utmost secrecy,[768] and then proceeded
to consider the articles themselves. Those dealing with reparation,
the Prince of Orange, the visitation of ships, and the fishery, they
decided absolutely to reject as inadmissible, for reasons to be given
later. The one which proposed to limit their naval power in the
adjacent seas they resolved indignantly to refuse, and to break off
the negotiations rather than to agree even to discuss it, believing
that it was a matter in which all Christian princes in Europe were
also interested, who would condemn the English Government for their
extravagant claims to special maritime rights and to the fishery.
Their conclusions were embodied in a paper which was submitted to the
Council of State on 22nd November. In this they said that the visiting
and searching of merchant vessels and ships of war was contrary to the
practice of the United Provinces, was subject to innumerable disorders
and disputes, and was injurious in point of sovereignty, since it was
not reciprocal. As to the fishery, they declared that they had been in
immemorial possession of complete liberty of fishing. They denounced
the article concerning the limitation of the number of their ships of
war, which they said they could hardly persuade themselves had been put
forward seriously, since it struck at the root of their existence as an
independent sovereign state, and they declined to discuss it.[769]

Cromwell throughout the whole negotiations, until he became Lord
Protector, acted as spokesman for the Council at the conferences; and
he now stated that the visitation of Dutch ships was an undoubted right
of sovereignty possessed by the English Commonwealth. The limitation
of their ships of war passing through the British seas was also a
consequence of the same right of dominion; and the English had now
more than ever reason to maintain it, both on account of their ancient
prerogative and the recent injuries committed by the Dutch. The right
to the fishery was of the same nature. No other nation in Europe had
attempted to carry it on without the consent of England; the Dutch
were the only people, he said, who sought a separate interest in it--a
statement which was quite inaccurate. But the deputies took their stand
on the obnoxious article which proposed to clip their naval power and
interfere with their liberty of navigation, and threatened to return
home unless it was withdrawn. After standing firm for a time Cromwell
withdrew the article, asserting at the same time that England had
jurisdiction on both sides of the sea, and that it was perilous to
allow a fleet of sixty or eighty men-of-war to come into our rivers
or ports without our knowledge or consent,--a reference, no doubt, to
Tromp’s action before the war.

This concession facilitated the negotiations. Frequent conferences were
held in the following week, Cromwell and his Council strongly asserting
the right of the Commonwealth to the fisheries and the dominion of the
sea. At this period there were four subjects chiefly in dispute--the
arrangements relating to the striking of the flag, the visitation of
ships of war, the preliminary part of the sixteenth article as to the
guarding of the seas, and the fishery. On none of these was Cromwell
inclined as yet to give way. The deputies repeated their offer as to
the flag, and requested that a joint commission of old and experienced
naval officers should be appointed to draw up regulations for the
guidance of both sides in future. To this Cromwell replied that such
a commission was unnecessary, their rights and the custom being well
understood and clearly expressed in the article. There was, however,
uncertainty as to the places where the right could be claimed, and
the Dutch deputies said they wished to make it clear in what seas
and on what coasts the flag ought to be struck, urging that it was
better to be guided by a regulation than to compel it by force. But
Cromwell was inflexible. To yield would be to admit that the claim
was doubtful in point of right or mode, and it would stultify their
whole action; he may also have thought it would open a door for some
form of reciprocity. The article was therefore postponed, as was also
the sixteenth article, the deputies insisting on the deletion of the
introductory sentence as to a fleet to be put forth to guard the sea,
which Cromwell refused to do.[770]

The keenest dispute at this time was about the herring fishery. There
were two principles in the article, Cromwell said, which required
attention: first, the recognition of England’s right to the fishery;
secondly, compensation for allowing the use of it. Unable to avoid
the discussion, the envoys pleaded their immemorial possession and
their treaties, and said that their liberty of fishing had never
been disputed; besides, they asked, was it a friendly thing to make
a proposal of the kind when they were about to conclude a strict and
close alliance between the two countries? Cromwell, who had obviously
been well posted up in the arguments in _Mare Clausum_, then entered
upon a lengthy disquisition on the subject. He said the English could
prove by authentic documents that they had had possession of the
fishery from all time, and that other nations sought their permission
to fish; that the clause in the treaty of 1496 (the Intercursus Magnus)
upon which the Dutch relied, was omitted in later treaties; and that
the treaties had expired owing to the subsequent wars between Queen
Elizabeth and Spain, and had never been since renewed; they were not
the same people with whom the treaties had been made, since they were
now alienated from the House of Burgundy. And they could not establish
their right by prescription, for by the civil law it required a hundred
years for a just prescription, and the States had not existed so long
as an independent nation. Moreover, long before the treaty of 1496,
licenses for fishing had been sought and granted. Even King Philip II.
in Queen Mary’s time had asked permission to fish for twenty-one years,
and had paid £1000 a-year for the privilege. King James, too, had
issued a proclamation in 1610 (_sic_) forbidding unlicensed fishing,
while King Charles had demanded and received through the Earl of
Northumberland an acknowledgment from their herring-busses.

To this long argument the deputies replied with arguments as long. With
respect to the treaties, they said that the treaty of 1496 was not
between prince and prince, but between states and towns, as specified
in it; and that the article which provided for mutual liberty of
fishing had been confirmed in later treaties, notably in the treaty
of Binche, in 1541, between the Emperor Charles and the King of
Scotland; in that of 1550 with Queen Mary of Scotland; and in that
between the United Provinces and King James of Scotland in 1594.[771]
Moreover, in the treaty between England and Spain in 1630, there were
certain words which confirmed the ancient treaties of intercourse and
commerce.[772] They expressed the opinion that Cromwell had not been
well informed in saying that licenses for fishing had been granted
before the Intercursus Magnus was concluded, because it was doubtful
if the invention of the salting and casking of herrings was much
before that date.[773] As to the alleged lease of the fishings by King
Philip, there was nothing to compel him to take such a lease, and
they saw no reason why he should have done so; while the proclamation
of James, so far from being an argument against them, was entirely
in their favour, because, as they could prove from papers in their
hands, it was never put into execution, but was suspended on the
representations of the States. The action of the Earl of Northumberland
they described as simple extortion, since he had compelled a few
defenceless fishermen, without the knowledge of the States, to pay
him some money. The deputies concluded their arguments by saying they
had no further instructions on the matter, and that if the Council
pressed the article, they would require to return and report to their
Government: there was, they said, a high and mighty Lord in heaven who
knew the hearts and rights of all, and He would judge. Cromwell assured
them that the article had not been inserted in the draft treaty with
the object of breaking off the negotiations, but only that they might
maintain their just rights. Why, he asked, should the States object to
acknowledge the right of the Commonwealth to the fisheries, when other
Powers like France and Sweden, who had as much claim to liberty as
they, had not scrupled to acknowledge it?[774]

As Cromwell was immovable, and the deputies equally obdurate, the
negotiations came to a stop, and the latter on 5th December formally
requested their passports to return to The Hague. In the interval
they asked the French ambassador if France had requested permission
from England to fish in the sea, as Cromwell averred. He told them
nothing had been said to him on the matter since he came to England,
but that his papers showed that the Duke of Guise had formerly asked
that certain fishermen of Treport should not be molested in their
fishing.[775] They also learned that the Swedish ambassador had sought
to obtain from England free commerce in general, free fishery, and
freedom of trading to the Barbadoes. It was indeed the case that
Sweden had made such proposals. In the negotiations for a treaty with
the Commonwealth, the queen expressed her desire to obtain liberty
for her subjects to fish for herrings in the British seas,[776] and
in the preceding August the Council of State, at the request of her
ambassador, had actually issued a license to four Swedish vessels to
fish in the narrow seas and upon the British coasts.[777] In a treaty
concluded in 1656 between the King of Sweden and the Lord Protector,
the privilege, it may be said, was carried much further. The treaty
provided that Swedish subjects should be free to fish for herrings
and other fish in the seas and on the coasts under the dominion of
the Republic, provided the number of ships so employed did not exceed
a thousand; and no charges (such as the assize-herring) were to be
demanded of the Swedish fishermen, who were to be treated courteously
and amicably, allowed to dry their nets on the shore, and to purchase
necessaries at a fair price.[778]

It may be noted as remarkable that, throughout the long discussions
with Cromwell about the fishery, the Dutch deputies never made use
of the argument, so frequently employed by their predecessors at the
Court of James, that the English claims were opposed to the law of
nations. They probably shrank from using an argument of that kind to
the great dictator who had ruthlessly trampled on the laws of England;
perhaps they were deterred by the abrupt intimation made earlier,
that the Council had not come to listen to scholastic subtleties,
but to consider the real legal rights of England. The obstinacy of
Cromwell in refusing at this stage to modify the fishery article is
also noteworthy. No doubt he was moved by a sincere desire to benefit
England. The belief was still prevalent that the herring fishery which
the Dutch carried on along the British coasts was the foundation
of their commerce, wealth, and naval power. It, moreover, provided
them with a great “seminary of seamen” to recruit their fleets--a
consideration which must have had a special force at a time when we
had only the ships in the coal trade between Newcastle and London to
draw upon for ours, and when the most rigorous system of pressing
failed to provide sufficient men for the navy.[779] But Cromwell had
other reasons for insisting on the English claims, even to the point
of rupture of the negotiations. It was by this time obvious that the
Barebones or nominated Parliament had only a short life before it, and
it was desirable that its dissolution should be free from violence
and as far as possible voluntary. The majority of the members were
strongly opposed to the Dutch, and to the conclusion of peace except
on humiliating terms to the enemy; and it is probable that Cromwell’s
insistence was partly due to his desire to conciliate them. He was now
about to put on the mantle of the Lord Protector of the Commonwealth of
England.

When the Dutch envoys wrote to the Council for their passports, they
received no answer. On repeating their request two days later, they got
a hint of what was impending,--that the Parliament which was against
them would soon be dissolved, and the management of affairs placed in
the hands of a council of ten or twelve.[780] Then on the 9th December
they were asked by Viscount Lisle, in the name of the Council, to delay
their departure, as commissioners would soon be appointed to treat
with them and conclude the treaty. Cromwell took the oath as Lord
Protector on the 16th; the new Council of State met on the 19th; and
the conferences on the treaty were resumed four days later.[781]

Cromwell did not now attend the conferences, the negotiations being
entrusted to four members of the Council--Viscount Lisle, Sir Charles
Wolseley, Sir Anthony Ashley Cooper, and Walter Strickland, who had
accompanied St John to The Hague in 1651. The discussions on the
questions affecting the claim to the sovereignty of the sea were
continued: the striking of the flag, the visitation of ships, and the
declaration that the dominion of the sea belonged to England. The
former arguments on both sides were repeated, and the Dutch proposed
the following article with reference to the flag: “That the ships and
vessels of the United Provinces, as well men-of-war as others, meeting
with any of the ships of war of the State of England shall honour and
dignify them with the striking of the flag and lowering the top-sail,
in such a manner as ever under any form of government in times past
they have been honoured and dignified; and to prevent all quarrels for
the future the particulars thereof shall be regulated by the advice of
the generals and commanders.”[782] The English commissioners reiterated
the objections previously made, but now stated that they had been
referring only to the narrow seas;[783] and it was agreed to refer the
points in dispute to the Lord Protector.

Another difficulty arose on the third article, which fixed the dates
on which the peace should take effect on the sea, after which dates
the capture of prizes would be illegal. The part was as follows:
“Excepting such depredations as shall be committed in the British Seas
(_Maria Britannica_) after the space of twelve days, and betwixt the
British Seas and the Line after the space of ten weeks,” &c. At the
first, the phrase “British Seas” had caught the eye of the envoys; but,
thinking it was merely an ordinary appellation such as might appear on
a chart, and that no deep design lurked beneath it, they decided that
it would not be desirable to raise “the business of the sea” on such a
point.[784] They now took exception to these words, and suggested that
it would be better to begin, “in the narrow sea, which was called the
British Sea” after twelve days, from there to Cape St Vincent after
six weeks, &c. This matter also was referred to the Protector.

Cromwell, who was now settled in his new dignity, gave close attention
to the peace negotiations. On 26th December the deputies were handed
a paper in his name, in which he gave up the demand for a money
payment in reparation for the war; agreed to the stipulation about
the exclusion of the Prince of Orange--which was the corner-stone
of the treaty--being put in a secret article; agreed to some new
articles which the Dutch had proposed, after slight modifications;
and at the same time introduced a new element of trouble and debate
by formulating three additional articles requiring justice to be done
for the “murder” of the English at Amboyna in 1623, and concerning
the settlement of disputes and wrongs committed in the East Indies,
Brazil, and Greenland. Important concessions were at the same time
made on the maritime question. The article respecting the fishery was
dropped. “Concerning the fishing,” wrote the Protector, “the Lords
Deputies having by their former papers desired that freedom of fishing
in these seas might be declared in this treaty, the 17 article was
thereupon propounded, whereby license is granted to the people of the
United Provinces to fish freely in these seas upon the terms therein
expressed, notwithstanding as in their Lordships’ power either to
accept or refuse, but it cannot be admitted that anything should be
inserted in this treaty that may prejudice the right of this state in
their fishery.”[785] The Dutch thus again scored a diplomatic victory
and preserved their liberty of fishing on the British coasts, just as
they had done in the reigns of James and Charles. They did not succeed
in getting the clause in the Intercursus Magnus inserted or confirmed,
as they desired, but it still remained in force. Later writers
accused Cromwell of having surrendered the rights to the fishery,
and much else, as a _quid pro quo_ for the stipulation regarding the
exclusion of the Orange family in the Netherlands, which was his main
object;[786] but there is no doubt at all that the States-General
would never have agreed to the English proposal.

Concessions were also made as to the striking of the flag. “The 15
article,” said Cromwell, “to be as following: that the ships and
vessels of the United Provinces, as well men-of-war as others, meeting
at sea with any of the ships of war of the State of England, shall
strike their flag and lower their top-sail, and perform the other
respects due to this State until they be passed by”; but the request
that a naval commission should draw up a “regulation” on the subject
was not acceded to. On the other hand, the clauses which stipulated
for a right of visitation of Dutch ships at sea, and the declaration
that the dominion and sovereignty of the sea belonged to England,
were entirely withdrawn; but the Protector would not yet part with
the clause which provided for an English fleet to guard the seas and
protect commerce. Surely, he said in effect, since the article limiting
the number of warships has been withdrawn, you will not contest our
dominion of the sea in this?--and at this stage it was retained, with
the remark, “this article is insisted on.” One of the new clauses
provided that not more than eight men-of-war at a time were to enter
any port of the other Power, unless constrained by force of tempest,
without having obtained consent to do so; and when compelled to enter
by danger of the sea, they were immediately to signify to the chief
magistrate the cause of their coming, and to leave when he required
them to depart.[787]

On the subject of striking the flag, the deputies were not yet
satisfied. They still continued to urge that a “regulation” should be
prepared; and they now raised a new point. Cromwell had always used
the words “at sea,” which might mean any sea or any part of the sea.
They now desired that the ceremony should be restricted to the narrow
seas, “which,” they said, “are called the British seas.”[788] To this
proposal Cromwell assented in so far that the words “in the British
seas” were inserted later. It is curious to notice how the meaning of
the term “British Sea” thus became confused even within the compass
of a single treaty. In reference to this article, the Protector made
the important admission that the narrow seas and the British seas
were synonymous.[789] In the third article, as we have seen, the same
term was used, and it was natural for the Dutch to suppose that it
there had the same significance and meant the narrow seas or Channel.
Since the clause dealt with a matter of great practical importance,
namely, the restitution of vessels that might be captured after a
specified date, and the term “British seas” appeared to be restricted
to the Channel, they wished specifically to include in it the North
Sea and the East Sea (or Baltic), both regions of great traffic. The
envoys were accordingly instructed later by the States-General to have
these words added, so that the clause would read, “excepting such
depredations as shall be committed in the British Sea, the East Sea,
and the North Sea.”[790] By this addition, moreover, the objectionable
phrase “the British seas” would be formally restricted to the narrow
seas or Channel, with the consent of England. The proposed change was
instantly rejected. When Beverning brought it forward, Thurloe resisted
it with great warmth,[791] and the qualifying words confining the term
British seas to the narrow seas, which the Dutch had inserted, were
also deleted.[792] When it was verbally agreed that the striking of
the flag should be restricted to the narrow sea,[793] the deputies
made a new proposal. It was to the effect that Dutch ships, without
any distinction, not only in the narrow seas but throughout the whole
world, on meeting English men-of-war should give them the first salute
by striking the flag and top-sails and firing guns, provided that the
English ships immediately returned the salute in precisely the same
manner. This, doubtless, was the proposition which lurked behind the
reiterated suggestion for a “regulation”; but the English commissioners
would not agree to any form of reciprocity. The Dutch again raised
objections to the part of the sixteenth clause concerning pirates,
on the ground that it contained an implication of the claim to the
dominion of the seas, which they had constantly opposed, and they
cited the treaties with Elizabeth in 1585, and with Charles in 1625,
as having assigned to them the protection of the sea off the Flemish
coast and neighbouring coasts. They declared they would prefer it to be
dropped altogether unless it was amended or made reciprocal.[794]

The differences as to the sovereignty of the sea or the phraseology of
the maritime articles were now, however, of little actual importance.
The progress of the negotiations, secret and otherwise, had narrowed
the real ground of contention to two crucial points--the exclusion
of the Prince of Orange from office, and the inclusion of Denmark in
the treaty. The former had been secretly agreed upon by Cromwell and
Beverning, the latter acting in conjunction with De Witt;[795] but the
Protector was obdurate as to the inclusion of Denmark, and the deputies
decided to return home to report the state of the negotiations. They
left London on 3rd (13th) January, and though a message from Cromwell
overtook them at Gravesend conceding the point in dispute as to
Denmark, they thought it better to continue their homeward journey. The
treaty, so far as it had been officially arranged and made known, was
received with approbation in Holland, the vital stipulation respecting
the exclusion of the Prince of Orange being concealed. Beverning
came back to London on 25th January, but was refused audience by the
Protector until he had obtained proper credentials recognising the new
Government. He was joined by Nieuport and Jongestal a month later, but
it was not till 15th March that the conferences were resumed.[796]

By this time the Protector had in substance conceded almost everything
concerning the dominion of the seas that the Dutch had asked for, and
the ambassadors--they had returned with the title of extraordinary
ambassadors--were anxious to avoid any more discussion about it.
For this reason Beverning disapproved of the resolution of the
States-General, above referred to, for the amendment of the third
article by specifying the North Sea and Baltic, and after his first
interview with Cromwell he wrote to them expressing his opinion that
it would occasion new disputes about the fisheries and the sovereignty
of the sea. We have seen how it was received by Thurloe; and from
what followed it would appear that Cromwell had either heard of the
rumours going about that he had sacrificed the rights of England to the
sovereignty of the seas in order to gain the exclusion of the Orange
family, or that he was determined to keep the matter open until the
secret arrangement for that exclusion had been officially accepted in
the United Provinces--a task in which De Witt was struggling against
enormous difficulties. At all events, after the treaty had been
signed by the negotiators and ratified by the States-General, and
when Cromwell was on the point of ratifying it, he suddenly reopened
the question as to the extent of the British seas. Thurloe began by
asking the ambassadors what was meant by the distinction drawn in
the third article between the British seas and Cape St Vincent. Such
a distinction seemed to prejudice the limits of the British seas,
and might besides give rise to disputes later as to the seizure of
vessels. He then treated the ambassadors to a discourse on the extent
of the British seas, the particulars of which are, unfortunately, not
recorded. They were, however, told that they extended to and along the
coast of France, “Xaintonge” (Saintonge, an old French province) and
round about there. It had not been thought, he said, to limit or define
any seas in stating the districts, and he asked them for a declaration
on the subject. They suspected that the design was to extract from
them an explicit statement as to the southward limit of the British
seas, and they said they had now no power either to alter the article
or even to interpret it. The treaty had been signed on both sides and
ratified by the States-General, and their instructions and commission
were at an end. The proposal to alter it, they now alleged, came from
themselves alone, without instructions from the States-General, and
they had willingly and immediately withdrawn it when objection was
made. Cromwell then asked if it had ever been their intention to define
in any way the limits of the seas by that article. They replied that
they believed not, and added that they had never thought of yielding
anything with regard to right or jurisdiction or limits of the seas;
and they failed to see what prejudice his Highness could suffer from
the extension of the article, unless it was to be maintained that
the whole of the French and Portuguese coasts to Cape St Vincent
were within the narrow seas, as they had defined in the fourteenth
article, which was withdrawn.[797] Cromwell then angrily told them that
he would not exchange the ratification of the treaty unless he got
the explanation and interpretation requested.[798] It was only, the
ambassadors reported home, by their earnest insistence to the Protector
that the articles had been signed with perfect knowledge on both sides
of their contents, that he passed from the point. Whatever the object
may have been in thus raising a discussion at the last moment as to the
extent of the British seas, there is little doubt that the circumstance
would prove useful to De Witt in his difficult and manifold manœuvres
to get the Act of exclusion of the House of Orange adopted.

The treaty of peace, which had been signed by the plenipotentiaries on
5th April, was ratified by the Protector on 19th April, and proclaimed
with due solemnity on the 26th May. It was received with rejoicing both
in this country and the Netherlands.[799]

Comparison of the treaty as completed[800] with the original draft
shows how thoroughly the Dutch plenipotentiaries had eviscerated the
parts dealing with the sovereignty of the sea, and stripped it of
almost all the phraseology which might imply such sovereignty. The
articles imposing tribute for the liberty of fishing; stipulating for
the visitation and search of vessels; restricting the number of their
men-of-war in the British seas; the Plantagenet claim for the guarding
of the sea; the declaration that the dominion of the British seas
belonged to England,--all had been wiped out. Cromwell indeed succeeded
in retaining the term “British seas” in its original ambiguity; but
both he and his commissioners admitted (verbally) that it meant, in
reference to the salute, only the narrow sea--a statement which was in
contradiction to the instructions issued to the naval officers, and to
the practice both before and afterwards. The clause providing for the
striking of the flag was saved, but only in a mutilated form. It ran
as follows: “That the ships and vessels of the said United Provinces,
as well those of war as others which shall meet any of the men-of-war
of this Commonwealth in the British Seas, shall strike their flag and
lower the top-sail, in such manner as the same has ever been observed
at any time heretofore under any other form of government.”[801]

This, as the States-General took care to point out to their
fellow-countrymen, was no more than they had voluntarily agreed to do,
and had instructed Tromp to perform, previous to the declaration of
war. It was, however, the first time the custom had been recognised in
a treaty.

After the conclusion of peace, the English naval commanders took
pleasure in vigorously enforcing their right to the “honour of the
flag,” and, as above stated, notwithstanding the verbal limitation made
by Cromwell and Thurloe, they did not confine the demand to the narrow
sea. Within a few weeks of the proclamation of the treaty, and before
its details were known to the fleet, Vice-Admiral Lawson encountered
the “bellicose” De With off the north coast of Scotland. The Dutch
admiral with three men-of-war was convoying seventy sail bound for
Greenland, and he at once struck his flag and fired a salute, which the
English returned. He also “submitted to a search,” though stating that
it was not customary for men-of-war to do so. “De With,” wrote Lawson,
“begins to know his duty, being very submissive, acknowledging the
sovereignty of England in the seas, and yielding as much as could have
been required of any merchant ships.”[802]

In the south the Dutch were not always so compliant, and disputes with
the English officers sometimes arose as to whether the place where the
striking of the flag was demanded was or was not within the British
seas. Thus, Captain Cockraine, in the _Old Warwick_, met a fleet of
Holland merchantmen under convoy of a man-of-war between the Lizard and
Ushant. The merchant vessels struck their top-sails, but the man-of-war
refused to strike, on the ground that he was not in the British but
in the Spanish seas. Cockraine refrained from firing, as the ship was
surrounded by others and there was “much wind.” Instead, he wrote to
the Admiralty. “I want to know,” he said, “how far is intended by the
British Seas, and how far our power reaches, so that we may make no
unnecessary broils.” There is nothing to show what answer he got; but a
week later he encountered twenty-six Dutch merchant vessels bound for
the Mediterranean, who refused to strike, and he had to fire thirty
guns among them before they submitted.[803] About the same time, a
States’ man-of-war convoying a fleet of Hollander merchantmen met
Captain Heaton, in the _Sapphire_, and did not strike until a shot was
fired. Heaton sent a message to the commander saying that he had not
fulfilled the articles of peace, and that the keeping of his flag and
top-sail aloft when within shot of one of the ships of the State of
England was a great abuse, and a gross affront by the States of Holland
to the Commonwealth. To which the Dutch captain replied that if he
had shot back at the _Sapphire_ he would have been quite justified,
as, being on his own coast, he was not bound to strike, and had done
so not out of duty, but from “brotherly love,” and he then re-hoisted
his top-sails and flag. Heaton deliberated whether or not he should
fight the Dutchman for doing this, but refrained. He, too, wrote to the
Admiralty asking how he should act in similar cases in future.[804]

The authorities at the Admiralty were always sparing in advice on such
matters. They showed the same reticence as the Government in defining
the extent of the British seas, and for the same reason--that they did
not know themselves. This reluctance was shown, and a partial glimpse
afforded, in a letter to General Montague (afterwards Earl of Sandwich)
which Richard, Cromwell’s son, wrote during his brief tenure of the
Protectorate. Telling him to demand “the flag” of such foreign ships
of war as he might encounter in the British seas, he remarked that
there had been “some doubt” as to how far the British seas extend. Not
unnaturally, “Tumble-down Dick” shrank from plunging into a matter
which had puzzled the great Oliver and every one else. “Not being
willing,” he said, “to determine that in our instructions, we rather
put in general terms the ‘British Seas’ only. We judge there is no
question of all the sea on this side the Shagenriffe;[805] on the other
side [the Baltic] you have need be tender, and to avoid all disputes
of this nature, if it be possible, because war and peace depend on
it.”[806]

Disputes about the flag were not the only differences that arose on
the sea. At the end of September 1654 complaints came from Yarmouth
that the English fishermen were being molested by the Dutch in the
herring fishery there. They had come, it was alleged, with a multitude
of busses, “far above a thousand sail,” and, contrary to the custom
before the war, “and against the laws of this nation,” shot their nets
so close to the sands that the English were crowded out and hindered
in their usual fishing. The Dutch busses occupied a space of more than
forty miles adjacent to the coast, and the English fishermen were
afraid to use their nets lest they lost them. When they remonstrated
with the foreigners for coming so near the shore, they were vilified,
and muskets and “great guns” were shot at them.[807] By the direction
of Cromwell and the Council, the complaints were transmitted to
the ambassadors, who were still in London, and they requested the
States-General and the commanders of the ships guarding the busses to
make every effort to avoid giving cause for complaint. In the inquiry
which followed, the Dutch fishermen denied the charges against them,
and in turn accused some of the Englishmen of shooting at them, cutting
their ropes, and calling them dogs, rogues, and devils. They stated
that they had carried on the fishing in the old accustomed way, the
English usually fishing peacefully along with them.[808]

Under the Commonwealth and Protectorate very little was heard of
schemes for establishing fishery societies, such as appeared and
disappeared so frequently in the preceding reigns and afterwards.
That the Puritan spirit was not antagonistic to projects of the kind
was shown by proposals made in 1649. One of these contemplated the
employment of Dutchmen to establish “a fishing trade” in England. It
was referred by the Council of State to Sir Henry Vane and Alderman
Wilson, with what result does not appear. Another, briefly described,
was to set up a fishing trade for the English nation;[809] and about
this time the attention of some writers on commercial matters was
directed to the same end. The only thing apparently effected was the
gift to the Corporation of the Poor in London of some of the Dutch
busses captured in the war, to be used in fishing on the English coast.
During this period of our history the Government had other things to
think about than the launching of fishery schemes. Cromwell, however,
at the conclusion of the war, renewed the licenses to the fishermen of
Dieppe and Calais to fish in the seas between England and France, at
the usual times and places.[810]



CHAPTER XII.

CHARLES II.

THE SECOND DUTCH WAR.


The Restoration, in 1660, made no change either in the national
sentiment or the national policy of England concerning the sovereignty
of the sea. Charles II. encouraged the pretension with as much zeal
as had been shown by his father, or by the Commonwealth and the Lord
Protector; and he was more astute than any of his predecessors in
taking advantage of the national feeling with regard to it in order to
carry out his own selfish policy. Under the pretence of maintaining
the dominion of the sea, a base and treacherous war was waged against
the United Provinces in circumstances which will for ever sully the
reputation of the king. The measures at first taken were, however, of
a peaceful kind. Commercial jealousy of the Dutch was still a strong
factor in England. As firmly as ever the opinion was held that the
primary source of their great trade, shipping, and wealth lay in their
fisheries, which also formed a great “nursery” of seamen for the navy.

As in the reign of Charles I., it was therefore towards the development
of British fisheries that efforts were first directed. The means taken
with this view were twofold: the taxation of imported fish which
had been caught by foreigners, and the creation of great fishery
associations like those which had been established earlier in the
century. The Navigation Act, which was passed a few months after the
Restoration, while more oppressive to Dutch commerce and shipping than
the Act of 1651, was less stringent in this particular. The measure
of the Rump Parliament prohibited the importation or exportation of
fish, or its carriage coastways, unless such fish had been caught
by subjects. This prohibition was ineffective,[811] and it was now
replaced by the imposition of double customs on all kinds of dried
or salted fish imported, if caught or brought by vessels other than
English.[812] Three years later, the importation of fresh herrings,
cod, haddocks, and coal-fish was absolutely prohibited unless they
had been taken and imported in vessels certified to be English.[813]
With the view of still further promoting the fisheries, the same
prohibition was afterwards extended to cured fish and certain other
fresh fish,[814] which practically restored the provision of the first
Act of 1651. To a large extent these variations were due to the trade
rivalries that existed in England, the party which was uppermost at the
time forcing the measures that were most in its interest.

Besides protective duties and monopolies, more direct means of
encouraging the fisheries were tried. The always attractive idea was
revived of establishing a great national fishery society, which, on
the one hand, would enrich those who supported it with their purse,
and on the other hand would increase the prosperity and the power of
the country. Simon Smith, who had been the agent of the Royal Fishery
Society in the reign of Charles I., lost no time in presenting to the
king his two books on the subject, along with a petition in which he
dwelt upon the advantages that would accrue to the nation from the
labours of such an association.[815] Smith recommended that all the
corporations and county towns in the kingdom should conjointly raise
a stock to buy hemp and other materials to equip busses, which were
to be built at the seaports nearest to them and sent to the fishing
at Shetland; and he calculated, after the usual fashion, that each
buss would maintain twenty families in work, “breed country youths to
be mariners,” and cause many ships to be employed in exporting the
herrings and bringing back commodities.

Charles was apparently impressed by Smith’s arguments. Within two
months of the Restoration he caused a letter to be written to the Lord
Mayor of London, referring to the good done by the Society formed in
1632, “as by the book called the Royal Herring Busse Fishing (_sic_)
presented to him, plainly appeared”; requesting particulars to be
obtained of all the poor inhabitants within each ward who were in want
of employment; requesting that the Lord Mayor and Aldermen should
raise a stock by a free subscription to fit out a buss or fishing
vessel for each ward; and that storehouses should be built in suitable
places about the river Thames, provided with nets, casks, salt, and
all things in readiness. The busses were to attend the fishing at
Shetland, according to the “prescribed orders in the aforesaid book,”
and the king declared he would recommend the same course to all the
cities and towns throughout the kingdom, so as to make it a national
employment.[816]

The assistance of Parliament was also called in. On 8th November 1660
the House of Commons remitted “the consideration of the fisheries” to
the Committee for Trade and Navigation, who were asked to inform the
House “what they thought necessary for the regulation and advancement
of that trade.”[817] The Committee’s report does not appear to have
been preserved, but on 8th December a “Bill for Encouraging the
Fisheries of this Kingdom” was introduced. It was remitted to a large
committee, including the members for the seaport towns, and being
read a third time on 27th December, was sent up to the Lords.[818] It
was, to a large extent, directed against fishing by foreigners on the
British coasts and the use of destructive methods of fishing. One of
its clauses prohibited trawling, whether by subjects or foreigners,
within eight miles of certain parts of the coast. The fate of this
important measure was unfortunate. The Parliament was dissolved two
days after it reached the Lords, and nothing further was heard of
it.[819]

In the following year a measure dealing with the fisheries was passed
by the Scottish Parliament.[820] The preamble contained the common
declarations as to the value of the fisheries to shipping and commerce,
to the navy, in the employment of the poor, and as furnishing the
materials for a great native export. The Act provided for the formation
of societies and companies of free-born Scotsmen, each member to supply
at least 500 merks Scots as stock, and they were to receive various
privileges and immunities, including power to erect houses for the
fishing trade wherever it was most convenient, a “limited allowance”
to be paid for the ground. An absolute monopoly of the export of
fish, fresh or cured, was granted to the companies; foreigners were
prohibited from curing herrings or white fish on land, or erecting
booths for the purpose,--a provision aimed against the German merchants
at Shetland,--but encouragement was given to foreign fishermen
to settle and become naturalised in Scotland, and even to become
burgesses, and they were to be exempt from taxation for seven years.
The importation of everything required for the fishery, including
“Holland nets,” was to be free of custom dues; the exports were to be
similarly exempted, and the “teind” and “assize” herrings were to be
remitted for nine years.

The provisions of this Act differed essentially from the scheme
proposed by Charles I. in 1630, which aroused so much opposition,
inasmuch as the companies were to be composed solely of Scotsmen. The
question of the territorial or “reserved” waters belonging to Scotland
was thus avoided. It appears, indeed, that the Act was due to the
representations of the Royal Burghs, for in the preceding autumn they
expressed a desire for the “erection of the fishing trade in Scotland,”
and resolved to bring the subject before the next Parliament.[821]
Little was done in Scotland under this Act. A company was formed,
which, however, seemed more desirous of misusing its privileges than
of fostering the fisheries, if we may judge from a petition of the
burghs to the Lords of the Exchequer, praying that the company might
be restricted to import nothing but what was necessary for the fishing
trade. The town of Musselburgh also was empowered to equip busses, and
various towns in Fife applied for and received permission to fish in
the northern seas. The Scottish society became an incubus, and in 1690,
when its function seems to have shrunk to the mechanical exaction of a
tax of £6 Scots per last of herrings exported from Scotland, the Act
under which it had been formed was repealed.[822]

In England the efforts to establish a fishery association met with
but little more success, although the king showed an active interest
in its promotion. On 22nd August he issued a commission under the
great seal, appointing his brother, the Duke of York, and twenty-nine
noblemen, including all the great officers of the Court, with six
others, as the “Council of the Royal Fishery of Great Britain and
Ireland,” to which he assigned various privileges and monopolies. To
encourage the building of busses, the king “requested” that wharfs,
docks, and storehouses should be built on the Thames and in all the
ports of the kingdom for their accommodation and use; all the “returns”
or commodities brought back from foreign lands for the fish exported
were exempted from customs for seven years; all victuallers, inns,
alehouses, taverns, coffee-houses, and the like, were to be bound to
take from one to four, or more, barrels of herrings from the society
yearly at thirty shillings a-barrel, “until foreign vent be attained to
perfection”; each barrel of pickled herrings or cod-fish brought into
the realm by the Flemings, or others, was to be taxed half-a-crown,
the tax to be paid into the coffers of the society, and the protection
of the State was to be given to their fishing vessels and the vessels
employed in exporting fish. It was further provided that the money
necessary for the scheme should be obtained by a lottery, to be set up
for three years, and by a collection in every parish in the kingdom.

A few days later, Charles issued letters-patent saying that he had
requested a bountiful subscription from London to fit out fishing
vessels, which should belong to the wards, and recommending the
same to the whole country, as the Hollanders had so engrossed the
fisheries that the fishing towns were greatly decayed; the local
officers were to see to the collections being made, the monies to be
paid to the high-sheriff and by him remitted to the Earl of Pembroke,
who was appointed treasurer. Those who subscribed to the stock were
to pay their money in three instalments to Mr Thomas King, a London
merchant and member of Parliament, who became the moving spirit in the
project; and the adventurers were to have the option of withdrawing
after three years, on giving six months’ notice.[823] Literary puffs
were not neglected. A highly-coloured account of the value of the
Dutch fisheries (founded mainly on the Raleigh tract) and of the
rosy prospects of the society was published “by command.” The cost
of a buss, equipped and provisioned for four months, was set down
at £835; the herrings caught in that time were calculated to fetch
a round £1000, giving an immediate profit of £165 after meeting all
expenses.[824]

Notwithstanding the active support of the Court and the energy of
many agents, subscriptions to the fishery society filtered in but
slowly. The sum collected for it in the London churches in the year
1661 amounted to the paltry total of £818, 6s. 4½d.--scarcely enough
to set forth one buss,--and in the autumn of 1664 it was reported that
the amount collected throughout England and Ireland was only £1076.
The lottery, too, from which a great deal was hoped, gave rise to much
corruption, confusion, and dispute, without notably enriching the
society.[825] In these depressing circumstances recourse was again
had to Parliament. On 5th March 1662 a “Bill to confirm his Majesty’s
letters patent concerning the fishing trade” was introduced into the
House of Commons and remitted to a committee; but it ultimately became
transformed into a mere local Act dealing with pilchard-fishing.[826]
The king was not yet discouraged. The Masters of the Trinity House
were consulted in July as to the cost of ten busses he had resolved
to build, and the amount required--£9000--was actually handed over to
Mr Thomas King. Charles further offered to pay £200 to every person
who had a new English-built fishing-buss ready for the fishing before
the middle of the following year.[827] To facilitate the success of
the society on the foreign markets, an Act was passed in 1663, after
considerable discussion, to make the use of the Dutch system of curing
and packing herrings compulsory, so as to avoid abuses, and bring the
English-cured herrings into repute.[828]

At a meeting of the Privy Council a few months later, Sir William
Batten, Sir Richard Chaterton, and Sir William Ryder were appointed to
formulate proposals for the organisation of the Royal Herring Fishery,
and, after consultation with Simon Smith and Mr Thomas King, it was
resolved to adopt the Dutch system and regulations and to go on with
the scheme.[829] The next step was the issue by the king in the spring
of 1664 of another commission under the great seal, by which the Duke
of York and thirty-six assistants were incorporated as Governors
and Company of the Royal Fishery of Great Britain and Ireland; the
Lord Mayor and the Chamberlain of the City of London were appointed
treasurers.[830]

In spite of all efforts, such as they were, extremely little was
done by the society before the outbreak of the second Dutch war. The
slovenly way in which the business was managed and the corruption in
regard to the finances were notorious. Pepys, who was a member of the
council of the society, and had grave misgivings as to the issue of
their labours, gives amusing glimpses of the proceedings in his Diary.
He examined the accounts, and declared that “the loose and base manner
that monies so collected are disposed of in, would make a man never
part with a penny in that manner.” The Duke of York and the members did
not even meet to read the king’s commission until July, and the later
meetings were often futile from the want of a quorum. “A sad thing it
is to see,” says Pepys, “so great a work so ill followed, for at this
pace it can come to nothing but disgrace to us all.”[831]

The failure of the attempt to establish a great national fishery to
expel the foreigner from the British seas, after five years’ endeavour,
was very agreeable to the Dutch, who had watched the proceedings with
close attention, and had tried, openly and secretly, to hinder success
whenever they had an opportunity. Immediately after the Restoration,
the States-General, anxious to come to a good understanding with
Charles, sent special ambassadors to London to arrange a treaty
of friendship and alliance, and to renew previous treaties.[832]
The negotiations which ensued dealt, among other things, with the
fisheries, the flag, and the sovereignty of the sea. The object of De
Witt, the great Dutch Minister, was the usual one of his countrymen on
similar occasions--viz., to secure as far as possible the commercial
and other privileges which had been granted by the Intercursus Magnus.
Charles, on the other hand, wished at the very least to retain all the
concessions that Cromwell had secured by the treaty of 1654.[833]

When the Dutch ambassadors arrived, or at all events when they began
negotiations in London, the House of Commons had already taken up the
question of the fisheries. Action of this kind always occasioned the
Dutch anxiety. They knew it was directed against their predominance
in a vital industry, and that it was usually followed by troublesome
claims to the sovereignty of the sea and to an exclusive fishing on the
British coasts. Here were all those questions raised in threatening
fashion in the Bill passed by the Commons and sent up to the Lords.
Moreover, English privateers, sailing under Swedish colours, had lately
been seizing Dutch herring-busses, and though protests were made by the
ambassadors, no redress was obtained.[834] The debates and proceedings
in the House of Commons attracted immediate attention in Holland.[835]
De Witt at once took up a firm attitude. He declared that the new
pretension of England to the dominion of the seas and for the ruin of
the Great Fishery would meet with the most determined resistance of the
Republic; and, while consoling himself with the thought that reason
had always prevailed against it in the past, he urged the ambassadors
to use every means in their power with the Peers and the king in order
to frustrate it. The Marquis of Ormonde, who was an intimate friend
of Beverwaert’s and one of Charles’s Ministers, was bribed to use his
influence to the same end. This nobleman informed the ambassador that
when he was asked to favour the fishery project, he had answered that
while he desired the advantage of the nation as much as any man, it
would be first necessary to prepare for war, as it was in reality an
affair of state; and he took credit with his Dutch friend for having
induced many members of Parliament to oppose the Bill.[836] Whether
these intrigues had any influence in causing the fishery question to be
so frequently “laid aside” in Parliament can only be surmised.

So much concerned were the States-General about the provisions of the
Bill, that they despatched a special letter to be presented to the
king, in the hope, as De Witt said, that the resolution of the Commons
might be suspended and its execution prevented.[837] But when it became
known in Holland that the Bill had been shelved by the dissolution of
Parliament, and that Charles was unlikely to summon another Parliament
for a long time, the ambassadors were told to withhold it, but at
the same time to make its substance known to the Ministers, so that
the king might learn of it indirectly. They were also warned to say
nothing, in the negotiations for the treaty on which they were engaged,
that might allow it to be supposed that the right of the Dutch to fish
in the seas around the coast of England was derived from any treaty
or compact, or from any concession on the part of England. On the
contrary, it arose _jure proprio_ from the law of nature and the law of
nations, the stipulation in the treaty of 1495 merely expressing this
mutual right of free fishery with the view of preventing violence on
either side.

The negotiations dragged on slowly. The English commissioners showed
no anxiety to discuss the questions of the fishery, commerce, or
navigation, about which the Dutch were most concerned. Taking their
stand on the Navigation Act, which Parliament had recently passed, they
declined to listen to any proposal for free fishing on the English
coast. The Dutch ambassadors grew hopeless of being able to conclude a
treaty satisfactory to the States, and this feeling was strengthened
by the jealousy and resentment which the English began to manifest
concerning the simultaneous negotiations that were going on between
Paris and The Hague.[838] Foreseeing the difficulties likely to arise
with England over the fishery question, De Witt had made a dexterous
move. In the negotiations with France for a treaty between the two
countries, he proposed that an article should be inserted reciprocally
guaranteeing the right of free fishing in the sea to the subjects of
each nation against any that might endeavour to interfere with it. A
similar proposal had been made to France in 1653, but was rejected
owing to the desire of the French Government to avoid irritating
Cromwell.[839] Even now, when international conditions were more
favourable for its acceptance, the French looked askance at it, and
asked the States to define precisely their position as to the right of
fishery. They said in reply that they claimed the right of fishing in
the open sea by the law of nations; that it was a right independent of
any treaties, which merely illustrated and explained it, and was like
the liberty of commerce and navigation--free and open to all. The two
countries should therefore, it was urged, agree mutually to support
one another in the free exercise of this common right. In substance
this was clearly a demand that France should combine with them to
resist the English pretension to the sovereignty of the sea, on the
point in which it chiefly affected the United Provinces--namely, the
fishery. The French met it by suggesting that, as a _quid pro quo_, the
States should guarantee them in the same way against the claim of the
English to make French ships lower their flag to them in the narrow
seas. France, as we have seen, was not troubled by England about the
fishery, although many French vessels fished off the English coast.
On the other hand, the Dutch had formally agreed to strike to English
ships by the treaty of 1654,--a ceremony that France declined to
render, and avoided as far as possible. De Witt saw that if the States
gave the guarantee desired, it would place in the hands of the French
the power to compel them to take up arms against England at any time
they chose, and he instructed the Dutch ambassadors, if they could not
evade the proposal altogether, to request a declaration, in writing,
of the precise claims concerning the striking of the flag which the
King of France put forward as against the King of England. He said the
obligation of the States to strike was indisputable; but it was not
a recognition of England’s pretended dominion of the sea, but merely
a formal deference that republics had always shown to monarchies. De
Witt privately expressed the opinion that the French would hesitate to
formulate in writing any claim of that kind, and the result proved his
foresight. The French ambassador in London made certain overtures to
Charles without receiving a satisfactory reply, and the French proposal
for a guarantee about the flag was dropped.

A diplomatic tussle then took place as to whether the word “fishery”
should appear in the treaty. The French were anxious to keep it out,
and the Dutch as desirous that it should be expressly included. Later,
De Witt seemed disposed to concede the point, provided other words
could be found which would “clearly stipulate, in express terms, that
if their subjects were molested in their fishery the French would carry
out against those who molested them the guarantee promised.” At this
stage, however,--March 1662,--the Dutch towns insisted on the fishery
guarantee being absolutely explicit. The states most concerned--Holland
and West Friesland--unanimously passed a resolution that if France
refused to agree to the word “fishery” being inserted, the negotiations
should be broken off and the ambassadors recalled. Louis XIV. then gave
way. “I must admit,” he wrote to his ambassador in London, “that I have
the same interest in this guarantee as the Dutch, since the right of
fishing may just as well be refused by England to my subjects as to
those of the States-General.”[840] The treaty was signed on 27th April
1662, and in the fourth article the two contracting Powers mutually
agreed to assist one another in protecting their fishermen from those
who might molest them.[841]

The stipulation in the treaty with France was a notable triumph for
De Witt. For the first time in their history the Dutch had succeeded
in formally binding another Power to help them in resisting the
English claims to the sovereignty of the sea, so far as concerned the
liberty of fishing. Should Charles II. wish to emulate the exploits
of his father by sending a fleet to force licenses on the Dutch
herring-busses, he would now have to reckon on the combined opposition
of France and the United Provinces. The triumph was, however, a barren
one, and the treaty had no practical effect. Within a few years the
Dutch Republic was in the throes of war, first with England, and then
with England and France, and other treaties took its place. It had,
however, an immediate influence upon the policy of Charles, who feared
an alliance of the two Continental Powers against England. When he
heard of the negotiations about the fishery guarantee he tried, both
at Paris and at The Hague, to prevent an agreement being reached, and
the obstacles which he interposed delayed the conclusion of the treaty.
Sir George Downing, the English ambassador in Holland, who had taken
a prominent part in the debates in the Commons on the Fishery Bill,
and whose hostile sentiments to the Dutch were notorious, took up an
unusual attitude. He assured De Witt that since the United Provinces
were a republic and did not seek to encroach on England, they might
freely continue their fishery without fearing the least trouble; but
England could never allow that France, a monarchy, and a bold and
enterprising nation, should have unrestricted liberty of fishing
on the English coasts. It was feared, he said, that by its fishery
the abundance of mariners and the increase in shipping which would
follow would make it formidable to England, and this the English, in
accordance with their political maxims, would prevent. The French had
frequently requested and received licenses for a limited number of
vessels to fish in English waters, sometimes for the king’s table. If,
therefore, he continued, the proposed guarantee were agreed to, the
Republic as well as France would be _de facto_ at war with England,
because England would never leave the French fishermen at peace.
The same language was used by Downing to many of the deputies of
the States-General, in the hope of frightening them, but it made no
impression. “I have declared to Downing,” wrote De Witt, “that sooner
than acknowledge this imaginary sovereignty over the seas, or even
receive from the English, as a concession, that freedom of navigation
and fishing which belongs to us by natural right and the law of
nations, we would shed our last drop of blood.”[842]

The inflexible attitude of De Witt, and the actual conclusion of the
treaty with France, extinguished for a time the hope of compelling the
Dutch to acknowledge the right of England to the exclusive fishing
along her coasts, and the proposal was not pressed upon the ambassadors
in London during the dilatory negotiations for the Anglo-Dutch
treaty. With regard to the striking of the flag, Charles received
more satisfaction. The tenth article of the treaty, which was signed
at Whitehall on 4/14 September 1662, stipulated that Dutch ships,
whether men-of-war or others, should strike their flag and lower their
top-sails on meeting an English man-of-war on the British seas. It was
indeed precisely the same clause as that contained in Cromwell’s treaty
of 1654, except that certain verbal alterations were made in accordance
with the change in the form of the English government.[843]

In the earlier years of the reign of Charles II., comparatively little
was heard of disputes about the flag, which afterwards became so
frequent and important. One instance occurred in 1662, when a Dutch
vessel that was in Yarmouth Roads without a commission was taken to the
Downs for refusing to lower her sails to a king’s ship.[844] A case
of much greater interest happened in the previous year, when Captain
R. Holmes, in command of the _Royal Charles_, allowed the ship of the
Swedish ambassador to pass him on the Thames without compelling it to
strike. As the English Admiralty were always punctilious in enforcing
the salute on state occasions, as when a foreign ambassador was
concerned, Holmes for his remissness was deprived of his command.[845]
The case of Holmes had some interesting consequences. It revealed
once more the want of precise knowledge at the Admiralty as to the
rules which should be followed in making foreign ships strike their
flag. The Duke of York, who was the Lord High Admiral, was himself
ignorant on the point, and he asked the principal officials about
it--Sir George Carteret, the treasurer; Coventry, his own secretary;
Sir William Batten and Sir William Penn, commissioners of the navy and
experienced naval officers; and lastly Mr Pepys, who was the clerk to
the navy. It appears, however, that though they all “did do as much as
they could,” the information they possessed was of the scantiest kind.
Pepys tells us that he knew nothing about it himself, and was forced
“to study a lie” by fathering an improbable story on Selden, on the
spur of the moment; but on the same evening the genial diarist bought
a copy of Selden’s _Mare Clausum_ and sat up at nights diligently
studying it, with the view of writing a treatise “about the business
of striking sail” to present to the Duke. After nearly six weeks’
inquiry and cogitation the Admiralty officials “agreed upon some things
to answer to the Duke about the practice of striking of the flags,”
which encouraged Pepys to persevere with his treatise, but it was never
completed.[846]

A case of greater international importance occurred in the
Mediterranean in the following year. Vice-Admiral Sir John Lawson was
co-operating with De Ruyter against the Algerine pirates, and when the
fleets met, the Dutch admiral saluted the English flag with guns and by
lowering his own flag. Lawson returned the guns, but he did not strike
his flag, as was the custom in distant seas, and De Ruyter, indignant
at the slight, resolved not to strike his flag in future either, on
the ground that he was not in British waters, and that he had verbal
orders which authorised him in refusing. When De Witt heard of his
intentions, he immediately sent instructions in the name of the States
of Holland strictly to observe the treaty, and declaring that the
lowering of the flag must not be confined to British waters, since that
might be interpreted into subjection to English dominion of the seas.
If the English admiral again declined to lower his flag in return, De
Ruyter was merely to report the fact to the States.[847] The action of
De Witt was not designed simply to avoid a quarrel. As will be seen
later, it expressed his settled conviction and the fixed policy of the
Republic on this thorny subject.

All such questions as to the flag and the fisheries were soon submerged
in the second Dutch war. The causes which brought it about were at
root the same as those which had led up to the first. Commercial
jealousy was always a smouldering flame, ready to burst into a great
conflagration. The English believed that the Dutch had juggled them out
of their trade and trading rights in several quarters of the globe, and
with some reason. But probably the real motive was succinctly stated
by Monk, now Duke of Albemarle, when he said that the essential cause
of the quarrels between the two nations was that the English wanted a
larger share of the trade of the Dutch. Charles himself, like his great
Minister, the Chancellor Clarendon, seems to have been disinclined to
the war, which, however, was advocated strongly by the Duke of York,
who supported the contention of the merchants that it would benefit
English commerce. Accusations were levelled against the Dutch of having
by fraud and stratagem driven English trade almost entirely from the
East and West Indies, and greatly reduced it in the Mediterranean and
in Africa. These complaints were echoed in Parliament, and in April
1664 a resolution was passed by the two Houses declaring that the
wrongs and outrages committed by the Dutch on our merchants in India,
Africa, and elsewhere were “the greatest obstruction of our foreign
trade,” and that the king should be asked to “take some speedy course
for redress.” John de Witt fruitlessly endeavoured by all honourable
means to avert hostilities. The warlike and marauding expedition of
Holmes (now restored to favour) against the Dutch settlements on the
west coast of Africa and in America was followed, as it was bound to
be, by the retaliatory expedition of De Ruyter, which gave the English
the pretext for declaring war in the spring of 1665.[848]

The war was exceedingly popular in England, and large sums were
willingly voted by the House of Commons. Pepys tells us that the Court
were “mad” for it, and another contemporary writer says it was the
universal wish of the people.[849] Thus no appeal to the national
passion of Englishmen about the sovereignty of the sea was required
on this occasion, and such references as were made to the subject
were of a formal kind. One of the accusations which the Parliament
flung at the Dutch was that they had “proclaimed themselves Lords of
the South Sea; and, in contempt, shot at and use other indignities
to our royall flag, thereby affronting his Majesty and this nation.”
Then, in the preamble of the Act granting money for the equipment of
a fleet, it was declared to be “for the preservation of his Majesty’s
ancient and undoubted sovereignty and dominion in the seas”;[850] and
in his instructions to the Duke of York as Lord High Admiral, the king
said the great fleet he had prepared was “to assert his right to the
dominion of the Narrow Seas,” and for the mastery of the sea and the
security of navigation.[851] But these phrases were to be expected. For
the same reason, popular literature on England’s dominion of the seas
was on this occasion scanty, though some attempts were made to excite
national animosity by the familiar arguments.[852]

The general course of the war, in which France, and then Denmark,
combined with the United Provinces against England, does not concern
us here.[853] It did not add fresh laurels to the brow of Charles
II. as Sovereign of the Sea. Three great sea-fights took place--off
Lowestoft, on 13th June 1665; in the Straits of Dover, from 11th to
14th June 1666 (the Four Days’ Battle); and off the North Foreland,
on 4th August in the same year. In the first and last the English
were successful; in the Four Days’ Battle the advantage lay with the
Dutch; but the war ended in naval disaster and national humiliation for
England. In June 1667, when the plenipotentiaries were quietly sitting
at Breda leisurely engaged in arranging terms of peace, De Ruyter,
with Cornelius the brother of John de Witt, suddenly appeared in the
mouth of the Thames, and sent up a squadron which seized Sheerness
and Chatham, and might have gone to London Bridge for all the king
could have done to prevent it. They burned the best ships of the great
fleet which was to have “asserted England’s dominion of the sea”;
London was paralysed with consternation and amazement,--Pepys locked
his father and wife in a bedroom to save them from the perils of a
sack,--and while Monk, the one stout heart among them, posted down to
Gravesend “in his shirt,” the libertine monarch was engaged with his
mistresses in pursuing “a poor moth” about the supper-room! For many
weeks afterwards, until the peace of Breda, De Ruyter rode triumphant
in the narrow seas, and England was in terror of a French invasion, not
knowing of the ignoble intrigue in which Louis and Charles were now
engaged.

Passing from these notorious blots on English history, and before
considering the relevant business in the negotiations for peace, a
word or two must be said of some of the minor events and consequences
of the war. During its continuance the fisheries of England, and still
more those of the United Provinces, suffered severely. In January 1665,
before war was declared, but when it was obvious it might break out
at any moment, the States-General laid an embargo on the fisheries
and on all shipping,--a measure which, it was reported in England,
furnished them with 30,000 men for their navy. The stoppage of the
fishing was a heavy blow to those dependent on it, and advantage was
taken of the fact by the English, who tempted the Dutch fishermen by
offering licenses, for a nominal payment, which would enable them
to fish notwithstanding the war. The States of Holland, however,
forbade the acceptance of the obnoxious licenses, “considering that
it might be of very dangerous consequence, as making the inhabitants
of these countries indirectly tributary to the King of England”; and
the treasurer of the herring fishery at Maassluis, who had purchased
some of them, was severely censured and forbidden to make use of them.
Notwithstanding this patriotic resolution, it appears that private
cupidity in some cases prevailed, and a few licenses were accepted
in the following year. One of these, dated 21st November 1666, was
granted on the petition of one, Gisbert Petersen, of “Scheveling”
(Scheveningen), the captain of the “sailing waggons” of the Prince of
Orange, who “wafted” the king on board his fleet at the Restoration.
It gave him authority, in his vessel, the _Young Prince of Orange_,
“to fish in any part of our seas, not being within ... leagues of
land,” and to carry the fish which were caught to Holland; and in
certain circumstances he was to have the freedom of English ports. The
Scandinavian name of the recipient, and the circumstances recited,
throw doubt on the genuineness of the case. The license was renewed on
7th June 1667.[854]

A much more interesting concession for fishing in all parts of the
British seas, irrespective of distance from shore, was granted by
Charles in the same year, though not to subjects of the United
Provinces. The citizens of Bruges, in Flanders, where the king had
received friendly treatment when in exile, petitioned him to allow
all the sworn burgers and citizens of that city to fish “freely and
frankly” at all times, to the number of fifty busses or other vessels
fit for fishing, on the seas and coasts of his kingdoms; to enter the
ports and rivers to buy necessaries, for shelter, and to dry their
nets, and to depart without molestation, on giving security not to
sell fish to his enemies.[855] Charles granted them a charter under
the great seals of England and Scotland, giving them liberty to fish
with fifty vessels at a time for herrings or any kind of fish in the
British seas, up to the coasts or shores, with the privilege of drying
their nets on land, and using English or Scottish ports in security.
The Duke of Lennox and Richmond, the High Admiral of Scotland, and
others concerned were commanded to treat the vessels of Bruges with
friendship, “in whatever part of the sea, whether near the shores, in
rivers, or ports” they might be.[856] The fishermen of Bruges continued
to fish near our shores, in terms of this charter, and even from our
harbours, until 1850, and the charter was regarded by the English
authorities as spurious.[857]

By granting this charter, it is not unlikely that Charles also hoped
to strike a blow at the fisheries of the Dutch Republic. While
refusing to allow their subjects to accept any compromising English
license or concession for fishing, the States-General tried to bring
about a mutual and equitable arrangement. Early in 1665 they issued
instructions that English fishermen should not be attacked till further
orders; and in October of the same year--that is, when, in peaceful
times, Dutch fishermen would have been taking part in the profitable
fishing at Yarmouth--one of their naval officers delivered an official
letter to the Bailiffs of that town, intimating that orders had been
given to all their admirals, commanders, and captains at sea that no
English fisherman was to be molested, and expressing a hope that a
similar Christian forbearance (_medelijdentheyt_) might be shown to
Dutch fishermen on the part of England. No answer was returned, but
an emphatic response was made a week or two later when the _Sapphire_
seized several Dutch fishing vessels and brought them into port,--a
circumstance which also shows that the embargo had not been strictly
observed.[858] In the following year the embargo was officially
continued, the “small” or fresh-herring fishery carried on along the
coast being excepted;[859] but after the defeat of the English fleet
in the beginning of June, the deep-sea fishing appears to have been
partially resumed. Early in August reports reached London from Yarmouth
and Whitby that the Holland busses and doggers were fishing off the
land, and had been seen by our fishermen. They were said to number 400
and to be guarded by eight convoyers, and it was rumoured the English
fleet had gone in pursuit and sunk eighty busses; and a few doggers
were in reality brought in. It was again reported later that a fleet
of busses was fishing off the coast of Suffolk, attended by seventeen
ships of war.[860] If the retaliation of the Dutch was less effective,
it was because the English fishermen carried on their industry close
to their own ports; to which, moreover, they were often confined by
fear of the Dutch privateers, which boldly hovered about the coast, and
the sight of a sail was enough to frighten them back.[861] After Van
Ghent had burned the English ships in the Thames and the Dutch were
supreme at sea, the States of Holland withdrew the embargo on the Great
Fishery, and when peace was proclaimed the _schuyts_ again took part in
the autumn fishing at Yarmouth.[862]

It has been already mentioned that France, which had bound itself by
the recent treaty to aid the United Provinces, declared war against
England in January 1666, but Louis showed great reluctance to begin
actual hostilities; and one of the diplomatic obstacles which served
to delay the junction of the French and Dutch fleets referred to
the striking of the flag. A French squadron of thirty sail had been
equipped under the Duke de Beaufort, and Louis required that the Dutch
admiral should salute not only the Admiral of France, but the vice-
and rear-admirals; and further, that the French admiral should not be
required to lower his flag in returning the salute of the Dutch. The
States-General were willing that their admiral should strike to De
Beaufort first, but they demanded that the latter should return the
salute in a similar manner. The French, who were apparently anxious
to be placed in the same position as England with respect to this
ceremony, argued that the English did not re-salute the Dutch fleet by
striking the flag, but only returned the guns, citing the treaty of
1662 and the actual practice; and they proudly boasted that the flag
of the Admiral of France had never at any time been lowered to that
of any nation. To this De Witt replied that they were willing to give
the same respect to the French as they did to the English; that the
re-salute was not expressly mentioned in the treaty because it was a
well-understood custom on their own coast; and that in point of fact
the English did return the salute, as had been done by Admiral Montague
(the Earl of Sandwich) in 1661 and by Vice-Admiral Lawson on meeting
De Ruyter. If on some occasions it was omitted by the English, it was
on the seas they called “British,” and was to be attributed to the
claim they pretended to the dominion of the seas--a claim which France
and the Republic had solemnly agreed by treaty to resist. If a similar
claim was now advanced by France, it would argue a like pretension to
maritime sovereignty by a nation which had engaged itself to preserve
the liberty of the sea. Moreover, the salute at sea between the fleets
of two sovereign states was not an act of submission of an inferior
to a superior, but one of civility, honour, and respect, and should
therefore be mutual and equal. They, as a republic, offered to strike
first, and to keep their flag lowered until the French admiral had
struck and re-hoisted his flag. This discussion about the re-salute was
prolonged, extending from June 1666 to July 1667, for De Witt was not a
man lightly to agree to diminish the dignity of his country; and after
the peace conference met at Breda, and De Ruyter was master of the sea,
the Dutch roundly declared they would not strike to the French admiral
at all, unless he agreed to return the salute by dipping his flag, but
would only salute him with guns.[863]

At the conferences at Breda Charles had little right to expect that he
would gain much, in view of the inglorious events at the end of the
war. He retained New Amsterdam (re-named New York), which Holmes had
taken in 1664, but he lost Poleroon and Surinam, and relinquished the
claims which had been put forward to justify the war. An important
concession was made to the Dutch by a modification of the Navigation
Act, for a repeal of which they pressed, by a stipulation, in separate
articles, that they might import into England in Dutch vessels all
commodities produced or manufactured in Germany or Flanders, for which,
it was claimed, the United Provinces were the natural outlet to the
sea; and all the essential articles of the commercial treaty of 1662
were confirmed.[864] All pretensions to exclusive fishing off the
British coasts were withdrawn; the old stipulations of the Burgundy
treaties were not, however, renewed.

With regard to the “honour of the flag,” De Witt, in the preliminary
negotiations, strove to come to an arrangement with France and Denmark,
who were also parties to the treaty, to compel England to relinquish
her claim to pre-eminence in this matter, especially by insisting
that English vessels should return the salute by lowering their
flag.[865] Charles was saved from this humiliation by the good offices
of Louis, and the article in the treaty of 1662 was simply repeated in
precisely the same words.[866] Another of the maritime articles gave
less contentment in England. We have already seen how persistently
the Dutch had struggled in deliberating on the terms of the treaty
of 1654 to restrict the application of the term “British Sea” to the
Channel. What they were then unable to accomplish was now conceded to
them. In the usual article about the cessation of hostilities on the
sea, it was specified that restitution of prizes should not be made
if they were taken “in the Channel or British Sea within the space of
twelve days, and the same in the North Sea; and within the space of six
weeks from the mouth of the Channel unto the Cape of St Vincent.”[867]
In the treaty with France, signed at Breda on the same day, the
French plenipotentiaries took care that the terms English Channel or
British Sea in the corresponding clause were omitted, the neutral if
indefinite phrase “the neighbouring seas” (_maria proxima_) being
substituted.[868] In the similar treaty with Denmark, the phraseology
was even less tender to English susceptibilities--namely, “in the
Northern Ocean and in the Baltic Sea and the Channel, &c.”[869]
However trifling such points may appear to us now, they had a real
importance in the seventeenth century, and the phraseology cited caused
some heart-burning in England as being derogatory to our rights to the
dominion of the British seas.[870]

For some years after the conclusion of peace at Breda, and indeed up
to the opening of the third Dutch war, the question of the salute was
a frequent subject of international discussion. Dutch statesmen had
always wished to come to a definite arrangement with England about it,
for they saw that to leave it in ambiguity while the English looked
upon it as touching their national honour, was fraught with danger. A
whole series of points was in doubt, any one of which might furnish
occasion for war unless clearly defined and mutually understood. Was
a whole fleet or squadron of the States to strike to a single English
ship of war? Were they to strike to a frigate, or to a still smaller
ship, such as a ketch, or only to ships carrying the flag of an
admiral, vice-admiral, or rear-admiral? Was the salute to be returned
by the English in the same way, by dipping the flag and lowering the
top-sails as well as by guns? Within what parts of the sea was the
salute to be enforced, or differentiated, or the re-salute given?
English statesmen purposely left many of these points undefined, in
order to gain as wide a recognition of the ceremony as was possible,
and when disputes did arise with other Powers, to enable them to avoid
war or to make war as circumstances and policy might determine. They
held that England, and England alone, was the rightful interpreter of
what was due to her flag by ancient custom. On the other hand, the
Dutch Republic looked upon the whole business as a troublesome affair;
and as the greatest commercial nation of the time, whose chief interest
was peace, they naturally desired that the dubious points about the
salute should be permanently settled.

Immediately after the conclusion of the Triple Alliance against France,
at the beginning of 1668,[871] De Witt, taking advantage of the good
feeling existing between England and the Netherlands, and especially
of the presence of Sir William Temple as English ambassador at The
Hague, proposed that a formal settlement should be made of the doubtful
points concerning the striking of the flag. Temple, who was a staunch
friend of the Dutch and was on intimate terms with De Witt, shared
this opinion. He thought that by a slight concession, or by a definite
agreement, England might count with some confidence on the support of
the States-General in any future quarrel with other nations about the
flag. The subject was formally raised by De Witt on a proposal for
a union of the Dutch and English fleets, in certain contingencies,
against France. He offered to give the same honour to the king’s ships
at sea as their ambassadors gave to his Majesty’s person, “to uncover
first and cover last”; but stipulated that any agreement about the
flag must not be regarded as an acknowledgment of England’s pretension
to the sovereignty of the sea, which the Dutch would “die rather than
do.” Knowing that it was a “delicate” subject to broach with the
King of England, he thought the negotiations might be opened by the
States-General sending a polite letter to Charles, laying stress on the
good relations between the two nations, and intimating that in order to
prevent sinister encounters which any new sourness might occasion, they
had issued orders to all their naval officers to strike their flag with
every mark of civility on meeting with the royal flag of England. The
king was then (according to the scheme) to inform the States-General
that he had received this mark of deference to his royal dignity with
singular satisfaction, and that he on his part would order his admirals
and commanders to re-salute the States’ flag. Temple thought the matter
was so “ticklish,” that it ought to be first broached verbally at a
fitting opportunity; and De Witt, in advising the Dutch ambassadors in
London to this effect, reminded them that the salute was merely a mark
of honour and respect, and that if anything was put into writing this
should be expressed. He added that he had never been able to understand
how it could be conceived that the free element of the sea, or dominion
over it, could belong to England or to any nation, and that in Holland
the common right of sovereignty of all nations over it was held to be
incontestable.

When, about a month afterwards, the ambassadors spoke to the king, he
said he did not see how the question could be ambiguous, since it was
provided for in the treaty. They pointed out that the re-salute was
not mentioned, and then used the arguments which De Witt had put into
their mouths about its being a ceremony of respect which it would be
only reasonable and courteous to return, just as his Majesty would
do, sitting on his throne, in response to the salutations of the
ambassadors of the Republic; and they adduced one or two instances in
which the English ships had returned the salute. Charles told them they
were possibly thinking of the custom in the Mediterranean, which was
different from all the other seas (meaning the British seas), and said
he claimed nothing but the old practice; but he promised to look into
the matter. The ambassadors did not press the subject further, and the
important declaration they had been charged to make, that in future the
States’ ships would refuse to strike unless the salute was returned in
the same way, remained unspoken. Shortly afterwards, when the States
were asked to send some of their warships to strengthen the squadron
of Sir Thomas Allin, who was ordered to enforce the restitution of
some English vessels seized by the French, they refused, unless the
difficulties about the flag were first settled, and the discussion
continued throughout the summer.

It is interesting to note, in view of the antecedents of the next war,
that the ambassadors were instructed to say that the States’ fleet
would not strike, even in the Channel, to a frigate or ketch, which
did not customarily carry the royal flag in the main-top, but only to
an admiral’s ship, or one carrying the royal flag. This contention
was promptly set aside by the Duke of York and Lord Arlington (the
Secretary for State); but De Witt, still clinging to the hope that a
“regulation” might be arranged, asked the ambassadors to find out the
instructions which were actually issued to the English captains serving
in the Downs, the Channel, the North Sea, the Mediterranean, and the
Ocean, as it was generally believed in Holland that outside the Channel
neither side should strike the flag or lower the sails to the other,
but that the States’ ships should first salute with guns alone, and the
English answer with guns also. In any case, if the principal fleets of
the two countries were combined for any purpose, or jointly brought
into action, it was to be first arranged that they should salute one
another with guns only, or at all events in an equal and reciprocal
manner, the Dutch always giving the salute first; and the ambassadors
were to insist earnestly and finally for a settlement.

The ambassadors informed De Witt that, as was shown in the copy of
the instructions found on board the _Charity_, an English man-of-war
taken by the Dutch in the battle of Lowestoft, in 1665, and which
was published by Aitzema, the commander of an English man-of-war was
to compel every foreign ship, or ships, to strike their flag in the
British seas, and that in these seas no English king’s ship was to
strike to any foreign ship. In all other seas the English ship was
never to strike to a foreigner unless the latter struck first or at the
same time. According to this, they said, a single English man-of-war
could compel a whole fleet to strike their flags and lower their
top-sails in the so-called British seas, and it was forbidden for it
to strike in return. In all other seas, if the foreign ship did not
strike, the English would not strike, and no salute would be exchanged.
They said this was well known to be the regular formula in England,
and no distinction was drawn between the Channel and other “pretended
English seas.” The “British seas,” they said, according to the
Admiralty instructions, extended to Cape Finisterre, in Galicia, and
westwards, according to Selden, to America. It would be an excellent
thing, they thought, if they could succeed in drawing a distinction
between the Channel and the other seas, since their fisheries, the main
object of solicitude, were carried on, not in the Channel, but in the
North Sea. But as the whole subject was very delicate, they advised
De Witt to pass from it for the time and to allow things to remain
on their old footing; and to show the spirit in which the matter was
regarded in England, they sent him specimens of the coin issued by
Charles a few years before, which bore the king’s effigy on one side
with the inscription _Carolus a Carolo_, and on the obverse the figure
of Britannia, with the proud words, _Quatuor Maria Vindico_.[872] De
Witt, who had just arranged with Temple that the matter should be
brought to the notice of the king, acquiesced, but with reluctance.
He expressed satisfaction that they now at least knew more about the
English pretension, so that fresh hostility and war could be avoided on
that point; but that an English frigate or ketch should claim to compel
a whole fleet to strike was, he said, intolerable. And it was this very
thing that Charles selected to force war upon the United Provinces a
few years later.[873]

It was not only with the Dutch that discussions arose at this time as
to the rights of the English to demand the salute. The astute Dutch
statesman, as was his wont, began to pull diplomatic wires at other
Courts in order to have the subject raised by them. The King of Denmark
in the following year proposed to Charles that new regulations should
be arranged with respect to the “salutes and civilities” at sea between
the men-of-war of the two nations. Charles declined the invitation.
He did not think it fit, he said, to make any new regulation on the
salutes at sea, “since there has never been any question made of the
constant practice in that matter, which we shall always observe.”[874]

A renewed attempt to convince the French that it was to their interest
to curtail the English claim to the sovereignty of the sea had
consequences little dreamt of by De Witt. The Dutch Minister, clinging
to his principle, urged at Paris that Charles, who wished to be the
supreme ruler of the sea, ought to be forced to modify his pretension
and to give the salute in return. It had indeed been rumoured in London
that the French king had decided to forbid his naval commanders to
strike to the English, and even to compel both English and Dutch to
strike to his own flag.[875] Louis certainly raised the question at the
Court of St James’s, but in a different way. Colbert, his ambassador
there, secretly revealed to Charles the confidential negotiations which
the States-General had opened at Paris, in the hope that this mark of
confidence would make more easy his policy of detaching the King of
England from the Triple Alliance.[876] By this time Charles and Louis
were drawing closer together, and in order to prevent chance disputes
about the flag, a verbal arrangement was made through Colbert, in the
summer of 1669, that no salutes should be exchanged between English
and French men-of-war in the Mediterranean, nor should the ship of one
be expected to go to leeward of the other. Instructions of this tenour
were given to Sir Thomas Allin, who was on the point of leaving with a
squadron to chastise the Barbary pirates.[877]

About this time the Duke of York and the officials of the navy began
to devote close attention to the rules regulating the salute and
the striking of the flag, and a number of memoranda were prepared
which described recent precedents, and dealt with other points. With
reference to recent practice, it was stated that the Earl of Sandwich
had struck in return to De Ruyter in 1661 or 1662; that Sir John Lawson
declared he would strike to none, and kept his flag aloft in Toulon
harbour; while Sir William Berkeley, serving under Lawson, refused even
to fire a gun on meeting De Beaufort, the Admiral of France, until he
was assured that the report attributed to him that he would force the
English to strike was unfounded. A statement was compiled of the number
of guns fired in salute to English vessels arriving in various foreign
ports, and rules were formulated with respect to the salutation of
forts and on other points. The general custom was that “the sea should
salute the land”--that is, the vessel first saluted the forts, except
on extraordinary occasions, as when a prince or an important foreign
embassy arrived. No foreign man-of-war was to be allowed to pass above
the ports at Gravesend and Sheerness, or at any other harbour, without
special permission from the Lord High Admiral or the governor of the
fort; all vessels were to keep in their flag as long as they were
in sight of the fort, and if they refused they were to be forced to
comply; salutes of foreign flagships were to be answered gun for gun,
and of other foreign ships with two guns less. As for the striking of
the flag, the Earl of Sandwich and other naval authorities who were
consulted intimated that the matter was too important for them to
decide upon, and should be left to the king--a plain acknowledgment
of its political character. The Duke of York, however, the Lord High
Admiral, stated that the rule was that English ships were everywhere to
be saluted first, and were not to strike in return, but only to answer
with guns; but if a single English ship met a foreign fleet out of the
British seas, it was to salute first with guns, but neither was to
strike the flag.[878]

This activity at the English Admiralty may not have been wholly
unconnected with the circumstances which ushered in the next war, but
it was more probably due to the general revival of punctiliousness
regarding the salute and similar naval ceremonies which took place at
this time throughout Europe. Even the petty states in the Mediterranean
became infected with the spirit of their powerful neighbours, and
followed their example. At Genoa and Leghorn frequent disputes, and
sometimes sanguinary encounters, occurred between the authorities and
Dutch and English men-of-war as to the number of guns that should
be fired, or the striking of the flag. French and Dutch men-of-war
lying in the Tagus were only prevented by the governor of the castle
from putting to the arbitrament of force the question whether the
latter should strike to the former. At Civita Vecchia, at Glückstadt,
at Dover, at Dieppe, at Kronberg, similar incidents took place. The
Earl of Essex, going on a special embassy to the King of Denmark,
and on board the king’s yacht, had a sharp dispute with the Governor
of Kronberg, in the Sound, as to lowering his flag, which the Danish
officer requested him to do. But Essex was well primed with precedents
before he left England, and was able to maintain his refusal.[879]
Though Dutch men-of-war engaged with spirit in such quarrels about
the salute in foreign ports, their action was not countenanced by the
policy of the States-General. On 16th May 1670 they instructed that
the fort of Kronberg should be saluted by Dutch vessels in such manner
as the King of Denmark might require; and on 3rd February next year
the States of Holland issued a general order that their men-of-war
should salute those of other sovereigns on their coasts, within the
reach of the guns of batteries or forts, in the precise manner that
the Government of the country might demand, leaving it entirely to the
discretion of that Government to return the salute or not, just as they
pleased. Every foreign Government, they added, was sovereign within its
own jurisdiction, and every foreigner was a subject there.[880]



CHAPTER XIII.


CHARLES II.--_continued_.

THE THIRD DUTCH WAR.


The “honour of the flag” and the sovereignty of the sea were now
about to gain a shameful notoriety in connection with the third Dutch
war, which Charles, from the basest personal motives and in the most
treacherous manner, suddenly sprang upon the Republic. At that time,
and for long afterwards, European policy turned upon the ambitious
designs of Louis XIV. Laying claim to the Spanish dominions, he overran
the Low Countries in 1667 with an army of 40,000 men. The rapidity of
the conquest and the display of formidable military power filled Europe
with alarm; and the United Provinces, which lay nearest the scene
of danger, were thrown into apprehension as to their own safety. In
England popular feeling was very hostile to France, and Charles, after
some hesitation, despatched Sir William Temple to The Hague to conclude
an alliance against France, which he succeeded in accomplishing in
a few days--in January 1668,--and it was adhered to by Sweden. The
Triple Alliance thus formed was hailed with enthusiasm in England,
and it abruptly and effectually checked Louis in the execution of his
plans. Deeply mortified, the French king bent his energies and talents
to detach Charles from the League, in order to wreak his vengeance on
the Dutch Republic, and he succeeded even better than he expected.
Charles was deeply in debt, and the expenses of his Court were heavy.
His relations with the Parliament were becoming strained and difficult.
Mistrust was growing up between him and his subjects, and, mindful of
the fate of his father, he thought it prudent to secure in secret a
wealthy and powerful ally lest rebellion again broke out in England.
Within a year of the signing of the Triple Alliance Charles was gained
over by France, and the compact was sealed in the disgraceful secret
treaty of Dover in May 1670. Under the treaty Charles was to receive a
large yearly pension from Louis, and aid in case of insurrection; he
was to avow and re-establish the Roman Catholic religion in England
when it could be done with safety; and he was to begin hostilities
against the Dutch Republic when Louis required him by furnishing 4000
men and fifty ships of war, for which he was to receive a subsidy of
£120,000, and to gain as his share of the spoils of conquest Walcheren,
Sluys, and Cadsand. Louis crowned the dishonourable compact with the
appropriate gift of a new mistress to his royal ally--Mademoiselle de
Kerouaille, afterwards the Duchess of Portsmouth, who well served the
interests of France.[881]

In order to carry out his part of the iniquitous bargain, it was
necessary for Charles, as the vassal of France, to deceive his subjects
and his Parliament as well as his public ally, the Dutch Republic. He
had first to get money for the armaments, for which the subsidy from
France was insufficient, and he had then to discover some pretext
for the war which would make it least objectionable to the English
people. For the former purpose he resorted to a bold subterfuge. The
sentiment of both the Parliament and the people was hostile to France,
and advantage was taken of this circumstance to obtain a subsidy under
false pretences. When Parliament met in October 1670 the Lord Keeper,
by the king’s commands, made a speech on the state of public affairs,
in which he enlarged on the king’s need of supply; pointed to the
great strengthening of the French navy and the decay of our own; urged
the necessity of fitting out in the ensuing year a fleet of fifty
sail; and dwelt upon the obligations placed upon the king by several
treaties to exert himself for the good of Christendom, mentioning among
others the Triple Alliance and the League with the United Provinces.
The trick succeeded. Parliament, uneasy at the recent journey of
Louis to Flanders and the naval preparations in France, voted a sum of
£800,000.[882]

It was also indispensable to foment ill-feeling against the Dutch,
and to devise disputes with them so as to prepare the way for a
rupture. Some time before this, at Genoa, a Dutch commander, Captain
Braeckel, who had led the attack on the English ships at Chatham in
1667, had hoisted under the Dutch colours some English flags which he
had taken on that occasion, in derision of the English in the port.
Charles demanded reparation and the punishment of Braeckel; and the
States-General ultimately ordered the trophies to be given up, and sent
them to London.[883] Later, the king complained that the States-General
had allowed him and the English people to be insulted by lampoons,
medals, &c., commemorating the exploits of the Dutch fleet in the
Thames in 1667, the king suing for peace at Breda, and so forth. The
States-General, when the king continued to press these complaints,
seized all copies of certain lampoons and destroyed the dies of several
of the medals. Charles then boldly accused the Grand Pensionary De Witt
of having carried on a confidential correspondence with France with
the object of inducing that Power to take up arms against England.
The accusation was meant to prejudice the Dutch in the eyes of the
Parliament; and the States, to prove their sincerity, sent fresh
proposals for an alliance, to which Charles replied that they should
first have offered him subsidies. The apprehension of the States that
the king was inclined to force a quarrel on them was not lessened by
intelligence they received that he had abandoned the Triple Alliance,
and especially by the recall of Sir William Temple from The Hague in
1670,--a step that followed the seizure of Lorraine by Louis.

Affairs were ripening to the wished-for crisis, and Charles now
sought for a decisive pretext, which, while making war inevitable,
would lessen its unpopularity in England. Such a pretext was to be
found in the “honour of the flag.” No cry was more likely to rouse
resentment in the people than that the flag had been insulted and the
sovereignty of the sea threatened. To insult the flag was to insult
the nation. The king was well aware from the repeated declarations
of the States-General that they would never willingly acknowledge
England’s sovereignty of the sea: they had said they would “rather die
first.” He was also doubtless fully acquainted with the fixed opinion
of the Grand Pensionary that to claim that the whole Dutch fleet should
strike to a single frigate or a ketch was “intolerable.” He contrived
his measures accordingly, and decided to send one of his yachts to pass
through the States’ fleet, on their own coast, and to fire upon them if
they did not strike their flags in the accustomed manner. The matter
was deliberately considered. The clause in the treaty of Breda was not
very clear as to whether a yacht, or even a man-of-war, could compel
the whole Dutch fleet to strike, and on the Dutch coast. Just about
the time Temple returned from The Hague, Sir Leoline Jenkins, Judge of
the High Court of Admiralty, wrote a confidential letter to Sir Thomas
Allin, the commander of the Blue, asking him to find out secretly,
“as if for his own satisfaction,” whether there were any “ancient
seamen” at Trinity House or elsewhere who were on board the _Happy
Entrance_ when it carried the Earl of Arundel to Holland in 1636, and
if so, whether they remembered that on entering the road of Goeree,
in Holland, Admiral Tromp, who was at anchor there, struck his flag
to it; and similar information was asked in regard to other cases of
like import in 1637 and later. The question was also put to Sir Thomas,
“How far the British Sea, or British Ocean, does in common reputation
extend itself; and whether all that which washes the coasts of the Low
Countries, as well as that which runs upon the French coast, has been
anciently deemed and reputed to be British Sea?” Jenkins explained that
he had been desired by the king to obtain proof of the striking of the
flag as secretly as possible; and the two chief points were, (1) “Had
not the French and the Dutch always struck to the king’s flag even on
their own coasts? and (2) that a single ship of ours, if commissioned
for war, though never so inconsiderable in its strength, did make
whole squadrons and fleets of the neighbouring nations to strike,
and particularly the Spaniards near the Spanish Netherlands and the
subjects of the United Provinces near their coasts?”[884]

The reference to the French and Spaniards was no doubt meant to conceal
the real significance of the inquiry. The reply of the admiral seems
not to have been preserved, but a later memorandum of Jenkins answers
the questions as to the striking of the flag at Goeree, and in the
other cases, in the affirmative. The Trinity House, whose opinion was
also asked, said that it had been commonly received by them from their
predecessors that the British seas “extend to Cape Finisterre, or the
North Cape” (_sic_), and that the sea which washes the coast of the Low
Countries and France had been always reputed part of the British seas.
“To know how far it does extend northwards,” they ingenuously added,
“we desire you will please to consult those authors who have treated
on that subject, it not being known to a certain by us.”[885] They had
been unable to meet with any persons who knew about the alleged cases
of striking, so that Jenkins must have obtained the information about
them from other sources.

There can be no doubt that Charles was advised by the authorities he
consulted on the ambiguous points in the article of Breda that (1) any
king’s ship, however small, commissioned for war, was a “man-of-war”
in the sense of the treaty, and could call upon the whole Dutch fleet
to strike; (2) that the British seas included those washing the coasts
of the United Provinces; and (3) with respect to the previous custom
referred to in the treaty, that the Dutch had struck on their own
coasts.

Thus fortified in law and precedent, the way was clear for Charles to
pick a quarrel with the States about the striking of the flag, and
he despatched, not a man-of-war, nor even a frigate, but his yacht,
the _Merlin_, for the purpose. Ostensibly it was sent to bring over
Lady Temple, who had, by his wish, remained in Holland since her
husband’s departure, but with orders to pass through the Dutch fleet
then cruising in the Channel, and to fire at them until they struck
their flags or fired back at the _Merlin_. As the French ambassador,
who was in the secret, tersely put it to his Court, “the captain is
to use all his powder, so as to give good cause for a quarrel.” The
_Merlin_ on her way to Holland passed through the Dutch fleet, but
owing to a heavy gale she could not get near enough to execute the
king’s commands. She appears, however, to have met two Dutch men-of-war
convoying the herring-busses, who exchanged guns with her but did
not strike their flag.[886] But in returning, early in August, with
Lady Temple on board, the _Merlin_, with the royal standard flying,
came upon the States’ fleet lying at anchor beyond the Goodwins, six
leagues from the coast of Zealand and sixteen leagues from England. The
little yacht, while still at a distance, began to fire at the Dutch
flagship. De Ruyter did not reply at once, but the Lieutenant-Admiral,
Van Ghent, thinking that it was merely a question of the salute,
returned the guns in the usual manner, and was not a little surprised
to receive for his pains a discharge of cannon-balls. He sent an
officer on board the yacht for an explanation, and Captain Crow, the
commander of the _Merlin_, informed him that he had been sent to bring
the English ambassadress with her family from Holland, and had orders
to make the Dutch fleet lower their colours wherever he met with it.
On hearing this, Van Ghent, on the pretext of paying a compliment to
Lady Temple, whom he had frequently met at The Hague, went himself on
board the _Merlin_. He told Captain Crow that the point he had raised
was one on which he had received no orders from the States, and that
he could not concede the claim without express commands. He declared
his willingness to pay due respect to the English flag according to the
former practice, but he thought it could scarcely be contended that
the admiral and the whole fleet should strike on their own coast to a
single vessel, and that vessel a yacht, which was only a pleasure-boat,
or at least served only for a passage, and could not pass for a
man-of-war. It was at all events, he said, a question which should
first be submitted to inquiry by the two Governments.

Captain Crow was puzzled and perplexed, and on Van Ghent’s departure he
appealed to Lady Temple as to what he should do. She, seeing he did not
relish his job and would be glad to get out of it by her help, shrewdly
told him that he knew his orders best and what he ought to do, and
begged him not to mind her or her children. After firing another gun,
the _Merlin_ continued her voyage to England, leaving the Dutch fleet
with their flags displayed, and without having fired a single angry
shot in reply. Very naturally, Charles was irritated at the miscarriage
of his plan. He had hoped for a sharp and unequal contest about the
flag, the news of which would have rung from end to end of England and
enabled him to drag the country into war to resent the affront. Crow
was thrown into the Tower, “for refusing to do his duty towards the
Dutch men-of-war who refused to strike to the king’s flag.” The Privy
Council debated whether a frigate, the other class of vessel to whose
status De Witt had objected, should not be hastily despatched to the
Dutch fleet to draw the spark which the _Merlin_ had failed to elicit,
by firing on every ship that refused to take in her flag. Probably
the device was deemed to be too transparent; but it was rumoured that
the captain of the _Reserve_, which left Deal a few days later for
Portsmouth, had received instructions to fight the Dutch fleet if he
met them and they did not strike,--a rumour which, it was reported,
“deads the hearts of people lest we should have war with Holland.”

Meanwhile, Sir Leoline Jenkins was requested to inquire into the
case of the _Merlin_, presumably to see what could be made of it. He
examined Lady Temple and others, and drew up a memorandum embodying
the information he had received as to the extent of the British
seas and the precedents of striking to the English flag off foreign
coasts.[887] After citing the precedents at Goeree and elsewhere, he
expressed an opinion against calling witnesses in such cases “for fear
of chicane,” declaring that we had “a constant uninterrupted possession
of the prerogative, with the highest notoriety that public immemorial
reputation can give, in the British seas, and that the onus of making
proof as to the non-use and enjoyment of it in some certain places or
rencounters, as for instance the Dutch coast, or when a small sail of
ours met a fleet of theirs, was cast by the law and by reason upon
our opposers.”[888] The English Government did not make any immediate
protest to the States-General about Van Ghent’s refusal to strike to
the yacht, possibly lest they might proffer satisfaction and dispose
of the episode; but Charles boldly told the Dutch ambassadors that he
thought the conduct of their admiral had been premeditated.

Up to this time the Dutch had failed to discern the danger which was
approaching. After the _Merlin_ incident indeed, as Temple tells us,
the Dutch ambassadors in London, “with as ill noses as they have,
began to smell the powder after the Captain’s shooting.” But relying
on the well-known animosity of the English people and Parliament to
France, and their aversion to a rupture of the Triple Alliance, they
fondly clung to the belief that the incident was one of the temporary
misunderstandings about the flag which would be readily cleared up. The
States-General were equally undiscerning, and perhaps a little more
obtuse. They adopted a course which, however proper it might have been
under other circumstances, now served only to play into the hands of
Charles. A manifesto was prepared declaring that by the terms of the
treaties with England the salute was to be regulated according to the
custom in the past; that it could not be claimed except in British
waters, where--as their High Mightinesses thought it well to remind the
king--it was offered only as a mark of courtesy, and not in recognition
of England’s pretension to the sovereignty of the sea. And in order
that their intention might be perfectly clear, they instructed De
Ruyter to draw up a set of rules prescribing the salute to be given
in future by the Dutch fleet to English or French men-of-war on the
Dutch coast, which was to be confined to the exchange of guns without
striking the flag at all.

Thus, by their own maladroitness as it happened, the States were drawn
into precisely the dispute that Charles had been longing for--a dispute
about the flag and the sovereignty of the sea. He replied by sending
Downing to The Hague, in December 1671, as ambassador extraordinary,
with a sheaf of peremptory and intolerable demands. The choice of the
ambassador was in itself significant of much, for Downing was known to
be repugnant to the States-General, partly from his overbearing and
quarrelsome disposition, still more because of his unconcealed enmity
to the Dutch people. He was to demand free trade for the English in
the Dutch plantations in the Indies; redress and satisfaction for
the pamphlets and medals insulting to the king; above all, he was to
present to the States-General a memorial requiring that they should
“solemnly and clearly acknowledge, in writing, the king’s right to the
dominion of these seas, and that they neither do nor will dispute it,
but expressly engage themselves that all ships or fleets of theirs,
however numerous, shall, upon warning given by any ship or ships of
war, carrying English colours, of what rate or bigness soever, strike
their top-sails and lower their flags, as has been ever practised.”
As a pendicle to this, he was to demand that Van Ghent should be
“exemplarily punished for the insolent affront done by him to a small
English man-of-war [the _Merlin_] in refusing to strike.” If within a
fortnight no answer was received to this “memorial,” Downing was to
present a sharp and peremptory note demanding an immediate reply, and
if he did not get it within another week, he was instantly to quit The
Hague, without giving any notice of his intention to go.

While Downing was away on his explosive mission, Boreel, the Dutch
ambassador in London, was beguiled with smooth words in order to lull
the States-General into a feeling of security. On the eve of his
departure, Downing told him he was going to The Hague with the object
of strengthening the good understanding between the two countries, and
Charles treated the ambassador with the most friendly courtesy. The
ease with which the Dutch were being hoodwinked caused much amusement
in Paris. But Charles was not yet quite ready. He needed a great deal
more money than what was left of the £800,000 which the House of
Commons had voted. Afraid to summon Parliament again, or to levy taxes
under the prerogative as Charles I. had levied the ship-money, he had
recourse to the daring expedient of closing the Exchequer, by which
he robbed the public creditors of some £1,200,000, causing widespread
ruin and commercial panic. A little later, on 21st January 1672, the
first quarterly instalment of the subsidy of three million livres from
Louis was landed at Rye, and escorted to the Tower by forty men of the
Guards and a trumpeter. Now in possession of ample supplies, Charles
hastened to throw aside the mask. Downing played his arrogant part
at The Hague, refusing to allow any debate as to the justice of his
demands. When he suddenly called for his passports, the States-General
began to awaken to a truer sense of their position, menaced as they
also were by imminent peril from France. Adopting the advice of the
deluded Boreel, that by yielding on the question of the flag they would
remove any inclination the English people had for war with them, since
England really cherished enmity against France, the States-General
agreed to comply with the claims of Charles respecting the salute. The
concession was still joined with the offensive proviso that they gave
it only as a mark of respect to a powerful monarch: it was, moreover,
to be conditional on the maintenance of the Triple Alliance. Downing
told them the offer came too late, and slunk away home, reaching London
on 6th February, where the king, displeased with his management of the
affair, sent him to the Tower “for not having obeyed the orders sent
him.”

The flight of Downing threw the States-General into consternation.
Meerman, previously their ambassador at the English Court, was
despatched in haste to London to renew the offer about the flag, to
agree to the dismissal of Van Ghent, and to tender large subsidies
for the king’s privy purse. At the audience with Meerman and Boreel,
Charles skilfully evaded their proposals and expressed surprise that
they had not submitted a formal signed paper. This they made haste to
do, and they were then informed that it was ambiguous and obscure,
but in what particulars they could not learn. They next submitted a
draft to Arlington and Lauderdale, the English commissioners appointed
to treat with them, with the request that they might amend it as
they thought fit, but they were haughtily told that it was none of
their business to draw up papers for the Dutch. Finally, they signed
a written engagement to give satisfaction about the flag, but at the
conference appointed for its reception the English refused to consider
it, saying the time for negotiations was now past.[889]

The time was now obviously ripe for a declaration of war; but Charles
before taking this step had resolved on an audacious and treacherous
stroke, by which he hoped to gain much plunder for himself while
diminishing the resources of the Dutch. In spite of the solemn
obligations of treaties for the temporary security of their shipping
even if war broke out, it was decided to attack and capture Dutch
merchant vessels in time of peace. Here also a ready excuse might
be found by contriving disputes about the striking of the flag. As
early as 26th January, Sir Robert Holmes sent an express to Arlington
recommending the seizure of a Dutch fleet laden with salt and wine,
which lay wind-bound at the Isle of Wight, under the convoy of three
or four States’ men-of-war. He said that in Holland there was a great
scarcity of salt, and that without it they could not carry on their
fishery or provide for their garrisons; the capture of the salt fleet
would thus overwhelm them in ruin even greater than would the loss of
their East Indian fleet. But ships were apparently not ready for this
venture--and, besides, it was not salt that Charles wanted. On 18th
February orders were sent to the Mediterranean to take and sell, or to
destroy, all Dutch shipping. On 5th March Charles wrote to the Duke
of York commanding that, as he had received many indignities from the
States-General, and his demand for reparation against one of their
subjects who refused to strike his flag remained unanswered, such
men-of-war as were ready at Portsmouth should immediately put to sea
and seize and bring into port, with their cargoes intact, any Dutch
vessels they met with, and destroy those that resisted. Another royal
command on the following day included Hamburg vessels in the piratical
order, since Dutch ships often sailed under that flag; and in this
missive, as a sort of moral salve, the king announced that he had
resolved to make war on the States-General.

The first capture was made on 8th March, and when Boreel demanded
restitution, he was told, boldly but incautiously, that the Dutch ships
would be seized everywhere. The Cadiz fleet returning to the United
Provinces had a very narrow escape, having passed up Channel on the day
Holmes received his instructions. On the next day, 13th March, off the
Isle of Wight, he fell in with the Smyrna fleet of fifty-six merchant
vessels returning home from the Mediterranean with rich cargoes of
silks, plate, cochineal, gums, &c., estimated to be worth over a
million pounds. It was upon this fleet that Charles had been counting.
Eleven States’ men-of-war acted as convoy to the merchantmen, many of
which were also heavily armed as fighting ships. To deal with this
formidable force Holmes at first had only five ships, having failed to
effect a junction with Spragge’s squadron, from the selfish design,
it was alleged, of keeping the prize-money among as few as possible.
The Dutch fleet, which had been warned of their danger by Boreel, were
on the alert. On the approach of the English the armed vessels moved
into line to protect the defenceless merchantmen. Lord Ossory, in the
_Resolution_, bore up to the Dutch vice-admiral and gave him a “warning
piece” to strike his flag, and as he took no notice of it, Ossory
gave him another and “placed it in him.” Sir Robert Holmes, in the _St
Michael_, treated Captain Adrian de Haas, who commanded the convoy, in
the same way, and when the latter sent his lieutenant on board the _St
Michael_ to ascertain the cause of shooting, he was promptly clapped
into the hold, “having, it seems,” as the English official account
says, “given some saucy language to Sir Robert.”[890] The _St Michael_
then poured in a broadside and the fight began. It continued until
night, and was resumed on the following day, when Holmes was reinforced
by three other ships, and on the day after that, as the Dutch fleet
made its way up the Channel, defending itself with the greatest valour.
The English were hopelessly outnumbered. They sank one Dutch man-of-war
and captured another, with four or five of the merchant vessels, but
all the others safely reached port. The English ships which were beaten
off were so terribly battered and cut up that they could scarcely make
their way back to the Downs. On the _St Michael_ alone thirty-four men
were killed and fifty-six wounded, as well as “a great many” missing.

Charles was deeply disappointed at losing the booty on which he
had calculated. He was further annoyed when he found he could not
confiscate the whole of the cargoes actually taken, and which Holmes
with vainglorious exaggeration boasted “would give him credit for
£200,000 at least.” When the question came to be decided whether the
captured ships were lawfully good prize, Holmes and his officers
showed the greatest reluctance to be examined. Included in the cargoes
were goods belonging to Spaniards and subjects of other nations, but
notwithstanding this the Council wished to confiscate everything.
Sir Leoline Jenkins, Judge of the High Court of Admiralty, opposed
this design with great energy. The confiscation of Dutch ships and
property in time of peace might be colourably made under the pretence
that the owners refused to strike their flag and were the aggressors.
But to condemn neutral goods on board as lawful prize would be, Sir
Leoline said, to introduce “a new law of war, not so honourable for
us to endure from others when his Majesty shall be at peace and his
neighbours at war.” He declared that no hostile act of the Dutch,
supposing them the aggressors, could involve a stranger not party to
it, before a public declaration of war; and as he threatened to resign
his office if the course was persisted in, the Council gave way, and
restitution was made of the property of neutrals.[891]

The iniquity of this shameful and deliberate attack on Dutch shipping
in time of peace was not extenuated or obscured by the plea of the
English Ministry that it had been caused by the obstinacy of the Dutch
in refusing to strike the flag. The opinion of Europe was expressed in
the remark of a French diplomatist at one of the German Courts, that
“when the king, his master, made war on the States-General, he would
not do so like a pirate.” An immediate result of the onslaught on the
Smyrna fleet was to convince not only the States-General, but the
French Court, that Charles was in earnest, and the formal declaration
of war could not be longer delayed. On 17th March 1672, the day after
Churchill brought the tidings to London, an Order in Council was issued
to print and publish the declaration of war against the States-General.
In this long, verbose, and rhetorical document of eight pages Charles
tried hard to justify his flagrant violation of treaties. The real
reason of the war could not be avowed, but every complaint that had
at any time been levelled against the Dutch was now dragged forth,
accusation being piled on accusation. The accumulated charges connected
with the East Indies, the West Indies, and Surinam were revived and
aggravated; the safety of trade, upon which the wealth and prosperity
of the English people depended, was in danger; the king and nation were
declared to have been insulted by lampoons and caricatures. But, as
was to be expected from the antecedents, a principal ground of rupture
was found in the flouting by the Dutch of the right of England to the
honour of the flag and the sovereignty of the sea. “The right of the
flag,” the king declared, “is so ancient that it was one of the first
prerogatives of our royal predecessors, and ought to be the last from
which this kingdom should ever depart. It was never questioned, and
it was expressly acknowledged in the treaty of Breda; and yet this
last summer it was not only violated by their commanders at sea, and
that violation afterwards justified at The Hague, but it was also
represented by them in most Courts of Christendom as ridiculous for us
to demand. An ungrateful insolence! That they should contend with us
about the dominion of these seas, who, even in the reign of our royal
father, thought it an obligation to be permitted to fish in them,
by taking of licenses and for a tribute.” Notwithstanding all these
provocations, the king continued, he had patiently waited expecting
satisfaction. To the memorials sent to them they had at last replied to
this effect: “That in this conjuncture they would condescend to strike
to us, if we would assist them against the French; but upon condition
that it should never be taken for a precedent hereafter to their
prejudice.” The concluding negotiations were mendaciously summarised by
saying that after the return of Downing the States-General sent over an
extraordinary ambassador, who declared he could give no satisfaction
till he had consulted his masters. “Wherefore,” said the king,
“despairing now of any good effect of further treaty, we are compelled
to take up arms in defence of an ancient prerogative of our crown, and
the glory and safety of our kingdoms.”

Louis’ declaration of war, of fewer words and greater dignity,
followed; arrangements were completed for the union of the English and
French fleets, and no difficulty was made about the salute. Charles,
while taking so high and imperial a tone in the declaration of war
about the ancient and sacred rights of the English flag, immediately
relinquished them to his royal ally and paymaster. For the first time
in history the French fleet was put on an equality with the English
in the British seas. Orders were issued that if an English squadron
under a vice-admiral was sent to the Mediterranean to be commanded by a
French admiral, the latter was to be saluted in the same manner as he
was saluted by French vice-admirals. When an English frigate was sent
to Brest with a despatch for the Comte d’Estrées, the Vice-Admiral of
France, it was ordered if it met the French squadron appointed to join
the English fleet to salute them as if they were English ships, and
to treat the French Vice-Admiral as if he were English. Charles sent
similar commands to the Governors of Portsmouth, Dartmouth, Dover,
and other places--that the French ships were to be saluted as if they
were English. Thus not only in the Mediterranean, but in the Channel
and in English ports, the English flag was to be lowered to that of
France--a proposition that might have made the old sea-dogs turn in
their graves.[892]

The junction of the allied fleets was followed, on 28th May, by the
fierce and sanguinary battle of Solebay. The victory was indecisive,
but the advantage lay rather with the Dutch. De Ruyter withdrew to his
own coast, and the English were too much crippled to follow.[893] No
other great sea-fight took place in 1672, but in September Sir Edward
Spragge employed his squadron against the Dutch fishermen. Just before
the declaration of war the States-General laid an embargo on their
fishing vessels; but they removed it in September,[894] and towards the
end of the month it was reported that a hundred Dutch busses, convoyed
by twenty frigates, were fishing off the Norfolk coast. On the 22nd
Spragge’s squadron, showing no colours, appeared off Yarmouth, and
greatly frightened the English herring fishermen, who thought the Dutch
fleet was upon them. By noon on the 24th he had captured eleven Dutch
doggers and 117 prisoners; two of the doggers had licenses from the
English Government, and were released later. By the end of the month
the prizes numbered about thirty doggers, one buss, and a privateer,
with over 300 prisoners,--not a very large haul,--while about 200
others had been chased home, and many nets, which the fishermen had
cut and left in the water, were destroyed. Spragge having thus, as he
reported, “cleared these seas of fishermen except our own,” returned to
the Thames.[895]

While the Dutch maintained the contest at sea with honour and success,
they were overwhelmed on land. A great French army, under Turenne,
Condé, and other celebrated generals of the age, poured into the
Provinces. Town after town, fortress after fortress, surrendered to
the invaders, and the Prince of Orange, with the remnant of his small
army, retired into Holland. It seemed inevitable that the Republic,
contending with the two most powerful states in Europe and bereft of
allies,--for Sweden as well as England had been detached from the
triple league,--would soon be subjugated. The States-General, in
despair, sued for peace. Two ambassadors were sent to Louis and two
to Charles. Louis offered them impossible terms, and allowed ten days
for acceptance or rejection. Charles refused to see them at all, but
sent them to Hampton Court along with Boreel, who had not yet left
England; and there they remained for some weeks carrying on a sort of
backstairs negotiation. Then the king, fearing they might intrigue
with his own subjects, who were in sympathy with them, dismissed them
early in August. But becoming apprehensive at the unexpected rapidity
of the French conquests, he despatched the Duke of Buckingham and
Lord Arlington, and soon also Viscount Halifax, to negotiate anew
with Louis, and to inform him of the overtures for peace from the
States-General. On their way they passed through Holland, where they
had several interviews with the Dutch Government and the Prince of
Orange. After renewing the league with Louis at Utrecht, and agreeing
that neither king should conclude peace except with the consent of
the other, the conditions on which Charles was willing to make peace
were formulated. The States were asked to undertake, on demand, to
banish perpetually any person guilty of treason against the king, or of
writing seditious libels; to pay £1,000,000 sterling towards the cost
of the war; to invest the Prince of Orange with the sovereignty of the
United Provinces, or at least to confer upon him the highest offices;
and to surrender as security to the king Walcheren, the city and castle
of Sluys, as well as the isles of Cadsand, Goeree, and Voorne. With
regard to the sovereignty of the sea, they were to yield the honour
of the flag without the least reserve or hesitation, so that whole
fleets were to lower their top-sails and strike their flags to a single
English ship carrying the king’s flag, in any part of the British sea
up to the coasts of the United Provinces. The States-General were,
moreover, to agree to pay to the King of England, for ever, the sum of
£10,000 a-year for permission which the king would grant them to fish
for herrings on the coasts of England, Scotland, and Ireland.[896]

The demands of Louis were even more oppressive to the Dutch, and
threatened them in what they held most dear--their religious liberty,
for the sake of which they had formerly fought so long and so
heroically against the tyranny of Spain.

In this crisis of their history despair and fury seized upon the
people. The Ministers were blamed for the misfortunes of the country;
a popular tumult burst forth in favour of the Prince of Orange; and
John de Witt, the clear-eyed statesman who had so long held the helm
and steered the Republic through so many dangers and difficulties, was
foully murdered in circumstances of great brutality--a fate which his
brother shared. The young Prince infused his own invincible spirit into
the people. The terms of peace were rejected, and a supreme effort was
made to save the country by the method which had been adopted against
Alva and Requesens just a century before: the dykes were opened and the
land laid under water, causing the enemy to retreat. The steadfast
courage of the Prince of Orange and the growing alarm at the designs of
France at last brought allies to the States. Spain and both branches
of the house of Austria espoused their cause, and German troops came
marching to the Rhine.

But the ally on which the Dutch most relied was the Parliament of
England. It had now been prorogued for nearly two years, and Charles
was at last forced to summon it by his need of money to carry on the
war. When it met, the members were told by the king that he had been
forced into a war which was just and necessary both for the honour and
the interest of the nation, and he referred them to his declaration,
in which the reasons were given. He also defended the Declaration of
Indulgence to dissenters, which had been designed to favour the Roman
Catholics, and about which the country was greatly agitated. The Earl
of Shaftesbury, as Chancellor, enlarged on the same themes. Against the
Dutch he levelled such charges as were contained in the declaration
of war. They had broken treaties about the East Indies and Surinam,
“and at last,” he exclaimed, “they came to that height of insolence,
as to deny the honour and right of the flag, though an undoubted jewel
of this crown, never to be parted with; and by them particularly
owned in the late treaty of Breda and never contested in any age.” He
accused them of disputing the king’s title to it in all the Courts of
Christendom, and of having made great offers to the King of France if
he would stand by them against England. They were branded as the common
enemy to all monarchies, and especially to that of England, “their only
competitor for trade and power at sea,” who alone stood in their way to
a universal empire as great as Rome. They had, he said, slighted all
negotiations and refused all cessation of hostilities; and the king,
he claimed, in entering on the war had only carried out the maxims of
the Parliament which had advised the last war, and had then judged it
necessary to extirpate the Dutch, laying it down as an eternal maxim,
“_delenda est Carthago_, that government is to be brought down.” The
Parliament was then asked to vote further supplies.

At first, while avoiding the least approbation of the war,
Parliament passed a resolution that they would grant eighteen
months’ assessments, at the rate of £70,000 a-month, for the king’s
“extraordinary occasions”; but this was designed merely to allow them
time to deal with the Declaration of Indulgence before Charles could
afford to dismiss them. The contest with the king on this question
ended in victory for the Parliament, which then passed the Test Act,
disqualifying Catholics for all offices under the crown. The king was
still resolved to pursue the war. The money voted by Parliament served
to equip a fleet; and as the Duke of York was made ineligible owing to
the Test Act, Prince Rupert took his place as admiral. In May 1673 the
combined naval forces of France and England sought out De Ruyter on his
own coast, and three battles were fought in the summer,--on 28th May,
4th June, and 11th August,--both sides claiming victory; but the Dutch
prevented the projected landing of English troops, and compelled the
allies to retire to their own coasts.[897]

By this time, however, the king saw he could not with safety continue
to carry on the war much longer. Spain, which had already declared
war against France, threatened to do the same against England unless
peace was made, and this would destroy the lucrative English trade
with that country. The war was intensely unpopular in England, and the
seamen fought without heart. The timid conduct of the French squadrons
in the various battles excited deep and widespread resentment. It was
on all sides rumoured that Charles had sold his country in order to
carry out the selfish designs of Louis. The subsidies, moreover, were
soon exhausted, and it would be necessary to ask Parliament again for
more money. It was clear that the appeal which Charles had made to
the spirit or vanity of the nation with respect to the honour of the
flag and the sovereignty of the sea had thoroughly failed, although
inspired and mercenary pens did what they could to arouse enthusiasm.
These efforts were indeed a measure of the unpopularity of the third
Dutch war. Before it broke out certain authors had handled the theme.
The learned Prynne, who lost his ears for opposing Charles I., became
a subservient supporter of his son; and, as Keeper of the Records
in the Tower, he published an erudite, but confused, book in which
the absolute right of the King of England to the dominion of the
surrounding seas was maintained.[898] In a very different kind of book,
one Captain John Smith repeated current arguments and misstatements on
the same topic, especially with reference to the fisheries, for he had
been one of the agents of the Fishery Society of Charles I. He makes a
statement that must have caused the king, if he saw it, some surprise
at his modesty in asking only £10,000 or £12,000 from the Dutch. He
had heard, he says, that the “composition” of the Hollanders for leave
to fish on our coasts was an annual rent of £100,000 and £100,000
“in hand”; and as none of it had been paid into the Exchequer, he
computed the arrears then to be over £2,500,000, a sum which, he very
truly remarked,--and it is the sole truth in the statement,--“would
come very happily for the present occasions of his Majesty.” Like
many others before him and after him, he advocated the building of a
fleet of busses and the prohibition of the Hollanders from fishing in
the British seas.[899] Still other writers laid stress on the close
connection between the sovereignty of the sea and trade, commerce, and
navigation;[900] and after the war broke out more pointed attacks were
made against the Dutch. They were accused of invading our fisheries
without license from the king, refusing to strike sail, disputing our
dominion of the seas, and by artifice supplanting us in trade and
commerce.[901]

None of those works was of much account, and the Ministry felt the need
of obtaining the services of an able writer to stimulate ill-feeling
against the Dutch, and in particular to answer a well-reasoned pamphlet
which the Dutch had widely circulated in refutation of the reasons for
the war given in the king’s declaration. The States-General did not
reply to that document, but Wicquefort did so in the pamphlet referred
to, which was entitled “Considerations on the Present State of the
United Netherlands.” The tone of his reply was extremely temperate.
The writer insisted on the difference between the striking of the flag
and the sovereignty of the sea; the former was merely a ceremony of
respect which all republics paid to monarchies, and not in the least
a sign of subjection or an acknowledgment of sovereignty, and as such
it had been regulated in the treaty of Breda. The States had always
resisted the claim that a whole fleet of theirs should strike to a
single English ship. In 1654 Cromwell had abandoned a similar claim
on their objecting; and as the article in the treaty of Breda was the
same as the one agreed to in 1654, it was unjust to construe it now in
the sense of the article which Cromwell had withdrawn. On that ground
alone, therefore, it could not be maintained that Van Ghent and the
whole Dutch fleet were bound to strike to the king’s yacht. Moreover,
the article applied only to the British seas, and the writer argued
that that meant the Channel and not the North Sea, citing the seventh
article of the treaty of Breda as to the cessation of hostilities.
Since the Dutch fleet were lying at anchor off their own coast when
the king’s yacht passed, they were not obliged to strike, because
they were in the North Sea, and not in the British seas at all. The
conclusion was drawn, and as we have seen justly, that the king had
sent his yacht for the deliberate purpose of getting a ground of
quarrel. As for the sovereignty of the sea, the States attributed to
God alone such dominion as the king usurped to himself. They therefore
refused Downing’s demands, which had been put forward to give the king
a pretext for war. To admit them would ruin the United Provinces, which
lived by commerce and the liberty of the sea. As for the fisheries,
they had never asked for permission to fish from the King of England;
and though in 1636 licenses were forced upon some of their defenceless
fishermen by English men-of-war, that was an act of violence from which
no right or title could be derived, and the attempt was relinquished at
the demand of the States-General, and had not been repeated.

The cogent arguments of the Dutch writer were well fitted to
confirm the general opinion in England as to the cause of the war,
and the Court promptly secured the services of Henry Stubbe, a
clever, versatile, and prolific writer, to refute them. His answer
to Wicquefort was considered by the private committee on 15th
May 1672,[902] and it was published anonymously in the following
month.[903] The spirit in which Stubbe entered into his task is
revealed in a letter he wrote to Secretary Williamson. “The rule I go
by,” he said, “is this: that no nation is more zealous for their honour
than the English; that if they are put into a great passion they forget
their particular interests and animosities.”[904] He therefore tried as
much as he could to inflame the public mind.

The _Justification_, though rabid in tone, is in many respects an able
book. It differs from many of the controversial works of the day in
that the author, however oblique may be his inferences from them, does
not, so far as we have observed, pervert and misquote the documents
he cites. It is unnecessary to particularise his arguments on the
sovereignty of the sea. They were drawn mainly from Selden, Welwood,
and other authors, and partly from certain State Papers which the
Ministry placed at his disposal. The striking of the flag by foreigners
was, of course, declared to be a regality, and “paramount to all
treaties”; it was a “fundamental of the crown and dignity of the King
of England.” The attack on the Smyrna fleet, which Wicquefort denounced
and made the most of, was justified by their refusal to strike their
flags, the instructions issued to the admirals of England for four
hundred years compelling them to seize all ships which refused. The
universal dominion which the king possessed over the British seas was
thus formulated: (1) the regality of fishing for pearl, coral, amber
(!), &c., and the “direction and disposal” of all fishes “as they
shall seem to deserve the regards of the public”--a somewhat cryptic
claim; (2) the prescribing of the laws of navigation to foreigners as
well as to the king’s own subjects; (3) the power of imposing customs
and taxes upon those navigating or fishing in them; (4) jurisdiction
in regard to maritime delinquencies; (5) the duty of foreign ships to
strike their flags and lower their top-sails to the king’s “floating
castles,” the ships of war, by which “submission they are put in
remembrance that they have come into a territory wherein they are
to own a sovereign power and jurisdiction, and receive protection
from it.” It was admitted that the sea was free for commerce and
innocent passage; but both might be refused if there was suspicion of
danger, and that the imposition of tribute for fishing, convoy, or
the maintenance of lights and beacons did not infringe the liberty of
commerce.

The work appears to have pleased his employers, for immediately after
its publication Stubbe began the composition of another on the same
lines--to vindicate the “honour” of his Majesty and the kingdom. In
this he wished very much to deal with the lampoons and “scandalous
pictures” circulated in Holland, “thereby to raise a due passion and
resentment in the English,” especially one which represented the
English ambassadors at Breda kneeling in supplication to their High
Mightinesses the States-General; and Sir Joseph Williamson, who was
then in Holland with Buckingham and Arlington, was asked to bring over
specimens of these. He told Williamson that in his new work, which he
proposed to entitle “An Apology for the King’s Majesty’s Declaration,
By an Old Commonwealth Man,” he would represent to the English people
his Majesty’s “generous concern for his subjects’ welfare and trade,”
and his admirable prudence in the noble conduct of affairs; he would
excuse his stop of the Exchequer and the Declaration of Indulgence,
and descant upon the growth of the Dutch by contumelies to the king
and nation. Stubbe was also anxious to obtain, besides the pictures
and medals, a manuscript book which he had seen, containing an account
of the transactions between the Dutch and the Commonwealth. This was
in the possession of Thurloe, who had been Secretary under Cromwell,
and he refused to produce it, until a warrant issued by Lord Clifford
compelled him to give it up.[905]

The second work was published in 1673, and Stubbe did all that
he promised to do, copiously illustrating it with figures of the
objectionable medals and pictures, and greatly abusing the Dutch.[906]

But all such efforts to stir up animosity against the Dutch and
to convince the public and Parliament of the justness of the war
completely failed, and Charles was forced to enter into negotiations
for peace. Immediately after the battle of the Texel, in August
1673, a congress of the Powers which had assembled at Cologne began
its deliberations to arrange terms of peace, under the mediation of
Sweden. The English plenipotentiaries were Sir Leoline Jenkins and
Sir Joseph Williamson, and the instructions given to them by Charles
included the following:--“The principal points we shall insist upon,”
said the king, “beyond the particular ones relating to general amity,
commerce, &c., are these following: _First_, To have the honour for
the future paid to the flagg of England, which hath been practised and
acknowledged by them in all former times. _Secondly_, A million of
pounds sterling to reimburse us in some part the expenses we have been
at in making the war. _Thirdly_, Ten thousand pounds per annum as an
honorary acknowledgment for the great benefit that Republic reaps for
the fishing on our coasts, and two thousand pounds more for the like
liberty they enjoy upon the coast of our kingdom of Scotland.”[907]

The terms of peace now offered, it will be observed, were much less
exacting than those demanded in the previous year, and the request for
an express acknowledgment of the king’s sovereignty of the sea was
dropped. The Dutch plenipotentiaries at the outset of the proceedings
said little difficulty would be raised about the question of the
flag, but they demurred to the demand to pay tribute for liberty of
fishing.[908] This thorny subject was threshed out on either side
with all the old arguments which were used in the times of James and
Cromwell. The Dutch pled possession, prescription, treaties; the
English replied that the treaties had expired in subsequent wars, and
were abrogated by the separation of the Provinces from the House of
Burgundy, with whom the treaties were made. A new point was raised to
show that no right could now be claimed under the Burgundy treaties.
If they were still in force, why had the citizens of Bruges in the
Spanish Netherlands, subjects of the King of Spain, who was the
successor and descendant of the Dukes of Burgundy, and the very people
in whose favour the Magnus Intercursus was made, petitioned the King of
England as lately as 1666 for a license to fish in the British seas,
a privilege which had been granted to them?[909] To this the Dutch
replied that the right to the fishery did not spring from the treaty
of 1495, which had been made merely to avoid contests that previously
occurred. As the result of conferences with the Dutch representatives,
the Swedish mediators informed Jenkins and Williamson that the
States-General would not consent to an annual payment for the right
of fishery, but they suggested, as the Prince of Orange had done once
before, that the matter might be compromised by the payment of a lump
sum. Charles declined this proposal, but he reduced the amount of the
yearly payment he asked by half--to £5000 for the English fishery and
£1000 for the Scottish. The conference was at the same time informed
that it was then, and always would be, the “passion” both of king and
subject in England to assert and preserve the great royalty of the
fishery.

Since the Dutch would not agree to the payment of an annual tribute for
the liberty to fish, and Charles would not agree to a lump sum, the
mediator suggested that the Dutch might be asked for a small yearly
payment for the privilege of drying their nets on shore. This ingenious
device roused the suspicions of the English delegates, who feared the
tabling of a clause which would represent the tribute as for the use
of the land and not for the liberty of fishing. Charles agreed with
them in refusing the compromise, telling them that the article about
the fishing was “to be barely and solely for the liberty of fishing on
his Majesty’s coasts,” and was not to be mixed up with any question of
drying nets. They were also told to make it clear that his license was
to be a “successive permission” only, from his Majesty to the Dutch,
for liberty to fish, and to take care, not to part wholly with his
right in the fishery to them. By an arrangement of this nature Charles
and his successors would have been free to follow the example of the
kings of Denmark in dealing with the dues at the Sound--that is, in
gradually raising the amount.[910]

Passing from this subject to the question of the flag, it was soon
apparent that the Dutch had been too sanguine in thinking there would
be little difficulty in dealing with it. The mediators, in drawing up
a protocol of the English demands, had modified the article put in
concerning the flag. The English had confined themselves to the bare
words “the right of the flag” (“le droit du pavillon”), to which the
Swedes added, “in the manner your Excellencies (the Dutch ambassadors)
projected.” The Dutch, in short, had expanded the meaning of the
nineteenth article of the treaty of Breda so as to omit the troublesome
and objectionable words “the British seas,” their proposed article
being “that ships of the United Provinces meeting British ships _at
sea_ should lower the top-sail and the flag, in such manner as the same
had ever been previously observed.” Jenkins and Williamson strongly
opposed the omission of the phrase “the British seas.” They declared
that the King of England had a special right and immemorial prerogative
in those particular seas, but if he grasped at the same honour in
all places, not only the Dutch but all the world besides would have
reason to dispute it with him. They said further that the king wished
that yachts, by name, and all vessels whatsoever in his service and
carrying his colours, flag, or jack, should have the same honour paid
to them. They also objected to the clause “in such manner as,” &c., as
being vague and open to misunderstanding, and insisted that it should
be set down clearly what the Dutch were to do and how they were to
do it in the future. They wished, in short, to bind the Dutch by an
express stipulation to the view that the meaning of the clause in the
previous treaties was that whole fleets should strike to any single
vessel in the king’s service in the British seas, while leaving “the
British seas” undetermined; and they tabled an article to that effect.
Both the Dutch and the mediators objected to this clause as asserting
positively that to have been the custom in former times, and saying
that to admit it would be to condemn themselves in what they had done
in regard to the _Merlin_. They were quite willing, they said, to do
the thing for the future, but it was unreasonable to ask them to avow
so openly that they had been in the wrong in not doing it hitherto. To
this the English replied that it was most certainly and notoriously an
ancient right of the crown of England, of which they had proofs in all
ages, and that to omit the words would be to accept of the ceremony as
a courtesy and not as a right.

At this stage, however, the king sent them a new article about the
flag, defining in part the limits within which the Dutch were to be
asked to strike, and these were from Cape Finisterre to the North Cape
in Norway. These surprising boundaries had been suggested a year or two
before as the limits of the British seas by the Masters of the Trinity
House (p. 478), and no doubt Charles meant them to be so considered.
They were derived primarily from Selden’s _Mare Clausum_, and the
southern limit, Cape Finisterre, had been for some time incorporated
in the Admiralty instructions.[911] The Dutch were thus to be asked to
strike to English ships along almost the whole extent of the western
coasts of Europe, a distance exceeding two thousand miles.

The English plenipotentiaries did not like this article. They informed
Lord Arlington that when they were preparing the one they had already
submitted, they had wished there had been means to ascertain the bounds
of our seas as well as there was for clearing up the point regarding
whole fleets striking to a single ship; but they had concluded that
the king and the Lords of the Committee (for foreign affairs) looked
upon it as a thing so invidious and difficult as not to be attempted
at that juncture. They explained that they would receive no assistance
from the French ambassador or the mediators, all of whom, they clearly
perceived, had difficulty in containing themselves from disputing
the right of striking at all. As long as they confined the claim to
the British seas they were not afraid of opposition, since they had
overwhelming evidence as to the usage. But if they insisted on the
limits of Cape Finisterre and the North Cape, and supported their
contention with arguments from geography or tradition, or if they were
asked to produce proofs or instances as to “the matter of fact” near
those limits, they foresaw that objections would be raised which they
were not sufficiently instructed to answer. No doubt, they continued,
it might be advantageous to fix some limits in order to lessen the
chance of disputes, but even if mathematical lines could be laid down
and agreed upon, it would not remove all ground of quarrel. Besides, to
fix definite bounds would place upon themselves a burden which properly
lay upon their adversaries; for when the king’s right of the flag was
established as incontrovertible within the British seas, if any one who
was called upon to strike declared he was not in the British seas, he
would have to prove it. This long disquisition failed to convince the
king. He insisted that the previous article, in which the term “British
seas” alone occurred, should be withdrawn and the new article with the
specified limits substituted.[912]

The influence of certain important changes in political affairs which
had taken place since the congress met now made itself strongly felt
at the deliberations. The position and the prospects of the United
Provinces had greatly improved. The States-General had succeeded in
entering into alliances with the Emperor, the King of Spain, and
the Dukes of Brandenburg and Lunenburg. In the field the movements
of the Prince of Orange and his allies caused Louis to abandon his
conquests with even greater rapidity than he had made them. The English
Parliament, too, from which the Dutch had reason to hope for much,
was about to assemble. It was thus natural that the Dutch ambassadors
and the representatives of their allies at the congress should take a
higher tone in dealing with the peace proposals. Some of the conditions
which had been put forward by France and England were now declared
to mean “utter ruin” to the Dutch, or their “eternal servitude”; and
among them was the demand of Charles for a payment for liberty of
fishing, which it was asserted would make them tributary to England.
The English plenipotentiaries employed all the arguments they could
discover in Selden’s _Mare Clausum_ and other similar works, and in
the volume of State Papers with which they were provided, to convince
the congress that fisheries might be “appropriated” on the high seas
as well as in rivers and lakes, and that the King of England had the
exclusive right to the fisheries off his own coasts. They cited the
example of Genoa with the tunny fishery, the treaties between England
and Denmark concerning the fisheries on the Norwegian coast and at
Iceland, the licenses of the kings of Denmark, the English licenses
to French fishermen and the grant to Bruges, the Act of Richard II.,
and the licenses forced by the Earl of Northumberland on the Hollander
busses in 1636. They even displayed the original documents showing
King James’s expostulations with the Dutch in 1618, and the charter
granted to Bruges. It was all in vain. The times had changed. The
Dutch ambassadors could now afford to pass the matter off with a
raillery. They told Jenkins and Williamson that they “would bait the
herrings, as men do carps, to come and feed upon their coasts, and
then they would be in possession of a liberty to fish”; adding that
they would then allow the English to fish upon the Dutch coast without
fear of molestation. More seriously, they said that since no similar
stipulation had been allowed in any previous treaty, the States-General
trusted to the goodness of the king to pass over the article on that
occasion; and Beverning, who was one of the Dutch representatives,
recalled how he had discussed the whole matter with Cromwell in 1653,
who had withdrawn the claim to the fishery.

No one, neither the mediators nor even the French, the allies of
Charles, gave the English ambassadors any encouragement to insist on
the fishery article; and finally De Groot informed them, in language
more forcible than elegant, that his countrymen would rather “burst”
than submit to any acknowledgment in that matter, and that he believed
the States would sooner forbid their subjects to fish at all than to
ask leave to do so of the crown of England.

The English ambassadors were forced to tell the king that they had no
hope of obtaining consent to the article about the fishery, unless
indeed the Parliament (which had by this time strongly and boldly
shown its sympathy with Holland) “should happen to stand vigorously
by his Majesty in this demand which he is pleased to make.” They
suggested--almost, one may think, with a touch of irony--that the Dutch
might be offered, as an alternative, “a Bill,” like the proclamation
of James in 1609, or the Act of 2 Richard II. that laid an impost of
sixpence a ton on our own fishing vessels, “wherein,” they added, “if
strangers be not intended (as we humbly conceive they are), they may be
more expressly taken in.”[913]

Although it was on the fishery article that the negotiations stuck
most, difficulties also continued to arise about the one on the flag.
The Dutch said they were willing to do anything that had been done in
former times by way of respect to the crown of England; they could not
do it as a right, nor could they do anything that might be construed
to be an acknowledgment of the king’s claim to the dominion of the
British seas. They were unable to admit, without proof, that it was
the former practice for a whole fleet of theirs to strike to a single
English ship; and while again affirming their willingness for this
to be done in future, they declined to make any express recognition
of it as a right in the treaty, saying that it would be “abundant
courtesy” if they admitted the words _Maria Britannica_, as in all
their other treaties; it was a term, moreover, which the French could
not be brought to admit into their treaty of Breda, insisting on the
term _maria proxima_ instead. The English representatives would not
condescend to adduce proofs as to the past usage. The king, they
said, would not allow an observance so ancient and notorious to be
questioned as a matter of fact, any more than that England was an
ancient monarchy; and they did not ask for a fuller stipulation than
in the article proposed by Cromwell. On the other side, it was pointed
out that Cromwell had given up all the points raised, especially the
striking of a whole fleet; and, moreover, they could not allow that
all the tract of sea between the North Cape and Cape Finisterre was
the British Ocean, and they hinted they were willing to strike all the
world over without any limitation of places. The English ambassadors
wrote to Arlington that although they had not been instructed to claim
as British the sea between the limits named, yet, if these limits were
adhered to, the Dutch would not fail to alarm the Dane and the Swede,
the French and the Spaniard. They were justly suspicious of the too
generous offer of the Dutch to strike in all seas. They saw in it the
design to make the special right possessed in the British seas, in
virtue of the king’s sovereignty there, less certain and evident in
future ages, and to transform it into a mere mark of civility. Charles
gave way to a slight degree. In February 1674 he sent on another
article, in which the northern limit was brought down from the North
Cape to the middle point of the Land-van-Staten in Norway.[914]

By this time, however, negotiations for a separate peace between
England and the United Provinces had been begun in London, and the
sluggish congress at Cologne, slowly evolving a general peace, broke up
and dispersed. Charles was driven to negotiate separately by the action
of the Parliament, which financial necessities had forced him to summon
in October, and which lost little time in showing its ill-humour with
his policy. In his opening speech he stated that he had hoped to be
able to announce the conclusion of an honourable peace, but the Dutch,
he said, had treated his ambassadors at Cologne “with the contempt
of conquerors,” and had other thoughts than peace; and he asked for
supplies. Shaftesbury, as usual, filled in the picture. The king, he
said, had expected to meet them with the olive-branch of peace, but
the obstinacy of the Dutch had foiled the negotiations, although his
Majesty’s concessions had been so great. “He could not,” he continued,
“be King of Great Britain without securing the dominion and propert