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

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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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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

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 property
of his own seas: the first, by an article clear, and not elusory, of
the flag; the other, by an article that preserved the right of the
fishing, but gave the Dutch permission, as tenants, under a small
rent, to enjoy and continue that gainful trade upon his coasts.” But
the Dutch, he said, would not agree to any article on the flag that
was clear or plain, and they refused any article about the fishery
except such a one as might convey to them the right of inheritance for
an inconsiderable sum of money, “though it be a Royalty so inherent
in the crown of England, that I may say (with his Majesty’s pardon
for the expression) he cannot sell it.” “There is not,” continued the
Chancellor, “so lawful or commendable a jealousy in the world, as an
Englishman’s of the growing greatness of any Prince at sea. If you
permit the sea, our British wife, to be ravished, an eternal mark of
infamy will stick upon us.” It was therefore the duty of Parliament to
provide the king with more money.[915]

Parliament was not to be cozened by fair words or beguiled by the
oratorical tropes of Shaftesbury. The Commons boldly affirmed they
would vote no more money unless it appeared that the Dutch were so
obstinate as to refuse all reasonable conditions of peace; and with
regard to other matters they showed a bellicose spirit. The king
resolved to prorogue them suddenly, and went unexpectedly to the House
of Peers and sent for the Commons. When Black Rod approached to summon
them the door was hastily closed, the Speaker was hurried into the
chair, and the following motions were instantly put: that the alliance
with France was a grievance; that the evil counsellors about the king
were a grievance; that the Duke of Lauderdale was a grievance and not
fit to be trusted or employed. Before the motions could be passed,
Black Rod, knocking loudly in the king’s name, was admitted, and the
House rose in confusion. A scene so reminiscent of the days of his
father could hardly be lost on Charles. It was clear that it would be
impossible to continue the Dutch war if its continuance depended on
Parliament voting money for it.

Shortly afterwards the king found it necessary to summon Parliament
again, and, changing his attitude, he condescended to submit to
them, for their opinion, certain propositions for peace which the
States-General had communicated through the Spanish ambassador. At the
same time he sent privately for John Evelyn, who had been for some
time engaged on a history of the second Dutch war, and asked him to
write something “against the Hollanders about the duty of the flag and
fishery,” no doubt with the intention and object of influencing the
opinion of Parliament.[916] Parliament acted with promptitude. They
passed a resolution, on 27th January 1674, recommending the king to
make a speedy peace. Louis, who saw how things were tending with the
Parliament, having advised the same course, Sir William Temple was
summoned from his orchards a few days later and requested to proceed
to The Hague to conclude the treaty. On the eve of his departure,
the Marquis de Frezno, the Spanish ambassador, announced that he had
received full powers from the States to treat and conclude a peace. The
negotiations were thereupon conducted in London between Sir William
Temple and the Marquis, and they went on so smoothly and speedily that
the treaty was signed at Westminster on 9th February. The two points
that caused the greatest difficulty were the flag and the recalling of
the English troops from the French service: the claim for tribute for
liberty to fish was dropped altogether.[917]

The article relating to the flag differed from the corresponding
articles in the previous treaties. It was as follows:--

“The said States-General of the United Provinces, duly acknowledging,
on their part, the right of the above-mentioned most serene prince,
the King of Great Britain, to have honour paid to his flag in the seas
to be hereafter named, will and do declare and agree, that all and
singular the ships and vessels belonging to the said United Provinces,
whether ships of war or others, whether single ships or in squadrons,
which shall meet with any ships or vessels whatsoever belonging to the
most serene prince, the King of Great Britain, whether one or more,
carrying his Britannic Majesty’s ensign, or flag called the _Jack_,
in any of the seas from the Cape called _Finisterre_, to the middle
point of the land called _van Staten_, in Norway, the foresaid ships or
vessels of the United Provinces shall strike their flag and lower their
topsail, in the same manner and with the like testimony of respect, as
hath been customary in any time or place heretofore, by any ships of
the States-General or their predecessors to any ships of his Britannic
Majesty or his predecessors.”[918]

* * * * *

Most writers who have dealt with the subject have followed Temple in
thinking that this article was a great triumph for English diplomacy.
“The point of the flag,” said Temple, “was carried to all the height
his Majesty could wish; and thereby a claim of the crown, the
acknowledgment of its dominion in the narrow seas, allowed by treaty
from the most powerful of our neighbours at sea, which had never yet
been yielded to by the weakest of them, that I can remember, in the
whole course of our pretence; and had served hitherto but for an
occasion of quarrel, whenever we or they had a mind to it, upon other
reasons or conjectures.”[919]

Temple’s eulogy of his own diplomacy was hardly justified. The Dutch
had offered a similar article at Cologne; the striking of the flag had
been provided for in previous treaties, and it was not in the least,
as Temple should have known well (for De Witt often told him), and as
the wording of the article shows, an acknowledgment of the dominion
of England in the narrow seas. There is nothing in the article of the
Westminster treaty that the Dutch were not perfectly willing to concede
at Cologne. It was an improvement on the arrangement in previous
treaties, inasmuch as the northern and southern limits of the seas in
which the Dutch were to strike were defined, and it was made clear that
the Dutch were to strike to a single English ship.

But in truth the real diplomatic victory lay with the Dutch. The
striking of the flag is expressly described in the article as a
ceremony of “honour” and a “testimony of respect,”-- a qualification
and attenuation not to be found in the previous treaties. By the
introduction of these words the Dutch gained a point they had long
contended for. Equally pertinent was the omission of the term “British
seas,” which is found in all the earlier treaties,--an omission for
which Charles was in part responsible. The ceremony “of respect”
was to be paid “in any of the seas” between Cape Finisterre and Van
Staten; and while the Dutch refused to consider those seas British, the
English plenipotentiaries at Cologne were unable to contend that they
were British. The limits fixed were therefore, as Sir Philip Meadows
observed, “too wide for dominion and too narrow for respect”;[920] for
we never claimed dominion in the Sea of Norway or the Bay of Biscay,
and the Dutch offered to strike to the king’s flag all over the world.
There is little doubt that the part of the article in which Charles
was most interested was that relating to the striking of a squadron to
a single ship of his, as it furnished a sort of justification for the
action of the _Merlin_ before the war. Temple himself was most anxious
that the “former custom” referred to in all the previous treaties
should be clearly defined; and Charles was entirely satisfied with the
article.[921]

Notwithstanding Temple’s satisfaction as to the article on the flag,
it did not end disputes on the subject. In the year in which the
treaty was concluded, and in the year following, several episodes
occurred. One of them concerned personages no less eminent than the
English ambassadors who had been at Cologne, and it formed a practical
commentary on the fruitless negotiations in which they had been
engaged. Sir Leoline Jenkins and Sir Joseph Williamson did not return
until after the conclusion of peace, and when the king’s yacht, the
_Cleveland_, which had been sent to bring them over, was lying at
anchor off the Briel, with Sir Leoline on board, a yacht of the States
passed between it and the shore without striking its flag or firing any
guns. When a message was sent from the _Cleveland_ to the commander of
the yacht, who was ashore, telling him he should have struck his flag,
he only shrugged his shoulders and said he had the States’ ambassadors
bound for England aboard. The _Cleveland_ then weighed anchor and went
about a league seawards, where the Dutch yacht and a man-of-war were
lying. Again no flag was lowered to the king’s yacht, and the English
captain asked Jenkins what he should do. Jenkins adduced the case of
Tromp’s striking to the Earl of Arundel in Goeree Road, and also of
Prince Maurice’s yacht, which a few days before had struck “to the
kitchen-yacht in the canal of Delf-Haven, between the houses.” The
captain then remembered that the Dutch had struck to him in that very
place as he passed up to Rotterdam, and he proceeded to take vigorous
measures to compel the “duty.” A shot was fired “under the forefoot”
of the States’ man-of-war, and after a “convenient” interval another
over his poop, and then a third between his masts. This brought a boat
from the man-of-war to say that the States’ ambassadors were “much
astonished” at the shots being fired, and that they would not strike,
as they were within their own ports. But when Sir Leoline Jenkins
sent a formal request to Van Beuningen, one of the Dutch ambassadors,
the man-of-war took in its flag, and the incident ended.[922] In the
following year Sir Leoline Jenkins was again a passenger on board one
of the royal yachts, the _Charles_; on reaching the Maes a Holland
man-of-war saluted with five guns, but kept its pennant flying, and
only took it in and repeated the guns after two shots had been fired
at it by the _Charles_; the men-of-war at the Briel also saluted with
their pennants struck.[923]

In the spring of the same year Captain Herbert in the _Cambridge_
encountered six French ships off Dungeness which refused to strike, and
returned the fire, their admiral saying it was the King of France’s
ship, and did not strike. They outsailed the _Cambridge_, said Herbert,
which was no match for them. A few weeks later a French privateer in
the same locality refused to strike to the _Garland_; and the tables
were turned on the English by a Dutch privateer, which fired on a
Whitby merchant vessel for not striking quick enough, and fined the
master six shillings and eightpence for each shot expended, as well as
beating and abusing him.[924] A case of quite a different kind, unique
indeed, as it appears, occurred at the end of 1675. On the return of
the _Quaker_ ketch to England the officers charged the commander,
Captain Joseph Harris, with having lowered his top-sails to a Spanish
man-of-war, supposed to be an Ostend privateer, in the Bay of Biscay,
to the great dishonour of the king. He was tried by a court-martial,
found guilty, and condemned to be shot to death at such time and place
as the Lords Commissioners of the Admiralty should appoint.[925] He
was, however, reprieved and then pardoned.[926]

Difficulties not infrequently occurred with merchant vessels, and even
with fishing-boats, over this matter of the flag. We find Pepys writing
to Captain Binning of the _Swan_, at Yarmouth, telling him that while
he should take care that the Dutch “do their parts of civility towards
his Majesty’s flag,” he ought not to impose upon them any “innovation,”
the reference being to the taking of twelve barrels of herrings from
each of the offenders in lieu of carrying them into port.[927] Foreign
merchant vessels, especially Spanish and French, were sometimes
brought into port and their masters tried before the High Court of
Admiralty for refusing to strike to English men-of-war. By the strict
law of the Admiralty such vessels might have been forfeited, but
this extreme course was apparently rarely or never taken, the usual
punishment inflicted being fine and imprisonment. Cases of this kind
were naturally apt to raise unpleasant questions with foreign Powers,
and they had to be dealt with cautiously. In 1675, when two Frenchmen
were brought before the court for this offence, the judge, Sir Thomas
Exton, appealed for advice to Sir Leoline Jenkins, then at the Congress
of Nimeguen, and was warned by him to be very careful how he dealt
with the case. He advised him to meddle as little as possible with the
French edicts of 1555 and 1584 (see p. 117), under which the French
Admiralty claimed similar rights, and to “stick to the terms of the
indictment of the Spanish Captain at the Old Bailey,” adding that
although much might be said plausibly on the subject of striking, that
indictment had never been attacked; and he argued against the seizure
and forfeiture of the ship.[928]

After the third Dutch war several works appeared in which the claims
of England to the salute and to the sovereignty of the sea were
maintained. It has been already mentioned that at the beginning of
1674, when the Dutch offers of peace were received in London, the
king asked Evelyn to write something against the Dutch about the
flag and fishery. As the occasion was pressing, Evelyn extracted the
introductory part of his work on the second Dutch war (a work which
was never completed), and after submitting it to the king, published
it under a rather misleading title.[929] Notwithstanding the haste
shown, the book appeared too late. Peace had been concluded, and the
Dutch ambassador complained about it to the king. Charles ordered it to
be recalled, but with characteristic artifice he instructed that the
copies which were seized publicly to pacify the ambassador should be
immediately restored to the printer, by which means the sales at least
were much increased.[930] About the book itself little need be said. It
is an ill-digested and unveracious account of England’s claim to the
sovereignty of the sea and the fishery, founded on Selden, Boroughs,
and less reputable writers. The author computed the arrears of “rent”
due by the Dutch, and which he said they had engaged to pay for
liberty of fishing, at over £500,000; and he falsified the amount of
“license-money” received by Northumberland in 1636, although the Earl’s
journals, and many other documents, were placed at his disposal. The
most severe criticism of the work was made by the author himself, in a
long and remarkable letter which he sent to Pepys a few years later, in
which he repudiated, _seriatim_, all the “evidences” he had adduced in
favour of the English pretension.[931]

Another book of more influence than Evelyn’s, because it was for a long
time considered the standard work on the maritime law of England, and
went through many editions, was published by Molloy two years later;
and in it the English pretension received perhaps its most arrogant
expression.[932] Notwithstanding the terms of the treaty of 1674, the
author declared that the striking of the flag was not a mere ceremony
of respect, but an absolute acknowledgment of England’s sovereignty
of the seas, the king granting foreigners a general license to pass
through his seas, “paying that obeisance and duty, like the services
when Lords grant out estates, reserving a rose or peppercorn, the value
of which is not regarded, but the remembrance and acknowledging their
benefactor’s right and dominion.” Molloy held that by the treaty of
1674 the dominion of the British seas was “ascertained” to extend from
Cape Finisterre to Van Staten, in Norway, and similar opinions on this
and on the subject generally were expressed by other writers on naval
matters, as by Godolphin[933] and Zouch,[934] and by most writers on
Admiralty affairs during the remainder of the century and well into the
next.

With respect to the fisheries, the failure of the previous attempt
to establish a great fishery society did not deter others from being
proposed. Efforts were indeed made throughout nearly the whole of the
reign of Charles to keep the subject alive. An elaborate report was
prepared by Dr Benjamin Worsley, who was Secretary to the Council for
Trade and Plantations, on the Dutch fisheries and the best means by
which a fishery could be established in this country with good hope of
success. He stated that the least valuation generally placed on the
Dutch herring fishery was £3,000,000, and that it was said to employ
1600 busses. Detailed reasons were given for the belief that success
would not attend any attempt to establish a great fishery in England,
unless it received the active support of the king and Parliament, and
unless we were able to undersell the Dutch in the markets, which he
thought by a change of methods we might be able to do.

Various efforts were made, openly and surreptitiously, to induce
Dutchmen to settle at Yarmouth and Dover; the king even issued a
declaration to encourage this in June 1672. But the schemes failed,
and Sir Arnold Braems suggested that £3000 of the amount expected to
be paid by the Dutch for the liberty of fishing should be devoted to
bringing over busses and men.[935] Early in 1675 a detailed scheme
was laid before Charles for the setting up of a fishery company with
forty busses and a capital of £40,000, the estimated profit in the
first year being placed at £31,463.[936] Among the objections urged to
the setting up of the fishery by the king were the want of seamen and
experienced curers; the acquaintance of the Dutch with the markets and
their spare living, which would enable them to undersell us; and the
laziness of English seamen. These objections were apparently answered
satisfactorily,[937] and in 1677 Charles issued a commission to the
Duke of York, the Earl of Danby, and others for a new society, to
be called “The Company of the Royal Fishery of England,” granting a
number of privileges and £20 per annum from the customs of the port
of London for each buss or dogger. Stock was subscribed to the amount
of about £12,500, which was spent in purchasing busses; but as they
were Dutch-built and manned by Dutchmen, the French, then at war with
the United Provinces, seized six of the seven belonging to the company
and brought the work to a stop. Although the company was reconstructed
later, and an attempt to raise £60,000 to carry it on made with some
success, the death of the king and the troubles which followed caused
the enterprise to be suspended. Thus the endeavours of Charles II. to
create a great national fishery in England were no more successful than
those of Charles I.

CHAPTER XIV.

JAMES II. AND AFTER.

In the short and troubled reign of James II. little was heard of the
claims of England to the sovereignty of the sea. Bad king as James
was, he rescued the navy from the deplorable condition into which it
had sunk in the later years of Charles,--of which Pepys has left so
graphic a picture,[938]--and the naval officers continued to enforce
the routine duty of the flag; but the domestic troubles with which
he was surrounded prevented him from turning it to account against
any of his neighbours, even if he had been so inclined. And with the
Revolution of 1688 the whole aspect of the question was changed. The
English pretension, as we have seen, had been specially directed
against the United Provinces, but when the Prince of Orange was called
to the English throne as William III., and was thus the ruler in both
countries, it was not to be expected that he would show much zeal in
continuing the policy of the Stuarts against his own countrymen.

It is true that in the treaty which was concluded between England and
the Dutch Republic in 1689, the article on the flag in the treaty
of Westminster was repeated and confirmed. This, however, was very
much a matter of routine and formality, though it must be said the
Dutch ambassadors in London complained that William was as obstinate
and punctilious about the question of the flag as any purely English
sovereign could have been.[939] But from this time until well on in the
next century England and the United Provinces were united as allies
in the great wars with France. There was thus little room for serious
disputes with them about the flag, the right to the herring fishery,
or the sovereignty of the sea, even if the desire had existed. Against
France, however, William made use of the customary language as to the
English sovereignty of the sea. In the spring of 1689, after William
had been proclaimed King of England, Louis XIV. foresaw the formidable
coalition that would be formed against him, and he boldly issued what
was virtually a challenge to England on the subject. He published an
ordinance on 15th April in which he not only prohibited his officers
from giving the first salute to ships of other nations carrying flags
of equal rank to their own, but ordered them to demand the salute from
foreign vessels on whatever seas or coasts they might encounter them,
and to compel them by force if they refused.[940] That this challenge
of Louis to dispute the sovereignty of the sea was not too presumptuous
was shown in the following year, when the combined fleets of England
and Holland were defeated by the French off Beachy Head. In the
declaration of war against France, in May 1689, the ordinance of Louis
was made one of the reasons for hostilities. “The right of the flag,”
said William, “inherent in the crown of England, has been disputed by
his orders, in violation of our sovereignty of the Narrow Seas, which
in all ages has been asserted by our predecessors, and which we are
resolved to maintain, for the honour of our crown and of the English
nation.”[941] They were strange words to come from the mouth of one who
was Prince of Orange as well as King of England, but the times were
changing and such phrases were soon to become merely empty forms.

With respect to this ceremony of the flag, which the English professed
to regard as an acknowledgment of their sovereignty on the sea, it
may be said that from this time on it ceased to have much importance
in international affairs. The instructions issued by the Admiralty to
the naval officers continued to be explicit enough, and they indeed
suffered but little change for another century. The commander of one
of his Majesty’s ships, on meeting with any ship or ships belonging
to any foreign prince or state within his Majesty’s seas (which, it
was explained, extended to Cape Finisterre, Van Staten not being
mentioned), was to “expect” such ship or ships to strike their top-sail
and take in their flag, “in acknowledgment of his Majesty’s sovereignty
of those seas,” and if they refused or offered to resist, they were
to be compelled to do so. Within his Majesty’s seas his Majesty’s
ships were in no wise to strike to any; and in other parts only if the
foreign ship struck first or at the same time, except in a foreign
harbour or in a road within gunshot of a fort or castle, in which
case a salute with guns was to be given if the commander of the fort
agreed to answer gun for gun. If any British ship was so far forgetful
of its duty as not to salute the king’s ship by striking the top-sail
as it passed by, when it might be done without loss of the voyage,
they were to be “brought to the Flag” to answer their contempt, or
reported to the Admiralty for proceedings to be taken.[942] Similar
instructions were issued in succeeding reigns, the injunction to compel
by force those who refused to strike being limited to flag officers and
commanders.[943]

Disputes as to striking appear to have been much less common in the
latter part of the seventeenth and in the eighteenth century than they
were previously, but they sometimes occurred; and the ceremony seems
to have been enforced on Dutch ships, though they were allied with the
English fleet at the time. At all events, the Lords of the Admiralty
in 1694 wrote to the Duke of Shrewsbury saying that the instructions
required the respect of the flag from all nations whatsoever, without
any distinction, and that Sir Cloudesley Shovel had been advised to
that effect.[944] At this period, as indeed always, the Danes were
very punctilious as to Kronberg Castle on the Sound being saluted with
proper respect by foreign ships, and in 1694 Shrewsbury advised the
Admiralty that the king had signified his pleasure that all ships of
war sent to the Sound should salute Kronberg with three guns only, upon
assurance that their salute would be returned by the castle with a like
number of guns.[945]

Early in the reign of Anne, in 1704, a sanguinary encounter took place
with reference to the striking of the flag that equalled if it did not
surpass in brutality any case that happened under Charles. An English
squadron under the command of Admiral Whestone fell in with a Swedish
man-of-war convoying some merchant vessels. The Swedish commander
refused to strike to the English admiral, on the ground that he had
received strict injunctions not to do so to any flag whatever, even
in the Channel, and thereupon the English proceeded to compel him by
force. After about 150 Swedes had been killed or wounded, as well as
many English, the unlucky man-of-war, with all the merchantmen, was
brought into Yarmouth Roads.[946] Another case of a different kind
happened in 1728, early in the reign of George II. A French man-of-war,
the _Gironde_, under the command of Mons. de Joyeux, on going into
Plymouth Sound on 23rd November, was hailed by an English frigate,
which demanded that he should salute the fortress and the frigate.
The Frenchman replied that the bad weather had prevented his sending
an officer to the governor to agree about a salute, but that he owed
none to the frigate, which carried a pennant only, it being usual to
salute none but flags; and he passed quickly into the port, where the
captain of another frigate sent to ask him if he would not salute
the commodore, who carried a bare pendant, and he returned the same
answer. On coming out again on the 29th the frigate called upon him to
strike his pennant, and on his refusal threatened to fire upon him. M.
de Joyeux, feeling that it was by no means proper to hazard his ship
under the cannon of the castle and the batteries, then complied, and
also saluted the fort with eleven guns, as previously arranged. This
“insult” was made the subject of complaint by France, and when all the
papers had been submitted to the king he instructed that the officer
responsible, Lieutenant Thomas Smith of the _Gosport_, should be
forthwith dismissed the service as having in this particular exceeded
his instructions.[947]

In the writings of the naval historians of last century one may find
expressed the views which were then prevalent in naval circles as to
the striking of the flag and the sovereignty of the sea generally. They
claimed for the crown of England an exclusive propriety and dominion
in the British seas, both as to the right of passage and the right
of fishing, and the widest limits were assigned to those seas. Thus
Burchett, who was Secretary to the Admiralty, defined them as follows
in 1720: On the east they extended to the shores of Norway, Denmark,
Germany, and the Netherlands, so as to include the North Sea; on the
south they were bounded by the shores of France and Spain to Cape
Finisterre, and by a line from that Cape westwards to meet the western
boundary, thus comprising the Channel, the Bay of Biscay, and part of
the Atlantic Ocean; on the west they extended to an imaginary line in
the Atlantic in longitude 23 degrees west from London, passing from
the southern boundary to latitude 63 degrees north; and on the north
they were bounded by this parallel to the middle point of Van Staten.
These were declared to be the British seas proper, in which the crown
had the most absolute dominion and the right to the honour of the flag
from all other nations; but in addition, it was stated that on the
north and west as far as America and Greenland the crown had also “most
ample rights” in virtue of first discovery and occupation.[948]

No doubt much of the claim put forward by these writers on behalf of
the maritime dominion of England was stereotyped, and had more form
than substance. Entick, indeed, in 1757, although asserting the right
of Great Britain to an absolute sovereignty of the sea, and to the
striking of the flag as an acknowledgment of it, himself described
this duty as “but an indifferent honorary ceremony.” The changed
point of view in which the matter was regarded was shown also in the
declaration of war by Great Britain against the United Provinces in
1780, because they had joined the Armed Neutrality. It contained
nothing referring either to the flag or to the sovereignty of the sea;
and it was doubtless as a mere matter of form and precedent that a
brief article relating to the striking of the flag was inserted among
the preliminary articles of peace, drawn up at Paris in 1783, and in
the definitive treaty of peace concluded with the United Provinces in
the next year.[949] The time was approaching when this ceremony was
to pass away altogether as a symbol of our maritime sovereignty, even
in the eyes of Englishmen. There was little need of claiming it as
an acknowledgment of our actual naval supremacy during the greater
part of the eighteenth century, for it was obvious to all the world
that British sea-power was supreme. From the reign of Anne onwards the
naval force of Great Britain was overwhelming, and formed a determining
factor in the history of Europe. This country was undisputed mistress
of the seas,--or tyrant of the seas, as our enemies preferred to put
it,--and our old rival, the Netherlands, was left far behind in the
race for naval power as well as in commerce.[950] Nor was it longer
necessary to insist on the honour of the flag in order to stimulate the
valour of our seamen, to keep alive the spirit of maritime glory in
the nation, or to evoke the reverence of foreign peoples. The forcing
of all foreign ships to strike in the British seas became a political
encumbrance unsuited to the times. It was allowed to fall into disuse
when its inconvenience had long outgrown any utility it had possessed,
and the battle of Trafalgar, in 1805, gave the opportunity of departing
from the ancient claim. The naval power of France and Spain having been
humbled, it was thought a convenient time spontaneously to abandon a
pretension which “could not probably have been maintained much longer
except at the cannon’s mouth.”[951] The Admiralty, with the approbation
of the Government, accordingly omitted the arbitrary article from their
instructions for the fleet.[952]

In the closing years of the seventeenth century and the earlier part of
the next there were many signs that the era of claiming an exclusive
sovereignty over extensive regions of the sea was passing away; and
that, on the other hand, the policy of fixing exact boundaries for
special purposes, either by international treaties or national laws,
was taking its place. Such signs may be observed in the writings of
public men, as in the letter of recantation which Evelyn indited
to Pepys in 1682 (see p. 514), which included a long reasoned
argument against the English pretensions. Still more to the point was
the appearance of an extremely able work by Sir Philip Meadows in
1689, immediately after the Revolution, in which these pretensions
were subjected to the most destructive criticism.[953] Meadows had
considerable experience of public affairs. As Latin Secretary to
Cromwell’s Council--an office to which he was appointed in 1653 in
order to relieve the poet Milton, whose blindness interfered with his
duties--he was conversant with the negotiations then proceeding with
the Dutch; and later, as ambassador to Denmark and then to Sweden, he
had opportunities of acquainting himself with the claims to maritime
sovereignty put forward by those countries. The keynote of Meadows’
work was, that as the dominion of the seas was apt to become a specious
pretence to a war between England and Holland, while the real causes
of such a war were hidden and remote, nothing would conduce more
effectually to preserve a lasting peace than a true knowledge and right
understanding of the matter. If the claim of England as expounded by
Selden was to be considered the proper standard of right and wrong
between us and other nations, “if what was well written must be fought
for too, not being to be gained but by a longer tool than a pen,”
then the King of England would be cast upon this hard dilemma--either
of being involved in endless and dangerous quarrels with all his
neighbours abroad, or of having his honour and reputation prostituted
at home, as tamely suffering “the best jewel of his crown to be
ravished from it.” The English pretension, he pointed out, differed
from that of Venice, inasmuch as it related not to a bay or gulf, but
to a sea open on both sides which formed the passage of communication
for the northern and southern nations of Europe. Persistence in the
pretension would therefore result in war between the island and the
Continent, as to whether the island should have the sea to herself, or
whether the Continent should have a share of it with her. No nation
had ever acknowledged the claim of England, which, moreover, was not
enforced, because if one foreigner did violence to another, outside
the King’s Chambers, but in the Channel or any part of the so-called
British sea, he did not come under the jurisdiction of the King of
England but under that of his own state.

While strenuously opposing the pretensions to the sovereignty of the
sea, Meadows agreed with all other authors in holding that every
country had an exclusive right to certain parts of the sea adjoining
its coasts: the difficulty was to fix the bounds. “If there is no
certain standard in nature,” he says, “whereby to ascertain the precise
boundaries of that peculiar Marine Territory I am now speaking to,
which belongs to every prince in right of his land, yet, by treaty and
agreement, they may easily be reduced to certainty. For, as to the
judgment and opinion of private persons, we cannot fetch from thence
any true measure; for though they all agree unanimously that there is
something due of right, yet they vary in the _quantum_, or how much.
Therefore the surest way is to prescribe the limits of fishing betwixt
neighbouring nations by contract, and not by the less certain measure
of territory. For, if no bounds be fixed, how many inconveniencies,
and what a licentious extravagance, may such a liberty run into?”
The Dutch, he said, unless boundaries were fixed, might dredge for
oysters on the coast of Essex, as they did formerly; or fish within
the mouth of the Thames, or in our creeks, havens, and rivers; and
it was unreasonable not to draw a distinction as to fishing between
natives and aliens. Meadows therefore, foreshadowing modern practice,
urged that the boundaries of exclusive fishing should be determined by
treaty, and he prepared a draft article for the consideration of those
concerned.[954] In a later unpublished treatise he advocated much
the same method of mutual agreement with France, with respect to the
striking of the flag, as had been formerly proposed by Richelieu--that
in our half of the Channel they should strike to us, and that in the
half next France we should strike to them.[955]

Whether or not the writings of Meadows had any influence upon the
practice, or, what is more likely, merely reflected the change in
opinion that had begun, it is from about this time that we find
instances of definite boundaries being fixed, usually in connection
with the rights of fishery, instead of the vague claims that commonly
prevailed. The first case of the kind happened indeed a few years
earlier. In a treaty between James II. and Louis XIV., which was
concluded in 1686, concerning the rights of trading and fishing in
the British and French possessions in America, it was agreed that
the subjects of each were to abstain from fishing or trading “in the
havens, bays, creeks, roads, shoals or places” belonging to the other,
and the liberty of innocent navigation was not to be disturbed.[956]
Though no definite limit was laid down in this treaty, the meaning of
the terms used was well understood; they were practically the same
as those used in the proclamations as to neutral waters in 1668 and
1683. They are interesting as being the first definitions of the kind
which apply to the coasts of America, and they do not materially differ
from the terms used in the treaty of 1818, the interpretation of which
has given rise to so much dispute. Another example for a different
purpose is to be found in a convention between France and Algeria in
1689, which established a limit of ten leagues along the Mediterranean
coasts of France in connection with the operations of the Barbary
corsairs.[957]

In the treaty above referred to, between Great Britain and France, the
rights of trading and fishing went together. This was a very common
thing in those times, particularly in remote seas, where the two
pursuits were often combined, and it was especially the case in the
northern seas which were supposed to be under the sway of the King of
Denmark. The disputes which occurred between Denmark and the United
Provinces of the Netherlands are of interest in this regard, since
they reveal the methods and the stages by which a defined boundary
was eventually substituted for a general claim to maritime dominion.
They show, moreover, that at the end of the disputes Great Britain
stood by the side of Holland in opposing the Danish pretension to
_mare clausum_, and was altogether in favour of the free sea. It was
apparently the assertion of James I. to a monopoly of the whale-fishing
at Spitzbergen (see p. 181) that induced Denmark to put forward a
similar pretension with regard to Greenland. As early as 1615 a Danish
man-of-war demanded a contribution from Dutch whalers for liberty to
fish there, and the King of Denmark complained to the States-General
that their subjects were carrying on the fishery without his license
and contrary to his rights. The Dutch opposed this claim and sent armed
ships to the scene, which kept the Danes from active interference. A
little later, in 1623, Denmark raised fresh complaints in connection
with the fishing at Jan Mayen, an island discovered by the Dutch, and
which, therefore, according to the charter of the Dutch Arctic Company,
belonged to them. In 1639 Danish men-of-war again interfered with Dutch
whalers, this time at Spitzbergen, in virtue of a decree prohibiting
fishing without a license from the King of Denmark; but the firm
attitude of the States-General, whose fleets were then all-powerful,
cooled the ardour of the Danes. Denmark also raised difficulties
in connection with the cod-fishing in the northern seas. In 1616
foreigners were prohibited from fishing either at Færöe, Iceland,
or on the coast of Norway, an injunction renewed in 1636 and 1639,
and various limits were assigned with respect to the cod-fishing at
Iceland. In 1636 the Norwegian Government declared that the exclusive
right of fishing pertained to subjects within a distance of four to six
Scandinavian leagues from the coast, which is equal to from sixteen to
twenty-four geographical miles. The Danish claim to _mare clausum_ also
included a monopoly of trade in those remote regions, and the Hanseatic
towns as well as the Dutch were forbidden to carry on traffic with the
natives. But the efforts of Denmark to preserve a monopoly of fishing
and trading in the Arctic seas were intermittent and ineffectual. The
great Dutch Arctic Company (_Noordsche Compagnie_), by their charter
granted in 1614, were entitled not only to the exclusive right, so far
as concerned Dutchmen, “to trade and fish from the United Provinces on
or to the coasts of the lands between Nova Zembla and Davis’ Strait,”
including Spitzbergen, Barent’s Island, and Greenland, but also to the
possession and fishery of any islands they might discover in those
seas. The rights granted to this powerful company were thus directly
opposed to the Danish claim to _mare clausum_, and owing to the
preponderating naval force of the United Provinces, which was behind
them, they eventually prevailed. In February 1691, after the defeat
by the French of the allied British and Dutch fleets off Beachy Head
and the suspension of the Dutch whale-fishing by reason of the war,
King Christian V. issued another decree prohibiting whale-fishing at
Greenland to all but Danish subjects; and in the following year Hamburg
was forced to conclude a treaty with Denmark to enable her citizens to
carry on fishing and navigation in Davis’ Strait.

It was at this time, nevertheless, that Denmark substituted a fixed
limit at other parts of her dominions for her previous vague and
general claim to maritime sovereignty. By a decree of 26th June
1691, the sea between the south coast of Norway and the coast of
Jutland, within a straight line drawn from Cape Lindesnæs to Harboore
in Rinkjobing, a distance of over a hundred geographical miles, was
declared to belong to Denmark; and it was further ordained that in
places where the king possessed only one of the coasts, the sea was
under his dominion up to the distance at which the land was lost sight
of--_i.e._, within the range of vision. At the end of the following
year (3rd December 1692) another edict was issued declaring that no
one without royal authority would be allowed to carry on whale-fishing
within ten Norwegian leagues, or forty geographical miles, of the
coast.[958] This tendency of Denmark to formulate defined boundaries in
the seas along her coasts was carried further, as we shall see, in the
eighteenth century.

Within the areas above mentioned, Denmark enforced her authority with
considerable vigour. In 1698 a Dutch ship was seized and confiscated
for fishing at the Færöes; and in the period 1738-1740 great energy was
displayed in repressing violations of the Danish decrees. Several Dutch
ships were fired on by Danish men-of-war for trading at Greenland;
the crews were turned adrift in open boats, and the vessels taken to
Copenhagen, where they were condemned as prize in the Admiralty Court.
In retaliation, a Danish ship was seized at Amsterdam, and then Danish
men-of-war fell upon the Dutch doggers fishing around Iceland, about a
hundred in number, captured four, and dispersed the others without, it
was alleged, offering to molest the British and French smacks fishing
along with them. While bringing the captured doggers to Denmark, one of
them managed to escape, and carried off to Holland the prize crew on
board, consisting of a Danish midshipman and three seamen--an episode
that recalls John Brown’s experience in 1617. These occurrences were
naturally followed by diplomatic controversies. Denmark at first based
her action in seizing the doggers on a decree of 1733, reserving to her
own subjects the exclusive right of fishing and navigating within four
leagues of the coast of all Danish possessions in the Arctic seas; and
the Dutch were accused of carrying on an extensive illicit trade at
Iceland, under cover of fishing. The States-General used the familiar
arguments about the freedom of the seas for fishing and navigation,
urged long-continued possession, and cited an old treaty of 1447 which
gave the Dutch the right to navigate “usque ad Boreæ oras.” Then
Denmark placed her case on its ancient basis, declaring that the kings
of Denmark and Norway had enjoyed from time immemorial the dominion of
the northern seas, and were therefore entitled, even according to the
teaching of Grotius, to the exclusive fishing. They denied that the
Dutch had ever possessed the right of fishery in these seas, alleging
that clandestine acts, punished as soon as discovered, could not be
construed into possession. This revival of _dominium maris_ called
forth an energetic protest from the States-General, and affairs took a
bellicose turn. Denmark sent a squadron north to maintain her claims,
and Holland provided an armed convoy for her whalers and Iceland
cod-smacks, “to defend themselves against the pretensions of the
Danes.” Hostilities were averted by the intercession of Sweden, and of
the British and French Ministers at Copenhagen, in favour of the Dutch
Republic and the freedom of the seas.

Occasional disputes of the same kind occurred between Denmark and
the United Provinces later in the century. In 1757 a Dutch ship was
arrested--it was said in the open sea--on the ground that it had been
trading in Davis’ Strait, and the matter was adjusted a few years later
by an undertaking that the Dutch vessels would refrain from trading
within the precincts of the Danish possessions. The States-General in
1762 issued a placard to this effect, and they also sent a ship of war
to enforce it. In 1776 an English brigantine and two Dutch vessels
were seized for trading at Greenland, and condemned by the Danish
Admiralty Court, and although on the protests of the British and Dutch
Governments the vessels were released, compensation for detention was
refused.[959]

Other and later examples of the tendency alluded to, of fixing definite
limits for the rights of the state in the seas washing its territories,
may be found in the international treaties, which were concluded during
the eighteenth century, concerning the rights of fishery on the coasts
and islands of the British possessions in North America, a region of
the world which has furnished numerous examples of agreements of the
kind. One of these, in 1686, has been already mentioned. By the great
treaty of Utrecht in 1713, following Marlborough’s successful campaigns
on the Continent, France ceded Newfoundland and Nova Scotia to Great
Britain; but certain concessions were made to French fishermen, who,
of course, previously enjoyed the right of fishing there, which
subsequently for a long period formed a fertile source of trouble and
dispute. In addition to certain privileges as to landing and drying
fish, French subjects were to be free to fish in the seas, bays, and
other places to thirty leagues from the south-east coast of Nova
Scotia.[960] Half a century later, by the treaty of Paris in 1763,
at the conclusion of the seven years’ war, Canada was ceded to Great
Britain, and the concessions to French fishermen at Newfoundland were
confirmed, with some modifications. Liberty of fishing was also granted
to them in the Gulf of St Lawrence, subject to the condition that they
did “not exercise the said fishery, except at a distance of three
leagues from all the coasts belonging to Great Britain, as well those
of the continent as those of the islands situated in the said Gulf of
St Lawrence.” On the coasts of the island of Cape Breton, outwith the
Gulf, they were not to fish within fifteen leagues of the shore.[961]
These provisions concerning the fishery in the Gulf of St Lawrence and
at Cape Breton were confirmed twenty years later by the treaty of
Versailles in 1783, the article regarding Newfoundland being at the
same time modified.[962]

In these various treaties the fisheries were dealt with in a special
and exceptional manner, in connection with the cession of the adjacent
territories by France to Great Britain. The French fishermen had always
enjoyed the right of fishing in these seas in virtue of the ownership
of the land; and though full sovereignty over the latter was acquired
by Great Britain, the liberty of fishing, under certain restrictions,
was continued notwithstanding the transference of territory. The
fisheries of Newfoundland and Canada were of great importance. They
were highly valued by France as forming nurseries of seamen for her
navy, and for this reason the preliminary treaty of 1762 was severely
criticised by the Opposition in the British Parliament, and especially
by Pitt, who perceived that the concessions with respect to the
fisheries would enable France to revive her naval power.[963]

A concession still more extensive, on the same principle, was granted
by Great Britain to the newly-established United States of America
in the treaty of 1783, by which their independence was recognised.
The question of the rights of fishery was very fully discussed in the
negotiations which preceded the treaty; and though Great Britain did
not deny the right of American citizens to fish on the Great Banks
of Newfoundland, or in the Gulf of St Lawrence, or elsewhere in the
open sea, she denied their right to fish in British waters, or to
land on British territory for the purpose of drying or curing their
fish. A compromise was arrived at, and the treaty provided that the
people of the United States should continue to enjoy, unmolested, the
right to take fish of all kinds on the Newfoundland Banks, in the
Gulf of St Lawrence, and at “all other places in the sea where the
inhabitants of both countries used at any time heretofore to fish”;
also on such parts of the coast of Newfoundland as British fishermen
should use, and “on the coasts, bays, and creeks” of all other parts
of the British-American dominions. They were further permitted to dry
and cure their fish on unsettled parts of the coast of Nova Scotia,
the Magdalen Islands, and Labrador, so long as these parts remained
unsettled.[964] It will be observed that by this treaty the liberty of
fishing in the territorial waters of the British possessions in America
was conceded to the citizens of the United States, who had exercised
the fishery before their independence was declared. They continued to
enjoy the right which they had had as British subjects after they had
ceased to be British subjects, and they did so until the war of 1812.

With regard to the fisheries at home, in whose interest James I. had
originally raised the question of the sovereignty of the sea, the
clamour against the Dutch gradually died out, or was only heard at
intervals and received but scant attention. Pamphleteers continued to
denounce the liberty allowed to foreigners to fish along the British
coasts, and drew the usual picture of the great national advantage that
would flow from the creation of native fisheries to rival those of the
Dutch.[965] Under James II., William, Anne, and the Georges, the policy
of fostering the fisheries by protective legislation and by means of
organised societies or associations was continued, with but little
good result. The most serious attempt was made in the middle of the
eighteenth century, when an Act was passed[966] for the incorporation
of “The Society of the Free British Fishery,” giving power to raise
a stock of £500,000, and guaranteeing 3 per cent interest on the sum
raised within eighteen months,--which amounted to £104,509,--as well
as conferring various privileges and immunities, including a tonnage
bounty to encourage the equipment of busses. This society, which
was incorporated in the autumn of 1750, with the Prince of Wales as
Governor, had a chequered career. Its headquarters were pitched at
Southwold, Suffolk, where docks were built and buildings erected. In
1756 it possessed thirty busses and six “yagers” to carry the pickled
herrings to Hamburg and Bremen, the masters of the busses being Dutch
or Danish, and the crews chiefly from Orkney, the fishing being carried
on at the Shetlands and down the coast to Yarmouth. Financial and
other difficulties were encountered, some of the vessels being taken
by French privateers, and all the remaining busses and effects were
sold in 1772 for £6391. Half a century later, the relics of some of the
discarded busses were dug out of the mud at Southwold.

The Act above referred to was the parent of many others designed to
encourage the fisheries, chiefly by providing bounties; but probably
more effective than such measures in stimulating the native industry
was the decay which overtook the fisheries of the Dutch. This decay
was no doubt due to several causes, but among the chief must be
reckoned the frequent maritime wars of the eighteenth century in which
the United Provinces were engaged. Their herring-busses were often
captured or destroyed, sometimes in large numbers at a time, as in
1703, when a French squadron fell upon them at Shetland and burned many
of them--variously stated at from 150 to 400.[967] Not infrequently
their herring fishery was entirely suspended, it might be for a series
of years, owing to the inability of the States-General to protect the
fishing vessels from the French or the British cruisers; and such
interruptions told seriously upon a business which depended so largely
on the export trade of the cured herrings. From these repeated blows
the Dutch fisheries never recovered, and the fleets of busses gradually
dwindled. In 1703, 500 of them fished at the Shetlands and southwards
along the coast; half a century afterwards there were but little over
200; and in the later years of the century the number sank as low as
120, which scarcely exceeded the vessels from Denmark, Prussia (Emden),
and Belgium. Thus the part of the pretension to the sovereignty of
the sea which related to the fisheries along the British coasts was
gradually solved, the British fisheries, now the greatest in the world,
rising on the ruins of the Dutch.

SECTION II.

THE TERRITORIAL WATERS

CHAPTER I.

THE HISTORICAL EVOLUTION OF THE TERRITORIAL SEA.

From what has been said in previous chapters, it is apparent that
the extensive claims which were formerly made to the dominion of the
English or British seas were practically abandoned in the eighteenth
century, and the pretensions of other states to a similar and more
effective dominion in particular seas long ago shared the same fate.
It is now settled as indisputable, both by the usage of nations and
the principles of international law, that the open ocean cannot be
appropriated by any one Power. But it is also as firmly established
that all states possess sovereign rights in those parts of the sea
which wash their shores, although there is not, and has never been,
universal agreement as to the precise nature of those rights, or as to
the extent of the sea that may be thus appropriated. While the general
movement of opinion and practice in modern times has thus been from
the _mare clausum_ to the _mare liberum_--from the sea held to be
appropriated by particular nations to the sea under no sovereignty, but
free and open to all for all purposes,--there has been another movement
in the opposite direction, by which the exclusive rights of maritime
states in the waters immediately adjoining their coasts have come to be
more clearly recognised and definitely incorporated in international
law. To this extent all maritime countries now possess a sovereignty of
the sea.

It is desirable to trace the evolution of this limited sovereignty over
what is now known as the territorial waters or territorial sea (also
named the neighbouring, proximal, adjacent, or littoral sea--_mare
proximum_, _mare vicinum_, _mer territoriale_, _nächstangrenzendes
Meer_), and to consider in particular the two main aspects it
presents,--first, the actual practice of nations on the one hand, and,
second, the opinions of the accredited writers on international law.

The sovereignty over the so-called territorial sea has sometimes been
regarded as the direct remnant of a sovereignty which was previously
asserted by particular nations over whole seas or large parts of
them.[968] This is true in a general sense, but in tracing the
historical evolution of the territorial waters it is found that the
steps by which the transference was effected varied in different cases.
The pretensions of Denmark, for example, to a wide dominion over the
Norwegian Sea and the North Atlantic, were slowly curtailed by gradual
concessions to the opposition of other Powers, so that the extensive
territorial waters at present pertaining to Norway may be looked
upon as the residuum of the ancient claim. The exclusive rights have
persisted, while the area over which they are exercised has dwindled.
In like manner, the equally extensive territorial waters of Sweden
may be regarded as an abridgment of her old claims in the Baltic. The
same process may have operated in the case of Spain and Portugal, both
of which Powers now claim maritime sovereignty to a distance of six
miles from their coasts; but here the successive stages of contraction
are not obvious. The territorial sea now held to pertain to Great
Britain, so far as it has been defined, did not originate in this way,
by direct descent from the old claim to the dominion of the British
seas. That claim simply died out and vanished in the lapse of time,
without apparently leaving a single juridical or international right
behind it. The British territorial waters, as usually defined, are of
modern origin, and were derived from the international jurisprudence of
the Continent, and especially from the doctrine of Bynkershoek, to be
referred to later.

Even during the time when some nations were asserting a wide maritime
dominion, and other nations were opposing such pretensions, there
was a general recognition that every maritime state was entitled to
exercise jurisdiction over some extent of the neighbouring sea. This
was admitted by the most thoroughgoing advocates of the _mare liberum_,
as by Grotius himself, and it was acknowledged by the common usage of
nations. The rights exercised by the crown of England, for instance,
in the so-called King’s Chambers in the seventeenth century were
apparently not challenged by foreign Powers. But while the sovereign
rights of a state over a part of the adjacent sea were recognised by
the usage of nations and the opinions of publicists, there was no
agreement as to the extent which might be appropriated, and various
limits or boundaries have from time to time been proposed or adopted,
by which the sea pertaining to a state might be divided off from that
which was open and free to all. From an early date attempts were made
by jurists to discover some general principle or to lay down rules
which might be applied in all such cases. Some of these rules were of
such a nature as to assign to states an extent of sea almost as great
as any comprised under the widest claims to maritime sovereignty, and
none of them received a general assent. The early English lawyers of
the twelfth and thirteenth centuries, Glanville, Bracton, Britton, and
“Fleta,” merely followed the Roman law with regard to the sea--that is
to say, they held that it is by its nature common, like the air, and
they did not suggest any limit within which the prince of the adjoining
state had exclusive jurisdiction or dominion (see p. 66).

It is in the writings of the early Italian jurists, who lived after
the time when Venice by force of arms had established her sovereignty
over the Adriatic, that we first meet with proposals to assign legal
limits to the maritime jurisdiction of the neighbouring state. Bartolus
of Saxo-Ferrato, a great Perugian jurist who died in 1357, and whose
authority in the middle ages was very great, declared the law to be
that jurisdiction extended to a distance of one hundred miles from the
coast, or less than two days’ journey from it. Within this space the
ruler had power to apprehend and punish delinquents just as he had on
land.[969] Baldus Ubaldus, another eminent Italian jurist, who was a
pupil of Bartolus and died in 1400, also allotted a wide limit to
the maritime rights of the prince of the adjoining territory; but he
reduced the space from one hundred to sixty miles, a distance which
was supposed to be equal to one day’s journey from the coast.[970] The
boundaries assigned by these jurists, or sometimes the equivalent of
one or two days’ voyage from the coast, were very generally accepted
by civilians later, although frequently with qualification, more
particularly as to the nature of the rights to be exercised.[971]
Bartolus confined the rights of the prince to jurisdiction and the
appropriation of islands, and since the distance prescribed included
the space within which navigation in those times was almost entirely
restricted, it is probable that the primary idea was the maintenance of
order and the suppression of piracy. The underlying principle was the
range of navigation from the coast or from a port, just as later it was
the range of guns.

Baldus seems to have gone a step further than Bartolus by including
sovereignty (_potestas_) as well as jurisdiction (_jurisdictio_)
among the rights of the neighbouring prince, and he declared that
the proximal sea pertained to the territory of the adjoining state,
which, as in the case of Venice, had power to impose taxes for the use
of it.[972] Much the same opinion was expressed by Bodin, a French
lawyer who wrote about the middle of the sixteenth century. When
speaking of the taxes or tolls that might be imposed by a state, he
said that though the sea was incapable of appropriation, it was in a
measure accepted that for a distance of sixty miles from the shore
the prince of the adjoining country could impose law on those who
approached the coast, and that it had been so adjudged in the case of
the Duke of Savoy.[973] Gentilis, writing at the beginning of the next
century, stated that it was laid down by the civilians that not only
jurisdiction, but dominion, pertained to the neighbouring state as
far as one hundred miles from the coast, and even further unless the
proximity of another state interfered.[974]

It is thus clear that long before the beginning of the seventeenth
century, the original simplicity of the Roman law regarding the
appropriation of the sea had undergone a change at the hands of its
commentators, and that the doctrine of sovereignty or dominion over a
very considerable maritime zone was widely held by jurists. But there
is no evidence that either of the boundaries prescribed by Bartolus
or Baldus was sanctioned by the general usage of nations. They do not
appear ever to have been adopted by any state of northern or western
Europe as the limits of its territorial sea or maritime sovereignty;
although they were occasionally used in arguments in State Papers,
as when the Earl of Salisbury justified to the Spanish Court King
James’s proclamation of 1609 against unlicensed fishing, on the ground
that maritime jurisdiction was “generally received to be about one
hundred miles at the least into the seas.” The actual application of
these large boundaries appears to have been confined to parts of the
Mediterranean, where the doctrine took its rise, and where it survived
till the eighteenth century.[975] A more recent and a curious survival
of the old boundary of Bartolus is to be found in the abortive Russian
Ukase of 1821, by which foreigners were prohibited from navigating in
Behring Sea within one hundred Italian miles of the coast, a claim
which was revived by the United States as late as 1891.[976]

Another general principle for the demarcation of the seas belonging
to a state had even wider currency than the above. It consisted in
the transference to the sea of the principle of the mid-channel, or
_thalweg_, as applied to rivers in apportioning the waters pertaining
to either bank,--a doctrine laid down in Roman law and in vogue among
the Anglo-Saxons as early at least as the seventh century.[977] The
_thalweg_ or mid-channel was not infrequently a boundary between
contiguous states, and it was not a great step to transfer its
application in theory from wide rivers and estuaries to intervening
seas. In this way the mid-line in the sea lying between the coasts of
two states was held to be the boundary of their respective maritime
jurisdiction or sovereignty. The whole extent of a sea stretching
between territories belonging to the same state, however far apart
these territories might be, was looked upon as being under the
sovereignty of that state. This principle, therefore, covered most
extensive claims to maritime dominion, since it left hardly any part
of the sea unappropriated. The mid-line as an international boundary
was in the case of narrow seas logically derived from the tenets of
the Italian lawyers, but there are grounds for believing that it may
have been much older. An ancient example of its use in a limited way
is to be found in King Cnut’s charter, in 1023, granting the port of
Sandwich, in Kent, to the Church at Canterbury, by which certain rights
of wreck up to the middle of the sea were conferred on the monks. After
mentioning “the great sea without the port,” it provided that half of
whatever was found “on this side of the middle of the sea,” and brought
to Sandwich, should belong to the monks and half to the finder.[978]
Cnut’s charter cannot be taken as expressing any direct claim to
jurisdiction to the middle line, but as wreck was a prerogative of the
crown--and this is the first grant of it--the limit assigned seems to
imply a differentiation of authority. More pertinent is the statement
in the _Mirror of Justice_, a law-book written about the end of the
thirteenth century, and attributed to Andrew Horn, who was Chamberlain
of London in the reign of Edward II., that the king’s sovereign
jurisdiction extended as far as the middle line of the sea surrounding
the land.[979] Plowden, the Elizabethan lawyer, believed that this
work contained the law as it existed before the Norman Conquest, but it
is now declared to contain much that is spurious. Whether that be so or
not, there is no doubt that this principle of maritime delimitation was
adopted by many of the lawyers and scholars of Elizabeth’s time, as Dee
and Plowden.[980] Even well on in the next century no less a personage
than Lord Chief-Justice Hale, in an early unpublished treatise on the
law of the customs and seaports, maintained that the king had “right of
jurisdiction or dominion of so much at lest of the sea as adjoines to
the British coast nearer then to any forren coast.”[981] From internal
evidence this tract appears to have been written about 1636, and the
influence of Selden’s _Mare Clausum_, which was published at this
time, and in which the mid-line was repudiated as a boundary of the
British seas, was shown in Hale’s later treatise. In it the mid-line
was abandoned, and the “narrow sea, adjoining to the coast of England,”
was declared to be “part of the waste and demesnes and dominions of
the King of England,” who had in it the double right of jurisdiction
and property or ownership, “Master Selden” being referred to as
authority.[982]

There is no evidence that the principle of the mid-channel as applied
to the sea was ever homologated by an English sovereign or Government.
Notwithstanding its currency in the reign of Elizabeth, we know
that it was explicitly disavowed by the queen herself in diplomatic
controversy with the King of Denmark, who, in virtue of it, claimed
the whole of the sea between Norway and Iceland. Still earlier the
English Parliament vainly petitioned the victorious Henry V., fresh
from his conquests in France, to impose tribute on vessels passing
through the Channel, on the ground that he possessed both shores, and
therefore had a legal title to the intervening sea.[983] But although
the mid-line appears never to have been clearly adopted, there are
two circumstances, both referring like Cnut’s charter to the Channel,
which may point to its ancient usage there. One is that an important
fishing-bank, the Zowe or Sow, extending about one-third across the
Channel between Rye and Dieppe, was recognised by France as within the
English jurisdiction, and French fishermen for a very long period were
in the habit of procuring licenses from the Warden of the Cinque Ports
for permission to fish there (see p. 65). The other is that when the
question was raised as to how far the jurisdiction of the Cinque Ports
extended into the sea--in connection apparently with complaints against
French fishermen towards the end of the reign of Charles II.--the
Trinity House, while avowing their own ignorance, stated that the
Sergeant of the Admiralty within the Cinque Ports claimed to exercise
his authority “half seas over or further.”[984]

The methods of delimitation hitherto mentioned consisted in drawing
imaginary lines in the sea, usually at a considerable distance from the
coast. Another principle, which probably originated among seafaring
men and was capable of being made use of in a rough-and-ready fashion,
depended on the range of vision on a fair day, seawards from the
shore, or usually from the sea to the land. The space of sea between
the coast and the horizon, or _vice versâ_, was regarded as belonging
to the adjoining state. This was the principle adopted in Scotland,
but it was not confined to that country. It was employed in olden
times in England to determine whether a bay or arm of the sea was
within the body of a county, _inter fauces terræ_, and therefore
under common law, or part of the high sea and under the jurisdiction
of the Admiral.[985] An early instance of its adoption as a boundary
of international jurisdiction is to be found in the nautical laws
prescribed for the Netherlands in 1563 by Philip II. of Spain, by which
it was forbidden, on pain of death, for any violence to be done by
reason of war, or for any other cause, to his subjects or allies, or
to foreigners, on the sea within sight of the land.[986] Grotius also
referred to the range of vision as a boundary, when he said that the
controversy respecting the freedom of the sea was not about bays or
straits, or “so much of the sea as might be seen from the shore.”[987]
We have already seen that in Scotland the fisheries within sight of
the coast, or a “land-kenning,” were claimed as belonging exclusively
to the Scottish people. In this case the range of vision was from the
sea to the land, and it was to be determined from the main-top of the
fishing smack.[988] The extent of a land-kenning was stated to be
fourteen miles, and this was the distance expressed in the Draft Treaty
of Union in 1604, and pressed upon the Dutch by King James in 1618;
but sometimes twenty-eight miles, or two land-kennings, was claimed;
and it is to be noted that in the case of bays and firths the distance
was measured from a base-line drawn between headland and headland.
The range of vision, or land-kenning, as the boundary of the reserved
fishing waters, was embodied in Scottish law as well as claimed against
other nations by the Privy Council, the Parliament, and the king.[989]

It was also conceded to Denmark, for in 1618 the Privy Council
prohibited Scottish fishermen from fishing within sight of land at
the Færöe Isles. The King of Denmark, indeed, assigned the same limit
in a decree of 1691 with regard to places where he did not possess
the opposite coasts.[990] Although the principle was not formally
acknowledged by the Dutch in determining their fishing on the British
coasts, they agreed to adhere to it (see p. 193); and there is evidence
to show that the British cruisers caused them to respect this limit, at
all events in connection with the herring-fishing at Yarmouth.[991] A
later example of the adoption of this limit is to be found in a treaty
concluded in 1740 between the Porte and the King of Naples, by which it
was stipulated that neither party would permit vessels to be pursued or
molested on their coasts within a distance at which ships could discern
the land.[992]

The method of determining the extent of the territorial sea by the
range of vision was vague and open to obvious objections, even though
it was ascertained only on a fair day. The distance, as Bynkershoek
pointed out, would vary according to the position of the observer, the
keenness of his vision, the climate, and many other circumstances,
and it was inapplicable to narrow seas, such as the Channel, where
the opposite coasts belonged to different states. It is, however,
questionable whether, under proper rules, it would have furnished a
zone much less definite than that of the range of guns. It has been
proposed by some modern publicists, as Rayneval, Azuni, Heffter,
and Godey, as a boundary of territorial waters; and if it had been
generally adopted as a principle of delimitation, there is no doubt
that the equivalent distance of fourteen miles as used in Scotland
would have proved more satisfactory in several respects than the
ordinary limit of three miles, which was supposed to represent the
range of guns.

Still less definite was another principle, if such it can be called,
which was proposed as a guide in allotting the space of sea within
which exclusive rights of fishing should belong to the adjacent state.
Welwood, Selden, and many others, held, in opposition to Grotius and
his school, that the fisheries along a coast might be exhausted or
injured by promiscuous fishing, and that the inhabitants of the coast
had a primary right to the _fructus_ of the adjacent sea, as against
the intrusion of foreigners--a principle which lay at the root of the
Scottish claims to the “reserved waters.” Sarpi, an Italian author of
the early part of the seventeenth century, in a work defending the
claims of Venice, formulated the opinion that the extent of territorial
sea should not be fixed everywhere in an absolute manner, but should
be made proportionate to the requirements of the adjoining state,
without violating the just rights of other peoples. Thus a country
or city which possessed large and fertile territories that provided
adequate subsistence for the inhabitants, would have little need of the
fisheries in the neighbouring sea, while one with small territories
that drew a large part of its subsistence from the sea ought to have a
much greater extent of sea for its exclusive use.[993] This doctrine,
though obviously difficult of application internationally, has much
to recommend it on grounds of reason and justice. It is one of the
fundamental principles on which Norway claims at the present day an
unusually large extent of territorial sea.

With regard to bays, straits, and arms of the sea, the general usage
from the earliest times has included them within the jurisdiction of
the neighbouring state. They have been always regarded as differing
from the sea on an open coast, the only disputes about them referring
to the size of such areas that might justly be looked upon as
territorial. By the old common law of England, which Hale dates as far
back at least as the reign of Edward II. (1307-1327), bays, gulfs, or
estuaries, of which one shore could be “reasonably discerned” from the
other shore, were regarded as _inter fauces terræ_, and within the body
of the adjacent county or counties, so that offences committed there
were triable at common law. But along the coast, on the open sea, the
jurisdiction of the common law extended no farther than to low-water
mark; beyond that it was high sea, or _altum mare_, and under the
jurisdiction of the Admiral.[994] Here we see a sharp distinction
drawn between bays and the open coast, the former being included
within the realm as part of the territory. It seems reasonable on many
grounds that the waters lying in view between two parts of the same
continuous territory should have been regarded as pertaining to that
territory, and it may be noted that in early times the navigation of a
vessel along a coast was conducted from headland to headland, and thus
a distinction was likely to arise between the open sea lying outside a
line joining the headlands, as a waterway common to all, and the sea
inside the headlands as an access to the territory. The distinction was
maintained from an early period with regard to international relations.
Reference has already been made to the treaty arranged by Cardinal
Wolsey in 1521, in which it was stipulated that English harbours,
bays, rivers, and roads should be exempt from hostilities between
belligerents, and to the proclamations of King James in 1604, and of
succeeding sovereigns, defining the extent of the King’s Chambers, or
bays, according to ancient custom, for purposes of neutrality.[995]
It is interesting to note that the rights exercised within the King’s
Chambers, or bays, on the coasts of England referred only to neutrality
and had nothing to do with fishing, while in Scotland it was exactly
the opposite. The large bays and firths on the Scottish coast were
reserved for fishing, without any specific reference to the rights
or obligations of neutrals. The differentiation of bays and arms
of the sea from the territorial belt on open coasts has persisted
to the present day, both in the writings of publicists and in the
practice of nations, although the introduction of another principle
of delimitation has tended to keep the claims to bays within moderate
bounds.

The various methods of determining the territorial waters of a state
referred to above were more or less arbitrary, and did not rest upon a
natural basis capable of universal application. During the seventeenth
and eighteenth centuries another principle was gradually evolved, and
was ultimately accepted as furnishing such a natural basis, so that it
may now be regarded as an established part of international law. It
was, that the maritime dominion of a state ended where its power of
asserting continuous possession ended. The belt of sea along the coast
which could be commanded and controlled by artillery on shore thus
came to be regarded as the territorial sea belonging to the contiguous
state. Beyond the range of guns on shore the sea was common.

This principle was of slow growth. It did not even receive definite
expression among jurists until the beginning of the eighteenth
century; but as previously stated (see p. 156), the Dutch ambassadors
who came to London in 1610, to endeavour to induce King James to
withdraw his proclamation against unlicensed fishing, made use of it
in their conferences with the English Ministers, not improbably at the
instigation of Grotius. But whether or not Grotius was the person who
enunciated the principle in 1610, it is in his writings that we first
meet with it, although in a veiled form. It is not mentioned in _Mare
Liberum_, but in his greater work, the Law of War and Peace, which
was published in 1625, he said that a state might acquire sovereignty
over parts of the sea, in regard to persons by an armed fleet, and “in
regard to territory, as when those who sail on the coasts of a country
may be compelled from the land, just as if they were on the land.”[996]
The principle of compulsion from the land is clearly enough expressed,
and though Grotius did not define the nature of the compulsion to be
exercised, modern writers have generally held that what he meant was
compulsion by artillery. If Grotius was the author of the dictum of
1610, he must have had reasons for expressing it in a less definite
form in 1625,--perhaps owing to his employment at that time by the
Queen of Sweden, to whom the naked doctrine would have been no more
attractive than to James.

For a long time, however, the doctrine was equally neglected by
publicists and statesmen. This may have been partly due to the somewhat
obscure and incidental way in which it was advanced, but probably
mainly to the fact that the time was not ripe for its acceptance. It
represented much too stringent a limitation of the territorial sea to
receive general assent. Selden does not refer to it, and it was passed
over by the authors, such as Pontanus,[997] Burgus,[998] Shookius,[999]
Conringius,[1000] and Strauchius,[1001] who favoured more or less
extensive claims to maritime dominion, while even writers who opposed
such claims, as Stypmannus[1002] and Graswinckel,[1003] do not adopt it.

The opinions of Grotius with respect to the appropriation of the sea
had, indeed, comparatively little influence among jurists in the
seventeenth century. The views which prevailed in the latter part of
the period are rather represented in the works of two of the writers
whose reputation was greatest, Loccenius and Puffendorf. Loccenius, a
Swedish author who wrote about the middle of the century and is still
quoted as an authority, declared that while a nation could not acquire
a universal dominion over the sea, it might possess sovereignty in a
particular sea as far as it was under its power or dominion, subject to
the rights of innocent passage and navigation by others; and he cited
as examples Sweden and Denmark, which exercised sovereignty in the
Baltic.[1004] As a general rule, however, Loccenius held that states
had jurisdiction only in the waters adjacent to their coasts, for the
preservation of peaceful navigation; but no attempt is made by him to
lay down any fixed rule or limit as to the extent of such jurisdiction.
He merely contrasts the opinions of those, as Baldus and Bodin, who
contended for a wide limit of sixty miles, or two days’ journey, with
those who argue for a narrow but undefined space in the neighbouring
sea.

The celebrated Puffendorf, whose authority later was only second
to that of Grotius, dealt with the question in his great work on
the Law of Nature and Nations, and with even less precision than
Loccenius.[1005] On the general question of the appropriation of the
sea he discarded the objection that its fluidity rendered it incapable
of possession, but held that it would be morally impossible for one
nation to possess the ocean. He also set aside the moral objection in
the absolute form in which it was put forward by Grotius, that the use
of the sea was inexhaustible. On the contrary, he held with Selden and
Welwood that fisheries in the sea might be exhausted by promiscuous
use. “If all nations,” he said, “should desire such a right and liberty
(of fishing) near the coasts of any particular country, that country
must be very much prejudiced in this respect; especially since it is
very usual that some particular kind of fish, or perhaps some more
precious commodity, as pearls, coral, amber, or the like, are to be
found only in one part of the sea, and that of no considerable extent.
In this case there is no reason why the bordering people should not
rather challenge to themselves this happiness of a wealthy shore or
sea, than those who are situated at a distance from it.”[1006] On this
ground, the right of exclusive fishing, and also for the security and
defence of the state, a nation was justified in claiming dominion in
the neighbouring sea. The extent of this territorial sea, he says,
cannot in general be accurately determined; but it is clear that he
thought it might be very considerable. We had the power to abridge
others of the use of the sea by forts on shore, in narrow creeks
and straits, or by armed fleets; but it would, he thought, show
unreasonable jealousy to claim “some hundreds of leagues.” The true
bounds could only be discovered either from “the right of possession”
of a state, or from its treaties with its neighbours. Gulfs, channels,
or arms of the sea, on the other hand, were “according to the regular
course” supposed to belong to the state which had possession of the
shores. If the shores belonged to several peoples, the sovereignty was
distributed to the middle line, unless treaties directed otherwise,
or one people had obtained the exclusive sovereignty by convention,
conquest, or prescription.

We thus perceive that the opinion of jurists at the end of the
seventeenth century with regard to the appropriation of the sea was
very much what it was at the beginning. With the exception of the
clear and terse declaration of the Dutch ambassadors in 1610, and the
somewhat dubious dictum of Grotius in 1625, the principle that the
maritime sovereignty of a state was limited by the range of guns from
the shore does not appear to have been advanced throughout the century.

Nor does an examination of the usage of nations during the period
show that the opinions of publicists were at variance with the
actual practice. All maritime countries enforced an unquestionable
jurisdiction, more or less extensive, in the neighbouring seas,
and several of them exercised dominion over particular regions.
The extravagant pretensions of Spain and Portugal had long since
vanished; but Venice, while sadly fallen from her former greatness,
still asserted her sovereignty over the Adriatic. Sweden and Denmark
possessed a joint sway over the Baltic; and Denmark maintained her
claim to the northern seas between Iceland, Greenland, and the coast of
Europe. Moreover, the pretensions of England to the sovereignty of the
so-called British seas, although in abeyance, had not been withdrawn.
The striking of the flag was still enforced by English men-of-war, and
there was nothing to prove that the other phases of the pretension
might not be revived at any time.

With regard to the extent of neutral waters, it would appear that
the boundaries were as a rule vague, and that general considerations
determined jurisdiction in particular cases. In connection with the
declaration of war by the United Provinces against France in 1689,
a placard was issued by the States-General in which both Dutch and
foreign vessels were exhorted to keep out on the high seas; and it
was declared that any vessels suspected of having contraband goods
on board and found “on the coast of France, or of other countries,
islands, and places under the dominion of the King of France, and
particularly in the bays and gulfs on the coast of the said kingdom,”
would be seized and brought to trial.[1007] On the English coast the
limits of jurisdiction were better defined, but still, in many cases,
without precision. Within the King’s Chambers, as specified by James
I. in 1604, “or other places of our dominion, or so near to any of our
said ports, or havens, as may be reasonably construed to be within
that title, limit, or precinct,” the hostile acts of belligerents,
captures of the enemy’s vessels, and the hovering of foreign ships of
war were forbidden. The injunction with respect to the neutral waters
was renewed in 1633, 1668, and 1683, and it was in no case confined
strictly to the “chambers.” In the proclamations of 1668 and 1683,
which were drawn up by Sir Leoline Jenkins, the definition was merely
“within our ports, havens, roads, and creeks, as also in every other
place or tract at sea that may be reasonably construed to be within
any of these denominations, limits, or precincts.”[1008] These limits
were upheld by the decisions of the High Court of Admiralty during the
greater part of the century. Sir Leoline Jenkins, it may be noted,
although in questions of international policy advocating the most
extreme pretensions of the English crown to the sovereignty of the
seas, was careful in his judicial decisions to restrict jurisdiction
within the terms of the royal proclamations. If a capture was made in
one of the chambers or beyond them by a foreign privateer which had
issued from an English port and had been hovering in the neighbourhood,
the vessel was ordered to be restored. So also if the prize was
taken, in any case, outside a chamber, but near enough the coast to
be “reasonably construed” to be within the king’s jurisdiction. This
usually happened on the east coast, where the chambers were small. In
one such case the vessel was taken between half a league and one league
off Orfordness (the headland of a chamber); in another instance the
vessel was seized eight leagues at sea off Harwich, and presumably four
leagues from the boundary of the nearest chamber.[1009]

At the end of the seventeenth century, while the old pretensions of
various nations to the appropriation of particular seas had not been
withdrawn, they had in many cases become by the force of circumstances
to a large extent nominal or were in abeyance. There was moreover a
tendency, as we have seen (p. 526), to substitute fixed boundaries
in place of a wide and vague sovereignty, and to arrange by treaty
defined limits for special purposes. In the historical retrospect we
can now perceive the main influences which led to the modification of
the claims and practice in the century that followed. The juridical
controversies on the subject between the writers of various nations
were doubtless not without effect. The repeated decisions of the High
Court of Admiralty in this country, going counter to the English
pretension even in the Channel, and fixing limits for neutrality,
must also have had an important influence. But the chief causes were
probably twofold. One was the moral and material victory of the Dutch
Republic in its long and persistent struggle against the exorbitant
claims to maritime dominion, first, of Spain and Portugal, and then of
England and Denmark. The other was the great extension of commerce and
navigation, in which England secured an ever-increasing share, so that
in the next century we find her taking the part of Holland in opposing
the Danish claims to _mare clausum_. As maritime commerce extended
and the security of the sea became established, it was felt more and
more that claims to a hampering sovereignty and jurisdiction were
incompatible with the general welfare of nations; and as the states
interested in this commerce had the greatest power, the assertion of a
wide dominion was gradually abandoned, surviving only in remote regions
or in enclosed seas, like the Baltic.

At the beginning of the eighteenth century the question of the
appropriation of the sea was placed on another footing. The principle
of delimiting the territorial sea which is now generally accepted was
first expounded in 1703 by a distinguished publicist, Cornelius van
Bynkershoek, who, like Grotius, was a Dutchman, and held the office
of Judge in the Supreme Court of Appeal of Holland, Zealand, and West
Friesland. In his early work on the dominion of the sea,[1010] and in a
later treatise published in 1737,[1011] he dealt with the subject with
much acumen. With respect to the general question as to the capability
of appropriation, he agreed with Puffendorf rather than with Grotius.
While holding that the open ocean could not be wholly brought under
dominion, he admitted, with Selden, not only that large parts of the
sea are susceptible of appropriation, but that various nations had at
different times enjoyed such dominion: the fluidity of the sea was not
a bar to its occupation, and by taking possession of it the same right
was acquired as by taking possession of the land. But he declared there
was no instance at the time he wrote of any ruler possessing maritime
dominion of that kind, unless when the surrounding territory belonged
to him, and that the general freedom of the seas for navigation had
been established both by usage and by various treaties. He denied that
England had the dominion of the so-called British seas, mainly on the
ground of the want of uninterrupted possession, pointing out that all
the neighbouring nations freely navigated them without paying any
tribute or requiring any permission.

It was, however, with regard to the delimitation of the territorial sea
immediately adjacent to the coast that Bynkershoek’s teaching had its
chief results. He showed how uncertain and unsatisfactory were the
limits previously proposed, and, following Grotius, he laid down the
principle that the dominion of a state extended over the neighbouring
sea as far, and only as far, as it was able to command and control it
from the land. But he went further and showed how the principle was
to be carried into practice. The dominion of the territory extended
as far as projectiles could be thrown from the shore by artillery, so
that exclusive possession might be taken of the part so commanded: “the
dominion of the land ends where the power of arms terminates.”[1012]
Thus Bynkershoek assigned the dominion of the adjacent sea (_mare
proximum_) to the neighbouring state, within the range of a cannon-shot
from the shore. Besides the general reasoning on which the limit was
based, he cited in support of it an Act of state. He was apparently
unaware of the clear declaration made by the Dutch ambassadors a
century earlier; but he referred to an edict of the States-General in
1671, which enjoined that the commanders of their ships should give the
salute on the coasts of a foreign Power when they were within the range
of the guns of a town or fort, in such manner as the Government of the
country should require, leaving to its discretion the return of the
salute, and adding that every Government was sovereign within its own
jurisdiction and every foreigner a subject there.[1013]

This decree could not, of course, as Bynkershoek admitted, bind other
Powers to the same opinion. Nevertheless it may be said that the
almost universal practice which had grown up, regulating the salute
of a vessel coming within range of a battery on a foreign coast,
had prepared the way for the acceptance of the doctrine. It was a
recognition that the vessel had passed within the sphere of territorial
authority of the particular state. It was the rule, in England at
least, that “the sea should salute the land,” and the range of guns
determined the limit within which the salute ought to be rendered.
Beyond the reach of cannon no salute was expected; within it usage,
international courtesy, or the law, required it. No foreign ship with
its flag aloft could come within range of an English fort or castle
without exposing itself to the risk of a shot. It is indeed a curious
circumstance, that it was largely through the action of England with
regard to the salute that the acceptance of the cannon-range limit
was facilitated. The relation of the ceremony to the sovereignty of
a state was forced by her prominently into international politics.
Before the time of Selden and Charles I. jurists paid little attention
to the matter, but afterwards they dealt with it as a department of
international law: Loccenius and Bynkershoek, for example, each devotes
a chapter to it. Even when the English were most actively asserting
“the honour of the flag,” they recognised the rights of foreign states
within the actual range of guns on their shore. In 1636 the Earl of
Northumberland was instructed by the Admiralty not to enforce the
salute within the command of the guns of forts on foreign coasts,--an
order which was repeated by the Parliament in 1647,[1014] and became
the rule in the service. Molloy, a vehement supporter of the most
extreme claims of England to the sovereignty of the seas, stated in
1676 that English men-of-war entering a foreign harbour, or “the road
within shot of cannon of some fort or castle,” were to pay such respect
as was usually there expected.[1015]

The gunshot limit had been long established in connection with
another international relationship--namely, the right of visitation
of neutral vessels in the open sea. Many treaties had been made which
stipulated that the visiting ship was not to approach nearer than
within cannon-shot, and was then to send one of its boats with a few
men to conduct the examination necessary. It is, moreover, extremely
probable that with respect to what was in those times the principal
attribute of the territorial waters--viz., the rights and obligations
of neutrals--the gunshot limit, at the least, was recognised where guns
were actually in position. In view of the general practice, as shown
for instance in the decisions of the English Admiralty Court, and the
usage in connection with the salute, it can scarcely be supposed that
a capture made under the guns of a neutral fortress would be held as
good prize; at all events, it was not so held in the Admiralty Court in
1760. But the merit of Bynkershoek’s doctrine was, that it transferred
in theory to all parts of a coast this decisive property of compulsion
and dominion which, strictly speaking, only existed where forts or
batteries were placed. The doctrine, justly enough, has been called
fictitious, because there are various coasts and districts where it
would be impracticable to maintain dominion over the territorial sea
by means of artillery on shore; and because in point of fact such
dominion, unless in the neighbourhood of forts, is actually maintained
by other means, as by coastguards and naval vessels. Nevertheless the
principle, though resting largely on hypothesis, had much to recommend
it, and it gradually became incorporated into international law as the
rule for fixing the boundary of the territorial waters. Apart from its
intrinsic merits, its acceptance was perhaps not a little facilitated
by the felicity with which it was expressed. Bynkershoek gave it the
form almost of an aphorism, and the phrase, _terræ dominium finitur ubi
finitur armorum vis_, has been quoted by almost all later writers.

But although the doctrine of Bynkershoek was attractive, and was
eventually accepted almost everywhere, it did not command immediate
assent. The publicists who came after Bynkershoek in the eighteenth
century, while usually referring to the cannon-range limit, or adopting
it with respect to questions of prize, did not as a rule adhere to it
as the sole principle for delimiting the territorial belt. The earliest
notice of it after the _Quæstiones_ appeared seems to have been by
Casaregi, an Italian writer of authority, who was judge in the Court
of the Grand Duke of Tuscany, in a work which appeared in 1740, and
referred more especially to the practice in the Mediterranean.[1016]
Foreign ships, he said, were under the protection of the prince
whose seas they sail through, when they are in his ports, or in the
sea so near as to be within the range of guns on shore; if seized
by the enemy there, they require to be restored.[1017] This was
the ordinary rule in regard to neutrality; but with regard to the
question of sovereignty in the neighbouring sea, Casaregi followed
preceding Italian jurists in assigning a space of one hundred miles
from the coast for civil and criminal jurisdiction, with the power of
levying tolls and dues from passing ships, and even of prohibiting or
permitting navigation.

A little later a Spanish writer, Abreu y Bertodano, in a work on the
law of maritime prize,[1018] held that it was unlawful for cruisers
to attack the enemy’s vessels in the seas adjacent to the coast of a
neutral within a distance of two leagues from the shore, or within
the reach of a cannon-shot from it. He stated that no European Power
had asserted the dominion of the sea with more heat and boldness than
Great Britain, and yet by Act of Parliament the visitation of ships
by the coastguard was restricted to two leagues from the coast, which
was as much as could reasonably be claimed.[1019] But this author also
followed the Italian rule that jurisdiction, including the levying
of tolls, &c., was not limited to the coast waters, but extended for
at least a hundred miles from the shore, and said that this was in
agreement with the teaching of the lawyers of all nations.[1020]

Wolff, who wrote on the law of nations about the same time, appears
rather to have followed the opinions of Puffendorf. He argued that the
use of the sea next the shore, for fishing and the collection of things
that grow on it, was not inexhaustible, nor its use for navigation
always innocuous; and since it served as a protection for the adjoining
state, it was reasonable that it should be under the dominion of that
state. The inhabitants of the shores had therefore the right to occupy
it “so far as they can maintain their dominion over it”; and the same
was true of straits and bays.[1021]

Some ten years later Vattel, the pupil and follower of Wolff, published
a work on the law of nations, which is still of authority, and in
which much the same opinions as those of Puffendorf and Wolff are
expressed.[1022] On the general question of the appropriation of the
sea the usual statement was made; but Vattel held that a nation might
acquire exclusive rights of navigation and fishery in the open sea by
treaties, but not by prescription, unless in virtue of the consent
or tacit agreement of other nations. Thus “when a nation that is in
possession of the navigation and fishery in certain tracts of the sea
claims an exclusive right of them, and forbids all participation on
the part of other nations, if the others obey that prohibition with
sufficient marks of acquiescence, they tacitly renounce their own
right in favour of that nation, and establish for her a new right,
which she may afterwards lawfully maintain against them, especially
when it is confirmed by long use.” On the other hand, Vattel states
that the uses of the sea near the coast render it very susceptible of
appropriation: it supplies fish, shells, pearls, and other things, and
with respect to all these its use is not inexhaustible. A maritime
people may therefore appropriate and convert to their own profit “an
advantage which nature has placed within their reach as to enable
them conveniently to take possession of it, in the same manner as
they possessed themselves of the dominion of the land they inhabit.”
Vattel does not state his opinion as to the distance from the coast
within which the fisheries may be appropriated, but from the examples
he cites it is evident that the space might extend considerably beyond
the range of guns. “Who can doubt,” he asks, “that the pearl fisheries
of Bahrem and Ceylon may lawfully become property?” And the same
principle may be applied to floating fish, which appear less liable to
be exhausted. If a people, he says, have on their coast a particular
and profitable fishery of which they can become masters, shall they
not be permitted to appropriate that bounteous gift of nature as an
appendage to the country they possess, and to reserve to themselves
the great advantages which their commerce may thence derive, if there
is sufficient abundance of fish to furnish neighbouring nations? Thus,
Vattel states, the herring fishery on the British coasts might have
been appropriated by the English if they had originally taken exclusive
possession of it, instead of allowing other nations to take part in
it. Another reason for the extension of territorial dominion over the
adjoining sea, “as far as a nation is able to protect its right,” is
the security and welfare of the state; but the author says it is not
easy to fix upon any precise distance. Between nation and nation, “all
that can reasonably be said is that, in general, the dominion of the
state over the neighbouring sea extends as far as her safety renders it
necessary and her power is able to assert it.” At the time he wrote,
“the whole extent of the sea which is within cannon-shot of the coast
is considered as forming part of the territory; and for that reason a
vessel taken under the cannon of a neutral fortress is not a lawful
prize.” The principle that applied to the adjacent sea applied with
much greater force to roads, bays, and straits, since they were more
capable of being possessed, and were of greater importance to the
safety of the country. But such areas must be “of small extent,” and
not great tracts of sea--as Hudson’s Bay and the Straits of Magellan: a
bay “whose entrance can be defended” might clearly be appropriated.

The opinions of Vattel do not, therefore, materially differ from those
of Puffendorf in the previous century, though the tendency of the
earlier writer to allow a wide dominion is modified. Bynkershoek’s
principle of cannon range is adopted in a somewhat cautious manner,
and shown to apply especially to captures under the guns of a neutral
fortress. But the general argument in regard to fisheries, the security
of the state, and the exercise of territorial jurisdiction--as in the
King’s Chambers on the English coast, which Vattel cites as an example
of the practice--implies that a nation might lawfully extend its
sovereignty much beyond the range of guns.

In the writings of other international jurists later in the century,
the tendency to narrow the extent of the territorial sea in accordance
with Bynkershoek’s teaching becomes more manifest, particularly in
those which treat specially of the rights of neutrals. Hübner, who was
assessor in the Consistorial Court at Copenhagen, treating of this
subject, said with reference to Bynkershoek’s doctrine that it was
evident the parts of the adjacent sea belonged to the master of the
country, as accessory to the land,--first, “because it is in his power
to take possession and to maintain it by means of forts and batteries
which he is able to erect on the shore”; and, secondly, because the
waters serve as a rampart to the land.[1023]

Valin, a French writer of authority, introduced another principle in
combination with that of the range of guns. In his commentary on the
marine ordinance of Louis XIV., first published in 1760, he stated
that the rule that the adjacent sea within the reach of guns from the
coast is under the dominion of the neighbouring state was universally
recognised, the alternative distance which he gave being two
leagues--the same as given by Abreu. But he thought that the depth of
the water ought also to be taken into account, and that the sea up to
the point at which the bottom ceased to be reached by a sounding-line
pertained to the adjoining coast--an idea vague and impracticable.[1024]

In 1778, Moser, a councillor of state in Denmark, adopted Bynkershoek’s
doctrine, declaring that the sea adjacent to the coast of a country
was, according to the law of nations, indisputably under the
sovereignty of the neighbouring territory, as far as a cannon-ball
could reach.[1025] On the other hand, Lampredi, Professor of Public Law
in the University of Pisa, writing at the same time, while allowing to
a state the right of property in the adjacent sea, makes the limit of
its dominion depend, not on cannon range, but upon considerations of
general convenience.[1026] Another contemporary Italian, Galiani, who
was Sicilian Secretary of Legation at Paris, and was employed by his
master, the King of the Two Sicilies, to write a book in defence of his
adhesion to the Russian League of Armed Neutrality, expressed somewhat
varying opinions as to the limits of the territorial sea.[1027]
Admitting as a received doctrine that the belt of sea washing the
coasts of a country belonged to it as a part of its territory, he at
first seems to extend it, in accordance with the Italian principles,
as far as the authorities can cause their jurisdiction to be enforced.
Later, he advances the gunshot limit for certain purposes, as the
imposition of tolls and the regulation of navigation; and finally, with
regard to the observance of neutrality he considers the boundary should
be two leagues, or twice the distance of cannon range, and he appears
to have been the first to fix upon three miles as equivalent to the
range of guns.[1028]

G. F. von Martens, one of the greatest authorities on international
law, writing a little later, more definitely adopted the principle
of the range of guns; but he gave the equivalent distance as “three
leagues,” and moreover admitted that a nation might acquire maritime
dominion beyond that limit.[1029] The principle of appropriation,
he says, which applies to lakes and rivers also applies to straits,
which are in general not wider than great rivers and lakes, so that
the middle may be reached by a cannon-ball fired from the shore; and
those parts of the sea which border the land may also be regarded as
the property and under the dominion of the nation possessing the coast.
By a custom generally acknowledged, he continues, the authority of the
possessor of the coast extends as far as the range of guns from the
shore--that is to say, to a distance of three leagues;[1030] and he
adds that this distance is the least that a nation ought to claim as
the extent of its dominion in the sea. But he also says that a nation
may occupy and extend its dominion beyond that distance, and maintain
it, if the security of the nation require it, by a fleet of armed
vessels; and, further, that its sovereignty may extend as far as it
has been acknowledged to reach by the consent of other nations, and
beyond the boundary of its property--Von Martens, like many others,
drawing a distinction between property in the sea and sovereignty
over it. As examples of such cases, he definitely states, as well
established at the time he wrote, that St George’s Channel was under
the sovereignty of Great Britain and the Gulf of Bothnia under that of
Sweden, while the straits between Sweden and Denmark were considered to
be the property of Denmark. On the other hand, the Bay of Biscay, the
Mediterranean, the Straits of Gibraltar, the White Sea, and the North
Sea were acknowledged to be free.

Towards the close of the century, an Italian author, Azuni, who was
judge in the commercial court at Nice, published a work on maritime
law, in which he dealt with the territorial sea; and adopting the
range of guns as the principle of delimitation, he declared that the
equivalent distance ought to be fixed at three miles, which, he said,
was “without doubt” the farthest a cannon-shot could ever be made to
reach.[1031] In this Azuni followed Galiani, making the statement
more definite, and thus we see the three-mile limit put forward by
publicists, as the alternative to the range of guns, before the century
closed. In point of fact, however, it had actually been applied in the
United States a year or two before Azuni wrote;[1032] and it is clear
from what he says that no general agreement then existed as to the
extent of the territorial sea, for he complained that the limit was
still undecided,--a statement repeated in his enlarged work, published
in 1805,--and he contended that it ought to be fixed by a solemn
treaty between the maritime Powers, as Meadows had suggested a century
before.[1033] Although Azuni adopted the principle of cannon range,
and, like Galiani, declared that three miles was the farthest that a
ball or bomb could be thrown,[1034] he was of opinion that for purposes
of neutrality, as an asylum against hostilities, the territorial waters
should be extended to two leagues from either shore in the case of bays
and gulfs, which, he says, even when their centre was at a greater
distance than three miles from either shore, were admitted to be
territorial. He even strongly recommended the adoption of the range of
vision as the boundary of neutral waters in time of war.

From the above review of the opinions of publicists in the latter half
of the eighteenth century, it is evident that there was a general
agreement that the sea, at least as far as the range of guns from the
coast, was accessory to the land: no one doubted that this space at
all events was included within the territorial sea of the neighbouring
country. Almost all the writers went further, and held that the
sovereignty of a state was not confined to gunshot range, but could be
extended to a greater distance from the coast, either for the security
of the state or for jurisdiction, but there was not agreement as to
how far this could be carried. We see, moreover, the growing tendency
to assign a fixed distance as an alternative to cannon range or as a
boundary to neutral waters. Abreu, Valin, and Galiani placed it at two
leagues from the coast, and the same distance is given by the writer of
the article “Mer” in a great French work published in 1777[1035]--that
is, twice the distance of cannon range, which was said to be one marine
league, or three miles.

Turning from the opinions of international jurists in the eighteenth
century to the practice and usage of nations in the same period, we
may note certain features of prominence: (1) the continued decadence
of claims to sovereignty over extensive areas; (2) the growing custom
of fixing definite boundaries for special purposes by international
treaties or by municipal laws; (3) legal decisions by which the limit
of cannon range was recognised in certain cases. In the eighteenth
century claims to the sovereignty of seas became greatly restricted
and lost their previous importance. The feebleness of Venice prevented
her from asserting in practice the rights which were hers by law and
ancient prescription. Both Vattel and Azuni, while admitting that
she possessed a limited sovereignty, questioned whether any other
Power would recognise her claim to the whole of the Adriatic. “Such
pretensions to empire,” says the former author, “are respected so
long as the nation that makes them is able to assert them by force,
but they vanish, of course, on the decline of her power.” In 1779,
indeed, before Azuni wrote, the Republic issued a decree respecting
her neutrality, in which the limit of cannon range was fixed as the
boundary of her waters for that purpose.[1036] Her ancient dominion
over the Adriatic was soon finally extinguished. When Napoleon
conquered Venice in 1795 and transferred her like a chattel to Austria,
her maritime sovereignty came to an end, and the picturesque and
symbolic ceremony of “espousing” the Adriatic, which had been performed
by the Doge every year for many centuries, terminated with it.[1037]

The similar pretension of England to sovereignty of the sea, as
previously mentioned, did not survive till this century, except on
the point of the flag; and this ceremony fell into desuetude, and
was abandoned finally in 1805. Great Britain now appeared rather as
a champion of the freedom of the sea than as an advocate of _mare
clausum_. This was particularly shown in connection with the rights
claimed by Denmark in the northern sea, especially at Iceland and the
Danish portion of Greenland. As already stated, Denmark tried in the
preceding century to keep alive her ancient rights to the fisheries
and trade in these remote regions, and having failed in her efforts,
introduced a fixed limit of forty geographical miles from the coast,
within which whale-fishing by foreigners was forbidden (see p. 529).

While Denmark was unsuccessfully endeavouring to assert exclusive
rights to the fisheries within a wide extent of water in the northern
seas, she was at the same time claiming a much less extensive space
along her coasts for purposes of neutrality. Moreover, it may be added
that just as in most European countries the cannon-range limit and
then the three-mile belt--which likewise originated in connection with
neutral rights--came to be applied as the boundary of the territorial
seas for all purposes, so the Danish limit for neutral waters, which
was a different one, was also adopted later as the general boundary of
the territorial seas by the Scandinavian states. The decree in regard
to neutrality was issued in 1745 by the King of Denmark and Norway,
and communicated to the foreign consuls, and it forbade all foreign
privateers to capture any vessel of the enemy within a distance of
one league, of fifteen to a degree of latitude, from the coast or its
outlying banks or rocks.[1038] This ordinance in regard to neutral
waters was renewed in 1756, 1759, and 1779,--that of 1759 expressly
declaring that the league was the marine league of fifteen to a
degree.[1039] It may be added here that early in the next century, in
view of the war with Great Britain, decrees were published prohibiting
either Danish or Norwegian privateers from capturing the enemy’s
vessels within the territorial sea of any foreign state which was
friendly or neutral; and such sea, it was said, was usually supposed to
extend for one marine league from the coast.[1040] The same distance
of four geographical miles was assigned by Sweden, in a decree of 12th
April 1808, which prohibited the seizure of vessels nearer the coast of
neutrals than the limit named.[1041]

The various ordinances cited referred solely to the limit of the
territorial sea in relation to neutrality. But as early as 1747 the
same boundary was applied to a limited part of the Norwegian coast
in connection with fisheries. In that year a royal decree prohibited
Russian fishermen at Finmarken from fishing within one league of the
land,--a measure which was not opposed by the Russian Government,
and which was renewed by a Norwegian law in 1830.[1042] In 1812, as
we shall see (p. 653), the territorial waters of Denmark and Norway
were declared to extend to four miles from the coast or its outlying
isles,--that is to say, the limit which was adopted for neutrality was
applied in regard to fisheries and other purposes.

Another example of the decadence of wide claims to maritime
sovereignty is to be found in the case of Spain, which, like the
Scandinavian countries, adopted a fixed limit in the eighteenth century
as the boundary of her territorial waters, and, as with them also,
it was placed at a greater distance than the range of guns from the
coast. An eminent Spanish publicist, Abreu, as we have seen, declared
in 1746 that the boundary of neutral waters should be at least two
leagues from the coast, and by a royal decree of 17th December 1760
this distance was assigned, the territorial sea of Spain being declared
to extend to six miles from the land. This boundary was again given in
1775 and in 1830, and it is still retained by Spain--and also, until
last year, by Portugal--as the maritime frontier for customs, fishery,
neutrality, and jurisdiction.[1043] At various times Spain has entered
into treaties with her neighbours, France and Portugal, concerning
the rights of fishery within the six-mile zone, either for reciprocal
liberty to fish in the whole extent of the territorial sea, or in the
outer belt of three miles. A treaty of this kind was concluded with
France in 1768.[1044]

The uprising in America in 1775, which resulted in the independence
of the United States, brought in its train a widespread maritime war,
Great Britain having to meet the naval forces of France, Holland, and
Spain, and at this time and throughout the remainder of the century we
meet with numerous decrees and treaties bearing upon the delimitation
of territorial waters, particularly in connection with the rights of
neutrals. One of the first of these was a circular which the American
Commissioners at the Court of Paris addressed to the commanders of
American armed vessels in 1777, instructing them to abstain from
capturing the enemy’s vessels, or vessels of neutrals, when they were
“under the protection of a port, river, or coast of a neutral country.”
To do so, it was said, would be contrary to the usage and customs of
nations; and the proclamation issued by the American Government in
the following year on the same subject is couched in equally general
terms.[1045]

We find the same want of definition in an edict of the King of the Two
Sicilies in the same year, which speaks only of the accustomed rules
being observed in his “ports, coasts, and adjacent seas.”[1046] But
in corresponding proclamations issued at the same time by the Grand
Duke of Tuscany, the Republic of Genoa, the Republic of Venice, and
the Pope, the range of guns is expressly mentioned as determining the
boundary of their territorial waters in respect to neutrality. The
Grand Duke prohibited all acts of hostility in the ports or coasts of
Leghorn, within certain places specified, and in the seas adjacent
to all his other ports, castles, or coasts within gunshot of the
shore.[1047] With respect to Civita Vecchia, Ancona, and his other
territories, the Pope prohibited, “according to the common usage of
nations,” all acts of hostility or superiority between belligerents
there or in the adjacent seas, “or generally within the range of guns
from the shore”;[1048] while the Genoese edict forbade all acts of
hostility between belligerents “in the ports, gulfs, and coasts, within
range of guns,”[1049] and contained particular rules for carrying the
prohibition into effect. Thus, if such an act of hostility should
be committed within range of cannon, a shot was first to be fired
into the air, or to a distance from the vessel or vessels violating
the neutrality, unless there was risk of damage to other vessels, in
which case a blank shot was to be fired. If this did not put a stop
to the transgression, the offenders were to be assailed with shot and
musketry. In places where cannon were not available, the same course
was to be followed with muskets, and, it was said, the rules had to be
carried out precisely as they had been ordained in a decree of 1756,
when, no doubt, the gunshot limit was equally in force. The Venetian
decree is couched in similar terms, and the size of the cannon whose
range was to determine the limit is mentioned. All acts of force or
authority between belligerents were prohibited “in the ports, roads,
and coasts of our dominion, and in all the adjacent sea, at least to
the distance within range of a large cannon of battery.”[1050] In
several of the edicts, as in the two last referred to, the range of
vision was also used as a limit within which no belligerent vessel
was to be allowed to station itself, or cruise about waiting for the
enemy’s vessels: such action was prohibited within view of the ports or
roads.

It will be noticed that all these edicts regarding neutral waters in
which the limit of cannon range was prescribed, emanated from the
small Mediterranean states; but in many of the international treaties
which followed the Armed Neutrality of 1780 the gunshot limit for
neutral waters was also adopted. This league, which was directed
against Great Britain, had its source in a declaration by the Empress
Catherine II. of Russia regarding the rights of neutrals; especially
that neutral vessels should be free to carry on trade on the coasts
of belligerents, and that the property of belligerents in neutral
vessels, except arms, equipment, and munitions of war, should be free
from capture. The seizure of enemy’s goods in neutral ships by English
cruisers bore hardly on the commerce of neutral countries; and for
this reason, and, according to English views, because it was perceived
by the other Powers that they could not directly contend against the
naval force of Great Britain, a new code of international law was
introduced which would have the effect of sapping it.[1051] In some of
the treaties referred to, the limits of neutral waters were defined
in vague or general terms, as in that of 1782 between the United
States and the United Provinces.[1052] The gunshot limit, however, was
specified in a treaty between the United States and Morocco in 1785,
which stipulated that if a vessel of either state was engaged with
that of another Christian Power within the range of guns of a castle
of the other state, it was to be protected and defended;[1053] in a
treaty of navigation and commerce between Great Britain and France in
1786;[1054] and in a treaty between France and Russia in 1787. In the
latter it was stipulated that in agreement with the principles laid
down in the Russian declaration regarding the navigation of neutrals,
either Power, if at war, should abstain from attacking the enemy’s
vessels within cannon range of the coasts of the other Power, or in the
ports, harbours, gulfs, and “other waters comprised under the name of
closed waters.”[1055] Russian activity in the direction indicated was
shown by the conclusion of a similar treaty in the same terms with the
Two Sicilies a few days later.[1056] A little later, in 1803, the range
of guns was adopted by Austria as determining the extent of neutral
waters, as in the treaties above referred to.[1057]

In contrast to the gunshot limit in connection with neutrality, was
another which Spain incorporated in a treaty with Tripoli in 1784,
by which it was agreed that Tripolitan vessels of war or privateers
should not capture ships of their enemy within ten leagues of the
coasts of the Spanish dominions[1058]--that is to say, within the
same extent of sea as was expressed in the treaty between France and
Algeria a century earlier.[1059] A few years later the same limit of
ten leagues was agreed to in a treaty between Great Britain and Spain
concerning fisheries and navigation in certain parts of the Pacific.
Disputes had arisen with Spain concerning proceedings at Nootka Sound,
Vancouver; and in a convention between the two Powers, signed in 1790,
it was agreed, _inter alia_, that British subjects should not navigate
or carry on their fishery within a distance of ten sea leagues from
any part of the coast already occupied by Spain, the object being to
prevent illegal trading with the Spanish settlements.[1060]

We thus perceive that towards the end of the eighteenth century various
maritime boundaries were assigned in particular places for particular
purposes, and that many states looked upon the limit of gunshot from
an open coast as fixing the extent of their neutral waters. But
hitherto, with the exception of the league limit prescribed by Denmark
and Norway, which had no avowed reference to the range of guns, and
was in reality equivalent to much more than three miles, no Power had
yet adopted one marine league as the equivalent of gunshot from the
shore. It appears that this step was first taken by the United States
of America, and it is of interest to note that the three-mile limit was
put forward tentatively, and, in a manner, as a temporary expedient.
When the war between Great Britain and France broke out in 1793, the
United States found it necessary to define the extent of the line of
territorial protection which they claimed on their coast, in order to
give effect to their neutral rights and duties. Washington, who was
then President, instructed the executive officers to consider the line
restrained, for the time being, to the distance of one sea league, or
three geographical miles, from the shores, a distance which was said to
be not more extensive than was claimed by any other Power. This limit
was adopted tentatively, since the Government “did not propose, at
that time, and without amicable communication with the foreign Powers
interested in the navigation of the coast, to fix on the distance to
which they might ultimately insist on the right of protection.” It was
stated that the greatest distance to which any “respectable assent”
among nations had ever been given was the range of vision, which was
estimated at upwards of twenty miles, and the smallest distance claimed
by any nation was “the utmost range of a cannon-ball, usually stated at
one sea league.”[1061] Besides the extent of sea referred to, the bays
and rivers were held by usage and the law of nations to be territorial,
with immunity from belligerent operations. This was well shown in the
same year, when the United States claimed that the whole of Delaware
Bay and New Jersey, an arm of the sea about fifty English miles in
length and a little over eleven miles wide at the entrance, was under
their territorial jurisdiction, and ordered the restitution of a
British vessel, the _Grange_, which had been captured there by a French
frigate, _L’Ambuscade_; and this was done notwithstanding the protest
of the French Minister that Delaware Bay was open sea and not under the
exclusive jurisdiction of the United States. The American Government
rested its action on the law of nations, and declared that they were
entitled to attach to their coasts an extent of sea beyond the reach
of cannon-shot--a claim which showed that the three-mile limit had not
been adopted as an inflexible rule.[1062]

Next year the United States Congress passed a law authorising the
district courts to take cognisance of all captures made within one
marine league of the American shores;[1063] but in the treaty concluded
between Great Britain and the United States in the same year, it is
interesting to observe that the less precise limit of gunshot was
adopted, in the same words as in the treaty of 1786 between Great
Britain and France. The twenty-fifth article of this treaty provided
that neither Government should permit the ships or goods belonging to
the citizens or subjects of the other “to be taken within cannon-shot
of the coast, nor in any of the bays, ports, or rivers of their
territories, by ships of war, or others, having commissions from any
prince, republic, or state whatever.”[1064]

It may be mentioned here that the claims which have been put forward
by the United States as to the extent of their territorial or
jurisdictional waters have varied greatly on different occasions.
The above declaration to M. Genet was, for instance, repudiated by
President Jefferson as establishing a fixed limit; and it was claimed
that the limit of neutrality should extend “to the Gulf Stream, which
was a natural boundary (!), and within which we ought not to suffer any
hostility to be committed.”[1065] On another occasion, in a controversy
about the right of jurisdiction, they claimed that the extent of
neutral immunity off the American coast ought at least to correspond
with the claims maintained by Great Britain around her own territory,
and that no belligerent rights should be exercised within “the chambers
formed by headlands, or anywhere at sea within the distance of four
leagues, or from a right line from one headland to another.”[1066] The
American Government endeavoured to obtain from England in the same year
the recognition of a territorial belt six miles in breadth, and in the
draft treaty proposed in 1807 a distance of five miles was in reality
specified.[1067]

CHAPTER II.

GENERAL ADOPTION OF THE THREE-MILE LIMIT.

It is evident from the foregoing that, notwithstanding the variation
in the extent of water claimed in certain cases, the principle of
determining the general boundary of the territorial sea by the range
of guns from the coast had become tolerably firmly established in the
practice of nations before the end of the eighteenth century, with
reference in particular to the rights of neutrals. Shortly before
the century closed, moreover, we have seen that one of the important
maritime Powers, the United States of America, had adopted a fixed
distance of three miles or one marine league as equivalent to the
utmost range of the cannon of those days. The range of guns naturally
varied according to their size and power, and though it was specified
in some of the Continental ordinances that the distance was to be
determined by a large gun of battery, there was no certainty that it
would be everywhere the same. It was thus clearly an advantage to have
a fixed distance, which could be marked on charts, substituted for the
less definite cannon range, so long as it really represented it. By
the progress of the military art, however, most notably perhaps after
about the middle of last century, the range of guns became enormously
increased, so that long ago the three-mile limit ceased to represent it.

The new boundary of one marine league, as equivalent to the range of
guns, was soon introduced into English law and practice, in the first
place through the decisions of the High Court of Admiralty in questions
affecting the extent of neutral waters. It is noteworthy that nothing
was heard at this period about the principle of the King’s Chambers
in such cases. It is very doubtful whether, as the American Government
implied in 1806, the boundaries of the King’s Chambers had retained
their validity at the beginning of last century. There seems to be no
evidence that they were enforced during the eighteenth century, or even
in the closing years of the seventeenth, possibly because occasions to
test the point had become rare. But it is perhaps more probable that
the claim to the King’s Chambers was allowed gradually to die out, and
that the deliberate omission of any reference to them in the later
proclamations of Charles II. (see p. 554) foreshadowed this change in
practice. It is clear at all events that long before the end of the
eighteenth century it was well established that a vessel captured by
one belligerent from another belligerent in a port of a neutral state
or within the actual reach of cannon was not good prize.[1068] The next
step was to give effect to the same principle, whether the place was
actually within the range of a fort or not.

The decisions which introduced the three-mile limit into English
jurisprudence were those of Sir William Scott (afterwards Lord Stowell)
at the beginning of last century. In 1800 and 1801 this great authority
adopted both the gunshot limit and the distance of three miles as
its equivalent for the boundary of neutral waters, in deciding the
well-known cases of the _Twee Gebroeders_. It was these decisions of
Lord Stowell’s which introduced the three-mile limit into English
jurisprudence. The cases arose from the capture of certain vessels in
1799, by the boats of a British man-of-war, in the Groningen-Watt,
between East Friesland and the island of Borkum, in the belief that
they were bound from Hamburg to Amsterdam, which was then blockaded
by the British; and it was claimed by the King of Prussia that the
capture was made within the territory of that state. In deciding the
first case,[1069] Lord Stowell found that the _capturing_ vessel was
“lying within the limits to which neutral immunity is usually conceded.
She was lying in the eastern branch of the Eems, within what may, I
think, be considered as a distance of three miles, at most, from East
Friesland. An exact measurement cannot easily be obtained; but in a
case of this nature, in which the Court would not willingly act with an
unfavourable minuteness towards a neutral state, it will be disposed
to calculate the distance very liberally; and more especially, as the
spot in question is a sand covered with water only on the flow of the
tide, but immediately connected with the land of East Friesland, and
when dry, may be considered as making part of it. I am of opinion, that
the ship was lying within those limits in which all direct hostile
operations are by the law of nations forbidden to be exercised.”[1070]
In this decision the three-mile limit is assumed to be, “by the law of
nations,” the boundary of the neutral waters. It is also to be observed
that the distance was reckoned, not from low-water mark, but apparently
from the land; while according to the rule apparently governing such
cases now, the sand-bank itself would be a part of the territory, and
the distance of three miles would be measured from its outer margin at
low water (see fig. 19, p. 635).

[Illustration: Fig. 14.--_Facsimile of part of the chart, showing where
the “Twee Gebroeders” were taken._ From Robinson, Admiralty Reports.]

In deciding the second case, in which the circumstances were much the
same, Lord Stowell said that “in the sea, out of the reach of cannon
shot universal use is presumed”; but he made no reference to three
miles as an equivalent distance.[1071] A few years later, in 1805, in
deciding the case of the _Anna_, which was captured at the mouth of
the Mississippi by a British privateer, and in which the question of
the violation of American waters had to be considered, the same judge,
quoting Bynkershoek, said: “We all know that the rule of law on this
subject is _terræ dominium finitur, ubi finitur armorum vis_; and
since the introduction of fire-arms, that distance has usually been
recognised to be about three miles from shore.”[1072]

It is, as above stated, in these decisions of the High Court of
Admiralty that the three-mile limit originated in England. They
furnished the legal precedents which regulated subsequent practice. The
gunshot limit was a doctrine borrowed from Continental publicists, and
three miles as its equivalent from recent American practice. Both were
previously unknown to English law.[1073]

Moreover, although, as we shall see, the writers on international
law had in only a few instances accepted the three-mile limit as an
alternative to the range of guns from the shore, and scarcely any of
the Continental publicists of repute, the actual practice of Great
Britain and the United States, together with the legal decisions in
the British and American courts, and the dicta of the judges, tended
steadily to bring about its adoption. At first the boundary of one
marine league as equivalent to the range of cannon had reference solely
to questions of neutrality, as the capture of prizes, in the maritime
wars that prevailed. But very soon it was applied to other purposes,
and first of all by the British Government in connection with the
rights of fishery. During the peace negotiations with the United States
at Ghent, after the war of 1812-14, the British Government intimated
that they did not intend to grant to the United States gratuitously
the privileges formerly given by the treaty of 1783 “of fishing within
the limits of British territory, or of using the shores of the British
territories for purposes connected with the fisheries.” The treaty of
Ghent contained no stipulation on the subject, but shortly afterwards
the British Government expressed its intention to exclude, and gave
instructions to exclude, fishing vessels of the United States from
fishing within the harbours, bays, rivers, and creeks, and within one
marine league of the shores of the British territories in America, and
from drying and curing their fish on shore. Several American vessels
were seized for trespassing within British waters, and the prolonged
diplomatic discussion which followed resulted in the convention of
1818, by which the fishermen of the United States were allowed the
same rights as British fishermen on certain parts of the coast, but at
all other parts they were forbidden to fish within a distance of three
miles of the “coasts, bays, creeks, or harbours.”[1074] This was the
first of the treaties in which the three-mile limit was specified, and
it naturally formed a precedent for those which followed.

That the principle of adopting the distance in question as the proper
boundary of the territorial sea had not yet become firmly incorporated
in British policy in all cases was, however, shown a few years later
in the negotiations with Russia concerning Behring Sea. In 1821 the
Emperor of Russia issued a ukase or decree, in which he declared
that the pursuit of commerce, whaling, and fishery, and of all other
industry, on all islands, ports, and gulfs, including the whole of
the north-west coast of America, beginning from Behring Straits to
the 51st of northern latitude, and in other parts specified, had been
exclusively granted to Russian subjects; and therefore prohibiting
“all foreign vessels not only to land on the coasts and islands
belonging to Russia, as stated above, but also to approach them
within less than 100 Italian miles,” the penalty for doing so being
the confiscation of the transgressing vessel and the cargo.[1075] The
Russian Government claimed that the extent of sea of which the Russian
possessions formed the limits “comprehended all the conditions which
are ordinarily attached to closed seas (_mers fermées_), and it might
consequently judge itself authorised to exercise upon this sea the
right of sovereignty, and especially that of entirely interdicting the
entrance of foreigners; but it preferred only asserting its essential
rights without taking any advantage of localities.” This, it will be
perceived, was a revival in the nineteenth century of pretensions
similar to those which Denmark had advanced in the seventeenth and
eighteenth; and the claim was opposed by Great Britain and the United
States, whose interests were threatened by it. The British Government
declared that it was contrary to the law of nations, and that it could
not admit the right of any Power possessing the sovereignty of a
country to exclude the vessels of others from the seas on its coasts to
a distance of 100 Italian miles. In its justification Russia cited, not
the Italian publicists or the earlier practice in the Mediterranean,
but an article in the treaty of Utrecht, which assigned thirty leagues
as the distance of prohibition (see p. 531),--an argument which was
sufficiently answered by the statement that the distance mentioned
was a particular stipulation in a treaty to which the other party had
given its deliberate consent. At an early period in the discussion the
Russian Government suspended the execution of the ukase, and instructed
the commanders of their ships of war to confine their surveillance as
nearly as possible “to the mainland, _i.e._, over an extent of sea
within the range of cannon-shot from the shore.”

An article in the draft convention subsequently arranged between Great
Britain and Russia provided for an exclusive fishery, not within three
miles, but within two leagues or six miles, from the coasts of their
respective possessions in the regions referred to; but when the British
Government discovered that in the corresponding convention concluded
a little earlier between Russia and the United States no limit at all
had been specified, they withdrew this article. Mr George Canning, in
a despatch to Mr Stratford Canning, the British plenipotentiary at St
Petersburg, withdrawing the article, said that its omission was, in
truth, immaterial, since “the law of nations assigns the exclusive
sovereignty of one league to each Power on its own coasts, without any
specific stipulation.” The Russian Government raised no objection to
the new article, and the distance from the coast at which the fishing
was to be exercised in common passed without specification, “and
consequently,” added Stratford Canning, “it rests on the law of nations
as generally received.” A little later, before the convention was
ratified, the British plenipotentiary, thinking it might be desirable
to have the law of nations declared therein, jointly with the Court
of Russia, in some ostensible shape, broached the subject anew and
suggested that notes should be exchanged in London “declaratory of the
law as fixing the distance at one marine league from the shore.” The
Russian Minister, however, expressed disinclination to do anything
that might retard the immediate ratification of the convention; and
he assured Canning that the Russian Government would be content in
executing the convention to abide by the recognised law of nations, and
that if any question should afterwards be raised upon the subject, he
would not refuse to join in making the suggested declaration, “on being
satisfied that the general rule under the law of nations was such as
the English Government supposed.”[1076]

It is evident from these despatches that the British Government at
that time held the opinion that the territorial waters of a state on
an open coast extended, “by the law of nations,” for one marine league
from the shore. But it would not have been easy for them to adduce
convincing testimony in support of that opinion from the accredited
writers on the law of nations whose works were then available, or from
the general usage of nations apart from Anglo-American practice. The
Russian Government were obviously not satisfied on the point, and their
instruction to their naval commanders to enforce the limit of cannon
range, though that was a less definite boundary, was more in consonance
with the law of nations as generally understood. It was natural that
the British Government should give weight to the decisions of Lord
Stowell in the Admiralty Court.

The Government of the United States, in discussing the Russian
pretension, did not apparently lay the same stress on the principle of
the three-mile limit as they did on some other occasions. The claim
that the Northern Pacific might strictly be regarded as a closed
sea was met by the simple statement that the opposite coasts on the
parallel of 51 degrees were 4000 miles apart. The right of American
subjects to navigate and fish within the prescribed distance of 100
miles from the coast was rested on continuous exercise from the
earliest times. Universal usage, it was declared, which had obtained
the force of law, had established for all coasts “an accessory limit
of a _moderate distance_” which was sufficient for the security of the
country and for the convenience of its inhabitants, but which laid no
restraint upon the universal right of nations, nor upon the freedom of
commerce and of navigation.[1077]

In the conventions which followed, it was provided that the subjects
of the contracting Powers should not be molested either in navigating
or in fishing in any part of the Pacific Ocean, and they were to be
at liberty for ten years to frequent without hindrance all the inland
seas, gulfs, havens, and creeks, on the coasts mentioned, for the
purpose of fishing and of trading with the natives, subject to certain
conditions to prevent illicit commerce.[1078]

It may be here stated that some years later, when American and British
whalers had greatly increased in numbers in Behring Sea, the Russian
officials on several occasions urged their Government to preserve the
sea as a _mare clausum_,[1079] or to prohibit foreign whalers from
approaching the coast within a distance of forty Italian miles.[1080]
The Russian Government pointed out in reply that to fix such a limit
would be contrary to the conventions, and might lead to protests from
other Powers, “since no clear and uniform agreement has yet been
arrived at among nations in regard to the limit of jurisdiction at
sea.” In 1847 the Government repeated the objections, and expressed
the opinion that “the limit of a cannon-shot, that is, about three
Italian miles, would alone give rise to no dispute”; and they further
observed that no Power had yet succeeded in limiting the freedom of
fishing in open seas, other Powers never recognising such pretensions.
Subsequently, in 1853, in consequence of continued complaints as to
foreigners fishing in the sea of Okhotsk, the Russian Government were
pressed by the influential Russian-American Company either to close
that great stretch of waters, as an inland sea, or to prohibit whalers
from approaching close to the shores and whaling in the bays and among
the islands. Instructions were thereupon issued to the commanders of
the Russian cruisers to prevent foreign whalers from entering bays or
gulfs, or from coming “within three Italian miles of the shores” of
Russian America (north of 54° 41´ lat.), the peninsula of Kamtchatka,
Siberia, the Kadjak Archipelago, the Aleutin Islands, the Pribyloff and
Commander Islands, and the others in Behring Sea, as well as Sakhalin
and others; and at the same time it was declared that while the Sea
of Okhotsk, from its geographical position, was a Russian inland sea,
foreigners were to be allowed to take whales there.[1081] Thus the
Russian Government adopted at first the principle of the range of guns,
then spoke of this or three Italian miles, and eventually accepted
and enforced, on the great extent of coast referred to above, the
three-mile limit.

Reference must now be made to some decisions in the courts of law and
to certain provisions in particular Acts of Parliament which bear upon
the question of the extent of the territorial waters. Owing to the
long-continued peace on the sea since the decisions of Lord Stowell at
the beginning of last century, few occasions have occurred for the
question of the boundary of neutral waters to be raised. In a number of
civil cases tried in our courts the three-mile limit has, however, been
referred to, either as a ground for the decision, or more usually as a
dictum of the judges, as the proper boundary of the territorial sea;
but this has been frequently coupled with the qualification that it is
the assumed distance of the range of guns, or the smallest extent that
has been claimed by publicists or states.[1082] Some of these cases
dealt with the vexed question of bays.[1083] One of the most important
was tried in 1859, and it referred to the Bristol Channel. An offence
was committed on an American vessel within one mile of the coast in
Penarth Roads, but where the width from shore to shore is less than
ten miles, and Chief Justice Cockburn, in delivering judgment, said,
“We are of opinion that, looking at the local situation of this sea,
it must be taken to belong to the counties respectively by the shores
of which it is bounded; and the fact of the Holms,[1084] between which
and the shore of the county of Glamorgan, the place in question, is
situated, having always been treated as part of the parish of Cardiff,
and as part of the county of Glamorgan, is a strong illustration of
the principle on which we proceed, namely, that the whole of this
inland sea, between the counties of Somerset and Glamorgan, is to be
considered as within the counties by the shores of which its several
parts are respectively bounded.” A good deal of discussion has taken
place as to the precise meaning of these words. It is to be noted that
much farther seawards than the place in question the width of the
Channel is less than ten geographical miles. On the usual rule for bays
(as laid down in the fishery conventions), the ten-mile base-line would
pass between Nash Point in Glamorgan and Hurtstone Point, the headland
east of Porlock in Somerset, and the closing line would be three
miles west of this, or about twenty geographical miles from Penarth
Roads. The six-mile limit, from land to land, is, however, about
twenty-seven miles farther east, between the coast near Goldcliff,
in Monmouth, and that near Walton Castle, Somerset. But about midway
between these two limits (and seawards of Penarth Roads) there is a
part where the three-mile zone around the island, Steepholm, joins
that of the coast on either side, and though eastwards of this there
are small areas beyond the distance of three miles from shore, the
fact that the territorial waters are continuous from side to side at
this place probably confers territoriality on all the waters inside,
though that is a point which has not apparently been decided. A line
drawn from the western boundary of Somerset (and in that case not
from a headland) to Worms Head, the most western part of Glamorgan,
measures about thirty geographical miles, and it is a markedly oblique
line. What is true of one county ought to be true of another, and a
much more natural line would be one of about twenty-three geographical
miles between Morte Point in Devon and Worms Head in Glamorgan; or one
still farther seawards between Hartland Point in Devon and St Goven’s
Head in Pembroke, which are about thirty-eight geographical miles
apart; but under common law the range of vision has to be taken into
account. It may be added that the whole of the Bristol Channel within a
line from Land’s End to Milford was one of the “King’s Chambers” (see
p. 122), the closing line being nearly one hundred miles long; and
that Continental publicists have referred to it, probably from this
circumstance, as being within British jurisdiction.[1085]

[Illustration: Fig. 15.--_The Bristol Channel._]

Another case of the kind decided in a British court concerned
Conception Bay in Newfoundland, which is rather more than twenty miles
wide between the headlands and from forty to fifty miles in length.
It was decided by the Judicial Committee of the Privy Council in
1877 that it was a British bay and part of the territorial waters of
Newfoundland. The decision was based partly on the configuration of the
bay, but mainly on the evidence that the British Government had for a
long time exercised dominion over it, which had been acquiesced in by
other nations, and the Legislature had by Acts of Parliament declared
it to be British territory.[1086] Lord Blackburn, in delivering
judgment, said that there was a universal agreement among writers
on international jurisprudence that harbours, estuaries, and bays,
landlocked, belong to the territory of the nation which possesses the
shores round them, but no agreement existed as to what is the rule
to determine what is a “bay” for this purpose. “It seems generally
agreed,” he continued, “that where the configuration and dimensions of
the bay are such as to show that the nation occupying the adjoining
coasts also occupies the bay, it is part of the territory,” most of
the writers referring to defensibility from the shore as the test of
occupation. But the judgment was founded on the principle above stated.

With regard to jurisdiction over foreigners in the waters along our
coasts, it is surprising that until quite recently there was no
statutory enactment or international agreement defining the extent of
that jurisdiction. Even in certain statutes in which the territorial
waters are specially mentioned their boundaries are not defined,
Thus, the provisions of the Foreign Enlistment Act of 1870,[1087]
which was passed for purposes of neutrality in the war between France
and Germany, were declared by the second section to extend “to all
the dominions of Her Majesty, including the adjacent territorial
waters”; and the fourteenth section provided that any ship captured
during the war between other nations when Great Britain was neutral,
“within the territorial jurisdiction of Her Majesty, in violation of
the neutrality of this realm,” &c., would be illegal; yet, in the
interpretation clause no definition is given of the meaning or extent
of “the adjacent territorial waters.” A similar reluctance apparently
to fix a definite boundary to the territorial seas for all purposes has
been shown by the British Government on several occasions in recent
years--as, for example, in the Territorial Waters Jurisdiction Act,
and in the negotiations preceding the North Sea fishery convention of
1882.[1088]

The statute just referred to was the outcome of a very important case
which was decided in the English courts in 1876, and raised indirectly
the whole question of the extent of the territorial sea (apart from
bays) and the nature of the jurisdiction over it. A German ship, the
_Franconia_, bound from Hamburg to the West Indies, ran into a British
ship, the _Strathclyde_, off Dover and within two and a half miles
from the English coast, whereby the _Strathclyde_ was sunk and a
passenger drowned. The master, a German named Keyn, was convicted of
manslaughter in the Central Criminal Court, according to English law,
and the case was carried to the Criminal Court of Appeal. The defence
was that as the defendant was a foreigner, in a foreign vessel, on a
foreign voyage, sailing upon the high seas, he was not subject to the
jurisdiction of any court in this country, while it was contended for
the crown that inasmuch as at the time of the collision he was within
three miles of the English shore, the offence was committed within the
realm of England and was triable by the English court.[1089] It was
held by seven of the thirteen judges that in the absence of statutory
enactment the Central Criminal Court had no power to try such an
offence, inasmuch as the original jurisdiction of the admiral, which
had been transferred to that court, did not enable him to try offences
by foreigners on board foreign ships; the other six judges held the
opposite, on the ground that the sea within three miles of the coast of
England is part of the territory of England; that the English criminal
law extends over those limits; and the admiral formerly had, and the
Central Criminal Court now has, jurisdiction to try offences there
committed although on board foreign ships. In referring to the limits
of the territorial waters under the law of nations, the three-mile
distance or the range of guns from the shore was very generally
quoted, and not infrequently the two were confused and spoken of as
if they were one and the same thing. This was particularly the case
with Sir Alexander Cockburn, who referred to various treaties and
edicts (see p. 570) in which the range of guns alone was mentioned,
as having fixed a three-mile limit for purposes of neutrality. He
even gives Bynkershoek the credit of having propounded the three-mile
theory.[1090] His conclusion was cautiously expressed as follows:
“Possibly, after these precedents and all that has been written on this
subject, it may not be too much to say that, independently of treaties,
the three-mile belt of sea might at this day be taken as belonging, for
these purposes [in connection with fisheries and neutrality], to the
local State.”

It was, as we have said, in sequence to the above case of the
_Franconia_ that the important statute, the Territorial Waters
Jurisdiction Act, was passed by the British Parliament in 1878.[1091]
This Act is sometimes loosely referred to as having settled the extent
of the territorial waters at three miles from the shore. This is far
from being the case. In the preamble it is stated that “whereas the
rightful jurisdiction of Her Majesty, her heirs and successors, extends
and has always extended over the _open seas_ adjacent to the coasts of
the United Kingdom and of all other parts of Her Majesty’s dominions to
such a distance as is necessary for the defence and security of such
dominions. And whereas it is expedient that all offences committed
on the _open sea_ within a certain distance of the coasts of the
United Kingdom and of all other parts of Her Majesty’s dominions, by
whomsoever committed, should be dealt with according to law,” it was
enacted that an offence committed by a person, whether or not a British
subject, within the territorial waters of Her Majesty’s dominions was
an offence within the jurisdiction of the admiral, although committed
on board, or by means of, a foreign ship, and the person who committed
the offence might be arrested, tried, and punished accordingly. The
legal advisers of the Government were, however, careful to guard
against the limitation of the general rights of the crown in the
adjacent seas to the distance to which criminal jurisdiction was
declared to extend. In the interpretation clause it is stated: “‘The
territorial waters of Her Majesty’s dominions,’ in reference to the
sea, means such part of the sea adjacent to the coast of the United
Kingdom, or the coast of some other part of Her Majesty’s dominions, as
is deemed by international law to be within the territorial sovereignty
of Her Majesty: and for the purpose of any offence declared by this
Act to be within the jurisdiction of the admiral, any part of the open
sea within one marine league of the coast measured from low-water
mark shall be deemed to be _open sea_ within the territorial waters
of Her Majesty’s dominions.” The reservation is made explicit in the
fifth section, which says that “nothing in this Act contained shall
be construed to be in derogation of any rightful jurisdiction of Her
Majesty, her heirs or successors, under the law of nations, or to
affect or prejudice any jurisdiction conferred by Act of Parliament
or now by law existing in relation to foreign ships or in relation to
persons on board such ships.”

In the debate that took place in the House of Lords in 1895 in
connection with the Sea Fisheries Regulation (Scotland) Act,[1092]
by which power was conferred on the Fishery Board for Scotland of
regulating trawling, under certain conditions, up to thirteen miles
from the coast (see p. 720), it was stated by Lord Halsbury, who had
charge of the Territorial Waters Jurisdiction Act in 1878, that “in
that Act they took care specially to avoid any measurements. The
distance was left at such limit as was necessary for the defence of
the Realm; then the exact limit was given for the particular purpose
in view.” Equally clear was the statement of the late Lord Salisbury
in the same debate, that “Great care had been taken not to name three
miles as the territorial limit. The limit depended on the distance to
which a cannon-shot could go.”[1093]

It is evident from the foregoing that the territorial sea that may be
claimed as belonging to this country is not restricted to a distance
of three miles from the shore on an open coast, though a certain
jurisdiction and certain rights may be confined to that distance by
municipal law or international agreement. The determination of the
extent is left to the law of nations, and there is but little doubt
that by the law of nations the true principle of delimitation is the
actual range of guns from the coast, where the coast is washed by the
open sea. It is to be noted that in the Territorial Waters Jurisdiction
Act nothing is said about bays: criminal jurisdiction is confined to
“the open sea” within one marine league of the coast. Offences such as
come under the Act may obviously be committed as well in territorial
bays and arms of the sea as within the three-mile limit on the open
coast; and the omission to include bays was no doubt deliberate, bays
in England being left under the common law on the principle previously
explained, the range of vision, and in Scotland presumably under Scots
law--_i.e._, “within land” (see pp. 545, 547).

Other Acts of Parliament which fix limits of jurisdiction beyond three
miles from the shore include those relating to smuggling, the public
health, and slave-ships. In 1736, and later, statutes were made by
Parliament, known as the Hovering Acts, by which vessels with certain
cargoes on board, destined for British ports, might be seized within
four leagues of the British coast; and foreign vessels so taken have
been brought for adjudication before British courts and forfeited for
illicit trade.[1094] By later Acts concerning the customs, differential
limits were fixed with respect to jurisdiction over vessels having
dutiable goods on board. Those belonging wholly or in part to British
subjects, or having half the persons on board British subjects, found
or discovered to have been within four leagues of the coast between
the North Foreland and Beachy Head, or within eight leagues of any
other part of the coast; or any foreign ship with one or more British
subjects on board, found or discovered to have been within three
leagues of the coast, or any foreign ship irrespective of British
subjects within one league, might under certain specified conditions be
forfeited; and power was conferred on the commander of a ship of the
royal navy to fire on such vessel if it refused to bring to after a
warning gun had been given.[1095]

Other nations have also assigned boundaries for customs jurisdiction,
which in nearly all cases exceed the ordinary limits of territorial
waters. The United States in 1799 extended its jurisdiction for such
purposes to four leagues from the coast, and in 1807, in an Act
against the importation of slaves, the seizure of vessels laden with
certain cargoes within that distance was also authorised.[1096] In
Spain the customs limit is six miles, and therefore corresponds to
the territorial zone which is claimed;[1097] in Sweden it is also six
miles, but measured on the Scandinavian system from the outermost
rocks; in Norway it is four miles, measured on the same principle, but
a treaty between Norway and Mexico, concluded in 1886, places it as
between these countries at three leagues from low-water mark.[1098]
In Italy the boundary is ten kilometres; in France two myriametres,
or about four leagues; in Austria it is also four leagues; while in
Canada it is three leagues.[1099] Wide limits for jurisdiction have
also been fixed by certain quarantine Acts. By the British Act of 1753,
all vessels coming from places whence the plague might be brought were
required to make signals on meeting other ships within four leagues
of the coast, a distance which was reduced to two leagues by a later
Act.[1100]

Such extension of jurisdiction as is indicated for customs or
quarantine purposes over foreign ships approaching the ports of a
country, has only been sanctioned in a few cases by international
treaties. It is now generally held to rest upon another basis than the
absolute rights possessed by a state in its territorial waters proper;
although it is quite in agreement with the principles laid down by
the older publicists, as Puffendorf, Vattel, and Von Martens, and by
several recent writers, as Latour,[1101] that a nation is justified in
exercising jurisdiction in the sea as far as its security or interests
render it necessary. The current opinion is that such rights can only
be enforced against foreigners under the comity of nations or by their
tacit assent, as a matter of mutual convenience, and in practice
they are acquiesced in by other Powers.[1102] But it is important to
observe that, as will be more apparent when we come to deal with the
exclusive right of fishing, maritime nations find it necessary for the
protection of their just interests to extend their jurisdiction beyond
the somewhat narrow boundary at present ordinarily assigned.

The statement made above, that the true principle for determining the
extent of the territorial sea on an open coast is the range of guns
from the shore, is borne out by an examination of the writings of the
accredited authorities on the law of nations. A review of the opinions
of the leading publicists of the earlier part of last century shows
that while the majority accepted Bynkershoek’s principle of cannon
range, comparatively few restricted it to the distance of three miles,
and many logically insisted that the extent must necessarily vary with
the improvements in artillery. Works of a purely polemical nature may
be passed over, such as those of the worthless Barrère[1103] and of
Champagne.[1104] They were inspired by hatred of Great Britain and the
desire of flattering Napoleon rather than by love of the truth, and
were written in order to show that the British were the tyrants of
the sea. Another contemporary French author, of much superior merit,
who dealt with the question was Rayneval, although his views were
also somewhat coloured by national prejudice. In 1803 he published a
treatise on international law,[1105] and in 1811 another on the liberty
of the sea.[1106] The latter for the most part consists, like the work
of Champagne, of an examination of the writings of Grotius and Selden
regarding the _mare liberum_ and the _mare clausum_, and also of the
trenchant little book of Jenkinson (Lord Liverpool) on the conduct of
the British Government in relation to neutrals. But in the earlier
treatise, which is still cited as an authority, Rayneval expounded the
law of nations respecting the territorial sea with marked impartiality.
On the general question of the freedom of the sea and the appropriation
of straits and bays the usual opinions were expressed. He held that the
sea bathing the coasts of a country makes part of it; that the security
and tranquillity of the state require that it should be held as a
rampart against hostile surprise or violence and illicit trading; and
that the fisheries form a natural appendage to this zone. With regard
to the extent of sea that may be appropriated, Rayneval stated that it
had not been determined by any uniform rule. Some, he said, carried it
to a hundred miles, or to sixty miles, from the coast, others only to
three miles, and others placed it at the distance of gunshot from the
shore. On the southern coast of France it had been fixed by agreement
at ten leagues with respect to the Barbary privateers. Like Meadows and
several preceding writers, he held it to be desirable in the interests
of the peace of nations that a general rule, or at least particular
rules clearly determined, should be adopted on a matter so important
and exposed to such uncertainties and disputes. Authors, he said, had
usually fixed the distance at the range of cannon, but their opinion
was not founded on a general regulation nor on uniform practice; and
the most equitable limit according to some was the range of vision from
the coast or the apparent horizon. Rayneval was of opinion that within
the territorial seas the neighbouring state had the right to forbid
navigation, except in cases of stress and necessity--a claim generally
discarded, though still made by Norway. Any liberty to foreigners to
fish along the coasts or in the bays of a country, he thought, was a
matter of tolerance, founded principally on the supposed abundance of
fish; and he held the opinion, which is at variance with that of most
other writers,--unless when confined to the territorial zone,--that a
state does not lose the right to forbid foreigners from fishing in the
waters along its coasts because it at one time allowed them to do so.

Much more definite and restricted was the opinion of a contemporary
English lawyer, Chitty, who published a work on the law of nations
in 1812.[1107] Quoting Vattel, that the whole extent of the sea
within cannon-shot of the coast is considered as making part of the
territory, and that a vessel taken under the guns of a neutral fortress
is not lawful prize, he says that the same doctrine is enforced by
Von Martens; and he refers to the decisions in the English Court of
Admiralty in the cases of the _Twee Gebroeders_ and the _Anna_, which
established the principle in English law. Chitty, however, makes no
allusion to the three-mile limit as an alternative to the range of guns.

Bynkershoek’s principle, and also a fixed distance in place of it,
were likewise accepted by Schmalz, Professor of Law in the University
of Berlin. Writing in 1817,[1108] he declared that the adjacent sea
pertained to the neighbouring land as far as it could be defended by
cannon from the shore; that this principle had been systematically
adopted; and that the distance had been fixed arbitrarily at three
marine leagues,[1109]--an erroneous statement, no doubt derived from
G. F. von Martens, which has been previously referred to,[1110] and
was copied from one book into another. Two years later another and a
greater German authority, Klüber, also adopted the principle of the
range of guns, without, however, proposing an equivalent distance
in miles.[1111] He allowed to the state the waters susceptible of
exclusive possession, over which it had acquired, by occupation or
convention, and maintained, its sovereignty. Among the parts so
comprised are (1) the sea adjoining the continental territory of a
state--at all events, “according to the generally received opinion,” to
the extent to which it can be reached by cannon-shot from the shore;
(2) parts extending into the land, as bays and gulfs, which can be
commanded by guns on shore; (3) straits which are equally commanded by
guns; (4) gulfs, straits, and seas adjoining the continental territory
of a state, which, though not entirely under the range of guns on
shore, are recognised by other Powers as closed seas--that is, under
one dominion, and inaccessible to foreign vessels without permission.

Wheaton, an eminent American jurist, whose first work was published
about this time, likewise accepted the principle of cannon range, or,
as an alternative, a distance of three miles from the shore.[1112]
The territorial jurisdiction of a neutral Power, he says, “extends to
the ports, harbours, bays, and chambers formed by headlands of the
neutral Power. The usual addition allowed to this is a distance of
three English miles, or a marine league, or as far as a cannon-shot
will carry from the coasts or shore.” His statement is based on the
decisions in the English Admiralty Court, and on the writings of
Vattel, Bynkershoek, Von Martens, and Azuni. In his great treatise on
the law of nations, first published in 1836,[1113] the same views are
expressed, it being stated that the general usage of nations superadds
“to bays, ports, &c., a distance of a marine league, or as far as
a cannon shot will reach, along all the coasts of the state”; and,
incorporating into his text Lord Stowell’s observation, he says, “The
rule of law on this subject is _terræ dominium finitur, ubi finitur
armorum vis_, and since the introduction of fire-arms, that distance
has usually been recognised to be about three miles from the shore.”
Wheaton also states that the exclusive territorial jurisdiction of
the British crown over the enclosed parts of the sea along the coasts
of Great Britain has immemorially extended to those bays called the
“King’s Chambers,”[1114] and that a similar jurisdiction is also
asserted by the United States over Delaware Bay, and other bays and
estuaries forming portions of their territory, and that a state had the
exclusive right of fishing within its territorial waters.

Chancellor Kent, who was another high American authority, expressed
somewhat different opinions from those of Wheaton, in a treatise
published in 1826, and seemed inclined to extend territorial
jurisdiction much farther into the sea than the latter writer.[1115]
The extent of such jurisdiction over the neighbouring sea is, he
says, often a question of difficulty and of dubious right, but as far
as a nation can conveniently occupy, and that occupancy is acquired
by prior possession or treaty, the jurisdiction is exclusive. It
is difficult, he states elsewhere, to draw any precise conclusion,
amidst the variety of opinion, as to the distance to which a state
may lawfully extend its exclusive dominion over the sea adjoining its
territories, and beyond harbours, gulfs, bays, and estuaries, where
its jurisdiction unquestionably extends. “All that can reasonably be
asserted is, that the dominion of the sovereign of the shore over
the contiguous sea extends as far as is requisite for his safety,
and for some lawful end. A more extended dominion must rest entirely
upon force and maritime supremacy. According to the current of modern
authority,” he continues, “the general territorial jurisdiction extends
into the sea as far as cannon-shot will reach, and no farther; and
this is generally calculated to be a marine league.” These opinions
do not differ materially from those of Puffendorf and Vattel, and the
tendency of this writer to allow an extended maritime jurisdiction
is shown by his statement regarding bays. He holds that the American
Government have the right to claim for fiscal and defensive regulations
an extensive jurisdiction, and that it would not be unreasonable to
assume, “for domestic purposes connected with our safety and welfare,”
the control of the waters within lines stretching from quite distant
headlands, as from Cape Ann to Cape Cod, and from Nantucket to Montauk
Point, and from that point to the capes of the Delaware, and from the
south cape of Florida to the Mississippi; that is to say, within areas
in comparison with which the “King’s Chambers” are insignificant,
since a straight line from the south cape of Florida to the Mississippi
measures about 500 miles, and encloses a tract of sea as much as 180
miles in breath. Kent adds that the Government of the United States
would certainly view with uneasiness, in the case of war between other
maritime Powers, the use of the waters of the American coast, far
beyond the reach of cannon-shot, as cruising ground for belligerent
purposes.

Manning, an English publicist, writing a little later,[1116] adopts the
usual opinion, stating that the distance to which the special right
of jurisdiction or the qualified dominion of a state extends on the
adjacent sea has been variously measured, the most prevalent distances
being those of a cannon-shot or of a marine league from the shore.
Heffter, a publicist of high authority, asserting as incontestable
the right of all maritime nations, both for defence and for the
protection of their commercial and revenue interests, to establish an
active surveillance on the neighbouring sea, declares that for these
purposes a state has the power of fixing, according to the particular
conditions of its coasts and waters, the distance to which its rights
shall extend. A common usage, he says, has established the limit at
the range of guns, a principle sanctioned by the laws and regulations
of many nations. But he maintains with Vattel that the dominion of
the state in the adjacent sea extends as far as it is necessary for
its security, and it can enforce it,--qualifying this declaration,
however, by adopting Rayneval’s suggestion that the horizon should be
the extreme boundary of the territorial sea. In his opinion the range
of guns, although the principle commonly adopted, affords no invariable
basis, and the distance may be fixed, at all events provisionally, by
the laws of each state: formerly, he adds, it included two leagues, and
now usually three marine miles.[1117]

A much more restricted view of the extent of the territorial sea was
taken by Reddie, an English writer whose work appeared in the same
year.[1118] He adopted Bynkershoek’s doctrine of the range of guns,
but makes no mention of the three-mile limit or any other alternative
distance. A certain breadth of the adjacent open sea is, he says,
necessary for defence and security, and it is that portion within reach
of cannon-shot, capable of being protected and commanded by artillery
from the land, and thus susceptible of exclusive and permanent
dominion, if not of appropriation. Beyond the range of artillery
the sea is common; within that range each nation has the right of
sovereignty, legislative, judicial, and executive, and the exclusive
fishery. This part of the sea cannot be used by nations generally,
without diminishing the use or enjoyment of others, and its produce is
by no means inexhaustible.

Ortolan, a French publicist of eminence, writing about the same
time, not only adopted the principle of Bynkershoek, but affirmed
in a positive manner that the extent of the territorial sea should
correspond to the actual range of artillery at the time.[1119] Although
the gunshot limit was the one recognised, there was nothing, he says,
to hinder two or more states from fixing between themselves, by treaty,
another limit, but such would be binding only on those who were parties
to the agreement. Bays and arms of the sea whose shores belong to the
same state are also territorial, provided that their width does not
exceed twice the actual range of guns, or that the entrance can be
commanded by artillery, or is naturally protected by islands, banks,
or rocks. Within the territorial sea as thus defined the state has the
power of making laws and regulations for its safety, prosperity, and
interests, but it has not the right of property,--Ortolan, like so many
other writers, drawing a distinction between property and jurisdiction.
The opinion that the real range of guns is the true principle for the
determination of the extent of the territorial sea was also affirmed
by Hautefeuille, another French writer of authority.[1120] According
to him, it extends to the distance a ball can be actually thrown from
the shore and no farther. Within the space thus commanded the rights of
the state are absolute, both in regard to jurisdiction and property,
and even to the prohibition of navigation. The right of fishery is
exclusive, since the products of the sea are not inexhaustible, and
the pursuit of them requires to be kept under proper regulation. On
this view, therefore, the fisheries of right belong to the neighbouring
state up to the limit of gunshot from the coast.

Other French writers of authority have maintained the same opinion
as to the principle for the delimitation of the territorial waters.
Thus, Pistoye and Duverdy[1121] state that each Power is able, in a
given zone, measured by the range of cannon, to impose its laws and
enforce obedience to them. It cannot take bodily possession of the
waves, but it can maintain over them direct and constant domination.
While there has been much discussion, they say, as to the extent of
the territorial sea, the principle upon which its appropriation rests
serves also to determine its bounds, “and it must be acknowledged
that the range of cannon from the shore is the only real and true
boundary of the sea in question.”[1122] No measure, they add, has been
generally agreed upon between different nations as to the distance
which the range of guns may be supposed to cover; but they think the
eyes of experienced officers on the coast may be trusted to judge how
far a given spot is within the distance. Still another French author
of repute expressed the same view as to the extent of the territorial
sea. Massé, in his elaborate work on commercial law in relation to the
law of nations,[1123] pointed to the fact that the arbitrary opinions
of the older writers had been rejected, and stated that the real basis
of delimitation was the range of guns--a distance which he places at
“about three miles”; but he says that this rule is not always followed
in practice. Bays and gulfs are declared to be undoubtedly part of
the territorial sea, even when they are not capable of being defended
from the shore. The reasons for this opinion are the same as those
advanced by Hubner--namely, that such areas form natural harbours and
anchorages, sheltering vessels from tempests: the vessels are thus
under the protection of the coasts, and consequently of the sovereign
of the coasts. The true boundary in such cases Massé regards as the
line joining the headlands, or passing between the islands that may lie
off the mouth, even if the distance be greater than the range of guns,
or than what has been fixed by convention for an open coast.

It is obvious from the above review of the opinions of publicists in
the first half of last century that no complete agreement had been
reached in theory or principle respecting the extent of the territorial
sea. Many of the writers held to the opinions expressed by Puffendorf,
Wolff, and Vattel, which allowed a more or less wide and vague
jurisdiction in the neighbouring sea for the security of the state;
and most of them refer to the cannon-range limit as the one usually
adopted. Few, however, accept the three-mile boundary as an alternative
to the range of guns: most of the authors indeed do not even mention
it, and those who do, appear to have been guided in the main by Lord
Stowell’s decisions. On the other hand, the later of the French writers
affirm that the boundary of the territorial waters is determined by
the actual range of artillery from the shore at the time, which is a
virtual repudiation of the three-mile limitation. Their view is summed
up by Pistoye and Duverdy when they say that the principle on which the
appropriation of the bordering sea rests serves also to determine its
bounds--_i.e._, control and command from the shore.

CHAPTER III.

THE FISHERY CONVENTIONS.

Compared with the eighteenth century and the earlier part of the
nineteenth, the period which has elapsed since the close of the
Napoleonic wars has been singularly free from occurrences raising
the question of the extent of the territorial sea in connection with
the rights of belligerents and neutrals. There has been no great
maritime war in Europe since the enormous advance in the power of
artillery rendered the three-mile limit untenable for the security
of a neutral state against the operations of belligerents in the sea
off its coasts, though some questions involving the inadequacy of
that limit came to the front during the civil war in America. The
chief questions affecting the boundary of the territorial waters were
concerned with sea fisheries, and several conventions were made between
European nations in which limits were fixed for exclusive fishing.
They originated in the perennial disputes between British and foreign
fishermen.

In previous chapters it has been shown that the intermittent efforts of
the British Government to establish an exclusive right to the fisheries
along the coasts of this country were without definite result, except
that it came to be tacitly understood by the Dutch fishermen that
they should keep out of sight of the shore. At various times during
the eighteenth century complaints were made to the Government of the
encroachments of Dutch, French, and Danish fishermen along our coasts
and in the Channel, and representations were in several instances made
to the foreign Government concerned. An examination of these complaints
shows that in many cases the foreigners were alleged to fish within
the bays and close to the shore, destroying the spawn and brood of
fish. In other cases they were accused of fishing in British waters
when they were between three and four, or even between six and seven,
miles from the coast,--the real ground of complaint being that they
occupied the localities where the fish were most abundant, and where
the native fishermen mostly carried on their industry.[1124] From
causes previously described, the number of Dutch fishermen frequenting
the British coasts diminished very much during the eighteenth century,
while at the same time French fishermen, and on the coast of Scotland
also Danes and Prussians, as well as fishermen from the Austrian
Netherlands, came in increasing numbers. During the war with France
and Holland the fishermen of these nations were unable to pursue their
fishing on the British coasts. But shortly after the restoration of
peace they returned, and complaints of their encroachments, especially
on the coast of Scotland and the south coast of England, soon became
prevalent. In 1819 the Board of British White Herring Fishery
received numerous complaints of foreign, and more particularly Dutch,
herring-busses shooting their nets too near the coasts, and committing
depredations on the lines and nets of the native fishermen. The Board
were urged to prevent foreigners from fishing “within a certain
distance” of the shore; but they considered they had no power to do so,
and forwarded copies of the petitions to the Lords of the Treasury. The
clamour continued, and in 1821, and again in 1822, the Board strongly
recommended the Government to take action. In the latter year the
Government made representations on the subject to the Government of the
Netherlands; and as a result a royal decree was issued in 1824 by the
King of the Netherlands prohibiting Dutch fishermen from fishing on the
main coast of Scotland, or even, in the absence of urgent necessity,
from approaching it within a distance of two leagues, twenty making a
degree, or twice the limit of three miles.[1125] In 1827--and thus
only twelve years before the Anglo-French convention fixed a three-mile
limit--this Dutch ordinance was renewed, and from that time few
complaints were made of the encroachments of Dutch herring-busses on
the Scottish coast. They continued to conduct their herring fishery,
for the most part, at distances ranging from twelve or fourteen to
forty or fifty miles, as they still do at the present day.

As the disputes with the Dutch fishermen were thus amicably arranged
by the recognition of a six-mile zone of reserved water, similar
contentions sprang up, and continued for a long period, with fishermen
from France. In 1824, some years after the peace, they began to
frequent the coast of Scotland, and they came in great numbers in
each succeeding year, fishing at the Shetlands, Orkneys, and along
the north and east coasts from Cape Wrath to Berwick, and down the
English coast as far as Flamborough Head.[1126] Several circumstances
connected with the French fishery tended to provoke disputes. While the
Dutch fished from their busses at a distance from the coast, where the
largest and best herrings were caught, and were forbidden under heavy
penalties from buying or selling herrings while at sea, or even from
entering any foreign port except by reason of urgent necessity, the
French fished, as a rule, near the shore from small boats, which they
even hired for the season, not uncommonly from Scotch fishermen. They
frequented the Scottish ports; they bought herrings in large quantities
surreptitiously from native boats engaged to local fish-curers, for
money, brandy, tobacco, biscuits, and other articles; and they were
allowed to dry their nets, and even sometimes to salt their herrings,
on shore for a small payment.[1127] They were thus intimately
associated with the native fishermen along the coast, and they carried
on their fishery near the shore in the waters which were mostly used by
the natives.

In the English Channel disputes between British and French fishermen
were still more frequent and acrimonious. British naval supremacy
during the long war had given a monopoly of the fisheries to the people
of the English coast, but after peace was concluded French fishermen
swarmed in the Channel, and began to fish along the English shores.
Complaints became rife of the decadence of the English fisheries, owing
to the alleged encroachments of the French and a general diminution
in the abundance of fish. In 1833 a Select Committee of the House of
Commons was appointed to inquire into the state of the British Channel
fisheries and the laws affecting the fishing trade of England, with a
view to their amendment. After taking evidence, the Committee reported
that they found those fisheries, and the interests connected with
them, to be in a very depressed and declining state; that the decline
had begun with the peace in 1815; that the number of fishermen and
boats had diminished; and that the fishermen and their families were
indigent.[1128]

The principal causes of the depression were found to be the extensive
interference and aggressions of the French fishermen on the coasts of
Kent and Sussex, the large quantity of foreign-caught fish illegally
imported, and the great decrease and comparative scarcity of fish
in the Channel. Large fleets of French fishing vessels from Calais,
Boulogne, Dieppe, and other ports were in the habit of fishing along
the English coasts, frequently within half a league of the shore, and
occasionally nearer, as well as in the bays and shallow waters, “in
which,” said the Committee, “it is particularly necessary for the
preservation of the brood of fish, that such as frequent those waters
during the breeding season should not be disturbed, or their young
destroyed before they have attained maturity.” The French fishing
vessels were more numerous and larger than the English boats,--between
two and three hundred coming from Boulogne alone,--and they had caused
great injury to the nets and gear of the English fishermen, especially
in the herring and mackerel seasons. At other times of the year it was
proved that they were in the habit of coming in great numbers every
morning into English bays, and dragging there for bait in the shallow
waters close upon the shore, taking and destroying an immense quantity
of young and unsizeable fish, at periods when they were prevented by
French laws from conducting similar operations in their own bays.[1129]
These laws, the Committee reported, were understood to be enforced also
against English fishermen within three leagues of the coast of France;
on approaching nearer they were warned off by French cruisers, and told
that they would not be allowed to fish within that distance.

The Committee considered it to be proved that the scarcity of fish in
the Channel (with the exception of herrings and mackerel) had been
occasioned by the great destruction of the spawn and brood of fish in
the shallow waters. They recommended as remedies for the evil “that
foreign fishermen should be prevented at all seasons of the year from
fishing within one league, or such other distance of the English coast,
as by the law or usage of nations is considered to belong exclusively
to this country,” and that they should also be required to observe,
during the spawning or breeding season of fish, all such laws or
regulations as might be imposed upon English fishermen for the better
preservation of the spawn and brood of fish in the bays and shallow
waters on the coast.[1130] In order to accomplish these objects, they
recommended that customs and revenue officers and the commanders
of cruisers should be instructed to prevent foreign fishermen from
fishing “within such prohibited distance of the shore,” to enforce the
observance by foreigners as well as by subjects of our fishery laws and
regulations, and to protect the English fishermen from aggression at
sea.

The Committee had considerable difficulty in arriving at their
conclusion respecting the limit which should be fixed for exclusive
fishing on the English coast. They were influenced partly by what they
understood to be the usage, that the sea for one marine league from
the shore was considered to be the territory of the adjoining country,
partly by the practice of the Customs’ authorities in connection with
the prevention of smuggling, and partly by considerations affecting
the preservation of the fry and brood of fish. Under the Customs’
regulations, vessels and boats of certain descriptions, including
fishing-boats, required a license, and the Commissioners of Customs
had discretionary power[1131] to prescribe within what distance of the
English coast they might be employed. In some cases fishing-boats were
restricted to a distance of four leagues, in other instances they were
allowed to fish to within one league of a foreign coast, one league
of sea being regarded by the Customs’ authorities as belonging to the
territory of the adjacent country. With regard to the right of fishing,
however, it was generally understood among the English fishermen that
the limit on the French coast reserved for French fishermen was three
leagues; and they desired that the same limit should be applied on
the English coast. The Committee laid great stress on the fixing of a
limit of exclusive fishing in order to preserve the spawn and brood of
fish. It was universally believed, and stated by all the witnesses,
including Mr James Cornish, an ichthyologist of repute, that the fish
spawned in the shallow water near the shore,--an erroneous opinion
that has prevailed almost to the present day, but which was shown
to be incorrect by the observations made by the Fishery Board for
Scotland[1132] and others.

It was deemed to be of great importance that the breeding fish, and
the eggs which they were supposed to deposit near the shore, should be
protected from alleged injurious modes of fishing; and the Committee
recommended statutory enactments to establish close-times, and to
prohibit the use of trawl or drag nets within a league from the shore
or in water less than ten fathoms in depth. They inquired carefully
as to the limit which would be sufficient for this purpose. Most of
the fishermen were of opinion that the distance of one league would
be sufficient to include the “breeding-grounds,” and bring them under
the protection of the law; but they held that the distance should be
measured not from the shore, following its sinuosities, but from a
straight line drawn from one headland to another,--an opinion with
which the Committee concurred.

No immediate action was taken by the Government to establish a
definite boundary for exclusive fishing, and petitions and memorials
continued to pour in from various parts of the coast complaining of
the depredations of French fishermen. They were accused of interfering
with British fishermen engaged in dredging for oysters fifteen miles
from the shores of France; of fishing for herrings and mackerel within
less than a mile of the British coasts, compelling the native fishermen
to shoot their nets to the seawards of them; of maliciously destroying
fishing gear, and of recklessly extirpating the spawn and brood of fish
in the shallow waters along the English coast. The Government were
urged to give effect to the recommendations of the Committee of 1833,
and they were asked by the Commissioners for the Herring Fishery to
issue instructions to the naval superintendent in Scotland to prevent
the encroachments complained of.[1133]

From a perusal of these petitions it is evident that much doubt
existed at the time, not only in the minds of fishermen but among many
in authority, as to what was the precise limit of exclusive fishery
that might be claimed or enforced. As a general rule, it was believed
to extend much farther than a league from the shore. Many fishermen
maintained that the boundary was three leagues, an opinion strongly
held in Scotland as late as 1862. The fishermen of Eyemouth, probably
influenced by traditions of the extent of the “reserved waters” in
earlier times, asked that foreigners should be “kept without the
limits prescribed by law, and that limits (_sic_) be seven leagues,”
declaring that they went that distance themselves, and were annoyed and
endangered by foreign vessels taking up the ground.

On the part of French fishermen there were also numerous complaints
against the English, the most bitter referring to the dredging for
oysters off the French coast. In 1837 a mixed commission was appointed
by the British and French Governments in connection with these
complaints, and especially to ascertain and define the limits within
which the subjects of the two countries respectively should be at
liberty to fish for oysters between Jersey and the neighbouring coast
of France. The opportunity was taken at the same time “to define and
regulate the limits within which the general right of fishery on all
parts of the coasts of the two countries shall be exclusively reserved
to the subjects of Great Britain and of France respectively,” and a
convention was concluded at Paris in 1839 defining these rights.[1134]
By its articles a very considerable stretch of water containing
oyster-beds, in the Bay of Granville on the French coast, between
Cape Carteret and Point Meinga, south-east of Jersey, and extending
far beyond the three-mile limit, was reserved exclusively for French
fishermen, the boundaries being minutely defined and laid down on a
chart annexed to the convention; and British fishermen were prohibited
from carrying on any kind of fishing, even for floating fish, within
this area. The bay thus appropriated is over seventeen miles in
breadth, and the closing line passes in some places about fourteen
miles from the shore.[1135] This concession to France was a recognition
of the principle that fisheries of this nature--that is, for objects
which are attached to or stationary on the bottom--require special
treatment.

The article defining the general fishery limit on the coasts of the two
countries was as follows:--

“ARTICLE IX. The subjects of Her Britannic Majesty shall enjoy the
exclusive right of fishery within the distance of three miles from
low-water mark, along the whole extent of the coasts of the British
Islands; and the subjects of the King of the French shall enjoy the
exclusive right of fishery within the distance of three miles from
low-water mark, along the whole extent of the coasts of France; it
being understood that upon that part of the coast of France which lies
between Cape Carteret and Point Meinga, French subjects shall enjoy the
exclusive right of all kinds of fishery within the limits assigned in
Article I. of this Convention, for the French oyster fishery.

[Illustration: Fig. 16.--_Showing the Limits reserved for French
Fishermen in Granville Bay._]

It is equally agreed, that the distance of three miles fixed as the
general limit for the exclusive right of fishery upon the coasts of the
two countries shall, with respect to bays, the mouths of which do not
exceed ten miles in width, be measured from a straight line drawn from
headland to headland.”

* * * * *

The next article defined the miles to be geographical miles, of which
sixty make a degree of latitude; and it was also provided that with a
view to prevent the collisions which from time to time took place “on
the seas lying between the coasts of Great Britain and of France,”
between the trawlers and the line and long-net fishermen of the two
countries, a mixed commission should be appointed to prepare a set
of regulations for the guidance of the fishermen in the seas above
mentioned. The code of regulations so arranged was confirmed by the
respective Governments in June 1843, and was in this country embodied
in an Act of Parliament. They embraced a large number of subjects,
many of them beyond what was contemplated in the convention. Besides
what may be termed police regulations, such as the numbering and
lettering of fishing-boats, there were others defining and restricting
the fishing apparatus to be employed;[1136] and all this machinery of
regulation was to be applied to British and French fishermen pursuing
their industry in the extra-territorial waters.

This convention was the first to establish by an international
agreement the three-mile limit as the boundary of exclusive fishing
on the British coasts, so far as French fishermen were concerned.
In view of the numerous conflicts and disputes, it was clearly of
importance that some limit should be precisely fixed, but the
selection of so narrow a strip of the adjacent sea was in some respects
unfortunate, and has probably acted injuriously on the interests of
the sea fisheries. It was imposed, no doubt, partly because it was
the limit already recognised in England and America as bounding the
territorial seas for the purposes of neutrality, and because it was
deemed sufficient to afford protection to the breeding fishes and
fish-spawn, one of the objects the Parliamentary Committee had in view
in recommending it.

The disputes between the fishermen of the two nations were not set at
rest by the convention. Numerous infringements of the new boundary of
exclusive fishing occurred, and the difficulty of causing it to be
respected was for many years considerable.[1137] As many as twenty-one
French vessels were seized and taken into Berwick at one time for
transgressing the limit, and the convention was naturally not looked
upon with favour in certain French seaports.[1138] Nor was it generally
regarded among the fishery classes in this country as a triumph of
diplomacy. In Scotland it was thought that the British Government had
made a very bad bargain in parting with the exclusive right to fish for
herrings beyond a limit of only three miles instead of three leagues,
the boundary maintained to be the “legal” and just distance, for the
sake of obtaining, as it was supposed, some fancied advantage for the
English oyster fishermen.[1139]

The convention, moreover, was binding only on French and British
subjects. It left unsettled the limit in relation to other nations,
and the inconvenience of this was shown by the action of Belgian
fishermen. While the French were excluded from the three-mile zone, the
Belgians not only fished within it, but in many cases they anchored
their vessels in the Scottish harbours and bays and fished in the
neighbouring waters from their small boats. In 1848 the commissioners
for the British fisheries brought the question before the Board of
Trade, and they were advised to enforce the boundary laid down in the
Anglo-French convention with respect to Belgian and all other foreign
boats also.[1140] Against this procedure strong remonstrances were made
by the Belgian fishermen, and these were followed by representations
from the Belgian Government. The Fishery Commissioners, who were
anxious that the law in regard to foreigners fishing on our coasts
should be made clear, continued to press the matter. The Belgian
fishermen then produced to the naval superintendent a copy of the
charter that had been granted by King Charles II., in 1666, to the
citizens of Bruges,[1141] under which they claimed equal privileges
with British subjects. That charter appears to have been generally
regarded as fictitious; but, acting on the advice of the Queen’s
Advocate, the Board of Trade directed that for the ensuing season of
1851 Belgians should be allowed to fish on the same system as before,
but that afterwards this liberty should cease, except in the case of
such as had been able to prove special privileges under the asserted
charter in the English courts of law. The dispute was settled by
a convention between Great Britain and Belgium in 1852, in which,
without mention of any specified limit, it was stipulated that Belgian
fishermen should enjoy the same rights of fishing on the coasts of
the United Kingdom as the most favoured foreign nation, and, in like
manner, that British subjects should enjoy corresponding rights on
the coast of Belgium.[1142] This convention was more beneficial to
Belgium than to us, as the Fishery Commissioners pointed out, owing to
the extent of the respective coasts conceded for fishing, but it was
thought to be satisfactory, inasmuch as defined rights were substituted
for vague and disputed privileges. Nevertheless, as the Belgian
Minister remonstrated that sufficient time had not been afforded for
trying in the British courts the validity of the charter “alleged” to
have been granted to the fishing vessels of Bruges, the vessels of that
port were allowed for one season more (namely, 1852) the privilege of
using the Scottish harbours for their fishing vessels and of fishing
from them with small boats.[1143] When the authorities attempted in
1852 to enforce the convention against Belgian vessels other than those
of Bruges, by excluding them from our harbours, so much dissatisfaction
was caused that the Belgian Minister again appealed to the British
Government, and the restriction was relaxed for another year for all
Belgian boats, so that the enforcement of the three-mile limit against
them did not come into operation till 1853.

The violations of the boundary by French vessels, above referred to,
continued for many years, and the disputes were sometimes so frequent
and serious as to occasion the employment of seven or eight gunboats
on the east coast of Scotland to maintain the law. Yet the three-mile
limit, as the Commissioners declared, was but “a slender privilege”
to retain for the native fishermen. “The extent of it,” they truly
said, “when looked at from the sea appears small indeed, seeming but
a narrow slip lying close under the high cliffs of the land, and when
it is taken into account that the whole sea outside is free to every
comer, whether British or foreign, the slight boundary within shore
ought to be strictly kept.” Sometimes, however, the French were accused
of infringing the limit from a common misconception on the part of our
fishermen that the boundary was the traditional one of three leagues
or nine miles, instead of only three miles. Upon explanation, they
admitted their misapprehension, “but,” said the Commissioners, “with a
significant expression of their wish that it had been leagues instead
of miles.”

The French herring vessels swarmed chiefly about Berwick and the coast
of Northumberland, and in 1853 a question of the limit at the Farne
Isles was raised by the French commodore. He interpreted the words of
the convention (which did not specify islands) as meaning that the
three miles was to be measured from low-water mark on the mainland,
which would have allowed the French to fish close to the islands. The
British naval superintendent, on the other hand, held that the limit
extended to three miles from low-water mark on the islands as well,
but, pending a legal opinion, he released two French vessels he had
seized for fishing within that distance from them. The Queen’s Advocate
decided in favour of the latter interpretation, and the point does
not appear to have been again raised.[1144] The infringement of the
boundary by the French gradually became less frequent, and in 1867 it
was reported that they had begun to fish at a greater distance from the
coast than formerly, and even out of sight of land.

At this time it was found to be desirable to conclude another fishery
convention with France. Nearly all the elaborate regulations under the
convention of 1839 had turned out to be unworkable or were disregarded,
and much difference of opinion existed as to what actually were “the
seas lying between the British Islands and France” to which they
applied.[1145] In this second convention, in 1867, the exclusive
fishery limits of the two countries were defined as in the convention
of 1839, and the boundaries of the large area in the Bay of Granville
or Cancale, reserved for French fishermen, were precisely the same as
before.[1146] The international “extra-territorial” regulations under
this convention were much less detailed than in the previous one.
Fishing beyond the reserved limits was to be entirely free, with the
exception that a close-time for oysters was established for the English
Channel. The police regulations were to apply to “the seas surrounding
and adjoining Great Britain and Ireland,” and adjoining the Atlantic
coast of France, between the frontiers of Belgium and Spain. The
conditions under which the fishing-boats of one nation might enter the
exclusive fishery limits of the other, such as by stress of weather,
were carefully specified; and each boat while there was to hoist a blue
flag, and was again to leave as soon as the exceptional circumstances
had ceased. The convention was to continue in force for ten years, and
afterwards from year to year, terminable on twelve months’ notice. But,
although confirmed by an Act of the British Parliament, in 1868,[1147]
it was not ratified by France, and its provisions never came into
practical operation, except with regard to the close-time for oysters,
owing to certain objections raised by the French Government.[1148]
Certain of its provisions, including, amongst others, the article in
the convention defining the exclusive fishery limits, were repealed by
the Sea Fisheries Act, 1883.[1149]

Both conventions, as we have seen, dealt with oyster fisheries in a
special manner, and on the coast of France a large area, extending
much beyond the three-mile limit, was reserved to French fishermen on
account of the valuable oyster-grounds it contained. An interesting
point was raised by the Irish authorities. It happened that Ireland
also possessed productive and extensive oyster-beds on the coast of
Wexford, stretching for many miles beyond the exclusive fishery limits
laid down in the convention, and the Irish authorities claimed the
right of control over the whole of them. They had enforced regulations
there before the first convention with France, in 1889, had been
entered into, and at that time they protested against its application
to Ireland. Accordingly, in the Act of 1843 giving effect to the
convention, a clause was inserted empowering the Board of Trade, with
the sanction of the Privy Council, to suspend the operation of the
convention in Ireland or any part thereof, so long as the fisheries
there should be carried on exclusively by British subjects, and also to
make bye-laws for enforcing the Act as soon as French boats frequented
Irish waters for the purpose of fishing.[1150] On the day following the
passing of the Act an Order in Council was issued directing “that the
said Act and articles of regulation shall be suspended with respect to
the fisheries of the whole coasts of Ireland, so long as such fisheries
shall be carried on exclusively by the subjects of Her Majesty.”

The matter was again raised in connection with the convention of 1867,
and it was associated with a recent act of jurisdiction by the Irish
authorities beyond the three-mile limit. Some Welsh boats which had
been dredging for oysters on the coast of Wexford, at a distance, it
was said, of four or five miles from the shore, were arrested, taken to
Wexford, the fishermen fined, and the oysters forfeited. The Board of
Trade thereupon asked the Irish Department, with reference to an Act
that had been passed in 1842 to regulate the Irish fisheries,[1151] to
state what were “the limits of the Act to regulate Irish fisheries” in
pursuance of the provisions of which they presumed they had acted, and
“whether the oysters in question were captured within those limits.”
The reply was that the oysters were taken two and a half miles from
the shore, but that the most extensive and valuable oyster-beds on
the east coast of Ireland lay at a distance of from five to ten miles
from and parallel to the shore, and so far as they, or any other beds,
were “within the reach of ordinary shore boats, and were habitually
frequented by and afforded the means of living to a shore population,
the Commissioners conceive they are justly entitled to be considered
Irish beds, and to come within their control.”[1152]

The Irish Members of Parliament strenuously supported this contention,
and they succeeded in getting a clause inserted in the Convention
Act of 1868 enabling the Irish Commissioners, with the approval of
the Queen in Council, to regulate the dredging for oysters on any
oyster-beds situated within the distance of twenty miles seawards from
a straight line between Lambay Island and Carnsore Point--an area
of nearly 1300 square (geographical) miles, outside the three-mile
limit, including the Arklow and Wexford banks, and stretching from
twelve and a half to nineteen miles beyond the ordinary limit. All
such regulations were to “apply equally to all boats and persons on
whom they might be binding,” and they were binding “on all British
sea-fishing boats, and on any other sea-fishing boats in that behalf
specified in the Order, and on the crews of such boats.”[1153] By an
Order in Council, dated 29th April 1869, regulations were made under
this section of the Act appointing a close-time; but no other boats
than British boats were therein specified.[1154]

In the interval between the two conventions with France, referred to
above, there were some other treaties that dealt with territorial
waters to which allusion may be made. The provisions of the treaty
of 1818 with the United States respecting the fishery rights on the
coasts of the British dominions in America (see p. 581) had given rise
to disputes, and in particular the words “within three marine miles of
any of the coasts, bays, creeks, or harbours.” This was interpreted by
the British and Colonial Governments as meaning that the boundary of
three miles was to be drawn, not everywhere along the coast following
all its sinuosities, but, where bays or creeks existed, from a straight
line passing from one headland to another across their mouth or
entrance--that is, according to the principle now known as the headland
doctrine. The United States, on the other hand, generally contended
that the words meant that the three-mile limit was to be measured
everywhere along the coast from the line of the shore, following it in
all its curves and indents, thus eliminating altogether any special
treatment for inlets or bays, and dealing with all parts of the coast
as if it were an open coast. There is little doubt that the British
interpretation was the correct one. This is evident from the previous
usage with regard to bays as shown by the rules relating to the King’s
Chambers and the practice of the Admiralty Court in England, and the
reserved firths in Scotland, and by the claim advanced by the United
States with respect to neutral rights in 1806. It is also evident from
the language of previous treaties. That of 1686 between France and
Great Britain referred to “havens, bays, creeks, roads, shoals, or
places”; in that of 1783 between Great Britain and the United States,
“coasts, bays, and creeks” are spoken of; and in that between the same
Powers in 1794, with respect to neutral rights, it was agreed that
ships should not be taken “within cannon-shot of the coast, nor in
any of the bays, ports, or rivers of their territories.” It is clear
that a distinction was drawn between coasts and bays--a distinction
which is now and always has been recognised in international law,
which is made in the North Sea and other fishery conventions of recent
times, and is claimed by the United States with regard to their own
coasts.[1155] If no such distinction between coast and bays was meant
in the clause of the treaty of 1818, then the words “bays, creeks, and
harbours” are without meaning and superfluous, a construction which
is contrary to the rule which requires that effect be given to every
word in a contract or treaty. That the British construction was correct
was virtually admitted by Mr Webster, the American Secretary of State,
when he said in a State paper, 6th July 1852, that “it was undoubtedly
an oversight in the convention of 1818 to make so large a concession
to England, since the United States had usually considered that those
vast inlets, or recesses of the ocean, ought to be open to American
fishermen as freely as the sea itself, to within three miles of the
shore.” He admitted, moreover, that the word bay applied equally to
small and large tracts of water situated between capes or headlands.

[Illustration: Fig. 17.--_Bay of Fundy._ A, _United States territory_.]

In 1824, and again in 1838 and 1839, British cruisers seized American
vessels for fishing within the Bay of Fundy, the Bay of Chaleurs, and
elsewhere in contravention of the treaty of 1818; and in 1843 the
schooner _Washington_ was arrested for fishing in the Bay of Fundy at a
distance of ten miles from shore, taken to Yarmouth, Nova Scotia, and
sold. In the diplomatic correspondence which followed these seizures,
the two Governments took up the position as to the interpretation of
the treaty which is referred to above; but eventually, in March 1845,
Lord Aberdeen intimated that the British Government, while adhering
to their interpretation, would as a matter of courtesy relax the
rule with regard to the Bay of Fundy, and allow “the United States
fishermen to pursue their avocations in any part of it, provided they
should not approach, except in cases specified in the treaty of 1818,
within three miles of the entrance of any bay on the coast of Nova
Scotia or New Brunswick.” The Bay of Fundy (fig. 17) is a very large
but typically landlocked inlet of the sea, passing between Nova Scotia
and New Brunswick for a distance of about 140 miles from its mouth.
As with many other bays, there is more than one cape or projection of
land that might be taken as its headlands, but one of them is clearly
in the United States; and the distance from it to the opposite coast is
from forty to fifty-five nautical miles, while the bay itself at sixty
or seventy miles from the entrance is over twenty-five miles in width.
Chaleur Bay, between New Brunswick and Quebec, is a little over sixteen
miles in width and over sixty miles long (fig. 18).

The United States declined to receive the above-mentioned privilege
as a favour, and the colonists made a strong representation to London
as to the injurious results that would ensue if the proposed policy
were adopted; and in 1849 the British law officers of the Crown gave
their opinion on the provisions of the treaty, “that the prescribed
distance of three miles is to be measured from the headlands or extreme
points of land next the sea of the coasts, or of the entrance of the
bays, and not from the interior of such bays or inlets of the coast;
and consequently that no right exists on the part of American citizens
to enter the bays of Nova Scotia, there to take fish, although the
fishing, being within the bay, may be at a greater distance than three
miles from the shore of the bay.”

In terms of the convention of February 8, 1853, the case of the
_Washington_, above described, came before referees in London, and
on their disagreement it was decided by the umpire, Mr Joshua Bates,
in favour of the United States. His conclusion was that the Bay of
Fundy was not a British bay, nor a bay within the meaning of the word
as used in the treaties of 1783 and 1818, but belonged rather to the
class which comprised such bays as the Bay of Bengal and the Bay of
Biscay, over which no nation can have the right to assume sovereignty.
He also pointed out that one of its headlands was in the United States;
and he thought that the doctrine of the headlands had “received a
proper limit” in the Anglo-French convention of 1839, where a ten-mile
base-line was adopted.

[Illustration: Fig. 18.--_Bay des Chaleurs._]

A few years before this, negotiations had been opened between the
Governments with the view of establishing reciprocal free-trade between
Canada and the United States, and in June 1854 a treaty was signed at
Washington, commonly known as the Reciprocity Treaty, by which certain
articles of produce of the British colonies and of the United States
were admitted to each country respectively free of duty, and reciprocal
rights of fishery were granted. The subjects of either state were to be
free to fish along the coasts and in the bays, harbours, and creeks
of the other, without any restriction as to distance from the shore,
in Canada, New Brunswick, Nova Scotia, and Prince Edward’s Island, and
on the eastern coast of the United States north of the 36th degree
of north latitude. On each side salmon and shad fisheries, and the
fisheries in rivers and the mouths of rivers, were reserved.[1156]
This treaty was to endure for ten years, and it was terminated by
the United States and came to an end on 17th March 1866, when, in
consequence, the provisions of the treaty of 1818 again came into
force. The British Government, however, being very desirous to prevent,
as far as possible, the loss to the citizens of the United States by a
sudden withdrawal of the privileges which they had enjoyed for twelve
years, decided to allow American fishermen to continue to fish in all
provincial waters upon the payment of a small fee.[1157] From the
neglect of American fishermen to obtain the licenses, the fee for which
had been raised from fifty cents to two dollars per ton, the system
was discontinued in 1870, and orders were given to British cruisers
to exclude American vessels from fishing in territorial waters, and
several of them were seized and forfeited. The Canadian Minister of
Marine and Fisheries issued instructions, in May 1870, for the same
limits as are contained in the Anglo-French convention of 1839 to be
put in force against American fishermen; but, on representations from
London, these were withdrawn and other instructions issued to the
commanders of the cruisers, in which bays of six miles or less in width
at the mouth were alone reserved.[1158]

Further negotiations between the Governments ended in the treaty
of Washington in 1871, in which reciprocal rights of fishing were
re-established in much the same way as in the treaty of 1854, but
the liberty to British subjects to fish on the coast of the United
States was restricted to the part north of the 39th degree of north
latitude.[1159] Under this treaty it was agreed to appoint joint
commissioners to determine the amount of compensation, if any, which
should be paid by the United States for the greater privileges granted
to American citizens by the treaty; and this commission met at Halifax
in 1877, the sum of 5,500,000 dollars being so awarded. The award was
not received with favour in the United States, and notice was given at
the end of the stipulated ten years for the abrogation of the treaty,
and the articles referring to the fisheries were so terminated on July
1, 1885, the provisions of the convention of 1818 again, for the third
time, coming into force. Further troubles and disputes occurred, not so
much in relation to fishing within territorial waters, as to American
vessels frequenting colonial ports for the purchase of bait, salt, &c.,
a liberty which was not granted by the treaty of 1818, and several
of them having been seized, retaliatory measures were threatened by
the United States. After negotiations between the two Governments
another treaty was signed at Washington, on February 15, 1888, the
principal British plenipotentiary being Mr Joseph Chamberlain. This
treaty provided for the appointment of a mixed commission to delimit
“the British waters, bays, creeks, and harbours of the coasts of Canada
and of Newfoundland, as to which the United States, by Article I. of
the Convention of 20th October 1818, between Great Britain and the
United States, renounced for ever any liberty to take, dry, or cure
fish.” The delimitation was to be marked upon charts by a series of
lines regularly numbered and described, the three marine miles being
measured from low-water mark, “but at every bay, creek, or harbour,
not otherwise specially provided for in this treaty, such three marine
miles shall be measured seaward from a straight line drawn across the
bay, creek, or harbour, in the part nearest the entrance at the first
point where the width does not exceed ten marine miles.” A large number
of bays were specially dealt with by lines specified, that of Chaleurs
being closed, or by other special lines from which the three miles
was to be measured; and other articles in the treaty regulated the
entry of American fishing vessels into colonial ports. It was further
provided that whenever the United States removed the duties on fish and
fish-oils from Canada and Newfoundland, United States’ vessels would
be licensed, free of charge, to enter the colonial ports and harbours
to purchase provisions, bait, ice, seines, and all other supplies and
outfits, to tranship their catch, or for the shipping of crews.

But, inasmuch as the above treaty could not possibly be ratified
before the commencement of the next fishing season, the British
plenipotentiaries, in order to avoid a recrudescence of the usual
friction and irritation, and to afford evidence of their anxious desire
to promote good feeling, agreed, in a protocol of the same date, to a
“temporary arrangement for a period not exceeding two years, in order
to afford a _modus vivendi_ pending the ratification of the Treaty.”
This arrangement granted the privilege to American fishing vessels of
entering the bays and harbours, on payment for an annual license of a
fee at the rate of one and a half dollars per ton, in order to purchase
bait, ice, and all other supplies and outfits, to tranship their catch
and ship crews, and gave them some other privileges, declaring also
that forfeiture was to be exacted only for the offence of fishing or
preparing to fish in territorial waters.[1160]

Unfortunately, this treaty failed to pass the Senate of the United
States and was never ratified, and the system temporarily adopted as
a _modus vivendi_ has been regularly renewed since, and is still in
force.[1161]

It is to be noted that the arrangement in the treaty, both as to
drawing lines on charts to separate the common from the exclusive
fishing waters and for the adoption of a ten-mile base-line for bays,
was proposed, not by the British Government, but by that of the United
States. The British Government, indeed, strongly objected to a ten-mile
line as involving “a surrender of fishing rights” and making “common
fishing-grounds of the territorial waters which, by the law of nations,
have been invariably regarded, both in Great Britain and the United
States, as belonging to the adjacent country,” and they cited the Bay
of Chaleurs as an example. They argued that in the convention with
France in 1839, and in other similar conventions, the boundary-lines
selected were due to special configuration of the coast, and could not
be well settled “by reference to the law of nations”; and attention was
called to the claims of the United States to Delaware Bay and other
bays on their coasts. In reply to these observations of the British
Government, the United States said they had proposed the width of ten
miles not only because it had been adopted in fishery conventions,
but also because it was deemed reasonable and just in the case in
question; “while they might have claimed a width of six miles as a
basis of settlement, fishing within bays and harbours only slightly
wider would be confined to areas so narrow as to render it practically
valueless, and almost certainly expose the fishermen to constant danger
of carrying their operations into forbidden waters; a width of more
than ten miles[1162] would give room for safe fishing more than three
miles from either shore, and thus prevent the constant disputes which
this Government’s proposal, following the conventions above noticed,
was designed to avert.”[1163]

Nevertheless, notwithstanding this proposal by the United States’
Government, the limit now enforced for bays on the coasts of British
North America is that of six miles, with the exception of the Bay of
Chaleurs.[1164] It was apparently found that the attitude adopted
by the British Government in 1870, then stated to be temporary and
exceptional, of allowing the United States’ fishermen to fish “except
within three miles of land, or in bays which are less than six miles
broad at the mouth,” ought to be adhered to, during the existence of
the _modus vivendi_ and pending the ratification of the treaty of 1888.
If a recent statement of the Under-Secretary for Foreign Affairs, made
in the House of Lords, represents the policy of the British Government
at the present day, this six-mile limit for bays is to be regarded as
established not alone for British North America, but for every part of
the British dominions unless specially provided for otherwise. (See p.
730.)

From the foregoing summary of the disputes, negotiations, and treaties,
concerning the rights of Americans to fish on the coasts of the British
possessions in North America, it is evident that the British Government
has gradually given way to the pressure exerted by the United States.
In allowing a six-mile line for bays they have, indeed, as just shown,
gone further than was demanded, and have departed from the terms of the
fishery conventions which they have concluded with European Powers.
The basis of the delimitation adopted in the treaty of 1888 was, as Mr
Chamberlain intimated to Lord Salisbury, derived from the North Sea
Convention of 1882, to which important treaty we must now turn our
attention.

It has been already said that the fishery convention with France in
1867 was not ratified by that country, and never came into operation
in the general police regulation of the fisheries in extra-territorial
waters. The desirability of international regulations to preserve
the peace between the fishermen of various countries frequenting
the neighbouring seas, and particularly the North Sea, soon became
apparent. Complaints of malicious interference with one another
increased in number. The Belgians and French were accused of cutting
and stealing the lines of Scottish fishermen, and the Dutch of taking
their derelict nets, and the Fishery Board for Scotland accordingly
pressed upon the Government, as early as 1876, the advantage of
negotiating a fishery convention with Holland.[1165] A little later
the free use by foreign trawlers of a destructive implement known as
“the devil,” or “the Belgian devil,” aroused a strong feeling among
British drift-net fishermen. The instrument consisted of a shank and
sharpened flukes, which was hung overboard and was designed for the
sole purpose of cutting fishing-nets in the sea which might impede
the movement of the boat making use of it. It was a product of the
disputes and difficulties that occurred in carrying on trawling and
drift-net fishing in the same localities at the same time. The British
Government in January 1880 appointed Mr W. H. Higgin, Q.C., to make
an inquiry on the subject. His report[1166] showed that the state of
things with regard to fishing operations in the North Sea by British,
Belgian, French, and Dutch boats was unsatisfactory. He found that
grievous injury and damage had been done to the drift-nets and tackle
of English fishermen in the North Sea by trawlers belonging to France,
Belgium, and Holland;[1167] that there was no international law or
convention between England and France, England and Belgium, or England
and Holland, affecting the fisheries in the North Sea,--the convention
with France in 1867 never having been ratified, while that of 1839
was, he said, confined to the English Channel and referred only to
French fishermen; and he stated that some international law of the
kind was urgently required, as it would be impossible otherwise to put
a stop to the outrages described. In consequence of this report the
Government invited the co-operation of France, Belgium, Holland, Sweden
and Norway, and Denmark in devising a remedy, suggesting that separate
agreements might be made for the purpose. At the instance of Holland,
it was agreed to have one joint convention, and a conference of the
North Sea Powers was convened at The Hague, in 1881, to negotiate it,
Germany, at her own request, being included.[1168]

In the proceedings at the conference the question that caused
the greatest difficulty and discussion was the definition of the
territorial waters or exclusive fishery limits. The British Government,
in curious contrast to their action earlier in the century, desired
to avoid any definition at all. The memorandum prepared by them as
the basis of the deliberations, stipulated that the convention should
“apply to the high seas generally outside the fishery limits of the
countries joining in the convention.” This somewhat vague, not to
say illogical, phraseology did not meet with the approval of the
other Governments. It was objected to by France in particular. That
Power had accepted the invitation to the conference on condition
that the regulation to be agreed upon should be restricted to police
rules intended to prevent conflicts between fishermen of different
nationalities, “and to secure to them the free practice of their
calling in the common waters of the North Sea.” In making a special
convention dealing with the open sea which was common to all, it seemed
to it impossible to do otherwise than begin by defining the limits
within which it was intended to operate.[1169] The French delegates at
the conference therefore proposed that the extent of the territorial
waters should, for fishery purposes, be defined in precise terms,
and they endeavoured further to get the limit made as contracted as
possible. They urged that the boundary should be fixed everywhere at
three geographical miles from low-water mark, whatever might be the
configuration of the coast. As to fixing a larger measurement for bays,
as in the Anglo-French convention of 1867, they argued that the rules
laid down on this subject in the convention in question ought not to
apply to the North Sea; in many instances these rules had reference
only to the interests of oyster fisheries, which, they said, did not
exist in the North Sea. The French contention regarding bays was thus
similar to that of the United States in the negotiations concerning the
treaty of 1818; and it was of course to the interest of France, whose
own coast would be but little affected, and whose fisheries along the
British coast in the North Sea were of great importance, to have the
exclusive fishery limit made as narrow as possible.

The proposal that the territorial waters for fishery purposes ought to
be precisely defined, and that the limit on the open coast should be
fixed at three geographical miles from low-water mark, was generally
accepted, Belgium alone supporting the British view that it was better
not to define them in the convention. But as regards bays, objection
was taken to the French scheme on the part of Germany, with special
reference to the mouth of the Elbe, which was declared to be a part of
the sea belonging exclusively to Germany; and on the part of Norway,
on the ground that that country could not agree to fix the limit at
three miles, particularly with respect to bays. The rights which
particular states might have acquired, it was urged, ought not to be
prejudiced, and “bays should continue to belong to the State to which
they at present belonged.” The French delegates then formulated their
proposition in the following terms: “In the North Sea the limit of
the part known as territorial waters (_mer territoriale_) is fixed,
whatever may be the configuration of the country, at three miles from
low-water mark, along the whole length of the shores of ... It is,
however, understood that this shall not be taken to modify in any way
the rights acquired on certain parts of their coasts by the different
Powers to whom the shore belongs;” or else, “It is, however, understood
that the present convention shall not be taken to modify in any way the
rights which any Government may possess outside the three-mile limit in
bays.”

As the British and French delegates could not agree on this subject,
further discussion was postponed until the former had consulted their
Government. When this was done, they announced that their instructions
did not permit them to adopt the French proposals; and they continued
to press the draft article for acceptance, declaring that the question
of defining the limits of the maritime jurisdiction of the various
countries did not fall within the province of the convention. The
other delegates, however, did not share this view, and when a complete
definition was insisted on, the British representatives ultimately
agreed to accept the terms employed in the first article of the
Anglo-French convention of 1867, and they submitted the following
article: “The fishermen of each country shall enjoy the exclusive right
of fishery within the distance of three miles from low-water mark
along the whole extent of the coasts of their respective countries. As
regards bays, the entrances of which do not exceed ten miles in width,
the distance of three miles shall be measured from a straight line
drawn from headland to headland.” The counter-proposal on the part of
France did not materially differ from this, except by the inclusion of
islands, by the better definition regarding bays, and by the insertion
of a clause providing for the right of free navigation and anchorage
in territorial waters.[1170] The German delegate, anxious about the
waters at the mouths of German rivers, urged that flats or banks
uncovered at low water should also be included, as well as islands.
This proposal had been agreed to by the British Government in 1868,
after correspondence between the Foreign Office and the German Embassy
in London, and though apparently not now desired by Great Britain, it
was formally adopted.[1171]

The article as finally agreed upon was as follows: “The fishermen
of each country shall enjoy the exclusive right of fishery within
the distance of three miles from low-water mark along the whole
extent of the coasts of their respective countries, as well as of the
dependent islands and banks. As regards bays, the distance of three
miles shall be measured from a straight line drawn across the bay,
in the part nearest the entrance, at the first point where the width
does not exceed ten miles. The present Article shall not in any way
prejudice the freedom of navigation and anchorage in territorial waters
accorded to fishing-boats, provided they conform to the special police
regulations enacted by the Powers to whom the shore belongs.”

[Illustration: Fig. 19.--_Showing the Sandbanks at the mouth of the
Ems._]

It is interesting to note that, at the instance of the Dutch president,
the conference agreed that the provisions of the convention would
not be applicable to the Zuiderzee; and that in deliberating on the
boundaries of the North Sea within which they would apply, it was
agreed to exclude the Skagerrack, the fisheries of which, it was
stated by the president, were not international, but were “essentially
within the jurisdiction of the States to which the shores belong.” The
greater part of the Zuiderzee, however, would have been excluded by
the definition of bays in the convention, and the rest of it by the
inclusion of “banks”; but the Skagerrack, on the other hand, is nowhere
less than sixty geographical miles from shore to shore. Neither Norway
nor Denmark has asserted since the convention exclusive jurisdiction in
its moiety of these waters, where, in point of fact, both English and
German vessels now carry on an extensive fishing.[1172]

Some other points of interest were raised during the deliberations of
this important conference. It was asked by the president: What would
be the fate of the convention during war, in which one or two of the
Governments joining in it should be belligerents? Would the fishery
cruisers of the Powers concerned merely retire from the North Sea
and leave fishermen of their nationality without protection or help?
He recommended that the conference should adopt the principle that
fishing-boats, _bonâ fide_ engaged in fishing, should be declared
neutral. This was to revive a subject that had earlier, especially
during the time of Napoleon I., caused much discussion, and which was
remote from the object of the convention; and the proposal, though
sympathetically received by the French delegates, was not supported
by any of the Governments. A proposal of another kind was made by
the German delegate. He thought it was necessary that restrictive
measures should be enforced to prevent the destruction of the fry of
fish and the taking of small fish; for example, by forbidding trawling
within a certain distance of the shore, so as to provide a shelter for
the free development of fish, and by regulating the construction of
trawl-nets. The British and French delegates were opposed to any system
of restriction, relying on the results of the inquiry which had been
then recently made by Messrs Buckland and Walpole,[1173] and on the
part of France the following draft clause was formulated for insertion
in the convention: “In the extra-territorial part of the North Sea,
fishery shall be free at all seasons, and with all kinds of implements,
without any sort of distinction.” The clause was not adopted, and it
was generally agreed that the question was not ripe for decision by
that conference, which was moreover concerned with the police of the
fisheries, and not with the reproduction of fish, in the North Sea.

The North Sea Convention was concluded in 1882, the signatory Powers
being Great Britain, Germany, France, Belgium, Denmark, and the
Netherlands.[1174] Although the delegates of the United Kingdom of
Sweden and Norway signed the protocol and were present at the final
deliberations, those Powers did not join in the convention, objections
being raised as to the definition of the territorial waters and on some
other points.[1175] An additional article was inserted providing that
the King of Sweden and Norway might adhere later, for both or either
country; but this has not been done, though the coast of Norway forms
a not inconsiderable part of the boundary of the North Sea as defined
in the convention. The reasons which induced these countries to abstain
from joining in a friendly agreement with the neighbouring Powers of
western Europe, after having accepted the invitation to the conference
and taken part in its deliberations, must have appeared to them strong;
and from the delay that occurred in coming to a decision it is evident
that the matter received full consideration. They believed, however,
that to agree to so restricted a boundary for their territorial waters
in respect to fishery would be disadvantageous to them: it is probable,
moreover, that the raising of the question was not foreseen, since the
object of the conference was to consider the police of the fisheries in
extra-territorial waters in the North Sea. It is curious, indeed, that
the limits for exclusive fishery, both in the convention with France in
1839 and with the other North Sea Powers in 1882, were fixed as it were
incidentally.

The duration of the convention was to be for five years from the
date at which it came into operation, unless one year’s notice to
terminate it were given by any of the contracting Powers; and it was
to continue in force from year to year subject to similar notice. That
none of the signatory Powers have withdrawn from the convention is the
best proof of its general utility. From the number and influential
position of these states, and from the character of the sea to which
it applies,--one of the most productive in the world,--this convention
is an international document of high importance to the sea fisheries,
and deserves careful consideration. The first article declares that the
provisions shall apply to the subjects of the high-contracting parties,
the object being “to regulate the police of the fisheries in the North
Sea outside territorial waters”; and the limits of the North Sea were
carefully defined.[1176] The provisions of the convention relate to
the registration, lettering, and numbering of boats, the operations
of fishermen pursuing different methods of fishing at the same place
at the same time, the malicious use of instruments for cutting nets,
the salvage of derelict fishing-gear, and the superintendence by
cruisers. It was put in force in this country in 1883 by an Act of
Parliament,[1177] which also extended its application, so far as
British sea-fishing boats were concerned, to the whole of the seas
around the British Islands, whether within or without the exclusive
fishery limits. In this Act the stipulation in the second article
of the convention, as to the freedom of navigation and anchorage in
territorial waters on the part of foreign fishing-boats, received
a limiting definition. The clause in question was inserted in the
convention at the instance of France, and was accepted with some
reluctance by the British delegates, who agreed to it in general terms
only, without the recognition of a right.[1178] By the Act foreign
fishing-boats were prohibited from entering the exclusive fishery
limits of the British Islands except for purposes recognised by
international law, or by any treaty or arrangement in force between
this country and any foreign state, or for any lawful purpose. If a
foreign boat did enter, it was to return outside the limits as soon
as the purpose for which it entered had been answered, and fishing or
attempting to fish within the limits was, of course, forbidden under
penalties.

The definition of the exclusive fishery limits in the North Sea
Convention differed in two respects from that contained in the previous
conventions with France. The rule for the measurement of bays was
modified, and the dependent islands and banks were expressly included
as part of the coast from which the limit should be measured. In the
Anglo-French conventions of 1839 and 1867 bays which did not exceed
ten miles in width at the mouths were comprised in the reserved
waters, and the three-mile limit was measured from the line joining
the “headlands.” Thus some bays whose width at the mouth, or between
their headlands, exceeded ten miles were deprived of the benefit of
the principle applied to bays and came under the three-mile rule,
even although at a small distance within the entrance the width might
not exceed ten miles. Since all bays have not headlands, the French
proposal at The Hague conference to substitute “the two extreme points
of the bay” for that term was an improvement. Still better was the
definition finally adopted, to place the base-line at the first point
nearest the entrance where the width did not exceed ten miles. The
specific inclusion of islands removed such difficulties as were raised
in 1853 by a French commodore at the Farne Islands (see p. 618), though
it had long been established in connection with the rights of neutrals
that islands carried with them, no less than the mainland, the belt
of territorial sea. The inclusion of banks was, however, novel, and
was not received with favour by the British Government. It was feared
that it would lead to difficulties and complications in future if such
banks as the Goodwin Sands, which were situated beyond the three-mile
limit, and the similar banks on the German and Dutch coasts, were
held to be territorial dependencies of the coast; and so strong was
the objection of the British Government to their inclusion, that they
instructed their ambassadors abroad, if an objection was raised by any
Power, to have this definition reconsidered.[1179] The objection is
theoretically well founded. Sand-banks of this character may be not
permanent, and usually vary in extent, configuration, and position
with lapse of time and even after a single tempest; and the extent of
sea appendent will vary likewise. It would thus be difficult to fix a
precise and permanent limit in connection with them. Moreover, since
the banks may be covered by the sea except at low-water without losing
their territorial value, it would sometimes require more than ordinary
care on the part of foreign fishing-boats to avoid infringing the
limit around them. On the other hand, for the purpose of regulations
designed to protect fish life, such as are referred to in the sequel,
banks of this nature are of especial value; and, in point of fact,
few difficulties in practice appear to have arisen on this score in
carrying out the convention.[1180]

On one or two points, however, the definitions in the convention
might have been improved. Nothing is said as to the tides at which
low-water mark is to be taken for measurements, though on certain
coasts the extent of territorial water will vary much according to
whether it is a neap or a high spring tide; and the question whether
certain banks are or are not territorial and entitled to the limit
may vary in the same way. It is to be presumed that the tide is an
ordinary neap tide, as in English law. More important is the fact
that “rocks” are not included along with islands. Quite recently the
omission has given rise to difficulties in regard to three places on
our coast--viz., the Eddystone, the Bell Rock, and the Seven Stones
Rocks, off the Scilly Islands. The Seven Stones Rocks are a reef near
the south-west extremity of Cornwall, about seven miles from Land’s
End, and about a mile in length, and with a lightship at it; but it
does not appear that any portion is above the sea-level at low-water
of neap tides. Complaints were made to the Government by the Cornwall
Sea Fisheries Committee that French fishing-boats fished within three
miles from the rocks, and close to them; but it was stated by the
Admiralty, and also by the Foreign Office, that these rocks could
not be claimed as being within British territorial waters.[1181] In
this case, presumably, the decision might rest on the fact that the
rocks do not appear at low-water of ordinary tides. The Eddystone is
somewhat different. The rock or reef on which the lighthouse is placed
lies about fourteen miles south-west of Plymouth, and while covered
by the sea at high tide, is exposed to the extent of an area of about
500 yards at low-water of neaps. French fishermen also fish around
it and close to it, a practice which caused the Devon Sea Fisheries
Committee to complain. The gunboat _Circe_, in August 1905, seized
and took into Plymouth two French “crabbers” for fishing within three
miles from the Eddystone, but after communicating with the Board of
Trade, instructions were sent to release the boats; and the Board
of Agriculture and Fisheries, while saying that they were not in a
position to express an authoritative opinion on the matter, called
attention to the decision in 1902 regarding the somewhat similar case
at the Seven Stones. Here, no doubt, the decision rested on the absence
of the specific inclusion of “rocks,” as distinguished from islands, in
the conventions, and one can understand the expression of surprise by
the Devon Sea Fisheries Committee that a rock which was recognised as
British, and was inhabited by lighthouse-keepers, was not considered as
within the territorial limit for fishing purposes.

Similar complaints have been made concerning the Bell Rock, which lies
about ten miles east-south-east of Arbroath, Forfarshire, and has a
lighthouse upon it. It is entirely covered at high-water; at the ebb
of spring tides it is uncovered to a depth of four feet, while at
low-water of neap tides the top of the rock is just visible, and would
then probably acquire validity for the measurement of three miles
from it and around it, if rocks had been included in the conventions,
as they are now included in the recent convention between this country
and Denmark concerning Iceland and the Faroës (p. 647). The case
of the Seven Stones and the Eddystone is, however, on a different
footing; for while the limit of exclusive fishery along the coasts of
the North Sea, with the exception of the part formed by Norway, was
settled by the convention of 1882 (so far as concerns the fishermen
of the signatory Powers), there appears to be some obscurity as to
how far the three-mile limit operates on the coasts that lie outwith
the boundaries of the North Sea,--such, for example, as the west
coasts of England and Scotland and the coasts of Ireland. The second
article of the convention declares, without qualification, that the
three-mile limit shall apply “along the _whole extent_ of the coasts”
of the respective countries,--it does not say merely to the North Sea
coasts,--and the view that this stipulation operates on all the coasts
appears to be widely prevalent, and is expressed, for example, in the
Belgian law which put the convention in force in that country.[1182]
It is, however, held by legal authorities that since the special
object of the convention was “for the purpose of regulating the police
of the fisheries in the North Sea outside territorial waters,” and
as the boundaries of the North Sea are defined “for the purpose of
applying the provisions of the present Convention,” the definition of
the exclusive fishery limits applies only within the area specified,
and not to the other coasts of the signatory Powers.[1183] In the
Convention Act, as in the Territorial Waters Jurisdiction Act, we
accordingly find a distinction drawn between the exclusive fishery
limits under international law and those under specific treaties or
conventions. In the definition clause, the expression “British Islands”
is explained to mean the United Kingdom of Great Britain and Ireland,
the Isle of Man, the Channel Islands, and their dependencies, and it is
declared that “the expression ‘exclusive fishery limits of the British
Islands’ means that portion of the seas surrounding the British Islands
within which Her Majesty’s subjects have, by international law, the
exclusive right of fishing, and where such portion is defined by the
terms of any convention, treaty, or arrangement for the time being in
force between Her Majesty and any Foreign State, includes, as regards
the sea-fishing boats and officers and subjects of that State, the
portion so defined.”[1184]

From all this it would appear that, notwithstanding the ambiguity
introduced by the unqualified phrase “the whole extent of the coasts of
their respective countries,” the definition of the exclusive fishery
limits in the convention of 1882 applies only to the coasts of the
North Sea. In the convention of 1839 with France, on the other hand,
there seems no reason to doubt that the three-mile limit was applied
to all parts of the coasts of Great Britain and France respectively.
By Article ix. it was declared that the exclusive right of fishing was
reserved for subjects within that distance “along the whole extent of
the coasts” of each country; and the British Act of Parliament to carry
into effect this convention, and the international regulations agreed
upon under it, so far from expressing any qualification or reservation
as in the Act of 1883, made it clear that the limit applied generally.
In the preamble it is stated that “Whereas a Convention was concluded
between Her Majesty and the King of the French ... defining the limits
of the oyster fishery between the island of Jersey and the neighbouring
coast of France, and also defining the limits of the exclusive right
of fishery on all other parts of the coasts of the British Islands
and France”; and Article 85 of the regulations enacted that the
fishing-boats of the one country, except under certain circumstances,
“shall not approach nearer to any part of the coasts of the other
country than the limit of three miles specified in Article ix. of the
convention.”[1185]

In the convention of 1852 between Great Britain and Belgium, which
was simply entitled “relative to fishery,” without any particular
purpose, seas, or regions being specified, it was stipulated that
“Belgian subjects shall enjoy, in regard to fishery along the coast
of the United Kingdom of Great Britain and Ireland, the treatment of
the most favoured foreign nation.” The most favoured foreign nation at
that time was France, and although no distance was fixed in the Belgian
treaty, there is no doubt the three-mile limit applied, and was indeed,
as stated above, enforced, on the east coast of Scotland against the
Belgians as well as against the French.

In the convention of 1867 the same limit was assigned “along the whole
extent of the coasts” of the two countries; and the provisions of the
convention were expressly stated to apply beyond the exclusive fishery
limits, in the one case “to the seas surrounding and adjoining Great
Britain and Ireland,” and in the case of France to the seas adjoining
the coast of that country between the frontiers of Belgium and Spain;
and the object of the convention was “relative to fisheries in the seas
between Great Britain and France.” As already stated, this treaty, with
an unimportant exception, did not come into effect, and the convention
of 1839 remained in force.[1186]

As no other treaties exist defining the exclusive fishery limits
along our coasts than those referred to, the position in relation
to conventional law appears to be as follows. With respect to France
and Belgium, the three-mile limit, with the ten-mile line for bays,
seems to be in force along the whole extent of the British and Irish
coasts. With respect to the other Powers which were parties to the
North Sea Convention of 1882,--namely, Germany, Denmark, and the
Netherlands,--this limit is in force only on the eastern, or North
Sea, coasts of England and Scotland. On the north and west coasts of
Scotland, the south and west coasts of England, and the whole of the
coast of Ireland, the limits of exclusive fishery as regards these
countries, and as regards all countries except France and Belgium,
fall to be determined by the principles of international law. With
respect to all other nations, as, for example, the Norwegians, Swedes,
and Spaniards, the limits on all parts of our coasts also fall to be
determined under international law. The principles of international
law, as expounded by the accredited writers, do not, as will be shown
later, and as is implied in the quotations from the Acts above cited,
support the view that the right of exclusive fishing, apart from
treaty, must necessarily be restricted to the three-mile limit. The
preponderance of opinion is that the boundary of the territorial sea,
including, therefore, the exclusive right of fishery, coincides with
the range of guns from the shore; and it is evident that as against
such nations as claim for themselves a greater extent than three miles
on their own coasts--viz., Norway, Sweden, and Spain--a larger limit
than that contained in the conventions could be rightfully enforced on
the British coasts.

There are many things to show that the unsatisfactory state of
affairs, not to say confusion, with respect to the limits of exclusive
fishing to which we are entitled on various parts of our coast, has
been brought about partly by a widespread belief that the boundary
under international law is three miles, partly also by what must be
characterised as a want of knowledge and care on the part of those
dealing with the question. Mr T. H. Farrer, the permanent Secretary
of the Board of Trade, told a Committee of the House of Commons in
1876 that the convention and regulations with France were “hastily
and recklessly” made,[1187] and the record of the proceedings at the
conference at The Hague in 1881 shows that it would not have been a
difficult matter to clear up some of the obscurity that exists. One
point of importance is that, notwithstanding the absence of any treaty
or agreement defining the extent of the limits of exclusive fishery
with certain nations, the three-mile limit alone has been enforced
against the vessels of such nations fishing on our coasts. This has
been the case, except for a brief period, with respect to Norwegian and
Swedish trawlers in the Moray Firth in Scotland, which is “closed” to
British trawlers, and the vessels of these two nations are thus put on
the same footing as those of other countries with which a convention
has been made. It is also the case on the west coast of Scotland,
where the limit of three miles is enforced against foreign trawlers,
apparently irrespective of nationality, and certainly against Dutch and
German vessels as well as against Belgians in the Clyde, from which
British trawlers are excluded.[1188] How far this undoubted usage may
modify the position under international law it would be of importance
to determine.

A more recent convention must be referred to, which, however, does
not relate to the coasts of this country, but to those of the Danish
islands, the Faröes, and Iceland, where British trawling vessels carry
on extensive operations. The Icelanders, who depend so much upon their
fisheries, were desirous of having a considerable extent of the waters
around their coasts reserved to themselves, and wished to have a limit
of seven miles to protect the grounds from the action of foreign
fishing-boats.[1189] As a result of negotiations, however, with Great
Britain, Denmark agreed to the usual limit of three miles. The treaty
was signed at London on 24th June 1901, and after ratification was
brought into force on 31st March 1903 by an Order in Council of the
12th of that month. Its main object, apparently, was to regulate the
fisheries of the subjects of the two countries outside territorial
waters in a large part of the ocean surrounding the Faröe Isles and
Iceland, in a small part of which extensive fisheries are now carried
on by foreigners, especially by English and German trawlers; but its
immediate effect was to impose the three-mile limit on the coasts in
question. The article defining the territorial waters is the same as in
the North Sea Convention, except that islets and rocks are included,
which thus gets rid of some possible difficulties in interpretation,
such as have arisen in connection with the Eddystone and Bell
Rock.[1190]

[Illustration: Fig. 20.--_Showing the Limits for the Anglo-Danish
Fishery Convention of 1901._]

CHAPTER IV.

THE MODERN PRACTICE OF STATES AND THE OPINIONS OF RECENT PUBLICISTS.

We may now pass to the consideration of the modern practice of states
with respect to the extent of territorial sea which is claimed or
allowed by them, and of the opinions of the later writers on the
law of nations as to the extent that may be rightfully conceded
or appropriated. It will be found that there is apparently a very
considerable discrepancy between the one and the other. For while
the opinions of publicists have on the whole become more decided
and definite as to Bynkershoek’s principle being the true principle
for the delimitation of territorial waters, and the inadequacy of
the three-mile limit has been formally declared, the general usage
of states is indicated by the common adoption of the latter limit
for several purposes. As elsewhere stated, this general use of the
one marine league is in large measure owing to the example, or the
pressure, of Great Britain and the United States of America, and
perhaps chiefly, if indirectly, to the influence of the latter.
Although the United States more than any other Power has varied her
principles and claims as to the extent of territorial waters, according
to her policy at the time--now claiming the vague and wandering
“boundary” of the Gulf Stream or the whole of Behring Sea, and now the
liberty to fish right up to the shores of the Falkland Islands,--she
has been consistent in this, that she has steadily and constantly
pressed for the narrowest limit she could get in favour of her own
fishermen on the coasts of the British North American Colonies. The
unhappy heritage of the British Foreign Office that came from the
abnegation of territorial dominion over large parts of the waters
in question by Great Britain in former times, has been as fruitful
of trouble as Lear’s renunciation of his sovereignty. The numerous
negotiations as to the rights of fishing on the coasts of British North
America have always resulted in concessions to the United States, and
appear to have been conducted, as they were almost bound to be, rather
in the light of the general political relationship of the two Powers
than on the intrinsic merits of the particular question at issue; and
thus in Canada and Newfoundland British diplomacy on this subject
has often been criticised. Obviously, when British policy takes this
course in regard to North America, one must expect for the sake of
consistency, if on no other ground, that it will tend to take the same
course elsewhere. An example of this was quite recently shown, when
a concession of the kind referred to, as to the rule for bays, which
was granted during a _modus vivendi_ as a temporary act of grace,
was spoken of as if it were now definitely incorporated in British
international policy (see p. 730).

The discrepancy alluded to between the authorities on the law of
nations and the common usage is perhaps more apparent than real. The
international treaties and municipal laws in which a limit is fixed
refer to a few subjects, and in particular to fisheries, and they
relate to times of peace. The most vital attributes of the territorial
sea relate to the security, the obligations, and the rights of neutral
states in time of war; and there has happily been no great maritime war
in Europe for a long time to put the principles to the test. But when
such a war does come, there is little doubt that during hostilities the
three-mile limit will be set aside by the neutral states concerned, and
another and greater limit fixed for security, in closer correspondence
with the actual range of guns. It is to be further noted, that
notwithstanding the numerous municipal enactments and the international
conventions in which the three-mile limit is fixed for certain
purposes, no state seems to have formally and deliberately defined the
absolute extent of the neighbouring sea which it claims as pertaining
to it under all circumstances. Many states--and Great Britain is one of
them--have taken pains to make it clear that in adopting a three-mile
limit for particular purposes they do not abrogate their right to the
farther extent of sea that may be necessary for other purposes.

Though Germany has not defined the extent of her territorial waters
by municipal law,[1191] she has entered into agreements with various
Powers respecting the limits of exclusive fishery. The first of these
was made with Great Britain in 1868, and the rules for the guidance
of British fishermen, issued by the Board of Trade in accordance with
it, stated that,--“The exclusive fishery limits of North Germany are
designated by the North German Government as follows: that tract of the
sea which extends to a distance of three sea-miles from the extremest
limit which the ebb leaves dry of the German North Sea coast, of the
German Islands or Flats lying before it, as well as those bays and
incurvations of the coast which are ten sea-miles or less in breadth,
reckoned from the extremest points of the land and the flats, must be
considered as under the territorial sovereignty of the North German
Confederation;” and it is further said that the exclusive rights of
fishery in the above spaces are reserved to Germans, and English
fishermen are not at liberty to enter these limits except under
certain specified circumstances, as of wind and weather.[1192] These
limits were again formally recognised by Great Britain in July 1880,
and, according to Perels, were further confirmed by the North Sea
Convention of 1882. It is obvious that “the extremest limit which the
ebb leaves dry,” both for the open coast and for bays, will differ
considerably on such a coast as that of Germany from the low-water mark
of ordinary tides, and that the space included in the measurement will
be correspondingly enlarged. Germany also agreed with Denmark, in 1880,
to the three-mile limit for the adjacent coasts of the two countries
in the Baltic, with a ten-mile base-line for bays, the mid-line or
_thalweg_ applying where the waters between the respective coasts were
less than six miles in width. More recently, an agreement has been
concluded precisely defining on charts the exclusive fishing waters of
the two countries in the Little Belt.[1193]

Denmark is one of the Scandinavian countries which, as previously
mentioned, claimed a wide extent of territorial sea. In 1812 the
limits, both for Norway and Denmark, were defined as follows in a
royal ordinance: “We will that it be established as a rule in all
cases where it is a question of determining the maritime boundary of
our territory, that that territory shall be reckoned to the ordinary
distance of one marine league from the outermost islands or islets
which are not overflowed by the sea.”[1194] The league in these
Scandinavian ordinances, as previously mentioned, is one-fifteenth of
a degree, or four geographical miles, and therefore one mile more than
the ordinary three-mile limit. But, in point of fact, owing to the
method of measurement adopted, the space of sea included as territorial
is much greater. Instead of computing the four miles from low-water
mark on the shore, which is the base usually taken, it is measured
from an imaginary straight line connecting the outermost points of the
permanently visible isles or rocks lying farthest from the coast. In
some places the extent of water thus cut off as territorial is very
considerable. Though the other Scandinavian countries, Norway and
Sweden, have maintained this limit to the present day, it has been
in practice abandoned by Denmark, which has adopted the three-mile
limit in certain agreements with Germany, in the North Sea Convention
of 1882, and in the recent treaty with Great Britain with respect to
Iceland and the Faröes. In the Skagerrack and Cattegat she concedes the
three-mile limit to German and British fishermen, and no doubt also
to the fishermen of the other nations which were parties to the North
Sea Convention; and it is of interest to note, with reference to the
discussion on a former page as to the extent of coast really comprised
in the North Sea Convention, that it is in virtue of this convention
that the old boundary of four miles has been abandoned there.[1195] But
while Denmark has taken up this attitude with reference to English
and German fishermen, it is claimed on her behalf by an eminent
Danish authority that it is within her right still to maintain the
old geographical league as the boundary of her territorial sea,[1196]
and this has indeed been recently done in a fishery convention with
Sweden, which claims the same limit with regard to the fisheries in the
Cattegat, the Sound, the Baltic along the Swedish coast from Falsterbo
to Simbrishamn, and around the islands Bornholm and Kristiansö.[1197]

[Illustration: Fig. 21.--_Showing the two Limits in Danish Waters; the
dotted line shows the Scandinavian Limit._ From ‘Dansk-Fiskeritidende.’]

It is to be noted that the terms used in this treaty in defining the
limit differ from those in the ordinance of 1812. The ordinance speaks
of islands and islets which are not submerged or overflowed by the sea,
while the treaty mentions the outermost islets or rocks which are not
_constantly_ submerged or overflowed by the sea,--a distinction which
might make a very considerable difference in the extent of the waters
reserved.

We thus see that Denmark enforces two limits in connection with
fishery--one of four miles, measured according to the Scandinavian
method, in the Baltic, &c., as against Sweden (and doubtless also
against Norway); and the ordinary one of three miles in the Baltic,
&c., as against Great Britain and Germany at least, and also in the
North Sea and at the Faröes and Iceland. The various limits are shown
in the accompanying figure, which is a reproduction of the official
chart. It also shows how complicated the three-mile limit is among the
islands.

[Illustration: Fig. 22.--_The White Sea, showing the line between Cape
Kanin and Cape Sviatoi._]

The views of Russia with respect to the limits of territorial waters,
as expressed during the negotiations with Great Britain in the
earlier part of last century, have been referred to (p. 581), and
it appears from the Russian Code of Prize Law, 1869 (Art. 21), that
the jurisdictional waters, the extent of which had been fixed in her
treaties at the end of the eighteenth century at the range of guns,
are limited to three miles (about 5647 metres) from the shore. The
same distance was assigned for customs purposes; and as no general
boundary has been prescribed for the exclusive right of fishing, it
may be presumed that that right is restricted to the same space.[1198]
It appears that Russia also claims the White Sea as a _mare clausum_,
or _mer fermée_, within a line between Cape Kanin (Kanin Nos) and Cape
Sviatoi (Sviatoi Nos), where it is about eighty geographical miles in
width.[1199] If this claim is now made by Russia, it would probably be
difficult for her to make it good before an international tribunal, did
such exist. For not only is the mouth of the width stated, but the area
included is nearly 30,000 square geographical miles, only about twenty
per cent of which is within the ordinary three-mile limit. Until lately
the only foreigners who fished in the neighbourhood of the White Sea
were Norwegians, but in each summer since 1905 both English and German
steam-trawlers have carried on an important fishery in the vicinity of
Cape Kanin, but not within the White Sea itself, where the rocky nature
of the bottom is said to prevent this method of fishing.[1200]

In France, fishing in the sea beyond three miles from low-water mark
was declared by a decree of 10th May 1862 to be free all the year
round, except for oysters; but certain fisheries were allowed to be
temporarily suspended beyond the three-mile limit, if it was found
necessary for the preservation of the bed of the sea, or of a fishery
composed of migratory fishes.[1201] The first Article of the law of 1st
March 1888, which originated in the North Sea Convention, states that
“fishing by foreign vessels is prohibited in the territorial waters of
France and Algeria within a limit which is fixed at three marine miles
seawards from low-water mark,” with the same arrangement for bays as
in the North Sea Convention. The distance stated does not, however,
necessarily represent the bounds of the territorial sea, properly
so called, the extent of which has never been precisely defined by
France.[1202] No doubt France, like other countries, reserves her right
to a wider limit should occasion arise to make that necessary.

It appears that as early as 1832 the three-mile limit was declared by
Belgium to be the boundary of her territorial waters,[1203] and by a
law promulgated in 1891, and based upon the North Sea Convention, “all
foreign boats” were prohibited from fishing within three miles of the
Belgian coast.[1204]

In the Netherlands also, in connection with the North Sea Convention,
the boundary of exclusive fishing has been declared to be at the
distance of three miles from low-water mark, and this applies to all
foreign fishermen. No distinction has been formally made between the
fishery limit and the limit of the territorial sea for political
purposes.[1205]

In Austria-Hungary, whose coast is confined to the eastern shore of the
Adriatic, the three-mile limit has been adopted, subject to certain
qualifications respecting the right of fishery under treaties with
Italy. The regulations concerning foreign vessels of war authorise a
shot to be fired from the nearest battery at any such vessel which
does not show its flag on coming within range of the guns, and within
the same distance of a fortified port they are prohibited from taking
soundings, practising with firearms, &c.; other regulations forbid
vessels laden with goods which form the object of a monopoly of the
state from approaching within gunshot. By a decree of 23rd August
1846, and a circular of 28th April 1849, it was declared that the
expression “range of guns” in these ordinances was equivalent to three
marine miles of sixty to a degree. The customs regulations operate
within the same limit, but the manifest can be demanded within a
farther distance of four marine miles.[1206] With respect to the right
of fishing, the regulations are somewhat complex. The boundary of
exclusive fishing is fixed at three miles,[1207] but inasmuch as the
fisheries in the Adriatic are carried on almost only by Austrian and
Italian subjects, it was found convenient to arrange by treaty for the
fishermen of either country to fish within the territorial waters of
the other, except within a distance of one marine mile from the shore,
and subject to certain restrictions regarding the fisheries for corals
and sponges, and the observance of the local regulations.[1208] This
mutual arrangement with regard to the right of fishery was renewed and
continued in a later treaty of 11th February 1906.

The fishings within one marine mile of the shore are reserved to
the inhabitants of the commune to which the coast appertains; but
in certain specified circumstances fishermen from other places may
be allowed to fish within this communal zone. The use of drag-nets
and trawl-nets is prohibited in all places where the depth is under
eight metres; within the first maritime or communal zone at certain
seasons, irrespective of depth, and altogether within five miles of the
coast when employed from steamers. Owing to the absence of tides, the
shoreward limit is not measured from a low-water mark, but from a line,
fixed by local authorities, where the water ceases to be constantly
brackish.[1209]

It is doubtful how far the three-mile limit has been adopted in Italy.
In a Bill of 1872 a distinction was proposed between the territorial
waters and the exclusive fishing waters, but this distinction was not
made in the law of 1877.[1210] The question was taken up later by the
Commission for Fisheries, and the opinions elicited from the local
authorities at various parts of the coast, who were consulted, varied,
the recommendations for the boundary of the territorial waters (_mare
territoriale_) ranging from one and a half miles to ten kilometres,
and very commonly the limit suggested was four geographical miles.
The boundary recommended for the exclusive fishing waters (_mare
pescatorio_) also varied, but in this case the depth of the water
rather than the distance from shore was held to be the more important
factor in deciding on a limit, an opinion with which the Commission
agreed so far as concerned steam trawling. In view of the fishery
conventions of the western Powers, the Commission recommended a limit
of three miles and ten miles for bays, as in those conventions,[1211]
but the proposal was not accepted by the Italian Government. The
subject was again considered by the Commission in 1904 and 1906,
with particular reference to steam trawling and dredging, but no
proposition to determine the boundary of the territorial waters for
fishing purposes was adopted. A decree of 4th September 1908, however,
introduced a limit of three miles, but only with reference to the use
of dredges in some districts of the Tyrrhenian Sea.

With respect to the extent of the territorial sea for political
purposes, no definition has been given in Italian laws; it depends
therefore upon the general principles of international jurisprudence.
It is interesting to note that in some comparatively recent decrees the
boundary is stated to depend on the range of guns. Thus, instructions
issued by the Minister of Marine in June 1866 commanded the officers of
the navy to refrain from all hostile acts in the ports and territorial
waters of neutral Powers, and reminded them that the limit of the
territorial waters was the range of cannon from the shore; and in a
circular from the same Ministry in March 1862 it was stated that the
extent of the territorial sea varied in different countries and in
the opinion of different publicists, but that the general opinion was
that the range of guns was the sole rule on the matter.[1212] It may be
added that by the customs law of 1896, the manifest of vessels may be
demanded within ten kilometres of the coast.[1213]

In Greece, another of the Mediterranean states, the three-mile limit
was adopted in 1869, when a circular of the Minister of Marine
prohibited foreigners from fishing within that distance of the shore.
Previously, in virtue of a royal decree issued in 1834, foreign boats
were allowed to fish for sardines in the Gulf of Corinth, but this
concession was withdrawn.[1214]

As already mentioned, the three-mile limit is the one in force in
all the British colonies, in Japan,[1215] in the United States of
America, and in some at least of the South American states. The Chilian
Government, for example, has defined the extent of the territorial
sea belonging to it as one marine league from low-water mark, within
which distance the right of fishing is reserved to Chilian citizens
or domiciled foreigners. At the same time it is stated that “police
administration for the purposes of the security of the State or the
carrying out of fiscal regulations extends to a distance of four marine
leagues, measured in the same manner.”[1216]

Quite lately, however, one of the chief states of South America has
advanced a claim to a very wide extent of sea along its coasts--so far,
at least, as the right of fishery is concerned. In September 1907 the
Minister of Agriculture for the Argentine Republic issued a series of
ordinances for the regulation of the fisheries,[1217] in which it is
declared that, with respect to the fisheries, a zone of water up to
a distance of ten miles (18,520 metres, or about 10¼ nautical miles)
from high-water mark on the land is under the control of the state.
The great gulfs and bays are, moreover, included, such as the Gulf of
San Matias, the Gulf of St George, and the Gulf of Nuevo, the closing
line in some cases considerably exceeding one hundred nautical miles
from point to point, and extending for more than seventy miles beyond
a three-mile limit. All living animals in the sea are considered as
objects of sea-fishing, with the exception of those which reproduce
on the land, as birds, seals (_lobos_), and fish-otters. Within the
declared limits the exercise of sea-fishing is free, provided that the
regulations are adhered to. The one referring to trawling prohibits
that method of fishing by sailing-boats within three miles of the
shore, but allows such boats to trawl outside that distance if the
meshes of the nets have an aperture not less than 16 centimetres (6¼
inches); steam trawling, on the other hand, is prohibited within five
miles of the shore. Commercial fishing is forbidden within the great
extent of water referred to unless by vessels entered on the official
list (_matricula nacional_), and foreigners are thus excluded. A
novel feature, but one in complete harmony with the results of modern
fishery investigations, is the reservation of the right to close
any area within the limit claimed, so that such area or areas may
act as reserves to replenish neighbouring grounds and increase the
multiplication of the fish. The right to establish close-times is also
reserved, and the sale of undersized fish is prohibited unless for
certain specified purposes.

Special regulations are made for sealing. Concessions for this purpose
will be granted for a term of five years on various parts of the coast
under certain conditions, and it is enacted that for a distance of
twenty miles from the coast in such places the right of taking seals is
confined to those who have obtained the concession. Penalties for the
infraction of the laws are provided, fines varying from five to five
hundred pesetas, and offenders may be imprisoned for a period of from
one to sixty days.

Later regulations issued by the Minister of Agriculture, applying
to that part of the coast between the Rio de la Plata and the Rio
Negro, provide that all those engaged or who desire to engage in sea
fishing there, must first receive official permission to do so. Within
a zone of twelve miles from low-water mark, trawling by steamers is
prohibited, but trawling by sailing-boats, and fishing with various
kinds of lines and with drift-nets, are allowed; and all vessels
employed must fly the national flag, and have their crews partly
national, in accordance with the laws.[1218] It may be noted that
these regulations are declared to be for the purpose of preventing the
extermination of certain species of fish, and that the grantees must,
when requested, allow officials to be on board for scientific study.

The adjoining state of Uruguay also lays claim to jurisdiction, with
regard to fisheries at least, beyond the ordinary three-mile limit
in the extensive inlet of the Rio de la Plata, which lies between
Uruguay and Argentina, and is nearly sixty miles wide at its mouth,
with an estimated area of about 5000 square miles. In 1905 a Canadian
sealer, the _Agnes G. Donohoe_, was arrested for the contravention
of a presidential decree which prohibits sealing within these
Uruguayan waters, but it was subsequently released. The British
Government formally protested against this claim to jurisdiction
outside the three-mile boundary, which, however, is strongly supported
by the Argentine Government, which is equally concerned in its
maintenance.[1219]

It is evident from the foregoing that most maritime states, and all the
great ones, either by treaty or in their municipal laws and decrees,
have adopted the three-mile limit, at least for fishery purposes. It
is quite appropriate, therefore, to refer to it as the “ordinary”
limit, as was done by the Tribunal of Arbitration on the rights of
seal-fishing in the Behring Sea, though the tribunal did not affirm,
and could not affirm, that it found the three-mile limit to be, as
a matter of fact, universally accepted.[1220] But though it is the
ordinary limit, it is not the only one enforced, and it is erroneous
to declare, as some of the less instructed writers on international
law have stated, that territorial jurisdiction cannot be carried
further.[1221]

In point of fact, no fewer than four of the maritime states of Europe
reject the three-mile limit, while a fifth has in part deviated from
it. Norway, Sweden, Spain, and Portugal, all claim to enforce a wider
boundary, and Denmark has adopted the old Scandinavian limit in her
recent treaty with Sweden (see p. 655). Thus, along nearly 4000
miles of the coasts of Europe, or for about one-third of their whole
extent, the three-mile limit is not accepted by the bordering state.
The right claimed by these countries to a wider extent of territorial
sea has been embodied in treaties between some of them, and has been
successfully maintained in specific instances against the opposition
of other Powers. It is to be noted, moreover, as is shown later, that
their claims to the wider space have been quite lately fully justified
and homologated by the most authoritative exponents of international
law, the French Institute and the British Association on the Law of
Nations, as well as by various international congresses of fishery
experts dealing with the subject from a fishery point of view.

We have already stated that Spain in the eighteenth century declared
that her territorial sea extended to a distance of six miles from the
coast (see p. 569). At that time such a limit must have been regarded
as moderate, but during last century, after the principle of cannon
range had been commonly translated into one marine league, the right
to a zone of double that extent was called in question both by the
United States and Great Britain. During the civil war in America the
question came to the front, more particularly with reference to the
waters around Cuba. In 1862 the American Government intimated that they
were not prepared to admit that Spain, without a formal concurrence of
other nations, could exercise exclusive sovereignty upon the open sea
beyond a line of three miles from the coast; while Spain, relying on
the legal principle governing the extent of the territorial sea, argued
that the improvement of modern artillery made the three-mile limit
ineffective. Two years later a discussion on the subject took place
between the British and American Governments, the former desiring that
during the existence of hostilities the limit of neutral waters should
be greatly extended, so that shots from belligerents might be prevented
from falling, not only on land, but within the neutral waters, and
limits of ten, eight, and five miles were mentioned.[1222] In 1874 the
British Government had itself occasion to object to the claim of Spain;
and on communication with the Government of the United States, they
were informed that that Government had always protested against it,
and on the same grounds, that by the law of nations jurisdiction could
only extend to one marine league from the coast.[1223] Notwithstanding
the opposition of the two chief maritime Powers, Spain did not abandon
its claim, for by a royal order of 16th May 1881, passed with special
reference to the jurisdiction over American vessels in Cuban waters,
it was declared that full jurisdiction extended to a distance of six
miles from the coast. This limit was also fixed for customs purposes in
Spanish waters by royal decrees in 1830 and 1852, and in the general
ordinances of the customs in 1884, the six miles being stated to be
equivalent to eleven kilometres.[1224]

With regard to fisheries, Spain has entered into various treaties
with Portugal as to the right of fishing along their respective
coasts. By a convention in 1878, reciprocity was established in the
territorial waters of the two countries, subject to the observance of
local regulations and certain specified conditions, as the prohibition
of the use of drag or trawl nets (“_artes de Bou ou parelhas, chalut,
muletas_”) within twelve miles from the coast.[1225] In another treaty
concluded between these Powers on 2nd October 1885, and slightly
amended in 1888, two fishery zones were established, the first
extending to three miles from the coast, which was exclusively reserved
for nationals, and the second, from three to six miles, in which the
fishermen of both countries were at liberty to fish. In a later treaty
of commerce and navigation, which came into force in October 1893,
the zone of exclusive fishing was extended to six geographical miles
from the coast of either country--that is, to the extreme boundary
of the jurisdictional waters, measured from low-water mark of spring
tides (“de la línea de bajamar de las mayores mareas”), and a ten-mile
base-line for bays was adopted. Within this space the fishery and its
regulation were reserved by each state; but in the frontier rivers, the
Miño and Guadiana, the fishery was specially dealt with, as in previous
treaties. Each Government also agreed to prohibit certain injurious
modes of fishing (_parejas_, _muletas_, &c.) within twelve miles of
their coasts, and a series of regulations, like those of the North Sea
Convention of 1882, were included with respect to the entry of the
fishing-boats of one of the countries within the territorial waters of
the other, and the police supervision of the fishing-boats of either
country beyond the six-mile limit.[1226] In Spain the reservation
of six miles was regarded as unjust, since the water off the coast
of Portugal was much deeper than off the Spanish coast, and in the
following year the Portuguese Government allowed Spanish fishermen to
fish, under certain conditions, to within three miles of the coast of
Algarbe.[1227]

While it is evident that Spain and Portugal claim jurisdiction to
the extent of six miles from the coast, it appears that an exclusive
fishery to that distance is not enforced against all other nations.
It seems that on the Mediterranean coast, the three-mile, and not the
six-mile, limit is applied against French fishermen,[1228] and the
British Government, in the interests of British trawlers, recently
intimated that they did not recognise any claims of the Spanish or
Portuguese Governments to exercise jurisdiction over British vessels
beyond the three-mile limit; and, in point of fact, British and German
trawlers now fish off the Portuguese and Spanish coasts up to three
miles from the shore.[1229] They have developed an important and
extensive trawl-fishery there during the last few years; and although
the local fishermen strongly object to their presence within waters
where they are themselves prohibited to trawl, and it is stated that
negotiations on the matter have taken place between the London and
Lisbon Governments, they have not been ordered out of them, and still
continue their trawling. Both in Spain and Portugal meetings have been
held with reference to the territorial waters, at which resolutions
were passed calling for an international arrangement for the extension
of the limits to ten or twelve miles; and some unpleasant encounters
have occurred between the local and foreign fishermen. On these coasts,
however, a limit so extensive would largely prevent foreigners from
fishing, owing to the great depth of the water at such distances from
the shore. On the other hand, it is argued that as the available
fishing-ground is so narrow and small, there is all the more reason
why it should be protected from the destructive methods of fishing
pursued by the foreign vessels, and preserved as far as possible for
the inhabitants of the coast.[1230] Quite recently, it appears, the
Portuguese Government have regularised their position with regard to
foreign trawlers and foreign fishermen generally, by passing a law
forbidding them to fish, under severe penalties, within a zone of three
sea miles from the shore. They have thus accepted the inevitable, in
view of the pressure applied by at least one of the great maritime
Powers. With regard to bays, however, the limit specified in the
fishery conventions is not adopted. The zone of three miles in respect
to bays has to be reckoned according to the principles of international
law.[1231]

Spain, it may be added, after the victorious campaign of 1859-60,
concluded a treaty with Morocco, by which Spanish subjects are allowed
to fish on the coast of that country up to the shores, for corals,
sponges, and other marine products, as well as for fish.[1232]

The extent of the territorial waters claimed by Norway and Sweden is
even greater than that claimed by Spain and Portugal, owing to the
method of measurement, the distance of four geographical miles being
measured either from the coast or from the outermost part of the
outermost isle or rock which is not submerged by the sea at high tide.
Such isles and rocks are numerous on the Scandinavian coasts, so that
the fishermen distinguish the waters “within the rocks” (_inom skärs_)
from those “without the rocks” (_utom skärs_) or at sea, and in many
places the extent of water reserved by the rule is very considerable.
There appears, however, to be a difference in Sweden and Norway as
to the precise method of measurement. In Norway such isles and rocks
are appropriate for the base-line, if they are not farther from the
mainland than eight geographical miles of sixty to a degree; and it
seems to follow from the rule that the measurement from the coast or
shore must be made at high-water, but this is not expressly said.[1233]
In Sweden the isle or rock is spoken of as within one geographical
league of the coast, and it may be such as is not _continuously_
submerged, but is periodically uncovered, which implies a base of
low-water.[1234] On some parts of the Norwegian coast the territorial
sea may thus extend to twelve miles from the mainland. Bays and fjords
are, moreover, included in the territorial waters irrespective of
whether their width at the mouth is or is not greater than ten miles;
and in including these, as much importance is attached to the islands
which may lie at their entrance as to the distance between headlands.
With regard to large open ways or stretches of sea partly enclosed, no
fixed rule has been laid down, but Norway reserves the right in certain
cases to exceed the limit derived from the general principle as above
explained. On some parts of the coast special laws regulate the extent
of the sea in which the exclusive right of fishing is reserved to
subjects. The rich cod-banks on the coast of Söndmöre, Romsdal, and
Nordmöre are thus included within the territorial waters, the base-line
being drawn between various islands, in the manner described above.
The first of these was a royal decree of 16th October 1869, which
prescribed that a straight line drawn at a distance of one geographical
mile (of fifteen to a degree) from and parallel to a straight line
drawn between Storholmen and Svinö, shall be taken as the boundary of
the waters off the coast of the Söndmöre district, in which the fishing
is entirely reserved for the inhabitants of the country. Another
royal decree of 9th September 1889 continued this boundary farther to
the north-east. It ordained that a line drawn at a distance of one
geographical mile from and parallel to a line from Storholmen through
Skraapen (outside of Harö), Gravskjær (outside of Ona), and Kalven
(the last of the Orskjærens), to the last of the Jevleholme, outside
of Grip, was the boundary of the waters off the coast of the Romsdal
district, in which fishing is entirely reserved for the inhabitants of
the country.[1235]

[Illustration: Fig. 23.--_Showing the Limit at Romsdal Amt, Norway._

A, The base-line; B, the line of closure; C, the three-mile limit.]

This special line from Svinö (which lies about eight miles north of
Stadtland, or Van Staten) to Jevleholm stretches for about eighty-five
geographical miles along the coast,[1236] the distance between the
islets through which the base-line passes being respectively 28, 14½,
7, 23½, and 12 geographical miles, and some of them are over seven
miles distant from the mainland or the nearest large island. The extent
of water reserved is thus large, the area between the base-line and
the boundary-line being alone about 340 square miles; but the extent
of sea included which would be outside the ordinary three-mile limit
is much less than might be expected, owing to the great number of
isles and islets along the coast. In the accompanying figure (fig.
23),the part of the coast embraced by the law of 1889 is represented,
the base-line, the boundary of the reserved waters, and the ordinary
three-mile limit being shown. The area of water between the latter
and the Norwegian limit amounts, approximately, to 140 square miles.
The figure also shows how complicated a three-mile boundary based on
the provisions of the North Sea Convention would be on such a coast.
It is to be noted further, that within the limits prescribed by the
royal decrees a series of stringent regulations have been made for the
orderly prosecution of the fishery.[1237]

Of much greater international importance is the claim made by the
Norwegians to the exclusive right of fishing in the Vestfjord, an arm
of the sea which extends between the coast of Nordland and the Lofoten
Islands, where from time immemorial the greatest cod-fishing in Europe
has been carried on.[1238] It is, strictly speaking, a strait, as
indicated in the accompanying figure (fig. 24), bounded on one side
by a chain of islands and on the other by the mainland, opening to
the northwards by several narrow channels, and to the south by a wide
mouth about forty-five geographical miles in breadth. The waters of
the Vestfjord have for centuries been considered as territorial, and
the fisheries within them as reserved for the Norwegian people; but
no decree or law has as yet been promulgated respecting the boundary
between the reserved waters and the open sea.[1239] Locally, however,
as at Bodö, it is supposed that the line of closure runs from
Moskenæs on the west to Stot on the east, which are about forty-five
miles apart, and the length of the fjord from this line is about
sixty-five miles. As stated below, however, it appears from a letter
of the Minister of Foreign Affairs, in 1868, that the line may be
drawn from the southern part of Röst, a group of isles situated nearly
fifty miles from the mainland and about 110 miles from the extreme
head of the fjord. The total area within a line drawn from the south
end of Moskenæsö (Lofoten Point) to Möst Fjord is over 2000 square
(geographical) miles, about 900 square miles of this lying outside the
ordinary three-mile limit. Within a line from Röst to Kunna the total
area is nearly 3900 miles, about half being beyond the ordinary limit.

[Illustration: Fig. 24.--_The Vestfjord, Lofoten Islands._]

Another large expanse of sea, the Varangerfjord, in East Finmarken
(fig. 25), has been closed, with special regard to whaling, for a
distance up to one geographical mile (of fifteen to a degree) outside
a line drawn from Kibergnæs on the north to Jacobs River on the south;
and it is stated by the Norwegian Minister for Foreign Affairs that
the boundary mentioned has always been considered as indicating the
true limit of the territorial waters in the Varangerfjord. This arm
of the sea, claimed as territorial, is thirty-two miles wide at the
entrance and about fifty miles in length. The total area of the fjord
is about 630 square (geographical) miles, of which approximately 225
square miles are beyond the ordinary three-mile limit. Various laws
have been made by the Norwegian Government affecting whaling in this
quarter.[1240]

A Swedish decree of 5th May 1871 concerning the fisheries, defined the
extent of the territorial waters from the Norwegian frontier along the
coast to Kullen, at the entrance to the Sound, as one Swedish league
(equal to four geographical miles of 60 to a degree), reckoned from
the coast, or the farthest out island or rock which is not constantly
overflowed by the sea;[1241] and by the treaty with Denmark in 1899,
already referred to, the same limit is carried on from Kullen to
Falsterbo and up to Simrishamn in Christianstad. There does not appear
to be any corresponding decree for the eastern coast of Sweden.

[Illustration: Fig. 25.--_The Varanger fjord._]

Within the territorial waters as described above, Norway claims the
exclusive right to the fisheries and all the sovereign rights that
are usually exercised in territorial seas, as well as one that is not
as a rule included--namely, the right to control all navigation. All
vessels within the territorial waters are likewise subject to the
control of the customs authorities, while in Sweden the Customs Law of
1877 extends jurisdiction to a distance of one Swedish league from the
base-line. The Government does not rest its claim to so large an extent
of the bordering sea merely on the principle which is usually held to
determine its bounds--the range of cannon fire,--though it is pointed
out that the Norwegian boundary is in reality more in conformity with
the range of modern artillery than is the three-mile limit. They argue,
very truly, that the zone of one marine league, although adopted in
conventions between several Powers, has not been definitely established
in international law, and they have themselves always refused to agree
to a limit so narrow. But the principal reasons advanced are those of
necessity and utility. The Norwegian coast is peculiarly irregular.
It is engirdled by a multitude of islands, reefs, and rocks, and is
broken up by numerous fjords which penetrate deeply into the land.
A three-mile limit applied to such a coast on the principle adopted
in the North Sea Convention would be intricate, confusing, and
impracticable. The boundary would be exceedingly irregular, and patches
and strips of extra-territorial water of the most diverse size and form
would be intermingled with the territorial water; and in practice it
would be extremely difficult or impossible for foreign fishermen to
observe the complicated boundary, or for the authorities to enforce it.
Constant disputes would result.

Another reason put forward is a moral one. The country is comparatively
sterile; the climate is rigorous; the people are poor, and the
fisheries are of the utmost importance for their maintenance. A large
proportion of the population derive, and have always derived, their
livelihood from the sea, “with which they wage a desperate war in
the darkness and tempests of winter and spring to gain their daily
bread.”[1242] It is therefore only just that this natural source of
food along their coasts should be conserved as much as possible, so
long as the manifest rights of other nations are not violated, and that
the poor native fishermen, pursuing a hard and laborious calling, which
necessity has imposed on them, should be protected from the intrusion
of foreign vessels, better equipped and with more capital at their
disposal. It is further urged that the Norwegian fishermen have enjoyed
the wider area for many centuries. From immemorial times the right of
fishing has been regarded as pertaining to the land. This principle
was enunciated in the old provincial laws (_landskapslagar_) of Sweden
in the middle ages, and was continued in the laws of the kingdom since
the fourteenth and fifteenth centuries.[1243] It is also declared that
a smaller extent of territorial sea would interfere with the efficacy
of the regulations enforced for the preservation of the fisheries.
A lesser boundary would intersect the more important fishing-banks,
“making it impossible,” to quote the words of the Minister of the
Interior, “for the state to regulate the fisheries on the whole
bank, and it would be fatal to those fisheries which are necessary
for the subsistence of the coast population.” This consideration,
it is pointed out, is likely to have still more weight in future,
owing to the increase of the population and the impoverishment of the
fishing-grounds along the coast.

The claim of Norway to the wider extent of territorial sea has been
as a rule respected by foreigners, probably owing in the main to the
fact that its coasts are but little visited by foreign fishermen,
but it has not remained without challenge. The French Government on
one occasion complained that a French vessel had been prevented from
fishing in the Vestfjord; but the prohibition was justified by Norway
on the grounds that by the law of nations the Lofoten fisheries, and
especially those in the Vestfjord, which was “part of the territorial
sea,” belonged exclusively to the inhabitants, and that for centuries
no foreign vessels had attempted to take part in them.[1244] In
communicating the decision to the French Government, the Minister for
Foreign Affairs declared that the prohibition applied equally to
the adjacent sea and to the entrance to the fjord up to the distance
of a marine league (of four miles), measured from the most southerly
point of the isles called “Röst”--a group which lies about twenty-six
geographical miles west and south of Moskenæs, and about sixty
geographical miles from the mainland.[1245] In 1870 another foreign
Government raised objection to the limits defined off Romsdal by the
royal decree of 16th October 1869, on the ground that the base-line
drawn between the islands Svinö and Storholmen exceeded eight ordinary
marine miles in length, which was the maximum distance according to
the Norwegian principle, already referred to, for the inclusion of the
“outermost” island. The Norwegian Government, however, declared that
by the law of nations it was competent to include a bay or a gulf of
“not too large an extent” by drawing the line from one advanced point
to another, and that it was necessary to consider local circumstances
and what was natural, convenient, and just. The line that had been
drawn, they said, coincided with a natural depression in the bottom of
the sea which separated the inshore from the offshore fishing-banks,
and it formed a natural boundary which could be readily ascertained
by the use of a sounding-lead. To adhere strictly to the four-mile
line in this case would make the limit intricate and impossible to
be observed, and it would pass across the inshore banks. It was also
argued that till lately foreign fishermen had never attempted to fish
in the neighbourhood, even within a space far more extensive than that
comprised in the decree.[1246]

Since the period referred to, the limit claimed by Norway is said to
have been respected by foreign states and by foreign fishermen; and the
Scandinavian Government has officially declared on several occasions,
and notably in December 1874 to the British Government, that it would
never adhere to any international convention which established a
maritime zone of less than four marine miles. It declined to become a
party to the North Sea Convention of 1882 for this reason, and because
the line for the closure of bays was in its opinion much too small. The
only treaties with foreign countries in which a limit has been fixed
are the one between Sweden and Denmark, previously mentioned, in which
the Scandinavian boundary is maintained, and one with Mexico, in 1886,
for customs purposes, which stipulates for three marine leagues from
low-water mark.[1247]

It is evident that Sweden and Norway, besides claiming a greater extent
of territorial water than other countries, also claim in particular
cases to depart from the principles which in general govern their own
system of delimitation, in order to include other waters lying off
their coasts, when they deem it necessary to reserve the fisheries
there for their own subjects. In such cases it is said to be impossible
to be guided by geographical rules of an absolute kind, and it is
urged that any general international rules on the question should be
sufficiently elastic to allow of similar exceptions elsewhere.[1248]
There is little doubt that the wider area claimed by the Scandinavian
states is, from the point of view of sea fisheries, preferable to the
narrower zone adopted in the North Sea Convention. It will appear
later, that both the authorities on sea fisheries in various countries
and the authorities on international law agree as to the inadequacy of
the three-mile limit for fishery purposes: and it is hardly probable
that the Government of any other country will now seriously contest
the right of Sweden and Norway to the larger area they claim, unless
under exceptional circumstances. Norway has been fortunate in this
respect, that her coasts are rarely visited by foreign fishing vessels;
but this immunity is not likely to continue. During the last few years
the great feature of the sea fisheries both in Great Britain and also
on the Continent has been the enormous development of steam-fishing,
particularly trawling (see p. 698). Confined for a time to the North
Sea and the neighbourhood of their own coasts, steam fishing-vessels
now regularly visit distant quarters in large numbers, and trawlers
from England and Germany make the long voyage to the grounds off the
White Sea, traversing the whole coast of Norway, in quest of fish. The
absence of foreign competition in the fisheries of the Norwegian coast
is due largely to the generally rough and rocky nature of the bottom
and the great depth of the water, which make trawling difficult or
impossible; but there are, no doubt, within the territorial limits,
more or less restricted areas where trawling could be carried on with
success, and if these be discovered by foreign vessels, and they are
outside the ordinary three-mile boundary to which they are accustomed,
there is little doubt the question of the Norwegian claim will be
raised again. Line-fishing by steamers is now, moreover, greatly
developed, and this method of fishing can be pursued, and is now
pursued by the Norwegians, in deeper water and on rocky bottom, as
in the Vestfjord and off Romsdal. In the summer of 1907, indeed, one
or two British trawlers were seized by the Norwegian authorities for
fishing within their territorial waters at Finmarken, but were released
later.[1249]

From the account which has been given above of the recent practice of
civilised states it is apparent that the majority of them have adopted
the three-mile limit, with a ten-mile base-line for bays, for fishery
purposes. There is a tendency, moreover, for this process to be
continued and extended, as is shown by the recent treaty between Great
Britain and Denmark concerning the ocean around Iceland and the Faröes,
and the action of the British Government respecting the six-mile limit
on the coasts of Spain and Portugal. It is possible, and indeed likely,
that the Spanish and Portuguese Governments have protested against the
infringement of what they regard as their just rights; but if they are
unable or unwilling to maintain them, and the three-mile limit comes
to be the only one observed on their coasts, the usage will settle
the matter in the course of time. Up to the present, however, Norway
and Sweden have very justly resisted all attempts to impose on them
the ordinary limit and bring them into line with other Powers, and
they have successfully caused their wider bounds to be respected. The
diversity in practice between the Iberian and Scandinavian states and
the other states of Europe may be traced to the modes by which the
limits were evolved. In the former case, the boundaries were fixed in
the middle of the eighteenth century, without special reference to the
range of the guns of the time. The three-mile zone, on the other hand,
was developed early in last century from the doctrine of Bynkershoek,
three miles being then looked upon as approximately the range of cannon.

The general adoption of this limit, as previously said, was due in
great measure to the preponderating influence of Great Britain and
America in maritime affairs, the lesser states following their example,
willingly or with reluctance. It is not too much to say, indeed,
that the three-mile boundary in its origin and development is an
Anglo-American doctrine, its authors being Washington and Lord Stowell.
It is thus of interest to consider the opinions of modern writers on
international law on the question, and to see how far they agree with
or differ from their predecessors, whose opinions have been previously
passed under review. It will be found that, considering the extent to
which the three-mile limit has been actually applied in practice, the
writers who accept it as the established rule in international law
are singularly few, and are for the most part English or American. It
will be also noticed how extremely loose some writers, even of high
authority, are in their use of the terms “three miles _or_ the range
of guns,” as if they were now synonymous, which they are not. Such
looseness of phrase is not absent from some judicial decisions on the
question, as in that of Lord Cockburn in the case of Regina _v._ Keyn,
previously referred to (p. 591).

Another statement that one not uncommonly finds in the text-books,
and to which currency was given by Lord Stowell, is that _since_ the
invention of firearms the distance at which the power of the state,
and therefore the territorial waters, terminated, has usually been
recognised as about three miles from the shore. Calvo, a writer of much
authority, also makes this statement, affirming at the same time the
doctrine of Bynkershoek as the principle of delimitation.[1250] In view
of the range of modern artillery, he, however, considers this space too
small, and is of opinion that it ought justly, on grounds of logic and
reason, to be extended; but until this extension has been sanctioned
by a majority of states he looks upon the three-mile limit as the
established rule of international law. Much the same view is expressed
by Bluntschli.[1251] He defines the territorial sea according to the
range of guns, and says that international treaties or the laws of
states may fix more precise limits, such as one marine league from the
coast at low-water; but, considering the increased range of artillery,
he is disposed to think the three-mile limit insufficient. Phillimore,
one of the greatest English authorities, agrees with Calvo.[1252] He
states that the rule of law may now be considered as fairly established
that absolute property and jurisdiction in the adjacent open sea “does
not extend, unless by the specific provisions of a treaty, or an
unquestioned usage, beyond a marine league (being three miles) or the
distance of a cannon-shot from the shore at low tide.” The limit, he
says, was fixed at a marine league because that was supposed to be the
utmost distance to which a cannon-shot from the shore could reach;
and he adds that the great improvements recently effected in artillery
seem to make it desirable that this distance should be increased, but
he holds that this can be done only by the general consent of nations,
or by specific treaty with particular states. Phillimore, like most
of the other writers, was apparently ignorant of the fact that the
Scandinavian and the Iberian Powers claimed a limit much farther than
three miles.

Halleck follows Wheaton in saying that the general usage of nations
superadds to bays, &c., an exclusive territorial jurisdiction over
the sea for the distance of one marine league, or the range of a
cannon-shot, along all the shores or coasts of the state, and that the
maxim of law on the subject is _terræ dominium finitur ubi finitur
armorum vis_, “which is generally recognised to be about three miles
from the shore.”[1253] On the other hand, Lawrence, in his edition
of Wheaton (p. 321), says very definitely that all the space through
which projectiles thrown from the shore pass, being protected and
defended by these warlike instruments, is territorial and subject to
the dominion of the Power that controls the shore: “The greatest reach
of a ball fired from a cannon on the land is, then, really the limit of
the territorial sea.” Bishop, also accepting Bynkershoek’s principle,
says that a cannon-shot is estimated for the purpose of delimiting
the territorial seas at a marine league, but, like so many others, he
argues from the improvement of artillery that, “in reason, the distance
would now seem to require extension.”[1254] Woolsey, likewise adopting
the three-mile limit “or” cannon range, is of opinion that, “as the
range of cannon is increasing, and their aim becoming more perfect, it
might be thought that the sea-line of territory ought to be wider,”
though this author does not think the point likely to become of great
importance.[1255] Dana expresses the usual vague opinion of the English
and American writers in regarding it as “settled that the limit of the
territorial waters is, in the absence of treaty, the marine league,
_or_ the cannon-shot.”[1256] Sir Travers Twiss also speaks of the
range of guns, which, he says, with the common lack of information
respecting some other countries, “by consent is now taken to be a
maritime league seawards along the coasts of a nation.”[1257]

Rather different opinions are expressed by Fiore, an Italian writer
of eminence. While pointing out that publicists are not agreed as to
the extent of the territorial sea, he thinks it should be determined
by the necessity of the case and the nature of the particular rights
claimed, as fishing, dues connected with navigation, and defence: for
the latter purpose he is of opinion that the zone should increase with
the improvement of artillery. With regard to the rights to certain
fisheries, he says that the fishing for coral,--an important industry
in Italy,--for example, belongs to the people of the neighbouring coast
where it is found.[1258] Pradier-Fodéré holds strongly to the doctrine
of cannon range. The extent of the territorial sea, he says, depends
upon the power of artillery from shore; the farthest distance a shot
can be thrown, according to the progress of military art, is the limit
of the territorial sea, and he adds that this is the principle almost
universally adopted, although, “since the invention of firearms,” this
distance has usually been considered as three miles.[1259] Perels, a
German writer of eminence, accepts the doctrine of Bynkershoek that the
sovereign jurisdiction of a state extends in the sea to the distance
of a cannon-shot from the coast, and he says the extension of the
boundary-line depends upon the range of cannon-shot at the particular
period, but is the same at any period for all coasts. British and
American publicists, he adds, have generally adopted three miles as
an equivalent, but this has not usually been done by Continental
authorities.[1260] Another writer, Ferguson, gives a novel explanation
of the reason why three miles is generally adopted in practice. He
says the distance referred to is presumed to be the range of the coast
defences, but on the maxim that _terræ dominium finitur ubi finitur
armorum vis_, it should be stated to extend to any point on the sea
to which the cannon of actual coast defences on shore can carry a
projectile. Since, however, the carrying power of any given cannon is
such a vague measure, the three-mile radius is generally adopted.[1261]

In the opinion of Desjardins, the expression territorial sea must be
taken in the precise sense given to it by international law. Maritime
territory, he says, is only made effectively inviolable at the real
range of cannon from the coast, and the laws of police or customs
usually applied in time of peace cannot prevail against a principle
founded on the nature of things. In his opinion a prize taken beyond
three miles from the coast, but within the range of guns, would be
illegitimate, while it would be legitimate within the particular limits
fixed by a neutral state if beyond the range of guns.[1262] Latour,
another recent French writer, also argues that the three-mile limit is
not necessarily the true one, but that it depends on the actual range
of guns from the shore.[1263] On the other hand, Professor Kleen, in
his work on the laws of neutrality, considers the Scandinavian method
of delimiting the territorial sea the proper one, since the extent
depends not only on the mainland but on the “adjacent isles.” Admitting
that the distance from the coast at which the external limit is fixed
is, according to the positive international law of to-day determined
by the range of cannon, he thinks this measure is so susceptible of
change and controversy that it is desirable to replace it by a fixed
one, which ought not to be less than four marine miles. The range of
guns is much greater than four miles; and there are some coasts where
the geographical configuration requires that a larger area should be
subject to the territorial state, in order to avoid collision with
foreigners as well as encroachments on the natural rights of the
inhabitants. He is of opinion that Bynkershoek’s doctrine was wrong in
certain respects: it reposed on a basis of brute force; the range of
guns differs in different countries and at different times; and the
range of the most powerful modern gun is too much to allow a state
the exclusive possession of the sea up to that distance from the
shore. The range of guns, he says, is admissible in respect of war and
neutrality, but in all other respects the distance ought to be fixed
and mathematically determined independent of military force, and
should be the same everywhere.[1264]

Another Scandinavian publicist, Professor Aschehoug, also argues for a
wide extent of territorial sea under international law, according to
the principles previously described. He thinks that it is impossible
to exclude from the territorial sea of a people that space which is
commanded by their guns on shore; and _vice versa_, this space is
necessary to preserve the shores from the projectiles of belligerents.
The state has all the rights of sovereignty in this area, as those
connected with neutrality, police, inspection, jurisdiction, and the
exclusive right of fishery and other usufructs, except the right of
forbidding navigation.[1265]

The eminent Russian authority, Professor de Martens, expresses a
strong opinion that the three-mile limit is now quite inadequate,
and that a state has the power to extend it. The only true boundary
of the territorial sea is, he says, the range of guns from the
coast, Bynkershoek’s aphorism--_terræ dominium finitur ubi finitur
armorum vis_--forming the only legal and rational foundation for the
delimitation. Within the zone so determined the bordering state has
exclusive sovereignty and dominion, and the exclusive right of fishing.
The limit of the territorial waters ought therefore to change with the
modifications in the range of cannon. If at one time the reach of guns
was three miles, then the extent of the territorial sea at that time
was only three miles. If at the present day, he says, cannon carry
to twelve, or even fifteen, miles, the territorial waters extend to
the same distance. De Martens, however, thinks that an international
agreement with regard to such limits is necessary to ensure the success
of the measures of protection established in the open sea for the
preservation of the legitimate interests of each nation, especially
with regard to fisheries. But he holds that until such an international
arrangement has been accomplished, each state has the incontestable
right to declare as its territorial sea the waters which are dominated
by batteries on its coasts. In view of the necessity of precisely
defining the range of cannon, and the exigencies of international
commerce, the bordering state, he says, may limit this distance to a
number of miles fixed by law; and he himself advocates a limit of ten
miles, instead of three miles, as being more in conformity with the
actual range of guns, and better fitted to protect the interests of the
coast population who subsist by sea fisheries.[1266]

The latest English writer of authority on international law, Mr
W. E. Hall, who has given a lucid and philosophical account of
the territorial sea, is also of opinion that the three-mile limit
is inadequate. The boundary, he says, is generally fixed at three
miles, but this distance was defined by the supposed range of guns
of position, and the effect of the recent increase in the power
of artillery has not yet been taken into consideration, either as
supplying a new measure of the space over which control may be
efficiently exercised, or as enlarging that within which acts of
violence may be dangerous to persons and property on shore. “It may be
doubted,” he continues, “in view of the very diverse opinions which
have been held until lately as to the extent to which marginal seas
may be appropriated, of the lateness of the time at which much more
extensive claims have been fully abandoned, and of the absence of
cases in which the breadth of the territorial waters has come into
international questions, whether the three-mile limit has ever been
unequivocally settled; but in any case, as it has been determined,
if determined at all, upon an assumption which has ceased to hold
good, it would be pedantry to adhere to the rule in its present form;
and perhaps it may be said without impropriety that a state has the
right to extend its territorial waters from time to time at its will
with the increased range of guns; though it would undoubtedly be more
satisfactory that an arrangement upon the subject should be come to
by common agreement.” In a later edition of his work, which appeared
after the results of the international conferences of publicists, to
be presently referred to, were known, he says that it is felt and
growingly felt, not only that the width of three miles is insufficient
for the safety of the territory, but that it is desirable for a state
to have control over a larger space of water for the purpose of
regulating and preserving the fishery in it, the productiveness of sea
fisheries being seriously threatened by the destructive methods of
fishing which are commonly employed, and in many places by the greatly
increased number of fishing vessels frequenting the grounds.[1267]
A still later writer, Oppenheim, has apparently much the same
opinion, for he says that although many states in municipal laws and
international treaties still adhere to a breadth of one marine league,
the time will come when by common agreement of the states concerned
such breadth will be very much extended.[1268]

While there is thus some diversity of opinion among modern writers on
the law of nations, both as to the actual extent of territorial sea
belonging to a state and in respect to the principles which should
govern its delimitation in certain cases, there is all but universal
acceptance of the rule that in general the limit is determined by the
range of guns. Practically all authorities are agreed that this is the
historical basis of the demarcation, and the majority of publicists, as
Schmalz, Klüber, Reddie, Ortolan, Hautefeuille, Pistoye and Duverdy,
Massé, Bluntschli, Pradier-Fodéré, Lawrence, Perels, Desjardins, De
Martens, and Aschehoug, adhere to it as the only true principle.
This adherence to Bynkershoek’s doctrine logically implies that the
range of artillery at any particular period governs the extent of the
territorial sea at that period, and several authorities, as Ortolan,
Lawrence, Perels, Desjardins, and De Martens, accept this view in its
bare and absolute form, while others, though willing to agree to it as
proper and reasonable, think that a mutual arrangement on the subject
is first of all desirable or necessary, or that it applies specially to
questions of neutrality. There are very few writers, on the other hand,
who are of opinion that the three-mile limit has become established
in international jurisprudence as the legal limit, notwithstanding
that it is the limit commonly adopted. Calvo and Phillimore are the
most important authorities who take this view, but both think the
extent is too small and ought logically to be increased owing to the
greater range of artillery,--an opinion which is shared by Bishop,
Woolsey, Fiore, and Hall. Nearly all those who mention three miles
as the boundary of the territorial seas--and they are almost wholly
English or American--couple with it the alternative, “_or_ the range of
cannon,” as Wheaton, Manning, Halleck, Phillimore, Bishop, Dana, Twiss,
Ferguson, and Woolsey. In this they merely adopt the language used by
Lord Stowell at the beginning of last century, and which was quite
appropriate at the time. But for more than half a century the range
of guns has exceeded three miles, and to use the terms now as if they
were synonymous tends only to confusion. Some modern publicists, it may
be added, as Kent, Heffter, and Fiore, follow Wolff and Vattel in the
opinion that the limit of territorial waters may be extended in certain
cases beyond the range of guns.

Moreover, quite lately the subject of the territorial sea has been
jointly and exhaustively inquired into by the leading publicists of
Europe, and with important results. In 1887 the International Law
Association appointed a committee to consider the definition and
_régime_ of the territorial waters, and two years afterwards the
Institut de Droit International followed the same course.[1269] A
long series of questions was circulated among the members to elicit
their opinions on the various points connected with the subject;
the whole matter was discussed and considered at various subsequent
annual meetings; and the rules as finally adopted and approved by
the Institute and the Association may therefore be fairly taken as
representing the latest views of European publicists.

With regard to the question of the limits of the territorial sea. it
was very generally held that a distinction should be drawn between
various sovereign rights, as the right of fishery and the rights of
neutrals during war. The two limits commonly recognised--namely, cannon
range and three miles from low-water mark--were no longer identical.
Three miles was now too small a distance for safeguarding the coasts
of a neutral from the projectiles of belligerents, and the range of
modern artillery fluctuated, and was besides considered to be too great
a distance for the exercise of exclusive rights of sovereignty. Sir
Thomas Barclay’s proposal was therefore to reaffirm the limit of cannon
range as the public law of Europe, but to confine its application
to the right of the neutral as founded in reason, and to establish
another and a lesser boundary for the exercise of the exclusive
sovereign rights of the neighbouring state. The former limit was a
“zone of respect”; the latter bounded the true territorial sea. There
was general agreement that the neutral line or zone of respect should
coincide with the actual range of guns; but some were of opinion that
the range should be considered not from the coast, on the principle of
Bynkershoek, but from the sea, and others that the neutral zone should
be measured from the boundary of the true territorial sea, in order to
prevent violation of the latter by the bullets of belligerents. Since
the range of guns, however, is uncertain and variable, and the line
of respect must necessarily vary with it, it was decided finally not
to adopt a fixed distance, but to recommend that in case of war the
neutral state, taking the range of guns as the basis, should itself fix
and declare the extent of its neutral waters beyond the limit of the
territorial sea.

There was not the same agreement as to the limit which should be
recommended as the boundary of the territorial sea, within which the
rights of the state are much more complex, and of which the extent
should be precisely fixed. The historical principle of demarcation--the
range of cannon--having been transferred to the line of respect, the
only other limit in common use was the three-mile limit, and this was
the distance at first proposed by Sir Thomas Barclay in the draft
rules, mainly because it was the one which was usually recognised by
international usage. But the preponderating opinion of Continental
publicists favoured a more extended boundary, in view more particularly
of the right of fishery, the distances proposed varying from five
to ten miles from low-water mark;[1270] and Professor Auber, of
Christiania, advocated the extension of jurisdiction with respect to
fisheries beyond the limit fixed for the territorial sea, to apply
equally to subjects and foreigners, each state assigning boundaries
for such jurisdiction, either itself or by convention between the
Powers interested, and a similar proposal was made by the Canadian
representative, who suggested that the jurisdictional zone should
extend to nine miles. Owing to these opinions, and also to the report
of the Sea Fisheries Committee of the House of Commons in 1893,
presided over by Mr Marjoribanks (the late Lord Tweedmouth), which
proposed an extension of the territorial waters in the interests of the
fisheries,[1271] the three-mile limit was abandoned, and one of six
miles from low-water mark recommended instead. This particular distance
was selected in order to secure a limit which would correspond to that
of Spain and the Scandinavian Powers, and thus make the practice in all
European countries more uniform.

With regard to bays, the draft proposal was at first to adopt a
base-line of six miles from headland to headland, and afterwards one of
ten miles, as in the fishery conventions, was proposed. The Institut
finally adopted a base-line of twelve miles--_i.e._, double the width
of the territorial zone,--but the International Law Association
preferred the old limit of ten miles. The Scandinavian publicists were
of opinion that these limits were too small, and that instead of having
a fixed and rigid rule for the delimitation of bays, each state should
be permitted to fix the boundaries according to the local configuration
of the coast and the local requirements. While this suggestion was
not accepted, it was admitted that certain bays whose width exceeded
ten miles were necessarily, by their situation, placed under the
sovereignty of the neighbouring state, as the Bay of Cancale, the Bay
of Chaleur, and the Scottish Firths.[1272]

The various rules concerning sovereignty and jurisdiction were applied
to straits whose width does not exceed twelve miles, with the following
modifications: (1) straits of which the coasts belong to different
states form part of the territorial sea of the bordering states, which
exercise their sovereignty there up to the middle line; (2) straits
whose coasts belong to the same state, and which are indispensable
for maritime communication between two or several states other than
the bordering state, always form part of the territorial sea of the
bordering state, and they cannot be closed; (3) in straits whose
coasts belong to the same state, the sea is territorial even though
the distance between the coasts is greater than twelve miles, if at
each entrance of the strait this distance is not exceeded; (4) straits
which serve as a passage from one free sea to another free sea can
never be closed. The rules were adopted by the Institut in 1894, and
by the International Law Association, with slight amendments, in the
following year, when Sir Richard Webster (now Lord Alverstone, the Lord
Chief Justice of England) was in the chair.[1273] The rules as finally
adopted in London are given in Appendix O.

CHAPTER V.

THE INADEQUACY OF THE THREE-MILE LIMIT FOR FISHERY REGULATIONS.

The recommendation of the International Law Association and of the
French Institute that the territorial waters should be extended to
six miles from the shore, or double the width usually enforced, was
avowedly made, as we have seen, chiefly in the interests of the sea
fisheries; and it may be presumed from the opinions of the majority
of accredited writers on the law of nations, as reviewed in these
pages, that it is open to any Power so to extend its territorial sea,
except in so far as such extension may be opposed to the provisions
of treaties with any other Power or Powers. It is undoubtedly the
case that in by far the greater number of instances in which the
limits of territorial waters, or the rights of the bordering state in
the adjacent sea, have been disputed, or have come under discussion,
between one nation and another, it was the right of fishery that was at
issue. From the reign of James I. this has been the case, and it has
been exhibited on all coasts, and in almost all countries. How replete
our history is with such disputes may be gathered from foregoing
chapters, while nearly all recent international treaties in which
limits in the neighbouring sea are dealt with have been concerned with
fishery questions. The numerous treaties and agreements with the United
States and France respecting the vexed rights of fishing on the coasts
of British North America, the North Sea conventions in Europe, and the
various other agreements between European Powers, as between Spain and
Portugal, Austria and Italy, Denmark and Sweden, Denmark and Germany,
Great Britain and France, Belgium and Germany, and with Denmark
concerning Iceland, are instances in point. The fishery interest is
thus the determining interest, and the one which has made these various
conventions desirable.

There appears to be little doubt that, in many cases at least, the
three-mile boundary which has been commonly fixed in the fishery
conventions is inadequate from the point of view of the fisheries,
and this is the opinion of most of the experts and authorities, as is
explained below. It must not be forgotten that the three-mile limit
was selected, not on any grounds special to fisheries, but because it
had been already recognised and put into force in connection with the
rights of neutrals and belligerents in time of war, as representing
the approximate range of guns at the time. It is in reality a product
of the maritime wars in the latter part of the eighteenth and the
beginning of the nineteenth century, and its application to the
right of fishing is accidental and arbitrary. The boundaries which
were formerly proposed as limiting the right to exclusive fishery,
independently of any question of the rights of neutrals or the range
of cannon, were invariably greater than three miles. The range of
vision was employed in Scotland and on the English coast later; its
equivalent of fourteen miles was embodied in the Draft Treaty of Union
between England and Scotland in 1604, and was proposed again in 1618;
and Sir Philip Meadows, the most able opponent of extravagant claims to
maritime sovereignty, favoured a similar distance in 1689. Limits of
eight miles and ten miles to be enforced against foreigners were fixed
in the Fishery Bill passed by the House of Commons in 1660, while as
late as 1824 and 1827 the Dutch Government decreed a limit of six miles
for their fishermen on the British coasts. We have seen, too, that the
wider extent of sea in which rights of exclusive fishery are claimed
by the Scandinavian and Iberian states exists in great measure because
those Powers established their limit without reference to Bynkershoek’s
doctrine, and before indeed it became prevalent.

The same need of a wider limit is shown in the municipal legislation
of many countries, which was specially designed with the object
of preserving sea fisheries, as well as in certain international
agreements. There are two classes of sea fisheries which have received
special treatment beyond the ordinary limits of territorial waters,
and both on the same principle--viz., that the action of man, if
unrestrained, would lead to their destruction and economic extinction.
They are those for marine mammals, as seals and cetaceans, and for
certain shell-fishes and coral. A considerable number of countries have
legislated for the preservation of seals, and some of the enactments
at least apply beyond the ordinary limits. Examples may be found in
the Canadian statute of 1886,[1274] which refers also to whales and
porpoises; the Russian law dealing with the sealing industry in the
White Sea; the Norwegian law fixing a close-time for whales in the
Varangerfjord; and the concurrent international legislation of Great
Britain, Sweden, Norway, Russia, Germany, and Holland concerning the
Jan Mayen seal fishery in the Atlantic east of Greenland.[1275] A
recent instance is afforded by the regulations which were prescribed
for British and American citizens and subjects by the Tribunal of
Arbitration for the purpose of protecting and preserving the fur-seal
in Behring Sea. By these regulations the killing, capture, or pursuit
of this animal was forbidden within a zone of sixty geographical miles
around the Pribilov Islands, comprising about 15,000 square miles of
sea; a close-time was fixed between 1st May and 31st July on the high
sea within an immense area--viz., north of 35 degrees North latitude
and eastwards of 180 degrees West longitude; only specially licensed
sailing vessels, with canoes or undecked boats propelled by paddles,
oars, or sails, were at liberty to carry on fur-sealing operations
where and when the fishing was allowed; the use of nets, firearms, and
explosives was forbidden, except shot-guns outside of Behring Sea, and
some minor conditions were laid down.[1276]

Another instance is the agreements entered into between Russia on the
one hand and Great Britain and the United States on the other, by
which a zone of ten marine miles on all the Russian coasts of Behring
Sea and the North Pacific Ocean, and a zone of thirty marine miles
round the Commander Islands and Robben Island, were closed to sealing
for the fur-seal.[1277]

The other class of fisheries referred to, for sedentary animals
connected with the bottom, such as oysters, pearl-oysters, and coral,
which are found in shallow water, as a rule, and usually near the
coast, have always been considered as on a different footing from
fisheries for floating fish. They may be very valuable, are generally
restricted in extent, and are admittedly capable of being exhausted or
destroyed; and they are looked upon rather as belonging to the soil or
bed of the sea than to the sea itself. This is recognised in municipal
law, and international law also recognises in certain cases a claim to
such fisheries when they extend along the soil under the sea beyond
the ordinary territorial limit. Cases in point are the pearl-fisheries
on the banks in the Gulf of Manar, Ceylon, which extend from six to
twenty-one miles from the coast, and are subject to a colonial Act of
1811, which authorises the seizure and condemnation of any boat found
within the limits of the pearl-banks, or hovering near them: boats
or vessels navigating the inner passage are prohibited from hovering
or anchoring in water deeper than four fathoms, and those navigating
the outer passage from hovering or anchoring within twelve fathoms.
These pearl-fisheries are very valuable, and have been treated from
time immemorial by the successive rulers of the island as subjects
of property and jurisdiction; and the laws referred to apply also
to foreigners. Another case is the pearl-fisheries in Australia. In
Western Australia certain Acts are applied far beyond the three-mile
limit, though apparently only against British subjects,[1278] and a
similar Act, of 1888, applied in Queensland to extra-territorial waters
west of Torres Strait. The pearl-fisheries of Mexico and Columbia
are also subject to regulation beyond the ordinary three-mile limit.
Examples of extra-territorial jurisdiction over beds of the common
edible oyster are to be found in the British conventions with France
in 1839 and 1867, by which the Bay of Granville was reserved to France
(see p. 612), and in the last of these conventions (Article ix.) a
close-time was provided in the English Channel; and likewise in the
proceedings concerning the Arklow and Wexford banks, off the Irish
coast (see p. 621). Coral-beds in the Mediterranean, off the coasts
of Algeria, Sardinia, and Sicily, are in a similar way regulated by
Italian and French laws beyond the ordinary three-mile limit.

Even in regard to the class of fisheries for what is termed “floating”
fish--that is to say, the ordinary fisheries for sea fishes, carried on
usually by nets and lines--there are a number of enactments conferring
jurisdiction, or which have conferred jurisdiction, beyond the distance
of three miles from shore. Old English and British Acts, previously
referred to (p. 608), fixed limits of four-and-a-half and five miles
from the coast, within which distance the use of certain apparatus,
as drag-nets and trawls, was prohibited. In the Herring Fishery Act
of 1808, which provided for the appointment of commissioners for the
herring fishery, and for the regulation of the fishery and the curing
of herrings, jurisdiction was extended over “all persons” engaged in
catching, curing, and dealing in fish in all the lochs, bays, and arms
of the sea, and also within ten miles of the coasts.[1279] At the Isle
of Man an Act of Tynwald prohibited herring-fishing at a certain season
within nine miles of the shore,[1280] and other instances might be
given where municipal Acts extended jurisdiction beyond the ordinary
three-mile limit for similar purposes.

It is, however, in connection with the great development of
trawl-fishing from steamers in recent years, that the question of the
inadequacy of the ordinary three-mile limit for the preservation and
regulation of fisheries has been brought to the front, and it is around
this method of fishing that most of the controversies affecting the
territorial waters, at least in Europe, have gathered.[1281] It is
therefore necessary to understand something about it, and how it is
that it has given rise to demands for the extension of the ordinary
limits and for the closure of large areas beyond these limits. It is
the most effective and at the same time the most destructive method of
fishing ever made use of. It differs from hook-and-line fishing, in
which only a few kinds of fish are taken at the same time, according
to the size of the hook and the kind of bait, and from gill-net or
drift-net fishing, which is adapted, according to the dimensions of the
mesh, to capture a particular fish, as herring or mackerel. Trawling
consists essentially in dragging along the bottom of the sea a great
bag of netting, which captures a large variety of fishes, big and
little; and it may involve, at certain places and in certain seasons,
the destruction of immense quantities of edible fishes too small to be
marketable, and which are thrown back, dead, into the sea.[1282] It
is a very old method, but until about a century ago it was confined
on the British coast to the mouth of the Thames and neighbourhood and
to certain localities in the Channel, its headquarters being Barking
and Brixham. Trawling was then restricted to shallow water; the boats
were small and the trawls were such as a man could carry on his
shoulders. At the close of the French war, Brixham trawlers began to
migrate eastwards, prospecting for new grounds, fixing their temporary
headquarters first at Dover, then at Ramsgate in 1818, and at Harwich
in 1828. Continuing their explorations, the Dutch coast was visited
about 1830 and the southern part of the Dogger Bank a few years later,
and in 1837 a great impetus was given to trawling by the discovery of
enormous quantities of soles in the Great Silver Pit, south of the
Dogger. Trawlers flocked thither from all quarters; the Brixham men
fixed upon Hull, first as their temporary, and then as their permanent
home, and from this time North Sea trawling was firmly established. It
was not until 1858, little more than half a century ago, that trawlers
began to be employed from Grimsby, which is now by far the greatest
fishing-port in the world. Gradually the enlarging fleets of trawlers
pushed northwards and eastwards as new grounds were discovered. By 1860
the whole of the Dutch coast and the coast of Schleswig was frequented;
ten years later the Danish coast was included, and, for the first time,
the whole of the Dogger Bank, as well as large areas north and west of
it, off the coast of England and Scotland. About 1875 the Great Fisher
Bank, which lies about 200 miles east of the Scottish coast, began
to be visited, and in 1891 the English trawlers boldly pushed on to
Iceland, where enormous catches of fish were obtained.

During this period, while the fishing-grounds were being vastly
extended, great improvements were made in the means of catching the
fish and bringing them to market. The trawling vessels gradually
increased in numbers, size, speed, and storage capacity; the trawl-net
grew larger and more efficient; the use of ice for the preservation
of the fish enabled distant grounds to be visited, and the deeper
waters of the north necessitated the substitution of steam-power for
hand-labour in hauling the nets on board; the “fleeting” system, by
which steam-carriers collected the fish each morning and brought them
rapidly to market, allowed the fleets of sailing smacks to remain on
the grounds constantly fishing for many weeks at a time. Then the
industry was revolutionised by the substitution of steam vessels for
the sailing smacks, a change which began about 1878; and trawling,
which was at first a summer occupation owing to the frailty of the
boats, and then a winter pursuit, as plenty of wind was required to
drag the heavier nets, became independent of the season, and almost
of the weather. A further improvement was the introduction in 1895 of
the otter-trawl instead of the unwieldy beam-trawl, the mouth of the
net being kept open by the divergence of two boards, one at each side,
on the principle of the kite. This allowed the net to be made very
much larger, and also to be used in much deeper water, and commercial
trawling is now carried on in depths down to about 200 fathoms.

There has thus occurred during the last generation or so an enormous
development in the extent and efficiency of trawl-fishing. The
British fleet since about 1885 has grown from some 200 small vessels,
of twenty to twenty-four tons, and using trawls of from twenty to
thirty feet beam, to an aggregate of 3170 vessels in 1907, of which
1609 were steamers and 918 deep-sea sailing smacks.[1283] These
figures, however, convey but little impression of the real increase
in the catching power. It has been computed, both by practical men
and by scientific experts, that the modern steam otter-trawler is
approximately eight times more effective in catching fish than was
one of the large sailing smacks of a generation ago,[1284] and thus
the British deep-sea trawling fleet in 1907 was equal to about 13,790
of the older sailing smacks. But in addition to these there are the
foreign steam-trawlers which fish on the same grounds, for many other
countries have followed the English example in developing deep-sea
trawling. The aggregate number of such vessels at the end of 1907 was
about 634, of which 224 were French, 239 German, and 81 Dutch;[1285]
and they would represent 5072 sailing smacks, so that the total
trawling fleet of Western Europe was then equal to about 18,862 of the
sailing trawlers of twenty or thirty years ago, the sailing trawlers in
use on the Continent being left out of account. It has been calculated
that the area of the sea-bottom which is swept each day by the nets of
this great fleet is equal to about 2000 square miles.

Now, this extraordinary extension of trawl-fishing in recent times
bears upon the question of territorial waters in two ways. One relates
to the impoverishment of the older fishing-grounds near the coast and
in the North Sea. The other relates to the incursion of steam-trawlers
on foreign coasts as affecting the fishing of the inhabitants of such
coasts.

With regard to the first, there have been many inquiries made by
Royal Commissions and Parliamentary Committees, as well as by fishery
departments and experts, which show that the excessive fishing has
depleted the older banks. In the first of these inquiries, which began
in 1863, when there were only from 650 to 700 smacks trawling in the
North Sea (and then only in a part of it), the reporters expressed
their belief that this method of fishing “in the open sea” was not
wastefully destructive, and required no legislative interference,
for if any ground were over-fished, the fishing there would become
unprofitable, and the trawlers would go elsewhere.[1286] The next
Commission, in 1878, by which time trawling had greatly developed, came
to much the same general conclusions; but they found that a decrease
of soles had occurred, and also a decrease of plaice and flounders in
some localities, and they recommended that power should be given to the
Secretary of State to forbid trawling “in any of the territorial seas,”
which power was conferred in 1881.[1287] This inquiry was noteworthy
as first revealing complaints by the trawlers themselves of the
diminution of certain fish and the impoverishment of inshore grounds,
and for the advocacy by Grimsby smack-owners of the prohibition of
trawling at localities where small fish abound, as the inlets on the
Dutch and German coast, the Wash, and off Yarmouth, and even within
a nine-mile limit all round the shores of the North Sea. At the next
Commission of inquiry, in 1883, the complaints of the trawlers were
stronger, and the remedies they proposed more drastic. Those of Hull
and Grimsby stated that the numbers of flat fishes, particularly soles,
had much diminished; that the nearer grounds were impoverished, and
that they had to go much greater distances for their supplies of fish.
They expressed the belief that most damage was being done by trawling
along the coasts, especially on the Continental side of the North
Sea, and that the most effectual remedy would be to prohibit trawling
within a ten-mile limit around the whole of the North Sea coasts. The
conclusions reached by the Commission were that soles had decreased,
and also flat fishes and haddocks in many parts of the territorial
waters between Grimsby and the Moray Firth, and they recommended that
the Scottish Fishery Board should receive powers to regulate or suspend
trawling within territorial waters.[1288]

[Illustration: Fig. 26.--_Showing the three-mile limit and a
thirteen-mile limit in the North Sea._]

From this time onwards the demand of the trawlers for some legislative
restrictions on trawl-fishing increased to a clamour. At a conference
of practical fishermen held in 1883, in connection with the
International Fisheries Exhibition at London, statements were made by
trawlers as to the enormous destruction of under-sized fish and the
depletion of the grounds, and a resolution was passed calling upon the
Government to bring about an international conference to consider the
desirability of recommending legislation.[1289] At another conference,
in 1888, they declared that a large and distressing diminution of
flat-fishes had occurred in the North Sea; that they viewed the future
with alarm unless some steps were immediately taken to protect immature
fishes; and they called upon the Government to try to arrange for an
international law for the purpose.[1290] As no result followed from the
representations to the Government, the trawl-owners on the East Coast
took independent action in 1890, and formally agreed, as a preliminary
step, to prevent their trawlers from fishing in the summer within a
very large area of extra-territorial water off the German and Danish
coasts, where immature fish were generally caught in great abundance.
The line of closure of this area extended along the coast for 130
miles, passing, to the west of Heligoland, at a distance varying from
twenty to over fifty miles from the shore, and embracing no less
than about 3600 square (geographical) miles of water lying outside the
three-mile limit as defined by the North Sea Convention. The Conference
also pressed for legislation of a national and international character
to prevent the sale and purchase of immature fish, and they defined
what they meant by that term.[1291] For some time at least the vessels
of the great trawling companies abstained from fishing within the large
area above referred to, but the voluntary arrangement fell through
owing to the action of independent “single-boaters,” and the grounds
were never effectually closed. The Government went so far to meet
the wishes of the trawlers as to issue, through the Foreign Office,
invitations from the National Sea Fisheries Protection Association
to various Continental Governments to send delegates to a conference
in 1890, and representatives from Belgium, France, Denmark, Germany,
the Netherlands, and Spain attended a meeting at Fishmongers’ Hall in
that year, but no representative of this country was present in an
official capacity. Statements of the usual kind were made as to the
impoverishment of the fishing-grounds and the necessity of remedial
measures in order to keep up the fish supply, and it was resolved, in
view of an official international conference being called, to circulate
a set of questions regarding the scientific and statistical aspect of
the subject.[1292]

[Illustration: Fig. 27.--_Showing the area of the Small-fish Grounds,
which the English trawlers desired to have closed for the preservation
of immature fish._]

The complaints continuing as to the deterioration of the fisheries, the
Government in 1893 appointed a Select Committee of the House of Commons
to inquire into their condition and to report as to what remedies
might be required. The trawlers again gave strong evidence as to the
impoverishment of the grounds in the North Sea from over-fishing,
the banks having been “fished out” in succession as they were
discovered, so that they were compelled to go to distant regions, as
Iceland and the Bay of Biscay, to keep up the supplies. Some of them
still pressed for an extension beyond the three-mile limit and the
prohibition of trawling within ten miles from the shore, especially
on the foreign coasts on the eastern side of the North Sea, and in
particular that large areas in the extra-territorial waters should
be closed by international agreement. The prohibition of the sale of
immature flat fishes was also strongly advocated as an indirect means
of closing these grounds. The Committee reported that the evidence of
all classes of witnesses, “whether trawlers or linesmen, smack-owners
or fishermen, scientific experts or statisticians,” showed that a
considerable diminution had occurred among the more valuable classes
of flat-fishes in the North Sea, which was to be attributed to
over-fishing by trawlers in certain localities; and they recommended
that the sale of undersized flat-fishes should be forbidden, and that
the three-mile limit should be extended for fishery purposes alone,
provided it could be effected on an international basis.[1293]

It does not appear that any action was taken by the British Government
in consequence of this report; and as the trawlers had failed to get
the large area of the German and Danish coasts closed to them directly,
they got a Bill introduced into Parliament to prohibit the sale of
undersized flat-fishes, in the belief that an enactment of that kind
would result in closing the grounds indirectly. The reasoning on
which they proceeded was this. Trawling, to be remunerative, depends
upon the capture of a variety of fishes, and it is not possible by an
enlargement of the mesh of the net to allow of undersized flat-fishes
escaping, without also and at the same time permitting the escape of
numerous large marketable round-fishes, as haddocks, as well as of
many marketable soles, and fishing under such conditions would be
unprofitable. It was also known that it would be futile to return to
the sea the undersized fishes after they had been brought on board,
because in commercial trawling they are dead or moribund, and might as
well be taken ashore as thrown back into the water. It was admitted
that the only effective way to protect the immature fish was to
prevent the trawl from being used on the grounds; and if this could
not be done by direct closure of the area, it might be accomplished
by prohibiting the sale of undersized flat-fishes generally; for on
these particular “small fish” grounds, or “nurseries,” large fishes are
so scarce that trawling is remunerative only by reason of the great
quantity of small fishes taken. If the sale of these were forbidden,
then trawling in such localities would cease. For an enactment of this
kind to succeed, it was obviously necessary that it should apply to
the whole kingdom, and it was opposed by fishermen on other parts of
the coast; and as it was felt to be extremely problematical whether
it would secure the cessation of trawling on the small-fish grounds
without at the same time injuriously affecting the fisheries on our own
coast and raising the price of fish, the Bill was abandoned. Several
subsequent Bills of the same kind shared the same fate, usually after
a more or less exhaustive inquiry by a Parliamentary Committee. One
of those Committees, consisting of thirteen members of the House
of Commons, took evidence in 1900 from the representatives of the
trawlers and others, of the character previously described, advocates
of the Bill admitting that in their view it was a tentative measure,
and that the direct closure of the grounds would be preferable. The
Committee thought that it was proved beyond all doubt that there was a
serious diminution of flat-fishes, particularly in the North Sea; that
the ancient fishing-grounds were much depleted; that the evil was a
growing one, and that in default of a remedy the consequences would be
disastrous to the industry.[1294] One of the causes of the diminution
was found to be the vast destruction of immature fish, the direct
remedy for which, the Committee said, was either the prohibition of the
taking and killing of such fish, or the prohibition of fishing within
areas where small fish abound. They were of opinion that the former
was practically impossible without prohibiting trawling altogether,
while the areas where the small fish congregate could only be closed
by a joint international arrangement. The indirect remedy was that
proposed by the Bill, and, for reasons such as are stated above, they
felt it would not be expedient to pass the Bill into law without
further inquiry and investigation. The Committee were of opinion that
the subject of the diminution of the fish supply was a very pressing
one, and that the situation was going from bad to worse, and they
recommended that no effort should be spared, first, to arrange for
international treatment of the subject generally, and especially for
regulation of the North Sea area; and second, to provide for the
adequate equipment of the Government Departments in charge of the
subject.[1295]

The trawlers still pressed for legislation to deal with the wasteful
destruction of undersized fish, and continued to pass resolutions
on the subject;[1296] and another and somewhat modified Bill was
introduced into the House of Lords in 1904 by the Department of
Agriculture and Fisheries, and remitted to a Select Committee of
that House. The Committee, after taking much evidence of the usual
kind, stated their opinion that the ideal manner of protecting the
fishing-grounds in the North Sea where young fish abound would be by
an international agreement between all the Powers concerned, and they
expressed the hope that the Government would not relax its efforts
to secure such a convention. It was thought that, as the first step
towards attaining this result, the Bill ought to be passed into law;
but the opposition to it was too strong, and it shared the fate of its
numerous predecessors.[1297]

The statements of the trawlers that the older fishing-grounds are
impoverished, particularly those in the North Sea, are borne out by
the results of statistical and scientific inquiries. It was calculated
by Professor W. Garstang that the average catch of bottom fishes, per
fishing unit, decreased in the North Sea in the ten years 1889 to
1898 from 60·6 to 32·3; or, in other words, that while the average
take of each trawling smack in 1889 was sixty tons, it was only about
thirty-two tons in 1898.[1298] The official statistics published
annually by the Board of Agriculture and Fisheries show that the
quantity of bottom fishes taken from the North Sea is declining, while
on the other hand the quantity landed in this country from distant
waters is greatly increasing.[1299]

This brings us to the second point, in which the immense development
of trawling touches upon the question of territorial waters--namely,
the flocking of the trawlers to new grounds on foreign coasts. As the
North Sea became, comparatively speaking, more and more exhausted,
the vessels were compelled to go farther and farther away in order to
maintain the supply.[1300] The grounds at Iceland, now so important
not only to the British trawlers but to the Germans and the French,
were first visited in 1891, and those in the neighbourhood of the Faröe
Islands a little later. The operations of the trawlers were at first
limited to the south-east coast, but the catches were so enormous,
and the enterprise so profitable, that large and seaworthy vessels
were specially built for this fishing, which became one of the most
important for the English markets.[1301] Then the grounds in the Bay
of Biscay and those on the coasts of Spain and Portugal began to be
frequented, mostly from about the year 1902; and in the next year the
operations of the trawlers were extended farther south to the coast
of Morocco, as far at least as Agadir (20 deg. N. latitude), and even
in some cases to the coast of Mauritania in French West Africa. The
vessels fishing in these southern regions, many of them being fitted
with refrigerating rooms, land a considerable proportion of their
fish in Portugal and elsewhere. A year or two later, in 1905, the
enterprising English trawlers opened up new grounds far away to the
north-east in Barents Sea, at the very borders of the perpetual ice
of the Arctic regions, and increasing numbers make the long double
voyage of some 3500 miles thither every summer, and bring back from the
neighbourhood of Cape Kanin great quantities of plaice for the English
markets.

Thus the great enterprise and energy of British trawlers, supported
by large capital, have enabled them to exploit the available grounds
from far beyond the Arctic circle almost to the tropics, and it is
from those distant regions that an increasing proportion of the fish
supply is being drawn.[1302] The influx of alien vessels, the most
powerful and efficient fishing machines in existence, along these
foreign coasts is not, as was naturally to be expected, viewed with
satisfaction by the native fishermen. They see the fishing-grounds
which they had so long been accustomed to consider as their own--in
many cases lying within the territorial waters preserved to them by
the laws of their own country, though possibly outside “the ordinary
three-mile limit”--invaded and exploited by foreigners, and their own
livelihood threatened. They fear that what has occurred in the North
Sea will happen along their own coasts; that the fishing-grounds, often
of limited extent, will be impoverished and exhausted for the sole
benefit of the foreigners, and their efforts to maintain themselves
and their families rendered difficult or impossible. They observe from
their boats the immense hauls of fish made by the huge trawl-nets,
and the great waste that is often involved.[1303] One cannot be
surprised that the fishermen, and those who sympathise with them,
feel indignation at the invasion of their waters by foreign trawlers,
and that great meetings have been held, as in Spain and Portugal, to
demand redress, and that at least the same limit as applies to natives
pursuing similar methods should be enforced on the foreigners, or an
international conference called to arrange for an equitable limit, or
equitable treatment, which would have regard for the rights of all
concerned.[1304]

From the foregoing description of the problems associated with the
modern development of trawling, it will not be difficult to understand
the scope and nature of the legislation which has been devised in
various countries to preserve the native fisheries for the inhabitants
of the coast. It may be said that in practically all of them,
trawl-fishing is either entirely prohibited within territorial waters
or is subjected to various regulations, for the most part with the
view of allowing minor forms of trawling, as that for shrimps, to be
carried on. In those countries which have a zone of territorial water
extending beyond the ordinary three-mile limit, it is prohibited within
that zone, as in Norway, Spain, and Portugal, and even up to twelve
miles from the shore; while in some others in which three miles is in
use as the ordinary limit for exclusive fishing, trawling is forbidden
at distances beyond that limit. In Italy and Austria steam-trawling is
not allowed within five miles of the coast. In Scotland and Ireland it
is prohibited in certain specified waters, which extend much beyond a
three-mile boundary. As recent legislation, or byelaws made with the
authority of Parliament, bearing upon these prohibitions have given
rise to much controversy, it is desirable to consider them with a
little care.

In England, where the administration of the local fisheries around the
coast is in the hands of various Sea Fisheries District Committees,
numerous byelaws have been made and are in force, with the sanction
of the Board of Agriculture and Fisheries, prohibiting or regulating
trawling of one kind or another in the waters under the control of the
Committees. None of the byelaws appear to apply to parts of the sea
beyond the ordinary three-mile zone, though it is open to question
whether the wording of the Act, by which the Committees were created,
does not give power in that direction.[1305]

The Irish Fishery Department have made a very large number of byelaws,
at various times and under various Acts, for the regulation or
prohibition of trawling. Of these some forty-four are at present in
force, twenty-two applying to all trawling and twenty-two to steam
trawling alone, and one or two of them date from the years 1842 and
1851.[1306] Under these byelaws trawling in one form or another is
prohibited entirely or under certain conditions at most parts of the
coast of Ireland; and on certain parts of the coast not inconsiderable
stretches of the sea, beyond the three-mile limit and the limit for
bays as defined in the fishery conventions, are closed against this
method of fishing. The lines around the coast within which trawling is
prohibited, in many instances pass between headlands which may be as
much as twenty-six, and even forty-three, miles apart; not infrequently
they are drawn, not between headlands, but from one light-ship to
another, and these light-ships may be four or five miles from land and
twenty miles apart. Sometimes the closing line is placed three miles to
the seawards of such base-lines; and they may pass from about two to
seven or eight miles outside the limit as defined in the conventions,
and in some instances up to ten or eleven miles from low-water mark on
the shore.

It is obvious that the principle upon which these lines have been drawn
has been one of convenience. They differ entirely from the lines of
closure in the two Scottish Firths referred to below, which are _inter
fauces terræ_ with the lines passing from headland to headland. But all
the lines on the Irish coast are well within the range of guns from
the shore, and are thus, according to the Law of Nations, within the
territorial sea. The aggregate area beyond the ordinary limits of the
conventions amounts to a little over 400 square (geographical) miles.

It does not appear that foreign trawlers have been found contravening
the Irish byelaws to any great extent. Between June 1904 and September
1905 seven steam-trawlers and one sailing-trawler were captured fishing
within the limits, one of the former being registered in a foreign
country, and, with regard to it, the official report says “it was
found impossible to enforce the order made by the magistrates against
the owner and skipper.” It is added that “it is thought, however,
that means have been found within the existing law of compelling
foreign trawlers to observe the byelaws affecting Irish territorial
waters.”[1307]

It is, however, with reference to the legislation for Scotland,
under which certain areas are closed against trawling, that the main
controversies have been raised. Several statutes gave power to the
Fishery Board for Scotland to regulate trawling. The first was an
Act of 1881,[1308] which empowered the Board of Trade to restrict or
prohibit this method of fishing “in any area being part of the sea
adjoining the United Kingdom, and within the territorial waters of
Her Majesty’s dominions, within the meaning of the Territorial Waters
Jurisdiction Act, 1878” (see p. 591); which power was transferred to
the Scottish Board by subsequent Acts.[1309] Then the Sea Fisheries
(Scotland) Amendment Act, of 1885,[1310] empowered the Board to make
byelaws for restricting or prohibiting, either entirely or subject to
such regulations as might be provided, any method of fishing “in any
part of the sea adjoining Scotland, and within the exclusive fishery
limits of the British Islands,” when they were satisfied that such
mode of fishing was injurious to any kind of sea fishing within that
part, or in order to make experiments and observations to ascertain
this, or for fish-culture: and such byelaw was not to be valid until
it had been confirmed by the Secretary for Scotland. Several byelaws
under this Act were made, prohibiting trawling within certain areas on
the coast of Scotland within the ordinary limits.[1311] It may well be
questioned, in view of the definition of the “territorial waters of
Her Majesty’s dominions” in the Territorial Waters Jurisdiction Act,
and of the “exclusive fishery limits of the British Islands” in the
Sea Fisheries Act, 1883,[1312] whether these powers were restricted to
the three-mile limit and to bays whose width was not greater than ten
miles; but it is noteworthy that a byelaw with reference to the Firth
of Clyde was not confirmed by the Secretary for Scotland, presumably
because it was considered at the time to be _ultra vires_.[1313]

In 1889, however, an Act was passed which directly prohibited trawling
“within three miles of low-water mark of any part of the coast of
Scotland” (except the Solway and Pentland Firths), and within the
waters specified in a schedule annexed, except in such parts as might
from time to time be permitted by byelaws of the Fishery Board; and the
Board was further empowered to forbid trawling within any area or areas
in the Moray Firth between Duncansby Head and Rattray Point, which
may be regarded as its headlands.[1314] The waters specified in the
schedule included the areas closed under the then existing byelaws, as
well as a number of bays, lochs, and areas, the most important of which
was “the waters inside a line drawn from Corsewall Point, in the County
of Wigton, to the Mull of Cantyre, in the County of Argyll”--that
is to say, the Firth of Clyde. In this Act, it will be noted, nothing
is said about bays, save in this schedule, and an examination of the
charts shows that the waters specified in the schedule, twenty-five
in number, would all, with a single exception, be included in the
limits of exclusive fishing as defined in the North Sea Convention.
Presumably the bays on the coast of Scotland which are not mentioned
in the schedule do not come under the provisions of this Act beyond
the distance of three miles from low-water mark on their shores. The
exception referred to is the Firth of Clyde (fig. 29), where the line
of closure is about twenty-eight miles in length, within which trawling
was directly prohibited by the Act. The area of water outside the
ordinary limits of the conventions which is thus embraced amounts to
about 380 square (geographical) miles.

[Illustration: Fig. 29.--_The Firth of Clyde, showing the line of
closure and the ordinary three-mile limit._]

Under the section referring to the Moray Firth, a byelaw was passed
in 1890 giving effect to its provisions within a straight line drawn
from the Ord of Caithness to Craighead near Buckie, the extent of
water enclosed, beyond the ordinary limits, being about 310 square
miles. This was replaced by another byelaw in 1892, in which the
line of closure to trawling was from Duncansby Head to Rattray Head,
a distance of about 73 geographical miles, the area of sea enclosed
between it and the ordinary limits amounting to approximately 1480
square (geographical) miles (fig. 30). It is this byelaw that has of
late given rise to discussion in relation to the operations of foreign
trawlers within the Moray Firth, as is explained below.

In 1895 another Bill was introduced into the House of Lords by the Lord
Privy Seal (Lord Tweedmouth), with the object, among other things, of
extending a similar jurisdiction over the waters washing the east coast
of Scotland. The line at first chosen in this case was a very long one,
running along the open coast from Rattray Head to the Farne Islands,
a distance of about 120 miles, and passing a little over thirty miles
east of Fife Ness.[1315] It was proposed later to give power to
prohibit trawling in any area or areas within eighteen miles of the
coast.[1316] In the Act as passed the distance was reduced to thirteen
miles from the coast in areas under the jurisdiction of the Crown, and
no area was to be so regarded unless the powers conferred had been
accepted as binding upon their own subjects with respect to such area
by all the states who were parties to the North Sea Convention.[1317]
This section of the Act has remained inoperative, and no byelaws have
been made under it; and there appears to be no evidence as to whether
the views of other Powers have been obtained.

In the Moray Firth, closed to trawling by the byelaw above referred
to, foreign trawlers began to make their appearance first of all in
1895, when a Danish vessel came. Two years later it returned, and a
German trawler also, which was prevented from landing its fish at
Aberdeen,--an act of the Crown, which was tested by a case in the Court
of Session and upheld by it. In 1898 foreign trawlers appeared in the
Firth in considerable numbers, and, it was reported, carried on their
operations in such a reckless manner as to involve a great deal of
damage to the gear of the net and line fishermen.[1318] These vessels
appear to have been mainly Danish, but there were a few Belgian, Dutch,
and German, and they came for the most part intermittently and for
brief periods, some of them appearing only once or twice in a year.
Soon, however, the Firth was invaded by a fleet of trawlers flying the
Norwegian flag, although it was known that Norway possessed no steam
trawlers,[1319] and these vessels fished regularly in the Moray Firth,
carrying their fish to Grimsby, where they were landed and sold. It
was soon discovered, and admitted, that these trawlers were in reality
English, so far as capital, management, and crew were concerned, but
they were registered in Norway in order to evade the British statute,
and they soon obtained a practical monopoly of trawling in the Moray
Firth. In 1901 there were fourteen or fifteen of them, but by 1905 they
had increased to twenty-nine or thirty; while the visits of trawlers of
other nationalities had diminished to nine in 1903, to six in 1904, and
to two in each of the three following years. In 1903 and 1904 thirteen
convictions were recorded against foreign trawlers, eight in connection
with the Moray Firth and five in connection with the Clyde; in 1905
the number rose to fifteen for the Moray Firth and six for the Clyde.
In all these cases the charge was for trawling within the ordinary
three-mile limit. In 1905 a case was brought against Martin Olsen, the
Norwegian “flag-master” of one of the trawlers registered in Norway,
the _Catalonia_, for trawling within the Dornoch Firth in contravention
of the Act of 1889, and byelaw No. 2, made under the Act of 1885. The
place where the offence was committed was beyond the distance of three
miles from the shore, but it was within three miles of the ten-mile
base-line across the Dornoch Firth, and therefore within the exclusive
fishery limit as defined in the conventions, and within one of the
areas scheduled in the Act of 1889. The Sheriff-Substitute at Dornoch
sustained Olsen’s plea of no jurisdiction, on the ground that the
_Catalonia_ was registered in Norway, and Norway was not one of the
Powers signatory to the North Sea Convention. On appeal to the High
Court of Justiciary the decision was reversed, the judges holding that
the prohibition in the Act of 1889, being quite general in terms, was
applicable to foreigners as well as to British subjects, and that
it was not for them to draw a distinction which had not been made by
Parliament.[1320]

[Illustration: Fig. 30.--_The Moray Firth, showing the line of
closure._]

This decision was the means of raising the question whether the byelaw
did not apply to foreigners equally with British subjects in the
whole extent of the Firth, and a series of cases were brought before
the Sheriff to test the point. Three prosecutions were instituted,
one against Emmanuel Mortensen, a Dane, master of the _Niobe_, of
Sandefjord, Norway, for trawling at a point about five miles off
Lossiemouth; another against Thomas Robinson, a British subject, master
of the _Verbena_ of Stavanger, Norway, for trawling at a point five
miles S.S.E. of Garty Point, Sutherlandshire; and the third against
Arthur Lambert, a British subject, fishing-master of the _Pinewold_,
registered at Sandefjord, Norway, for trawling at a distance of seven
miles from Tarbetness. Convictions were obtained in all cases in the
Sheriff Court of Dornoch, mainly on the same ground as in the above
case, that the statute was general and applied to all persons, but
Sheriff (now Lord) Guthrie also held that the Moray Firth was within
the territorial waters of Scotland.[1321]

The case in regard to Mortensen was appealed and was heard by the
full bench of twelve judges of the High Court of Justiciary, who
unanimously upheld the conviction and dismissed the appeal. The
leading opinion was delivered by the Lord Justice-General (Lord
Dunedin), who treated the question as one of construction, and of
construction only, since the court had nothing to do with whether
an Act of the Legislature was _ultra vires_ or in contravention of
international law; they had only to give effect to it. The terms of
the Act, applying to “every person” committing the offence within an
area which was precisely defined, made the inference strong that it
was meant to apply to all persons whatsoever; and this inference was
further strengthened by the consideration that the clear object of
the Act was to stop trawling, and that object would be defeated or
rendered less effective if the prohibition applied only to British
subjects, while leaving those of other nations free. With regard to
the territorial or non-territorial character of the place where the
_Niobe_ had been trawling, Lord Dunedin said that while it might be
assumed that within the three-mile limit the territorial sovereignty
would be sufficient to cover such legislation, that was not a proof of
the counter proposition, that outside the three miles no such result
could be looked for. There were at least three points which went far
to show that the _locus_ was _intra fauces terræ_: (1) the dicta of
the Scottish Institutional Writers, as Stair and Bell;[1322] (2) the
fact that the same statute puts forward claims to analogous places, as,
_e.g._, the Firth of Clyde; (3) there were many instances in decided
cases where the right of a nation to legislate for waters more or less
landlocked, though beyond the three-mile limit, had been admitted.
“It seems to me, therefore,” continued Lord Dunedin, “without laying
down the proposition that the Moray Firth is for every purpose within
the territorial sovereignty, it can at least be clearly said that the
appellant cannot make out his proposition that it is inconceivable
that the British Legislature should attempt for fishery regulation to
legislate against all and sundry in such a place. And if that is so,
then I revert to the considerations already stated, which, as a matter
of construction, make me think that it did so legislate.” He did not
think any argument could be drawn from the definition of “exclusive
fishery limit” in the North Sea Convention, inasmuch as the Convention,
as a whole, did not deal with what was here in question--viz., mode
of fishing; and the Act treated subjects and foreigners alike in the
matter.

Lord Kyllachy also held that, on the point of construction, the
intention of the Act was that in no part of the area should trawling be
practised by anybody; the terms were definite and applied to a quite
definite area; it would be easier to suppose that the Legislature
had reached even an erroneous conclusion as to the extent of its
jurisdiction, than that it had resolved deliberately to impose a
futile restriction upon its own countrymen and at the same time to
create a hurtful monopoly in favour of foreigners. With regard to
the territorial or non-territorial character of the Moray Firth, it
seemed vain to suggest that according to international law there was
any part of it which was simply an area of the open sea, and thus in
the same position as if it were situated, say, in the middle of the
German Ocean. The whole Firth was _prima facie_ a “bay,” with two
well-marked headlands, and stretching inwards for many miles into the
heart of the country. All that could be said against this was that at
its outer end the Firth was very wide, and of a size, if not also of
a configuration, somewhat beyond what is usually characteristic of
bays and estuaries; but that might or might not be so, and the cases
of the Bristol Channel, the Firth of Clyde, and the Firth of Forth
would have to be considered before the proposition could be affirmed.
There was no established rule on the subject in international law, and
in particular no rule “so arbitrary and artificial as that of the
ten-mile limit measure,” for which the appellant contended. Perhaps the
most interesting part of Lord Kyllachy’s opinion concerned the bearing
of the North Sea Convention on the case. If the question had been one
of _exclusive fishing privileges_, the bearing of the Convention might
have been important. “But exclusive fishing privileges--or, at all
events, exclusive fishing privileges as defined by convention--are
one thing; territorial jurisdiction, proprietary or protective, is
a different thing.... There is certainly nothing in the Convention,
at least nothing was brought under our notice, which in the least
conflicts with the right of the several contracting nations to
impose each of them within its territorial limits (whatever these
are) restrictions universally applicable against injurious practices
or modes of fishing such as are by this statute and byelaw imposed
here. In other words, there is nothing in the statute and byelaw in
question which at all interferes with the exclusive fishing privileges
of the several nations.” He could not consent to the argument that
the Convention had introduced a new chapter into international law
establishing, with respect to the definition of bays and estuaries, new
and artificial rules. The other judges who gave their reasoned opinions
expressed similar views, both as to the construction of the Act, the
possibility or probability that the Moray Firth was a territorial bay
by the law of nations, and as to the distinction between the limits of
exclusive fishing as defined in the Convention and the right of the
bordering state to regulate the fishery beyond that limit and within
its territorial waters, provided the regulations applied equally to
all.[1323]

It is to be noted that although the question was strictly one of the
construction of the Act, the judges had necessarily, in reaching
its true meaning, to consider certain aspects of international law
in relation to the territorial sea. From the above summary of their
opinions, it is evident that the most eminent Scottish lawyers are in
agreement with the modern publicists whose views have been referred
to in a previous chapter, both in rejecting the three-mile limit
as the farthest boundary of territorial sovereignty and as to the
ten-mile rule (to say nothing of the six-mile theory) for bays. It
may, however, be questioned as to how far the doctrine of independent
territorial regulation of fisheries beyond the limit of exclusive
fishing, as defined in the Conventions, will be accepted as applied
to the signatories of the Conventions. It is not expressly stated in
the Conventions that the waters outside the exclusive fishery limits
shall be free and common to all; but that is implied even in the title
of the last of them,[1324] and the Convention, in point of fact, lays
down such regulations for the conduct of the fishery, outside the
exclusive fishery limits, as appeared to the signatories at the time
sufficient for the equitable enjoyment of the common right. It would
be easy to conceive of general regulations being applied independently
at particular places by one state, which would have the effect of
abridging the common right of the other states, without affecting the
interests of its own subjects--on the principle of the invitations
which the fox and the stork issued to one another in the fable. That
the intention was to leave the fisheries outside the limits mentioned
free, except in so far as the regulations agreed upon affected them, is
clear from the proceedings at the conference at The Hague. As regards
other states, however, such as Norway, which were not signatories of
the Conventions, it is equally clear that, up to the utmost bounds of
the territorial waters, regulations may not only be imposed on their
subjects, but they may be excluded from the fisheries altogether.

The effect of the decision of the High Court of Justiciary was
apparently to keep the foreign trawlers out of the Moray Firth for
a short time. But very soon a number of them came back again from
Grimsby, with express instructions from the owners to fish in the Moray
Firth. On 31st January 1907 six masters, all foreigners, of trawlers
registered in Norway, were charged at Elgin Sheriff Court with thirteen
separate contraventions of the byelaw, committed between 23rd November
and 22nd December 1906, at various distances from about five to twelve
miles from the coast; on conviction, penalties of £100 or sixty days’
imprisonment were imposed, and five of the men went to prison. On 4th
February other two masters of foreign trawlers were convicted of a
corresponding offence at Wick Sheriff Court. At the trial at Elgin, the
Norwegian Vice-Consul at Aberdeen read a protest, at the instance of
the Foreign Minister of Norway, against the conviction of the masters
of three of the Norwegian vessels which he named, provided the trawling
with which they were charged had taken place “outside the territorial
limits.”[1325]

Representations were also made to the British Foreign Secretary by
the Norwegian Minister in London (Dr F. Nansen), and the men were
released on 9th February,[1326] the decision of the Scottish High
Court being thus in effect set aside. It was subsequently explained
that in taking this action Norway was merely making a formal stand
for the rights of her flag, since the trawlers had been registered
in Norway in a legal way, Norwegian subjects were concerned, and no
claim had been put forward on behalf of the British Government to the
Moray Firth as being territorial in character. In point of fact, the
Norwegian Government was in full sympathy with the policy of keeping
the pseudo-Norwegian vessels out of the Moray Firth,[1327] and they
immediately, after the formal protest referred to, issued orders
warning all owners of Norwegian trawlers fishing in the Moray Firth to
cease from doing so, and not to expect the support of their Government
in case of proceedings being taken against them in Scotland.[1328]
It does not appear that any advantage was taken of this proceeding
for further prosecutions of Norwegians contravening the law; but it
was decided to proceed against British subjects who might be found on
the foreign vessels which were violating it, and who were undoubtedly
under the jurisdiction of British courts. On March 20th twelve cases
were brought before the Elgin Sheriff Court, the men charged being
the “fishing-masters” of the foreign trawlers,[1329] and the only one
who appeared was fined fifty pounds for each of three offences, or
fifteen days’ imprisonment. A little later, on 17th April, fifteen
fishing-masters of foreign trawlers, one of which was Swedish, all
British subjects belonging to Grimsby, were charged in the same court
for trawling within the Moray Firth outside the ordinary limits, and
on conviction small fines were imposed. Similar cases were brought
against eleven men in July, who were charged with twenty-eight offences
committed between 2nd March and 24th June, and still smaller penalties
were imposed.[1330]

Considerable discussion was evoked by the various occurrences above
referred to. Resolutions were passed at various meetings of fishermen
in Scotland in favour of the byelaw being strictly enforced, and asking
that an international arrangement should be come to if necessary to
enable that to be done. At meetings of trawl-owners, on the other
hand, held at Grimsby and elsewhere, resolutions to the opposite
effect were agreed to, and the Government were requested to maintain
the “three-mile international territorial limits as now defined.”
In the Houses of Parliament also numerous questions were put to
Ministers on the subject, and there were several debates of a more or
less formal kind. It appears that the Foreign Office had come to the
conclusion that the Act of Parliament as interpreted by the High Court
of Justiciary was in conflict with international law;[1331] and that
view having been taken, it was obvious that it would be necessary,
if the statute was to have equal effect on foreigners, that some
international arrangement, such as had been previously recommended
by the Select Committees of the House of Commons and the House of
Lords,[1332] should be reached. It appears that there would have been
no difficulty in arranging such an agreement with Norway, which was
desirous of entering into negotiations for the purpose; but it was
felt by the Foreign Office that, while an arrangement of the kind
would not bind other Powers, questions of reciprocity might be raised,
and British trawlers might be excluded from similar areas on foreign
coasts. They therefore declined to enter upon negotiations with foreign
Powers until the whole policy had been carefully considered.[1333]
One point of view which was taken was indicated in a speech of the
Under-Secretary for Foreign Affairs (Lord Fitzmaurice) in the course
of a debate in February 1907, which had been initiated by Lord Balfour
of Burleigh. He stated that according to the views hitherto accepted
by the chief departments of the Government--the Foreign Office, the
Admiralty, the Colonial Office, the Board of Trade, and the Board of
Agriculture and Fisheries--and apart from the provisions of special
treaties, territorial waters were: “First, the waters which extend
from the coast-line of any part of the territory of a State to
three miles from the low-water mark of such coast-line; secondly,
the waters of bays the entrance to which is not more than six miles
in width, and of which the entire land boundary forms part of the
territory of a State. By custom, however, and by treaty and in special
convention, the six-mile limit has frequently been extended to more
than six miles.”[1334] The Lord Chancellor, it may be said, was absent
through illness; and the declaration quoted, though it represents
what has been the general, but by no means the invariable, attitude
of the British Foreign Office in dealing with territorial waters,
is not in accordance with the law of nations, as is shown in the
foregoing chapters. Nor does it agree with the opinions expressed in
a former debate by the late Lord Salisbury, so long the distinguished
Foreign Minister of this country, by Lord Halsbury, the former Lord
Chancellor, and by Lord Herschell, the then Lord Chancellor (see p.
592), in which Lord Salisbury said “great care had been taken not to
name three miles as the territorial limit.” Nor is it in agreement
with the carefully considered and most explicit reservations made in
the Territorial Waters Jurisdiction Act, both in regard to the extent
of the territorial waters and the rightful jurisdiction of the Crown
beyond three miles from the shore under the law of nations, conferred
by Act of Parliament, or by law existing, and the similar reservations
in certain other Acts previously referred to. Even more singular is the
novel statement as to what constitutes a territorial bay. A six-mile
limit of the kind will obviously confer in the great majority of cases
no greater extent of sea than the three-mile limit on an open coast,
and it is thus opposed to one of the best-recognised principles of
international law relating to the subject. The only part of the world
where it appears to be in force is in British North America, with
reference to subjects of the United States. The history of how it came
to be applied at all is told in a previous chapter, in which it is also
shown that the British Government as late as 1887 rejected even the
ten-mile limit for bays, as involving a surrender of fishing rights,
and as being contrary to the law of nations (p. 629), and they have
made declarations equally emphatic on other occasions.[1335]

But in a subsequent debate Lord Fitzmaurice appears to have qualified
his statement, and quoted the observation of Lord Salisbury that where
the coast was “folded and doubled,” as where bays exist, it was an
unsettled question in international law how far territorial waters
extend in such cases.[1336]

Rather a different view was taken by the Lord Chancellor, a few weeks
later, in the course of another debate about the Moray Firth. Lord
Loreburn confined himself to saying that the obvious contention of
other nations, and one very difficult to encounter, if we tried to
make byelaws under our own law in regard to waters within a line
from headland to headland eighty-five miles apart, would be that
we might be trying to legislate for the high seas.[1337] And in a
debate in July 1908, the Secretary for Foreign Affairs (Sir Edward
Grey) put the matter in an exceedingly lucid manner. Parliament had
recognised the contention, he said, that there ought to be special
regulations, especially in regard to the Moray Firth, going far beyond
the three-mile limit; and, like other members of the Government, he
condemned the action of British subjects who, knowing perfectly well
the law, made use of a foreign flag to evade the regulations of the
Moray Firth, which it was obviously the desire of Parliament should
be enforced. But when they came to the question of enforcing the law
on foreign subjects, they were placed in a very difficult position.
The national policy of this country hitherto “had been to uphold the
three-mile limit, but to protest against and to resist by every means
in our power the pretension of any foreign country to enforce its own
jurisdiction on the sea beyond the three-mile limit.” We had contended
before international tribunals, as in the Behring Sea Arbitration, that
the three-mile limit is the only one we can recognise as the limit of
foreign jurisdiction over British vessels; and suppose we attempted to
enforce a doctrine going far beyond the three-mile limit on foreign
ships, how could we contend before an international tribunal for a
doctrine precisely the reverse of that which we have always upheld on
previous occasions? It followed from this that “if there was to be
a modification of the rules relating to trawling in the North Sea,
it must be by agreement with foreign Powers”--that was really the
practical point upon which the matter turned. But in an important
question affecting the interests of the country at large, it was
impossible for the Foreign Office to approach other Powers with the
view of reaching an agreement until it was quite clear that it was in
the interest of a policy which had been adopted, affirmed, and declared
by the Government to be a policy which was in the general national
interest of the United Kingdom. Judging from the very great force with
which the case in such regions as the Moray Firth had been presented,
and the strong feeling that existed and which was not confined to the
Moray Firth, it had always seemed to him that there was a case for
grave consideration as to whether any new regulations were required for
the preservation of the fishing industry in the North Sea at large.
Trawling was a perfectly legitimate industry in which large capital was
invested, and if further restrictions were to be imposed on it, it must
be because a really important national interest required it; it would
not be right to adopt in the interests of particular localities any
special restrictions which might result in diminishing the supply and
raising the price of fish. But, having laid down these two principles,
Sir Edward Grey thought it was equally true that if the supply of fish
from the North Sea is being affected by want of further regulations,
then the interests of any particular industry must be subordinated
to the general interest, which in the long-run was also the interest
of the industry itself. “If it be the case,” he proceeded, “that in
areas like the Moray Firth, which are important breeding-grounds, the
supply of fish is being seriously interfered with by the prosecution
of trawling in narrow waters, then it becomes a matter of national
interest that we should, as soon as possible, come to some agreement
with foreign Powers under which we should be able to make the
arrangements which prove to be necessary in the national interest at
large.” The subject was one requiring the deliberate investigation of
the Government, and the investigation was proceeding; and they should
know in the course of a reasonable time whether or not the Government
thought they had a case for approaching other Powers, and if so what
were the grounds and propositions they should ask those Powers to agree
to. With regard to bays, the Foreign Secretary said it had generally
been understood that the qualification of the three-mile limit applied
to bays ten miles wide, and they must be very careful as to how far
they pressed the doctrine as to the width of a bay, or laid down an
international doctrine on any particular bay. They must think of what
the application of it might be in other parts of the world.[1338]

In this statesmanlike speech the case was put temperately and fairly.
Whether the Moray Firth is or is not a territorial bay, it has been the
general practice of the British Government to contend for the ordinary
three-mile limit, at least on open coasts, in relation to fishery
questions. If there are clear reasons for the extension of this limit
at any part of the coast, or in the North Sea generally, in the common
interests of the fisheries, as recommended by the Select Committee
of the House of Commons in 1893; or for the prohibition of trawling
within a great area on the Continental coast, as urged by the English
trawlers, and recommended by the Parliamentary Committees of 1900 and
1904; or if it is believed to be necessary to regulate the fisheries in
any way beyond the ordinary limit, then obviously the best method is to
endeavour to come to an arrangement with the other Powers concerned.
There are precedents for this course in British policy. By treaties
with France, the British Government agreed to bind British subjects not
to fish for oysters or any kind of fish within Granville Bay in waters
beyond the ordinary limit. In the interests of the preservation of the
fur-seal, in which the United States was mainly concerned, they agreed
to prohibit British subjects from taking them within a limit of sixty
miles around the Pribilov Islands, and to compel them to observe a
close-time on the high seas, and to use only the primitive spear. They
have also by treaty agreed to respect various other limits beyond the
ordinary three miles in the interest of the preservation of other kinds
of seals. The case of the North Sea, or of that inlet of it known as
the Moray Firth, is on the same footing as these. The question is not
one of the extension of territorial sea _qua_ territorial sea, but of
special regulations independent of it, and exclusively relating to the
fisheries.

From what has been said in foregoing pages as to the impoverishment of
the fishing-grounds in the North Sea, and the various remedies that
have been at one time or another proposed by the English trawlers and
by Parliamentary Committees with the view of maintaining the fish
supply, it might appear that a very good case already existed for
approaching foreign Powers with the object of arranging for general
regulations beyond the ordinary limit, and one far weightier than that
which brought about the conference at The Hague and the North Sea
Convention in 1882 (see p. 631).

Two probable reasons may be advanced for the delay in giving effect
to the recommendations of the various Committees of Parliament. The
first is that a very important international investigation of the North
Sea and adjacent waters has been in progress for a number of years
and is still going on. On the invitation of the Swedish Government,
representatives of Great Britain, Germany, Russia, the Netherlands,
Denmark, Sweden, and Norway met at Stockholm in June 1899, and again
at Christiania in May 1901, to discuss and arrange an organisation
and a programme for an international scientific investigation of the
North Sea, the Norwegian Sea, and the Baltic, in the interests of
the fisheries; and in July 1902, the first meeting of the body so
constituted, the International Council for the Exploration of the
Sea, was held at Copenhagen. Since then all the maritime countries of
Western Europe, with the exception of France, have engaged in these
researches.[1339] This country entered into the arrangement with
special reference to the fisheries in the North Sea, and with a very
practical end in view--namely, to secure a careful inquiry into the
effect of the methods of fishing in the North Sea, and to promote a
scheme for determining whether protection against overfishing was
required; and, if so, where, when, and how such protection should be
given.[1340] Much strong criticism has been passed as to the origin,
the methods, and the programme of these investigations,[1341] and while
they have naturally resulted in large additions to our knowledge of the
physical and biological conditions of the sea, of the life-history of
fishes, and of certain fishery questions, no report has yet appeared
dealing with the fundamental problem as to overfishing and any remedies
which may be required to safeguard the fish-supply; and it is doubtless
such information that is referred to by the Foreign Secretary as
essential before Foreign Powers can be approached. An opinion was,
however, early expressed as to the particular question of the Moray
Firth. The Conference held at Christiania in 1901, at which all the
Powers signatory to the North Sea Convention (with the exception of
France) were represented, passed a resolution to the effect that “in
distinct areas of the sea, as for example the Moray Firth, in which
any Government has undertaken scientific experiments in the interest
of the fisheries, and in which the success of the experiments is being
hindered by the operations of trawlers, it is to be desired that
measures be adopted for the removal of such hindrances.”[1342]

The second probable reason that nothing has yet been done to arrive at
an international understanding appears to be that the representatives
of the great trawling industry have changed their minds within
the last few years. Since foreign coasts have been exploited with
immediate financial success to the trawling companies, their interest
in the North Sea has diminished. They fear that if the question of
fishery regulations beyond the ordinary three-mile limit is opened
up with foreign Powers in the interest of the North Sea fisheries,
proposals may be made, as a _quid pro quo_, by some of the other
Powers for similar regulations on their coasts; and it is evident
from the statements made in Parliament that this view has hitherto
prevailed.[1343] One would have thought that a _quid pro quo_ which
closed to trawling the great area off the Continental coast, which
English trawlers for more than fifteen years have been vainly asking to
be closed by international arrangement, would be satisfactory to them.
Or that a fishery limit of nine or ten miles on the other side of the
North Sea, or all around it, which they thought some years ago to be
the best remedy for the depletion of the fishing-banks, would meet
with their approval. These areas, compared with the whole of the North
Sea, are comparatively of small extent (see fig. 26). The area of the
North Sea between the three-mile line and a nine-mile limit amounts to
about 12,000 square miles, or 7·4 per cent of the whole area beyond
three miles from the shore; and the area between the three-mile line
and a thirteen-mile limit amounts to about 20,000 square miles, or 12·3
per cent.

Meanwhile, the condition of the fishing-grounds in the North Sea is
described as serious by those who ought to know most about it--the
trawlers who are daily working there; and if no remedy is timeously
applied, the measures which will eventually be necessary will transcend
those which are now proposed.[1344]

But if it be imprudent to postpone indefinitely the seeking of an
international remedy for the depleted fisheries of the North Sea,
because the trawling industry fears that retaliatory measures may be
proposed against British trawlers on some foreign coasts, it may be
questioned, on the other hand, whether the action taken to obviate
such measures has always been well-judged or in accordance with the
true comity of nations. On strictly selfish grounds, and for immediate
profit, it is doubtless justifiable to make every fishing-bank,
wherever it is situated, available for the enterprise of British
capital, irrespective of the interests of the inhabitants of the
adjoining coast, if that can be managed. If, indeed, the resources of
the sea were inexhaustible,--if it was impossible for the operations
of man to diminish the abundance of fish,--then no limit of exclusive
fishing would be necessary: only such regulations would be required
as would enable fishing operations to be conducted in an orderly
manner. But the condition of the North Sea alone proves the opposite.
It shows also, what is well enough understood, that unrestrained
trawling on any banks will, in course of time, materially reduce
their productiveness; and the rapidity of the impoverishment will
very largely depend upon the intensity of the fishing and the extent
of the grounds. That being so, it may well be said that a measure of
protection on the banks which are still productive along foreign coasts
would be in the permanent interest of the English trawling industry
itself, as well as in the interest of the coast population.[1345]

On some of those coasts the local population are dependent on the fish
they catch on the neighbouring grounds, which are often of limited
extent, and it is reasonable and just that they should endeavour to
preserve this supply for their own use and advantage. At Iceland, for
example, the area of the possible fishing-grounds between the ordinary
three-mile limit and a depth of 200 metres (or 109 fathoms), including
places where trawling is not practicable, amounts to about 36,600
square miles, compared with nearly 312,000 square miles between the
same limits off the British Isles.[1346] It was recently stated in the
House of Lords, by Lord Heneage, that the Icelanders, with the view of
preserving their fishing-grounds, a few years ago brought forward a law
in the _Althing_, or local Parliament, to extend the limit of exclusive
fishing to seven miles around their coast. It was also said that in
1901 they passed laws for enclosing extra-territorial waters. As soon
as these proceedings came to the knowledge of the English trawl-owners,
the National Sea Fisheries Protection Association made a representation
on the subject to the Foreign Office, and in consequence of this the
Danish Government took action, and the law was prevented from coming
into operation.[1347] And any such action in the future was effectually
prevented by the immediate negotiation of an international convention
in which a three-mile limit was fixed for Iceland and Faröe (see p.
647) so far as concerned British fishermen. Then with respect to the
coasts of Spain and Portugal, where the available grounds are narrow,
amounting altogether between the three-mile limit and the 200-metre
line to 15,460 square miles (see fig. 28), intimation has been made
by the British Foreign Office, at the instance of the National Sea
Fisheries Protection Association, that jurisdiction will not be
recognised over British vessels beyond three miles from the shore,
and the national regulations in regard to trawling are thus rendered
comparatively ineffective. With regard to Norway, moreover, where the
area between the three-mile limit and the 200-metre line exceeds 30,000
square miles, it appears that soon after her separation from Sweden,
in 1905, the British Foreign Office made the proposal that she should
join in the North Sea Convention (which, along with Sweden, she refused
to do in 1882), so that the ordinary three-mile limit might be imposed
along the Norwegian coast; but the proposal was rejected.[1348]

In view of the evidence that has been adduced, the recommendations
of the various Committees of Parliament that have inquired into the
subject, and the statements made in the House of Commons, it may be
assumed that an international conference of the Powers bordering the
North Sea will be convened, to consider how fishery regulations may be
made more effective, whether by extension of the limits of exclusive
fishery or otherwise, as soon as the results of the international
fishery investigations justify that course.

APPENDIX A.

(P. 45.)

THE LIBEL REGARDING REYNER GRIMBALD.

DE SUPERIORITATE MARIS ANGLIÆ ET JURE OFFICII ADMIRALLATUS IN EODEM.

(Chancery Rolls, Miscellaneous. Treaties and Diplomatic. Bundle 14, No.
15, Mem. 12.)

A vous Seignurs Auditours Deputez par les Roys Dengleterre et de
Fraunce a redresser les damages faitz as gentz de lour Roialmes et
des autres terres subgiz a lour seignuries par meer et par terre en
temps de pees et de Trewes monstrent les Procureurs[1349] des Prelatz
et Nobles et del Admiral de la meer Dengleterre et des Comunaltes
des Citees et des Villes et des Marchanz Mariners Messagers et
Pillerins et de tous autres[1350] du dit Roialme Dengleterre et
des autres terres subgies a la seignurie du dit Roy Dengleterre et
daillours sicome de la Marine de Genne Cateloigne Espaigne Alemaigne
Selaunde Heylande Frese Denemarch et Norweye et de pluseurs autres
leux del empyre qe come les Roys Dengleterre par raisoun du dit
Roialme du temps dount il na[1351] memoyre du contraire eussent
este[1352] en paisible possession de la souereigne seignurie de la
meer Dengleterre et des Isles esteans en ycele[1353] par ordinance et
establicement des lois estatuz et deffenses darmes et des vesseaux
autrement garniz qe vesseaux de Marchandise et de seurte prendre
et sauuegarde doner en tous cas qe mestier serra et par ordinance
de tous autres faitz necessaires a la garde des pees droiture et
equite entre toute[1354] manere des genz taunt dautri seignurie
come leur propre[1355] par illeqes passanz et[1356] par souereigne
garde et[1357] tote manere de conisance et Justice haute et basse
sur les dites loys estatuz ordinances et deffenses et par tous
autres faitz queux a le gouernement[1358] de souereigne seignurie
appartenir purront es leux auantdiz. Et A. de B. Admiral de la dite
meer deputez par le Roy[1359] Dengleterre et tous les autres Admirals
par meisme celui Roy Dengleterre[1360] et ses Ancestres iadiz Roys
Dengleterre eussent este[1361] en paisible possession de la dite
souereigne garde[1362] oue la conisance et Justice et tous les autres
appurtenances auantdites horspris[1363] en cas dappel et de querele
faite de eux a lour souereignes Roys Dengleterre de deffalte de droit
ou de mauueis iuggement et especialment par empeschement mettre et
Justice faire[1364] seurte prendre de la pees de tote manere des genz
vsanz armes en la dite meer ou menanz Nefs autrement apparaillees ou
garnies qe nappartenoit au[1365] Neef Marchande et en tous autres
pointz en queux homme poet auoir resonable cause de suspecion vers
eux de roberie ou des autres mesfaitz.[1366] Et come les Meistres des
Neefs du dit Roialme Dengleterre en absence des diz Admirals eussent
este en paisible possession de conustre et juggier de tous faitz en la
dite meer entre tote manere des gentz solonc les loys estatus et les
deffenses franchises et Coustumes.[1367] Et come en le primer article
de lalliaunce nadguers faite entre les diz Roys en les traitiz sur la
darraine pees de Paris soient comprises les paroles qe sensuient en
vne cedule anexe ayceste.[1368] Primerement il est traite et acorde
entre nous et les messages et les procureurs desurdiz en nonn des diz
Roys qe yceux Roys serrount lun a lautre desores en auant bons verays
et loiaux amys et eydanz countre tout homme sauue lesglise de Rome en
tiele manere que si ascun ou pluseurs quicunques ils fuissent voloient
deponticer [_sic_] empescher ou troubler les diz Roys es franchises es
libertez priuileges es droiz es droitures ou es custumes de eux et de
lour Roialmes qils serront bons et loiaux amys et aydanz countre tout
homme qi puisse viure et morir a defendre gardir et mainterer[1369]
les franchises les libertez les priuileges les droiz les droitures et
les coustumes desusdites Excepte[1370] le dit Roy Dengleterre Monsieur
Johan Duc de Braban en Brabant et ses heirs dessenduz de lui et de la
fille le Roy[1371] Dengleterre et excepte pur le dit nostre seigneur
le Roy de Fraunce excellent Prince Monsieur Aubert Roy Dalemaigne
[et] ses heirs Roys Dalemaigne et Monsieur Johan Counte de Henau en
Henau. Et que lun ne serra en consail ne en ayde ou lautre perde vie
membre estat ne honur temporel [Mem. 12_d_] Monsieur Reymer Grymbaltz
Meistre de la Nauie du dit Roy de Fraunce qi se dit estre Admiral de
la dite Meer deputez per soun seignur auantdit pur sa guerre countre
les Flamaings apres la dite alliaunce faite et affirmee et[1372] contre
la fourme et la fource de meisme lalliance et lentencion de ceux qi
la firent loffice deladmiralte en la dite Meer Dengleterre[1373] par
commission du Roy[1374] de France torsenousement enprist et usa un an
et plus en parnant les gentz et[1375] marchantz du Roialme Dengleterre
et daillours par la dite meer passanz euesque leur biens[1376] et
les gentz ansi prises liuera a la prison de soun dit Seignur le Roy
de Fraunce et lour biens et[1377] Marchandises a les Receiuours par
meisme celui Roy de Fraunce[1378] a ce[1379] deputez en les Portz de
soun dit Roialme come a lui forfaites et acquises fist amener par
soun iuggement et agard[1380] et la prise et detenue des dites gentz
oue[1381] lour diz biens et marchandises et soun dit iuggement et
agard sur la forfaiture de eaux et acqueste[1382] ait Justice deuant
vous Seignurs Auditours en escript par my lautorite de la[1383] dite
commission sur ladmiralte auantdite par lui ansi vsurpee et par my
vne deffense communement faite par le Roy[1384] Dengleterre par my
soun poer solonc la forme du[1385] tiers article de lalliaunce auant
dite qi contient les paroles desouzescriptes en requerant que de ce
il en fuisse quitz et assouz en grant damage et preiudice du dit Roy
Dengleterre et des Prelatz et Nobles et autres desusnomez par quoy
les diz procureurs en les nouns de lour diz Seignurs[1386] Auditours
auantdiz prient que deliuerance dewe et hastiue des dites gentz ouesqe
leur biens et marchandises ansi prises et detenues facez estre faite
al Admiral du dit Roy Dengleterre a qi la conisance de ce appartient
de droit sicome desus est dit ansi qe[1387] sans destorbance de vous
et dautri[1388] puisse de ce conustre et faire ce qe appartient a
soun office auant dit et qe le dit Monsieur Reyner soit condampne et
destreint affaire dewe satisfaction a tous les diz damagez si auant
come etc.[1389] Item vous requirent les diz procureurs que come solone
les anxnienes[1390] loys franchises et coustumes du Roialme Dengleterre
a la garde des queles vostre dit seignur le Roy et ses auncestres Roys
Dengleterre soloient estre liez par lour sermentz Lour Admirals de la
Meer Dengleterre oue[1391] les Maistres et Mariners nefs[1392] des
Portz de la Marine Dengleterre esteans en les[1393] armees des diz
Admirals ne deuoient[1394] respondre deuant nuls Justices des Roys
auantdiz[1395] sur fais en la Meer susdite durans lours[1396] guerres
countre lour enemis et le dit Admiral vostre dit seignur le Roy et
plusours des Maistres et Mariners des Portz auantdiz ore esteans en sa
Armee countre les[1397] enemis Descoce et lour aydans et alliez par
expres mandement de vostre dit seignur le Roy soiient accusez deuant
vous par gentz de Normandie et de Bretaigne et daillours sur ascuns
faitz en la dite Meer en temps de trewes et puis la pees afferme entre
les diz Roys Dengleterre et de Fraunce et auant la guerre comencee
entre eaux a ce qest dit. Vous plaise surseer es proces countre eux ia
comencee et deporter de comencer nouel durant la guerre susdite ansi
qils naient mestier de se[1398] complaindre a vostre dit seignur et as
Prelatz et Nobles de soun dit Roialme par leur serment liez a les dites
loys franchises et coustumes garder et maintenir.

APPENDIX B.

(P. 49.)

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, Edw. I.

(Abstract of Chancery Miscellaneous Roll. Bdle. 5, No. 6.)

RICHARD BUSH _against_ REYNER GR MAUS.

LIBEL (_Libellus_).

Richard Bush of London complains that a ship called “la Blacog̃” of
London, going from Winchelsea to Dieppe in August 1301, containing
goods to the value of £157, was attacked by Michel de Navere and
others of Calais, and his said goods taken thither and there disposed
of by said Michel and Henry de Ganewe. Said Richard demands restoration
of goods and £20 damages.

DENIAL (_Contestatio negativa_).

The said “Cheual̃” asserts that he was not in that country at the time
specified, nor for nearly a year afterwards.

REJOINDER (_Repplicatio_).

To the answer of the “chevalier” that he was not admiral till some time
after the events specified, the attorneys of said Richard reply that
they will advise with their master as to the truth.

William Bush of London loaded a ship called “la Mariote de Seland” at
Antwerp for London with goods to the value of £175, 17s. 8d. Michel de
Nauere and others of Calais came with three galleys to the foreland of
Thanet at the mouth of the Thames in May 1298; took said ship to Calais
and there disposed of the goods by the aid of Henri de Ganewe. Said
William demands restoration and £20 damages.

To the demand of William Bush the said John[1399] replies “en la
maniere q̃ il fait a la demande Cecile,”[1400] that it does not concern
him, but “mos̃ Henri et Michel de Nauare.”

Said William further complains that he loaded a ship called “la Blithe”
of London in Brabant for London with goods, value £40. John Pederogh
seized them at the mouth of the Thames in July 1303, took them to
Calais, and there disposed of them by the aid of Edward de Mabusshon.
William demands restoration and £8 damages.[1401]

Said John replies that at the time specified he was not on the sea at
all but in Paris or on the road to Calais.

THOMAS CROS _against_ JOHN PAYDRO.

LIBEL.

Thomas Cros of London, executor of the will of Thos. Cros his father,
who was executor of Henry Box of London, complains that said Henry
loaded the ships William le fiz Henri, Godefroi de Duffle, Michel de
Middelborgh, Johan Athelard, Johan le Chaundeler in London, to go to
Brabant (which ships were of Brabant) with goods value £672; Michel de
Nauuere and others of Calais with three galleys seized said ships off
the foreland of Thanet in May 1298, took the goods aforesaid from said
ships and in their galleys to Calais, and there disposed of them by the
aid of Henry de Genewe. Said Thomas Cros demands restoration and £100
damages.

EXCEPTION REQUIRING DELAY (_Excepc̃o dilatoria_).

The said John says it is not for him to reply, as the complaint
concerns not him but mos̃ Henri de Genes and Michel de Nauare, who are
abroad where they cannot be had.

“Watier le Hert de Mallins” and Rose de Salisbery of London loaded at
London a ship called the Johan Azelard de Mallins with goods value
£28, 19s. 2d. Michel de Nauare and others of Calais with three galleys
seized said goods out of said ship, then anchored off the foreland of
Thanet (May 1298), took them in their galleys to Calais, and disposed
of them by the aid of mons̃. Henri de Genewe. Said Watier and Rose
demand restoration and £6 damages.

Cecile atte More of London loaded at London for Brabant the ships
William Petersone of Seland, William Henriessone of Seland, Johan le
Chandeler, with goods value £158, 19s. Michel de Nauere and others of
Calais in May 1298 seized said goods out of said ships (then anchored
off Thanet) and disposed of them at Calais by the aid of Henri de
Genewe. Cecile claims restoration and £20 damages.

Cecile atte More complains that in July 1303 Johan Pederogh and others
seized goods of the said Cecile at the mouth of the Thames out of a
ship called “la Blithe de Londres” coming from Brabant, and disposed
of them at Calais by the aid of mos̃ Edward de Mabusshon: value £10.
Cecile prays restoration and 40s. damages.

Said John replies that at the date specified he was at Paris or on the
road to Calais, and not on the sea at all.

Thomas atte Hurst of London loaded at Berwick the “Distaf de Haneford”
for London, with goods to the value of £11, 18s. 8d. They were seized
by men from Calais off Blakeney on the Tuesday after Saint Bartholomew
1303,[1402] and disposed of at Calais. Thomas prays restoration and
damages.

The said John [_sic_] says that the above demand concerns “mi sire
Reniers de Grimaus” only, for he was then admiral, and said John was on
shore at the date specified. Said John was only in the company of said
Reniers “en Sellande et en Horlande.”

To the demand of Thos. atte Hurst touching goods seized from the
“Distaf de Haneforde” by Johan Peidroge, Clay Clinkhamer, Piers Hues,
and others in 1302 [_sic_], the said “Oudart” [_sic_] replies as he did
to the claim of Alayn de Thorndon. [_See below._]

Aleyn de Thornden, burgess of “Lenn,” loaded a ship in Scotland
belonging to Nichol de Caith̃ with goods value £133 for Brabant,--mons̃
Odard de Maubusshon, Johan Peidrgroge, Johan de la B..ge.lour, “soen
frere Lani yacop” Gusse Odin, Johan le parker, vaaseur le Mariner,
Hirnolet le Man and Petre le Puttere, in August 1304 seized the ship
off Kirkele, killed the crew, and disposed of ship and goods at Calais.
Aleyn demands restoration and damages, value in all £143.

The said John replies that he and others named in above plaint at the
date specified were in Holland and Zeeland. “Car le iour de la Seint
Laurence[1403] il se combatieront en Selande as Flamens as Baion̄ois et
as Engleis qi estoient en lour aide.”

William Quineberge, burgess of Lynn, loaded his own ship, the
“Nicholas,” at Lynn for Scotland with goods, value £35, 15s. 8d.--Odard
de Maubusshon, Johan Perdroge, Johan Huard, Gusse Odin, Simond Danyn,
Johan Allestein, Clay Clinchamer, Vaaseur le Mariner, Johan Paye, and
Petre le Pottere in August 1303 plundered the ship off Scarborough,
killed a mariner, and disposed of the goods at Calais. William demands
restoration and £10 damages.

Adam Honson of Gloucester loaded the ship of “Williame de Douere” at
Antwerp for England with goods, value £220. Odard de Maubusshon and
Johan Peidroge of Calais, in September 1303, plundered said ship in
sight of Dover, “et illoeques la Nief deliuereront al auant dit William
de Douere” [_sic_]. Adam demands restoration and £60 damages.

Johan de Hetheye, William le Scherman, Rich. le Goldsmith, Johan le
Blunt, Will. de Nesse, Johan Gode, and Wauter Top loaded the ship of
William Gare called “Michele de Arwe” in London with goods, value £556,
3s. 8d., for Brabant.

Sire Reyner Grimbaud, admiral, on the high seas, the Sunday after
Michaelmas 1303,[1404] seized said ship and goods and took them “a Roem
en Normandie”; sent the crew to Calais, where some were put in prison,
and one still remains. Plaintiffs demand restoration and £100 damages.

To the complaint touching “la Michele de Arwe,” seized on the Sunday
after Michaelmas 1304 [_sic_], the “chiualer” confesses he took such a
ship in that year but not of the value named: “ains fu prise la dite
Nief a la Suyne a la pointe du Jour oue poer des enemys as Ancres.”
He seized it rightfully, the said ship consorting with the enemies of
France. The crew were taken, without force, and letters were found in
the ship to those of Bruges concerning money to be received in that
town; those put in prison all escaped except Johan de Masworth, who is
still there. The “chiualer” deems both persons and goods forfeit to the
King of France.

To the demand of John de Masworth for restoration of goods and liberty,
the “chiualer” says he is in prison as a malefactor against the King of
France, and that the commission of the deputies does not extend to such
cases.

ADAM DE FULHAM _against_ JOHN PAYDROGE.

LIBEL.

Adam de Fulham of London complains that in the year 1302 men of Calais
attacked the “Margarete de Jernemuth” off Orfordenessh going to London,
killed the crew, and took the ship and goods to the value of £20 to
Calais and there disposed of them. Demands restoration and damages.

DENIAL.

To the demand made by Adam de Fulham against said John and others
touching violence done to him between “le Seint Martin et le
Chaundeler” in 1302, said John replies as he did to Johan de Chelchethe.

EXEMPTION REQUIRING DELAY.

To another demand of said Adam, said John replies as he did to William
Seruat.

JOHN DE CHELCHETE _against_ REYNER DE GRYMAUS.

LIBEL.

John de Chelchethe of London complains that in 1302 John Padrogh
and others of Calais attacked the “Margarete de Jernemuth” off
Orfordenessh, killed the crew, and took ship and goods to Calais.
Demands restoration and damages, value in all £39, 5s. 8d.

EXEMPTION REQUIRING DELAY.

Said John Padrogh replies as he did to William Seruat.

EDMUND LAMBY ... _against_ JOHN PAYDROGE.

LIBEL.

Said Edmund complains as others have done concerning the “Margaret of
Yarmouth.” His goods therein were of the value of £12.

GILBERT DE ASSHENDON _against_ JOHN PAYDROGE.

LIBEL.

Said Gilbert de Asshendon of London complains that the “Distaf de
Haneford” loaded at Berwick for London was taken off Blakeney in 1303
(Tuesday after St Bartholomew). Demands restoration and damages, value
in all £8, 10s. 4d.

DENIAL.

Said John replies that at the date specified he was on dry land at
Calais.

To this demand against Johan Peidroge, Clay Clinkhanner, Piers Hues,
Stace Swares, and Johan Huares, Oudart replies as he did to Alein de
Thornden.

APPENDIX C.

(P. 65.)

LICENSE FOR FISHING AT THE “ZOWE” BANK IN THE CHANNEL.

(State Papers, Domestic. James I., Vol. 81, No. 3. 1615.)

Robert, Baron of Brancepeth, Viscount Rochester, Earle of Somersett,
Lord Chamberlaine of his Ma^{te} householde, knyght of the most noble
order of the Garter, and one of his Ma^{te} most honorable privie
Counsell, provisionally deputed for the government of the Cinque
Portes. To all to whom theis presentes shall come, Greeting, Knowe
ye that I, according to the auntient ordinances and rules hertofore
established and lately revived for the preservacon of the fishing
betwixt the subiectes of the Easterne coast of the kingdome of great
Britayne and the frenche Fishermen accoastinge those partes, Haue by
theis presentes licensed and authorised Reynold Howgatt of the Towne
of Treporte, Fisherman, M^r of one Fisherboate called the Don de Dieu
of about fourteen tonnes, with all her Company and servants of the
same Boate, To Fishe at the place called the Sowe upon the English
coast and elsewhere upon that coast, in the same sorte as any one of
those five boates heertofore tollerated and privileged out of respect
for the service of the Frenche king his excellent Ma^{tie}, for all
sortes of Fishe without restrainte of season, soe the same be done and
performed with nettes and engines lawfull and accustomed by the English
subiectes of that coast. Requiring you and every of you whom it shall
concerne not onely to permit and suffer him and his sayd servantes soe
to doe without any your unnecessary lett or impeachement. But alsoe to
yeilde him and his company all lawfull favor and assistance therein as
they shall have occasion, bearinge themselves orderly and peaceably
and observing the rules and ordinances sett downe and established for
that coast fishing as aforesaid under the penalties therein expressed
and conteyned. This license is to endure but untill the first daie of
August w^{ch} shalbe in the yeare of our Lord God 1616.

Geven under the Seale of Office at Douer Castle the sixt daie of July
in the thirteenth yeare of the reigne of our Souereigne Lord, James,
by the grace of God of Great Britaine, Frannce, and Ireland, king,
Defender of the fayth, &c.

(Sd.) R. SOMERSET.

A la nominac̃on du Mouns^r Villares Houden gouern^r du Chatiau et
ville de Diep et suit du Roy de Fraunce.

APPENDIX D.

(P. 119.)

PROCLAMATION FOR REUOCATION OF MARINERS FROM FORREINE SERUICES.

(A Booke of Proclamations, published since the beginning of his
Majesties most happy Reigne ouer England, &c., Vntill this present
Moneth of Febr. 3, Anno Dom. 1609 [1602-1612].)

Whereas within this short time since the Peace concluded betweene vs
and the King of Spaine and the Archdukes our good brothers, it hath
appeared unto vs that many Mariners and Seafearing men of this Realme
hauing gotten a custome and habite in the time of the Warre to make
profite by Spoile, doe leaue their ordinary and honest vocation and
Trading in Merchantly Voyages, whereby they might both reape conuenient
maintenance, and be seruiceable to their Countrey, And doe betake
themselues to the seruice of diuers forreine States, vnder the title of
men of Warre, to haue thereby occasion to continue their vnlawful and
vngodly course of liuing by spoile vsing the seruice of those Princes
but for colour and pretext, but in effect making themselues commonly no
better then Pirats to robbe both our owne Subiects their Countreymen,
and the subiects of other Princes our neighbours, going in their honest
Trade of Merchandize: By which courses they doe impeach the quiet
traffique of Nations one with other, leaue our Realme vnfurnished of
men of their sort, if we should haue cause to vse them, and inure
themselues to an impious disposition of liuing by rapine and euill
meanes, although by reason of the Uniuersall peace wherein wee are at
this present with all Christian Princes and States, they may haue a
more plentifull employment in an orderly and lawfull Nauigation, then
at any time of late yeeres they could haue had: We haue thought it
necessary in time to preuent the spreading of such a corruption amongst
our Subiects of that sort and calling, whereby our Nation will be so
much slandered, and our Realme so greatly disaduantaged. Wherefore
we doe will and command all Masters of ships, Pilots, Mariners, and
all other sort of Seafearing men, who now are in the Martiall seruice
of any forreine States, that they doe presently returne home into
their owne Countrey, and leaue all such forreine Seruices, and betake
themselues to their vocation in the lawfull course of Merchandize,
and other orderly Nauigation, upon such paines and punishments as by
the Lawes of our Realme may be inflicted upon them, if after this
declaration of our pleasure, they shall not obey. And we doe also vpon
the same paines straitly charge and command al our Subiects of that
profession, that none of them shall from hencefoorth take Letters of
Marke or Reprisall, nor serue vnder any that hath such Letters of
Marke or Reprisall from any forreine Prince or State whatsoeuer, Nor
otherwise employ themselues in any warlike Seruices of any forraine
State vpon the Sea, without speciall License obtained from our selfe,
or from our high Admirall, as they will answer the contrary at their
perils.

And forasmuch as although we are in Peace with all Christian Princes
and States, yet during the continuance of the Warre betweene the King
of Spain and the Archdukes on the one side, and the vnited Prouinces
of the Low-Countreys on the other side, many chances may happen, as
some already haue happened, of difficult interpretation to our Officers
and Subiects how to behaue themselues in such cases, vnlesse they be
explained vnto them: We haue thought it conuenient to make an open
declaration how our said Officers and Subiects shall demeane themselues
towards the Subiects aswell of the King of Spaine and Archdukes, as
also of the States vnited in the cases following.

First our pleasure is, That within our Portes, Hauens, Rodes, Creekes,
or other places of our Dominion, or so neere to any of our sayd Ports
or Hauens, as may be reasonably construed to bee within that Title,
Limit, or Precinct, there shall be no force, violence, surprise, or
offence suffered to be done either from Man of warre to Man of warre,
or Man of warre to Merchant, or Merchant to Merchant of either party,
but that all of what Nation soeuer, so long as they shall bee within
those our Ports and places of our Jurisdiction, or where our Officers
may prohibite violence, shall bee vnderstood to be under our protection
to bee ordered by course of Justice, and be at peace each with other.

And whereas some of the Men of warre of ech side haue vsed of late,
and it is like will vse in time to come, though not to come within
our Ports, because there they know wee can restraine violence, yet to
houer and hang about the skirts of our Ports, somewhat to Seaboard, but
yet so neere our coastes and the entrie of our Harbours, as in reason
is to be construed to be within the extent of the same, and there to
await the Merchant of the aduerse part, and doe seaze and take them at
their going out of our Ports, which is all one in a manner, as if they
tooke them within our Port, and will bee no lesse hinderance to the
trade of Merchants: Our pleasure therefore and commaundement is to all
our Officers and Subiects by Sea and Land, That they shall prohibite,
as much as in them lyeth, all such houering of Men of warre of either
side, so neere the entrie of any of our Hauens or our Coastes, And that
they shall rescue and succour all Merchants, and others that shall fall
within the danger of any such as shall await our Coastes in so neere
places to the hinderance of Trade and Traffique outward and homeward
from and to our Kingdomes. And for the better instructions of our
Officers in the execution of these two Articles, Wee haue caused to be
sent to them plats of those Limits, within which we are resolued that
these Orders shalbe obserued.

And where it hath happened, and is like to doe often, that a Ship of
warre of the one side may come into some of our Ports, where there
shall bee a Merchant of the other side: In such case, for the benefit
and preseruation of the lawfull Trade of Merchants, Our pleasure is,
That all Merchants Ships, if they will require it, shall bee suffered
to depart out of the sayd Port, two or three tydes before the Man of
warre, to the intent that the Merchant may bee free from the pursuite
of his aduersary. And if it so happen, that any Ship or Ships of warre
of the one side, doe finde any Ship or Ships of warre of the other side
in any our Ports or Roades aforesayd; Like as our pleasure is that
during their abode there, all violence be forborne: So doe wee likewise
commaunde our sayd Officers and Subiects both on Sea and Land, That the
Ship of warre which came in first, bee suffered to depart a Tyde or two
before the other which came in last, And that for so long time they
shall stay and detaine any Ship of warre, that would offer to pursue
another out of any our Ports immediately.

And where [_sic_] wee are infourmed, that notwithstanding the seueritie
of our Lawes against receiuers of Pirats goods, many of our Officers
of our Ports and other inhabitants within and neere vnto them, doe
receiue dayly Goods brought in from Sea by such as are indeed Pirats,
if they, and the getting of their Goods were well examined: We doe
hereby admonish them all, to auoyd the receiuing or buying of any Goods
from Sea, coming not into the Realme by lawfull course of Merchandise,
for that they shall finde, wee are resolued so to preuent all occasion
and encouragement of Pirats to bee vsed by any our Subiects as wee will
cause our Lawes to bee fully executed according to their true meaning,
both against the Pirats, and all Receuiers and Abetters of them, and
their Goods.

Giuen at Thetford the first day of March, in the
second yeere of our Reigne of Great Britaine,
France and Ireland.

Anno Dom. 1604.

APPENDIX E.

(P. 120.)

DECLARATION OF JURY OF THE TRINITY HOUSE AS TO THE LIMITS OF THE KING’S
CHAMBERS.

(State Papers, Domestic. James I., Vol. 13, No. 11. 1605.)

A note of y^e Headlandes of England as they beare one from another
agreeing with the plott of y^e Description of y^e Countrye as
followeth.

From Holy Iland to the Sowter is South South east. From the Sowter to
Whitby is Southeast. From Whitby to Flamborough head is Southeast,
and half a point Southerly. From Flamborough head to the Sporne is
Southeast easterlie. From the Sporne to Cromar is Southeast, and by
East. From Cromar to Wynterton nes is Southeast and by South. From
Wynterton nes to Caster nes is South South east. From Casternes to
Layestof is South. From Layestof to East nes is South, and half a point
to the Westward. From Eastness to Orforthnes is South and by West.
From Orforth nes to the North foreland is South, and one third of a
point to the Westward. From the Northforland to the Southforeland is
South. From the Southforeland to Dungnes is Southwest and one fourth
part of a point to y^e Southwards. From Dungnes to Beache is West
Southwest, and one fourth part of a poynt to the Southwards. From
Beache to Dune noze is West Southwest, and three quarters of a point
to the Westwards. From Dune noze to Portland is West and by South
Southerly. From Portland to the Start is West Southwest and one fifth
part of a point to the Westwards. From the Start to the Ramme is West,
and one fourth part of a point to the Northwards. From the Ramme to
the Dudman is West Southwest, and one sixt part of a point to the
Westwards. From the Dudman to the Lizard is West Southwest, and one
third part of a point to the Southwards. From the Lizard to Lands end
is West Northwest Northerly. From Lands end to Milford is North and
two third parts of a point to the Eastwards. From Milford to S. Dauids
head is North and half a point to the Westwards. From S. Dauids head to
Beardsie, is North and by East, and one eight part of a point to the
Eastwards. From Beardsie to Holly head is North, and one sixt part of a
poynt to the Westwards. From Holly head to the Ile of Man is North and
by East, and one fifth part of a point to the Northwards.

* * * * *

Wee whose names are heerevnder written being called before the right
worshipfull Sir Julius Cesar, Knight, Judge of the Kings Majesties
Highe Court of Admiraltie, and there impanelled, and sworne vpon
a Jurie to sett downe the bounds, and lymits, howfarre the Kings
Chambers, Hauens, or Ports on the Sea coasts doe extend; Do heereby
certifie, and sett downe (according to our best knowledge, and
vnderstanding) that his Highnes said chambers, Hauens, or Ports are all
the Seacoasts within a straight lyne drawne from one head land to the
next head land throughout this realme of England. And for the better
vnderstanding thereof haue made a plott of the same, and haue therevnto
prefixed this our Schedule, shewing how euerie head-land doth beare
vpon a right lyne the one from the other according to the said Plott.
Dated the 4. of March A^o. D^i. 1604 [1604/5] And in the second yeare
of the reigne of our Souueraigne Lord King James, &c.

(Signed) Thomas Milton.
William Bygate.
John Burrell.
William Jones.
Peter Hilles.
Michael Edmondes.
James Woodcolt.
Thomas Beast.
William Juye.
John Skynner.
John Wyldes.
Henry Hauken.
William Cace.

APPENDIX F.

(P. 148.)

PROCLAMATION OF JAMES I. FOR THE RESTRAINT OF FOREIGNERS FISHING ON THE
BRITISH COASTS.

(A Booke of Proclamations, &c. 1609 [1602-1612].)

James by the Grace of God King of Great Britaine, France and Ireland,
Defender of the Faith, &c. To all and singular persons to whom it
may appertaine, Greeting. Although we doe sufficiently know by our
experience in the Office of Regall dignitie (in which by the fauour
of Almighty God, we haue bene placed and exercised these many yeres)
as also by the obseruation which wee haue made of other Christian
Princes exemplary Actions, how farre the absolutenesse of Soueraigne
power extendeth it selfe, And that in regard thereof we need not yeeld
accompt to any person under God, for any action of ours, which is
lawfully grounded upon that iust prerogatiue: Yet such hath euer bene,
and shalbe our care and desire to give satisfaction to our neighbour
Princes, and friends, in any Action which may haue the least relation
to their Subiects and Estates, as we haue thought good (by way of
friendly premonition) to declare unto them all, and to whom soeuer it
may appertaine, as followeth.

Whereas wee haue bene contented since our comming to the Crowne, to
tolerate an indifferent and promiscuous kinde of libertie to all our
friends whatsoeuer, to fish within our streames, and vpon any of our
coasts of Great Britaine, Ireland, and other adiacent Islands, so
farre foorth as the permission or vse thereof might not redound to the
empeachment of our Prerogatiue Royall, nor to the hurt and damage of
our louing Subiects, whose preseruation and flourishing estate we hold
our selfe principally bound to aduance before all worldly respects:
So finding that our conniuence therein, hath not onely giuen occasion
of ouer great encrochments vpon our Regalities, or rather questioning
for our Right, but hath bene a meanes of much dayly wrongs to our owne
people that exercise the trade of Fishing as (either by the multitude
of Strangers, which doe preoccupy those places, or by the iniuries
which they receiue most cõmonly at their hands) our Subiects 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
themselues to some other course of liuing, whereby not onely diuers of
our Coast-townes are much decayed, but the number of Mariners dayly
diminished, which is a matter of great consequence to our Estate,
considering how much the strength thereof consisteth in the power
of Shipping, and vse of Nauigation: We haue thought it now both iust
and necessary (in respect that wee are now by Gods fauour lineally
and lawfully possessed, aswell of the Island of Great Britaine, as
of Ireland, and the rest of the Isles adiacent) to bethinke our
selues of good lawfull meanes to preuent those inconueniences, and
many others depending vpon the same. In the consideration whereof,
as we are desirous that the world may take notice, that we haue no
intention to deny our neighbors and Allies, those fruits and benefits
of Peace and friendship, which may be iustly expected at our hands
in honour and reason, or are affoorded by other Princes mutually in
the point of Commerce, and exchange of those things which may not
prooue preiudiciall to them: So because some such conuenient order may
be taken in this matter, as may sufficiently prouide for all these
important considerations which doe depend thereupon; Wee haue resolued
first to give notice to all the world, That our expresse pleasure
is, that from the beginning of the Moneth of August next comming, no
person of what Nation or qualitie soeuer, being not our naturall borne
Subiect, be permitted to fish vpon any of our Coasts and Seas of Great
Britaine, Ireland, and the rest of the Isles adiacent, where most
usually heretofore any fishing hath bene, untill they haue orderly
demanded and obtained licenses from vs, or such our Commissioners, as
we haue authorised in that behalfe, viz. at London for our Realmes of
England and Ireland, and at Edenborough for our Realme of Scotland:
Which Licenses, our intention is, shall be yeerely demanded, for so
many Vessels and ships, and the Tonnage thereof, as shall intend to
fish for that whole yeere, or any part thereof, vpon any of our Coastes
and Seas as aforesaid, vpon paine of such chastisement, as shalbe fit
to bee inflicted vpon such wilfull offendors.

Giuen at our Palace of Westminster, the 6. day
of May, in the 7. Yeere of our Reigne of
Great Britaine, &c.

Anno Dom. 1609.

APPENDIX G.

(Pp. 169, 196.)

INSTRUCTIONS BY THE PRIVY COUNCIL OF SCOTLAND FOR THE LEVYING OF THE
“ASSIZE-HERRINGS” FROM FOREIGN FISHERMEN.

(Register of the Privy Council of Scotland, vol. xi. p. 592.)

Instructionis givin be the Lordis of Secreit Counsall to Mr Johnne
Fentoun, his Majesteis commissionar, who is directit to demand his
Majesteis rent of assyse and teynd frome these of Holland, Zeland,
Hambruch, Ambden, Rustock, and all utheris strangeris haunting the
trade of fisching in his Majesteis seas during this present yeir.

In the first, yow sall prepair your selff and mak you reddie in goode
and comelie ordour and equippage and with all possibill haist to go
in his Majesteis schip callit _The Charles_, quhairof David Murray
is capitane and commander, towardis the North Seas of this Kingdome,
quhair the Hollanderis and utheris strangeris hes thair fisching: And
at your arryveall thair yow salbe cairfull to inquyre and informe
yourselff of the names of the admirallis and vice-admirallis attending
the flott, and of the names of thair schippis, of quhat townes and
provinceis they ar, and quhat nomber of wauchteris and buscheis is sent
oute be every towne, province and estate to attend thair fischeing.

Yow sall be vertew of your commissioun, and attending to the tennour
thairof, demand frome the saidis admirallis, and, incaice of thair
absence, frome the vice-admirallis, and frome tua or thrie of the
waughteris and busches of every estate, his Majesteis rent of assyse
and teynd specifeit and contenit in your commissioun for the haill
fischeis tane and slayne be thame in his Majesteis watteris and seas
this yeir. And yow sall use this requisitoun and demand in fair and
gentill termes and with modestie and discretioun.

Yf thay contravert with yow anent the quantitie of this dewytie, yow
sall not dispute that poynt with thame, bot, if they mak offer of
ane smaller dewytie, althoght it wer bot ane angell for every busche
overhead, yow sall accept of thair offer.

Yf thay sall mak offer of the fische outher for the teynd or assyse,
yow sall accept of thame, and, gif yow find ony countrey vessellis or
boittis thair, yow sall send for thame and putt the fische in thame.

Yf they gif unto yow a delaying answer and crave tyme and laiser to
send to thair superiouris to be advyseit with thame, yow sall accompt
of thair delay as ane refuisall, and accordinglie accept sua of it.

Yf it be objectit unto yow that all the busches ar not of a lyke
burdeyne, and that consequentlie they aucht not to pay a lyke dewytie
for assise and teynd, yow sall in this caise gif defalcatioun to the
smaller busches according to your discretioun and be the aduyse of the
admirallis, gif thay will concur with yow in that erand; provydeing
alwayes that the smallest dewytie to be taine be yow for every busche
be not within ane angell.

Yf the admirallis or vice-admirallis for every toun, estate, or
province will aggrie with yow for the haill busches under thair charge,
yow sall aggrie with thame and gif unto them acquittanceis in name of
the haill that thay tak burdeyne for; bot, yf thay remitt yow to deale
with every busche apairt, yow sall do the same and gif acquettanceis
accordinglie.

Yf refuisall salbe maid unto yow of his Majesties rent and dewytie,
yow sall tak instrumentis upoun the said refuisall without forder
contestatioun; and, gif obedience be givin and payment accordinglie
maid, yow sall lykwayse take instrumentis thairupoun.

Yow sall informe the saidis admirallis, and, incaice of thair absence,
the saidis vice-admirallis, of the complaint maid to his Majesteis
Counsall be his Majesteis subjectis of Zetland anent the greit
oppressioun committit upoun thame be divers personis of the floitt who
comes aschoir upoun thair illis of Halff Grunay, Wedderholme, South
Grunay, and Lungya, and upoun divers utheris pairtis of the countrey,
quhair thay not only enter in kirkis, dimolischeis and brekis doun the
daskis and seattis within the same and schamefullie abuses the same,
to the offence and dishonour of God, bot with that thay spoyle the
countrey people of thair scheip, geis, hennis, eggs, and suche uther
commoditeyis as they find upoun the ground, and sumtymes invaidis and
persewis thame of thair lyveis; and thairfoir yow sall crave redres and
reparatioun to be made for thir wrangis and that the lyke be forborne
in all tyme coming.

APPENDIX H.

(P. 251.)

REGLEMENT FOR PREVENTING ABUSES IN AND ABOUT THE NARROW SEAS AND PORTS.

(State Papers, Domestic. “James I., Vol. 11, No. 40. 1604.” Charles I.,
Vol. 279, No. 18. 1634.)

His most Excellent Ma^{ty} taking into his Royall Consideration, upon
the frequent Complaints, as well of his own Subjects, as the Subjects
of other Princes and States in Peace and Amitie with his Ma^{ty}. That
his Seas (commonly called the four English Seas) are more infested now
a days then heretofore, by men of Warre and such others, who living by
spoile haunt those Seas, with ships and vessels of strength warlikely
appointed to gett prey and booties, whereby not only his Ma^{tye’s}
own Subjects and the Subjects of his friends suffer manifold losses,
violences and Injuryes in their persons, ships and goods, but also
divers strange Insolencyes indignityes and contempts are committed,
tending indirectly and by consequence to the denyall and impeachment
of that Soveraignety and especiall and peculiar Interest and property,
w^{ch} his Ma^{ty} and his Predecessors time out of mind have had and
enjoyed in the said Seas, and soe approved not only by the fundamentall
Lawes of this his Kingdome, but by the acknowledgement and assent of
the bordering Princes and Nations, as appeareth by undoubted Records.
His Ma^{ty} out of his Princely wisedome and providence (with the
Advice of his Privy Councell) hath thought it most necessary, as well
for vindicating his own honour and right in the said Seas, as in point
of Justice for securing the passage of his Subjects and friends to
and frõ his harbours and Ports, and all other Ports [? parts] of his
Dominions, to make this open declaration ensuing.

1. That notwithstanding the continuance of y^e war between the K. of
Spaine on the one side, and the United Provinces of the Low Countryes
on the other side, his Ma^{ty} doth streightly prohibite any force,
violence, surprize, or offense to be done or attempted either frõ Man
of Warre to man of Warre, or man of Warre to Merchant, or Merchant to
Merchant of either Party within the limits w^{ch} his Ma^{ty} will
cause to be described in a Plott for that purpose, but that all of
what Nation soever soe long as they shall be upon those places or Seas
aforesaid, especially within such limits, shall be understood to be
under his Ma^{tyes} Protection, and obliged to be at Peace each with
other.

2. Because it appeareth that an especiall occasion of the mutuall
spoiles and acts of hostility executed by the said men of Warre each
upon other and sometimes upon his Ma^{tyes} own Subjects, or the
Subjects of other Nations w^{ch} are in Amity with the Soveraignes
of the Spoilers, ariseth from the opportunity w^{ch} the said Men
of Warre have by continuing and abiding in havens, Sea-shoares or
Sea-Roades and other harbours of his Ma^{tyes} Kingdomes, whence they
gett intelligence of ships and vessels outward and hitherward bound,
and accordingly assayle them, where it is most for their advantage, to
the great hindrance and interruption of free Commerce and Entercourse,
His Ma^{tyes} Will and Pleasure is, That, for the reasons aforesaid,
noe shipps of Warre, belonging either to the K. of Spaine, or any his
Subjects, or to the said United Provinces, or any of their Subjects
shall be permitted or allowed to come, enter, repaire, or arrive in or
to any of his Ma^{tyes} Towns, Citties, Sea-Shores, Havens, Harbours,
or Sea roades, whatsoever, or there to abide and continue, except they
happen to be constrained either by force of Tempest, or buying of
Victualls, or other things, or for repairing of shipping, so that they
doe no hostile act in the said Places, but demeane themselves honestly
and quietly as it becometh Confederates and friends, and so as they
stay and remaine not in and about the said Ports any longer then shall
be needfull for reparation, and Provision of necessaryes.

3. Albeit his Ma^{ty} doth justly challenge Soveraignety and property
in all those his Seas farre beyond the limits hereafter to be described
and might with like Justice require from all persons using those his
seas a forbearance frõ Injuryes and all hostile actions, yet (in and
through all the same) sodenly to tye the hands of his friends and
Allyes in open hostility each with other is not for some reasons held
convenient at this time. And therefore to avoyde all difficultyes and
Colour of Controversies that may be stirred concerning the bounds and
extent wherein his Ma^{ty} now professeth to yeild Peace and Security
to his friends and neighbours, desiring the same, his Ma^{ty} purposeth
to send Plotts of those limits to be affixed in the most publique
places of his chiefest Sea-Towns and harbours.

4. Because it is very like, that during the continuance of the Warre
betweene the K. of Spaine, and the United Provinces as is aforesaid,
each Party may gaine and acquire frõ other in places out of the
aforesaid Limitts, ships, and goods, His Ma^{ty} doth declare, That
as he will afford to the conquering Partyes, free passage through his
Seas for themselves, their ships and prizes, and like free accesse and
repaire to all his Ports and harbours, and safe aboad and continuance
in the same during their occasions, so his Ma^{ty} shall not understand
it to be any breach of his Peace, or violation of that Security w^{ch}
he intendeth to mainteine, if the enemyes of the conquering Party
shall reconquer or regaine the said Prizes, before the conquering
Party shall have brought his said Prizes within any of his Ma^{tyes}
harbours, or when after they shall have departed with the said Prizes
homewards, or elsewhere from the said harbours, the right of Warre and
Law of Nations giving like allowance to either of the said hostile
actions, Provided always, that his Ma^{ty} doth not mean hereby to
derogate from the Jurisdiction of his Court of Admiralty, but if
any action (in forme of Law) shall be lawfully instituted and duly
presented in the Admirall Court ag^t the said Prizes and the Takers
thereof, his Ma^{ty} will cause Justice to be administred in that
behalfe with all possible expedition.

5. Whereas mention is often made in the premisses of his Ma^{tyes}
Protection within the aforesaid bounds and limits, his Ma^{ty} is now
pleased further to expresse his Intention and meaning to that effect,
viz. That he shall readyly give his Letters of Safe Conduct under the
Great Seale of his Admiralty to any the Subjects of the Princes or
States in league and Amity with his Ma^{ty} desiring the same from the
Lords Commiss^{rs} of the Admiralty, to whom his Ma^{ty} will referre
the Consideration and allowance of such Petitions, the said Letters of
Safe Conduct to be conceived in the best forme. And if any man of Warre
or other Person whatsoever shall assault or use any violence to any
ship or vessell, or the persons therein, within the limits aforesaid
his Ma^{ty} will hold such offender being lawfully convicted thereof
for a Pirate, and will cause his Officers to inflict such punishment
thereupon, as in Cases of Piracy is usuall, if the said offenders can
be apprehended within any his Ma^{tyes} Countrey or Dominions, or
any other, or any other ships or goods belonging to them, To w^{ch}
purpose his Ma^{ty} will cause notice to be given from the Court of his
Admiralty to all his Officers in Ports and Vice-Admiralls and Captaines
of his Forts and ships, But if all this notwithstanding, the said
offenders cannot be attached or apprehended, then the Party wronged,
upon sufficient testimonyes to be recorded in the Court of Admiralty
may take out of the said Court Processe, conteining a Monition for the
said pretended offenders, to appeare in the Court of Admiralty within
4 moneths next after the date of the said Processe, there to answer
for the pretended wrong or violence, the said Processes to be affixed
openly in some eminent place of the Royall Exchange, London. And if
the said offenders shall not render their bodyes to Justice, then upon
faith made, that the said Processe was duly taken out, and the next
day after the date thereof was publiquely affixed as is aforesaid, his
Ma^{ty} will by his Letters of Request under his Privy Seale to the
Soveraignes of the said offenders, or otherwise, pursue such further
proceedings ag^t the said offenders, as is agreeable to the Custome
amongst Sovereigne States and Princes and the Law of Nations in like
Cases.

APPENDIX I.

(P. 289.)

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.

(State Papers, Domestic. Charles I., Vol. 313, No. 24.)

It may Please your Ma^{ty},

According to your Majesty’s commandment, wee, your Commissioners for
ye Admiralty have mett and consulted on those two pointes which you
were pleased to recommend to our consideration, touching the imploying
of your fleete for yo^r Honor and Proffit. The one for the wafting and
securing of Merchants that pass through yo^r Majesty’s seas. The other
for protecting all such fishermen in generall as shall exercise that
trade by your Majesty’s license upon yo^r seas and coastes.

The first of these that fell into debate was that concerning the
fishing, and by S^r Henry Martin it was made evident vnto vs that y^r
Ma^{ts} father of blessed memory in ... yeere of his Raigne, was,
vpon long and mature deliberacion, satisfied 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 Crownes, and that in
pursuance thereof, he did then sett out his Royall Proclamation,
thereby declaring his title, as allso his pleasure, that no stranger of
what quality soever should presume to fish there without his expresse
license, and so was graciously pleased in the said Proclamation to
appoint, that for the Coastes of England and Ireland licenses should be
given in London, and for those of Scotland in Edenborough.

And howsoever S^r Henry Martin did allso make it appear unto us that
the States of the Vnited Provinces did at that time sende Commissioners
into England who presented to his Majesty a paper contayning
allegations by w^{ch} they did entend to prove continued custom and a
present possession of that fishing, mentioning w^{t}all som treaties
that had bene heretofore betwene the Kinges of Englande and the Dukes
of Burgundy in fauor of that their fishing, yet upon the whole matter,
and after due deliberation, wee were all of opinion and are so still,
that the Right and Royallty of that fishing upon yo^r Ma^{ts} Coastes
doth undoubtedly belong unto yo^r Majesty by inheritance, so you may
iustly prohibit or license all strangers at yo^r Royall will and
pleasure.

This being laid for the ground, wee proceeded (according to your
Majesty’s directions) to the consideration of what was now fitting
to be advised unto yo^r Majesty vpon this present occasion of yo^r
strength at sea, and are all of opinion, that this season is most
propper again not only to set on foote, but to putt in execucion that
yo^r Majesty’s so iust clayme, so as then there only remayned our
consultation _de modo_.

In this wee are now much guided by that which yo^r Majesty yo^r selfe
was pleased to declare unto us concerning the protecting of all such
fishers as shall take yo^r license. For it is most certain that the
Hollanders will by no meanes be so much induced (be the right what
it will) as by consideracions of their owne proffitt and safety. Wee
therefore thought itt (and do most humbly offer it to yo^r Majesty as
our opinion) that vnto the Minister or Ministers of the States residing
here, it may be intimated and declared, that yo^r Majesty doth no way
relinquish that iust right and clayme of inheritance to the Royall
fishings, so divolved unto you from yo^r Royall Predecessors, but are
resolved to defende it as the hereditary right and possession of any
other yo^r Dominions. Yet least they should think you do now challenge
it in a tyme that they have most neede of yo^r favor and grace, it may
be tolde them, that it is farr otherwise, for whereas yo^r Majesty’s
father did barely offer them licenses, you do now offer them safety and
protection w^{t}all, and that w^{ch} further moved you to do it, in
this season, is, that by a third Prince, they are of late interrupted
and beaten from that fishing even in sight of yo^r Majesty’s harbours;
wherein yo^r Majesty is prejudiced in honor and Interest, and they in
Proffit.

That it is not vnknown to the States how much their enemies are
resolved to interrupt that their fishing, as holding it a most certain
way and meanes both to weaken and impoverish them.

That by taking licenses from yo^r Majesty you may justify the drawing
yo^r sword in their defence, and likewise for the maintenance of
the said licenses against any notwithstanding any league or treaty
whatsoever, w^{ch} without that obligation might seeme a breach of that
neutrality w^{ch} hitherto yo^r Ma^{ty} hath preserved in yo^r selfe.

And lastly wee tooke into consideration that in case the Hollanders
shall willfully refuse to take those licenses upon so gracious and
fauorable conditions from yo^r Majesty then we were all cleere of
opinion, that yo^r M. should renew and publish the like proclamation
to that of the King yo^r father, and prosecute the settling of that
yo^r right as a thing so highly concerning you in honor, dominion and
profit. And so we do humbly conclude this point, with advice, that all
such licenses as shalbe granted, be rated according to the tonne or
burden of the vessells, so to be licensed.

Touching that of the Wafting of Merchants strangers shippes that shall
passe through yo^r Majesty’s seas, we are cleere of opinion that yo^r
M. ought to have a profit by it, seeing that they are thereby preserved
from oppression and ruine. But we are not of opinion that this profit
should arise by way of a generall Imposition vpon all that passe: for
that wold, doubtlesse, draw a iust complaint and clamor from yo^r
neighbour Princes and their subjects. But that it should be taken of
such as shall desire waftage, w^{ch} yo^r M. may direct not to be
denyed to any of what Christian nacion soever that shall demande it,
not being men-of-warre.

And because it wilbe a difficult matter to expresse in any Commission
or Instructions a certain somme or duety to be taken of every ship so
wafted, for that som shippes are rich, others of lesse value; som will
require a short waftage, others a longer. Therefore we are of opinion,
that for the value, much is to be left to the discretion of yo^r
Majesty’s Generall and commanders, and that som honest hable men may
be employed to keepe bookes, and to receave the moneyes of all those
waftings w^{ch} shall occurr, and be accomptable and answerable for the
same. [5 Feb. 1635/1636 Copy by Windebank.]

APPENDIX K.

(P. 389.)

ABSTRACT OF THE THIRTY-SIX ARTICLES PROPOSED BY: THE DUTCH TO ST JOHN
AT THE HAGUE, 1651.

State Papers. Foreign. Treaty Papers (Holland), No. 46. 1651.

A Briefe Narrative of the Treatie at the Hague betweene the hono^{ble}
Oliver S^t John, Lord Chiefe Justice of the Court of Com̃on Pleas, and
Walter Strickland Esq. Embassado^{rs} extraordinary of the Parliament
of the Com̃onwealth of England, to the great Assembly of the States
Generall of the United Provinces begun upon the 20th of March 1650
[1651] and continued vntill the 20th of June 1651 and then broke of re
infecta.

A Drafte of the Treatie which is to be made and entred into with the
extraordinary Ambassado^{rs} of the Republique of England.

[Sidenote: Confederated ffr^{ds} for defence &c. & against
Dystourb^{rs} &c.]

That they shalbe, and remayne confederated friends, vnited, and allyed
for the defence, and preservation of the Libertye and freedomes of each
others people, and mutuall Com̃erce Navigacion,and Com̃on Interests
against all those that shall endeavour to disturbe either of the States
in the same by water or land in manner as is herevnder declared and
expressed.

17.

[Sidenote: Libertie to dwell in each oth^{rs} lands & to enjoy equall
p^{r}ivil^{ges} w^{th} the Natiues &c.]

The subiects, and Inhabitants on both sydes may com̃e, and dwell in
each others lands reciprocallye, and take their setled residence there,
have their owne houses there to dwell in, and their Warehouses for to
bring their goods, wares, and Merchandizes thither, and also vse their
trade, and com̃erce there in all securitye, and without hinderance of
any one as well at sea, other waters, as at land, enioyeing there, and
every where else, the same, privilidges, Libertie, and freedome, as
the Inhabitants, and each others subiects doe respectively enioy there
in their own Country, and in case any hinderances happen they shall
really, and speedilye be removed.

18.

[Sidenote: Free libertie of Fishing &c.]

The subiects, and Inhabitants of either, of what qualitie, or condition
soever they be, may sayle, and fish every where at sea freely,
without any disturbance Licence, Patent, or Passe port, as well
herring, as all other sorte of fish, great and small, and the sayd
Fishermen being driven out of the sea by storme, Rovers, Enemyes, or
any other accident, and coming in, or to any of the other Havens, or
Jurisdictions shalbe well, and freindly receaved, and entreated, and
may depart thence againe with their ships, fish, furniture for fishing,
and other laedings, (in such case, and not haveing broak bulke there,)
freely without payeing custome, or any the least duty.

19.

[Sidenote: No harboring of Pyrates &c.]

[Sidenote: Rouers & Coceal^{rs} to be punish^d & y^e ships & goods
restored &c.]

For to make the free Navigation, and com̃erce, on the seas, Rivers, and
every where more certeyne, the said Republicke, and Vnited Provinces,
shall not receave, nor suffer, or permitt that any Pyrats, or Searovers,
be receaved, kept, or harboured by their subiects, in their respective
Havens, Lands, Cittyes, or Townes but shall cause as well the said
cencealo^{rs}, as Rovers, to be persequuted, apprehended, and punished,
for terrou^r to others as is fitt, and the roved ships, goods,
Merchandises yet in Esse, and in being, yea though they were there
sould, shalbe restored, or made good to the right owners, or to such as
have their Assignm^{ts}, or Lett^{rs} of Attorney, who doe sue for, and
reclayme the said roved ships, and goods, vpon a iuratory affirmation
of the reclaymer till better proofe.

20.

[Sidenote: Sufficient securitie by those who goe out vpon particul^r
com̃issions.]

All perticuler persons on either syde, that goe out upon perticular
Com̄issions, shalbe bound before they may goe to sea, to put in
sufficient securitie before the Judge of the place from whence he setts
saile.

21.

[Sidenote: Both to set out Fleets for scouring the Seas &c.]

And to cleare the seas from all Pyrats, and Rovers, of what nation
soever they bee, and to defend, and free the Libertie, and freedome
of both the Nations Com̃erce, Navigation, and Freefishing as well in
the North sea, Ocean, as Mediterranean sea, and all channells, and
Streights ruñing betweene ’em; the sayd Republicke of England and the
Vnited Netherlands shall provide and añually set out to sea a strong
fleete at least of ... [_sic_] Vessells, and the like proportion
of men, munition of warr, Victualls, and all necessary furniture,
wherewith each vnder his owne Admirall, and flagg, shall crosse, and
scoure the said seas, to witt those of England from ... vntill ... and
those of the Lowe countryes from ... till ... beginning the first of
... and stayeing till the last of ... and shalbe bound to seaze on, and
master all Pyrats that they shall meete with, the ships of either of
the nations by them taken to restore to the true owners, and if it be
needfull, and requisite to helpe, and seacond each other, each to keepe
his taken bootye, or prises for himselfe, and so to cleare, and free
the said seas, and channell, or straights from all Pyrats and searovers.

22.

[Sidenote: Each parties Fleetes to force to Reparacion hinders of y^e
Com̄erce navigcion Fish^g &c.]

And for the further defence and advancem^t of the freedome, and
Libertie of both the said Nations Com̃erce, Navigation, and
freefishinge in the sayd seas, the sayd fleets and alsoe other men
of warr, and com̃ission bearers on either syde, shall not only doe
against Pyrats in manner aforesayd, but alsoe against all, and singuler
persons, whatsoever they be that shall chance to trouble, molest, hinder,
exacte, or against the Lawe of all nations burthen, or charge them,
or either of them in the sayd freedome, Com̃erce, Navigation, and
fishing. It is intended neverthelesse that the dampnifyed partie shall
first, and aforehand complayne of the same to the undampnifyed partie,
and endeavo^r together by all freindly waies, and intercession, that
they who molested them doe make reparation to content, But if it be not
so done, that then they shall seaze, take, and surprize in the said
seas, not onlie with the said Fleete, but alsoe with all the strength
of shipping which they can bring to sea the ships, and goods of the
Cittie, and of her inhabitants, who have done the said trouble and
so continewe vntill that the dampnifyed partye shall have gott full
satisfaction, and every thing be putt agayne in full Freedome, that all
dam̃age may be recovered, in case they chance to goe beyond or exceed
their com̃ission, and charge.

23.

[Sidenote: Men of warr to protect y^e Merh^{ts} ships of each party or of
y^e Allies &c.]

The men of warr of either partye meeting or overtakeing any Marchant
shipp, or ships at sea, of the other partie, or of the others subiects,
or of the Allyes (alsoe comprehended in this Treatye) and haveing both
one course, or goeing both one way shalbe bound so longe as they keepe
one course togeather to take them vnder their protection, and to defend
them against all, and everyone.

24.

[Sidenote: Retaking of ships taken in one anoth^{rs} Havens.]

In case any shipp, or ships of eithers subiects, or of a Newter chance
to be taken in the Havens, or Libertyes of the one or the other by a
third partie, being no subiects of either partie, they in or out of
whose Havens, or Libertyes the said ship, or ships shall be taken,
shalbe bound to help with the other party, to endeavo^r that the sayd
taken ship, or ships may be followed, brought back, and restored to the
Owners, but all at the charges of the said Owners, or interessed.

25.

[Sidenote: Ships forced into Haven through any Misfortune may depart
againe freely w^{th}out paying any Dutie &c.]

In case any Marchants ships of the subiects of either partye chance
to com̃e to harbour in the Land of one or the other by tempest, or
by pursuite of Searovers, or through any other necessitye, force, or
misfortune, they may sayle out agayne from thence freely at their
pleasure, without that they shall therefore be bound to goe on shoare,
vnlade, or sell their Merchandizes there, nor to paye for the same any
duties, or customes, it shall in such cases be enough if they shew
their Maritine lett^{rs} and Passe ports without being subiect to any
other search.

26.

[Sidenote: None to come into each oth^{rs} Havens w^{th} men of warr to
a Number w^{ch} might cause suspition &c. w^{th}out Leaue &c.]

They may not come to, or in, nor stay in the Havens of each others
Country with men of warr, and souldiers, to a number which might cause
apparent suspition, or ill thoughts, without consent, or leave of those
vnder whome the said Havens are, vnlesse they be driven by tempest, or
forced to doe soe through necessitye, and to avoyd any dangers of the
sea.

27.

[Sidenote: Oth^r men of warre to come & goe freely &c.]

For the men of warr of either syde, not being in soe great a number to
cause any suspition, the Havens, rivers, and roades of either party,
shall be alwayes open and free for to come in, there lye at Ancher, and
sayle out agayne without any hinderance, or trouble; the sayd men of
warr regulating themselves neverthelesse according to the lawes, and
customes of the respective places.

28.

[Sidenote: Men of warre not to be searcht onely com̄ing into Hauens to
shew their Com̄iss^{ns}.]

Provided neverthelesse that none of the men of Warr, or such as have
Com̃ission on either syde, shalbe subiect to any search, or visitation
there, or on the respective coasts, or alsoe in the full sea, further
then only to shew each others Com̄issions, com̄eing into their
respective Havens, and not otherwise.

29.

[Sidenote: Like libertie touch^g Prizes &c.]

All perticular Com̄ission bearers on either side, shall likewise enioy
the same freedome, in respect of their owne ships, as alsoe of the
prises which they shall have taken from their particular on the com̄on
Enemy, for to bring the said prises to the place where they are bound
according to their Com̄ission, which they shalbe bound to informe, or
make knowne to the Officers of the place, or to paie any dutye vnto
them, or any else there, they shalbe neverthelesse bound to shew their
respective Com̄issions to the sayd Officers.

30.

[Sidenote: Goods of eith^r p^{ty} found in Enemies ships to be prize as
well as y^e ships.]

The goods, wares, and merchandizes of the subiects, and inhabitants of
either partie, laeden, and found in Enemyes ships shalbe vnfree, and
prise as well as y^e ships.

31.

[Sidenote: No Assistance to Enem^s or Rebels by Cōtrab^{da} wares &c.]

[Sidenote: What serues for victuall or mainten^{a}nce of Life to be
free &c.]

It is alsoe expressly agreed, that the parties Contracto^{rs} shall
not give, nor suffer that out of their respective Countries, by their
subiects, or other Newters any assistance be done to their respective
enemies, or rebells, of any Contrabanda wares, or Marchandises, as are
all manner of fyreworks, and what else belongs therevnto, as Cannon,
Musketts, Morterpieces Petards, Guns, Granadoes, Sawsiges, ..., [?,]
Rests, Bandeliers, Powder Match, Saltpeter, Bullets; all sortes of
armes, as Pykes, swordes, Headpieces, Cuirasses, Holberds, and such
lyke; as also souldiers Horses, horse furniture, Pistoll cases,
Rapiers, Belts, and all furniture, fashioned, and made for vse of warr,
with expresse meaning that vnder the name of Contraband, or forbidden
goods, there shall not be comprehended wheat, Corne, and other grayne,
Pease, Beanes, Wheat [_sic_: Meat?], Salt, Wyne, Oyle, nor generally
all that serves for food, and maintenance of lyfe, but shalbe free,
as other goods above mentioned, And any of the said Contraband goods,
being found in each others ships, they may be confiscated after
knowledge of the case before a competent Judge, without troubling any
other Wares, or goods.

32.

[Sidenote: No carying of anie Portug^{ll} goods &c. vpon Penaltie of
Losse of y^e ships &c.]

It is further bespoake, that the subiects, and inhabitants of either
side, may not transporte, or carry any Portingall goods, wares, or
Merchandises out of America, Asia, or Affrica, or into, or out of
Europe, or one parte thereof to another, nor vice versâ from Europe to
America, Asia, or Affrica, nor from one part of them to another, upon
penaltye of losse of the same ships.

33.

[Sidenote: Ships cast away If claym^d w^{th}in a yeare & a Day to be
w^{th} y^e goods restored to the Own^{er}s w^{th}out suite.]

If any ships either for warr, or marchandise, or other of either
partye by storme, or any other misfortune, chance to be stranded, or
cast away on the coast of either country, the said ships with their
Apparell, and all therein may be reclaymed, and brought back againe
within the space of a yeare, and a day, by the right owners or there
Assignes, or deputies, and shalbe restored againe to them without any
forme of suite onlye payeing for the charges done about ’em, and a
reasonable gratuitye or salvage money, and in case upon such, and the
like accidents, subiects of either side chance to fall to question, the
officers of the respective places shall be bound to doe good, and right
Justice betweene the partyes, without deteyning them by any formalitye
of processe.

APPENDIX L.

(P. 398.)

TROMP’S MEMORANDUM TO THE STATES OF HOLLAND AS TO THE CUSTOM OF
STRIKING THE FLAG TO THE ENGLISH. 27th FEBRUARY/9th MARCH 1651.

(Aitzema, _Saken van Staet en Oorlogh, in, ende omtrent de Vereenigde
Nederlanden_, Vol. iii. p. 731.)

Wanneer deses Staets Schepen van Oorloge in Zee quamen te ontmoeten
een Engelsch Koninghs Schip, op-hebbende de Vlagge als Admirael,
Vice-Admirael ofte Schout bij nacht; dat deses Staets-Schepen hare
Admiraels Vlagge ende Mars-zeylen streecken en schoten negen, seven
of vijf Eer-schoten (daer op de Engelsche antwoordede met gelijcke
Eer-schoten) en lieten de Vlagge gestreken hangen tot sij van
malkanderen scheyden, met het schieten van drie of een Adieu-schoot;
en weynigh van den anderen zijnde, setten de Staetsche de Vlagge
wederom op. Doch voor particuliere Konings Schepen streken geen
Vlagge, alleen salueerden malkanderen met eenige Eer-schooten. Maer
is verscheyden-malen geschiet, dat particuliere Schepen van weynigh
geweldt zijnde, oock naer de Vlagge van Staetsche hebben geschoten,
uyt hooghmoet, willende hebben dat men soude strijcken: daer meesten
tijdt op is gevolgt, dat de Staetsche wederom na haer hebben geschoten
en haer tanden laten sien, en geen macht hebbende de Staetsche daer
toe te dwingen, moesten met uytlacchen haer Kours gaen; doch is bij
haer en die van desen Staet veel tijdts gesien op de meeste macht, en
dan discretie gebruyckt. Binnen haer Havenen ende Casteelen komende,
salueerden de Casteelen met Eer-schoten (die oock wederom antwoorden)
en namen de Vlagge in, en lieten in plaets een Wimpel waijen, soo lange
die van desen Staet binnen haer Havenen lagen, in sonderheydt wanneer
eenige Konings Schepen daer waren die de Konings Vlagge lieten waeijen.
Doch geen Konings Schepen zijnde, is ’t verscheyde-malen gebeurt, dat
de Gouverneurs van de Casteelen een Expressen aen boort stuyrden uyt
courtosie, en gaven consent, dat de Staetsche haer Admiraels Vlagge
souden opsetten en laten waijen: mits wederom uyt-zeylende ende de
Casteelen passerende, de Vlagge streecken en lieten hanghen, totdat men
met Eer-schooten haer hadde gesalueert, en sij gheantwoordt; dan wierde
wederom de Staetsche Vlagge op geset.

APPENDIX M.

(P. 404.)

CORRESPONDENCE BETWEEN TROMP AND BLAKE.

(De Zee Betwist. Geschiedenis der Onderhandelingen over de
Zeeheerschappij tusschen de Engelsche Republiek en de Vereenigde
Provinciën vóór den eersten Zee-Oorlog. Dr M. C. Tideman.)

MONS^R,

Le 19/29 du Mois passé nous entrerencontrans en mer mon invention
[_sic_: intention?] estoit de vous saluer, mais me voyant attacquée
de la sorte, et n’ayant peu scavoir la vostre puisque devant ny apres
ladite rencontre je n’ay parlé a personne des vostres ne doubtant
toutesfois nullemant (selon que m’a tesmoigné Mons^r. le Commandeur
Born, par les responses qu’il a faictes et données a celuy que je luy
envoyois pour luy communiquer mon ordre et sincere Intention) que ne
soions amis et bons alliez, fus contraint, comme un homme d’honneur,
tant seulement de me defendere, mais d’autant que aujourdhuy, estant a
lancre devant Calais on ma rapporté, qu’un de nos Navires le Capiteyne
Tuynemans de Middelbourg auroit este emmené a vostre Rade aux d’unes,
lequel je croiois estre coulé en fond, comme celuy seul qu’il nous
defailloit. C’est pourquoi je vous supplie en toute amitie que ce
soit votre plasir, que ledit navire nous soit rendu et mis en main du
porteur de ceste, en forme qu’il a este prins, et me promets, que la
bonne alliance et union entre Messeigneurs les Estats de Vostre et de
nostre Republycque, nostre Religion et mutuelle amitié fera, que ne
voudres le refuser, Sur quoy me tiendray obligé de demeurer, comme
veritablement je suis,

Monsieur,

Vostre Tres humble Serviteur,
(Signé) M. HARP^{TS}. TROMP.

En notre navire _Le Brederode_ le 2^e Junij
1652 a la Rade de Calais.

The superscription was:--

A Monsieur,

Monsieur N. N. Blake, Collonel et Admirael au Service de Messeigneurs
les Estats de la Republicque d’Angleterre, ou en son absence au
Commandant a present aux d’unes.

Gardiner (Letters and Papers, 257) gives Blake’s reply “retranslated
from the Dutch translation.” The original, which was appended to
Tromp’s letter to the States-General, is given by Tideman, as follows,
from _Lias Admiraliteit_: Bijvoegsel bij Tromps brief aan H. Ho. Mo.
uit Ostende d. d. 10 Juni 1652.

S^r,

Y^r Letter of the second of June 1652 stilo novo, brought by yo^r
Messenger, was read by mee not without much wonder that you stiling
yo^r selfe a person off honor should insert therin toe great mistakes
after yo^r seeking out the ffleet of the Parliament of the Comonwealth
of England instead of performing those usuall respects which off
right belong unto them and which yo^r selve have often done, you
were pleased to beginn acts off hostility which you call yo^r owne
defence against the commonwealth, without the least provocation on
the part of their servants thus assaulted by you, and at a time when
yo^r Superiours, and their Ambassadors with the Parlyament were in
a Treaty and desire of friendshipp with the Comonwealth of England,
but that God in whome wee trust, having defeated your purposes of our
destruction and some off yo^r ships taken, you thincke fitt to demaund
the same off us as if yo^r former accord had been as you call it but a
salutation and when that fayled, you would second yo^r high affronts
by yo^r paper to which I doe not thincke fitt to returne any other
Answere, But that I presume you will find the Parlyament sensible of
these greate Iniuries and of the Losse off the innocent bloud of their
Countrymen, And you will find likewise ready to obey their comandts,

Yo^r humble Servant,
ROB: BLAKE.

DOWNES, _29th May 1652_.

APPENDIX N.

(P. 461.)

CONCESSION TO BRUGES TO FISH IN THE BRITISH SEAS.[1405]

(State Papers--King’s Letter Book, 1664-1670. Foreign Entry Book. Vol.
174, p. 119.)

Carolvs &c. Omnibus ad quos præsentes literæ pervenerint vel ullo
modo spectaverint salutem. Cum in virtutum albo longè Princeps
audiat liberalitas, quippe quæ non tantùm beneficia sed ipsam etiam
benevolentiam et humanitatem secum comites trahat, Hinc est, quod
Nobilissimæ et antiquissimæ civitatis Brugensis summis erga Nos
meritis coacti quodammodo, animique Nostri ductum secuti [sicuti],
tum maximè accepti hospitij memores, in hoc unum ferimur [feremur]
ut priorum prementes Vestigia grati in eam animi non leve argumentum
posteris quoquo modo traderemus; Et sanè affectu tam [tum] singulari
non tantùm Sacerdotum, Consulum, Senatorum, et summus ille Nobilium
ordo, sed universa passim Urbs et Nos et fratres Nostros iniquitate
rerum hospites olim factos fovit semper et propensior indies accepit,
ut animo Nostro altius infixa recens adhuc amoris tantó hæreat memoria,
eaque jure quodam hæreditario ad Successores Nostros deferenda, ne
posteris Nostris tantæ benignitatis ingrata tandem obrepat oblivio,
Regnis utique [utque] Nostris ejecti benigniori hospitio in tantum
recreari cœpimus, ut iniquam [inquam] fortunæ invidiam æquiori animo
tulisse videremur, eo saltem nomine non passuri [possum] unquam ut
ad priorem statum reduces ingratorum notâ laboremus. Vellemus quidem
eâdem alacritate quâ prædicta Civitas Brugensis (Celeberrimum quondam
Emporium tum magnificentiâ, amplitudine et fulgore præ cæteris clarum)
benevolentiæ et benignitatis fidem coluit, gratum animum testari, &
Civitati de Nobis tam bene meritæ pristinam gloriam et splendorem
illæsum prorsus, et [est] integrum præstare. Quâ de causâ à Viro
Nobis præcipuè dilecto Marco Alberto Dognati Equite [d’Ognati Equiti]
Aurato, Regisque Catholici ad renovandam Belgij Dignitatem Commissario,
rebusque Nostris singulari curâ intento à charissimo consanguineo
Nostro (et) Illustrissimo Marchione [Marchioni] de Castel-Rodrigo
Belgij et Burgundiæ Gubernatore de Commercij libertate hoc tempore
faciendâ misso [misse] tum literas, tum Monochroma Novi Opificij,
Portus, usque ad Oceanum Ductus [ductos] nuper elaborati et in capacem
Navigationis formam redacti, grato animo accepimus; Lætique benignitate
pristinâ, Regiam aliquam prærogativam quæ non [non non] ingrate
spondeat, in predictam civitatem Brugensem conferre meditamur, plenâ
potestate & authoritate Nostrâ Regiâ plenè, liberè sponte, ac motu
proprio dantes & concedentes sicuti [sicut] per præsentes pro Nobis,
Hæredibus et Successoribus Nostris damus et concedimus, ut prædicta
civitas Brugensis quocunque demum impedimento obstante Quinquaginta
Naves piscatorias in Mare Nostrum in futurum possit deducere, nec non
juxta Regnorum Nostrorum Oras et Littora liberè ac secure piscaturam
exercere, tum etiam Haleces [Halices] piscesque alios quoscunque
captare. Licebit porrò prædictæ Urbis Civibus ad Portus Nostros Littora
et flumina cum prædictis Navibus appellere, retia siccanda [seccanda]
et resarcienda in terram exponere, periculis hostium tempestatumque
sese subducere, necessaria tum ad victum tum ad alia quæcunque in
oppidis alijsque locis Regnorum Nostrorum justo pretio coemere,
nullâque aliâ ad hoc speciali facultate aut salvi [salvus] conductûs
literis habitis aut petitis inde redire liberèque [libere] recedere ita
tamen ut dictæ Civitatis Brugensis Magistratûs literis, præsentium
vigore sub sigillo ejus exhibendis, instructi veniant; caveant interim
prædictarum Navium piscatoriarum proprietarij, fide prius datâ apud
dictum Magistratum per sponsores idoneos, ne per ipsos piscatores,
Nautas, aliosvè ad pisces derehendos substitutos, ad loca Nobis et
Regnis Nostris inimica hujusmodi onus subrehi sinant [hujusmodi oras
sinant et] aut permittant. Volumus igitur et per præsentes decernimus,
ut prædicta piscandi libertas juxta numerum Navium supramemoratarum
præfatis Urbis Brugensis Civibus solva [sola] semper et integra maneat,
et in perpetuum per Nos ac Hæredes et Successores Nostros stabilita
continuetur. Nèque quisquam subditorum Nostrorum, cujuscunque statûs,
authoritatis, gradûs seu conditionis, huic [hujus] Nostræ liberæ et
spontaneæ concessioni [concessionis] gratiæ, favori et privilegio,
quoquo modo contravenito. Mandamus igitur et injungimus Fratri Nostro
Charissimo Ducé Eboracensi Magno Nostro Angliæ Admiralio [Admirallo]
Nec non omnibus et singulis Regnorum Nostrorum Thalassiarchis,
Navium Bellicarum capitaneis et Ductoribus Provinciarum, Urbium,
Arciumque maritimarum Præfectis et eorum Vicem gerentibus, Judicibus,
Officialibus, et alijs quibuscunque Ministris Nostris et juris
Administratoribus, &c., ut prædictis piscatoribus in quācunque maris
parte vel juxta littora, flumina, Portusve Nostros obviam facti, non
modo illis injuriam non inferant, sed eós etiam amicè et benevolè
excipiant, ac ubi opus fuerit, ijs opem ferant ijsdemque liberum
accessum et recessum reditumque in patriam unà cum Navibus, piscibus,
cæterisque bonis suis, nullo facto impedimento seu contradictione
quâcunque præstent et permittant. In quorum omnium majorem fidem [fidem
majorem] præsentibus hisce manu Nostrâ Regiâ signatis [signatas] Magnum
Nostrum Angliæ Sigillum appendi fecimus. Dabantur, &c., Julij 1666
[_sic_].

APPENDIX O.

(P. 692.)

TERRITORIAL WATERS.

The articles adopted by the Institut de Droit International at Paris
in 1894, and accepted with slight modifications by the International
Law Association at London in 1895. [_Note._--The additions to and
alterations of the Rules adopted at Paris, which were made at London,
are indicated by italic type.]

L’INSTITUT,

Considérant qu’il n’y a pas de raison pour confondre en une seule zône
la distance nécessaire pour l’exercice de la souveraineté et pour la
protection de la pêche littorale et celle qui l’est pour garantir la
neutralité des non-belligérants en temps de guerre;

Que la distance la plus ordinairement adoptée de trois milles de la
laisse de basse marée a été reconnue insuffisante pour la protection
de la pêche littorale;

Que cette distance ne correspond pas non plus à la portée réelle des
canons placés sur la côte;

a adopté les dispositions suivantes:

ARTICLE PREMIER.--L’État a un droit de souveraineté sur une zône de la
mer qui baigne la côte, sauf le droit de passage inoffensif réservé à
l’article 5.

Cette zône porte le nom de mer territoriale.

ART. 2.--La mer territoriale s’étend à six milles marins (60 au degré
de latitude) de la laisse de basse marée _ou de la ligne de laquelle
il est parlé dans l’article 3_, sur toute l’étendue des côtes.

ART. 3.--Pour les baies, la mer territoriale suit les sinuosités de la
côte, sauf qu’elle est mesurée à partir d’une ligne droite tirée en
travers de la baie dans la partie la plus rapprochée de l’ouverture
vers la mer, où l’écart entre les deux côtes de la baie est de _dix_
milles marins de largeur, à moins qu’un usage continu et séculaire
n’ait consacré une largeur plus grande.

ART. 4.--En cas de guerre, l’État riverain neutre a le droit de fixer,
par la déclaration de neutralité ou par notification spéciale, sa zône
neutre au delà de six milles, jusqu’à portée du canon des côtes.

ART. 5.--Tous les navires sans distinction ont le droit de passage
inoffensif par la mer territoriale, sauf le droit des belligérants
de réglementer et, dans un but de défense, de barrer le passage
dans ladite mer pour tout navire, et sauf le droit des neutres de
réglementer le passage dans ladite mer pour les navires de guerre
de toutes nationalités. _Il n’est pas dérogé par cet article aux
dispositions de l’article 10._

ART. 6.--Les crimes et délits commis à bord de navires étrangers de
passage dans la mer territoriale par des personnes qui se trouvent à
bord de ces navires, sur des personnes ou des choses à bord de ces
mêmes navires, sont, comme tels, en dehors de la juridiction de l’État
riverain, à moins qu’ils n’impliquent une violation des droits ou
des intérêts de l’État riverain, ou de ses ressortissants ne faisant
partie ni de l’équipage ni des passagers.

ART. 7.--Les navires qui traversent les eaux territoriales se
conformeront aux règlements spéciaux édictés par l’État riverain dans
l’intérêt et pour la sécurité de la navigation et pour la police
maritime.

ART. 8.--Les navires de toutes nationalités, par le fait seul qu’ils
se trouvent dans les eaux territoriales, à moins qu’ils n’y soient
seulement de passage, sont soumis à la juridiction de l’État riverain.

L’État riverain a le droit de continuer sur la haute mer la poursuite
commencée dans la mer territoriale, d’arrêter et de juger le navire
qui aurait commis une infraction _pénale_ dans les limites de ses
eaux. En cas de capture sur la haute mer, le fait sera, toutefois,
notifié sans délai à l’État dont le navire porte le pavillon. La
poursuite est interrompue dès que le navire entre dans la mer
territoriale de son pays ou d’une tierce puissance. Le droit de
poursuite cesse dès que le navire sera entré dans un port de son pays
ou d’une tierce puissance.

ART. 9.--Est réservée la situation particulière des navires de guerre
et de ceux qui leur sont assimilés.

ART. 10.--Les dispositions des articles précédents s’appliquent
aux détroits dont l’écart n’excède pas douze milles, sauf les
modifications et distinctions suivantes:--

1^o Les détroits dont les côtes appartiennent à des États différents
font partie de la mer territoriale des États riverains, qui y
exerceront leur souveraineté jusqu’à la ligne médiane.

2^o Les détroits dont les côtes appartiennent au même État et qui sont
indispensables aux communications maritimes entre deux ou plusieurs
États autres que l’État riverain font toujours partie de la mer
territoriale du riverain, quel que soit le rapprochement des côtes.
_Ils ne peuvent jamais être barrés._

3^o _Dans les détroits dont les côtes appartiennent au même État,
la mer est territoriale bien que l’écartement des côtes dépasse
douze milles, si à chaque entrée du détroit cette distance n’est pas
dépassé._

4^o Les détroits qui servent de passage d’une mer libre à une autre
mer libre ne peuvent jamais être _barrés_.

ART. 11.--Le régime des détroits actuellement soumis à des conventions
ou usages spéciaux demeure réservé.

INDEX.

Aberdeen, 84, 215, 227, 298, 407

Abreu y Bertodano on territorial sea, 559

Admiral, office of, 30, 31, 32, 41, 51, 52, 53, 54, 266, 329, 363,
364 n.

Admiralty, 18, 31, 248, 249, 260, 261, 262, 263, 266, 277, 280, 286,
288, 293, 318, 328, 520

Admiralty and “striking,” 277, 278, 380-383, 438, 455, 456, 472

Admiralty, High Court of, 54, 120, 122, 124, 243, 244 n., 251, 285,
358, 363, 369, 391, 465 n.;
and striking, 513;
decisions as to neutral waters, 553;
decisions as to three-mile limit, 576, 577

Admiralty jurisdiction, origin of, 6, 17, 30, 32

Admiralty, on extent of British Seas, 20, 438

Adriatic, 52 n.;
sovereignty of, 3, 4, 8, 16, 33, 107, 111, 339, 341, 350, 357, 361,
371, 539;
fisheries of, 659

Aerssen, François van, Dutch ambassador, 200, 336

_Africaine_, case of, 641 n.

Agincourt, 8, 35

_Agnes G. Donohoe_, case of, 663

Albemarle, Duke of. _See_ Monk.

Albertsz, Jan, Captain, 171, 173, 174

Alderney, 103

Alexander, Sir William, Secretary for Scotland, 219, 220, 225 n.,
227, 232

Alfred, King, 26

Algarve, fishery treaty with, 67

Algeria, 527;
territorial sea, 657

Allin, Sir Thomas, 468, 471, 477

Alverstone, Lord, 692

Alward, G. L., 711 n., 739 n.

Amboyna, 430

America, British North, fishery disputes with United States, 580;
fishery limit, 650;
ten-mile limit for bays, 626, 627, 628, 629;
six-mile limit for bays, 627, 629, 630;
fishery rights, 531, 532, 731, 731 n.;
Hague Tribunal on, 732 n.;
Mixed Commission to delimit bays, 628;
_modus vivendi_ with United States, 626, 628, 629;
treaties regarding fisheries, _See_ Treaties.

America, fisheries claimed for crown, 235

Amsterdam, 73, 132, 181, 183, 282, 368

Amsterdam Island, 194 n.

Ancient Britons and maritime dominion, 25, 26

Angelus, 351

Angevins, 8, 26, 29, 65, 207

Anglo-Saxons, 26, 27, 28, 541, 542

_Anna_, case of, 579, 641 n.

_Annapolis_, case of, 586 n.

Anne of Austria, 117

Anne, Queen, 161, 354, 520, 523

Anstruther Easter, 165, 175 n.

Antwerp, 49, 73, 148;
treaty of, 148, 344, 350

Appropriation of sea. _See_ Sea.

Aquitaine, 19, 213;
fisheries at, 67

Archer, Walter E., 736 n.

Argentine Republic, claim to great bays, 661;
claim to wide limit of exclusive fishery, 661, 662

Argyle, Earl of, 153 n.

Arlington, Lord, 469, 483, 490, 497, 502

Armed Neutrality, 522, 563, 571, 572

Arundel, Earl of, 227, 239 n., 241, 314, 316, 477

Aschehoug, on territorial sea, 686, 688

Assize-herring, 82, 124, 138, 144, 152-154, 163-171, 180, 194-196,
203, 293, 346, 347, 352, 355;
proposal to levy from foreign fishermen, 124, 167;
demanded from Dutch, 180;
how to be levied from Dutch, 195, 196, 757;
paid by Dutch fishermen, 169;
value of, 195

Auber, on territorial sea, 691

Australia, pearl fisheries, 697

Austria-Hungary, territorial sea, 572, 658;
Customs jurisdiction, 594, 659;
reciprocal rights of fishery with Italy, 659

Ayrshire, fishermen of, 83

Azores, 106

Azuni, on territorial sea, 564, 565;
on range of vision, 546

Bacon, Lord, 73, 163 n., 189, 223

Bagg, Sir James, 280

Baldus, on territorial limit, 351, 360, 539, 540, 541

Balfour of Burleigh, Lord, 730

Ballantrae Bank herring fishery, 238

Balmerino, Lord, 187

Baltic, 61, 409, 432, 434;
as closed sea, 572 n.;
sovereignty over, 4, 33, 108, 350, 371, 377, 550, 552, 555;
territorial limits in, 655

Baltimore, 247

Barbary, 327

Barclay, Sir Thomas, 689 n., 690

Barebones Parliament, 428;
on sovereignty of sea, 13, 413

Barents Sea, foreign trawlers in, 713

Barking, 699

Barneveldt, Elias van Olden, 155, 157 n.

Barneveldt, J. van Olden, 152, 159, 162, 170, 173, 191

Barrère, on the freedom of the sea, 595

Barrett, Frank, 738 n.

Bartolus, on territorial limit, 351, 539, 541

Bates, Joshua, on bay of Fundy, 625

Batten, Sir William, 380, 382, 448, 456

Battle of the Downs, 330

Baty, Dr Thomas, Hon. Secretary, International Law Association, 673 n.

Bays. _See_ Territorial Sea.

Bayonne, 52 n.

Beaufort, de, Duke, Admiral of France, 463, 472

Beaufort, Henry, 56 n.

Beaufort, Sir Thomas, 40

Behring Sea, fishery disputes, negotiations with Russia, 581-585;
Russian ukase fixing 100-mile limit, 541;
gunshot limit accepted by Russia, 582, 585;
three-mile limit adopted by Russia, 585;
United States on Russian claim, 584;
Tribunal of Arbitration, 663, 664, 695, 695 n., 732;
Japanese sealers in, 696 n.;
whaling in, 585

Belgium, complaints against fishermen of, 615, 616;
territorial sea, 658

Bell Rock, territoriality of, 642

Bengal, Bay of, 625

Bergen, 109

Berkeley, Sir William, on striking, 472

Berwick, 49, 60, 73, 219

Beukelsz, invention of herring cure, 61, 426 n.

Beuningen, van, Dutch ambassador, 511

Beveren, van, Dutch ambassador, 302, 303, 304, 312, 315, 316, 317, 320

Beverning, Hieronymus van, Dutch ambassador, 415, 418, 433, 504

Beverwaert, van, Dutch ambassador, 449 n., 450

Binge, Raymond, 109 n.

Binning, Captain, 513

Binning, Lord, 80, 178, 179 n., 186, 187

Birch, 28

Bird, Sir William, 174 n.

Biscay, 255;
fishermen of, 67, 98;
whalers at Spitzbergen, 183 n.

Biscay, Bay of, 19, 510, 521;
fisheries in, 707, 713;
territoriality of, 625

Bishop of Isles, 242

Bishop of Ross, 77

Bishop, on territorial sea, 683

Black Book of Admiralty, 7,16, 39-42, 52, 53, 66, 410 n.

Blackburn, Lord, on territorial sea, 589

Black Sea, 371

Blackstone, on Sovereignty of Sea, 580 n.

Blake, General Robert, 408, 421, 422;
instructions to, regarding sovereignty of sea, 382, 383;
encounter with Tromp, 12, 207 n., 397, 398 n., 401, 403, 404;
correspondence with Tromp, 404 n., 772;
captures Dutch herring busses, 311 n., 406, 407

Blakeney, 49, 90 n.

Blockade, 209, 264, 265, 268

Bluntschli, on territorial sea, 682, 688

Blyth, 250

Board of Trade on fishery limit, 616;
and German territorial limits, 652

Bodin, on territorial limit, 540

Bohemia, 191, 197, 198

Bohemia, Queen of. _See_ Elizabeth.

Bohuslän, herring fishery at, 62

Bordeaux, 28, 61, 97

Boreel, Dutch ambassador, 482, 483, 485, 490

Boroughs, Sir John, Keeper of the Records, on Sovereignty of Sea, 25,
28, 39, 43, 64 n., 254, 364, 365, 366, 411;
discovery of rolls, 31, 213, 254;
on foreign fishermen, 132

Boston, 73

Boswell, Sir W., British ambassador at The Hague, 212, 213, 257, 258,
259 n., 264, 317, 318, 319, 321

Botetourt, Sir John de, 46 n., 60

Bothnia, Gulf of, sovereignty over, 4, 564

Boulogne, 104, 274, 281

Bourne, Rear-Admiral, meets Tromp, 400;
assists Blake, 403

Bouwensz, Joost, 294 n., 298 n., 304

Brabant, 49, 50, 70, 71

Bracton, 66, 362 n., 539

Bradshaw, 409

Braeckel, Captain, 476

Braems, Sir Arnold, 318, 515

Brazil, 327, 393, 430

Breda, conference at, 459, 464, 476;
treaty of, 465, 492, 501

Brederode, W. van, 81

Bremen, fishermen and merchants from, 126, 129, 130, 169, 227, 235, 327;
negotiations at, 110, 373

Bressay Sound, 129, 131, 215

Briel, 43, 73, 78, 142, 278, 511, 512

Bristol, 96, 108

Bristol Channel, territoriality of, 586, 725

British Colonies, territorial sea, 661

British fisheries, foreigners at. _See_ Fisheries.

British Seas. _See_ Sea.

British subjects in foreign service, 260, 359 n.;
in Dutch navy, 251 n.

Brittany, 36, 48, 54, 56, 67, 68, 69, 103, 213, 270

Britton, 539

Brixham, 699

Brood and spawn of fish, 213

Brouershaven, 77

Brown, James, 194

Brown, John, 166, 191 n., 194 n., 195, 195 n., 196;
sent to uplift the assize herrings from Dutch fishermen, 169, 170,
171;
seized by Dutch and carried to Holland, 172, 173;
released, 173;
Dutch apologise, 173;
counsel’s opinion on seizure, 174

Bruce, King Robert, 76

Bruce, Patrick, 181

Bruges, 43, 52 n., 71, 73;
fishing charter from Charles II., 460, 461, 504, 616, 617, 772

Brussels, 71, 318, 335

_Bucentaur_, 4, 567 n.

Buchan Ness, 131, 166, 227, 233, 321, 406

Buckingham, Duke of, 201, 266 n., 490, 497

Buckland, Frank, on inexhaustibility of fisheries, 636

Burchett, on Sovereignty of Sea, 311 n., 521

Burghs, Scottish, 216, 240

Burgundy, Duchess of, 71, 72

Burgundy, Duke of, 69, 70, 71, 72, 73, 158

Burgundy, House of, 49

Burgundy treaties, 69, 70, 72, 86, 112, 145, 146, 147, 158, 288, 312
n., 356, 370, 412 n., 425, 500

Burgus, P. B., on dominion of Ligurian Sea, 411, 550

Burnham, 90

Bushell, William, 284

Bynkershoek, Cornelius van, 21, 350, 538, 579, 591, 595, 650, 685, 686;
on territorial sea, 555, 556;
on range of vision, 546

Cadiz, 246

Cæsar, Sir Julius, 120, 146, 155, 156 n.

Caithness, 126, 227

Calais, 18, 29, 34, 37 n., 45 n., 49, 50, 65, 68, 70, 71, 73, 74, 103,
104, 204, 205, 266, 273, 274, 278, 280, 282, 327, 401, 440

Callis, Serjeant, on the appropriation of the sea, 54, 66, 358, 363

Calvo, on territorial sea, 340, 682, 688

Camden, 64, 142

Canada, fishery rights at. _See_ British North America.

Cancale, Bay of. _See_ Granville Bay.

Canning, George, on Behring Sea, 583

Cannon range limit, proposed by Dutch, 156.
_See_ Territorial Sea.

Canterbury, 41

Cape Bojador, 105

Cape de Verde, 106

Cape Finisterre, 270, 469, 478, 502, 505, 510, 515, 521

Cape of Good Hope, 105, 340, 343, 344

Cape St Vincent, 270, 434, 435, 465, 466 n., 469, 478, 502, 503,
508, 510

Cardinal Infant, 243, 318, 319, 335

Carew, Lord George, 202

Carleton, Sir Dudley, 128, 168, 172, 173, 174, 176, 177, 180, 185,
190, 192, 193, 197, 212;
on Grotius, 351

Carlisle, Earl of, 222 n., 227 n.

Caron, Sir Noel, Dutch ambassador, 151-154, 163, 165, 168-174, 201

Carrick, Earl of, 225 n.

Carteret, Captain, 291, 327

Casaregi, on territorial sea, 558

Castile, 32, 67

Castro, Francis Alphonso de, on dominion of sea, 341

Catalonia, 45

Cats, Dutch ambassador, 391

Cattegat, territoriality of, 653

Cavendish, 5

Cecil, Secretary Sir William, 88, 90, 91, 92, 95, 105, 114, 115, 128
n., 133, 204

Ceva, Cardinal de, 273 n.

Ceylon, pearl fisheries, 560, 697

Chaleurs, Bay of, 623, 624, 625, 627 n., 628, 629, 630, 692

Chamberlain, Joseph, 628

Champagne, on freedom of the sea, 595, 596

Chancellor, 181

Channel, English, 9, 18, 19, 21, 29, 42, 43, 209, 247, 250, 266,
269, 270, 276, 327, 407, 465;
extent of, 432, 465 n. 506 n.;
great avenue of commerce, 30;
importance of command of, 30;
fisheries in, 65 n., 68, 544;
licenses for fishing in, 65;
disputes with French fishermen, 607, 608;
mid-line limit, 542, 544;
sovereignty over, 6, 8, 16, 35, 36, 101, 103, 207, 208, 246, 432;
striking in, 117, 212, 469, 470

Channel Islands, 29, 36, 103

Charles the Bold, 72

Charles I., 17, 28, 31, 117, 119, 338;
asked to free the seas of Hollander busses, 211, 234;
opinion on importance of fisheries, 213;
initiates fishery association, 214;
plan of, 215, 216;
lays scheme before Council in Scotland, 218, 219, 220;
ill received in Scotland, 220;
opposed by Scottish Parliament, 222;
debates regarding, 224;
his great anxiety for, 225;
Scottish Commissioners appointed, 225;
his letters on, 232, 233;
Royal Fishery Society established, 239;
proceedings of, 241;
misfortunes and failure of Fishery Society, 241-243;
claim to sovereignty of sea, 10, 11, 119, 209-212, 251, 258;
proclamation regarding narrow seas and King’s Chambers, 251;
draft proclamation _re_ Sovereignty of Sea, 759;
personal policy, 253;
pretext for equipping a fleet, 253;
deceives his Council, 255;
secret agreement with Spain, 253, 255, 260, 264;
instructions to first ship-money fleet, 259;
failure of his policy, 275;
report of Admiralty as to employment of second ship-money fleet,
288, 762;
instructions regarding license money from foreign fishermen, 295;
proclamation forbidding unlicensed fishing by foreigners, 293, 294;
licenses to fishermen, 762;
negotiations with Dutch as to unlicensed fishing, 305, 306;
tries surreptitiously to induce Dutch to accept licenses, 317, 319,
321;
Dutch despatch a fleet to protect their fishermen, 321;
general dissatisfaction with his actions, 324;
his power on sea wanes, 328;
pretensions to sovereignty of sea flouted by Dutch, 328, 329;
battle of Downs, 335;
proceedings regarding Spanish fleet and Tromp, 331, 336

Charles II., his efforts to develop fisheries, 441;
Bill to encourage fisheries, 443;
directed against foreigners, 444, 444 n.;
establishes the Royal Fishery, 446-448;
failure of, 449;
Dutch embassy, negotiations concerning fishery question, 449,
450, 451, 455;
tries to prevent Franco-Dutch treaty, 454;
treaty with the United Provinces, 455;
disputes about striking, 455;
second Dutch war, 457, 458;
very popular, 458;
course of, 459;
terms of peace, 464;
claim to exclusive fishing withdrawn, 464;
question of striking, 464, 465;
extent of British seas, 465, 466;
licenses offered to Dutch fishermen, 460;
De Witt’s proposals as to striking, 468;
verbal arrangement with Louis as to striking, 471, 471 n.;
Triple Alliance, 474;
secret treaty of Dover, 474;
obtains a subsidy, 475;
ill-feeling against Dutch fomented, 476;
accuses De Witt of secret negotiations with Louis, 476;
recall of Sir William Temple, 476;
pretext for war in the “honour of the flag,” 476;
sends his yacht _Merlin_ to pick a quarrel over the salute,
477, 478, 479;
failure of the _Merlin_, 480;
dispute with Dutch as to striking, 482;
Dutch asked to acknowledge his dominion of the seas, 482;
the Dutch hoodwinked, 482;
rejects concessions of Dutch, 483, 484;
orders Dutch shipping to be seized, 484, 485;
failure of attack on Smyrna fleet, 486, 487;
declaration of war against States-General, 487;
declaration on the honour of the flag and sovereignty of the
sea, 487, 488;
arranges salute with Louis, 488;
terms offered the Dutch, 490;
demands payment for fishery, 491, 491 n.;
summons Parliament, 492;
subsidy granted, 493;
the war intensely unpopular, 493;
efforts to stir up animosity against Dutch, 494-498;
congress at Cologne, 498;
terms of peace offered, 498;
question of flag and striking, 498, 499, 501-503, 505, 506, 508;
question of fisheries, 498-500, 503-505, 508;
negotiations for separate peace, 504-508;
peace concluded, 508;
establishes a new fishery company, 516

Charles V., 74, 75, 78, 79, 81

Charteris, A. H., 586 n.

Chaterton, Sir Richard, 448

Chatham, 459, 476

Chelchethe, John de, 50

Chelmsford, Lord, on territorial sea, 586 n.

Chester, 96

Chili, territorial sea, 661

Chitty, on Sovereignty of Sea, 580 n.

Chitty, on territorial sea, 597

Christian V. of Denmark, prohibits fishing at Greenland, 528

Churchill, Lieutenant, 486 n.

Cinque Ports, 29, 32, 36, 55, 244, 247, 295, 381 n.;
complain about foreign fishermen, 144, 145;
fishermen of, 58, 90 n., 144;
jurisdiction on sea, 213, 544, 544 n.;
licenses to French fishermen, 65

Clarendon, Chancellor, 241, 457

Clee, 90

_Cleveland_ yacht, 511

Clyde, Firth of, foreign trawlers in, 647;
fisheries of, 83, 221 n., 233, 235, 239;

Cnut, King, and the sea, 26;
charter regarding Sandwich, 542

Cockaine, Sir William, 202

Cockburn, Lord Chief-Justice, on Bristol Channel, 586, 587, 588;
on territorial sea, 591, 591 n.

Cockraine, Captain, 437

Cod-fishing, 79, 131, 221 n., 672

Coke, Lord Chief-Justice, 17, 27, 43, 44, 44 n., 46, 66, 213;
on appropriation of sea, 363

Coke, Secretary, Sir John, 130 n., 227 n., 268, 269;
on the British seas, 20, 264 n.;
on the fishery scheme, 215-218, 232, 235-237, 239 n., 241, 243;
on sovereignty of sea, 20, 211, 212, 255-258, 264, 271, 302

Coke, Roger, 127 n.

Colbert, French ambassador, 471, 471 n.

Cologne, congress at, 264 n., 323 n., 347 n., 491 n., 498, 506, 510

Colomb, Admiral, 311 n.

Columbus, 106, 340

Commerce, 53, 91, 106, 107, 134, 135, 143, 163, 210, 255, 339, 340,
342, 390, 391, 395, 408, 413, 457;
in middle ages, 3, 5, 6, 7, 29, 30, 34 and n., 43, 44, 67, 69, 86;
monopoly of, 5, 106

Commercial enterprise, expansion of, 6, 339, 340, 342, 533

Commercial jealousy of Dutch, 10, 422, 441, 457

Commonwealth, instructions as to striking, 380, 381;
relations with United Provinces, 384;
negotiations for alliance, 384, 385;
St John’s mission to The Hague, 384-390;
Navigation Act, 391;
seizure of Dutch ships, 391;
letters of reprisal against the Dutch, 391, 392, 393;
renewed negotiations, 392-396;
thirty-nine articles considered, 393, 764;
differences as to sovereignty of sea, 393, 394;
question of striking, 394, 395;
question of fishery, 394, 396;
question of right of visitation and search, 396;
negotiations interrupted, 397;
indignation against States-General for attack on Blake, 404;
terms offered to Pauw, 405;
Dutch ships seized and preparations for war, 405;
declaration on sovereignty of sea, 409;
_Mare Clausum_ to be translated and printed, 410;
peace negotiations with Dutch, 414-435;
terms offered, 415;
Dutch propose the _Intercursus Magnus_ as basis, 416;
liberty of fishing offered, 417;
the twenty-seven articles proposed, 419;
proposal for fusion of English and Dutch, 416, 417, 418, 419;
question of dominion of the sea, 418, 419, 423, 433, 436;
of extent of British seas, 429, 431-436;
of fishing, 417, 418, 419, 420, 422, 423, 424, 425, 427, 430, 436;
of guarding the sea, 421-424, 431, 436;
of limitation of Dutch fleet, 421, 422, 423, 436;
of the Prince of Orange, 422, 430, 433, 435;
of striking, 417, 419, 420, 424, 429, 431, 432, 436;
Dutch propose a “regulation” for, 405, 418, 424, 429, 431, 433;
Dutch propose to strike in all seas, 432;
of visit and search, 420-424, 431, 436;
treaty signed, 435

Conception Bay, territoriality of, 588, 589

Conringius, 550

Conway, Viscount, 268, 269, 284 n.

Cook, George M., 728 n.

Cooper, Sir Anthony Ashley, 429.
_See_ also Lord Shaftesbury.

Cope, Sir Walter, 128 n., 138

Corinth, Gulf of, 661

Cornish, James, on spawning of fish, 610

Cornwall, pilchards, 134, 143

Cornwallis, Lord, 360

Cottingham, Sir Francis, 227 n.

Cottington, Lord, 253, 263

Courcel, Baron de, on three-mile limit, 664 n., 696 n.

Coventry, Lord, 254, 255, 286

Craig, Sir Thomas, 359 n.;
on the right of fishery, 357

Crail, 84, 175 n., 242

Craudon, 54, 55, 56

Cromarty, 227

Cromer, 90, 296

Crompton, Sir Thomas, 146

Cromwell, Oliver (_see_ also Commonwealth), 13, 28, 65, 72, 337,
378, 404, 410 n., 414, 451, 495, 505;
arguments for exclusive fishery, 425;
clandestine negotiations with Dutch, 414, 415, 417, 430 n.;
on sovereignty of sea, 419, 423, 424, 435;
renews fishing licenses for Zowe, 440

Cromwell, Richard, on extent of British seas, 438

Crow, Captain, 479, 480

Cuba, territorial limit, 665

Cunæus, Professor Petrus, 375

Customs limit. _See_ Territorial sea.

Dana, on territorial sea, 683

Danby, Earl of, 516

Danegeld, 26

Dantzic, 216, 242

Dartmouth, 267

David I., 59

Davidson, Thomas, 84

Davis’ Straits, 184

Deal Castle, 279

Dean, Major-General, 382, 406, 408

Decay of English fisheries. _See_ Fisheries.

Decay of havens and sea-coast towns, 89, 90, 98, 446

Dee, Dr John, 27 n., 95, 111, 125, 203, 214 n., 364 n.;
on sovereignty of sea, 99, 101

Delaware Bay, claimed by United States, 574, 599, 629

Delfshaven, 294 n., 298 n.

Delft, 73, 397 n.

Demetrius, Emanuel, 156

Denmark, 26, 45, 54, 464, 527;
claim to cod-fishing at Iceland, 528;
to whaling at Greenland, 527;
fisheries of, 92;
fishermen on British coasts, 605;
claims to sovereignty of sea, 4, 8, 16, 33, 86, 105, 112, 158,
339, 340, 358;
opposed by Queen Elizabeth, 107, 108, 109, 110;
on striking, 470, 471, 473;
territorial sea, 528, 529, 653, 655, 664;
range of vision claimed, 529, 545;
inclusion in Cromwell’s treaty with Dutch, 433

Deptford, 266

De Ruyter, 408, 456, 457 n., 458, 459, 463, 472, 479, 481, 489, 493

De Seneterre, 302

Desjardins, on territorial sea, 685, 688

“De Superioritate maris” roll, 8, 31, 41, 43, 44 and n., 45, 49, 50,
54, 363, 740, 744

Devonshire, Earl of, 138

De With, 408, 437

De Witt, Cornelius, 459

De Witt, John, 398, 414, 422, 433, 434, 449;
secret negotiations with Cromwell, 430 n., 434, 435;
secret negotiations with France regarding fishery and flag, 451-454,
471, 476;
attitude on sovereignty of sea, 450, 451, 454, 468, 470;
on fishery claim, 450, 451-457;
on striking, 14, 452, 457, 467, 468, 470, 471;
on striking to a frigate or ketch, 470, 477, 509;
on striking to French, 463, 464;
assassinated, 491

Dieppe, 49, 50, 61, 65, 116, 440, 473

Digby, Sir Kenelm, 292, 375

Digges, Sir Leonard, 96

Digges, Thomas, on foreshore and bed of sea, 362

Dogger Bank, 131, 407 n., 699, 700

Dominion of Sea. _See_ Sovereignty of Sea.

Dorchester, Viscount, 212. _See_ Carleton.

Dorp, van, 273, 274, 300, 312, 313, 321

Dorset, Earl of, 227 n.

Dort, 73

Dover, 49, 73, 103, 145 n., 204, 205, 265, 400;
straits of, 6, 8, 16, 18, 36, 104, 273, 330, 397, 401, 515

Downing, Sir George, English ambassador at The Hague, 454, 482, 483, 488

Downs, The, 120, 245, 259, 260, 265, 268, 270, 274, 290, 323, 330, 331,
332, 334, 335, 336, 400

Drake, Sir F., 5, 107

Drechsel, C. F., Captain, 647 n., 707 n.

Dudley, Sir Henry, 116

Dues levied at Scarborough Castle, 64

Dunbar, 59, 153 n., 166, 221 n.

Dunedin, Lord, Lord Justice-General, on territorial sea, 724

Dunfermline, Earl of, 80, 179 n., 223

Dunkirk, 73, 125, 215, 242, 267, 278, 282, 327;
blockade of, 253, 265, 266, 268, 270, 273-275, 276, 290, 327, 330, 334

Dunkirk privateers, 11, 243, 247-250, 261, 263, 265, 273, 282, 289,
291, 296, 302, 304, 318, 322, 327, 328, 330

Dunn, Sir Daniel, 146, 155

Dunwich, 90 n.

Durham, 133

Dussen, E. van der, Dutch ambassador, 185 n.

Dutch, 5, 69, 77, 79, 81, 143, 217, 243, 253, 255, 261, 263, 275, 289;
commercial jealousy of, 10, 125, 142, 413;
encouraged to settle in England, 515;
growth of fisheries and commerce, 10, 62, 87, 143;
fisheries, growth and extent of, 125, 126, 127, 128, 130, 142;
on British coasts, 62, 64, 605;
on Scottish coast, 82, 83, 187 n., 201;
statistics of, 125-132, 158, 190, 438, 439 and n., 534;
strength of fishing fleet, 98, 101, 125, 126, 127, 129, 144, 321;
value of, 125, 131, 132, 142, 292, 366, 515;
exports of fish, 87, 135;
embargo on, 460, 462, 489;
supply England with fish, 93;
herring fishery, 10, 61, 78-85, 87, 93, 95, 112, 122, 125, 131,
134-137, 143-145, 157, 208, 214, 215, 247, 250, 273, 277, 296,
316, 407, 415, 424, 428, 449, 450, 451, 515, 534;
description of, 131;
exports of herrings, 132, 134;
herring fleet attacked by Blake, 406, 407;
whale fishing, 194 n., 181, 183, 184, 185, 407, 528;
fishermen, frugality and industry of, 137, 141;
settled at Stornoway, 216, 221, 237;
complaints against, 144, 154, 168, 175, 177, 187, 234, 257, 292,
301, 438;
proposal to tax, 141, 214;
assize herring, 169-171, 197, 198;
licenses to be forced on, 264, 300;
proceedings with reference to Northumberland’s fleet, 301-305,
312, 313;
payments for licenses to fish, 309, 310, 311;
attempt to distribute licenses, 320, 321.
_See_ also Fisheries and Sovereignty of Sea.

Dutch, first war with England, 405;
second, 457;
third, 474

Dutch fleet to protect fishermen, 321

Dutch East India Company, 185, 343, 344

Dutch Republic. _See_ United Provinces.

Dyer, Sir Edward, 103

Dymes, Captain John, 216, 217 n.

East India Company, 194

East Indies, 105, 184, 185, 193, 194, 198, 199, 200, 257, 339, 340,
343, 350, 393, 430, 457, 482

Eastland Merchants Company, 160

Eddystone, territoriality of, 641, 642, 643

Edgar, King, 26, 27, 28, 141, 158, 326, 365, 409

Edinburgh, 216, 228, 298, 324, 351

Edmonds, Sir Thomas, 243

Edward I., 7, 32, 40, 42, 43, 44, 49, 51, 58 n., 60, 66, 67, 213,
214, 363, 365

Edward II., 52 n., 56, 67, 254

Edward III., 7, 33, 36, 37, 38, 41, 42, 43, 44, 51, 53, 64, 66, 67,
211, 254, 365, 409

Edward IV., 63, 71, 110

Edward VI., 88, 89, 116

Elbe, 28

Elector Palatine, 198, 271, 303, 315, 316, 320

Elizabeth, Queen, 17, 65-85, 86, 87, 88, 91, 96, 102, 104, 115, 117,
118, 124, 136, 204, 246, 361, 433;
asserts freedom of seas, 5, 108-112, 118;
opposes claims of Denmark in northern seas, 86, 108-112;
opposes Spanish and Portuguese claims, 86, 107;
opposes _mare clausum_, 105, 338;
made no claim to sovereignty of seas, 107, 108;
policy to foster fisheries, 93;
fishing declared free, 111;
fishery disputes with Denmark, 106-112;
policy regarding territorial waters, 111, 543

Elizabeth, Queen of Bohemia, 167 n., 198, 303, 305, 314, 315, 316,
321, 385

Emden, 129, 130, 195

England, Sea of. _See_ Sea.

English, new spirit of commercial enterprise in, 124, 136;
irritation against Dutch, 134;
jealous of their commerce, 413;
fisheries, yield of, 215;
condition of, 133;
decay of, 75, 112, 358;
description of, 133;
fishermen, indolence of, 91, 137, 516;
at Iceland, 108, 109, 110;
at Norway, 108;
molested by Dutch, 438

Enkhuisen, 139, 170, 171, 173, 298 n., 397 n., 439 n.

Entick, on Sovereignty of Sea, 311 n., 522

Essex, Earl of, 128 n., 473

Ethelred, King, 26

Evelyn, John, 312 n., 508;
on Sovereignty of Sea, 514 and n.

Eversley, Lord, 702 n.

Evertsen, Vice-Admiral Jan, 399, 408

Exeter, 96

Exton, Sir Thomas, 513

Faeröe Isles, 175, 176, 528, 529, 545, 647, 711

Fair Isle, 126, 131

Fairlea, 65

Fairlight, 65, 402

Fajardo, Don Louis, 206 n.

Falkland Islands, 650

Falmouth, 276

Farne Isles, 618

Farrer, Sir T. H., 646

Fast-days, 58, 87

Fenton, John, 194, 195, 196 and n., 197, 757

Ferguson, on territorial sea, 684

Fielding, Captain, 320, 321, 322, 323, 324

Fife, 59, 166, 175 n., 445;
fishermen of, 61, 83, 165

Finmark, 108, 109, 568

Fiore, on territorial sea, 684

Fish, abuses in trade in, 112, 113

Fish, commerce in, 61, 82, 88, 112, 134, 141;
exports, 61, 132 n., 133, 134, 214;
imports, 67, 113, 145, 442;
prices regulated, 91

Fish days, 58, 87, 88, 90, 92 and n., 93, 94, 99 n., 114, 115, 136, 444

Fish, demand for, in early times, 58

Fish, destruction of spawn of, 608, 609, 610

Fish for victualling army and navy, 58

Fish, fresh, distribution of, 58

Fish, preservation of brood of, 213, 607, 608, 609, 610

Fish, protection of breeding-grounds of, 610

Fish, royal, 66, 362 n., 363

Fish, spawning of, 610

Fish, taxation of imported, 88, 441, 442, 446

Fish tithes, 59, 101, 141, 142, 203, 214, 242, 355

Fish, undersized, 444 n., 608, 636, 704, 706, 707, 708-710

Fisheries, appropriation of, 102

Fisheries, as nursery for navy, 87, 113, 134, 213

Fisheries, charter to Bruges, 461, 772

Fisheries, claim to wide limit by Argentina, 661, 662

Fisheries, claimed for crown, 57, 62, 288, 289, 292

Fisheries, closure of areas, 662, 720.
_See_ Territorial Sea, Extra territorial.

Fisheries, cod-fishing at Lofoten Isles, 672 and n.

Fisheries, Conference at Hague, 1881, 632

Fisheries, decay of English, 86, 87, 89, 91, 92, 115;
of Dutch, 534

Fisheries, disputes in North Sea, 631;
at Iceland, 110;
in North America, 621, 622-630

Fisheries, distant voyages, 57

Fisheries, Dutch, 93, 94, 96, 125-130.
_See_ Dutch.

Fisheries, Dutch regulations on British coast, 605, 606 n.

Fisheries, early English law as to, 66

Fisheries Enquiries--Anglo-French in 1837, 611;
by Royal Commissions in 1863, 701;
in 1878, 702;
in 1883, 702;
by Select Committee of House of Commons in 1817, 610 n.;
in 1833, 607-610; in 1893, 691, 707, 714 n.;
by Select Committee of House of Lords in 1904, 710, 711 n.;
by Mr Higgin as to disputes in North Sea, 1880, 631

Fisheries, estimated profits of, 137

Fisheries, exclusive limit for, 632, 633

Fisheries, exhaustibility of, 348, 355, 372, 546, 550, 559, 602

Fisheries, for coral, 659, 669, 684, 695;
sponges, 659, 669;
oysters, 612, 621, 697;
pearls, 697

Fisheries, for “floating” fish, 698

Fisheries, freedom of fishing during war, 440, 461, 462, 489, 636

Fisheries, herring, 29, 34 n., 43, 58, 59, 71, 73-75, 90, 97, 130,
143, 157, 187, 190, 193, 197-200, 203, 214-218, 221 n., 238, 241,
264, 265, 272, 273, 302, 336, 378, 462, 491, 605, 698;
importance of, 59, 61;
at Bohuslän, 62;
at Scania, 61;
in Channel, 68;
Dutch, _see_ Dutch;
French, on British coasts, 606, 607, 608, 618;
treaties granting liberty for, 67

Fisheries, importance of, 57;
in Scotland, 76;
for navy, 58, 86, 87, 200, 219, 428;
in relation to international territorial limits, 693

Fisheries, impoverishment of grounds, 701, 702, 704, 706-711, 713,
714 n., 733, 738, 739 n.

Fisheries, in Channel, 65, 607

Fisheries, in North Sea. _See_ North Sea.

Fisheries, increase of shipping due to, 135

Fisheries, industries dependent on, 135

Fisheries, International Conference, London, 1890, 706

Fisheries, international investigations proposed, 707 n.;
begun, 735, 736, 740;
instructions to British delegates, 735, 736 n.;
criticism of, 736 and n.

Fisheries, international regulations, 614, 618, 619, 630, 631, 636,
638, 645 n., 648, 704, 729;
German proposal to protect fry and small fish, 636

Fisheries, liberty of fishing granted to Sweden, 427

Fisheries, liberty of fishing guaranteed by treaties, 8, 66-74

Fisheries, license for fishing at Zowe, 65, 749

Fisheries, old Scandinavian rights, 677

Fisheries, old Scots Acts regarding, 82, 83

Fisheries, policy of Scottish kings, 59

Fisheries, promoted by Charles I., 213, 214

Fisheries, proposals to develop English, 136, 138

Fisheries, protective legislation and regulation, 88, 91, 92, 93,
94, 112, 113, 213, 442, 533, 608 n.

Fisheries, regulations beyond three-mile limit, 614, 618, 619, 621,
661, 662, 666, 688, 691, 697, 698, 734, 735;
of oyster beds, 621

Fisheries, rise of British, 534

Fisheries, Scottish treaties regarding, 75-82

Fisheries, sealing regulations, Argentina, 662;
Uruguay, 663

Fisheries, small-fish grounds, 705, 708

Fisheries, the “Belgian devil,” 631

Fisheries, trawling, 134;
methods, 699, 700, 701, 708, 714;
development of, 680, 698-701, 711, 713, 739 n.;
enterprise of British trawlers, 713;
by British vessels on foreign coasts, 680, 711, 712, 713, 730, 735,
737;
in Barents Sea, 657, 713;
at Faröes, 711;
at Finmarken, 680;
French West Africa, 713;
Iceland, 647, 648, 711;
Morocco, 713;
Spain and Portugal, 667 and n., 668 n., 713;
foreign trawlers on Scottish coast, 647;
damage by foreign trawlers, 631;
destruction of undersized fish, 714 n.;
Board of Trade empowered to restrict, 717;
German proposals to restrict in North Sea, 636;
restrictive regulations, 662, 698, 714, 733;
in England, 715;
prohibited beyond ordinary limits in Adriatic, 659;
Argentina, 662;
Austria-Hungary, 715;
Italy, 71;
Ireland, 715, 716;
Norway, 680, 715;
Portugal, 666-668;
Scotland, 716-720;
Spain, 666-668;
bill to prohibit within eight miles of coast, 444 and n.;
German proposal to restrict, 636;
restrictions desired by English trawlers, 702, 704-710;
ten-mile limit desired by English trawlers, 707;
voluntary closure of Continental area, 704, 706;
international agreement necessary, 732, 734, 735, 738;
recent views as to extension of limits, 735, 737

Fisheries, tribute from foreigners proposed, 101, 138, 139, 295

Fisheries, truce for fishing during war, 74, 75

Fishermen, early frequent distant seas, 86

Fishermen, foreign--
On British coasts, 29, 33, 57, 59-62, 65, 69, 76, 83, 91, 92, 98,
101, 126, 129, 145-150, 227, 288, 533, 544 n., 605-608, 611,
615, 617, 618, 631;
Belgian, 615-618;
Dutch, 60, 62, 64, 77-79, 82-85, 94, and _see_ Dutch;
Flemish, 29, 59-62, 83, 101;
French, 59-62, 65, 83, 101, 150, 544 n., 606-608, 611, 617,
618, 631;
Portuguese, 129;
Spanish, 67, 129, 150;
cause of increase of, 61;
complaints against, 94, 95, 100, 101, 144, 604, 605, 631;
against Belgian, 615, 616;
Dutch, _see_ Dutch;
French, 29, 544 n., 606-608, 611, 617, 618, 631;
encouraged in England, 75;
prohibited to fish, 9, 33, 150, 202, 227, 293, 294;
licenses for, 62, 65, 150, 294;
tax on proposed, 101, 138, 139, 214, 295;
protection of, 63
On Irish coasts, 33, 92, 98, 101, 150

Fishermen, guardians of, appointed, 63

Fishery Conventions, 604, 693;
Anglo-Belgian, of 1852, 61;
Anglo-French, of 1839, 612, 613, 644;
of 1867, 618, 619, 630, 633, 634, 645;
North Sea, of 1882, 634, 637-639;
Norway and Sweden decline to adhere to North Sea Convention, 636

Fishery, reciprocal right of, 626, 627, 658, 659, 665, 666;
old Scandinavian rights, 677

Fishery, right of, Boroughs on, 364;
Callis, 363;
Craig, 357;
Digges, 362;
Fiore, 684;
Graswinckel, 412;
Grotius, 346, 351, 356;
Hall, 688;
Hautefeuille, 601, 602;
Wicquefort, 495;
Malynes, 358;
Meadows, 525;
Pontanus, 376;
Puffendorf, 551;
Rayneval, 596;
Sarpi, 547;
Selden, 372, 373;
Stubbe, 497;
Vasquius, 341;
Vattel, 560, 561;
Welwood, 354, 355;
Wheaton, 599;
Wolff, 559

Fishery rights, British North America. _See_ America.

Fishery Societies and Associations, 96, 97, 124, 128 n., 136-140,
160-162, 202, 203, 211, 214, 218, 222, 225, 227, 230 n., 232,
235-243, 266, 267, 292, 301, 328, 346, 439, 442, 444, 494, 515,
516, 533, 534

Fishing boats, 33;
question of neutrality of, during war, 636

Fishing boats, varieties of, 63, 90, 126, 129

Fishing, old limit on Scottish coast, 79

Fishing, safe-conducts for, 62, 71, 72, 79

Fishing vessels, armed, 34 n., 43, 70

Fitton, Sir Henry, 64

Fitzmaurice, Lord, Under-Secretary for Foreign Affairs, on territorial
sea, 630, 730, 731

Flag, “honour of.” _See_ Striking.

Flanders, 29, 30, 34, 43, 45, 52 n., 53, 55, 57, 59, 60, 61, 62, 69,
70, 71, 72, 75, 83, 88, 92, 101, 125, 209, 253, 255, 329

Fleta, 539

Fletcher, George, 225 n., 239 n.

Flushing, 142

Fogg, Captain, 322, 323

Foggo, Robert, 78

Folkestone, 33, 145 n.

Foreign Enlistment Act, 589

Foreshore, ownership of, 361-363

Forth, Firth of, 221 n., 273 n., 298;
herring fishery, 59, 61, 77

Four Seas, 17, 18, 119 n., 251, 363

France, 8, 12, 14, 20, 29, 30, 32, 33, 35, 36, 44, 50, 57, 60,
61, 65, 67, 69, 70, 71, 72, 83, 88, 92, 97, 101, 103, 105,
117, 127, 129, 134, 151, 158, 189, 212, 246, 264, 265, 269,
275, 286, 413, 426, 451, 452, 463;
Customs jurisdiction, 594;
differences with United Provinces as to striking, 452, 463;
regulation of fisheries beyond three miles, 657;
territorial sea, 657;
treaty with Dutch regarding fishery question, 451-454

Francis I. of France, 74, 75

_Franconia_, case of, 580 n., 590, 591

Frankland, 311 n.

Freiras, F. S. de, on _Mare Liberum_, 350

French fishermen on British coasts, 101, 129, 130, 150, 605;
whalers at Spitzbergen, 182, 183 and n.

Frezno, Marquis of, 508

Friesland, 28, 45, 60, 62, 75, 81, 92, 104

Froissart, 32

Fryer, C. E., 619 n.

Fundy, Bay of, 623, 624, 625

Fyvie, Lord President, 223

Galiani, on territorial sea, 563;
first to suggest three miles as equivalent to range of guns, 563

Galicia, 98, 469

Gama, Vasco da, 340

Garde, Baron de la, 116

Gelderland, 81

Genoa, 30, 45, 45 n., 402, 476, 504;
sovereignty of Ligurian Sea, 4, 158, 339, 341, 371, 411, 473;
limit of territorial sea, 570

Gentilis, on appropriation of sea, 122, 358, 359

Gentleman, Tobias, 128 and n., 129, 132, 134, 137, 358, 364 n.

Gerbier, 318

German Ocean, 19, 209

Germany, 45, 61, 197, 198, 199, 216, 373, 377;
territorial waters of, 652, 653

Ghent, 71, 73;
negotiations at, 581

Ghent, van, 462, 479, 480, 481, 482

Glanville, 539

Glückstadt, 473

Goch, Johan van, 185 n.

Godey, on range of vision, 546

Godolphin, 52 n., 53, 515

Godsdue, Richard, 162

Gondomar, Count of, 206, 208

Goodwin Sands, territoriality of, 640, 640 n.

Gorée, 477, 478, 490, 511

Goring, George, 314

_Grange_, case of, 574

Granville Bay, 612, 619, 697

Graswinckel, Dirck, 305, 354 n., 366 n., 375, 376 n., 411, 412, 550

Gravelines, 68, 282, 327

Greece, territorial sea, 661

Greenland, 4, 28, 108, 181, 184, 199, 257, 376, 393, 407, 430, 437;
whale fishery at, 200, 527

Grey, Sir Edward, Secretary for Foreign Affairs, on territorial
sea, 732, 733

Grimaldi, Reyner. _See_ Grimbald.

Grimbald, Reyner, 44 n., 45 and n., 47-51, 54, 409, 740, 744

Grimsby, 32, 699;
trawlers of, in Moray Firth, 722, 727-729

Groningen, 81

Groningen-Watt, 578

Groot, de, 504

Groot, Cornets de, 344 n.

Groot, Hugo de. _See_ Grotius.

Grotius, 5, 105, 118, 148, 157 n., 158 n., 173, 174, 185 n., 190,
191 n., 256 n., 353, 366, 370, 530, 538, 546, 591;
appearance of, _Mare Liberum_, 338, 342;
object and genesis of, 342, 343, 344;
arguments of, 344-350;
defends a Dutch _mare clausum_, 340, 356;
‘Rights of War and Peace,’ 347 ;
on appropriation of sea, 356;
on Portuguese and Spanish claims, 339;
on range of gun limit, 157 n., 158 n., 549;
on Selden’s _Mare Clausum_, 375;
on Welwood, 356

Grotius and James I., 346, 347 n., 351, 357

Guard for fishing fleet, 248

Guernsey, 36

Guiccardini, 125

Guise, Duke of, license to fish at Zowe, 65, 426

Gulf of Nuevo, 661

Gulf of St George, 661

Gulf of San Matias, 661

Guns, range of. _See_ Territorial sea.

Guthrie, Lord, on territorial sea, 623

Haas, Captain Adrian de, 486

Haddington, Earl of, 179 n.

Hagaland, 110

Hague, The, 81, 152, 172, 176, 212, 256, 305, 314, 335, 351, 367, 384,
414, 426, 474, 479, 482, 488;
Conference at, 1881, 632;
Tribunal N. American Fisheries Arbitration, 732 n.

Hale, Lord Chief-Justice, 18, 66, 363, 374, 543

Halifax Commission, 627

Halifax, Viscount, 490

Hall, H. van, 605 n.

Hall, on Sovereignty of Sea, 48 n., 312 n., 580 n.;
on territorial sea, 687

Halleck, on territorial sea, 683

Halsbury, Lord, on territorial sea, 522, 730

Halse, Sir Nicholas, 130, 132, 142, 162 n., 292

Hamburg, 129, 130, 140, 195, 235, 485, 528;
conference at, 336

Hamburgers, 117, 126, 141, 178 n., 227, 255

Hamilton, Marquis of, 186, 225 n.

Hamilton, Sir Thomas, 179 n., 223

Hampden, 324

Hansards, 30, 61, 62, 73

Hardy, Sir T. Duffus, 41

Harfleur, 70

Hargrave, 374;
on Sovereignty of Sea, 580 n.

Harris, Captain Joseph, condemned to death for striking to Spaniard, 512

Harvey, Sir William, 162

Harwich, 274, 699

Hastings, 33, 40, 41, 145 n., 544 n.

Hatherly, Lord, on territorial sea, 586 n.

Hautefeuille, on territorial sea, 601

Hawkins, Sir John, 5, 117

Hay, Sir George, 186

Hay, Sir John, 217, 218, 220 n., 221, 225 n., 227, 239 n.

Headland doctrine, 360, 622, 624.
_See_ Bays.

Heath, Attorney-General, 252

Heaton, Captain, 437

Hebrides, 153 n., 230, 234, 241 n., 301

Heemskerk, Jacob van, 5, 118, 183, 343

Heffter, on territorial sea, 600;
on range of vision, 546

Helgeland, 108

Heneage, Lord, 728 n., 739

Henrietta Maria, Queen, 380, 382

Henry I., 16, 29, 31, 40, 41

Henry II., 28

Henry II. of France, 117

Henry III., 31, 66

Henry III. of France, 117

Henry IV., 43, 56, 67, 68, 69, 70

Henry IV. of France, 159, 204

Henry V., 8, 34, 41, 42, 43, 70, 108

Henry VI., 38, 70, 109

Henry VII., 63, 72, 73, 109, 387

Henry VIII., 62, 73, 75, 89, 109, 116

Henry, Prince, of Scotland, 81, 169

Herbert, Captain, 512

Herbert, Sir John, 146

Hermetra, 241 n.

Herring busses, 74 n., 162, 447

Herring fishery. _See_ Fisheries, herring.

Herrings, commerce in, 61, 132, 242;
price of, 97

Herschell, Lord, on territorial sea, 592 n., 731

Hervey, Lord, 202

Heywood, Thomas, 326 and n.

Higgin, W. H., inquiry on North Sea fishery disputes, 631

Highlanders, 216, 242

Hitchcock, Captain Robert, 64, 95, 105, 125, 133, 136, 138, 203, 364 n.

Hoek, Dr P. P. C., 707 n.

Holland, 45, 60, 62, 64, 71, 72, 74 n., 75, 77, 78, 79, 81, 84, 92,
94, 95, 104, 125, 129, 132, 135, 139, 144, 151, 171, 172, 175,
190, 195, 197, 215, 292, 374, 384, 407, 433, 450, 460

Holland, Earl of, 77

Holland, fishery treaty with, 71, 72

Holland, Prof., 359 n.;
on territorial sea, 691 n.

Hollanders. _See_ Dutch.

Holmes, Captain Sir Robert, 455, 456 n., 458, 484, 485, 486

Hoorn, Simon van, 449 n.

Horn, Andrew, 542

Hovering Acts, 593

Howard, Lord William, 117

Hübner, on territorial sea, 562

Hull, 43, 94, 96, 108, 194 n., 699

Humber, 133

Hume, 311 n.

Huxley, Professor, 702 n.

Hythe, 145 n.

Iceland, 4, 28, 86, 88, 97, 108, 109, 112, 113, 133, 145, 247,
248, 339, 376;
area of fishing-grounds at, 739;
English fishermen attacked by Danes, 109, 110;
English traffic with, 339;
Danish claims at, 528, 529, 567;
fisheries at, 57, 94;
English at, 87, 89, 90, 113, 408;
foreign trawlers at, 700, 707, 711, 714 n.;
fishery dispute between Denmark and United Provinces, 529;
fishery limit at, 647, 648;
seven-mile limit, 739, 740 n.

Idle persons, 98, 115, 116

Impressment of ships, 32

Indies, 107, 135, 215, 257, 341, 360, 457

Insecurity of sea, 247, 248, 249, 253

Institut de Droit International, on territorial sea, 689-692;
articles on, 774

_Intercursus Magnus_, treaty, 72, 73, 80, 86, 157, 158, 256 n., 368,
386, 388, 394, 416, 425, 430, 449, 500

International fishery investigations. _See_ Fisheries.

International Law Association, on territorial sea, 689-692, 774;
Articles on, 774

Inveraray, 83 n.

Ipswich, 247

Ireland, 29, 70, 88, 97, 98, 143, 201, 226, 257, 359;
fisheries, 92;
oyster fisheries, 697;
foreigners prohibited from fishing at, 33, 63;
restrictions on trawling beyond three-mile limit, 716;
Spanish fishings at, 67, 98;
territoriality of oyster-beds, 620, 621

Irgens, J., Norwegian Minister for Foreign Affairs, 673 n.

Isabel of Portugal, 70

Islay, 230

Isle of Man, fishery regulations, 698

Isle of May, fishing tithes, 59, 76

Italian jurists, 6, 35, 101, 347, 360, 539

Italian Republics, 3, 6, 340

Italy, 358;
Customs jurisdiction, 594, 661;
reciprocal rights of fishery with Austria, 659;
territorial sea, 659

James I., 9, 17, 62, 73, 75, 81, 136, 257, 346, 347 n., 351, 353, 357

James I., a new policy, 118;
antecedents of, 124;
proclamation forbidding hostilities in King’s Chambers, 9, 119,
360, 750;
concludes peace with Spain, 125;
proclamation restraining foreigners from fishing on British
coasts, 9, 145-148, 150, 541, 755;
remit of Council on, 146;
deliverance of Committee on, 147;
attitude of French towards, 151;
negotiations with Dutch, 151, 155-159, 170, 178-180, 185-194,
197, 198;
proclamation suspended, 159;
orders records to be searched, 162, 179, 187;
grants of assize herrings, 165, 166;
instructs assize herrings to be levied from foreign fishermen,
168, 757;
indignation at capture of Brown, satisfaction demanded, 172, 174;
forbids Scottish fishermen to fish within a land-kenning at the
Faroes, 176;
requests Dutch not to fish within sight of land, 176;
requests Scottish Council to prevent the Hollanders fishing within
sight of land, 178;
again demands assize herrings from Dutch, 180;
claims seas around Spitzbergen as British, 183;
appoints commissioners to treat with Dutch envoys, 186;
Dutch ambassadors without power to treat of herring fishery, 188, 189;
indignation with Dutch ambassadors, 189;
again gives way on the herring fishery question, 192;
requests Dutch to prohibit fishing within fourteen miles, 192;
negotiations with Dutch as to whale fishery, 193;
Carleton advises fixing a limit, 193;
Dutch agree to keep out of sight of shore, 193;
orders assize herrings to be again collected, 194, 196;
Dutch embassy appointed, 198;
Dutch ambassadors without instructions to deal with fishery
question, 199;
speech to Dutch ambassadors, 199;
indignation against Dutch, 200;
Dutch ambassadors advise States-General to settle fishery
question, 200;
failure of policy of assize herring, 203

James II., 517

James III. of Scotland, 83

James V. of Scotland, 77, 78, 83, 218

James VI. of Scotland, treaty with Dutch, 80, 81

Jan Mayen, sealing at, 695;
whaling at, 527

Japan, territorial sea, 661

Jenkins, Sir Leoline, judge of the High Court of Admiralty, judicial
decisions regarding neutral waters, 553;
plenipotentiary at Cologne, 498;
on case of the _Merlin_, 480;
on confiscation of Smyrna fleet, 486;
on sovereignty of sea, 484 n.;
on striking, 477, 480, 481, 501-503, 511, 512, 513

Jenkinson. _See_ Lord Liverpool.

Jennings, Edward, 115

Jersey, 36

Joachimi, Dutch ambassador, 155, 256, 301, 302, 304, 305, 306, 384

John’s ordinance, 6, 16;
on striking, 39-43, 278, 365, 409

Johnsen, Hans, on Moray Firth, 728 n.

Jongestal, Dutch ambassador, 415, 417, 433

Jonson, Ben, 115, 196 n.

Juridical controversies about sovereignty of sea, 338-340, 410-413

Kanin, Cape, 657, 713

Kemble, 27, 28

Kennet, 311 n.

Kent, on territorial sea, 599

Kerouaille, Mademoiselle de, 475

Ketelby, Captain, 281

Keymer, John, author of the “Raleigh” tract, 126, 127, 128 n., 131, 358

Killigrew, Sir William, 280

King James’s Newland, 183

King John’s ordinance. _See_ John.

King, Thomas, 446, 448

King’s Chambers, 50, 54, 209, 260, 262, 263, 359, 360, 373, 539, 553,
598, 622, 723 n.;
declaration of Trinity House as to limits of, 753;
description of, 120;
defined by James I., 9, 118, 120;
extent of, 122, 251;
proclamation concerning, 251, 750;
question of validity of, 576, 577;
restricted to neutrality, 122, 251, 548;
violation of, 10, 245, 247, 255, 256, 258, 259, 326, 328, 330-333, 336

Kirkelee, 49

Kishinouye, Dr, 661 n.

Kleen, on territorial sea, 685

Klüber, on territorial sea, 597

Kronberg, striking at, 473, 520

Kyllachy, Lord, on territorial sea, 725

Lake, Sir Thomas, 359 n.

Lampredi, on territorial sea, 562

Lampreys, 244

“Land-fishing” in Scotland, 222, 226

Land-kenning in Scotland, 77, 84, 144, 154, 175, 176, 177 n., 178,
192, 193, 211, 218, 221, 222 n., 223, 228, 235, 545, 546;
at Faroes, 175.
_See_ Territorial Sea, Range of Vision.

Land-van-Staten, 506, 508, 510, 515

Larrey, 311 n.

Latour, on territorial sea, 595, 685

Laud, Archbishop, 243, 306, 314, 316, 368, 376 n.

Lauderdale, Lord, 187, 483, 507

Laughton, Professor, 521 n.

Law, early English, as to fishing, 66

Lawrence on territorial sea, 683, 688

Laws of Oleron, 6, 40, 42, 44 n., 51, 52, 54, 213, 363, 365

Laws of the Sea, old, 30, 52 n.

Lawson, Vice-Admiral Sir John, 437, 456, 457 n., 463, 472

_Leda_, case of, 586 n.

Lediard, 167 n., 311 n.

Lefevre, Mr Shaw. _See_ Lord Eversley.

Leghorn, 402, 473

Leicester, Earl of, 96, 264 n.

Lennox, Duke of, 130 n., 166, 168, 170, 172, 186, 195 and n., 230 n.,
353, 461;
grant of assize herrings to, 166, 168

Lent, 75, 87, 88, 114, 136, 214, 242, 244;
difficulties in enforcing observance of, 114, 115;
laxity of observance of, 88, 89;
measures to enforce observance of, 88, 114.
_See also_ Political Lent.

Leon, 32

“L’Espagnols sur Mer,” battle of, 37, 67

Levant, 340

Levi, Leoni, on territorial sea, 664 n.

Lewes, 216, 217, 220, 221, 224, 227, 234, 235, 237, 241, 242

Lewis, 216, 217 and n.

Leybourne, Lord William de, 45 n.

Leyden, 73, 342

Libelle of Englyshe Polycye, 18, 30, 37, 38 n.

Licenses for foreign fishermen, 62, 63, 111, 141, 210, 235, 257,
264, 288, 292, 294, 425, 426, 430, 453;
for Dutch, 272, 488, 489;
distributed to the busses, 300;
sums received for, 309, 310, 311;
offered to Dutch, 317;
to French, 440, 454;
to Swedes to fish in British seas, 427;
Danish to fish at Iceland and northern seas, 108-112

Liens, Joachim, Dutch Ambassador, 185 n.

Ligurian Sea, sovereignty of, 4, 339, 341, 371, 411

Lindsay, Thomas, 242

Lindsey, Earl of, 250, 256, 257, 267, 270, 271, 275 n., 282, 284,
286, 287, 380;
appointed Admiral of the first ship-money fleet, 259;
his instructions from the Admiralty, 260;
private instructions from Charles I., 264;
to force licenses on Dutch fishermen, 264;
punctilios of, as to flags, extent of British Seas, 264, 265,
266, 269;
dissatisfaction of Charles with, 268;
and the Dutch herring busses, 272;
proceedings of the fleet, 259-274

Lisle, Viscount, 428, 429

Liverpool, Lord, on neutral rights, 596

Lizard, 103, 122, 269, 437

Loccenius, on territorial sea, 550

Loch Broom, 83

Loch Fyne, 83, 153 n.

Loch Maddy, 241 n.

Lofoten Isles, 672

Logan, Sir Robert, 77 n.

London, 7, 49, 50, 61, 88, 94, 96, 114, 124, 140, 189, 198, 199,
214, 223, 241, 266, 299 n., 330, 358, 384, 396, 404, 407, 428,
439, 443, 446, 448, 449;
consumption of fish in, 87, 97;
fish supply of, 131, 134, 144, 241 n.;
and Fishery Society, 443;
fishmongers of, 89

Long Parliament, 336, 414;
attitude towards Sovereignty of Sea, 378, 379, 380, 381, 382

Lord Mayor, 115, 202, 214, 443, 448

Loreburn, Lord, on territorial sea, 732

“Lords of the Sea,” English kings as, 8, 28, 35, 36, 38 n., 39, 209,
210, 211, 244, 373

Lothian, Firth of, 153 n., 233, 235, 239

Lottery for Fishery Society, 244, 446, 447

Louis of Nassau, 449 n.

Louis XIV., 463, 465, 474, 476, 483, 490, 493, 503, 518, 526;
on fishery question, 453;
intrigue with Charles, 459;
reveals to Charles De Witt’s negotiations, 471;
his policy, 474;
declares war against States-General, 488;
on striking, 518

Low Countries, 73, 77, 94;
fisheries of, 98;
fishermen of, 94, 100, 144.
_See also_ Dutch and Netherlands.

Lowestoft, 249, 307, 469

Lucas farthing, 470 n.

Lundy, Laird of, 188

Lushington, Dr, on territorial sea, 586 n.

Lynn, 49, 77 n., 90, 108, 247

Mackerel fishery, 134, 150

MacLeod, Sir Reginald, 667 n., 673 n.

Madrid, 150, 201, 253, 318

Mainwaring, Sir H., 65 n.

Malynes, Gerard, 128 n., 130 n., 138 n., 160;
on the appropriation of the sea, 358

Manning, on territorial sea, 600

Mansel, Sir Robert, 219 n.

_Mare Clausum_, 11, 19, 20, 251, 254, 257, 258 n., 286, 287, 288,
289, 302, 315 n., 330, 365, 369, 375.
_See_ Selden.

_Mare Liberum_, 255, 256 n., 257, 338, 340, 342, 374, 410.
_See_ Grotius.

Margaret of Savoy, 73

Marine laws, 51, 52, 54

Maritime laws, 41, 42, 44

Marlborough, Duke of, 486 n., 531

Marion, Professor A. F., 667 n.

Marten, Sir Henry, 155, 174, 244 n., 251, 263, 264, 278, 283, 288, 295

Martens, F., 194 n.

Martens, G. F. von, on territorial sea, 563

Martens, Professor de, on territorial sea, 686, 688

Martin, Martin, 241 n.

Martin, Sir Henry, 39, 119 n., 762

Mary, Queen, 64, 88, 91, 117, 141, 206

Mary, Queen, of Hungary and Bohemia, 80 and n.

Mary Stuart, Queen, 79, 81, 83

Mason, Capt. John, 153 n., 167 n., 216, 219 n., 220 n., 241, 364 n.;
grant of assize herrings to, 165, 166, 167 n.

Massé, on territorial sea, 602

Masson, Professor, 195 n.

Masterman, Captain Walter S., 711 n.

Masterman, Dr A. T., 735 n.

Maurice, Count, 173

Maximilian of Austria, 72

Meadows, Sir Philip, on sovereignty of sea, 397, 428 n., 510, 524, 694;
proposes a convention for fishery limits, 525

Mechlin, 71

Medina Sidonia, Duke of, 142

Mediterranean, 28, 30, 134, 143, 340, 347, 372, 389, 437, 457, 485;
striking in, _See_ Striking.

Meerman, Dutch ambassador, 483

Melrose, Earl of, 179 n.

Mendoza, 107

Merchant Adventurers, 160, 292

Merchant Associations to secure the peace of the sea, 6, 30

_Mercurius Politicus_, 410

_Merlin_, the King’s yacht, 15, 477-482, 510;
encounter with Dutch fleet, 479;
inquiry by Sir Leoline Jenkins on, 480

Mervin, Sir Henry, 284, 287, 296, 297, 300, 327

Mexico, Customs jurisdiction, 594;
pearl fisheries, 697;
treaties with, 679 and n.

Mid-line (_Thalweg_), 3, 101, 102, 111, 226, 361, 373, 541, 542, 652

Miles, Scots, 233 n.

Milton, John, 410, 428 n., 524

Minch, 230

_Mirror of Justice_ and mid-line, 542

Molloy, on sovereignty of sea, 514;
on striking, 557

Monk, Duke of Albemarle, 408;
on Dutch commerce, 457, 459

Monson, Sir William, 130 n., 132, 135, 143, 202, 204, 205, 206 n.,
208, 216, 219 n., 259

Montague, General. _See_ Earl of Sandwich.

Monteith, Earl of, 224, 225 n., 239 n.

Moore, on sovereignty of sea, 580 n.;
on territorial sea, 691 n.

Moray Firth, 233, 235, 239;
prohibition of trawling within, 718, 720;
foreign trawlers in, 647, 720-728;
Norwegian-registered trawlers in, 721, 727;
prosecution and conviction of foreign trawlers, 722, 723, 724, 727;
case of _Catalonia_, 722;
of Emmanuel Mortensen, 722, 724-727;
of Martin Olsen, 722;
of _Niobe_, 722, 724;
of _Pinewold_, 723;
of _Verbena_, 723;
High Court of Justiciary decides prohibition applies to foreigners,
722, 724-727;
protest by Norway, 727, 728;
Norway favours a convention, 728, 730;
and warns Norwegian trawlers to cease fishing in Moray Firth, 728;
actions against British subjects on foreign trawlers, 728, 729;
views of Foreign Office, 729, 730;
proposal of International Council, 737;
territoriality of, 723-728, 729, 732, 734;
opinions of Scottish judges as to territoriality of, 724-727

Moray Firth, herring fishery in, 61

Morocco, 5, 256, 668;
trawling at, 713

Morton, Earl of, 225 n., 239 n.

Moser, on territorial sea, 562

Muncke, Levinus, 155, 156 n.

Mundesley, 247

Murray, Captain David, 172, 195 n., 196

Muscovy Company, 160;
whale fishery of, 181, 182, 183, 184, 194 n.

Musselburgh, 175 n., 445

Nansen, Dr Fridtjof, Norwegian Minister, 673 n., 728

Nantes, 97

Narrow seas, the, 8, 18, 19, 26, 29, 30, 34, 36, 113, 212, 213,
214, 253, 256, 260, 261, 270, 274, 287, 324 n., 327, 328, 361,
363, 381, 408, 430, 458, 459 n.;
description of, 18;
herring fisheries in, 67;
hostilities prohibited in, 261, 262, 263;
prizes taken in, 359 n.;
striking in, 204-206, 270, 402.
_See_ Channel.

National Sea Fisheries Protection Association, 667 n., 706, 728 n., 740

Naval Salute. _See_ Striking.

Navare, Michel de, 49

Navigation, freedom of, 3, 5, 6, 8, 11, 20, 33, 34, 35, 43, 67, 86,
106, 158, 341, 346, 358, 360, 365, 421, 497, 676

Navigation Act of 1651, 391 and n., 392, 413, 416, 419;
of 1660, 441, 451, 464

Navy, 2, 5, 10, 11, 22, 26, 27, 31, 32, 34, 58, 68, 91, 92, 113, 117,
134, 246, 251, 252, 255, 257, 286, 288, 379, 428, 475, 517, 523;
under Charles I., 246;
under Edward III., 33, 36, 38;
under Henry IV., 68;
under Henry VI., 38;
complaint of Commons on, 38

Navy and fisheries, 428

Needham, Marchamont, 410, 411

Netherlands, 21, 74, 76, 78, 79, 81, 82, 93 n., 94, 105, 112, 125,
126, 127 n., 138, 144, 168, 185, 200, 203, 312, 380, 397;
prohibit their fishermen from fishing within two leagues of Scottish
coast, 605, 606;
territorial sea, 658.
_See_ Dutch.

Neutral waters, 22, 119, 120, 359 n., 548, 586, 622, 641 n., 665, 685,
775;
decrees regarding, 569-571;
limit of, 546;
proclamations and decisions regarding, 553, 554;
Scandinavian limit of, 568;
treaties regarding, 571, 572;
usage in seventeenth century, 552, 553, 554

Newcastle, 34 n., 96, 114, 248, 249, 252, 273 n., 428

Newfoundland, 86, 88, 92, 97, 113, 219, 589;
fishery rights at, 531, 532

Nicholas, Secretary of Admiralty, 44 n., 213, 262, 263, 275 n., 278,
292, 295, 318, 322

Nicholl, Sir John, on territorial sea, 586 n.

Nicolas, Sir N. H., 37, 45 n., 46 n., 53, 56

Nieuport, 60, 327, 400

Nieuport, William, Dutch ambassador, 395, 415, 417, 433

Nootka Sound, 573

Nordland, 108

Norfolk, 46 n., 63, 90, 94, 101, 162, 248

Norham, 60

Norman Conquest, 6, 27, 28, 29, 30, 31, 59, 372

Normandy, 29, 36, 43, 48, 50, 59, 62, 69, 74, 97, 103, 129, 213

Northampton, Earl of, 138, 353

North Cape, 58, 86, 478, 502, 503

North-east passage, 343

Northmen, sea power of, 26, 28

North Sea, 21, 22, 43, 246, 247, 382, 432, 434, 465, 466 n.;
fisheries, 43, 60, 87, 89, 130, 131, 133, 408, 470;
Conference at Hague on, 1881, 632;
Fishery Convention, 1882, 634, 637, 638, 639, 644, 721, 722,
725, 726, 735, 737;
defects in definitions, 641;
question of limit of exclusive fishing on other coasts, 643, 644,
645, 646;
Sweden and Norway decline to join, 636;
development of trawling in, 699, 700;
impoverishment of fishing-grounds in, 706-710, 711, 738, 739 n.

Northumberland, Earl of, 131, 243, 264, 266 n., 278, 279, 319, 320,
322, 323, 327, 379, 380, 388, 425, 426, 557;
appointed admiral of second ship-money fleet, 287;
instructions of Admiralty, 289, 290;
instructions from Charles, 295;
proceedings of fleet in Channel, 290, 291;
proceedings of fleet against Dutch fishermen, 295-300, 307-311;
forces licenses on Dutch fishermen, 12, 291, 296, 297, 298, 299,
300, 301, 308;
appointed admiral of the third ship-money fleet, 319;
appointed Lord High Admiral, 329

Norway, 34, 45, 169 n., 339, 527;
area of fishing-grounds, 738;
Customs jurisdiction, 594;
declines three-mile limit, 633, 678;
declines to adhere to North Sea Convention, 636, 783;
disputes with England as to fisheries, 108, 110;
fisheries, 92;
fisheries in Vestfjord, 672, 677;
fishery limit early fixed, 528;
special fishery limits, 671, 672, 678, 679;
foreign trawlers seized for illegal fishing, 680;
registered trawlers in Moray Firth, 721, 727, 728;
sovereignty of sea of, 4;
territorial sea, 653, 669-681, 685;
method of computing, 653, 655, 669, 670, 676, 678, 685;
respected by foreign fishermen, 677, 678

Norwegian Sea, sovereignty over, 4, 16

Nottingham, Earl of, 206, 353

Nova Zembla, 184

Okhotsk, Sea of, foreigners fishing in, 585

Oldenbarneveldt. _See_ Barneveldt.

Oldys, 127 n.

Oleron, Laws of. _See_ Laws.

_Onward Ho!_ case of, 657 n.

Oppenheim, on territorial sea, 688

Oquendo, Don Antonio de, 330-334

Orange, Prince of, 190, 197, 303, 306, 314, 315 n., 384, 387, 422,
430, 433, 434, 460, 462, 490, 491, 492, 503, 517

Orfordness, 49, 277, 553

Orkney, 88, 108, 126, 165, 169, 180, 201, 215, 221, 227, 230, 234, 406

Orkney, Earl of, 169 n.

Ormonde, Marquis of, 450

Ortolan, on territorial sea, 601

Orwell, 54

Ossory, Lord, 485, 486 n.

Ostend, 43, 309

Ouwers, Egidio, 273 n.

Overbury, Sir Thomas, 127 n.

Over-Yssel, 81

Owen, Captain, 382

Oxford, 358

Oyster fisheries, special treatment of, 657;
question of territoriality of Irish, 620, 621;
reserved for French, 612, 619, 620

Pacius, on Venetian dominion of sea, 351

Palatinate, 198, 199, 210, 253, 265, 271, 274, 275, 286, 302, 305,
306, 314, 315, 316, 331

Papal Bulls, 5, 105, 106, 107, 339, 342, 344, 372

Pardessus, 41, 42

Parliament, 67, 77 n., 116, 211, 214, 367, 409, 414, 443, 449, 457,
458, 475, 483, 492, 493, 503, 506, 532;
on safeguarding the sea, 34;
petitions for dues on navigation of Channel, 35;
on navy, 38

Parliament of Ireland, 33, 63

Parliament of Scotland, 82, 218, 220, 221, 222, 223, 224, 225

Parry, Sir Thomas, 155

Pauw, Adrian, Dutch ambassador, 405, 414

Pearl fisheries, 697;
Vattel on, 560

Pedrogue, John de, 45 n., 49, 50

Pembroke, Earl of, 227, 239 n., 240-244, 446

Pendennis Castle, 280

Penn, Sir William, 383, 408, 456

Pennington, Sir John, 208, 212, 244, 259, 261, 264, 274, 275 n.,
287, 290, 296, 297, 321, 322, 324, 327, 328, 379, 403;
instructions as to striking, 261-263, 276, 277;
suggestion as to neutral waters round a King’s ship, 262;
on striking, 277, 278, 279, 280, 283;
action at Battle of Downs, 329-335

Pepys, Samuel, 312 n., 513, 514;
on Fishery Society, 447 n., 448, 449;
on striking, 456;
on second Dutch war, 458, 459;
on state of navy, 517

Perels, on territorial sea, 652, 684, 688

Perkins, Sir Christopher, 146, 155

Perre, Van de, Dutch ambassador, 391, 415

Petersen, Gisbert, fishing license to, 460

Philip, Archduke of Austria, 72

Philip the Fair, 44

Philip II., 64, 81, 107, 141, 205, 425, 426, 544

Philip III., 350

Philip IV., 350

Phillimore, 312 n.;
on territorial sea, 682

Picardy, 29, 62, 74, 88, 103, 130

Picaroons, 273, 276

Pilchard, 134, 143, 227, 235, 447

Piracy, prevalence of, 4, 5, 7, 30, 43

Pirates, 68, 72 n., 78, 79, 82, 91, 247, 253, 254, 260, 269, 274,
284 n., 291, 292, 327, 339, 390, 421, 456, 471

Pistoye and Duverdy, on territorial sea, 602

Pitt, on fishery arrangements with France, 532

Pittenweem, 59, 175 n.

Plague, 299 n.

Plancius, 183

Plantagenets, 8, 11, 30, 43, 75, 209, 211, 213, 258, 368, 421

Plegher, 80

Plowden, on sea of England, 102, 111, 361, 543

Plumleigh, Captain, 208, 277, 280

Plymouth, 33, 117, 267, 268, 327

Poland, 61;
claim to Baltic, 4, 371, 377

Political Lent, the, 87, 88, 89, 112, 114

Pontalis, on fishery question, 453 n.

Pontanus, J. I., on Selden’s _Mare Clausum_, 376, 550

Pope, the, 28, 105, 106, 107, 212, 277 n., 339, 371

Popham, Col. Edward, 382

Porpoise, 88

Portland, 267

Portland Castle, 256, 279

Portland, Earl of, 239 n., 241, 253

Portsmouth, 114, 408

Portsmouth, Duchess of, 475

Portugal, 91, 268;
area of fishing-grounds, 738;
fishermen visit British coasts, 129;
and Irish coast, 98;
fishery treaty with, 67;
foreign trawlers at, 713;
claim to sovereignty of sea, 5, 86, 105-108, 112, 340, 343, 344, 350;
territorial sea, 569, 664, 668

Pradier-Fodéré, on territorial sea, 684, 688

Prerogative of crown, 236

Pribilov Islands, 695

Privateers, 462

Prize, law of, 359 n.

Prussia, 34, 216;
fishermen on British coasts, 605

Prynne, Keeper of the Records, 17, 25, 27 n., 39, 43, 44 n., 213,
326 n., 352 n., 367 and n.;
on the sovereignty of the sea, 493

Puffendorf, on territorial sea, 551

Quarantine Acts, 594

Rainsford, Richard, 64, 138, 141, 142, 145, 159

Raleigh, Sir Walter, 127 and n., 136, 204, 413

Raleigh tract. _See_ Keymer.

Ramsgate, 699

Range of guns, Grotius on, 349;
range of modern guns, 21;
range of gun limit, 549;
range of guns and salute, 473 n.;
range of vision, 175, 193, 544;
claimed by Denmark, 529;
Grotius on, 347;
old English law, 544;
prescribed by Philip II., 544
_See_ Land-kenning and Territorial sea.

Rapin, 167 n., 311 n.

Rayneval, on range of vision, 546;
on territorial sea, 596

Reddie, on territorial sea, 600

Reformation, 67;
influence of, on fisheries, 75, 87, 89, 92

Reprisals between Scots and Dutch, 77, 78, 79, 84;
between traders, 53, 54

Reserved waters. _See_ Scotland.

Restoration, the, 14, 441

Revocation, Act of, 226

Rhé, Isle de, 246, 290

Richard I., 32, 40, 41, 51, 52

Richard II., 33, 62, 363

Richard III., 63, 72 n.

Richelieu, Cardinal, 12, 210, 246, 261, 270, 271, 272, 273, 275,
276 n., 283, 291, 314, 526

Right of fishery. _See_ Fishery.

Right of search, 13, 330, 389, 393

Rio de la Plata, territoriality of, 663

Ripperda, Joachim, Dutch ambassador, 449

Rivalry in trade between English and Dutch, 10, 441, 457

Rochelle, 97, 267, 276 n., 290

Roe, Sir Thomas, 240, 276, 303, 306, 314, 315, 316 n., 323, 324

Roman law as to sea, 3, 344, 353, 356, 360, 539;
as to fishing, 66

Romans and sovereignty of sea, 26

Rool d’Oleron. _See_ Laws of Oleron.

Rose, Richard, 324 n.

Rosny, Sieur de, 204

Rostock, 195

Rotterdam, 79, 171, 327, 397 n., 511

Rouen, 61

Royal fishery, Pepys on, 447 n., 448

Roxburgh, Earl of, 225 n., 239 n.

Rupert, Prince, 382, 493

Russia, 29, 61, 110, 142, 158, 358;
Behring Sea question, 581, 582;
Company, _see_ Muscovy Company;
Customs limit, 656, 657 n.;
territorial sea, 656

Ruyter, Captain, 298 n., 304

Rye, 33, 54, 65, 145 n., 483

Ryley, William, Keeper of the Records, 409, 410 n.

Ryswick, 466 n.

Saen, Joris van der, 402, 404

St Andrews, 352

St George’s Channel, 142

St John, Lord Chief-Justice, 72;
proceeds to The Hague, 384;
negotiations with Dutch, 385-390;
his proposals for alliance and coalescence, 385;
_Intercursus Magnus_ taken as basis of treaty, 386, 387;
his seven articles, 387;
the Dutch thirty-six articles, 388;
abstract of, 764;
as to fishing, 388, 389;
Dutch proposals as to sovereignty of sea, 389;
for a joint fleet to police the seas, 389, 395;
Dutch withdraw proposal as to striking, 390;
failure of negotiations, 390;
leaves The Hague, 391

St Lo, Captain George, on fishery limit at Yarmouth, 546 n.

Safe-conducts for fishing, 7, 33, 74

Salisbury, Earl, 64, 130 n., 150, 151, 155, 159, 223, 227 n., 359 n., 360;
on 100-mile limit, 541

Salisbury, Marquis of, on territorial sea, 592, 731

Salisbury, Miss E., 45 n.

Salmon fishing, 26, 233, 234, 235

Salute. _See_ Striking.

Sandwich, 73;
Knut’s grant of, 542

Sandwich, Earl of, 438, 463, 472

Saracens, 5, 339

Sarpi, on territorial sea, 547

Savage, Viscount, 239 n.

Savoy, Duke of, 540

Scania, 34, 362 n.;
decline of herring fishery at, 61

Scarborough, 49, 89, 108, 142, 247, 250, 256, 273, 274, 322;
castle, 64

Scaw, three-mile limit at, varies, 640 n.

Schaep, Dutch ambassador, 391

Schelde, 28

Scheveningen, 460

Schiedam, 78, 79, 318, 397 n.

Schmalz, on territorial sea, 597

Scilly Isles, 269, 390, 398, 399

Scotland, 48, 49, 59, 88;
Draft Treaty of Union with England, 1604, 84, 192, 223, 227, 228,
230, 232, 694;
fish exported from, 61;
fisheries of, 93;
importance of, 76;
claim to, 76, 82;
exclusive spirit as to, 76;
policy towards, 82;
treaties regarding, 75-82;
foreigners at West Coast fishings, 83, 130;
jealousy of foreign fishermen, 77, 124;
fishing in bays and lochs prohibited, 202;
attacks on Dutch fishermen, 77;
complaints against Dutch fishermen, 144, 168, 177, 201, 234, 301;
complaints against French fishermen, 606, 617;
Dutch edicts _re_ fishing, 201;
old fishery limits, 226-229;
old limit against Dutch, 83, 84;
herring fishery in, 59, 61, 76, 79, 83, 143, 221 n.;
extra-territorial jurisdiction in, 698;
instructions of Privy Council _re_ assize herrings, 757;
fishery Acts, 76;
fishery scheme, 225, 227;
fishery society, 444;
fishing in lochs claimed, 218;
“land fishing” described, 222 and n.;
land-kenning, _see_ Land-kenning;
limits of territorial sea, 226, 227, 228, 229, 230;
limit of 14 miles in Draft Treaty of Union, 223;
limit of two leagues fixed by Dutch, 605, 606;
reserved waters, 77, 84, 209, 211, 218, 220, 222, 223, 226-230, 234,
236-238, 445, 547

Scotland, royal burghs, 76, 216, 217, 220, 221;
ask that the Dutch be removed within a land-kenning, 221;
and fishery society, 445;
oppose assize herrings, 166;
territoriality of firths, 692;
trawling restrictions on, 715, 716;
Fishery Board empowered to restrict, 717;
Bill to extend prohibition of, 720;
Act fixing thirteen-mile limit for, 720;
treaties with the Dutch, 188 n.

Scotland, Sea Fisheries Regulation Act, 1895, 592

Scott, Thomas, 284

Scott, Sir William. _See_ Stowell, Lord.

Scottish Seas, the, 226

Scudamore, Lord, 272

Sea, appropriation of, 537, 539;
in Middle Ages, 3;
reasons for, 5;
Roman law on, 539, 541;
opinions of Italian jurists, 101, 104;
opinions of modern jurists on, 552;
Bynkershoek, 555;
Callis, 363;
Lord Chief-Justice Coke on, 363;
Gentilis on, 358, 359;
Graswinckel on, 411, 412;
Loccenius, 550;
Puffendorf, 550;
Lord Salisbury on, 361;
Selden, 370-374;
Lord Stair, 545 n.;
Vattel, 560

Sea, exhaustibility of. _See_ Fisheries.

Sea, “High Seas,” 50, 54

Sea, insecurity of, 5, 6, 30, 53, 54, 57, 70, 247-257

Sea, measures for guarding, 31, 32, 33, 34

Sea, sovereignty of. _See_ Sovereignty.

Sea of England, 7, 8, 9, 11, 20, 31, 41, 101, 209;
extent of, 15, 16, 54, 55, 56;
seizure of ships in, by Grimbald, 49, 50;
sovereign lordship of, 43, 46, 51, 54, 55;
Callis on, 363;
Plowden on, 102;
terms applied to, 16, 17;
the “Two Seas,” 17;
the “Three Seas,” 17;
the “Four Seas,” 17, 18, 251

Sea, property in bed of, 362

Seaforth, Earl of, 216, 220, 221, 222 n.

Sealing, 695, 696

Seals, 88

Seas, British, extent of, 15, 16, 18, 19, 20, 26, 208, 264 and n.,
381, 418, 419, 429, 431-437, 459 n., 465, 466 and n., 469, 470,
477, 495, 505, 506 and n., 510, 515, 521;
Admiralty on, 437, 438;
reluctance of Admiralty to define, 20, 264 and n.;
boundaries intentionally left undefined, 20;
Dee on extent of, 101-103;
dispute as to extent of, 437;
Richard Cromwell on extent of, 438;
Thurloe on extent of, 434;
Trinity House on extent of, 20, 477, 478;
on striking in, 469, 470, 501-505;
claim to, gradually died out, 21

Sebastian, King, 107

Secretary for Scotland, 219, 227 n., 232

Seine, 26, 28

Seines, Bill to prohibit, within ten miles, 444 n.

Selden, 11, 17, 20, 25, 26, 31, 32, 33, 34, 39, 41, 43, 44, 45 n., 48,
49, 55, 56, 62, 64 n., 66, 119 n., 183, 186 n., 213, 251, 254,
258 n., 279, 286, 305, 352 n., 353, 363, 410 n., 456, 469, 546,
550, 551;
controversy with Graswinckel, 411, 412;
imprisonment and release of, 367;
requested by Charles to write _Mare Clausum_, 366;
on British seas, 19;
on English sovereignty of sea, 373, 374;
on exhaustibility of sea, 372;
_Mare Clausum_, 11, 20, 254, 258 n., 315 n., 330, 389, 425, 456,
502, 504, 509 n., 543;
history of, 365, 366;
publication of, 288, 367;
political importance of, 368, 369;
importance of, in English law, 369, 374;
satisfaction of Charles with, 368, 369;
arguments of, 369-374;
anxiety in Holland about, 374, 375;
translated, 410

Semeyns, Meynert, 242 n.

Servat, William, 50

Seven Stones Rocks, territoriality of, 642, 643

Shaftesbury, Earl of, 492;
on the Dutch, 506

Sheerness seized by Dutch, 459

Shetlands, 4, 76, 88, 89, 90 n., 108, 113, 126, 129, 131, 151, 165,
169, 180, 201, 215, 221, 227, 230, 234, 238, 241, 406, 443, 534

Shields, 84

Ship-money, 324, 329, 379

Ship-money fleet, first, 256, 259 n.;
object of, 260, 264, 265;
proceedings of, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274;
failure of, 274, 275.
_See_ Lindsey.
Second, 286;
its object, 287, 288;
opinion of Admiralty on convoying foreign vessels, 288, 289, 762;
on protecting foreign licensed fishermen, 288, 762;
proceedings of fleet, 290, 291, 295-301, 307-311;
failure to meet with French, 290;
instructions of Charles as to foreign fishermen, 295;
licenses distributed to Dutch herring busses, 298, 300, 308;
amount received as convoy and license-money, 309, 310, 311.
_See_ Northumberland.
Third, 319, 323.
Fourth, 327.

Ship-money writs, 36 n., 211, 253, 254, 286

Ships, impressment of, 32

Shookius, 550

Shovel, Sir Cloudesley, 520

Shrewsbury, Duke of, 520

Sicily, 29

Skagerrack, 438 and n.;
territoriality of, 636, 653

Sleeve, the, 260

Slingsby, Capt., 327

Sluys, battle of, 36, 37, 38

Smeerenburg, 194 n.

Smith, Captain John, 312 n., 494

Smith, Lieut. Thomas, dismissed for forcing French to strike, 521

Smith, Northumberland’s Secretary, 328, 331, 332

Smith, Simon, 242 n., 244 n., 442, 443 n., 448

Smyrna fleet, 485, 486, 487

Society of Fishing Merchants, 138, 159

Solebay, battle of, 489

Solinus, 25

Somerset, Earl of, 56 n.

Sommelsdijck, Lord of. _See_ Aerssen.

Sound, the sovereignty over, 4, 8, 16, 108;
toll levied at the, 4, 8, 35, 91, 108, 110, 154, 190, 339, 501

South America, territorial sea, 661

Southampton, 68, 73, 94

Southwold, 90 n., 534

“Sovereign of the Seas,” the, 28, 326

Sovereignty of the sea, among ancients, 371 n., 373

Sovereignty of sea, decadence of claim to, 15, 517, 522, 523, 566

Sovereignty of sea, juridical controversies about, 5, 410-413;
liberty of navigation, 8, 11, 33, 34, 54.
_See_ Navigation.

Sovereignty of the sea, meaning of, 2;
striking as a symbol of, 39

Sovereignty of sea, treatises on, 364 n.

Sovereignty of the sea, Barrère on, 595;
Blackstone, 580 n.;
Boroughs, 364-366;
Champagne, 595, 596;
Chitty, 580 n.;
Secretary Coke, 272;
Cromwell, 423, 424;
Dr Dee, 99, 103;
De Witt, 454, 468, 470;
Evelyn, 514;
English writers, 493, 494, 513;
Gentilis, 359;
Hall, 580 n.;
Hargrave, 580 n.;
Italian jurists, 6;
Jenkins, 484 n.;
Loccenius, 550;
Molloy, 514;
Moore, 580 n.;
naval historians on, 521;
Selden, 370-374;
Stubbe, 496-498;
Wicquefort, 495;
Baltic, 4, 33, 552;
Bothnian Gulf, 4

Sovereignty of sea, Denmark, 4, 8, 16, 33, 105, 108, 158, 339, 371,
376, 530, 552, 567;
contested by Elizabeth, 86;
England, origin of English claims, 6, 29, 30;
nature of, 8, 30;
defects of, 33;
early history of, 25;
under ancient Britons, 25, 26;
under Romans, 25, 365;
under Anglo-Saxons, 26;
under King Edgar, 27;
before Norman Conquest, 27;
after Norman Conquest, 29;
under Plantagenet Kings, 30, 40, 51, 52;
rolls concerning, 8, 43, 44, 45, 740, 744;
not claimed, by Tudors, 86, 111;
importance of claim under Stuarts, 9, 10, 118;
claimed as a prerogative of the crown, 211;
aimed against Dutch, 10, 125;
extravagant claims under Charles I., 209, 251, 264, 274;
under the Commonwealth, 378-382, 394, 395, 409, 412;
under Charles II., 441, 458, 487, 488;
decadence of claim, 15, 517, 522, 523;
of France, 287;
of Genoa, 4, 339, 341, 371;
of Norway, 4, 16, 530;
of Pisans, 371;
Poland, 4, 377;
Portugal, 5, 105-108, 112, 338, 339, 341, 371, 552;
Spain, 5, 105-108, 112, 118, 158, 330, 339, 341, 371, 552;
Sweden, 4, 350, 552;
Tuscans, 371;
Venice, 3, 4, 8, 16, 33, 338, 339, 341, 350, 351, 351 n., 371, 552, 566

Sowe. _See_ Zowe.

Spain, 20, 30, 33, 45, 57, 87, 91, 95, 107, 189, 198, 199, 203,
205, 212, 245, 247, 253, 255, 264, 266, 268, 275, 286, 304, 493;
claim to sovereignty of sea, 5, 86, 105-108, 112, 118, 188, 339;
fisheries, 92;
area of fishing-grounds, 738;
foreign trawlers at, 713;
fishermen of, on British coasts, 67, 129, 150;
peace with England, 125, 358;
war with United Provinces, 9, 119, 139, 148, 201, 243 n., 251;
territorial sea, 644-668;
limits of, 569, 664;
Customs limit, 594;
disputes with Great Britain and United States as to territorial
sea, 664, 665

Spaniards forced to strike, 117, 206

Spanish Netherlands, 266, 272, 275

Spanish whalers at Spitzbergen, 182, 183 n.

Spelman, 27

Spitzbergen, 4;
whaling at, 112, 164, 181, 182-185, 193, 194, 194 n., 198, 199,
200, 527.
_See also_ Greenland.

Spragge, Sir Edward, 485, 489

Sprat fishery, 133

Stair, Lord, on territorial limit, 545 n.

Star Chamber, 243

Start, the, 260

State merchant, 136

States-General of the United Provinces, 84, 178, 186, 190, 192, 258,
292, 343, 351, 415, 481;
conclude treaty with James VI., 81;
conclude peace with Spain, 148;
consider James’s proclamation on unlicensed fishing, 148, 150;
decide to maintain freedom of fishing on British coast, 151;
send embassy to James about, 155;
arguments used, 155, 159;
proclamation suspended, 159;
apologise for the capture of Brown, 173;
send the Captain responsible to London, 174;
publish an edict forbidding their fishermen to interfere with
Scottish fishermen, 179:
negotiations with James, 189;
disputes as to whale fishing at Spitzbergen, 181-185;
send another embassy to London, 185;
no instructions as to fishery question, 188, 189;
order their fishermen to keep out of sight of shore, 193;
send another embassy to James, 199;
again without instructions as to fishery question, 199, 200;
renew their edicts and order their fishermen not to go too near
Scottish coast, 201;
proceedings regarding licenses of Charles I., 301, 302, 303, 304,
305, 312, 313, 314, 315;
instructions to Evertsen as to striking, 399;
to Tromp, 399, 402 n., 405;
send Van Dorp to protect the busses from Northumberland, 300;
order Van Dorp to prevent acceptance of licenses, 312, 313;
send Aerssen van Sommelsdijck as ambassador, 336;
on Selden’s ‘Mare Clausum,’ 375;
resolve to increase their fleet, 393;
and question of striking, 390, 392;
attitude to the Parliament, 381;
send ambassador to London, 384;
negotiations with St John, 384-391;
another embassy to London, 391;
consider and postpone question of striking, 392, 399;
resolve to strengthen their fleet, 393;
negotiations interrupted by Tromp’s encounter with Blake, 397;
disown Tromp’s action, 405;
instruct him to strike, 405;
send the Grand Pensionary to London, 405;
recall ambassador and prepare for war, 405, 406;
send four deputies to the Parliament, 415;
negotiations for peace, 414-435;
peace concluded, 435

States-General and Charles II., action on fishery Bill, 449, 450, 451;
embargo on fisheries, 460, 462;
propose freedom of fishing during war, 461, 462;
differences with France as to, 463;
decision as to striking, 469, 481;
orders to their men-of-war on striking, 473;
drawn into dispute about striking, 482;
yield as to striking, 483, 484;
sue for peace, 490;
terms offered, 490;
reject terms, 491;
negotiations for peace, 498-506;
peace concluded, 508

States-General. _See_ Dutch, Netherlands, United Provinces.

States of Holland, 151, 155, 190, 303, 375, 384, 398, 407, 414

Stebbing, 127 n.

Stephens, Violet, 139

Stewart, Lord Robert, 169 n.

Stirling, Viscount, 239 n.

Stornoway, 216, 242

Stowell, Lord, decisions respecting territorial limit, 577, 578,
641 n., 681, 682;
on three-mile limit, 641 n.

Straddling, Captain, 207 n., 282, 327

Straits of Dover. _See_ Dover.

Strange, Lady, 283

Stratherne, Earl of, 239 n.

Strauchius, 550

Strickland, Walter, 384, 392, 429

Striking as an acknowledgment of maritime sovereignty, 3, 210;
origin of, 7, 42, 207;
first instance of, 43;
John’s ordinance on, 39-43;
under Tudors, 116;
under Henry VIII., 116;
opposed by French, 117;
under Elizabeth, 117, 204;
under James I., 204-208

Striking under Charles I., 11, 12, 210, 212;
becomes very prominent, 276;
arrogance of English officers regarding, 280, 281, 282;
under Commonwealth, 378, 380, 381;
under Charles II., 496;
James II. and after, 552;
decay of claim to, 327, 518, 519, 522;
abandoned after Trafalgar, 15, 523;
Admiralty instructions concerning, 260, 261, 277, 278, 380-383, 456,
469, 523 n.

Striking, rules and customs of, 206-208, 277, 278, 398, 463, 464, 466,
469-472, 481;
not well understood, 277, 456, 466, 469, 470, 478, 479

Striking at foreign ports and coasts, 278, 279, 280, 281, 282, 327,
381, 473, 477, 557;
before forts, 256, 279, 280, 472;
in British seas, 502, 503;
in Mediterranean, 327, 413, 456, 468, 473, 488;
in narrow seas, 206, 207 n., 208, 277, 402

Striking by merchant vessels, 206, 207, 282, 513;
British, 260, 275, 283, 284, 285, 519;
foreign, 207, 275, 513

Striking by Danes, 266, 282;
claim to, by Danes, 473, 520;
by Dunkirkers, 275, 282, 327

Striking by Dutch, 12, 13, 117, 204, 205, 208, 267, 269, 270, 276,
277, 279, 280, 281, 300, 327, 328, 330, 334, 383, 390, 392,
397, 398, 400-403, 437, 438, 449, 452, 455-457, 466-469, 472,
473, 477-481, 485, 486, 490, 491 n., 495, 501, 510-513, 520;
States-General consider question, 390, 392, 397;
De Witt’s proposals regarding, 467, 468, 469, 470;
on striking to a frigate or ketch, 468-470;
question of whole fleet to single ship, 477, 478, 479, 482;
terms offered Dutch, 490, 491 n.;
offer to strike in all seas, 432, 505, 506, 510;
by Dutch to French, 276 and n.;
by English to Dutch, 512

Striking by French, 117, 204, 212, 267, 270 and n., 271, 272, 275,
276, 279, 280, 283, 291, 313, 327, 332, 333, 471, 477, 488, 512,
513, 518, 520, 521;
French demand salute from English vessels, 212;
force English merchant vessels to strike, 268, 277, 283, 327;
by Hamburgers, 117;
by Spaniards, 205, 327, 330, 477;
by English to Spaniards, 512;
by Swedes, 382, 455, 456 n., 520

Striking, Bynkershoek on, 556;
Jenkins on, 480, 481;
jurists on, 557;
Molloy on, 515;
Wicquefort on, 495;
Duke of York on, 469

Striking, treaties regarding, 382, 455, 508, 517, 522-572 n.

Striking, arrangement between Charles and Louis, 488

Striking, arrangement between France and the United Provinces proposed, 452

Striking, differences between French and Dutch as to, 452, 463

Striking, French edicts on, 513

Striking, Richelieu’s proposals, 271, 272

Striking, Tromp’s memorandum on, 398, 770

Stuarts, the, 9, 57, 65, 118, 378

Stubbe, Henry, on sovereignty of sea, 496, 497, 498

Sturgeon, 66, 88, 363

Stypmannus, 550

Suffolk, 63, 94, 101, 248, 462

Suffolk, Earl of, 227

Sully, Duke of, 204

Sunderland, 249

Sweden, 60, 62, 142, 158, 358, 474, 490, 498;
asks for and obtains liberty of fishing in British seas, 427;
claim to sovereignty of sea, 4, 350, 377;
and striking, 208, 382;
territorial sea, 653, 664, 669, 674, 675;
method of computing, 669;
Customs limit, 594;
declines to adhere to North Sea Convention, 636

_Taurus_, case of, 640

Taxation of foreign fishermen, 203

Teind fish, 195, 196

Temple, Lady, 478, 479, 480

Temple, Sir William, 470, 481;
on striking, 467, 468;
concludes Triple Alliance, 474;
recalled from The Hague, 476;
negotiates peace, 508;
on the article regarding striking, 509, 510

Territorial sea, agreements between Great Britain and Germany, 634, 652;
Anglo-Danish Convention concerning Iceland and Faroes, 647, 648;
boundaries begin to be fixed, 554, 573;
by treaty, 526, 565;
Gulf Stream as a boundary, 575, 650;
British Foreign Office on, 665, 667 and n., 730, 731, 732, 738;
wishes territorial waters in North Sea to remain undefined, 632,
633, 634;
Parliamentary Committee recommend extension of, 707 and n.

Territorial sea, bays, and gulfs, 77, 348, 544, 545, 547, 548, 552,
574, 575, 581, 585, 589, 598, 599, 601-603, 610, 614, 619 n.,
622-630, 632-634, 639, 649, 652, 666, 668, 670, 678, 718, 723,
725, 726, 730;
of Bengal, 625;
Biscay, 564, 625;
Bothnia, Gulf of, 564;
Cancale, _see_ Granville;
Chaleurs, 623, 624, 628, 629, 630, 692;
Conception, 588, 589;
Delaware, 574, 599, 629;
Fundy, 623-625;
Granville, 612, 619, 692;
Hudson’s, 561;
of Argentina, 661;
Norway, 670, 672, 674, 677;
Scotland, firths, 222, 223, 230, 233, 239, 545, 622, 692;
Moray Firth, 721.
_See also_ Fisheries and King’s Chambers.

Territorial sea, British Foreign Office on, 629, 730, 731 and n., 732, 733;
delimitation of North American, 622, 627-630;
French Government on, 632;
Hague Tribunal on, 732;
Institut de Droit International on, 691, 775;
International Law Association on, 691, 775;
_inter fauces terræ_, 544, 547;
measurement of, 639;
old English law regarding, 547;
omitted in Territorial Waters Jurisdiction Act, 593;
principles regarding, 548;
six-mile line for, 627, 629, 630, 632, 730, 731;
treaty stipulation in 1521, 548;
usage regarding, 547, 548

Territorial sea, closed seas, 339, 564, 572, 582, 584, 585, 598, 657;
straits, 547, 561, 564, 586, 692, 776

Territorial sea, Dano-Swedish limit in Baltic, 655;
decisions of law courts as to extent of, 585-592;
definitions in Acts, 589, 591, 718;
in Territorial Waters Jurisdiction Act, 591, 592

Territorial sea, not absolutely defined by any State, 651, 652, 657, 660

Territorial sea, not defined by Great Britain, 593

Territorial sea, discussion between Spain, Great Britain, and United
States, 665

Territorial sea, discussion as to limit in North Sea, 632, 633, 634

Territorial sea, distinction between limit under international law and
in treaties, 644;
between exclusive fishery limit and territorial limit, 644, 660;
distinction between “coasts” and “bays,” 622;
meaning of “coasts,” 641 n.

Territorial sea, historical evolution of, 537

Territorial sea, in peace and war, 636, 651, 665

Territorial sea, in relation to fisheries, 693;
for “floating” fish, 698;
for coral, 684, 695, 697;
oysters, 611, 612, 619, 620, 621, 697;
pearls, 560, 697;
seals, 662, 663, 695, 696;
whales, 674, 695, 696;
exclusive fishery limit, 639;
on British and Irish coasts, 646, 647;
outside the North Sea, 643, 644, 645, 646;
extra-territorial regulations, 657, 661, 662, 663, 695, 699, 704,
707, 708, 716, 720, 725, 726, 727;
international regulations, 733, 734, 735;
trawling, 698, 707, 735;
jurisdiction for Customs, 593-595, 609, 665, 676, 679 n.;
for public health and slave-ships, 593-595;
under common law of England, 546;
over foreigners, 589, 590, 591;
navigation in, 78, 676

Territorial sea, need of distinguishing different rights in, 690;
neutral waters, decrees respecting, 569-570;
proposed limit for, 690, 775

Territorial sea, possession of opposite shores, 35, 43;
principle of thalweg or mid-line, 541-544

Territorial sea, proposals of International Law Association, 690-692, 774;
question of banks and flats, 633, 634, 635, 639, 640 and n., 641 n.;
of consistency of soil, 641 n.;
of depth, 562;
of islands, 618, 634, 639, 641 n.;
of rocks and islets, 641-643, 649;
of tide-marks, 579, 641, 652, 659, 661, 666, 669 and n.;
of true boundary of, 539;
Scottish firths, 692;
statutes referring to, 589-594

Territorial sea, usage in seventeenth century, 552;
in eighteenth, 566;
modern, 650

Territorial sea, modern usage, Algeria, 657;
Argentine Republic, wide claim by, 661, 662, 663;
in Rio de la Plata, 663;
Austria-Hungary, 572, 658;
in Behring Sea, 585, 695 and n., 696;
Belgium, 658;
Chili, 661;
Cuba, 665;
Denmark, 528, 529, 530, 538, 567, 568, 653, 655, 664;
in Cattegat, 653;
Iceland and Faroes, 647, 648;
Skagerrack, 636, 653;
France, 657;
Germany, 652;
Great Britain, origin of, 538;
in Bristol Channel, 586-588;
at Bell Rock, 642;
at Eddystone, 641, 642, 643;
at Seven Stones Rocks, 642, 643;
British colonies, 661;
British N. America, 531;
Greece, 661;
Italy, 659;
Japan, 661;
Netherlands, 658;
in Zuiderzee, 635, 636;
Norway, 457, 528, 538, 568, 653, 664, 669-681, 685;
method of measuring, 669, 670, 685;
rejects three-mile limit, 633, 636, 678, 681;
reasons for wide limit, 676, 677;
in Varangerfjord, 674;
in Vestfjord, Lofotens, 672-674, 677;
special limits in, 671, 672, 678, 679;
Portugal, 538, 569, 664, 668;
Russia, 656;
White Sea, 564, 657;
Scandinavian limit, 528, 567 and n., 653, 655;
Spain, 538, 569, 664-668;
South America, 661;
Sweden, 538, 653, 664, 669, 674, 675;
method of computing in, 669;
United States, 661;
various limits claimed by, 575;
Uruguay, 663;
Venice, 571

Territorial sea, opinions of publicists in first part eighteenth
century on, 565, 566;
of recent publicists, 603, 605, 681, 688, 689

Territorial sea, opinions of Abreu y Bertodano, 559;
Aschehoug, 686, 688;
Auber, 691;
Azuni, 564, 565;
on Bays, 565;
Bishop, 683, 689;
Bluntschli, 682, 688;
Bodin, 540;
Burgus, 550;
Bynkershoek, 555, 556;
on range of vision, 546;
Calvo, 682, 688;
Casaregi, 558;
Lord Chelmsford, 586;
Chitty, 597;
Conringius, 550;
Baron de Courcel, 664 n.;
Craig, 357;
Dana, 683, 689;
Desjardins, 685, 688;
Lord Dunedin, 724;
Ferguson, 684, 689;
Fiore, 684, 689;
Lord Fitzmaurice, 630, 730, 731;
Galiani, 563;
Gentilis, 540;
Graswinckel, 550;
Sir Edward Grey, 732;
Grotius, 549;
on range of vision, 545;
Lord Guthrie, 723;
Chief-Justice Hale, 543;
Hall, 687, 689;
Halleck, 683, 689;
Lord Halsbury, 592;
Lord Hatherly, 586 n.;
Hautefeuille, 601, 688;
Heffter, 600, 689;
Lord Herschell, 692 n.;
Holland, 691;
Hübner, 562;
Kent, 599, 689;
Kleen, 685;
Klüber, 597, 688;
Lord Kyllachy, 725;
Lampredi, 563;
Latour, 595, 685;
Lawrence, 683, 688;
Leoni Levi, 664 n.;
Loccenius, 550;
Lord Loreburn, 732;
Lushington, 586 n.;
Manning, 600, 689;
Massé, 602, 688;
de Martens, 686, 688;
G. F. von Martens, 563;
on bays, 564;
on straits, 564;
Moore, 691 n.;
Moser, 562;
Sir John Nicholl, 586;
Oppenheim, 688;
Ortolan, 600, 688;
Perels, 684, 688;
Phillimore, 682, 688, 689;
Pistoye and Duverdy, 602, 688;
Pontanus, 550;
Pradier-Fodéré, 684, 688;
Puffendorf, 550;
on bays and gulfs, 551;
Rayneval, 596;
Reddie, 600;
Lord Salisbury, 592;
Sarpi, 547;
Schmalz, 597, 688;
Shookius, 550;
Lord Stowell, 641 n.;
Strauchius, 550;
Sir Travers Twiss, 683, 689, 691 n.;
Valin, 562;
Vattel, 560, 689;
on bays, 561;
on straits, 561;
Lord Wensleydale, 586 n.;
Westlake, 691 n.;
Wheaton, 598, 689;
Wolff, 559, 689;
Woolsey, 683, 689;
opinions of early English lawyers, 539;
of early Italian jurists, 539;
of Institut de Droit International, 689-692, 774;
of International Law Association, 689-692, 774;
of judges in _Franconia_ case, 590

Territorial Sea. Various limits proposed or adopted for different purposes:
_Three-mile limit_, proposed by Galiani, 563;
by Azuni, 565;
introduced for neutrality by United States, 573, 574;
introduced into English jurisprudence, 576, 577;
originated in neutral rights, 694;
applied to fisheries, 581;
confusion of, with range of guns, 591 and n., 598, 682, 683, 689;
not equivalent to range of guns, 21, 576;
discussion on, 650-652;
generally adopted through influence of the United States and Great
Britain, 21, 681;
an Anglo-American doctrine, 681, 684;
not generally accepted by publicists, 580, 680, 681, 688, 775;
common adoption of, 21, 650;
in some international fishery conventions, 581, 612, 614, 617, 619,
621, 634, 635, 647, 649, 652;
generally for fisheries, 616, 647, 663, 680;
inadequacy of, 21, 604, 615, 617, 651, 679, 682, 683, 686, 687,
690, 693, 694, 707 and n.;
in relation to next great maritime war, 22;
British Government on, 730, 732;
refuses to recognise jurisdiction beyond three miles, 663, 667 and
n., 738;
wishes three-mile limit extended in war, 665;
rejected by four European States, 664;
refused by Norway, 633, 636, 678, 681;
complex on Norwegian coast, 672, 676
_Four-mile limit_, 653;
_five miles_, 575, 665, 691, 698, 715;
_six miles_, 559, 563, 565, 566, 575, 582, 605, 606, 664, 665, 690,
691, 694, 775;
adopted by International Law Association for Fisheries, 690, 775;
limit for Dutch on Scottish coast, 605, 606;
_eight miles_, 665, 694;
_nine miles_, 563, 564 n., 608 and n., 611, 618, 679, 679 n., 691,
698, 737;
on French coast, 608 n., 609;
recommended by English trawlers for North Sea, 702;
_ten miles_, 665, 668, 687, 694, 696, 698, 707, 737;
in Argentina, 661;
recommended for North Sea by English trawlers, 702;
_twelve miles_, 575, 593, 594, 662, 665, 668, 715;
_thirteen miles_, 703, 720, 738;
for fishery on Scottish coast, 720;
_fourteen miles_, 77, 84, 192, 193, 545, 694;
_twenty-eight miles_, 77, 84, 545;
_thirty miles_, 572, 696;
_forty miles_, 178, 585;
_sixty miles_, 3, 540, 696;
_eighty miles_, 79, 355;
_100 miles_, 3, 169, 353, 360, 373, 539, 541, 559;
claimed by Russia in Behring Sea, 582
_Range of guns_, 21, 349, 549, 552, 593, 646, 658, 660, 676, 681,
685-687, 690, 716;
first proposed by Dutch ambassadors, 156, 549;
Bynkershoek’s dictum on, 556;
merits of, 558;
fixed in treaties and decrees, 570-572;
generally adopted, 576;
incorporated in international law, 558;
generally accepted by publicists, 688;
the true principle of delimitation, 595, 602, 603;
and neutral rights, 557, 559, 571, 572;
and salute, 556, 557;
as “zone of respect,” 690, 775
_Range of vision_, 175, 193, 347, 544-546, 571, 574, 596, 602, 694;
defects of, 546;
adhered to by Dutch, 546;
claimed by Denmark, 529, 545;
proposed by some modern publicists, 546, 565, 600 (_see_ Land-kenning);
subsistence limit of Sarpi, 547

Territorial waters. _See_ Territorial sea.

Territorial Waters Jurisdiction Act, 580 n., 590, 591, 592, 717, 718, 731

Teutonic invaders, seafaring habits of, 26

Texel, 18, 409; battle of, 498

Thalweg. _See_ Mid-line.

Thames, 49, 60, 76, 131, 133, 219, 443, 444, 459, 462, 472, 476

Thanet, 49, 68

Thorpe, 27, 28

Three-mile limit. _See_ Territorial sea.

Three seas, 17

Thurloe, 432, 434, 436, 497, 498 n.

Tithes of fish. _See_ Fish.

Tlieff, Captain Andrees, 171, 174, 175

Top-sails, lowering of. _See_ Striking.

Tordesillas, treaty of, 5, 106

Traders, hostilities between, 53, 54

Trafalgar, 15

Trawling. _See_ Fisheries.

Treaties, England and Burgundy, 1405, 1408, 69;
1417, 70;
1439, 70;
1467, 71;
1478, 72;
1496 (_Intercursus Magnus_), 72;
1499, 73;
1506, 73;
1515, 73;
1520, 73;
and Castile, 1351, 67;
and Denmark, 1468, 110;
1490, 109;
1523, 109;
1583, 110;
and Flanders, 1320, 55;
and France, 1303, 44-46, 49;
1403, 67;
1471, 72;
1528, 75;
and Portugal, 1353, 67;
1439, 70;
and United Provinces, 1585, 433;
Scotland and the Emperor, 1541, 78;
1550, 79, 179;
Scotland and the Netherlands, 1291, 1321, 1323, 1371, 1401, 1407,
1412, 1416, 76;
1531, 1541, 188 n.;
and United Provinces, 1594, 81, 157, 169, 173, 188 n., 257, 388;
Great Britain and Belgium, 1852, 617, 645;
1882, 637;
and Denmark, 1882, 637;
1901, 647, 740;
and France, 1686, 526, 622;
1786, 572;
1839, 612;
1867, 619;
1882, 637;
and Germany, 1882, 637;
and Mexico, 1888, 679 n.;
and the Netherlands, 1625, 433;
1654, 435, 436, 455;
1662, 455;
1674, 508;
1689, 517;
1784, 522;
1882, 637;
and Russia, 1825, 583;
and Spain, 1630, 425;
1790, 573;
and Sweden, 427;
and United States, 1783, 622;
1794, 574, 622;
1814, 581;
1818, 581, 627;
1854, 625;
1871, 627;
1888, 628;
Denmark and Sweden, 1780, 572 n.;
1899, 655, 675;
France and Algeria, 1689, 527, 573;
Burgundy, 1468, 71;
the Emperor, 1521, 74, 119;
Russia, 1787, 572;
and United Provinces, 1635, 276;
1662, 453;
Norway and Mexico, 1886, 594, 679;
Porte and Naples, 1740, 546;
Russia, Denmark, and Sweden, 1780, 572 n.;
and the two Sicilies, 1787, 572;
and the United Provinces and Prussia, 1781, 572 n.;
Spain and Morocco, 1861, 668;
and Portugal, 1494, 106;
1878, 1885, 1893, 665, 666;
and Tripoli, 1784, 572;
and the United Provinces, 1609, 148, 344, 350 n.;
United States and Morocco, 1785, 572;
and Russia, 1824, 583

Treaties concerning fishery, British North America, 526, 531, 532,
574, 622, 625, 627, 628

Treaties guaranteeing liberty of fishing on English coasts, 66-74

Treaty of Antwerp, 148, 344, 350 n.;
of Breda, 464, 465;
of Dover, 475;
of Ryswick, 466 n.;
of Southampton, 388;
of Tordesillas, 5, 106;
of Troyes, 8, 35;
of Union, England and Scotland, 1604, 192, 545;
of Utrecht, 531

Treport, 65, 426

Trinity House, 114, 120, 447;
on limits of King’s Chambers, 9, 753;
on extent of British Seas, 20, 465 n., 477, 478;
on jurisdiction of Cinque Ports in Channel, 544;
on striking, 477

Triple Alliance, 467, 471, 474, 476, 481, 483, 490

Tromp, Lieut.-Admiral Martin Harpentz, 329, 390, 395, 408, 411 n.,
415, 422, 436, 477, 511;
attacks Oquendo in the Straits of Dover, 330;
in the Downs, 245, 331;
strikes to English, 330, 334;
his letter to Pennington, 334;
commands Dutch fleet, 329;
puts to sea to prevent search of Dutch vessels, 397;
no instructions as to striking, 397, 399;
his memorandum on striking, 398, 770;
reluctance to strike, 400, 401, 403, 404;
encounter with Blake, 12, 207 n., 397, 403, 404, 421;
correspondence with Blake, 404 n., 771;
story of broom, 408, 409

Tudors, 85, 86, 87, 118

Tunny fishery, 142, 504

Tweedmouth, Lord, 691, 720

_Twee Gebroeders_, case of, 576, 577, 641 n.

Twiss, Sir Travers, 39, 40, 41, 42, 52 n., 53, 312 n., 689, 691 n.

Two seas, 17

Tynemouth, 214

Tyrrhenian Sea, sovereignty of, 371

United Provinces, 9, 12-14, 81, 119, 125, 126 n., 151, 157, 170,
179, 187, 191, 197, 198, 201, 243 n., 246, 251, 253, 257,
264, 265, 275, 288, 301, 302, 304, 340, 342, 364, 384, 399,
405, 416, 441, 454, 460, 470, 474, 517, 527-529.
_See_ States-General, Dutch, Netherlands.

United States of America, disputes and negotiations regarding British
North American fisheries, 532, 581, 621-630, 731 and n.;
regarding Behring Sea, 541, 583, 584, 695 n.;
territorial sea, 599, 661;
fixes three miles for neutrality, 21, 93, 573, 574;
various limits claimed, 574, 575, 650;
influence of, in adoption of three-mile limit, 650

Uruguay, territorial sea, 663

Ushant, 103, 290, 399, 437

Utrecht, 81; treaty of, 531, 582

Vagabonds, 98

Valck, Jacob, 81

Valin, on territorial sea, 562

Vane, Sir Henry, 269, 414, 422 n., 439

Varangerfjord, 674, 695

Vardö, or Vardöhuus, 86, 97 n., 108, 109, 110

Vasquez. _See_ Vasquius.

Vasquius, Ferdinand, on dominion of sea, 341, 351, 353

Vattel, on territorial sea, 560;
on appropriation of fisheries, 561

Venice, 30, 91, 186 n., 191;
sea sovereignty of, 3, 4 and n., 16, 33, 54, 107, 158, 339, 341,
350, 351, 361, 371, 540, 547, 552;
limit of territorial sea, 571

Vestfjord, 672, 677

Vic, M. de, Vice-Admiral of France, 204

Violation of ports, 247, 249, 250

Virginia, 388

Visit and search and gun range, 557

Visitation of English ships, 268

Wagenaar, 80, 167 n., 311 n.

Walderswick, 90 n.

Walker, Sir Richard, 280

Walmer Castle, 279

Warbeck, Perkin, 72, 387

Wardhouse. _See_ Vardö.

Warwick, Earl of, 206 n, 276, 379, 380

Wash, the, 18

Washington, George, 573, 681

Wells, 90

Welwood, William, 342 n., 343, 371, 546, 551;
on appropriation of the sea, 353;
dominion of the sea, 354;
exhaustibility of sea, 355;
on Grotius, 352;
on limit for Dutch on Scottish coast, 79, 84;
sea laws of Scotland, 352;
attack on, by Graswinckel, 412

Wensleydale, Lord, on territorial sea, 586 n.

Wentworth, Viscount, 227 n.

West Friesland, 453

Westlake, Professor, on territorial sea, 691 n.

Westmoney Islands, 109, 247

Weston, Lord, 227, 239 n., 241, 281

Weymouth, 268

Whale-fishing, 187, 189;
in Behring Sea, 585;
at Greenland, 407, 527-530;
at Jan Mayen, 527;
at Spitzbergen, 112, 164, 181-184, 193, 194 n., 200, 527;
in Varangerfjord, 674;
regulations, 695

Whales, right to, 66, 363

Wharton, 312 n.

Wheaton, on territorial sea, 598

Whestone, Admiral, 520

Whitby, 462

Whitelock, 414

White Sea, sealing at, 695;
territoriality of, 657;
trawling at, 680

Whitstable Fishery, case of, 586 n.

Wicklow, 63

Wicquefort, on sovereignty of sea, 495

Wilkins, 27

Willes, John, 43

William of Malmesbury, 27

William III. and sovereignty of sea, 517-520

William the Lion, King, 59

Williamson, Sir Joseph, plenipotentiary at Cologne, 496, 497, 498, 511

Willoughby, 181, 183

Wilson, Thomas, 163 n.

Wimbledon, Viscount, 227 n.

Winchelsea, 37, 49, 50, 73

Windebank, 243, 250, 253, 263, 267, 287, 295, 302, 319, 320, 322, 323

Winwood, Sir Ralph, 130 n., 152, 162, 168, 172

Wolff, on territorial sea, 559

Wolseley, Sir Charles, 429

Wolsey, Cardinal, 74, 119, 548

Woolsey, on territorial sea, 683

Worcester, 27

Worcester, Earl of, 56 n.

Worsley, Dr Benjamin, 515

Wotton, 162

Wreck, right to, 66, 362, 363, 542

Yarmouth, 34 n., 46 n., 49, 58, 60, 62, 73, 90, 96, 97 n., 100, 108,
126, 129, 130 n., 131, 133, 134, 143-145, 151, 162, 214, 247, 248,
249, 295, 307, 308, 391 n., 438, 455, 461, 462, 463, 515, 546

York, Duke of, 446, 448, 456, 457, 458, 469, 472, 485, 493, 516

Yorkshire, 133

Young, Captain, 207 n., 401, 402

Ypres, 71

Zealand, 45, 60, 62, 64, 71, 72, 73, 74 n., 75, 81, 88, 92, 94, 95, 125, 195

Zierikzee, 45 n.

Zorgdrager, 194 n.

Zouch, 515

Zowe, fishing-bank, 65 and n., 189 n., 276 n., 426 n., 440, 544, 749

Zuiderzee, territoriality of, 635

THE END.

PRINTED BY WILLIAM BLACKWOOD AND SONS.

FOOTNOTES:

[1] The possession by Venice of this maritime sovereignty was
symbolised each year for many centuries by the picturesque ceremony of
“espousing” the Adriatic. On Ascension Day the Doge was rowed to the
strains of music in a magnificent gilded state barge, the _Bucentaur_,
to the channel of Lido, where he cast a ring into the water, exclaiming
as he did so, “We espouse thee, O Sea, in sign of a real and perpetual
dominion” (“Desponsamus te mare in signum veri perpetuique dominii”).
The Papal nuncio and representatives of other states assisted at the
ceremony.

[2] Twiss, _The Law of Nations in Time of War_, 142. Maine,
_International Law_, 76.

[3] Twiss, _op. cit._, 143, 144. Reddie, _Maritime International Law_,
i. 41.

[4] Nicolas, _Hist. Navy_, i. 157.

[5] “Il sera banny hors dAngleterre et de mer appartenant au roi
dAngleterre,” Article in _Black Book_, i. 58, ascribed to the reign
of Henry I. (A.D. 1100-1135); “Ad piscandum in mari nostro, prope
Jernemuth,” Edward I., A.D. 1295, _Fœdera_, ii. 688; “la meer
Dengleterre,” A.D. 1306, _Chanc. Rolls, Misc. Treaties_, &c., Bd. 14,
No. 15; “super mare Anglicanum” (_Rot. Pat._, 14 Edw. II., pt. ii. m.
26, d.), A.D. 1320, &c., &c.; “partibus maris infra regnum nostrum
Angliæ,” _A.D._ 1317, Edw. II., _Fœdera_, iii. 469; A.D. 1406, Hen.
IV., giving freedom of fishing, “ubicumque supra mare, per et infra
dominia, jurisdictiones, et districtus nostra”; “Seigneur de la mer,”
A.D. 1320, _Fœdera_, iii. 852; “reges Angliæ domini maris Anglicani
circumquaque,” A.D. 1336, _Rot. Scot._, i. 442; “domini maris et
transmarini passagii,” A.D. 1336, _Fœdera_, iv. 721; “le roi de la
mier,” A.D. 1372, _Rot. Parl._, ii. 311; “seigneurs del meer,” A.D.
1420, _ibid._, iv. 126, &c., &c.

[6] _Fœdera_, xvi. 395; _State Papers, Dom._ 1604, 11, 40; _Fœdera_,
xix. 211; _Libelle of Englyshe Polycye_; Dee, _General and Rare
Memorials_, 6; _State Papers, Dom._ 1662, 66, 50, “It is a fundamental
Maxime of England, that the sea flowing about the Isle of Great
Britaine is of the same dominion with the isle”; “the dominion of the
ambient seas.”

[7] _Rot. Escheat._, 41 Hen. III., A.D. 1259, referred to by Coke,
1. 107_a_; Bracton, _Legibus et Consuetudinibus Angliæ_, lib. v. c.
xxx. fol. 437 (A.D. _circa_ 1259); _Statutes of the Realm_, 18 Edw. I.
Stat. 4 (A.D. 1290); _Rot. Parl._, 13 Ric. II., “deinz les quatre miers
Dengleterre,” &c.

[8] Hall, _On the Rights of the Crown in the Sea Shores of the Realm_,
p. 1.

[9] “The guardian of his Majesty’s three seas” (A.D. 1607). _Cæsar
Papers, MS. Brit. Mus. Lansd._, 142, fol. 373.

[10]

“Thene here I ende of the comoditees
Ffor whiche nede is well to kepe the sees;
Este and weste, sowthe and northe they be;
And chefely kepe the sharpe narowe see,
Betwene Dover and Caleise.”

[11] _Acts of the Privy Council of England_, N.S., i. 232, 242.

[12] Winwood’s _Memorials_, iii. 50.

[13] _Mare Clausum_, ii. c. xiii.

[14] Selden, _Mare Clausum_, lib. i. c. viii., lib. ii. cc. ii.-viii.

[15] _Polyhistor._, c. xxiv.

[16] _Mare Clausum_, lib. ii. c. xi.

[17] _Mare Clausum_, lib. ii. c. xii. “Canutus autem Rex suæ ditionis
esse Oceanum Britannicum verbis expressissimis item est testatus.”
Prynne uses the same argument. _Animadversions on Coke’s Fourth
Institute_, 88.

[18] Ed. Petrie, 395.

[19] _Gesta Regum Anglorum_, i. 235; Eng. Hist. Soc. “Ego Edgarus
totius Albionis Basileus nec non maritimorum seu insulanorum Regum
circumhabitantium.”

[20] “Ego Edgardus Anglorum Basileus omniumque Regum insularum,
Oceanique Britanniam circumjacentis cunctarumque nationum quæ infra
eam includuntur Imperator et Dominus,” &c. Dee, _General and Rare
Memorials_, 58, 60; Selden, _Mare Clausum_, ii. c. xii. (quoting from
a charter of Inspeximus, _Rot. Pat._, 1 Edw. IV., m. 23); Prynne, _op.
cit._, 87.

[21] _Concilia_, i. 432.

[22] _Ibid._, i. 239.

[23] _Codex Diplomaticus_, ii. 404, vi. 237.

[24] _Diplomatarium Anglicum Ævi Saxonici_, 211.

[25] _Cartularium Saxonicum_, iii. 377.

[26] “Insularum oceani quæ Brytanniam circumjacent.”

[27] Worsaae, _An Account of the Danes and Norwegians in England,
Scotland, and Ireland_; Depping, _Histoire des Expéditions maritimes
des Normands_; Beamish, _The Discovery of America_.

[28] Burrows, _Cinque Ports_, 62, 81.

[29] Cunningham, _The Growth of English Industry and Commerce during
the Early and Middle Ages_, 173.

[30] Twiss, _The Law of Nations in Time of Peace_, 244; ibid., _In Time
of War_, 142.

[31] See p. 51.

[32] _Mare Clausum_, lib. ii. c. xiv.

[33] “Pour garder la mere,” “la garde du meer,” “la sauve garde
du meer,” “pro custodia maris,” “de custodia maritimæ,” &c. See
_Proceedings and Ordinances of the Privy Council of England_; Nicolas,
_History of the Royal Navy_; Prynne, _Animadversions_.

[34] _Fœdera_, i. 861; Nicolas, _op. cit._, i. 279, 437.

[35] Twiss, _The Law of Nations in Time of Peace_, 245.

[36] _Vide_ Twiss, _Black Book of the Admiralty_, i. 420.

[37] _Op. cit._, lib. ii. c. xviii.

[38] Twiss, _ibid._, i. 64.

[39] Nicolas, _op. cit._, i. 131, 231, ii. 45, 84, 130, 176; _Rot.
Pat._, 65 (1206); _Fœdera_, i. 96 (1208).

[40] _Chronicles_, ii. 497.

[41] _Op. cit._, lib. ii. cc. xiii., xx.

[42] _Rot. Parl._, iii. 46b; Nicolas, _op. cit._, ii. 260-280;
Laughton, _Studies in Naval History_, 16-22. The Yarmouth herring
fishing suffered severely in these years, and the fishermen equipped
and armed vessels for their own defence,--_Chronicon Angliæ, ab_ A.D.
1328 _usque ad annum_ 1388, p. 170, Rolls Series.

[43] _Op. cit._, lib. ii. c. xv.

[44] _Rot. Parl._, iii. 63b, 391a; _Fœdera_, vii. 220. “C’este
l’ordinance et grante par l’advis des Marchaundz de Londres, et des
autres Marchaundz vers la North, par assent de touz Communes de
Parlement par devant le Comte de Northumberland et le Meair de Londres,
pur la garde et tuicion du Mier,” &c. The specified dues throw some
light on the commerce and fisheries of the period: (1) all vessels or
crayers navigating the seas within the limits of the admiralty of the
north were to pay a duty of sixpence a ton-tight, going and returning,
with the exception of those bringing wines and goods from Flanders to
London, or carrying wool and skins to Calais; (2) vessels laden with
goods belonging to merchants of Prussia, Norway, or Scone (Scania)
were to pay sixpence a last; (3) vessels carrying coals from Newcastle
were to pay sixpence a ton every three months; (4) sixpence a-week per
ton was to be paid by all vessels fishing for herrings within the said
admiralty, and sixpence every three weeks per ton by boats fishing for
other fish.

[45] A.D. 1420, _Rot. Parl._, iv. 126. “Item, priount les ditz
Communes, que par l’ou nostre très soverain seignour le Roy et ses
nobles progenitours de tout temps ount esté seignours del meer, et
ore par la grace de Dieu est venuz que nostre dit seignour le Roy est
seignour des costes d’ambeparties del meer d’ordeigner que sur toutz
estraungers passantz parmye le dit meer tiel imposition à l’oeps nostre
dit seignour le Roy apprendre qui à luy semblera resonable, pur la
salve garde del dit meer.”

[46] _Rotuli Scotiæ_, i. 442, “Nos advertentes quod progenitores nostri
reges Angliæ Domini Maris Anglicani circumquaque et etiam defensores
contra hostium invasiones ante hæc tempora extiterint,” &c. Part of the
language of this mandate was copied by Charles I. in his ship-money
writs. See p. 211.

[47] _Fœdera_, iv. 722. “Consideratio etiam quod progenitores nostri,
Reges Angliæ, in hujusmodi turbationibus, inter ipsos et alios terrarum
exterarum dominos motis, domini maris et transmarini passagii, totis
præteritis temporibus, extiterunt,” &c.

[48] Nicolas, _op. cit._, ii. 49, 106.

[49] _Political Poems_, ii. 157. The author states that it was coined
after Edward captured Calais, when

“The see was kepte, and thereof he was lorde,
Thus made he nobles coigned of recorde.”

But Edward did not take Calais till 1347, while the noble was issued in
July 1344. Nicolas, _loc. cit._

[50] Oppenheim, _A History of the Administration of the Royal Navy_, i.
7.

[51] Cunningham, _op. cit._, 361. In the _Libelle_ it is asked--

“Wher ben our shippes, wher ben our swerdes become?
Our enmyes bid for the ship set a sheep”;

and the rubric of an anonymous commentator states that the advice
quoted was owing to the fact that while in the time of Edward III.
the English were lords of the sea, they were now in these days mad
(_vecordes_), vanquished, and for waging war and guarding the sea, like
sheep. The jest is also alluded to by Capgrave, _Liber de Illustribus
Henricis_, 135.

[52] “Tous les pays tenoient et appelloient nostre avandit seigneur, le
Roi de la Mier.”

[53] _Rot. Parl._, ii. 311.

[54] _Mare Clausum_, lib. ii. c. xxvi.

[55] _Animadversions_, 108.

[56] Nicolas, _op. cit._, i. 156, but cf. ii. 481; Hannay, _A Short
History of the Royal Navy_, 15. Hannay, as well as the writer of the
naval articles in _Social England_ (i. 138), was not apparently aware
of the labours of Sir Travers Twiss mentioned in the text.

[57] _The Black Book of the Admiralty_, i. Intro. xiii _et seq._, 129;
iii. Intro. i, x.

[58] “Item ordonne estoit a Hastynges pour loy et coustumes de mer ou
temps du roy Johan lan de son regne second par advys de ses seigneurs
temporelz que se le lieutenant en aucun voyage ordonne par commun
conseil du royalme encontrent sur la mer aucunes nefz ou vesseaux
chargees ou voide que ne veullent avaller et abbesser leurs trefs
ou commandement du lieutenant du roy ou de ladmiral du roy, ou son
lieutenant, mais combatant encontre iceulx de la flotte que silz
puent estre pris quilz soient reputez comme ennemys et leurs nefs,
vesseaulx, et bien pris et forfaitz comme biens des ennemys tout soit
que les maistres ou possesseurs dicelles vouldroient venir apres et
alleguer mesmes les nefs, vesseaulx, et biens estre biens des amys du
roy nostre seigneur, et que le mayne estant en icelles soient chastiez
par emprisonnement de leur corps pour leur rebellete par discrecion.”
The above is given by Twiss from the _Whitehall MS._ of the eighteenth
century; it does not materially differ from the others. The _Cottonian
MS._, which is stated to be the earliest and purest, reads in both
places “le lieutenant du roy ou ladmiralle du roy ou soun lieutenant.”

[59] _The Black Book_, Intro. xix, lxxvii. It is _Vespasian MSS._, B.
xxii.

[60] _The Black Book_, iii. Intro. viii, x. See p. 410.

[61] _Collection des Lois Maritimes_, iv. 199.

[62] _Collection des Lois Maritimes_, i. Intro. pp. li, 129; iii.
Intro. p. xi.

[63] _Mare Clausum_, lib. ii. c. xxvi.

[64] “Quanquam tamen, ad primam vocem ipsorum Anglicorum, idem Johannes
Willes velum suum declinavit,” &c., _Fœdera_, viii. 273; “omnes tamen
inermes, et velum suum, ad primum clamorem Anglicorum declinantes,”
_ibid._, 277.

[65] _Chancery Rolls, Misc. Treaties and Diplomatic_, Bdle. 14, No.
15. It is endorsed _De Superioritate Maris Angliæ et Jure Officii
Admirallatus in eodem_. There are several copies on separate membranes
in the bundle--viz., 1, 8, 12, 14, 15,--and they differ from one
another, as indicated in the transcript in Appendix A. Prynne
(_Animadversions_, 109) says that besides the roll in the Tower from
which Lord Coke and Selden quoted, he discovered “an ancient copy of
it in the White Tower Chapple,” and among the Admiralty papers is a
memorandum by Nicholas, undated, but before 1631, on the records in
the Tower respecting the Laws of Oleron and the Sovereignty of the
Seas, in which he says that “in ye little closset there” a record in
French exists, dated in the time of Edw. I. or II., referring to the
depredations of Grimbald. There is also a transcript in a collection of
MSS. in the British Museum (_Harleian_, 4314) and a translation of the
roll, in a hand of the seventeenth century, in _MS. Otho._ E. ix. fol.
14.

[66] _Fourth Institute_, cap. 22, p. 142.

[67] _Mare Clausum_, lib. ii. c. xxvii., xxviii., xx., xxiv.

[68] _Rot. Pat._, 26 Edw. I., part 2, memb. 24, _in dorso_.

[69] _Fœdera_, i. 954.

[70] Selden, _op. cit._, lib. ii. c. xxvii., quoting from _Rot. Pat._,
31 Edw. I., m. 16, which reads as follows: “Des enterprises, mesprises,
et forfaitz en Treue ou en Sufferance, entre nous et le dit Roi de
Fraunce, dune part et dautre, es costeres de la mer Dengleterre et
autres per decea et ausint per deuers Normandie et autres costeres de
la mer per de la.”

[71] The King of France ordered John de Pedrogue, a celebrated seaman
of Calais, to collect a fleet there and proceed with it to Holland
against the Count of Flanders, who had invested Zierikzee. Included in
the fleet were eleven Genoese galleys, under Reyner de Grimaldi, who
was given the chief command by Philip, with the title of “Admiral,”
John de Pedrogue acting under him. Nicolas (_op. cit._, i. 373) gives a
description of the fight.

[72] The translation, for which I am indebted to Miss E. Salisbury, is
from membrane 12.

[73] The expression is also used in a document of 1297, when Lord
William de Leybourne is described as “Admiral of the sea of the said
King of England.” _Fœdera_, i. 861.

[74] Coke (_op. cit._, 143) states that this refers to “De Botetourt,”
who, he says, was Admiral “of the sea coasting upon Yarmouth in Norfolk
(right over against France) and of that station in _anno_ 22 Edw. I.”
Nicolas (_op. cit._, i. 270, 407) states that Sir John de Botetourt
was made commander of the northern fleet in 1293, and in the following
year, when Edward divided his fleet into three squadrons, the ships of
Yarmouth and the adjacent ports were placed under his charge.

[75] The rest is on the back of the membrane.

[76] The part within brackets is to be found on the membranes 1, 14_d_,
and 15, but not on 12.

[77] _Mare Clausum_, lib. ii. c. xxvii. Hall, in his excellent
_Treatise on International Law_ (p. 141), and with reference apparently
to this roll, says that exclusive dominion over the English seas by the
English king was acknowledged as early as 1299 (_sic_), at a commission
in Paris, by the representatives of the merchants and mariners of the
countries mentioned in the above document.

[78] See Appendix A.

[79] _Chancery Miscel. Rolls_, _France_, Bdl. 5, No. 6.

[80] See translation in Appendix B.

[81] _Chancery Rolls, Misc._, Bdle. 14, n. 15, memb. 4.

[82] “Infrascripti sunt articuli generales super quibus et fines ad
quos Justiciarii domini nostri Regis sunt consulend’, et dominus noster
Rex de eorum consilio certificand’ in Cancellar’ sua in scriptis citra
festum, &c.

“Item ad finem, quod resumatur et continuetur ad subditorum
prosecucionem forma procedendi quondam ordinata et inchoata per avum
Domini nostri Regis et ejus consilium ad retinendum et conservandum
antiquam Superioritatem Maris Angliæ et jus officii Admirallatus
in eodem, quoad corrigendum, interpretandum, declarandum, et
conservandum leges et statuta per ejus antecessores Angliæ Reges
dudum ordinata ad conservandum pacem et Justitiam inter omnes gentes
nacionis cujuscunque per Mare Angliæ transeuntes, et ad cognoscendum
super omnibus in contrarium attemptatis in eodem, et ad puniendum
delinquentes et dampna passis satisfaciendum; quæ quidem leges et
statuta per Dominum Ricardum quondam Regem Angliæ in reditu suo a
Terrâ Sancta correcta fuerunt, interpretata, declarata, et in Insula
Oleron publicata, et nominata in Gallica lingua La loy Olyroun.”

According to Godolphin (_A View of the Admiral Jurisdiction_, 1661),
the “form of proceedings” refers to the statute of the Writ of
Consultation, 24 Edw. I., with regard to the proceedings of the Courts.
The following is on another membrane in the same roll (mem. 2_d_),
which contains ordinances agreed upon between the masters and mariners
of England, Bayonne, and Flanders, at Bruges, 8th March 1286. It is in
the handwriting of the time of Edward III.

“Item a la fin qe veues et considerees les formes des proces et des
lettres ordeinees per les consaillers le dit aiel nostres seigneur
le Roi pur eux et la dite nacioun Dengleterre a recouerer et receuer
les ditz subgitz aidaunz et alliez et a faire redresser a eux toux
les damages a eux donez en Mier et en terre duraunz les dites trewes
pees et confederaciouns et countre la forme dycelles par les ditz
Fraunceys aidaunz et alliez et eschuire clamour de poeple sur la dite
denatureste, &c., et les damages quiex de tiel clamour purroient
auenir et especialment a retenir et meintener la souereignete qe
ses ditz auncestres Rois Dengleterre soleyent auoir en la dite mier
Dengleterre quant alamendement declaracioun et interpretacioun des
lois per eux faites a gouerner toutes maneres des gentz passanz
per la dite mier. Et primerement a son admirail et as meistres et
mariners des nefs des Sync Portz Dengleterre et des autres terres
annex a la Corone Dengleterre entendaunt a sa armee en la dite
mier pur retenir et meyntenir la garde des lois auauntdites et la
puniscioun de toux faitz al encountre en la mier susdite Semblables
formes des proces et lettres soient desors tenues od toux les
amendementz quiex purrount estre ordeinez par le sage Counsail nostre
Seignur le Roi a profist et honur de lui et des soens.”

[83] Twiss (_Black Book of the Admiralty_, ii. xliii; ii. xi), who
collected the old sea laws of Europe, states that the most ancient
extant source of modern marine law are the Decisions of the Consuls
of the Sea of the City of Trani, on the shores of the Adriatic, which
purport to be of the date A.D. 1063; and that the next most ancient are
the Judgments of Oleron, of which there are still copies, belonging to
the reign of Edward II., in the archives of the Guildhall, for use no
doubt in the City court, which administered the Law Merchant and the
Law Maritime.

[84] _Op. cit._, i. 484.

[85] _Op. cit._

[86] _Op. cit._ The specification of the duties within the cognisance
of the Admiralty occupies several pages; they included “all cases of
seizures and captures made at sea, whether _jure belli publicis_, or
_jure belli privati_ by way of reprisals, or _jure nullo_ by way of
piracy ... all causes of spoil and depredations at sea; robberies and
pyracies,” &c., &c.

[87] M’Pherson, _Annals of Commerce_, i. 475, 485, quoting from
_Fœdera_.

[88] 18 Edw. III., st. 2, cap. 3. Several articles in the _Black
Book_ show the same desire to encourage foreign merchants, and severe
penalties were prescribed for the robbing or wronging of foreign ships,
or interference with their freedom to trade.

[89] _The Reading of the Famous and Learned Robert Callis, Esqr._,
_upon the Statute of Sewers_, 23 Hen. VIII., c. 5, &c., 1622; ed. 1824,
p. 48.

[90] “Sur la mere d’Engleterre, devers les parties de Craudon.”

[91] “Et prierent que le Roi, de sa seignurie et poer real, fait sente
dreit et punissement del dit fait, de siccome il est seigneur de la
mer, et la dite roberie fut fait sur la mer dans son poer, sicomme
dessus est dit.”

[92] Nicolas, who gives the details referred to, says that there is no
record of these proceedings in the rolls of Parliament. _Op. cit._, i.
388.

[93] “Et cum dicti nuncii ad tractandum de novo super hujusmodi dampnis
per dictum dominum nostrum Regem admissi fuissent, ipsi nuncii, prout
alii nuncii præfati Comitis, in tractatibus supradictis, inter cetera
quæ requirebant, ante omnia supplicabant, ut dictus dominus Rex ad
sectam suam de potestate sua Regia inquiri et justitiam faceret de
quadam deprædatione quibusdam hominibus de Flandria nuper de vinis et
aliis diversis mercimoniis suis super mare Anglicanum, versus partes
de Crauden, infra potestatem dicti domini nostri Regis, per homines
de regno Angliæ. Ut dicebant facta asserentes quod vina et mercimonia
prædicta eisdem Flandrensibus deprædata adducta, fuerunt infra regnum
et potestatem dicti domini Regis, et quod ipse est dominus dicti maris,
et deprædatio prædicta facta fuit supra dictum mare infra potestatem
suam.” _Rot. Pat._, 14 Edw. II., pt. ii. m. 26, _in dorso_. Selden
quotes this document (lib. ii. c. xxix.), but his text varies from the
above, thus: “... potestatem dicti domini Regis, et quod ad ipsum Regem
pertinuit sic facere pro eo quod ipse est dominus dicti maris.”

[94] _Mare Clausum_, lib. ii. c. xxix. p. 282.

[95] That “Crowdon” was in Brittany appears from a letter, dated
from Plymouth, 9th December 1402, from Henry Beaufort, Bishop of
Lincoln, the Earl of Somerset, and the Earl of Worcester, who were
sent to escort Joan of Navarre, Duchess of Brittany, the second wife
of Henry IV., to England. “Et par fin force pur un temps nous faut
demurrer en Bretaigne car la ou nous avoioms envoie au dite nostre
treshonuree et tresredoutee dame pur venir, noz niefs ne poiont ne
osent aler en le temps dyver. Et faut qele eit un leisir pur venir
pardevers nous, dont le havene que nous pensoms aler ove leide de Dieu
est Crowdon.”--_Proceedings and Ordinances of the Privy Council of
England_, i. 190.

[96] Allard, _Du Poisson, considéré comme Aliment dans les Temps
anciens et modernes_.

[97] Garrad, _The Arte of War_.

[98] In the itinerary of a journey from England made by a Scottish
nobleman to join Edward I. in Scotland, it is recorded that herrings
were purchased nearly every day--at Dunstable, Newport, Northampton,
Leicester, Nottingham, Sherburn, &c. Sixty fresh herrings at York,
nearly forty miles from the sea in a straight line, cost eightpence,
and fresh haddocks and codlings were also bought.

[99] “Prohibeo etiam firmiter ne quis decimas suas eis injuste detineat
sicut habuerunt in tempore regis Davidis super meum forisfactum et ne
quis in aquis eorum piscari presumat ... nisi per eorum licentiam.”

[100] _Fœdera_, ii. 23. “Gent de Flaundres estre venuz sur mer, come
Pescheurs,” &c.

[101] _Ibid._, ii. 37. The Flemish fishermen had probably gone up the
Tweed after salmon.

[102] _Ibid._, ii. 688, dated 28th September. “Quia intelleximus quod
multi homines, de partibus Hollandiæ, Zelandiæ et etiam Frislandiæ, qui
sunt de amicitia nostra, ad piscandum in mari nostro, prope Jernemuth,”
&c.

[103] Lundberg, _Det Stora sillfisket i Skåne under medeltiden
oeh nyare tidens början_. Worms, _Hist. commerciale de la Ligue
Hanséatique_.

[104] Fruin, _Tien Jaren uit den Tachtigjarigen Oorlog_, 181.

[105] _Brit. Mus. MSS. Galba_, B. iii. 16. Henry apparently acceded to
the request; _vide_ “John Heron’s accompte for waftynge of the herring
fleete in the parties of Norfolk and Suffolk, _anno quarto_ R. Henrici
VIII.” _State Papers, Foreign and Domestic_, Hen. VIII., i. 1512.

[106] Ljungman, _Nägra ord om de stora Bohus-länska Sillfiskeri_.

[107] _Mare Clausum_, lib. ii. c. xxi.

[108] _Rot. Pat._, 22 Edw. IV., m. 2; _ibid._, 2 Ric. III., i. m. 3;
_ibid._, 3 Hen. VII., part ii. _dorso_; _Mare Clausum_, lib. ii. xxi.

[109] _The Statutes at Large passed in the Parliaments held in
Ireland_, i. 30. 5 Edw. IV., c. vi. “An Act that no Ship or other
Vessel of any Foreign Country shall go to the Fishing in the Irish
Countries, and for Custom to be paid of the Vessel that cometh from
Foreign Lands to Fishing.”

[110] _Britannia_, Gough’s edition, ii. 248.

[111] _A Pollitique Platt_, &c.

[112] _State Papers, Dom._, James I., xlviii. 94.

[113] Malines, _Lex Mercatoria_, 189, from whom Selden quotes it, with
the remark, “There are some also who affirm that the King of Spain,”
&c. _Mare Clausum_, ii. c. xxx. It is also given by Boroughs and other
writers.

[114] _State Papers, Dom._, Charles I., clxxx. 96.

[115] One of the licenses, which ran for a year, is printed in Appendix
C. The Zowe was described in 1630 as “a bank which lies between Rye and
Dieppe, and the outermost part is nearly one-third over the sea. This
zowe which they call the small zowe is 3 leagues long and 3 broad, and
26 and 28 fathoms deep. The French make it 10 leagues, because they
fish till they bring Beachy Head N., fayre Loo (? Fairlea, Fairlight)
W.N.W., and fish in 30 fathoms.” Sir H. Mainwaring to Coke, “A Short
Discourse or Propositions concerning the French fishing uppon the
Zowe, theyr abusing it, and the Remedy” (_ibid._) It was described as
the “chief nursery for turbetts, hollibatts, pearles (brill), soules,
weavers and gurnetts.” In Queen Elizabeth’s time only four licenses
were granted, but James increased the number to fourteen or fifteen.
They were carefully entered in the records of Dover Castle and the
Hundred Book of Rye.

[116] Henrici de Bracton, _Legibus et Consuetudinibus Angliæ_, lib.
i. c. 12; lib. iii. c. 3. _Rolls Series_, Introd., by Sir Travers
Twiss, i. ii. Güterbock, _Henricus de Bracton und sein Verhältniss zum
Römischen Rechte_, 14, 55.

[117] _Fœdera_, v. 719. “Il est convenu, &c., &c. Item, que pessoners
de la seignurie del roi de Castelle et del counte de Viscay peussent
venir et pescher fraunchement et sauvement en les portz d’Engleterre et
de Bretaigne, et en touz autres lieux et portz où ils vorrontz, paiantz
les droits et les custumes à les seignurs du pais.”

[118] _Ibid._, v. 763.

[119] _Fœdera_, viii. 306, 336. “Q’en ceste presente harenguison les
pescheurs de l’une part et d’autre puissent pescher plus seurement en
la mer la harenk et toutz autres poissons, depuis hable de Grauelinguez
et l’isle de Tanent, jusques a l’entree de la riviere de Saine, et au
hable de Hautoune.”

[120] _Ibid._, viii. 451.

[121] _Fœdera_, viii. 459. “Pro Piscatoribus, sub Dominio Ducis
Burgundiæ: ... toutz pescheurs, tant de nostre dit roiaume d’Engleterre
et de Caleis, et dez autres noz villes et lieux, come dez ditz conte
et paiis de Flandres, dez paiis de Picardie, de Normandie, et de
Bretaigne, et generalment de tut le dit roiaume de Fraunce, puissent
paisiblement aler par tout sur meer, pur peschier et gaigner lour
vivre, saunz en estre reprins ne empeschiez en ascun manere ... et par
ainsi que semblablement soit fait et otroie, de lez dites parties de
Flandres, Picardie, Normandie, Bretaigne, et autres del dit roiaume
de Fraunce, a la seurte dez ditz pescheours de nostre dit roiaume
d’Engleterre.”

[122] _Ibid._, viii. 469, 472. Dumont, _Corps Universel Diplomatique du
Droit des Gens_, &c., II. i. 302. _Proc. and Ordinances of the Privy
Council of England_, i. 282.

[123] _Ibid._, viii. 530, 548, “Et les pescheurs generalment aler
pescher sur mer pour gaignier leur vivre paisiblement.”

[124] _Fœdera_, ix. 483.

[125] _Rot. Parl._, iii. 643_b_.

[126] Pikes and bows and arrows were used. Later, in the early part
of the seventeenth century, a regular part of the equipment of a
herring-buss was half-pikes and muskets, an estimate for one being--ten
half-pikes, £1; muskets with bandaleers, rests, and moulds, £6, with 6
lb. of gunpowder and 6 lb. of leaden bullets.

[127] _Fœdera_, x. 730, 736, 761, 791. The article on the fishery
was as follows: “Que tous pescheurs, tant d’Engleterre, d’Irlande,
et de Calais, comme des paiis de Brabant et de Flandres, pourront
paisiblement aler par tout sur mer, pour peschier et gaignier leur
vivre, sans empeschement ou destourber de l’une partie ne de l’autre.
Et avec ce, se fortune ou autre aventure chassoit ou amenoit les diz
pescheurs de la partie d’Engleterre, en aucun des ports, havres,
destrois, et daugiers des dites paiis de Brabant ou de Flandres, ou les
diz pescheurs des dites paiis de Brabant et de Flandres en aucuns des
dites ports, havres, destrois, ou daugiers du royaume d’Engleterre,
Yrland, et de Calais, que ilz y soient paisiblement et franchement
receuz et traictiez raisonnablement d’une coste et d’autre, en paiant
aux lieux, ou ils arriveront, les toulieux et devoirs accoustumez, et
d’illec puissent liberalment retourner a tout leurs nefs, applois, et
biens sans destourbier, arrest, ne empeschement; pourveu que, par les
diz pescheurs, d’un coste et d’autre, ne soit commise aucune fraude, ou
fait dommaige.” Intercursus continuandus pro spatio duodecim annorum
inter Anglos et Flandros, Gandanos, Iperos et civitatis de Brabant.
_Ibid._, xi. 143.

[128] “Et pur toutz sez autres paiis et seigneuries.”

[129] “Et sans qu’il leur soit bosoigne sur ceo requirer ne opteiner
ascune license, congie, ou saufconducte.” 5 Jan. 1467/1468. _Ibid._,
xi. 591, 592, 595, 609. Dumont, _op. cit._, III. i. 592.

[130] Dumont, III. i. 400.

[131] _Fœdera_, xi. 683.

[132] _Ibid._, xii. 67. In 1484 Richard III. issued a commission to
Thomas Lye, sergeant-at-arms, to make restitution for fishing-boats
belonging to subjects of Maximilian, Duke of Austria, which had been
taken, laden with fish, by English pirates. _Ibid._, xii. 227.

[133] “Item, conventum, concordatum et conclusum est quod piscatores
utriusque partis partium prædictarum (cujuscunque conditionis existant)
poterunt ubique ire, navigare per mare, secure piscari absque aliquo
impedimento licentia seu salvo conductu: Et, si contingat aliquos ex
piscatoribus unius partis per fortunam, tempestatem maris, vim hostium,
aut alio modo compelli intrare aliquem portum vel districtum alterius
partis, ibidem pacifice et amicabiliter recipientur et tractabuntur
(solvendo in locis ubi applicabunt jura et theolonia prædicta) et ab
illis portubus et locis poterunt libere recedere et redire, cum eorum
navibus et bonis, sine impedimento vel contradictione quacunque;
dummodo tamen per ipsos piscatores non committatur fraus neque dolus,
seu per eos aliis dampnum minime fiat.” 24 Feb. (1495)/(1496).
_Fœdera_, xii. 583. Dumont, III. ii. 338.

[134] _Fœdera_, xii. 714; xiii. 132, 539, 714.

[135] Ships of war were used to convoy the herring-busses of Holland
and Zealand at least as early as 1440.

[136] _Cal. State Papers, Foreign and Domestic_, iii. Nos. 1534, 1535.

[137] _Fœdera_, xiii. 752. Dumont, IV. i. 352.

[138] Dumont, IV. i. 515. “Pourront aussi les Sujets des Païs,
Roiaumes, Terres et Seigneuries dessusdites, librement, et sans
détourbier, ni empêchement, pêcher à harangs, et autres poissons en
la mer, où ladite Treve aura lieu, et là où la pêche dudit harang
s’adonera, comme ils faisoient avant la Guerre, et pourroient et sont
accoûtumez de faire au tems de Paix.”

[139] _Fœdera_, ii. 529, 545. Mieris, _Groot Charterboek der Graaven
van Holland_, &c., ii. 268; iii. 257; iv. 223, 378, 692, 816. Kluit,
_Historiæ Federum Belgii Federati_, 284. Yair, _An Account of the
Scotch Trade in the Netherlands_, 6, 27, 36.

[140] Mieris, _op. cit._, iv. 146. About this time the Scots also did
their best to drive away English fishermen from their coasts. In 1400
they fitted out a small fleet under Sir Robert Logan for this purpose,
but it was apparently insufficient, and Logan himself was captured by
the men of Lynn. Walsingham, _Hist. Anglicana_, 364. In 1420 complaint
was made to the English Parliament that the Scots had at divers times
attacked and taken English fishing vessels. _Rot. Parl._, iv. 127_a_.

[141] _State Papers, Dom._, Charles I., clii. 63. See p. 218.

[142] “Dat hy voorhadt, de haringvisscherij omtrent zyne kusten te
beletten.” Wagenaar, _Vaderlandsche Historie_, v. 209.

[143] _Resol. Staten van Holl._, 5/15 September 1540. Bosgoed, _Bib.
Pisc._, 319.

[144] Treaty of Binche, 9/19 February 1540/1541. Dumont, _op. cit._,
IV. ii. 208.

[145] “Et quant au dernier article de la commission du Sr. de Limdy
[Lundy] ambassadeur, concernant le fait de la pescherie, ladite Dame
Reine [the Queen Dowager of Hungary and Bohemia] veuille par bonne et
meure deliberation proceder en telles et semblables affaires, se fera
informer sur le contenu dudit article, pour après en ordonner comme il
sera trouvé étre de raison, équité, et justice d’une part et d’autre
pour la conservation de la paix et amitié mutuelle desdits Sieurs.”
_Op. cit._, and see footnote next page.

[146] Wagenaar, _op. cit._, 355.

[147] _Res. St. Holl._, (29 Nov.)/(9 Dec.) 1544; (23 Feb.)/(5 Mar.)
1545, &c. Bosgoed, _op. cit._, 320.

[148] Dumont, IV. iii. 12. “Circa piscationem verò ac liberum usum
maris, ea quæ per supradictum Tractatum anno 1541, 19 Februarii,
Binchii inter Serenissimam Reginam Mariam et supra nominatum Oratorem
Regis Scotiæ; inita, conclusa ac conventa fuerint debite ac sincere
observari debebunt.”

[149] In 1618, when there was much searching of the records in Scotland
(where they were kept in a most careless and slovenly manner) to
establish the claim of James to the fishing in connection with the
approaching visit of the Dutch ambassadors, the Earl of Dunfermline
wrote to Lord Binning in London, forwarding a copy, in French, of the
treaty of 1541, and said, “Albeit ye will perseive by the last article
of the same annent the propositions of the fishings, the Queen of
Hungarie and Bohemia, who was for the Emperour Governant of the Low
Countries--we call her commonly Frow Mary--in that takes her to further
advysement with her Councill, and no thing resolved if any further
proceeding; _I pray God ye may find it otherwayes_.” _MSS. Advoc.
Lib._, 31. 2. 16.

[150] The heads of the treaty and the ratifications are given by
Dumont, _Corps Diplomatique_, V. i. 507. The treaty itself is
published in full by Bor, _Vervolgh Vande Nederlantssche Oorlogen ende
Geschiedenissen_, iv. fol. 48-52.

[151] _E.g._, in 1573, that “all maner of fischeris that occupyis the
sey and vtheris persounis quhatsumeuer” that catch herrings or white
fish “vpon the coist or within the Ilis or outwith the samin within
the Fyrthis” should bring them to free ports to be sold. _Acta Parl.
Scot._, iii. c. 7.

[152] Leslie, _De Origine Moribus et Rebus Gestis Scotorum_, 24. A
point of land near Inveraray in Loch Fyne was long known, and is still
known, as Frenchman’s Point or French Farl, the tradition being that it
was to this place that herrings were brought to be sold and cured. _Old
Statistical Account of Scotland_, v. 291.

[153] _Register Privy Council of Scotland_, i. 482.

[154] _De Dominio Maris_, 16. In another work Welwood says, “And
for the eastern seas, direct from Scotland, what is more antiently
notorious than that covenant twixt Scottish men and Hollanders,
concerning the length of their approaching toward Scotland by way of
fishing.” _An Abridgement of All Sea Lawes_, c. 26.

[155] _Register Privy Council of Scotland_, iv. 216.

[156] Much information on the fisheries of the Netherlands will be
found in Professor A. Beaujon’s _History of Dutch Sea Fisheries_, 1884.

[157] 33 Hen. VIII., c. 2.

[158] 37 Hen. VIII., c. 23; 5 & 6 Edw. VI., c. 17; 7 Edw. VI., c. 11; 1
Mary, st. 2, c. 13.

[159] _Acts of the Privy Council of England_, i. 103, 104, 106, 112,
114, _an._ 1543.

[160] 2 & 3 Edw. VI., c. 19. Certain exceptions, of those licensed,
ill, or very old, or in prison, were made.

[161] _State Papers, Dom., Addenda_, Edw. VI., iv. 56. The paper, which
is endorsed by Cecil, “The Answer of the Fishmongers,” is undated, but
that it belongs to the reign of Edward VI. (1547-1553) is proved by
the words, “the reign of our late sovereign, Henry VIII.” The return
of 1528, referred to by the fishmongers, is among the State Papers
_(Foreign and Domestic Letters and Papers_, Hen. VIII., iv. pt. 2,
No. 5101). It states that 149 vessels went to the Iceland fishing,
mostly from Yarmouth, Blakeney, Cromer, Dunwich, Walderswick, and
Southwold; the herring-fishing in the North Sea employed 222, of which
110 belonged to the Cinque Ports, while 69 went to Shetland, the total
being 440. Shetland lings were in those days greatly prized, and
brought very high prices.

[162] _State Papers, Dom., Addenda_, Edw. VI., iv. 57. “The decaied
Porte Townes w^{th} nombers of good villages a longe by the sea cost
of this realm, within these twentie or thirtie years;” undated, but
belonging to the same period, with Cecil’s calculations written on the
back.

[163] _State Papers, Dom._, Elizabeth, xxvii. 71, February 1563.
Endorsed, “Arguments for Increase of the Navy,” and “Arguments to prove
that it is necessary for the restoring of the navy of England to have
one Day more in ye weeke ordained to be a fish day, and that to be
Wensday rather than any other.”

[164] The exportation, without license, of herrings, among other
things, had been forbidden by 1 & 2 Ph. and Mary, c. 5 (1554); but by
1 Eliz., c. 17, subjects were permitted to export sea fish taken by
subjects in English ships free of customs for four years.

[165] “The causes of the decay of fishing must be the lack of the vse
of fishing, which must be divided into ij partes, small eating of
fisshe in ye Realme, and not selling of it abroad.”

[166] The number of French vessels engaged in the Newfoundland
fisheries is placed at 500, with 15,000 men; and over 100, with at
least 1000 men, fished at Iceland for “herrings,”--but no doubt for cod
and ling.

[167] There are many other memoranda amongst the State Papers, some in
Cecil’s handwriting, which deal with fish-days. One gives in detail a
note of all the fish-days throughout the year, amounting to 186, and in
addition “a number of sayntes evens were fastyng dayes that now be not
observed.” _Ibid._, xxxi. 41, 42 (1563).

[168] 5 Eliz. c. 5. The debate on the Wednesday proposal lasted three
days, the clause being ultimately carried by 179 to 97 (_Commons
Journals_, i. 68). It was in view of the expected opposition that the
long paper above referred to was prepared. The Wednesday was not put
on quite the same footing as the Fridays and Saturdays, since “one
only usual competent dish of flesh and no more” was allowed, provided
that at the same table “three full competent usual dishes of sea fish
of sundry kinds, either fresh or salt,” were served and eaten “without
fraud or covin.” Another clause explained that the object was “meant
politically for the increase of fishermen and mariners, and repairing
of port towns and navigation”, and not for any superstition “regarding
choice of meats”; any one stating the contrary was to be punished.

[169] Among the imports of fish from the Low Countries at this time
were “cods-heads, cod-fish, eels, ‘gull-fish,’ haddocks, herrings,
ling, salmon, salt-fish, sturgeon, and ‘staple-fish.’” Hall, _A History
of the Customs Revenue in England_, ii. 237.

[170] _State Papers, Dom._, Eliz., xxxv. 36.

[171] 13 Eliz., c. 11.

[172] _State Papers, Dom._, Eliz., xlviii. 83.

[173] _Hatfield MSS._, i. 1177, 27th June 1568.

[174] 13 Eliz., c. 11. In the preamble it is said the former Act “is a
very good Act, and greatly increased the navy and fishermen.”

[175] _State Papers, Dom._, Eliz., lxxv. 16.

[176] In the same year the author, at a dinner he gave at Westminster
to the burgesses representing “all the stately port towns of England,”
explained the substance of his “plat”; several of them suggested that
a subsidy should be raised on land and goods to set the scheme afloat;
and the Speaker remarked that “a Parliament had been called for a less
cause.”

[177] _Burghley Papers_, A.D. 1572, _MSS. Lansd._ 14, No. 30. As the
catalogue states, the signature is erased, and the paper is entered
as anonymous; but careful scrutiny shows that it was signed “Rob^{t.}
Hitchcock.”

[178] _A Pollitique Platt for the honour of the Prince, the greate
profite of the publique state, relief of the poore, preseruacion of
the riche, reformation of Roges and Idle persones, and the wealthe of
thousandes that knowes not howe to liue. Written for an_ Newyeres
gift _to Englande and the inhabitantes thereof_, by Robert Hitchcok,
late of Cauersfeelde, in the Countie of Buckyngham, Gentleman. London,
1st Januarie 1580.

[179] In the early MS. copy presented to the Queen the 400 vessels
were to be from 100 to 200 tons, costing £400 each, and the crew was
to consist of a master, nine mariners, and thirty “rogues and lustie
vagabonds” obtained in the same forcible way.

[180] This place, frequently mentioned in old works and papers
referring to the fisheries, was Vardö, or Vardöhuus, at the mouth of
the Varangerfjord, Finmarken, on the north-east coast of Norway, or,
as it was often described, Lapland. The king of Denmark had a castle
on the island, and dues had to be paid for liberty to fish. A number
of English vessels went there in spring, returning towards the end of
summer.

[181] In France at this time, according to other records, Flemish
herrings brought £25 per last; Yarmouth, £10; Irish, £18; “coast”
herrings and Scotch, £11.

[182] The _Pollitique Platt_ is earnest and even religious in tone,
and it is obvious that the author spent much time in collecting the
information and elaborating his scheme, which in all sincerity was
meant for the good of his country. Even after three centuries one
learns with regret (from his letter preserved at Hatfield) that he had
to petition the Privy Council, “for his relief and maintenance in these
his now declining years” (1596), to cause every innkeeper, &c., to
purchase from him, for sixpence, and put up publicly, a printed table,
or “breviate,” describing the “benefits that growe to this Realme by
the Observance of Fish-Daies.”

[183] Better known by its running title, _The Brytish Monarchie_. It is
a very rare work, only 100 copies having been printed. The author’s own
copy is in the British Museum.

[184] P.7.

[185] Sir John Constable’s case. Moore, _Hist. Foreshore_, 225, from
_Hargrave MSS._, 15, fol. 95_d_. In the case for the crown the claim
to the sea is very briefly put: “Car quant est floud est parcel del
mere que est solement en le Roign et nemy en ascun subject; car est
pur passage pur chescun, mes owner de ceo nul si non le Roign.”
Anderson, _Les Reports du Treserudite_, i. 86. (ed. 1664). In a MS.
in the Cottonian collection (_Galba_, C. 11, “Acta inter Angliam et
Belgium, 1564-1567”) it is said the jurisdiction of the Prince in the
adjoining sea extends for a distance of 100 miles unless (1) in seas
lying between the territories of two princes which contain less than a
hundred miles, in which case it extends to the mid-line--usq’ ad mediũ
eiusdem maris extenditur; (2) where another prince has a right to the
whole sea. The authorities referred to are Bartolus, Angelus, Paulus de
Castro, and Joan de Platea.

[186] _Op. cit._, 21.

[187] Two MS. copies exist, one bound up with Dee’s copy of the
_General and Rare Memorials_ in the British Museum, which was sent
to Dyer with the MS., the other in _Harleian MSS._ 249, fol. 95. The
latter, which is a draft, is addressed “To my very honorable frende
Syr Edward Dyer, Knight,” and a note inscribed on it says, “Written
by Dr John Dee, out of whose library I bought it after his death A^o
D^o 1625, S.D.” The title on both MSS. is ΘΑΛΑΤΤΟΚΑΡΤΙΑ ΒΡΕΤΤΑΝΙΚΗ:
_Miscelanea quædam extemporanea de Imperii Britannici Iurisdictione in
Mari_; and both are dated 8th September 1597.

[188] Lat. 49° 6´ N., long. 2° 49´ W.

[189] “All those that pass within our sea jurisdiction (either absolute
or respective) and therein commit any notable offence against us may
lawfully by our power be taken; and the same offenders may as lawfully
and justly be punished, as if on our land territory an offence like,
or of like degree of injury, were by them against us committed.”
“Absolute” jurisdiction applied to the sea where both coasts belonged
to England; “respective” where it terminated half seas over.

[190] In 1597 Dee expressed his grief and surprise that so little had
been done or attempted with regard to the sovereignty of the sea, “and
so my labours (after a sort) vaynely employed.” MS.

[191] _Bullarium Romanum Novissimum_, i. 346. “Insulæ novi Orbis
à Ferdinando Hispaniarum Rege, et Elisabeth Regina repertæ, et
reperiendæ, conceduntur eisdem, propagandæ fidei Christianæ causa ...
omnes insulas et terras firmas inventas et inveniendas, detectas ad
detegendas versus Occidentem et Meridiem fabricando, et construendo
unam lineam à Polo Arctico scilicet Septentrione, ad Polum Antarcticum,
scilicet Meridiem, sive terræ firmæ, et insulæ inventæ et inveniendæ
sint versus Indiam aut versus aliam quamcumque partem, quæ linea distet
à qualibet Insularum, quæ vulgariter nuncupantur de los Azores y cabo
vierde, centum læucis versus Occidentem et Meridiem,” &c. Art. 8,
“prohibet aliis accessum ad illas insulas pro mercibus habendis absque
Regis licentia.”

[192] Harrisse, _The Diplomatic History of America_, 78.

[193] Selden, _Mare Clausum_, i. c. xvii.

[194] Selden, _loc. cit._

[195] Camden, _Annales_, 225 (ed. 1635).

[196] _Hatfield MSS._, ii. 684. “Whether Your Majesty’s Subjects may
lawfully trade into the Indies.” Undated, but calendered under the year
1578.

[197] Hautefeuille, _Hist. des Origines, des Progrès, et des
Variations du Droit maritime international_, 15. Hall, _A Treatise on
International Law_, 142.

[198] _Rot. Parl._, iv. 79_b_. The petition declared that owing to
the fish having deserted the coasts where they used to be taken, the
fishermen had been forced to go to Iceland and other places for six or
seven years past in order to catch them. English fishermen, however,
had frequented Iceland long before that time.

[199] _Fœdera_, ix. 322.

[200] _Rot. Parl._, iv. 348, 378. 8 Hen. VI., c. 2.

[201] _Fœdera_, xii. 381.

[202] _Ibid._, xiii. 798.

[203] _State Papers, Dom._, Elizabeth, clxxx. 26, 15th July 1585.

[204] _Ibid._, ccxiii. 92.

[205] _Fœdera_, xvi. 278. A license granted in 1570 to an Englishman,
one Raymond Binge, for fishing at Iceland for seven years, gave
permission for his boats to be kept and wintered in the ports there, on
payment of the customs and abstaining from trading, as well as freedom
of fishing except where prohibited by royal edicts, reserved for the
king’s use, or granted to others. _Brit. Mus. Vespasian MSS._, C. xiv.
fol. 21.

[206] Complaint of the Mayor of Kingston-upon-Hull to Cecil, 2nd July
1599. _State Papers, Dom._, cclxxi. 68.

[207] _Fœdera_, xvi. 395, 432.

[208] _Brit. Mus. Vespasian MSS._, C. xiv. fol. 22. _Fœdera_, xvi. 431.

[209] _State Papers, Dom._, cclxxiv.

[210] _Fœdera_, xvi. 433.

[211] _Brit. Mus. Lansdowne MSS._, 142, fol. 380.

[212] 23 Eliz., c. 7, 1580-81. _Brit. Mus. Lansd. MSS._, 14.

[213] 39 Eliz., c. 10.

[214] The price of stock-fish had risen from £12 a last in 1584 to £18
and £20 in 1597, and the price of cured ling in the same time advanced
from £3 to £5, 5s. per cwt. _State Papers, Dom._, cclxv.

[215] A commission of eleven peers, three bishops, and two law-officers
had been appointed in 1593 for the repeal of the Act respecting the
importation of salted fish and herrings. _Ibid._, ccxliv. 84.

[216] _Ibid._, cxlvii. 21, 22.

[217] 27 Eliz., c. 11.

[218] 35 Eliz., c. 7.

[219] Jeninges, _A briefe discouery of the damages that happen to this
Realme by disordered and vnlawfull diet_, 1593. Hitchcock, _A briefe
note of the benefits that grow to this Realme by the observation of
Fish-Daies_, _Hatfield MSS._, 1595. _State Papers, Dom._, cclxv. 25.
_Remembrancia_, 391 _et seq._

[220] _Every Man in His Humour_, Act 3, sc. 4.

[221] Froude, _Hist. England_, iii. 69.

[222] King Edward’s Journal, in Burnet, _Hist. Reformation_, ii. (v. of
ed. 1865). Oppenheim, _Hist. Administration Roy. Navy_, 106.

[223] _Acts of the Privy Council of England_, iv. 37. 7th May 1552.

[224] Selden, _Mare Clausum_, lib. ii. c. xxvi.

[225] Raleigh, _A Discourse of the Invention of Ships_, Collected
Works, viii. 326. Monson, _Naval Tracts_, in Churchill’s _Collection of
Voyages and Travels_, iii.

[226] Monson, _op. cit._ Laughton, _Fortnightly Review_, Aug. 1866.

[227] Froude, _op. cit._, viii. 68. Laughton, _loc. cit._

[228] An undated State Paper, calendared under the year 1604, entitled
“Reglement for Preventing Abuses in and about the Narrow Seas,”
contains a claim by the king to a most absolute dominion over the Four
Seas (_State Papers, Dom._, James, xi. 40). It appears, however, to
be merely a copy of the similar regulation prepared in 1633 by Sir
Henry Martin (see p. 252). It is not contained in the volume of royal
proclamations published in 1609, and is not referred to by Selden. It
has no doubt been wrongly calendared.

[229] It is given in Appendix D, from _A Booke of Proclamations,
published since the beginning of his Majesties most happy Reigne ouer
England, &c., Vntill this present Moneth of Febr. 3, Anno. Dom. 1609._
_Cum Priuilegio_, p. 98.

[230] “Item, conventum et conclusum est, quod, dicto bello durante,
nullus subditus principum prædictorum, intra portus et sinus maris
quoscumque, flumina, ostia fluminum, gurgites, aquas dulces, stationes
navium, et præsertim stationem vulgariter vocatam _les Dunes_, aut
alia loca maritima quæcumque jurisdictioni dicti Regis Angliæ subjecta
aliquam navem mercatoriam, onerariam, armatam vel non armatam, onustam
seu vacuam, cujuscumque quantitatis aut oneris fuerit, de quacumque
natione eadem navis extiterit, capere, spoliare, diripere, seu merces,
victualia, aut armamenta quæcumque, ab eisdem navibus, aut earumdem
nautis auferre, nec eisdem vim, violentiam, aut molestationem aliquam
inferre possit, aut debeat,” &c. Dumont, _Corps Diplomatique_, IV. i.
352.

[231] This interesting document is printed in Appendix E, from _State
Papers, Dom._, James I., vol. 13 (1605), No. 11; No. 12 is another
of the same. It is not the original, but a copy, the names being all
in the same hand as the body of the paper. Diligent search among the
records has failed to furnish the “plott” referred to, but there
is no reason to doubt that the reproduction of it by Selden (_Mare
Clausum_, lib. ii. c. xxii.), and shown here on fig. 3, is an accurate
representation. Selden states that the plott or chart was engraved, and
copies sent to the officers concerned.

[232] It will be noticed from fig. 4, where the lines between the
headlands are shown on a modern map, that some of the “chambers” on the
east coast have entirely disappeared, no doubt owing to the erosion or
silting up of the coast at those places during the last three hundred
years.

[233] In stormy weather as many as 300 or 400 sail of Hollanders took
refuge in St George’s Channel at a time. _State Papers, Dom._, xlv. 23
(1609).

[234] Cunningham, _The Growth of English Industry and Commerce_, i. 424.

[235] Gardiner, _Hist. England_, i. 103.

[236] Declaratie van de visscherijen in Holland Zeeland en Vlaanderen.
Fruin, _Tien Jaren uit den Tachtigjarigen Oorlog_, 1588-1598, p. 186.

[237] _Descrittione Di M. Lodovico Gvicciardini Patritio Florentino,
Di Tvtti i Paesi Bassi, Altrimenti Detti Germania Inferiore_, Antwerp,
1567, p. 21. The value of the cod caught was placed at £150,000
sterling per annum.

[238] Hadrianus Junius, _Batavia_, p. 203. The work was written between
1565 and 1569, and published in 1588.

[239] Hitchcock, _A Pollitique Platt_. The author says that when he was
at the wars in 1553, more than 400 busses were set forth from twelve
towns in the Low Countries. Dee, _General and Rare Memorials_.

[240] Faulconnier, _Description Historique de Dunkerque_, i. 47, 53,
121.

[241] Van Meteren, _Historie der Nederlandscher ende haerder Naburen
Oorlogen_ (1614), fol. 466. This author says the maritime power of
the States was shown in the same year, when between 800 and 900 ships
departed for the Baltic within the space of two or three days’ tides.

[242] John Keymer’s _Observation made upon the Dutch Fishing about
the year 1601. Demonstrating that there is more Wealth raised out of
Herrings and other Fish in his Majesties Seas, by the neighbouring
Nations in one Year, then the King of Spain hath from the Indies in
Four._ London, Printed from the original Manuscript, for Sir Edward
Ford, in the year 1664. Keymer states that he found in Holland more
than 20,000 sail of ships and “hoyes,” more than was possessed by
England, France, Spain, and other eight countries in Europe. The same
figure is given by Sir Thomas Overbury, who visited the Netherlands in
1609 (_Observations in his Travels, upon the State of the Seventeen
Provinces_, 1626).

[243]

[Illustration: Fig. 5.--_Facsimile of Keymer’s Signature to his ‘Book
of Observations.’_]

_Observations touching Trade and Commerce with the Hollander, and Other
Nations; presented to King James, wherein is proved that our Sea and
Land Commodities serve to enrich and strengthen other Countries against
our own._ Raleigh’s _Collected Works_, viii. 351. Oldys, in his Life
of Raleigh, which was published in 1736, says there was some reason
to doubt whether Sir Walter Raleigh was the author of this treatise:
it was first printed in 1653, first associated with Raleigh’s name by
being bound up with his “Remains” in 1656, and first definitely said to
be Raleigh’s by Roger Coke in his _Detection of Court and State_; and
he gives reasons for the opinion that it was written by John Keymer and
not by Raleigh (_Collected Works_, i. 441). But, as Raleigh’s latest
biographer states, Raleigh still has the credit of it (Stebbing, _Sir
Walter Raleigh_, 267). I have, however, found the original signed
manuscript copy among the State Papers for 1620 (_State Papers, Dom._,
cxviii. 114, December 1620), and an unsigned and slightly altered copy
among those for 1623 (_State Papers, Dom._, clvii. 45). The original
is endorsed, _Keymers booke of observac͠ons for your moste excellent
Ma^{tie} touchinge trade and traffique beyond y^e Seas and in England
wherein he certaynly findeth y^t your sea and land Commodities doe
searve to inrich and strengthen other Cuntries agnst your Kingdome;
w^{ch} were y^e urgent causes why he endeavoured himselfe to take
extraordynarie paynes for y^e redresse: soe it maie stande w^{th}
your Ma^{ties} good Likinge_. 1620. It is subscribed, “Your Ma^{ties}
most loyall and true harted Subject, John Keymer,” and it is the same
treatise as is published in Raleigh’s _Works_, with a few trifling
verbal differences, while the concluding sentence is omitted in the
printed form--viz., “To conclude, England is a great and famous body
and would be farr greater, richer and stronger, if the ten fingers were
rightly imployed.” Further proof exists that Keymer was the author of
this much-discussed treatise. Its object was to show how the trade and
revenue might be greatly increased, and the author begged the king to
have a commission appointed to examine witnesses as to his proposals.
This commission was appointed two years later, as appears from the
following entry in the Grant Book in 1622: “20 Dec. Com̃ to Charles,
pr. of Wales, John Bp. of Linc., Ld Keeper of y^e g. seale, Lewis Duke
of Lennox, Geo. Marquis Buck., &c. to hear the propositions which shall
be made by John Keymer and to consider whether they will tend to the
good of y^e King, and commonwealth as is pretended” (_State Papers,
Dom._, Jas. I. (Grants), vol. 141, p. 352). There does not appear to
be any further mention of the matter. This John Keymer is supposed
to be the same as a person of that name who was licensed by Raleigh
about 1584 to sell wines at Cambridge. Among the MSS. at Hatfield are
letters from him, dated in 1598, to Cecil and the Earl of Essex, in
which he speaks of his services, of “his travels and labours to find
out the practises used beyond the seas to their advantage and our great
danger and how to prevent the same,” and of his works, one of which
he said showed how to increase the Queen’s treasure above £100,000 a
year. He also corresponded with Carleton in 1619. In his address to
the king, prefixed to the treatise of 1620, he mentions that “about
fourteen or fifteen years past” he had presented him with “a book of
such extraordinary importance for the honour and profit” of his Majesty
and posterity, which was doubtless the earlier tract referred to above,
and would fix its date about 1605 or 1606. He was also engaged on the
fishery question about 1612 (doubtless in connection with the proposed
society), because Tobias Gentleman, whose work was published in the
spring of 1614, tells us that he was visited “some two yeares past”
by “Maister John Keymar,” who was collecting information about the
fisheries, with the view of placing it before the Council (_Englands
Way to Win Wealth_, 3).

The copy of Keymer’s tract, which is among the State Papers of 1623,
is unsigned, and is simply calendared as “Tract addressed to the King,
consisting of observations made by the writer in his travels on the
coasts,” &c.; but the person who calendared the paper has written
on it, in pencil, “q. By Sir Walter Cope (_ob._ 1614). See 1612, a
letter or discourse to the King, to which this was attached,” and has
added the name “Walter Cope” at the end. The paper referred to (_State
Papers, Dom._, vol. 71, No. 89) has written on it in the old hand, “Sr
Walter Cope to K.,” and “Anno Domini 1612. A present for the Kinges
most excellent Maiestie.” It is only mentioned here because the draft
of it, which is the next paper in the volume (No. 90) and has several
corrections on the first page, bears the following note in one of the
corners, “Nota Mr Chancellor and Malynes wife (?) the ... of Maye,
Ralegh.” The meaning is obscure, but perhaps it may be surmised from
the contents that Malynes, who was at that time concerned with the
fishery society proposals, had submitted it to Sir Walter Raleigh, and
that ultimately it was presented to the king by Sir Walter Cope, who
was on intimate terms with him.

[244] _Englands Way to Win Wealth, and to employ Ships and Mariners;
or, A plaine description what great profite it will bring vnto the
Commonwealth of England, by the Erecting, Building, and aduenturing
of Busses, to Sea, a Fishing: With a true Relation of the inestimable
Wealth that is yearly taken out of his Majesty’s Seas by the
Hollanders, &c._, by Tobias Gentleman, Fisherman and Mariner, London,
1614.

[245] _State Papers, Dom._, Jas. I., xlvii. 114.

[246] Keymer, _Observations on Dutch Fishing_; Gentleman, _op. cit._;
Buchanan, _Rerum Scot. Hist._, lib. i. c. xlix; Leslie, _De Origine
Moribus et Rebus Gestis Scotorum_, 39; _Register Privy Council of
Scotland_, ii. 656; _MSS. Advoc. Lib._, 31. 2. 16.

[247] _State Papers, Dom._, xxxii. 31. Other accounts are as follows.
In 1609 the Earl of Salisbury wrote (erroneously) that while fifty or
sixty years before only one or two hundred foreign vessels came to
fish on the east coast, they then numbered two or three thousand sail
(Winwood, _Memorials_, iii. 50). Sir William Monson in the same year
placed the number of Hollander busses at 3000 and the number of men
at over 30,000 (_State Papers, Dom._, xlvii. 112, 114). Sir Nicholas
Hales also estimated the number of men at 30,000 (_Ibid._, xlv. 23;
cclxxiv. 67). In the following year the Dutch ambassadors admitted that
20,000 men were employed in the great herring fishery, as well as other
40,000 in connection with it on shore (_Ibid._, lxvii. 111). A little
later, in 1616, the Secretary to the Duke of Lennox told the Dutch
ambassador that in the previous June, 1500 or 1600 Hollander busses
were at Shetland (_Add. MSS. Brit. Mus._, 17,677, J, fol. 160). In 1618
the number fishing on the east coast of Scotland sometimes exceeded
2000 sail (_MSS. Advoc. Lib._, 31. 2. 16). Malynes in 1622 placed the
number of busses from Holland and Zealand at 2000 (_Consuetudo vel Lex
Mercatoria_, 89). Two years later a Spanish agent described them as
consisting of 2400 vessels, guarded by 40 men-of-war, and scattered
over an area of 200 leagues (_State Papers, Dom._, dxxi. 30). In 1629
Secretary Coke, who derived the information from a Scottish source,
said the Hollander busses sometimes amounted to 3000 sail; three years
later he put the number in connection with the fishery off Yarmouth
at “above a thousand”; at this time the French vessels numbered 40
(_Ibid._, Chas. I., clii. 63; ccxxix. 79). Beaujon (_op. cit._, p. 64)
expresses the opinion that 2000 busses were the maximum number.

[248] To Pomerania, Poland, “Spruceland,” Denmark, Liefland, Russia,
Sweden, Germany, Brabant, Flanders, France, “Lukeland,” England,
Greece, Egypt, Venice, Leghorn, and all over the Mediterranean, and
even as far as Brazil.

[249] _State Papers, Dom._, xlvii. 112.

[250] To the King’s most excellent Majesty: A Declaration of the
fishing of Herring, Cod, and Ling, and how much the favour or disfavour
of Your Royal Majesty concerneth the Hollanders. _Ibid._, xxxii. 30;
cclxxix. 67.

[251] Misselden, _The Circle of Commerce, or the Balance of Trade_,
1623, p. 121. It may be said that the aggregate quantity of herrings
now taken in the North Sea, and mostly by Scottish and English
fishermen, equals about 3,500,000 barrels in a year.

[252] Manship, _History of Great Yarmouth_, 119, 121.

[253] Gentleman, _op. cit._, 7, 32.

[254] Keymer, _Observations on Dutch Fishing_.

[255] Manship, _op. cit._, 97, 120. The work was written between 1612
and 1619.

[256] Gentleman, _op. cit._, 36; Swinden, _History of Great Yarmouth_,
465; _State Papers, Dom._, xlvii. 112, 114.

[257] Meynert Semeyns, _Een corte beschryvinge over de
Haring-visscherye in Hollandt_.

[258] Keymer, _Observations on Dutch Fishing_; Monson, _Naval
Tracts_, in Churchill’s _Collection_, iii. 467; H. Robinson, _Briefe
Considerations concerning the Advancement of Trade_, p. 50; _England’s
Great Interest by encouraging the setting up of the Royal Fishery_,
&c., &c.

[259] A Demonstration of the Hollanders increase in Shipping and our
Decay herein. _State Papers, Dom._, xlvii. 112.

[260] _The Trades Increase._ Keymer, _Observations on Dutch Fishing,
&c. Observations touching Trade, &c._, Raleigh’s _Works_, viii. 374.
_State Papers, Dom._, xlviii. 114.

[261] _A Discourse of the Invention of Ships. Works_, viii. 325.

[262] In one of the most elaborate and detailed of the proposals for
the building of busses, the daily allowance of beer for each man was to
be a gallon, as in the king’s ships: the buss was to go to sea with 56
herring barrels full of beer. E. S.--_Britaines Bvsse, or a Computation
as well of the Charge of a Bvsse or Herring fishing ship as also of the
Gain and Profit thereby._ London, 1615.

[263] Keymer, _Observations on Dutch Fishing_. The industrious
Hollander was held up as an example to the English. “If any be so
weak,” said one writer, “to think this mechanical fisher trade not
feasible to the English people, to him I may say with Solomon, Go to
the Pismire! Look upon the Dutch! Thou Sluggard! learn of them! They
do it daily in the sight of all men at our own doors, upon our own
coasts.” “Shall we,” said another, “neglect so great blessings? O
slothful England, and careless Countrymen! Look but on these fellows,
that we call the plump Hollanders; behold their diligence in fishing
and our own careless negligence.”

[264] _State Papers, Dom._, James I., lxxi. 89. Malynes, who, as
already suggested in the note on page 128, may have been the author
of Cope’s tract, said exactly the same thing in 1622--that there had
been a continual agitation for over thirty years to make busses and
fisher-boats. _The Maintenance of Free Trade_, 42.

[265] J. Bowssar to Sir Julius Cæsar, 14th October 1607, _Brit. Mus.
Lansdowne MSS._, 142, fol. 373.

[266] A Project for to restore unto the King’s Majestie his Dueties of
Fishing by re-establishing ye Auncient Manner of fishing for herringe,
Coad, and Ling, for maintenaunce of Navigation and Marryners with
greatt increase of Traffique, 22nd April 1609, _Brit. Mus. Lansdowne
MSS._, 142, fol. 371. _State Papers, Dom._, xlviii. 95.

[267] Treaty of Antwerp, 30 March/9 April 1609.

[268] A rubric in the copy at the Record Office says, “By Proclamation
first, most convenient to all the world.”

[269] _State Papers, Dom._, xlviii. 94. It is written on parchment and
imperfect, and endorsed, “Mr Rainsford’s Answeares.”

[270] See p. 64.

[271] To the King’s Most excellent Majestie: A Declaration of the
Fishing of Herring, Codd, and Ling, and how greatly the favour or
disfavour of Your Royal Majesty concerneth the Hollanders. _State
Papers, Dom._, xxxii. 32. A Declaration how much the Favour or
Disfavour of Your Royal Majestie doth concern the Prosperity or
Adversitie of the Hollanders: and what inconvenience may ensue, and how
to praevent the same to the honour and safety of your Majesty and the
tranquillitie of the Netherlanders. _Ibid._, xlv. 23.

[272] A Demonstration of the Hollanders Increase in Shipping and our
Decay herein. _Ibid._, xlvii. 112. Particulars of the Lawes observed by
other Nations touching fishing, and the Advantages that would accrue
from establishing an English Fishing fleet. _Ibid._, 114.

[273] _Records of the Convention of the Royal Burghs of Scotland_, ii.
203, July 2, 1605.

[274] _State Papers, Dom._, xxxii. 31.

[275] _State Papers, Dom._, xlv. 22. The petition was signed by
fishermen of Yarmouth, Dover, Hastings, Rye, Hythe, and Folkestone. It
is said in the petition that they had previously craved both the king
and the Council for redress, without avail.

[276] The author of _Britaines Buss_ had heard, but did not believe,
stories of the “very foul and insolent dealing of their bussmen with
our poor weak fishermen upon our coasts.” Tobias Gentleman, who admired
the Dutch for their industry, said they scorned us only “for being so
negligent of our profit, and careless of our fishing; and they do daily
flout us that be the poor fishermen of England, to our faces at sea,
calling to us and saying, ‘Ya English, ya zall, or oud scoue dragien,’
which in English is this: ‘You English, we will make you glad for to
wear our old shoes.’” _Englands Way to Win Wealth_, p. 44.

[277] _Brit. Mus. Lansdowne MSS._, 142, fol. 375. A copy of the letter
of the Lords of the Council, in the handwriting of Sir Julius Cæsar,
is as follows: After our very hearty recommendations. Whereas his
Majesty hath of late been moved vpon many consyderations arising from
the complayntes of his subiects, to take some course of restraynt of
many inconveniences depending vpon the excesse of libertie, w^{ch} is
taken by the subiectes of forraigne princes and states to fish vppon
his coast; By which, not onlie his owne ffishermen receive wrong in
their fishing, but the verie Coast-Townes themselves are much decayed
for lack of meanes to sett their people on work. To w^{ch} end hee had
resolved to set forth a proclamation to th’effect of that w^{ch} is
hereinclosed:

Fforasmuch as vppon perusall of some Treaties from King Henry 7_{ths}
tyme till this daye betweene the Crowne of England and the house of
Burgundy, we fynde certeyne clauses, by which there maye arise some
question how farre any such Prohibition maye concurre with the practice
of the same for so much as shall concerne the subiects of that Estate;
Of w^{ch} particulars it is necessary that some deliberation were
taken, beefore his Ma^{tie} proceeded to a generall execution of the
same: We have thought good to requyre yow ioyntly and severally to
peruse all those Treaties, and to consyder of them, and all other
thinges, by w^{ch} the lawfullnes or vnlawfulnes maye appeare of this
proceeding; Which being don wee shall expect some report from you for
his Ma^{ties} better satisfaction.

Wherein wee doubt not but yow will proceede w^{th} all convenient
expedition. And so will bid yow hartelie farewell.

Ffrome the Court at Whitehall
first of Ffebruarie, 1606.

Mr Secretary Herbert.
Mr Chancellor of the Exchequer
Sr. Daniel Dun.
Sr. Thomas Crompton.
Sr. Christopher Perkins.

Yo^r Verie loving friendes,
Subscribed by the

1. L. Chancellor.
2. L. Treasour.
3. L. Admirall.
4. The Earle of Worcester.
5. The Earle of Salisbury.
6. The Earle of Marr.
7. The L. Stanhop.

This copy is dated 1st February 1606, and the copy of the report of
the Committee is also dated 1606, which would imply that the matter
had been before the Privy Council in that year. It appears, however,
from other evidence that Sir Julius Cæsar made a mistake in dating the
copies.

[278] _Brit. Mus. Lansdowne MSS._, 142, fol. 377. In Sir Julius Cæsar’s
handwriting, and endorsed, “A copy of a letter from Mr Secretary
Herbert, myself, and others to the L^{ds} of the King’s P. Councell,
touching the prohibition of strangers fishing on the coasts of
England,” &c. This important paper reads as follow: Our humble duties
dewe to y^r good LL^{ps}. We have according to y^r commandement,
considered of the liberty w^{ch} is taken by the Subiectes of forreine
Princes and States to fish vppon the kings Ma^{ties} coasts by w^{ch}
not onely the English fishermen receive wrong in their fishing but
the very coast townes themselves are much decayed for want of meanes
to set their people on work; and we have considered likewise of the
proclamation for the restraint of those many inconveniences depending
vppon the excesse of such strangers fishing: We haue also pervsed the
treaties frõ Henry the 7th time till this day betweene the Crowne of
England and the House of Burgundy, and we have considered of them, and
of all other thinges by w^{ch} (as wee conceave) the lawfulness or
vnlawfulness may appeare of this proceeding. And are of opinion, that
the K^s Ma^{ty} may w^{thout} breach of any treatyie nowe in force,
or of the lawe, vppon the reasons specified in the proclamation sent
vnto vs, restreine all strangers frõ fishing vppon his coasts w^{thout}
license, in such moderation and after such convenient notice given
thereof by publik proclamation, as his Ma^{ty} shall think fit.

And so we most humbly take our leaves. 14 febr. 1606.

Yo^r L^{dships} humbly at commandment,

J. Herbert. Jul. Cæsar. Daniel Dun. Christoph. Parkins. Tho. Crompton.

From the erasures and corrections (see Fig. 6) there seems little doubt
that the paper is the original draft.

[279] _Brit. Mus. Lansdowne MSS._, 142, fol. 379. In Cæsar’s
handwriting.

[280] See Appendix F.

[281] Perhaps an oblique reference to _Mare Liberum_.

[282] _State Papers, Dom._, xlv. 24. _Proc. Coll._, No. 11.

[283] Salisbury to Cornwallis, 8th June 1609. Winwood’s _Memorials of
Affairs of State in the Reigns of Q. Elizabeth and K. James I._, iii.
49.

[284] Muller, _Mare Clausum_, _Bijdrage tot de Geschiedenis der
Rivaliteit van Engeland en Nederland in de Zeventiende Eeuw_, p. 52.
Bosgoed, _Bib. Pisc._, 347. Resolutiën ... van Vergaderinge van de
Heeren Staten van Hollandt ende West-Vrieslandt, 2/12 June 1609. “Ter
Generaliteyt’s lands recht voorstaan ter saake van het Engelsch placaat
op het visschen op de kusten en zeeën van Groot Brittannien en Yrland.”

[285] “Ende oic Sijne authoriteyt eñ macht die hy in die See heeft
voir de werelt manifest te maecken.”

[286] Sir George Carew to Salisbury, 20th June 1609. Acknowledges
his lordship’s letter, “according the request made by the ffr. Amb^r
for one year’s Respite longer for the ffishers of this nation,” and
expressing his pleasure that other considerations of state so fell out
as to give his Majesty cause to grant them that favour, “for it is like
to increase the amity of the two crowns.”

[287] Caron to the States-General, 13/23 July 1609. _Brit. Mus. Add.
MSS._, 17, 677.

[288] Winwood to Salisbury, 6th September 1609. _Memorials_, iii. 64.

[289] The assize-herring was thus described by Skene, in _De Verborum
Significatione_, annexed to the laws of Scotland, printed in 1597.
“Assisa Halecum. The assise herring signifies ane certain measure and
quantity of herring, quilk perteinis to the king as ane part of his
custumes and annexed propriety, _Jac._ 6, p. 15, c. 237, for it is
manifest that Hee shuld have of everie Boat that passis to the drave,
and slayis herring, ane thousand herring of ilk tak that halds, viz. of
Lambmes tak, of the Winter tak, and the Lentrone tak”--that is, of the
summer, winter, and spring fishings. The assize-herrings appear to have
been originally a contribution to the king’s kitchen. In 1526 James V.
granted assize-herrings to Stuart of Ardgowane (_Origines Parochiales
Scotiæ_, ii. 83). In 1593, in an Act of the Parliament of Scotland,
entitled “Annexatioun of the Propertie of the Croun that wes nocht
annext of befoir,” the assize-herrings were included (Jac. VI., 1593,
c. 32. _Acta_, iv. 28), and an Act of 1597, entitled “Assysis hering
may nocht be disponit,” ordained that no infeftment or alienation in
few ferm or otherwise, and all rentals and dispositions whatsoever,
past or to come, were to be null and void, because they pertained to
the king as part of his customs and annexed property (_Acta_, iv. 131).
Later the assize-herring was commuted into a money payment. An Act
of Charles I. in 1641 (cap. 117), entitled “Act anent the Excise of
Herring,” on the ground that the collection of the herrings was “very
hard and difficult,” commuted the thousand herrings in the Firth of
Lothian into a money payment of £6 Scots. In the eighteenth century,
when it had been for the most part granted to individuals, or farmed,
it took the form of a tax ranging from £4 Scots to £10 Scots per boat
or per net, and was felt as a grievous burden. In the Firth of Forth
each boat that was “size-worthy” (viz., that caught 3000 herrings
during the whole season) had to pay ten shillings as “size-duty.” On
the west coast it amounted to £10 Scots, or sixteen shillings and
eightpence sterling, whether herrings were caught or not. With regard
to the gross value of the tax, those of the great Dunbar fishings were
leased in 1614 for five years for £1000 Scots, and a yearly rent of
2000 merks (_Reg. Privy Council Scot._, x. 282). In 1613 the value of
the “duty of the tack of the assize-herrings,” amounting to fourteen
lasts, which the Earl of Argyle rendered for Lochfyne, was estimated to
be about £36 or £38 sterling (_Melrose Papers_, i. 124). In 1598 the
assize-herring from the “east seas” was estimated to amount to 1120
dry “killing” (cod), which shows it was sometimes paid in other fish;
in 1656-57 it was equal to £130 sterling (Chalmers, _Caledonia_, ii.
497); in 1629 Captain Mason claimed no less than £12,489, 7s. sterling
as the value, with interest, of the assize-herrings of the Hebrides and
North Isles granted to him by James for the years 1610-11, and not paid
(_State Papers, Dom._, cliv. 13).

[290] Arguments for Collecting the Assyze herring from all Strangers
fishing in the North Seas of Scotland, and Answers to some objections
proponet be Sir Noel Caron. _State Papers, Dom._, xxxii. 31.

[291] Winwood, _Memorials_, iii. 105, 135, 146, 162. Muller, _op.
cit._, 56.

[292] _State Papers, Dom._, xlvii. 111. “2. For that it is by the Lawe
of nacions, no prince can Challenge further into the Sea then he can
Com̃and w^{th} a Cannon except Gulfes w^{thin} their Land from one
point to an other. 3. For that the boundlesse and rowlinge Seas are as
Com̃on to all people as the ayre w_{ch} no prince can prohibite.” The
paper is endorsed “Reasons vsed by the Hollanders for the Continuance
of Fishing Contrarie to the proclamation made in May 1609 forbidding of
strangers to fish,” and there is a note, apparently in Cæsar’s writing,
saying, “This note was sent by Emanuell Demetrius who was present att
the discourse.” It is misdated “Aug. 1609.” The endorsements appear
to have been made after 1612, because at the end it is said, “It was
answered by the _late_ Lord Treasr. Salisburie att a hearing,” &c. A
list is given of those present at the conference--viz., the Earls of
Salisbury, Northampton, Nottingham, Suffolk, Shrewsbury, and Worcester,
Mr Secretary Herbert and Sir Julius Cæsar, the “Standers by” being Sir
T. Edmondes, Sir Daniel Dunn, Sir Christopher Perkins, Sir William
Wade, and Mr Levinus Emanuell Demetrius,--probably the Levinus Muncke
of the Dutch and other records. It is to be noted that the argument
as to the limitation of the territorial sea by the range of guns was
not contained in the instructions to the Dutch, as printed by Aitzema
(_Saken van Staet en Oorlogh_, ii. 406) and Vreede (_Vrijheid van
Haringvaart_, 6; compare Muller, _Mare Clausum_, 58, 91), and is not
referred to by them in their Journal, where, however, they say they
put forward “other reasons” than those they recite (Muller, _Mare
Clausum_, 59). Van Meteren, whose work was published in 1614 (_Historie
der Nederlandscher ende haerder Naburen Oorlogen, &c._, fol. 650),
reports, however, that there was a great dispute as to how far a
country’s limit might extend into the open sea, and the brief note
of Levinus seems to be the only record of it. (“Sy seyden mede, dat
het een groote dispute ware, hoeverre elcx Laudts Custen ofte Limiten
inde groote wijde Zee Oceane mochte strecken.”) The document is of
interest not only from the clear enunciation of the doctrine at so
early a period, but because there are grounds for thinking that the
idea may have originated in the fertile brain of Grotius. Competent
Dutch authorities believe that Grotius either himself drew up the
instructions dealing with the fishery question or was consulted in
their preparation; and the fact that the argument is not contained in
the official instructions scarcely weakens the supposition. It was of
so drastic and novel a character to be urged against the pretensions of
King James that the Dutch, anxious to conciliate him, may have followed
a practice not uncommon in diplomacy, and kept it in the background
only to be made use of if a suitable occasion arose. It is, moreover,
known that Grotius had a close personal relationship with Elias van
Oldenbarnevelt, the envoy to whom the fishery negotiations were
specially entrusted.

[293] Vreede, _Vrijheid van Haringvaart en Visscherij_. _Nota, in den
Jare 1610, door de Nederlandsche Gezanten aan de Engelsche Regering
ingediend (Bijdragen voor Vaderlandsche Geschiedenis en Oudheidkunde,
Derde Deel._ Arnhem, 1842). Muller, _op. cit._, 57; _State Papers,
Dom._, xlvii. 111; _Brit. Mus. Lansdowne MSS._, 142, fol. 362. Vreede
thinks it probable that the instructions were drawn up by Grotius;
Muller believes that he was at all events consulted on the matter.

[294] _State Papers, Dom._, xlvii. 111. Vreede, _op. cit._ Muller,
_op. cit. Brit. Mus. Lansdowne MSS._, 142, fol. 362. “Answers for
prohibiting of strangers fishing upon the English coastes without the
King’s license, 5th May 1610”--in the writing of Sir Julius Cæsar.

[295] “Niet door sollicitatiën van eenige courtisanen ofte hovelingen.”

[296] The Lords of the Council to Winwood, _Memorials_, iii. 166.

[297] _State Papers, Dom._, xlviii. 92.

[298] Sir Walter Cope to the king, _State Papers, Dom._, lxxi. 89. See
note, p. 128.

[299] _The Maintenance of Free Trade_, 42 (1622). He mentions the
reasons given by the powerful companies for their action, but it was
caused by their fears for their monopolies.

[300] _State Papers, Dom._, lxxvii. 79. The Earl of Northampton to Sir
Thomas Lake, 4th July 1613. _Ibid._, lxxiv. 23. The queen, who was
fond of the banquet and the masque, was often in financial straits.
Chamberlain wrote to Winwood in 1609 that she had been melancholy about
her jointure, and that £3000 a-year had been added to it out of the
customs, with a gift of £20,000 to pay her debts. _Memorials_, iii. 117.

[301] Gentleman, _Englands Way to Win Wealth, &c._; E. S., _Britaines
Buss; The Trades Increase_.

[302] In 1609 Sir Nicholas Hales told the king that he had been
informed “the Hollanders were petitioners to the Queen to grant them a
term of years in the seas for the fishing of herring, cod, and ling.”
_State Papers, Dom._, xlv. 23.

[303] Wotton to Sec. Winwood, Hague, 20th March 1614.

[304] Archbishop Abbot and Lord Chancellor Ellesmere to Thomas Wilson,
24th August 1614. _State Papers, Dom._, lxxvii. 80. It is endorsed,
“The letter to me, 24th Aug. 1614, sending for me from Harford and
for the transcribing an abstract of all things out of my papers which
might concern his Majesty’s jurisdiction on the sea, which I did
and delivered it to Mr Attorney-General, Sir Francis Bacon, by the
commandment of the Lord Chancellor and the Archbishop of Canterbury.”

[305] Caron to States-General, 27 Aug./6 Sept. 1614. _Brit. Mus. Add.
MSS._, 17, 677, H.

[306] Muller, _op. cit._, 91, 92.

[307] 26th September 1614.

[308] _Records of the Convention of the Royal Burghs of Scotland_, ii.
455. Anstruther Easter, one of the Fife villages, asked that the costs
(£400 Scots) should be reimbursed to them for obtaining the decree
against Mason “for exacting of thame certane excyse hering and fishes
at the fishing in Orknay and Zetland.”

[309] _State Papers and Correspondence of Thomas, Earl of Melros_, i.
130.

[310] _Reg. Privy Council Scot._, x. 231. _Rec. Convent. Roy. Burghs
Scot._, ii. 540.

[311] The Lords of the Council to the king, 17th May 1614. _Melrose
Papers_, i. 130. “It wes fundin,” wrote the Lords, “by vniforme
voices and consent, without ony kynd of contradictioun, that the
assise dewytie aucht onlie to be payit for the hering brought freshe
and greene to land, and that the hering whilkis ar maid, saltit, and
barrellit vpoun the sea, and maid reddye for the transporte, hes nevir
bene in vse to pay ony dewytie.”

[312] _Loc. cit._ The “patent” was the treaty of 1594. See p. 81.
It may be mentioned that Mason, in his petition to Charles I. (see
p. 153 _note_), stated that in 1611 he collected “some part” of the
assize-herrings, but that upon the marriage of the Princess Elizabeth
(February 1613) “the States ambassador made suit to the king for the
remission of the said assize-herrings due by their nation, which
was granted.” We have discovered no other evidence of this. Loose
statements were often made on the subject by English writers and
certain foreign authors, as Rapin (_Hist, d’Anglet._, vii. 58), and
Wagenaar (_Vaderl. Hist._, ix. 318) following him, that the Dutch
agreed to pay an annual sum for liberty to fish on the British coasts.
The error was elaborated by others, as by Lediard in his great work
(_Naval History of England_, i. 420), who says: “In the year 1608
(_sic_) King James published a proclamation prohibiting all foreign
nations to fish on the coast of Great Britain. This prohibition, though
general, was designed against the Dutch; and it occasioned the Treaty
the year following whereby they engaged to pay an annual sum for leave
to fish--an evident acknowledgment of the English Dominion of the Seas.”

[313] _Rec. Conv. Roy. Burghs Scot._, ii. 323, 350, 354, 374.

[314] Winwood to Carleton, 14/24 September 1616. _Letters from and to
Sir Dudley Carleton, Knt., during his Embassy in Holland; from January
1615/6 to December 1620_, p. 52.

[315] Caron to the States-General, 25 Aug./4 Sept. 1616. _Brit. Mus.
Add. MSS._, 17,677, J, fol. 152. In an account of the oppressions of
Lord Robert Stewart in the Orkneys and Shetlands in the sixteenth
century, it is stated that that nobleman laid heavy tolls upon the
Dutch fishermen and the Norwegian traders. In 1575 the inhabitants
complained that he compelled “the dogger boats and other fishers of
this realm to pay to him great toll and taxis bye auld use and wont,
to wit, ilk boat ane angel noble, ane hundreth fish, and twa bolls
salt” (_Oppressions of the Sixteenth Century in the Islands of Orkney
and Zetland_, xlviii. 4). It appears from a complaint of merchants of
Bremen, in 1614, that it had been a custom “past memory of man” for
each ship arriving at the Orkneys to pay six angels and one dollar for
ground-leave and water-leave (_Reg. Privy Counc. Scot._, x. 247); and
the Dutch are said to have given to the agent of the Earl of Orkney a
barrel of salt for his “oversight” of each ship, and to have offered
the Earl for each ship “an angell and ane barrell of birskate (biscuit)
bread,” while he demanded “no less than ane double angell or ane Rose
noble at the least” (_MSS. Advoc. Lib._, 31. 2. 16).

[316] See p. 81. The treaty did not contain any stipulation of the
kind; and, moreover, the Scottish copy was then amissing.

[317] Muller, _Mare Clausum_, 107. _Brit. Mus. Add. MSS._, 17,677, J,
fol. 153 _et seq. Lansdowne MSS._, 142, fol. 410. _Reg. Privy Counc.
Scot._, xi. 605, 608.

[318] By the Scots Act, 1 James I., May 1424, regarding the “custome
of horse, nolt, scheepe, had furth of the realm, and of herring,” it
was ordained that the following should be paid: “of ilk thousand of
fresche herring sauld, of the Sellar one penny, and of ilk last of
herring, tane be Scottis-men barrelled, foure schillinges, of ilk last
be strangeris taken, sexe schillinges.”

[319] Caron to the States-General, 25 Aug./4 Sept., 12/22 Sept.,
19/29 Sept. 1616. _Brit. Mus. Add. MSS._, 17,677, J, fol. 152-166.
The statement of Lennox that the tax was a barrel of herrings or ten
shillings agrees with the statements of the Dutch skippers, who,
however, added twelve cod-fish (“Een tonne harinck van elcke bu sse oft
een Angelott daervooren met twelff cabillauwen”).

[320] Carleton, _Letters_, 156, 157. Muller, _op. cit._, 110. _Brit.
Mus. Add. MSS._, 17,677, J, fol. 213_b_. _Lansdowne MSS._, 142, fol.
410. _State Papers, Dom._ Collection, Charles II., vol. 339.

[321] Carleton, _Letters_, 156. Caron to the States-General, 3/13 Aug.
1617; Carleton to the States-General, 27 Aug./6 Sept. _Brit. Mus. Add.
MSS._, 17,677, J, fol. 210, 213. _State Papers, Dom._ Collection,
Charles II., vol. 339.

[322] Carleton, _Letters_, 168, 169, 172, 176, 186. Muller, _op. cit._,
111.

[323] _Brit. Mus. Lansdowne MSS._, 142, fol. 398, 400. “The State of
the Case between his Majesty and the States of the United Provinces,
touching the remanding to his Majesty of a Delinquent,” 19th November
1617. In Cæsar’s handwriting. It describes the circumstances of Brown’s
capture. The counsel whose opinion was obtained were “W. Byrde (? Sir
Wm. Bird, Dean of the Arches), H. Marten, and Hy. Styward.” “Brown,
his Majesty’s subject of the Kingdom of Scotland, was by authority
from that State sent in a pinnace of the King to the subjects of the
United Provinces, who were then fishing for herrings upon the coasts of
Scotland, to demand a certain acknowledgment claimed by his Majesty,
as due unto him in the right of that crown;” that “while delivering
his errand he was arrested and carried prisoner to Holland by the
Dutch commander, who pretended he had warrant and commission from the
Lords the States so to do; that his Majesty (having represented this
indignity by his ambassador there to the Lords the States, the latter
disavowed the act of the captain) requireth the offender there, to be
remanded unto himself here to receive as to justice shall appertain.
_The Question_--Whether this offender ought to be sent herein to
his Majesty as is required. _Answer_--There are good authorities
that if a subject of one State commit a heinous crime within the
territory of another State (though against a private person), the
subject so offending ought to be remitted to the place where the crime
was committed, if it be required.” There were also opinions to the
contrary, but “two very particular circumstances about this offence
seem necessarily to enforce the remission of the Dutch captain to his
Majesty (1) taken from the person of Brown, who was a public messenger
sent by the State of Scotland on the affairs of the Prince, and ought
to have been inviolable by the Law of Nations, and therefore a wrong
and abuse done to him was _contra jus gentium_; (2) taken from the
manner of the wrong done, which was _nomine publico_--viz., by a
pretended commission from the Lords the States.”

[324] Carleton, _Letters_, 219-263. Muller, _op. cit._, 113.

[325] Crail, Anstruther, and Pittenweem, in Fife, and Musselburgh and
Fisherrow, on the opposite side of the Firth of Forth.

[326] 12th March 1618. _Reg. Privy Counc. Scot._, xi. 329.

[327] Record imperfect.

[328] _Reg. Privy Counc. Scot._, xi. 328, 330.

[329] Carleton, _Letters_, 259.

[330] King James to Sir D. Carleton, 4th May 1618. “For the other
part, which is y^e ancient custom alleadged by O^r Subjects that they
(the Dutch) should not fish within Kenning of Land, of which they
make shew to be ignorant, and would understand what is meant by it:
you may say that O^r Subjects do conceave that Custom to be that no
strangers should fish either within the Creeks of O^r Land or within
a Kenning of the Land as Seamen do take a kenning, and insisting
upon this interpretation of O^r Subjects’ meaning, you shall observe
curiously their reply, and what scope and liberty they do limit to
themselves in their fishing, and whether they understand that they may
fish where they list, near or far off, or that they may be confined
to any reasonable bounds, for thereupon will depend a great part of
that resolution which may be taken hereafter in a matter of so great
moment as this is, and the answer you shall receive you may either
advertise by writing, or bring with you, as you shall find O^r service
to require.” _State Papers, Dom._ Collections, Chas. II., vol. 339.
In a later communication to the States-General Carleton described the
land-kenning thus: “Ce qui est une limite bien entendue par gens de
Marine, et appellée en ces quartiers là _The Kenning of the Land_, et
icy _de kennis vant landt_.” Dr P. P. C. Hoek informs me that “het land
verkennen” is even now the technical Dutch expression when a sailor
comes near the coast without knowing at what point he approaches it.

[331] Muller, _Mare Clausum_, 114.

[332] “Ane True Relatione of the Greifs and Wrangs qlks the Inhabitants
of the Isles of Orknay and Schetland and Others his Ma^{ties} Subjects
Fishars within ye Kingdome of Scotland sustains be the Hollanders
and Hamburghgers and wha within these few Zears are associat to the
Hollanders in the Fishing within his Ma^{ties} Seas in Scotland.” _MSS.
Advoc._, 31. 2. 16. It may be noted that the custom referred to in the
last paragraph was of Scandinavian origin.

[333] The Council to the king, 4th April 1618. _Melrose Papers_, i.
306, 307.

[334] 5th June 1618, _Groot Placaet-Boeck, inhoudende de Placaten
ende Ordonnantien van de H.M. Heeren Staten Generael der Vereenighde
Nederlanden, &c._, i. 707. In Fraser’s _Memorials of the Earls of
Haddington_ (ii. 66) there is printed the copy which King James sent to
Lord Binning. Sir Thomas Hamilton became Lord Binning in 1613, the Earl
of Melrose in 1619, and the Earl of Haddington in 1627.

[335] Answer by the States-General of the United Provinces to the
Propositions of the Ambassador of James VI. relative to the Herring
Fishery on the Coast of Scotland, 5th June 1618. Fraser, _Memorials_,
ii. 65. _Resol., St.-Gen._, 5th, 6th June. Muller, _op. cit._, 115.

[336] The king to Lord Binning, 11th June 1618. Fraser, _Memorials_,
ii. 85. Nothing seemed to be known of this treaty. James complained
that the States were not explicit. “This pointe” about the treaty, he
wrote, “they leave obscure, seeing they neyther expresse which of our
predecessouris it was, neyther whether he were our predecessour in
Scotlande or Englande.”

[337] Carleton to Naunton, 19th August 1618.

[338] The king to the Privy Council, 29th August 1618. _Reg. Privy
Counc. Scot._, xi. 440.

[339] P. 131.

[340] Hakluyt’s _Voyages_, i. 246.

[341] M’Pherson, _Annals of Commerce_, ii. 213.

[342] Muller, _op. cit._, 118. In a memorandum drawn up by Sir John
Coke in 1625, the Dutch are said to have first “intruded” in 1613.
_State Papers, Dom._, Chas. I., dxxii. 136. See also _Brit. Mus.
Lansdowne MSS._, 142, fol. 387 _et seq._

[343] Earl of Northampton to King James, August 2, 1612. _State Papers,
Dom._, lxx. 23.

[344] Chamberlain to Carleton, 27th October 1613. _Ibid._, lxxiv. 89.
M’Pherson, _Annals_, ii. 273.

[345] M’Pherson, _Annals_, ii. 274. Winwood, _Memorials_, iii. 480.
M’Pherson speaks of fifteen Dutch, French, and Biscay whalers and four
English “interlopers.” Muller (_Mare Clausum_, 120), quoting from a
contemporary Dutch account, mentions three Biscayers, three Spaniards,
two French, one Dunkirker, and two Hollanders. Both the Spanish and
French Governments protested against the action of the English vessels.
Digby wrote from Madrid (4th September 1613) that the English merchants
at St Sebastian were threatened in person and goods on the return of
the Spanish ships which had been prevented from fishing at “Greenland,”
and they were forced to remain indoors.

[346] A Trew Declaracion of the Discoverie of the mayne Landes,
Islandes, Seas, Ports, Havens, and Creekes, lyenge in the North-West,
North, and North-East partes of the World, _State Papers, Dom._, lxxvi.
51. Muller, _op. cit._, 121, 123. Carleton, _Letters_, 7.

[347] _Groot Placaet-Boeck_, i. 670. Aitzema, _Saken van Staet en
Oorlogh_, ii. 336. _State Papers, Dom._, xcix. 36.

[348] _Ibid._, xcix. 36-41. M’Pherson, _Annals_, ii. 287. Muller, _op.
cit._, 131.

[349] Carleton, _Letters_, 312.

[350] They were Johan van Goch, Ewout van der Dussen for Gelderland and
Holland, and Joachim Liens for Zealand. Holland had at first intended
to send Grotius. _Ibid._, 306.

[351] Among the Cæsar papers in the British Museum (_Lansd. MSS._, 142,
fol. 383) there is one dated 23rd December 1618, containing extracts
“noted out of a book called _Mare Liberum sive de Jure quod Batavia,
&c._, Lugd. Bat., 1609,” together with notes from Welwood’s _De Dominio
Maris_, answering the assertions in that book. It was doubtless a
memorandum to be used in the conferences with the Dutch ambassadors;
and on the back of it are scrawled jottings difficult to decipher,
headed, “The Kinges Speeche touching the Dutchemen’s fishing upon the
coasts of Great Britain and Ireland,” to the following effect: “1. The
treaty never so opportune as now when they fearest it most and their
State least settled; in ill terms with France and Spain. 2. In the East
Indies we can match them, and so in the north voyage (Greenland ?). The
French King taketh part with Barnevelt. The King of Spain prepareth
against Venice. What the King of Denmark, the Princes of the Union,
the ... and the rest of the Protestants think of any falling out with
the Low Countries.” It may be noted that this memorandum contains no
reference to Selden’s _Mare Clausum_, which the author stated was
submitted to the king this year (see p. 366).

[352] The king to the Council, 7th November 1618. _Reg. Privy Counc.
Scot._, xi. 631.

[353] _Reg. Privy Counc. Scot._, xi. 462.

[354] Lord Binning to the king, 27th November 1618. _Melrose Papers_,
ii. 631. The statement was to the same effect as that previously
referred to. A Mr Bruce of Shetland stated that while of old the
Hollanders used to carry on the greater part of their fishery forty
miles and more from the land, yet they came usually within fourteen
miles before shooting their nets; that in the time of the late Earl of
Orkney they came still nearer, within six or seven miles; while now
they came so close that their nets were sometimes torn on the rocks.
Sir Gideon Murray to Lord Binning, 26th November 1618. _MSS. Advoc._,
31. 2. 16.

[355] Earl of Dunfermline to Lord Binning, 27th November 1618. _MSS.
Ibid._ “Concerning the Hollanders fishing in our seas,” he said, “for
all the search and tryall I have made, whilk has been my uttermost, I
can wryte or send to you little more nor before, in effect nothing.”
The Constable of Dundee searched all his records, the records of the
Admiralty were explored, and all those in Edinburgh Castle and in the
city archives, as well as many in the keeping of private persons, and
every one likely to know anything about the matter was communicated
with; but “nothing to the purpose” was found, “nor no recorde of any
wryte made for the Hollanders’ use in 1594 or any other time.” The
“wryte” of 1594, it is to be remembered, was a long treaty made by
James himself. Copies were ultimately discovered of the treaties of
1531 and 1541, but nothing to the point. Copies of the treaty and of
other documents referring to it were obtained, apparently from Holland,
in 1619, and were ordered to be preserved in his Majesty’s Register
in Edinburgh Castle (_Reg. Privy Counc. Scot._, xii. 22); but in 1630
and 1631, when they were again wanted, they could not be found. _State
Papers, Dom._, Chas. I., ccvi. 46.

[356] This referred to the licenses to certain French boats to fish on
the Sowe in the Channel. See p. 65.

[357] “Zijne ma^t was een coninck van de grootste insulen van de werelt
ende seer wel wiste het rechte dat hij hadde opte custen van sijne drij
coninckrijcken.” Commissioners to States-General, (24 Dec. 1618)/(3
Jan. 1619). _Brit. Mus. Add. MSS._, 17,677, J, fol. 372.

[358] Note of Treatie with the Commissioners of the Estates annent the
Fishing. Dec. 1618. _MSS. Advoc._, 31. 2. 16.

[359] Naunton to Carleton, 21st December 1618.

[360] In apprehending Brown, p. 171. Grotius was then in prison, and
known to be the author of _Mare Liberum_.

[361] _State Papers, Dom._, xc. 65.

[362] The Dutch Commissioners to the States-General, (29 Nov.,)/(9
Dec.,) 17/27 Dec. 1618; (24 Dec. 1618,)/(3 Jan. 1619), 3/13 Jan., (23
Jan.)/(2 Feb.) 1619. _Brit. Mus. Add. MSS._, 17,677, J, fol. 364, 367,
370, 374, 380. Muller, _op. cit._, 140, 147, 148, 153. Aitzema, _Saken
van Staet_, ii. 402. Carleton, _Letters_, 326. _MSS. Advoc._, 31. 2.
16. _State Papers, Dom._ Collection, Chas. II., vol. 339, p. 351, 361,
369, &c.

[363] The Dutch Commissioners to the States-General, (30 Jan.)/(9 Feb.)
1619. _Ibid._, 387. Naunton to Carleton, 21st January 1619. Carleton,
_Letters_. Justice, _A General Treatise of the Dominion and Laws of the
Sea_, 179. The States were desired “to cause proclamation to be made,
prohibiting any of their subjects to fish within fourteen miles of
his Majesty’s coasts this year, or in any time hereafter, until order
be taken by commissioners to be authorised on both sides, for a final
settling of the main business.”

[364] P. 223.

[365] Carleton to the king, 6th February 1619.

[366] Muller, _op. cit._, 156. “So verre van ’t Lant souden blijven als
men met oogen konde afsien.”

[367] 2nd June 1619. Dumont, _Corps Diplomatique_, V. ii. 333.

[368] The English, who were the first to carry on the whale-fishing at
Spitzbergen, had taken possession of the best fishing-places: whales
then abounded in the bays close to the shore, where the “cookeries”
were erected.

[369] Muller, _op. cit._, 160. _State Papers, Dom._, cv. 9. The Muscovy
Company, now supported by the East India Company, fitted out nine ships
and two pinnaces for the Spitzbergen fishery in 1619, but the voyage
was unfortunate. After carrying on the fishing for a few years longer
the company abandoned it, though it was carried on on a small scale
by other English vessels, mostly from Hull. The Dutch, on the other
hand, prosecuted the fishing with great vigour and success under the
protection of men-of-war, and they rapidly made it one of the most
profitable industries of the Low Countries. A full account is given by
Zorgdrager, an old whaling captain, who wrote in the early part of the
eighteenth century (_Bloeijende opkomst der aloude en hedendaagsche
Groenlandsche Visscherij_). The Dutch factory on Amsterdam island grew
to a village called Smeerenburg or Oil-town, which was fortified in
1636. In those early years the whales were taken by the ships’ boats,
which lay moored in the bays; later, as the whales got scarce, they
were flensed at sea and the blubber carried home. This was the case
before F. Martens visited the island in 1671.

[370] The king to the Privy Council of Scotland, 16th June 1619. _Reg.
Privy Counc. Scot._, xi. 607.

[371] Since the records of the Scottish Council are silent as to the
steps taken to collect the assize-herrings in 1616 and 1617 and the
capture of John Brown in the latter year, while the Dutch and English
records are equally mute as to the proceedings in 1618 and 1619, it at
first appeared that a mistake might have been made in the dates of the
former, a view that seemed to be supported by the remark in the first
letter of the king to the Council, “to the intent that the Estaitis
may not alledge that no suche dewteis had bene demandit”--a curious
statement in face of the fact that Brown had been carried to Holland
the year before. But the late Professor Masson, who was the editor
of the _Register of the Privy Council_, obligingly informed me that
the documents are the original _Acta_ and not copies; and among the
English State Papers is a letter dated from Holyrood House, on 10th
July 1619, in which it is stated that Captain Murray had been sent to
claim the assize-herrings from the “Flemings” fishing in the northern
seas, and that he was well equipped to secure his safety if his demands
were refused (Raith to Abercromby, _State Papers, Dom._, cix. 127).
The phrase in the king’s letter may be explained by the fact that the
duty in 1616 and 1617 was demanded by the Duke of Lennox, to whom the
assize-herrings had been granted.

[372] _Reg. Privy Counc. Scot._, xi. 605, 608.

[373] See Appendix G. Fenton was one of those who were on intimate
terms with Ben Jonson during the poet’s visit to Scotland. _Reg. Privy
Counc. Scot._, xi. p. clxvii.

[374] _Op. cit._, 606.

[375] _Op. cit._, 593, 603.

[376] Footnote, p. 195.

[377] Carleton, _Letters_, 437, 447, 448, 451. Bosgoed, _Bib. Pisc._,
352. The sum voted in 1620 was 22,000 gulden; in the following years it
varied between 23,000 and 36,000 gulden.

[378] Muller, _op. cit._, 172, 173. Aitzema, _Saken van Staet_, i. 13,
17.

[379] Muller, _op. cit._, 174, 178.

[380] “Ghy sijt sangsues, bloetsuygers van mijn rijck, ghy treckt het
bloet van mijne Ondersaeten ende souckt mij te ruineren.”

[381] Muller, _op. cit._, 191, 194, 203. Aitzema, i. 191, 193.
Journal van de Ambassade van den Heere van Sommelsdyck naer Engelant,
1621-1623, _Brit. Mus. Add. MSS._, 22,866.

[382] 2/12 May 1620. Verboth van Haringh binnen de Klippen van
Yerlandt, Hitlandt, oft Noorwegen te vangen. _Groot Placaet-Boeck_, i.
752.

[383] 2/12 June 1623, _Groot Placaet-Boeck_, i. 708. Muller, _op.
cit._, 206.

[384] _Rec. Convent. Roy. Burghs_, iii. 142. _Reg. Privy Counc. Scot._,
xiii. 308, 317.

[385] George Lord Carew to the Secretary of State, Calvert, 8th March
1623. _State Papers, Dom._, cxxxix. 66. The Lord Mayor to Lords
Grandison, Carew, and Chichester, 27th March, 3rd April 1623. _Ibid._,
cxl. 47, cxlii. 21.

[386] A Project for the Encouragement of Fishing by passing an Act of
Parliament for Building fishing-vessels, to be protected by a Fleet
Royall of 20 ships, the expense to be defrayed by a Tribute of every
Tenth Fish. _Ibid._, clvii. 46.

[387] A Discourse of the Invention of Ships. _Collected Works_, viii.
326.

[388] Naval Tracts, in Churchill’s _Collection of Voyages_, iii. 220,
224.

[389] Cecil to Parry, 10th June 1603. _Foreign Papers, France_, vol.
129. It is endorsed “Souverainty of ye Seas, 1603. Monsr. de Vicque
beares ye armes of france in Dover road.” See also Sully, _Memoires des
Sages et royales Oeconomics d’Estat_, ii. 173, and Kermaingant, _Le
Droit des Gens Maritimes_, 3.

[390] Monson’s Naval Tracts, _ibid._, 222. The Spaniards to whom Monson
refers were no doubt the troops which Don Louis Fajardo had attempted
to carry to Flanders when he was attacked by the Dutch and took refuge
in Dover. Monson, it may be said, was in receipt of a secret pension of
£350 per annum from Spain. Gardiner, _Hist._, i. 215.

[391] Loccenius, _De Jure Maritimo et Navali_, 48.

[392] Thus in the Earl of Warwick’s voyage, in 1627, four vessels
“stood with their forefoot and very earnestly” tried to weather the
king’s ships off Falmouth, among them being a French man-of-war. The
English then shot at the latter, and “soo brought him by ye lee”
(_State Papers, Dom._, lxxix. 17). In 1637 Captain Straddling explained
how he compelled Dutch vessels to take in their flags, lower their
top-sails, and “lie by the lee” (_Ibid._, ccclxi. 41). In the historic
encounters with the Dutch in 1652 the same rule was shown. When Captain
Young met the Dutchmen on 12th May (see p. 402), their admiral came
under his lee and took down his flag, but their vice-admiral, “contrary
to navigation with us in the narrow seas, came to the windward of us”
(_French Occurrences, Brit. Mus._, E, 665, 6). So also when Blake met
Tromp, he “fired two shots thwart Tromp’s forefoot for him to strike
his flag and bear down to leeward, and he taking no notice of it, the
general ordered the third shot at Tromp’s flag, which went through his
main top-sails” (_Brit. Mus. Add. MSS._, 11,684, fol. 5_b_).

[393] The Lords of the Admiralty to Plumleigh. _State Papers, Dom._,
clvii. fol. 121.

[394] Meadows, _Observations concerning the Dominion and Sovereignty of
the Seas_, 2.

[395] _State Papers, Dom._, Chas. I. ccxxix. 79.

[396] 17th October 1632. _The Earl of Stirling’s Register of Royal
Letters_, ii. 627.

[397] _State Papers, Dom._, cxcix. 51.

[398] _State Papers, Dom._, cc. 5.

[399] _Ibid._, ccviii. 27.

[400] _State Papers, Dom._, dxxiii. 74, dxxix. 73. The proposal to
utilise the tenth herring for maintaining a navy had been long before
put forward by Dr Dee. See p. 101.

[401] The other half were exported as red-herrings.

[402] _State Papers, Dom._, 1629, clii. 57.

[403] Mason, who was intimately associated with the fishery scheme,
proposed that the island should be purchased by a company of
naturalised Scotsmen, and fishing stations established; and later he
recommended the purchase of the island by the king, leaving complete
freedom of fishery to all Scotsmen. Sir William Monson urged that a
“government” should be established in the island as well as in Orkney
and Shetland, and also a principal town; and that the children of the
islanders should be taught English, and “correspondence” between the
inhabitants and the Highlanders hindered, “considering the danger of
their too great friendship.” _State Papers, Dom._, 1629, clii. 66, 67,
68. The subject of the Earl of Seaforth’s lease and the fishings is
dealt with by Mackenzie, _History of the Outer Hebrides_, 290 _et seq._

[404] _State Papers, Dom._, clii. 63, 71; clxxx. 97. Dymes’ report is
printed in full by Mackenzie (_op. cit._, 591). The master of one of
the Dutch busses, who transported Dymes from Lewis to the mainland,
told him that the herrings were in such great abundance that they were
sometimes constrained to cast them into the sea again, they having more
in half their nets than they were able to save, “and he was of opinion
that if there had bene a thousand Busses more there was fish enough for
them all.”

[405] _Rec. Convent. Roy. Burghs Scot._, iii. 257, 259, 291. The
arguments against the Dutch were elaborated in a long document, which
concluded thus: “Lastly, theis Netherlanders greatnes, strength,
wealth, arts, and every happines doe originally proceede from their
fishing in his Majesty’s seas of England, Scotland, and Ireland.”

[406] P. 77.

[407] _State Papers, Dom._, clii. 63; clxv. 201; clxxx. 100. _Rec.
Conv. Roy. Burghs_, iii. 300 _et seq._

[408] _Acta Parl. Scot._, v. 220_b_. Captain John Mason, who was
afterwards appointed “Admiral” of the busses belonging to the society,
was apparently originally intended to lay the matter before the
Council. The draft, in Coke’s handwriting, is entitled, “Instructions
for Captain John Mason employed by his Majesty to treat with the Lordes
of the Privie Council of Scotland about the erection of a general
fishing,” and is among the _State Papers, Dom._, clxxx. 101.

[409] _Acta Parl. Scot._, v. 221. This ambitious scheme included the
building of 200 busses of from 30 to 50 tons each, “for a considerable
beginning,” besides the employment of the fishing vessels already
engaged on the coast which were of suitable size. These were computed
to number about 100 in Scotland and 200 in England (employed at
Newfoundland and the north seas), while at least 300 “coasters”
from Berwick to the Thames might also be made available; and it was
suggested that more might be built by the company “in every town,” or
bought from the Dutch. It was estimated that the cost of building and
equipping the 200 busses, including casks, salt, wages, &c., would be
£222,586, and that the total return the first year would amount to
£388,000, made up as follows: (1) summer herring fishing, 20,000 lasts
at £10, equal to £200,000; (2) winter herring fishing, 12,000 lasts at
£12, equal to £144,000; (3) cod and ling fishing in spring, 1,200,000
fish at £30 a thousand, and 600 tuns of oil at £13, 6s. 8d., equal to
£44,000. Several calculations were made about this time as to the cost
of equipping herring-busses, the profits to be derived from their use,
and the loss to the realm by the transport of cured fish by the Dutch;
Monson put the latter loss at £621,750 per annum. _State Papers, Dom._,
clii. 70, clxxx. 99, ccvi. 52; _MSS. Advoc. Lib._, 31. 2. 16; _Brit.
Mus. Sloane MSS._, 26. The latter is a “Discourse on the Hollanders’
Trade of Fishing,” by Sir Robert Mansel, of the usual type.

[410] _Acta Parl. Scot._, v. 225. The committee consisted of fifteen
peers, several bishops, and a large number of commoners. Mason, who
had accompanied Sir William Alexander to Scotland, reported to Coke
that the Council gathered in the Lord Chancellor’s chamber, “he lying
sick of the gout,” to hear the king’s letter read, and that Mr John Hay
“violently opposed” the scheme and attacked the Earl of Seaforth for
bringing in the Hollanders. _State Papers, Dom._, clxxii. 19.

[411] At this time the herring-fishing on the west coast of Scotland,
which began on 1st July and continued till Christmas, employed from
800 to 1500 fishing-boats of from 5 to 6 tons each, besides about
200 “cooper” boats of about 12 tons, which carried casks and salt
and brought back cured herrings to the burghs: about 6000 “seamen”
were employed in this industry. The herring-fishing on the east coast
was for the most part carried on at Dunbar--as many as 20,000 people
sometimes congregating there--and in the deep water where the Dutch
fished in July, August, and September. There was also an important
winter fishing for herrings in the Firth of Forth in November, and
at the North Isles from 1st October till Christmas. The “keeling” or
cod-fishing at the mouth of the Clyde in February, March, and April
employed about 120 of the largest boats; on the east coast this method
of fishing was carried on from 1st April till 24th June.

[412] _Acta Parl. Scot._, v. 226. _Rec. Conv. Roy. Burghs_, iii. 322,
323. The Earl of Seaforth, writing to the Earl of Carlisle on August
17th, said that the Lord Chancellor and the Lord Treasurer had left no
argument unuttered which might induce their countrymen, and especially
the burghs, to concur in the king’s desire about the fishing. The
burghs would not admit any association either with countrymen or
strangers; “they like not,” he said, “that noblemen or gentry should
understand matters of industry,” and they would do what they could to
move the king to delay. _State Papers, Dom._, clxxii. 78. In another
account of the proceedings of the Convention, it is said the burghs
claimed as “absolutely theirs” the fishing within bays and lochs, and
at sea for a distance of “two kennings” from the shore, and stated
that they would admit no partners, either natives or strangers; that
buss-fishing was distinguished by them to be “without two kennings from
the land”; and they would not “on any condition” allow any busses to
participate in the “land fishing” within two kennings, or to land at
all, but only to “make” their fish (cure them) on shipboard, as the
“Flemings” did. It is added that those who would have hazarded some
means in the project were “absolutely discouraged” by the attitude of
the burghs. _Ibid._, ccvi. 45.

[413] _Acta Parl. Scot._, iv. 369. _Statutes of the Realm_, 1 Jac. I.,
c. 2. _Reg. Privy Counc. Scot._, vi. _Nat. MSS. of Scot._, iii. No.
85. _State Papers, Dom._, 1604, x. No. 1. It is unfortunate that the
reasonable delimitation of the territorial fishing waters proposed in
the treaty was not carried out, for there can be little doubt that had
it been it would have become recognised by other nations, and would
have continued to the present day.

[414] _Acta Parl. Scot._, v. 228, 230. _The Earl of Stirling’s Register
of Royal Letters_, ii. 478.

[415] The commissioners were the Earl of Morton (Lord High Treasurer),
the Earl of Monteith (President of the Privy Council), the Marquis of
Hamilton, the Earls of Roxburgh and Carrick, Sir William Alexander, Mr
John Hay, and Mr George Fletcher.

[416] Among other things, the commissioners were instructed to
represent to the king the prejudice which Scotland sustained by the use
of the name “Great Britain” in the royal patents, writs, and records
relating to Scotland, for, they reminded him, “there was no union
as yet with England”; and Charles was to be requested to renew his
seals under the terms _Carolus Dei gratia Scotiæ, Angliæ, Franciæ, et
Hiberniæ Rex_. It must be remembered that at this time the Scottish
aristocracy were smarting under the defeat which the king had recently
inflicted on them in connection with the Act of Revocation, by which
most of the church, property in the hands of laymen was re-annexed to
the crown.

[417] _Acta Parl. Scot._, v. 232.

[418] _Rec. Conv. Roy. Burghs_, iii. 325. The foreigners from Hamburg
and Bremen were chiefly engaged in trade and barter.

[419] _Fœdera_, xix. 211. _State Papers, Dom._, clxxxvii. 46. The
commission was dated 8th December 1630, and the other commissioners
were the Earls of Salisbury, Dorset, and Carlisle, Viscounts Wimbledon
and Wentworth, Sir John Coke, Sir Francis Cottingham, and Sir William
Alexander, who was Secretary for Scotland.

[420] _Acta Parl. Scot._, v. 235. _Rec. Conv. Roy. Burghs_, iv. 526.
_State Papers, Dom._, clxxxviii. 72. In the record of the burghs
the distance from the shore on the east coast, at the Orkneys and
Shetlands, and on the north coast, is given as forty miles; but as the
original records of the Convention between 1631 and 1649 were lost, and
that printed is from an abstract prepared in 1700, it appears that an
error was made in the transcribing.

[421] The Duke of Lennox had some time before this proposed the
formation of a fishery society for the purpose.

[422] _Acta Parl. Scot._, v. 236. The Act referred to was passed in
1607 by the Scottish Parliament, but it was to be inoperative until a
corresponding Act was passed by the Parliament of England, which was
not done.

[423] _State Papers, Dom._, cxci. 7. Memorandum, dated 11th May 1631,
by Secretary Coke, on “Matters in difference betwixt the English
and Scottish Commissioners concerning the fishing.” From this paper
it appears that the Scottish commissioners made the most of points
relating to naturalisation; they objected to the natives being employed
as fishermen by the association, and they would say nothing about the
proportion of busses that might be set forth in Scotland.

[424] _Stirling Letters_, ii. 538, 544. _Acta Parl. Scot._, v. 236.
Charles, it will be observed, mentions 15 miles. The miles stated in
the Scottish documents were Scots miles of 5929·5 imperial feet, 10
Scots miles being equal to nearly 11¼ imperial miles; the extent of the
reserved waters was therefore very nearly 15¾ imperial miles (15·72).

[425] _Rec. Conv. Roy. Burghs_, iv. 534.

[426] _Acta Parl. Scot._, v. 238.

[427] _Rec. Conv. Roy. Burghs_, iv. 534, 535.

[428] “Whereat we ourselff for the most part were present,”--king to
Council, 15th July 1632. _Stirling Letters_, ii. 604.

[429] _State Papers, Dom._, ccvi. 46.

[430] _State Papers, Dom._, ccvi. 50.

[431] _State Papers, Dom._, cciii. 53, 54, 19th November 1631. The
draft appears to have been prepared and altered entirely by the king
himself.

[432] _State Papers, Dom._, ccxxix. 78, 83, 87, 89.

[433] The king to the Council, 15th July 1632. _Stirling Letters_, ii.
605, 606, 617. _Acta Parl. Scot._, v. 245.

[434] The Act specified by the king was passed in 1491, but he seems
rather to have been referring to the Act 6 James III., c. 48. “That
Lordes, Barrones and Burrowes gar make Schippes, Busches, and greate
Pinck-boates with Nettes,” which was passed in 1471, “for the common
good of the realm and the great increase of riches,” to be brought from
other countries in exchange for fish exported. The Act of James IV.,
“Anent the makeing of Schippes and Busches on the quhilk all Idle Men
suld Laboure,” was an early attempt to carry out the policy advocated
by English writers in the sixteenth, seventeenth, and eighteenth
centuries. It enacted that ships and busses, not under twenty tons
burden, should be built in all the burghs and towns of Scotland,
provided with mariners and nets: and power was given to compel “idle
men” to man them.

[435] _State Papers, Dom._, ccvi. 47. “What is required from the Lords
and Gentry of Scotland towards the fishing.”

[436] _Acta Parl. Scot._, v. 236.

[437] _State Papers, Dom._, ccxxi. 1 ; _Acta Parl. Scot._, v. 239.

[438] The councillors nominated by Charles were, for England and
Ireland, Lord Weston, the High Treasurer (created Earl of Portland
in February of the following year), the Earl of Arundel, the Earl
of Pembroke, Viscount Savage, Lord Cottingham, and Secretary Coke;
for Scotland, the Earl of Morton, the High Treasurer, the Earl of
Stratherne and Monteith, President of the Privy Council, the Earl of
Roxburgh, Viscount Stirling, Mr John Hay, and Mr George Fletcher.

[439] Martin, who visited the Hebrides about the year 1695, saw the
foundation of a house, which, the natives told him, had been built by
the Society as a store for salt and casks, on Hermetra, a small island
in the Sound of Harris; and he saw a similar relic on a small island
called Vacksay, in Loch Maddy. He was informed by the natives that “in
the memory of some yet alive,” as many as 400 sail had been loaded
with herrings in Loch Maddy in one season: at the time of his visit
the fishing had been abandoned, though herrings were plentiful. _A
Description of the Westerne Islands of Scotland_, pp. 51, 54, 55.

[440] Simon Smith, who was latterly Secretary to Pembroke’s
association, afterwards stated that the Society had attained to the
proper cure of herrings, and was likely to have been ultimately
successful. This opinion was not shared by Dutch writers. The author of
_The True Interest and Political Maxims of the Republic of Holland_,
published under the name of De Witt, says the herrings the Society
sent to Dantzic in 1637 and 1638, though caught at the same time and
place as the Hollanders’ herrings, were “esteemed naught to the very
last barrel”; and a contemporary author, Meynert Semeyns, a skipper of
Enkhuisen, in a work written in 1639 (_Een corte beschryvinge over de
Haring-visscherye in Hollandt_), says the same thing. “The Dutch,” he
boasted, “catch more herrings and prepare them better than any other
nation ever will; and the Lord has, by means of the herring, made
Holland an exchange and staple-market for the whole of Europe.” No
other nation, he added, ever tried the industry but to their loss, and
the example adduced was the Society’s herrings sent to Dantzic.

[441] In August and September 1633, before the Council had met (busses
having been purchased on the strength of subscriptions promised),
two busses were taken by Dutch men-of-war and one by a Dunkirker.
The former captures were doubtless made because the Dutch fishermen
were acting contrary to the fishery laws of the United Provinces in
taking service with aliens, and they were promptly disavowed by the
States-General and the busses restored. The Dunkirkers made prize of
some of the busses (there were ten or twelve of them) almost every
year: one, the _Salisbury_, was taken twice, and in 1639 four were
captured. Spain was then at war with the United Provinces, and the
Dutch buss was a natural prey of the Dunkirk privateer.

[442] P. 309.

[443] _State Papers, Dom._, ccccxxix. 48. Order of the King in
Council, 29th September 1639. “Taking into consideration of what great
importance it is and may be to the good of this kingdom to plant,
increase and cherish the fishery in the North seas, and understanding
that the Dutch, who reap an annual great benefit thereby, have and
do not only privately underhand, but too manifestly also oppose the
endeavours of his Majesty’s good subjects, who have of late years
employed their industry that way,” it was ordered that the Lord
Treasurer, the Earl Marshal, the Lord Admiral, the Lord Chamberlain,
the Earl of Dorset, and one of the Secretaries of State, calling to
their aid Sir Henry Marten (Judge of the Court of Admiralty), should
forthwith “consult and advise what fitting course may be taken to
advance and settle the said fishery, and particularly to consider
whether it may not be fit to debar the exportation of lampreys, without
which the Dutch cannot well, as is informed, continue their fishing
for cod and ling, until his Majesty’s subjects be quietly settled
in the herring fishing.” The Dutch obtained their lampreys for bait
almost exclusively from England, and chiefly from the Thames. The
above account of the proceedings of the Fishery Society is summarised
(for the most part) from numerous State Papers. It was stated by Simon
Smith, who was latterly Secretary to Pembroke’s association, that
£10,000 was lost through the Dunkirkers.

[444] Oppenheim, _A History of the Administration of the Royal Navy_,
i. 215, 217, 221.

[445] _Ibid._; Hannay, _A Short History of the Royal Navy_.

[446] Oppenheim, _op. cit._, 265.

[447] Oppenheim, _op. cit._, 275.

[448] _State Papers, Dom._, lvi. 66; lxi. 81; lxx. 8, 9; liv. 56; xc.
70, 119; clxii. 82, 45.

[449] _State Papers, Dom._, lix. 79; xci. 30, 45; xcii. 62; xciii. 82;
xcv. 39; clxiii. 65; clxxx. 94. In 1630 a Yarmouth fisherman, owner
of one of the Iceland smacks under convoy, petitioned the Council for
relief from the payment of the twenty shillings, on the grounds that
before the Order was made he had paid £5 for the assurance of his boat
during that season to the assurance office in London, and that three
boats belonging to him had been previously taken by Dunkirkers.

[450] Oppenheim, _op. cit._, 276.

[451] _State Papers, Dom._, cclxviii. 31, 88 ; cclxiv. fol. 20_a_;
ccxciii. 107; ccxciv. 46.

[452] _State Papers, Dom._, ccxciii. 107; ccxciv. 46; ccxcv. 31, 69,
71; cclxiv. fol. 164. Many of the crew of the man-of-war were English,
Scottish, or Irish. It was probably owing in part to the considerable
numbers of British subjects serving on the Dutch men-of-war that they
were always favoured by the country people.

[453] _Ibid._, ccxcvi. 5, 14, 30. Joachimi to States-General, (26
Aug.)/(4 Sept.), _Brit. Mus. Add. MSS._, 17,677, O, fol. 380.

[454] _Brit. Mus. Add. MSS._, 30,221, fol. 43_b_.

[455] Reglement for Preventing Abuses in and about the Narrow Seas and
Ports, March 1633. _State Papers, Dom._, cclx. 127, 128; cclxxix. 18.
_Brit. Mus. Add. MSS._, 30,221, fol. 44 (Pepys’ collections). Copies
exist in _State Papers, Dom._, vol. 515, Nos. 38, 39 (1647), extracted
from _Admiralty Book_, Liber E, and in _State Papers, Dom._, Jas. I.,
vol. 11, No. 40 (1604), wrongly calendered (see p. 119).

[456] _Ibid._, liv. 9, 33.

[457] Oppenheim, _op. cit._

[458] _State Papers, Dom._, lxxxvi. 73, 75; ccxxix. 102.

[459] Gardiner, _Hist._, vii. 349 _et seq._

[460] Gardiner, _op. cit._, 368.

[461] _State Papers, Dom._, cclxxxvii. 55; ccxci. 14.

[462] _Ibid._, cclxxvi. 65.

[463] Rushworth, _Collections_, ii. 257. _State Papers, Dom._, cclxxvi.
64. Compare the language of Edward III. in 1336, p. 36.

[464] Rushworth, ii. 294, 353. Compare Windebank’s notes of the speech,
_State Papers, Dom._, ccxc. 108: “The Judges at the Assizes to let the
people know his Majesty’s care to preserve the ancient dominion (of the
seas).”

[465] Gardiner, _op. cit._

[466] _State Papers, Dom._, cclxix. 51.

[467] _Resol. States-General_, 9/19 Nov. 1633; Muller, _Mare Clausum:
Bijdrage tot de Geschicdenis der Rivaliteit van Engeland en Nederland
in de Zeventiende Eeuw_, 229.

[468] _State Papers, Dom._, ccxxxiv. 87; Nicholas’s _Letter Book_, Feb.
16, fol. 97. Muller thinks it was this revival of feeling about the
dominion of the sea that caused the edition of Grotius’ _Mare Liberum_
to be published this year, with the Magnus Intercursus appended.

[469] Coke to Boswell, 16/26 April 1635. Needham, _Additional Evidences
concerning the Right of Soveraigntie and Dominion of England in the
Sea_; Justice, _A General Treatise of the Dominion and Laws of the
Sea_, 181; Entick, _A New Naval History_, xvii. If, as is probable, the
mention of discourses concerning _Mare Clausum_ referred to Selden’s
work, it would show that the author was then known to be engaged in
writing it.

[470] “Dessein de Sa Ma^{te} de la grande Bretagne p̄ sa flotte
p̅r̅e̅nte,” 15/25 May 1635. Aitzema, _Saken van Staet en Oorlogh_, ii.
164; Muller, _op. cit._, 230. Boswell suppressed the reference to the
Dutch fisheries and to the old troubles at Greenland and in the East
Indies, and he toned down the part prohibiting the warships of other
nations from keeping guard in the British seas.

[471] _State Papers, Dom._, cclxxxvi. 100.

[472] They were as follow: _Merhonour_, admiral, 44 guns; _James_,
vice-admiral, 48 guns; _Swiftsure_, rear-admiral, 42 guns; _St
George_, 42 guns; _St Andrew_, 42 guns; _Henrietta Maria_, 42 guns;
_Vanguard_, 40 guns; _Rainbow_, 40 guns; _Red Lion_, 38 guns; _Constant
Reformation_, 42 guns; _Antelope_, 34 guns; _Leopard_, 34 guns;
_Swallow_, 34 guns; _Mary Rose_, 26 guns; _Bonaventure_, 34 guns; and
the First, Third, Eighth, and Tenth _Lion’s Whelps_, of 14 guns each.
The merchant ships were the _Sampson_, _Freeman_, _Royal Exchange_,
_William Thomas_, and _Pleiades_.

[473] The king to the Earl of Lindsey, _State Papers, Dom._,
cclxxxviii. 84.

[474] Instructions for our very good Lord, the Earle of Lindsey,
Admirall of his Majesties’ fflete, in his Majesty’s shippe the
_Merhonour_, prepared for this present Expedic̃on for Guard of the
Narrow Seas. 2nd May 1635. _State Papers, Dom._, clvii. fol. 135_b et
seq._

[475] _Ibid._, cxcii. 3, 21st May 1631; clvii. fol. 117_b_. It was
found that the French had a fleet of thirty-nine men-of-war, and two
additional ships were building. _Ibid._, cxcviii. 84.

[476] 20th May 1631. _Ibid._, cxci. 80.

[477] _State Papers, Dom._, ccxxxvii. 1.

[478] _Ibid._, clvii. fol. 132, 26th April 1634.

[479] In the memorandum which Pennington submitted to the Admiralty, he
said: “Sixtly, that if any stranger bee oprest by another stranger y^t
is stronger than hee, within the jurisdicion of ye Narrow Seas, and y^t
hee flyes for succor or refuge to any of his Majesty’s shippes imployed
for the guard of the sayd Seas, and come under his lee, and craves
protection, whether his Majesty’s ffloatinge ffortes shall not have
ye same privelege in succoringe and defendinge them as ffortes a Land
hath.” _Ibid._, cclxv. 23.

[480] Windebank and Cottington were two of the three in the confidence
of the king as to the secret negotiations with Spain. _State Papers,
Dom._, cclxv. 23, 25, 26, 41, 49, 78, 89; clvii. fol. 132.

[481] An equally obscure answer of Coke’s is recorded in the collection
of papers for the ambassadors to Cologne in 1673 (_State Papers, Dom._,
Chas. II., vol. 339, p. 513). “1636. Ea Leicester (_sic_) Query--What
answer shall I give if I be asked what I mean by the seas of ye King
my master, or our seas? The Answer returned by Mr Secretary Coke in
his own hand: By the King’s or our seas you are not to understand or
condescend to any restrictive sense but to answer ye Brittish Seas:
and that the 4 seas mentioned in our laws are thereby meant, which you
must not otherwise circumscribe or limitt; besides they are the same
which in all antiquity have been acknowledged to belong unto us, as is
sufficiently proved by authentic records.”

[482] _State Papers, Dom._, cclxxxviii. 84, 85.

[483] _State Papers, Dom._, cclxxxviii. 4; cclxxxix. 75. He had “no
more than two blue and two white flags with six pendants to each of
them; there are wanting two red flags and six pendants, one blue flag
and one white.” The office of Lord High Admiral was in commission from
the death of the Duke of Buckingham in 1628 until the appointment of
the Earl of Northumberland in 1638.

[484] Gardiner, _Hist._, vii. 385.

[485] The inhabitants of the coast were apprehensive of the French
fleet, and the Admiral sent a message to the Mayor offering to show his
orders from the King of France, which bound him to honour and respect
everything that belonged to his Majesty of Great Britain. _State
Papers, Dom._, ccxci. 23.

[486] _State Papers, Dom._, ccxci. 58, 59.

[487] Gardiner, _op. cit._, 385; _State Papers, Dom._, ccxcv. 61.
The English agent in France reported in August that two squadrons
under French admirals, and bearing the French flag, were to ply, one
along the coast of France from Belle Isle to Bayonne, the other at
the mouth of the Channel. The remainder of the fleet, half French and
half Hollander (which guarded the coast up to Calais and to the north
of it), bore the States’ colours, and were under the command of the
Hollander Admiral,--“an expedient to avoid acknowledging his Majesty’s
right in the Channel, in case this squadron should meet his Majesty’s
fleet and be constrained to vail the bonnet.”

[488] Gardiner, _loc. cit._

[489] It was from this Hollander, met off Beachy Head on 9th June, that
Lindsey learned that the French fleet was at Portland.

[490] _State Papers, Dom._, ccxci. 80, 27th June 1635.

[491] _Ibid._, ccxcvi. 14.

[492] _State Papers, Dom._, ccxciii. 12.

[493] Gardiner, _op. cit._, 386.

[494] Lindsey to the king, 2nd August; Coke to Lindsey, 4th August.
_State Papers, Dom._, ccxcv. 9, 42. The rumour that two of the king’s
ships were to go north to the busses reached the ears of the States’
ambassador. _Brit. Mus. Add. MSS._, 17,677, O, fol. 376.

[495] _State Papers, Dom._, ccxcvi. 5, 14, 16, 30. _Brit. Mus. Add.
MSS._, 17,677, O, fol. 380. _Res. Holl._, 7th September, Bosgoed, _op.
cit._, p. 358. Twelve busses and three of the convoys took refuge at
Newcastle; others in the Firth of Forth. The skipper of a coasting
vessel from Scotland to Scarborough saw seven busses in flames; the
sky was red from the conflagration. The _Leopard_, one of Lindsey’s
fleet, convoying merchantmen to Dunkirk, met eighteen of the privateers
returning in triumph. The Dutch busses were the natural prey of the
Dunkirkers, and the States were put to great expense and pains in
guarding them. In 1625 a Spanish agent, Egidio Ouwers, submitted to
Cardinal de Ceva, at Brussels, an elaborate plan for destroying the
Dutch herring fishery, so as to “spoil their chiefest mine by which
they maintained their wars.” _State Papers, Dom._, dxxi. 30.

[496] _State Papers, Dom._, ccxcv. 44.

[497] The facts as to the movements, &c., of the fleet are mostly taken
from the Earl of Lindsey’s Journal, written for the king’s information,
and preserved in the Record Office. “A Relation of the passages that
daily happened in this late expedition under my conduct, being by Your
Majesty’s gratious appointment Admiral and General of your Majesty’s
ffleet sett forthe for guard of your Narrow Seas, from the time that
the ships mett all together in the Downes, 28^o May, untill the 8^o of
October following, I making my first entrance aboard yo^r Royall ship
the _Merhonor_, 16^o May, in Tilbury Hope.” _Ibid._, ccxcix. 28.

[498] Pennington to Nicholas, 3rd August 1635. _State Papers, Dom._,
ccxcv. 18. Pennington, it may be said, lost no chance of sneering
privately at the Earl of Lindsey, especially in his correspondence with
his friend, Nicholas, the Secretary to the Admiralty. When Lindsey
finally reached the Downs in October, and Pennington was appointed
to command the winter fleet, he told Nicholas that he had hoped that
“they” who had had the “sweet of the summer should have had a little
of the sour sauce of the winter”; he had spent “twice as much as he,
and more every way for the king’s honour.” Nicholas shared the feeling.
On hearing that Lindsey had appointed a French cook on board the
_Henrietta Maria_ he refused to believe it, “as it was never since his
time known that any Frenchman was admitted scarce to go aboard, much
less to be an officer in any of the king’s ships”; and he foretold
great evils from it. _Ibid._, ccxcix. 19; ccxci. 61.

[499] Gardiner, _op. cit._

[500] _Brit. Mus. Add. MSS._, 17,677, O, fol. 364.

[501] _State Papers, Dom._, cclxxviii. 3. Roe’s reference was to the
fishings at the Zowe or Sowe, where great numbers of gurnards were
caught (see p. 65). The stipulation of Richelieu concerned the allied
squadrons which were to blockade Dunkirk, as arranged by Article viii.
of the treaty. Article xii., after providing for the size of the
squadrons, continues, “Et au cas que lesdites esquadres viennent à
s’assembler, comme il peut arriver qu’il sera necessaire pour le bien
commun, l’Admiral desdits Seigneurs les Estats abaissera à l’abord son
pavillon du grand mast, et le saluëra de son canon, et celui du Roi le
resaluëre comme de coustume, et comme il en a esté use par le Roi de la
Grande Bretagne.” Dumont, _Corps Diplomatique_, 83 (?).

[502] _State Papers, Dom._, lxxix. 17. “Athwart ye opening of Falmouth
four sailes stood with their forefoot,” and very earnestly tried to
weather the English ships. Among them was a French man-of-war of
Rochelle, but they shot four or five pieces of ordnance at him, and
“soo brought him by ye lee.” See p. 207.

[503] He reported, 16th September 1631, that two English merchantmen
had met five French men-of-war, bearing the French king’s colours on
the main-top, and the Malta colours on the poop, who saluted them with,
“Amain, rogues, for the King of France”; but as the English ships
refused to strike and prepared to fight, the French sheered off. He
added that he had learned, through an interview between one of his
lieutenants and one of the French commanders, that the latter had a
commission to compel any English ships he could master to take in their
flags and dowse their top-sails, and that three French admirals had
been appointed for regaining the regality of the Narrow Seas, because,
as the French officer said, the Pope had taken it from France and given
it to England, but now that we had fallen from their religion it had
been reassigned. _State Papers, Dom._, cxcix. 51.

[504] Nicholas to Pennington, 29th September 1631. _Ibid._, cc. 45.

[505] Pennington to Nicholas, 2nd October (_ibid._, cci. 7).
Pennington, whose information about the French trying to make the
English strike had given the Admiralty and the king “good content”
(_ibid._, cc. 27), had been ordered westwards to retaliate, but “he
hoped the Lords would not think that his two ships half-manned were
able to encounter with twenty well manned”. _Ibid._, cci. 29.

[506] 14th October, 12th November 1631. _State Papers, Dom._, cci. 54;
cciii. 32.

[507] _Ibid._, cclxiii. 75.

[508] _Ibid._, cccxvii. 102.

[509] _State Papers, Dom._, cclxv. 23, 25, 41, 49.

[510] _Ibid._, cccxvii. 102.

[511] _State Papers, Dom._, cci. 59; ccii. 17; ccciii. 71, 79; ccx. 58;
ccxxxiv. 37; ccxlviii. 81.

[512] _State Papers, Dom._, ccxx. 25, 26.

[513] _Ibid._, ccxxxiv. 5, 32. “The Ambassador and the other Lords
being at dinner in the great cabin, the gunner sent word that a
Hollander was passing with his top-sails a-trip, to whom he gave
order to make a shot. The Lords and gentlemen left the table to see
the event, but the Hollander, neither for that shot nor two or three
others, would lower the same one foot; whereupon he gave order to shoot
him through, which was done, with as much speed as they could bring
ordnance to bear, so as before she passed she had twenty shot in and
through her sides, which they heard to crash in the same. They could
perceive but one piece she had forth; to that fire was given twice. The
shot came not near, but they might well hear the same. After her came
the Admiral with his flag on the main-top.” Ketelby cleared for action
and was giving orders for a broadside; but the ambassador twice desired
him to give over and stand for Dover, and he submitted. If it had not
been for his passengers, Ketelby did not doubt he would have brought
them in to answer the contempt.

[514] _State Papers, Dom._, ccxcv. 13; ccxcvii. 28; ccxcviii. 16. It
was the usual practice to make the offender pay for the shot.

[515] _State Papers, Dom._, ccc. 43; ccci. 28; ccxcix. 21.

[516] _Ibid._, cclxv. 49.

[517] Ketelby and Viscount Conway explained that it was necessary to
punish them in a public manner, since imprisonment in the bilboes
and such corporal punishments were not effective. Conway recommended
Scott’s fine to be remitted, owing to his worth and poverty, as well as
from the fact that he had recently been taken captive by the “Turkish”
pirates, and his ransom was not all paid. Bushell, as we learn from a
petition “of divers poor men, women, and children, whose kindred are
now in slavery at Argier and Sallee,” had redeemed and brought home
thirty of the captives; and it is probable that neither of the fines
was exacted. It is doubtful if Lindsey’s action was regular, for the
vessels, according to his statement, had not come within gunshot.
The _Neptune_ was one of the three ships fitted out by London for
Northumberland’s fleet. _State Papers, Dom._, ccxv. 28, 65, 67; cclxv.
50; cclxiii. 75; ccxcvi. 30, 34, 37; ccci. 31.

[518] Molloy, _De Jure Maritimo et Navalis_, 149.

[519] _Regulations and Instructions relating to his Majesty’s Service
at Sea_, 1734, 1766, 1790, Art. xi.; 1808, Art. xxiv. A case of the
kind occurred in 1829. Phillimore, _Commentaries upon International
Law_, ii. 58.

[520] Gardiner, _op. cit._, viii. 84.

[521] _State Papers, Dom._, ccxcvi. 69; cci. 26, 97.

[522] _State Papers, Dom._, ccciii. 74; cccv. 36, 38; cccxi. 1. The
total number of men in the first fleet, which included five of the
“Whelps” and two pinnaces then building, was to be 4580; in the second,
in which were included two “Whelps,” it was to be 1890.

[523] Hume (_Hist. Engl._, ch. lii. an. 1636), following earlier
writers, places the number at sixty. Thus Frankland (_Annals of King
James and King Charles the First_, 477 (1681)) speaks of “sixty gallant
ships.” Baker (_A Chronicle of the Kings of England_, 455 (1679))
and others, including most of the naval historians of the eighteenth
century, give the same number.

[524] Northumberland’s Journal, _State Papers, Dom._, cccxliii.
72. Pennington, on hearing of the appointment of the Earl of
Northumberland, wrote in February 1636 to the Council expressing his
satisfaction; verily believed he would carry himself like a general in
all respects, unless led away, “as the last was, by such as neither
knew the honour of the place nor the way of managing the service for
the honour and safety of the kingdom.”

[525] _State Papers, Dom._, ccxcviii. 63.

[526] The Lords of the Admiralty to the king, 24th February 1636.
_State Papers, Dom._, cccxiii. 24, 25. The documents are in Windebank’s
writing; the first is endorsed “Fishing. Waftage. An excellent Piece.”
See Appendix I.

[527] “Instructions for our very good Lord, the Earle of
Northumberland, Admirall of his Majesty’s fflete in his Majesty’s ship
the _Triumph_, prepared for this present Expedic̃ion for guard of his
Majesty’s Seas.” _State Papers, Dom._, clvii. fol. 141.

[528] Gardiner, viii. 157. The English ships were “clogged with
timber,” which, however, served them well in the first Dutch war when
they were pitted against the slighter-built ships of the States.
(Oppenheim, _op. cit._, 254.)

[529] _State Papers, Dom._, clvii. fol. 141_b_; ccxiv. 107. The Earl of
Northumberland to the Lords of the Admiralty, cccxxi. 44, 45, 65, 78,
87; cccxxii. 16, 40; cccxxv. 78, 79; cccxxvi. 16, 38; cccxxvii. 42, 73.
The Lords of the Admiralty to Northumberland, 14th June, cccxxvi. 32.

[530] Rowland Woodward to Francis Windebank, 16th December 1630. _State
Papers, Dom._, clxxvii. 13. The writer said he “much feared the event
if it should be put in execution.”

[531] _Ibid._, cclxxix. 67.

[532] Petition of the Governor, Assistants, and Fellowship of the
Merchant Adventurers of England to the Council. _Ibid._, cclxxxix. 91.

[533] _Ibid._, cclxxxv. 84.

[534] _State Papers, Dom._, cccviii. 48; cccxx. 14.

[535] A Proclamation for Restraint of Fishing upon His Maiesties Seas
and Coasts without License. _State Papers, Dom._, cccxx. 62. _Fœdera_,
xx. 15.

[536] The form annexed to the Earl of Northumberland’s instructions,
sent to him on 14th June from Hampton Court, and which he received at
Plymouth on the 22nd, is as follows:--

“CHARLES R.

“We are gratiously pleased by these Presents to grant Lycense to ... to
fish with the Men and Company belonging to a Ship or Vessel called the
... being of the Burthen of ... Tonnes, upon any of Our Coasts or Seas
of Great Brittaine and Ireland, and the rest of our Islands adjacent,
where usually heretofore any fishing hath been. And this Our Lycense to
continue for one whole Year from ye Date hereof: Willing and requiring
as well all Our subjects as others of what Nation, quality or condition
soever that they give no Impeachment or molestation to ye said ... or
his company in the said Vessell in the Execution of this Our Lycense,
upon such Paines and Punishments, as are to be inflicted upon the
Violators of Our Royall Protection, and the wilful Breakers of Our
Peace, in Our aforesaid Dominions and Jurisdictions, further requiring
and Commanding all Our Admiralls, Vice-Admiralls, Rere-Admiralls and
Captaines of Our Ships, Castles, and Forts to protect and assist the
said ... in ye quiet enjoying the benefit of this Our Lycense.”

Another form, dated in July, was as follows:--

“Charles by the Grace of God King of Great Brittaine, France
and Ireland, Defender of the Faith, &c. To all his Admiralls,
Vice-Admiralls, Rere-Admiralls, and Captaines of oure Shippes, Castles
and fforts, and to all and every other our Officers, Ministers and
subjects to whome it shall apperteyne, Greeting. Whereas Wee are
gratiously pleased by these presents to grant License to ... Master of
a Busse or Vessell called the ... beinge of the burthen of ... Tonnes,
To fishe with the Men and Company belonging to the said Busse or
Vessell upon anie of our Coastes and Seas of Great Brittaine, Ireland
and the rest of our Islands adiacent where usually fishing hath bene,
from the date hereof, to the last of December next. These are to will
and require as well Yow our said Officers and Subjects, as others of
what Nacion, quality, or condition soever That yow not onely give noe
impeachment or molestacion to the said ... or his Company in the said
Vessell in the Execucion of this Our License, upon such paynes and
punishments, as are to be inflicted upon the Violaters of oure Royall
Protecion and the wilfull Breakers of our Peace in oure aforesaid
dominions and jurisdictions: But that yow protect and assist the said
... and his Company in the quiet enioying the benefitt of this oure
License during the time before limitted: Given ...” _Ibid._, cccxxvi.
32; cccxxix. 77, 78, 79. It appears from copies without the names and
particulars filled in, which are preserved at The Hague, that the first
form was used in July, a certain Joost Bouwensz of Delfshaven having
accepted one on the 24th (N.S.) of that month.

[537] _State Papers, Dom._, cccxix. 81; cccxxii. 40; cccxxvi. 32;
cccxvii. 93; cccxxviii. 11, 41, 69.

[538] The herring-busses in ordinary course fished all night in fleets,
with their drift-nets floating in the water; during the day the crews
were employed in curing and packing the herrings caught.

[539] “Next day wee fetched in 4 more of them, and having caused their
busses to be manned with English, and threatened the takeing away
their nettes, they at last consented to take Licenses, and paying
the acknowledgment I sent them all away very well satisfied.” These
busses belonged to the Enkhuisen herring fleet, which was convoyed by
a warship under Captain Gerrit Claesz. Ruyter, to whom Northumberland,
after the licenses had been accepted, gave a written certificate and
safe-conduct for bringing in the busses. Muller, _Mare Clausum_, 269,
377.

[540] These were the Delfshaven busses, the skipper of one being Joust
Bouwensz, previously referred to. According to the Dutch accounts,
money was scarce on the busses, but the English very willingly took
herrings instead, a barrel of herrings being reckoned at from four to
four and a-half florins.

[541] These were the _Victory_, _Repulse_, and _Swallow_. From a report
of the Officers of the Navy to the Admiralty, on 20th August, we learn
that the _Repulse_ had a great many sick on board--“some three or four
having died within these two days; some thirty sick were landed at
Margate and eight are ill on board. The surgeon is dead, as is said
of the spotted fever, full of spots, and it is much doubted that the
pestilence is amongst them.” The plague in this and the following year
made great ravages in London and at the naval ports, partly from the
want of simple precautions--_e.g._, in this case the sick men were
to be discharged “for fear of infection (of the ship) and to cease a
needlesse charge.” _State Papers, Dom._, cccxxx. 61.

[542] The account of the movements of Northumberland’s fleet is
extracted from his “Journall of oure Summer’s Voyage in the yeare
1636.” _State Papers, Dom._, cccxliii. 72.

[543] Northumberland to Windebank, 16th August 1636 (from Scarborough).
_State Papers, Dom._, cccxxx. 41. About 400 licenses in all, each
signed by the king, had been furnished to the Earl.

[544] 20th Dec. 1628. “Clachten van de insolentien van’t bootsvolk en
de visschers deser landen in Schotlandt.” Muller, _op. cit._, 232.

[545] The English Company and the king’s relation to it were considered
by the States in January 1631, 25th Oct. 1632, 19th Nov. 1633, and 15th
Sept. 1634. (Bosgoed, _Bib. Pisc._, 357. Oprichting eener Engelsche
compagnie voor de Haring-visscherij, Muller, _op. cit._, 235.)

[546] _Verbaal van Beveren_, 1636-37. Muller, _op. cit._, 246.

[547] _Brit. Mus. Add. MSS._, 17,677, P, fol. 67 _et seq._

[548] Van Beveren to the States-General, 15/25 Aug. _MSS. Add._,
17,677, P, fol. 88. In his letter he says the tax on each ton was
“twee sixpenningen,” or an English shilling. Others placed it at two
shillings a last.

[549] Aitzema, _Saken van Staet en Oorlogh_, ii. 409. Muller, _op.
cit._, 263.

[550] Joachimi to the States-General, (31 Aug.)/(10 Sept.), 9/19 Sept.
1636. _Brit. Mus. Add. MSS._, 17,677, P, fol. 99, 100. _Verbael van
Joachimi_, 1636. Muller, _op. cit._, 264.

[551] Elizabeth to Sir Thomas Roe, 15/25 Aug. 1636. _State Papers,
Dom._, cccxxx. 38.

[552] Roe to Elizabeth, 19th Aug., 20th Sept. _Ibid._, cccxxx. 50;
cccxxxii. 1.

[553] Northumberland to the Admiralty and to Secretary Coke, Sept. 16.
_State Papers, Dom._, cccxxxi. 55, 56.

[554] _State Papers, Dom._, cccxxxii. 39.

[555] Northumberland’s Journal, _Ibid._, cccxliii. 72; Northumberland
to Nicholas, 6th October 1636. _Ibid._, cccxxxiii. 26. Dutch accounts
vary somewhat from that given by the Earl of Northumberland. According
to them, seven English men-of-war fell in with a hundred busses
convoyed by five States’ warships, and the busses paid the tax and took
the licenses. But when thirteen Dutch men-of-war, convoying a great
herring fleet, arrived on the scene and put themselves in a position
for battle, the English ships did not interfere any further and soon
sheered off.

[556] An Accompt of the Convoy money, as it was delivered unto me by
the Captaines emploied in that Service, vizt.: Captain Carteret, £657,
Captaine Lindsey, £200, Captain Slingsby, £42, Captain Johnson, £20, Mr
Skinner, £80.

[557] An Account of the Acknowledgment Money taken of the Holland
Fishermen. The partiality for English gold is shown by the fact that
£119, 13s. of the total was thus paid.

[558] The Dutch themselves appear to have acknowledged a payment
of 20,000 florins (Muller, _Mare Clausum_, 274). Rapin (_Hist.
d’Angleterre_, vii. 455) and Wagenaar (_Vaderlandsche Historie_, xi.
260) placed it at 30,000 florins; Larrey (_Hist. d’Angleterre, d’Ecosse
et d’Irlande_, iv. 126) states that the Dutch concluded a treaty with
Charles by which they agreed to pay him “dix mille ecus par an,”
which is equivalent to the same thing; Hume (_Hist. of England_, ch.
lii. an. 1636) says: “The Dutch were content to pay £30,000 for a
license during this year.” The error is found in the earlier English
historical writers. Rushworth (_Collections_, V. ii. 322) also states
the sum as £30,000, and adds that the Dutch were willing to pay a
yearly tribute for a like liberty in future. Frankland (_Annals
of King James and King Charles the First_, 477 (1681)) says that
Northumberland with his “sixty gallant ships” “commanded the Dutch
busses to cease fishing until they had obtained permission from the
King, which they seeming not willing and ready to do, he fired amongst
them, sunk some and seized others, until they were forced to fly into
his Majesty’s harbours, and desired the Lord Admiral to mediate to
his Majesty for his leave for this summer, and they would pay unto
his Majesty’s treasury therefor the sum of £30,000, which they did
accordingly, and professed their readiness to become suppliants to his
Majesty for a grant, under the condition of a yearly payment therefor
for the future.” This writer seems to have confused Northumberland’s
operations with those of Blake’s fleet in 1652 (see p. 406) or with
the onslaught of the Dunkirkers in 1635. Kennet (_A Complete Hist.
of England_, iii. 85 (1719)) repeats the mistake and puts the sum at
£30,000, and so with almost all the historians, as well as the naval
writers. Thus, Burchett (_A Complete Hist. of the Most Remarkable
Transactions at Sea_, 379 (1720)) and Lediard (_The Naval History of
England_, 526 (1735)) give the statement of Frankland; Entick (_A New
Naval History_, 438 (1757)) drops one of the ciphers and makes the
sum £3000, but otherwise retains the false account. Admiral Colomb,
in his recent excellent work on _Naval Warfare_ (p. 33), no doubt
founding on these naval authors, also refers to the “non-payment of the
£30,000 annually, which had been fixed by Charles as license dues.” The
writers of minor books embellished the error. In a mendacious treatise
published in 1664 (_The Dutch drawn to the Life_, 146) it is said that
Northumberland “scoured the seas of the Dutch busses, seizing some,
sinking others, and enforcing the rest to flee; so reducing all to the
precarious condition of entreating the favour of fishing by the King’s
commission, which he was the readier to indulge them, because he looked
upon them as the most likely instruments for his nephew’s restauration
to the Palatinate.” John Smith, writing in 1670 (_England’s Improvement
Reviv’d_, 257), said that “the composition of the Hollanders (for
liberty to fish) was an annual rent of £100,000, and £100,000 in hand;
and never having been paid or brought into the Exchequer, as I could
hear of, there is an arrearages of above £2,500,000; an acceptable
sum,” he adds, “and which would come very happily for the present
occasions of his Majesty”--Charles II. would have been very glad of
much less; he quite failed to induce the Dutch to pay him £12,000
a-year for a like liberty. Evelyn in 1674 (_Navigation and Commerce_)
put the “arrears” at over half a million sterling, and he said that in
1636 the Hollanders paid £1500, 15s. 2d. for licenses; but this was
only, as he explained later, “the sophism of a mercenary pen,” since
he slumped the convoy and the “acknowledgment” money together (having
had access to Northumberland’s Journal), and eight years later he wrote
to Pepys his remarkable letter of recantation, in which he stated,
“Nor did I find that any rent (whereoff in my 108 page I calculate the
arrears) for permission to fish was ever fixed by both parties” (_Diary
and Correspondence_, iii.)

The writers on international law have copied the erroneous statements
from the historians and from one another. Wharton (_Hist. of the Law
of Nations_, 154) says, “The exclusive rights to the fisheries within
these seas (the Four Seas) and near the coasts of the British Islands
had been occasionally acknowledged by the Dutch in the form of annual
payments and taking out licenses to fish; and was again suspended by
treaties between the sovereigns of England and the Princes of the House
of Burgundy.” This statement, which outrages chronology as well as
fact, is repeated (without acknowledgment) by Phillimore (_Commentaries
upon International Law_, I., Part ii., c. vi. s. clxxxiv.), and by
Travers Twiss (_The Law of Nations in Time of Peace_, 254), Hall
(_Treatise on International Law_, 145), and others. Hall quotes Hume’s
statement that the Dutch had to pay £30,000 for leave to remain, and a
more recent author supposes that the great fishing of the Dutch on our
coasts originated in the reign of Elizabeth, and that, growing strong,
they refused to pay the “duties levied without question for generations
within the British Seas” (Walker, _A History of the Law of Nations_, i.
167). As has been shown in the text, the Dutch herring-boats resisted
the payment of the “acknowledgment” money as far as they could; the
States-General equipped a fleet to prevent by force their molestation
by the English men-of-war, and they dismissed their Admiral because he
failed in 1636 to protect them.

[559] Aitzema, _op. cit._, ii. 408. “Op de bewaringhe ende
bescherminghe van de groote ende kleyne Visscherij deser Landen tegen
de Spaansche ende allen anderen die hun souden willen beschadigen,”
August 5/15, 1636.

[560] _State Papers, Dom._, cccxxxiii. 13.

[561] Muller, _op. cit._, 273.

[562] _Res. Holl._, 19th September; _Res. St.-Gen._, 8th November 1636;
Bosgoed, _Bib. Pisc._, 360.

[563] Gardiner, _Hist. England_, viii. 160, 163, 202, 205.

[564] Roe to Ferentz, Oct. 15, 1636. _State Papers, Dom._, cccxxxiv.
15. Goring to his father, Lord Goring, Feb. 4/14, 1637. _Ibid._,
cccxlvi. 33. Goffe to Archbishop Laud, Feb. 2. _Ibid._, cccxlvi. 23.
The Queen of Bohemia to Archbishop Laud, Feb. 4/14. _Ibid._, cccxlvi.
34. Laud to the Queen, Feb. 28. _Ibid._, cccxlviii. 62. Roe to the
Queen, Mar. 17. _Ibid._, cccl. 16. The Queen to Laud, (Mar. 25)/(April
4). _Ibid._, cccli. 1. Goffe’s letter to Laud was as follows: “Your
Grace will receive intelligence from other hands that certain edicts
which were ready to be published by the States against paying any
acknowledgment for leave to fish are now suppressed upon the hopes of
his Majesty’s relinquishing that business for the present. But the
Prince of Orange, not willing to content himself with probabilities,
hath been very pressing with the Queen of Bohemia to have some
assurance given him that the king would not interrupt their fishing
this year. And if no other way might be afforded, he is very urgent at
least that the Elector (the son of Elizabeth) would write to him and
assure him so much. How much such an assurance would be prejudicial
to the honour of his sacred Majesty your Grace can best judge. But I
thought it my duty to add that though their edicts are suppressed,
yet their book in answer to Mr Selden’s _Mare Clausum_ is ready to
come forth: and the author is neither so modest nor discreet that the
Elector should trust him [? the Prince of Orange] with any written
assurance in that kind. The Prince of Orange hath been so much upon
this that it hath given others cause to believe that the Elector will
be moved in it.”

[565] Roe to Ferentz. _State Papers, Dom._, cccxxxiv. 15.

[566] The “confident vrundt” was probably Roe, who was the confidential
adviser of Elizabeth, and at this time had interviews with the Dutch
ambassador in the Prince’s interests, which he “feared would come to
nothing.” _Ibid._

[567] “Que durant le même temps les Pescheurs et preneurs d’hareng,
subjects de leurs Seigneuries, pescheront librement et franchement,
com̄e ils out tousiours faict du temps de la Royne Elysabeth et du
grand Roy Jacques tous deux de très-glorieuse mémoire, s’approchants
si près des bords de mer, et rivages des royaulmes, terres et ysles de
sa Ma^{té}, que leur mestier, la course de poisson et hareng, et leur
proffit portera, voire jusques à seicher leurs filets sur terre, sans
que sa Ma^{té} directement ou indirectement leur fera ou fera faire
aucun dommage, destourbier, ou empeschement en cela.” _Verbaal van
Beveren._ Muller, _op. cit._, 279.

[568] Gardiner, _op. cit._, 218. _State Papers, Holland_, Jan., Feb.
1637.

[569] March 19, 1637. _State Papers, Dom._, cccl. 34.

[570] Gardiner, _op. cit. State Papers, Holland, Flanders._

[571] Windebank to Northumberland, July 3. _State Papers, Dom._,
ccclxiii. 21.

[572] _State Papers, Dom._, clvii. 151_b_.

[573] Windebank to the Earl of Northumberland, 3rd July 1637. _State
Papers, Dom._, ccclxiii. 21.

[574] Northumberland to Windebank, 4th July, _Ibid._, ccclxiii. 28.

[575] Windebank to Northumberland, 6th July. _Ibid._, ccclxiii. 41.

[576] “Diamentenring van tamelijcke groote,” _Verbaal van Beveren_.
Muller, _op. cit._, 297.

[577] _State Papers, Dom._, cccliv. 16; ccclv. 22.

[578] Report of Fielding, 24th July. _Ibid._, ccclxiv. 45.

[579] Pennington to Nicholas, 10th July, _State Papers, Dom._,
ccclxiii. 99; Northumberland to Sir Thomas Roe, 6th August, _ibid._,
ccclxv. 28; Pennington to Northumberland, 20th May, _ibid._, ccclvii.
15, ii.

[580] Windebank to Fogg, Aug. 10. _Ibid._, ccclxv. 51. With reference
to this letter of Windebank’s, the following note by Secretary
Williamson was made on the copy in the volume prepared for the
ambassadors going to Cologne in 1673 (_State Papers, Dom._, Chas.
II., 339, p. 519): “This mentioned report appears by other letters
and passages of that time to have been really the truth, but of that
disadvantage to his Ma^{tys} right and title, as it was thought fitt
by all means to stiffle it, and give out Captain Fielding went to ye
Holland Busses onely w^{th} notice of ye Dunquerq^{rs} preparations to
intercept them in their return and to offer his Ma^{ties} protection.”

[581] Windebank to Northumberland, 1st Aug., _State Papers, Dom._,
Chas. I., ccclxv. 5; Roe to Countess of Northumberland, 20th July,
_ibid._, ccclxiv. 22; Northumberland to Windebank, 1st Sept., _ibid._,
ccclxviii. 1; Same to Admiralty, 6th Sept., _ibid._, ccclxviii. 43.

[582] Aug. 10. _Ibid._, ccclxv. 53. The king’s real feelings were shown
in the instructions given to the Earl when he was ordered to the west
on 1st August. “If any of the fishers of Holland which have refused his
Majesty’s licenses shall be assaulted by the Dunkirkers, his Majesty
will in no wise that you protect them.” _Ibid._, ccclxv. 5.

[583] Aug. 6. _State Papers, Dom._, ccclxv. 28.

[584] An example of the feeling is to be found in an incident of this
summer. One, Richard Rose, a justice of the peace, on hearing that the
fleet was going forth to maintain the king’s title of being Lord of the
Narrow Seas, exclaimed: “What a foolery is this; that the country in
general shall be thus much taxed with great sums to maintain the king’s
titles and honours! For my part, I am £10 the worse for it already.”
When information of this remark was laid before the Council, the Lords
“thought it not fit to question these words.” _Ibid._, ccclxx. 1.

[585] The king to the Twelve Judges, 2nd Feb. 1637. _Ibid._, ccclxvi.
11.

[586] The _Sovereign of the Seas_ was the largest ship hitherto built
for the navy; it was 127 feet long in the keel, 46½ feet in breadth
(inside measurement), and 19 feet 4 inches in depth; the tonnage was
by the “new rule” 1552 tons, by the “old rule” 1823 tons. She was also
by far the most expensive. Her cost was £40,833, 8s. 1½d., besides
her guns, which were estimated to cost, with engraving, £25,059, 8s.
8d. _State Papers, Dom._, ccclxi. 71; ccclxix. 44; ccclxxiv. 30;
ccclxxxvii. 87. See also Oppenheim, _Hist. Administration Royal Navy_,
260. In 1637 a “description” of the ship was published by Thomas
Heywood, dedicated to the king, and with a frontispiece representation
of it: “_A True description of his Majestie’s Royall Ship Built this
yeare 1637 at Wool-witch in Kent. To the great glory of our English
Nation and not paraleld in the whole Christian World._ Published by
Authoritie, London, 1637.” The description, apart from the verse,
occupies a few pages at the end, the work dealing chiefly with the
ships of the ancients. A second edition was published in 1638: “_A True
Discription of his Majestie’s royall and most stately ship called the
Soveraign of the Seas, built at Wol-witch in Kent 1637 with the names
of all the prime officers in her_,” &c. Prynne (_Brief Animadversions_,
&c., p. 123) says that Charles claimed and maintained the dominion of
the seas by increasing the navy, &c., and “by giving the name of the
_Edgar_ (with this motto engraven on it, _Ego ab Edgaro quatuor maria
vendico_) and of the _Soveraign of the Sea_ to the Admiral of his
fleet.”

[587] _State Papers, Dom._, ccclxxx. 61; ccclxxxix. 86; cccxc. 39.

[588] _State Papers, Dom._, cccxxv. 21; cccxxxviii. 15; cccxli. 6;
ccclxi. 41; cccliii. fol. 34. _Brit. Mus. Add. MSS._, 17,677, O, fol.
364.

[589] _State Papers, Dom._, ccclxxxii. 44; ccclxxxiii. 29.

[590] Smith to Pennington, 8th June 1639. _Ibid._, ccccxxiii. 56.

[591] Windebank to Pennington, 10th, 15th, 16th July, _State Papers,
Dom._, ccccxxv. 45, 72, 81; Northumberland to Pennington, _ibid._,
ccccxxv. 76; Windebank to Hopton, 16th August, _Clarendon State
Papers_, i. 1283.

[592] Pennington to Windebank, 13th July. _State Papers, Dom._,
ccccxxv. 61, 68.

[593] Gardiner, _Hist._, ix. 69; _State Papers, Dom._, ccccxxviii. 52.

[594] Northumberland to Pennington, 12th September, _State Papers,
Dom._, ccccxxviii. 92; Windebank to Hopton, 29th September, _Clarendon
State Papers_, ii. 71; Hopton to Windebank, October 12/22, _Cal. Clar.
State Papers_, i. 1311.

[595] Gardiner, _op. cit._, 61.

[596] Windebank to Colonel Gage and Count Leslie, (28 Sept.)/(8 Oct.).
_Cal. Clar. State Papers_, i. 1296.

[597] Gardiner, _op. cit._, 63.

[598] Smith to Pennington, 30th Sept. _State Papers, Dom._, ccccxxix.
70.

[599] Northumberland to Pennington, 16th September. _Ibid._,
ccccxxviii. 92.

[600] Pennington to the Master of the _Luke_, of London, 23rd Sept.
_Ibid._, ccccxxix. 15.

[601] Smith to Pennington, 19th Sept. _State Papers, Dom._, ccccxxviii.
111.

[602] “De Spaansche Vloot te vernielen sonder eenige aanschouw of
reguard te nemen op de Havenen, Reeden, of Baayen van de Coningryken,
waar de zelve zoude zyn te bekomen.” _Resol. Stat.-Gen._, 11/21,
20/30 Sept. 1639. Aitzema, _Saken van Staet en Oorlogh_. Bynkershoek,
_Quæstiones Juris Publici_, lib. i.

[603] Northumberland to Pennington, 8th Oct., _State Papers, Dom._,
ccccxxx. 47; Same to Windebank. 9th Oct., _ibid._, ccccxxx. 55;
Pennington to Northumberland, 11th Oct., _ibid._, 77; Suffolk to
Windebank, 11th Oct., _ibid._, 66, 68; Pennington’s report, 11th
Oct., _ibid._, 74; Hopton to Windebank, 20/30 Nov., _Cal. Clar. State
Papers_, i. 1323; Tromp to Pennington, 11/21 Oct., _State Papers,
Dom._, _ibid._, 80 (translation in Windebank’s writing); _ibid._,
ccccxxxi. 4.

[604] Leslie to Windebank, 11th Oct.; Gage to Windebank, 19/29 Oct.
_Cal. Clar. State Papers_, i. 1309, 1313.

[605] Northumberland to Pennington, 15th Oct. _State Papers, Dom._,
ccccxxxi. 18, 30; _Cal. Clar. State Papers_, i. 1324.

[606] Windebank to Gerbier, 18th Oct. _State Papers, Dom._, ccccxxxi.
35. Gage to Windebank, 9/19 Nov. Paper delivered by Hopton to King of
Spain, 24th Nov. _Cal. Clar. State Papers_, i. 1321, 1324.

[607] _State Papers, Dom._, dxxxviii. 106. The paper is endorsed
“Soverainty of the Seas: the Dutch attempt on the Spaniards in the
Downs.”

[608] _Resol. St.-Gen._, 16/26, 20/30 Oct., (26 Oct.)/(5 Nov.) 1639.
Instructie van Sommelsdijck, Muller, _Mare Clausum_, 309; Aitzema,
_Saken van Staet_, ii. 618.

[609] _Secrete Resol. St.-Gen._, 11/21 Oct., “Dat hunne meeninge
gantsch niet was, het recht van Visscherie in de Noortzee van ijemant
te stipuleren, versoecken ofte reveleren.” Muller, _op. cit._, 312. In
the following year Vice-Admiral De With refused to lower his flag to an
English ship-of-war off Hellevoetsluis.

[610] Maine, _International Law_, 13, 75. Phillimore, _Commentaries
upon International Law_, I. xxi. Wheaton, _History of the Law of
Nations_, 54.

[611] Meadows, _Observations_, p. 3. Raleigh, _A Discourse on the
Invention of Ships_.

[612] Cunningham, _The Growth of English Industry and Commerce during
the Early and Middle Ages_, p. 418.

[613] _Le Droit International_, i. 20.

[614] _De Potestate Legis Pœnalis_, lib. ii. c. 14. Quoted by Nys,
_Les Origines du Droit International_, p. 382, and by Grotius, _Mare
Liberum_, c. vii.

[615] D. Fernandus Vasquius, _Controversiæ Illustres_, Venice, 1564,
lib. ii. c. lxxxix. s. 30 (p. 356, ed. Frankfurt, 1668).

[616] _Mare Libervm sive de Jvre qvod Batavis competit ad Indicana
Commercia Dissertatio._ Lugdvni Batauorvm. Ex officinâ Ludovici
Elzevirij Anno 1609. The name of Grotius did not appear on the
title-page until the second edition in 1618 (_Hvgonis Groti Mare
Libervm sive_ ... vltima editio. Lvgdvni Batavorum, anno 1618), the
year in which he was arrested; and that he was not generally known to
be the author until this time is shown by Welwood referring to _Mare
Liberum_ in 1613 as written by “an unknown author,” and by an English
State Paper, prepared for the negotiations with the Dutch ambassadors
in 1618, which contains excerpts out of a book called _Mare Liberum_
(_Brit. Mus. MSS. Lansd._, 142, fol. 383). Grotius was then one of the
most prominent men in Holland. Another edition was published, also at
Leyden, in 1633, together with Paul Merula’s _Dissertatio de Maribus_
and Boxhorn’s _Apologia pro Navigationibus Hollandorum adversus Pontem
Hevtervm_, under the title, Hugo Grotius, _De Mare Libero_. It was also
included in Hagemeier’s _De Imperio Maris, variorum Dissertationes_,
published in 1663. A translation in the vernacular appeared at Haarlem
in 1636,--no doubt in consequence of the publication of Selden’s _Mare
Clausum_,--H. Groti, _Vrye Zeevaert, ofte Bewys van het Recht dat
de Inghesetenen deser gheunieerde Landen toekomt over de Oost ende
West-Indische Koophandel_. Hugo de Groot was born at Delft in 1583; he
was appointed Advocate-General before he was twenty-four years of age,
and settled at Rotterdam in 1613, where he became Pensionary of that
town; he was sent to England as one of the Dutch envoys in that year.
In 1618 he was arrested in connection with the Barnevelt troubles,
and in the following year condemned to perpetual imprisonment; but he
escaped to Paris, where he lived for eleven years, and then entering
the service of the Queen of Sweden, he was employed as her ambassador
at the Court of France. He died at Rostock in 1645. Some of his works
were translated into almost all European languages, and even into
Persian, Greek, and Arabic.

[617] Tiele, _Opkomst van het Nederlandsch Gezag in Oost-Indie_; Fruin,
_Een onuitgegeven werk van Hugo de Groot_, in _De Gids_, Derde ser.
zesde Jaargang, 1868, vierde del; M’Pherson, _Annals of Commerce_, ii.
209, 226.

[618] “Ante annos aliquot, cum viderem ingentis esse momenti ad
patriæ securitatem Indiæ quæ Orientalis dicitur commercium, id vero
commercium satis appareret obsistentibus per vim atque insidias
Lusitanis sine armis retineri non posse, operam dedi ut ad tuenda
fortiter quæ tam feliciter cœpissent nostrorum animos inflammarem,
proposita ob oculos causæ ipsius iustitia et æquitate, unde nasci το
ἑυελπι recte a ueteribus traditum existimabam. Igitur et universa belli
prædæque iura, et historiam eorum quæ Lusitani in nostros sæue atque
crudeliter perpetrassent, multaque alia ad hoc argumentum pertinentia
eram persecutus amplo satis commentario, quem edere hactenus
supersedi.” _Hugonis Grotii Defensio Capitis quinti Maris liberi
oppugnati a Gulielmo Welwodo Iuris Civilis professore capite XXVII.
eius libri scripti Anglico sermone cui titulum fecit Compendium legum
Maritimaram._ This manuscript of Grotius was discovered in 1864, along
with the work _De Jure Prædæ_, to which he refers, in a collection of
MSS. brought to auction, which belonged to the family of Cornets de
Groot of Bergen-op-Zoom, who had descended in a direct line from the
great publicist (Fruin, _op. cit._) It was printed by Muller in 1872
(_Mare Clausum_, p. 331). The greater work, edited by Hamaker, was
published in 1868, _Hugo Grotius de Jure Prædæ Commentarius_.

[619] “Hujus generis est Aër, duplici ratione, tum quia occupari
non potest, tum quia usum promiscuum hominibus debet. Et eisdem de
causis commune est omnium Maris Elementum, infinitum scilicet ita, ut
possideri non queat, et omnium usibus accommodatum: sive navigationem
respicimus, sive etiam piscaturum.” Cap. v.

[620] Cap. v. “Similiter reditus qui in piscationes maritimas
constituti Regalium numero censenter, non rem, hoc est mare, aut
piscationem, sed personas non obligant. Quare subditi, in quos legem
ferendi potestas Reipublicæ aut Principi ex consensu competit, ad onera
ista compelli forte poterunt: sed exteris jus piscandi ubique immune
esse debet, ne servitus imponatur mari quod servire non potest.... Quod
in aliis difficile videtur, in hac omnino fieri non potest: quod in
aliis iniquum judicamus, in hac summe barbarum est, atque inhumanum....
In tanto mari si quis usu promiscuo solum sibi imperium et ditionem
exciperet, tamen immodicæ dominationis affectator haberetur: si quis
piscatu arceret alios, insanæ cupiditatis notam non effugeret.”

[621] Not improbably James had _Mare Liberum_ in view in the following
sentence in his Proclamation of 1609: “Finding that our connivance
therein hath not only given occasion of over great encroachment
upon our regalities, or rather questioning for our right.” That it
was believed in England that Grotius had James in view is shown by
the following _précis_ contained in the volume of official records
prepared for the ambassadors to the Congress at Cologne in 1673: “K.
James coming in, the Dutch put out _Mare Liberum_, made as if aimed
at mortifying the Spaniards’ usurpation in the W. and E. Indyes, but
indeed at England. K. James resents it, bids his Amb^r S^r D. Carleton
complaine of it.” _State Papers, Dom._, cccxxxix. p. 99. Chas. II.,
1673-75.

[622] Cap. v. p. 29. “In hoc autem Oceano non de sinu aut fretu, nec
de omni quidem eo quod e littore conspici potest controversia est.
Vindicant sibi Lusitani quicquid duos Orbes interjacet.”

[623] Cap. vii.

[624] Hvgonis Grotii De Ivre Belli ac Pacis, Libri Tres.

[625] Lib. ii. cap. ii. s. iii. 1, 2.

[626] Lib. ii. cap. iii. s. viii. “Ad hoc exemplum videtur et mare
occupari potuisse ab eo qui terras ad latus utrumque possideat, etiamsi
aut supra pateat ut sinus, aut supra et infra ut fretum, dummodo non
ita magna sit pars maris ut non cum terris comparata portio earum
videri possit. Et quod uni populo aut Regi licet, idem licere videtur
et duobus aut tribus, si pariter mare intersitum occupare voluerint,
nam sic flumina quæ duos populos interluunt ab utroque occupata sunt,
ac deinde divisa.”

[627] Lib. ii. cap. iii. ss. ix.-xii.

[628] Lib. ii. cap. iii. s. xiii. 2. “Videtur autem imperium in maris
portionem eadem ratione acquiri qua imperia alia, id est, ut supra
diximus, ratione personarum et ratione territorii. Ratione personarum,
ut si classis, qui maritimus est exercitus, aliquo in loco maris
se habeat: ratione territorii, quatenus ex terra cogi possunt qui
in proxima maris parte versantur, nec minus quam si in ipsa terra
reperirentur.”

[629] Calvo, _Le Droit Internat._, i. 348; Ortolan, _Règles
Internationales et Diplomatie de la Mer_, i. c. v. See p. 156 referring
to a State Paper of 1610, which seems to be misdated “August 1609.”

[630] Dumont, _Corps Diplomatique_, vol. V. ii. p. 99. The treaty was
signed on (30 March)/(9 April) 1609.

[631] _Defensio_, 332 (_circa_ 1614); Letter to his brother, 1st April
1617. _Epistolæ_, 759.

[632] _De Justo Imperio Lusitanorum Asiatico adversus Grotii Mare
Liberum._

[633] _Ivlii Pacii De Dominio Maris Hadriatici Disceptatio_, Lvgdvni
M.D.C.XIX. Other works were Angelus Mattheacius, _De Jure Venetorum et
Jurisdictione Maris Adriatici_, Venezia, 1617; Cornelio Francipane,
_Alegazion in Jure, per il Dominio, della Republica Veneta, del suo
Golfo, contra alcune Scritture di Napolitani_, 1618; Franciscus
de Ingenuis, _Epistola de Jurisdictione Venetæ Reipublicæ in Mare
Adriaticum_, 1619; P. Zambono, _Del Dominio del Mare Adriatico overo
Golfo di Venezia_, Venice, 1620.

[634] M’Crie, _Life of Andrew Melville_, 206, &c. Selden describes him
as _Jurisconsultus Scotus_; and Prynne “A Scot, Professor of the Civil
Law” (_Animadversions_, 113).

[635] There is a copy in the Library of the University, Cambridge
(Aldis, _A List of Books printed in Scotland before 1700_; Dickson and
Edmond, _Annals of Scottish Printing_, 415), and I have found a MS.
copy among the State Papers, entitled “The Sea Law of Scotland, shortly
gathered and plainly dressed for the ready use of all seafaring men.
Dedicated to James VI. of Scotland by William Welvod. At Edinborough,
A^o 1590, by Robert Walgrave.” (_State Papers, Dom._, Jas. I., ccviii.
No. xvi.) It was printed at Edinburgh by Waldegrave in 1590. There
are fifteen chapters dealing with the freighting of ships, the powers
and duties of the master, the relations between the master and the
merchants, &c. In his preface to the _Abridgement_, Welwood refers to
this earlier work as follows: “It pleased your M. some yeeres past most
graciously to accept of this birth, in the great weaknes and infancie
thereof. Therefore it is, that now being strong, and by all warrants
inarmed, it most thankefully returnes, offring seruice to your M. euen
for all the coasts of your Highnes dominions, vpon hope to merit your
former grace.” His last work is dated 1622. It is probable that, like
so many of his countrymen, he followed King James to London, where all
his later works were published. He was of an ingenious mind, and, while
teaching mathematics at St Andrews, obtained a patent for a new mode of
raising water from wells, &c., on the principle of the syphon. M’Crie,
_op. cit._

[636] _An Abridgement of all Sea-Lawes, gathered forth of all Writings
and Monuments, which are to be found among any people or Nation upon
the coasts of the greate Ocean and Mediterranean Sea: And specially
ordered and disposed for the use and benefit of all benevolent
Sea-farers, within his Maiesties Dominions of Great Britanne,
Ireland, and the adiacent Isles thereof._ London, 1613. Tit. xxvii.
deals with the “community” of seas. He refers to the work of Grotius as
“a verie learned, but a subtle Treatise (_incerto authore_) intituled
_Mare Liberum_.” Welwood’s _Abridgement_ was republished in 1636,
without alteration; also in the edition of 1686 of Malyne’s _Consuetudo
vel Lex Mercatoria_, but without his name.

[637] _De Dominio Maris Ivribvsque ad Dominivm praecipve spectantibvs
Assertio brevis et methodica._ Cosmopoli, 16th January 1615. It was
republished at The Hague in 1653, and replied to by Graswinckel. See p.
412.

[638] In Roman law a distinction was made between the sea and rivers
in regard to propriety. The sea is “_communis omnium naturali jure_,”
but the rivers are “_publicæ res, quarum proprietas est populi vel
reipublicæ_.”

[639] Welwood’s _De Dominio Maris_ is not mentioned by Grotius, whose
tract appears to have been written before it was published.

[640] _Jus Feudale, Tribus Libris Comprehensum_, lib. i., Diegesis 13,
p. 103. Edinburgh, 1603 and 1655. The treatise was dedicated to King
James. Craig was born in 1538 and died in 1608.

[641] “Quod ad mare attinet, licet adhuc ita omnium commune sit,
ut in eo navigari possit. Proprietas tamen ejus ad eos pertinere
hodie creditur, ad quos proximus continens adeo ut mare Gallicum id
dicatur quod littus Galliæ alluit, aut ei propius est, quam ulli alii
continenti. Sic Anglicum, Scoticum, et Hybernicum, quod propius Angliæ,
Scotiæ, et Hyberniæ est. Ita ut reges inter se, quasi maria omnia
diviserint, et quasi ex mutua partitione alterius id mare censeatur,
quod alteri propinquius et commodius est; in quo si delictum aliquod
commisum fuerit, ejus sit, jurisdictio qui proximum continentem
possideat. Isque suum illud mare vocat.... Piscationes vero quæ in
proximo mari fiunt, proculdubio eorum sunt qui proximum continentem
possident. Itaque non sine summa injuria nostra Belgæ circa nostras
insulas piscantur. Nam licet piscationes in mari non prohibeantur,
tamen et hæ præscribuntur, et traduntur permissæ aut prohibitæ secundum
consuetudinem.”

[642] _The Maintenance of Free Trade_, p. 42 _et seq. Consuetudo
vel Lex Mercatoria._ The latter contains chapters on Navigation and
Community of Seas, and The Distinct Dominions of the Seas. Many
editions were published.

[643] Wheaton, _Hist._, 51, 153; Phillimore, _Commentaries_, I. xxxix.

[644] _Alberici Gentilis Juriscons. Hispanicæ Advocationis_, Libri
Duo, Hanoviæ, 1613. Gentilis was born in 1551 and died, like Craig,
in 1608. His most important works were _De Jure Belli_ (1588) and _De
Legationibus_. Professor Holland has given an account of his life and
works in _An Inaugural Lecture on Albericus Gentilis_, delivered at All
Souls College, 1874. See also Alessandro de Giorgi, _Della Vita e delle
opere di Alberico Gentili_, Parma, 1876.

[645] In a letter from the Earl of Salisbury to Sir Thomas Lake in
1606, referring to a dispute between the Dutch and Spanish ambassadors
about prizes taken in the Narrow Sea, it is said that the king, in
putting in force his proclamation about the recall of subjects in
foreign service (p. 119), dealt as follows: if a prize had been taken
and brought into the English limits (chambers), and Englishmen were
aboard the taker, he dealt with them as having offended against his
proclamation, and also released the ship as not being good prize.
Even more, proceeds the Earl, “although there be no English but all
Flemings, the king takes all from them and restores it [the ship]
wherein, tho’ in effect it undoes the end of the States warr by sea,
because they have no way to come home but by the narrow seas, where
the least wind that can blow them can hardly keepe themself from the
English coasts, and so a partiall jugement of ½ a mile more or less
in a wyde sea looseth or winneth their right.” _State Papers, Dom._,
xviii. 22.

[646] In 1604, between King James and Philip III. and the Archdukes.
Dumont _Corps Diplomatique_, V. ii. 34.

[647] “Etiam non nocet, quod objicitur et longe antehac longo usu
servatos in hujusmodi quæstionibus hos esse fines qui expressi nunc
sunt Edicto,” p. 30.

[648] Gryphiander, _De Insulis Tractatus_, Frankfort, 1623, cap. 14, s.
46.

[649] Moore, _A History of the Foreshore and the Law relating thereto_,
1888.

[650] “Arguments prooving the Queenes Ma^{ties} propertye in the Sea
Landes, and salt shores thereof, and that no subiect cann lawfully
hould eny parte thereof but by the Kinges especiall graunte.” It is
printed by Moore (_op. cit._, 185) from _Lansdowne MSS._, No. 100.
Various copies exist; one in _Lansd. MSS._, No. 105, belonged to Lord
Burghley, and is endorsed by him “Mr Digges. The Case of Lands left by
ye Seas.” A copy is in _State Papers, Dom._, cccxxxix. 1.

[651] It may be said that this claim to “royal fish,” made also by
Bracton, was not peculiar to the English crown. It was made on the
Continent from an early period, as is shown by the ancient laws of
Jutland and of Scania, and the practice in many parts of France and
among the Normans. It may have been introduced into England by William
the Conqueror, who granted Dengey Marsh to Battle Abbey, with the right
to wreck and royal fish.

[652] _The Reading of the famous and learned Robert Callis, Esqr., upon
the Statute of Sewers_, 23 Hen. VIII., c. 5, as it was delivered by him
at Gray’s Inn in August 1622. 4th ed., 1824.

[653] Such as “A Collection of divers particulars touching the King’s
Dominion and Soveraignty in the Fishings, as well in Scotland as in
the British Ocean,” by Captain John Mason. (_State Papers, Dom._,
1590. _Admiralty_, Eliz., Jac. I., Car. I., No. 37, fol. 131.) A
superior compilation, dealing with the opinions of the Civilians,
as well as with the Dutch and native fisheries, and founded largely
on Dee, Hitchcock, Gentleman, and Keymer, is entitled “The King’s
Interest in the Sea and the Commodities thereof” (_ibid._, ccv. 92).
Another treatise, also dealing with the opinions of the Civilians, the
jurisdiction of the Admiral, and the rights of the crown of England to
the dominion of the narrow seas, is in _State Papers, Dom._, ccviii.,
No. x., fol. 402.

[654] The original Latin copy bearing the date 1633 (confirmed by
internal evidence) is in the British Museum (_Harleian MSS._, 4314). It
is entitled _Dominium Maris Britannici assertum ex Archiuis Historiis
et Municipalibus Regni Legibus_, per D. Johannem de Burgo, 1633; it
is dedicated to the king. Other MS. copies in the British Museum are
_Harl._, 1323; _Lansdowne_, 806, f. 40; _Sloane_, 1696; and _Harl._,
4626, the latter being very imperfect. There is also a fine copy in
English among the State Papers, dated 1637, with this addition to the
title: “Also a Perticuler Relation concerning the Inastimable Riches
and Commodities of the British Seas” (_State Papers, Dom._, ccclxxvi.
68). It was republished in the third edition of Malyne’s _Consuetudo
vel Lex Mercatoria_, in 1686.

[655] _Mare Clausum_, in dedication to King Charles, “Divi parentis
tui jussu tentata olim adumbrataque, inter schedas sive neglectas sive
disjectas per annos amplius sedecim mecum latuit; ut imperfecta nimis
sic etiam ceu intermortua.”

[656] _Vindiciæ Maris Clausi_, p. 25. This was the explanation
which Selden gave when, in 1652, he was taunted by a Dutch writer,
Graswinckel, with having written his work to get out of prison. It is
surprising that James, who was loquacious and fond of displaying his
knowledge, never lectured the Dutch ambassadors on the themes in _Mare
Clausum_--as from the rolls of the Edwards; nor was any use made of its
facts and arguments throughout the protracted negotiations in his reign.

[657] A Proclamation concerning a book intituled _Mare Clausum_, 15th
April 1636. _Fœdera_, xx. 12.

[658] _State Papers, Dom._, cclxxiii. 30; cclxxvi. 58.

[659] Gardiner, _Hist._, vii. 330. Poor Prynne, who lost both his ears
on this occasion, and had his books burned under him in the pillory,
became later an ardent defender of the king’s dominion in the seas in
the reign of Charles II., when he held the office of Keeper of the
Records.

[660] _State Papers, Dom._, cclxxvi. 58; cclxxxiii. 96-98.

[661] _Brit. Mus. Add. MSS._, 17,677, O, fol. 367. Joachimi to the
States-General, 5/15 Aug. 1635. “Het boeck Seldeni getituleert, soo ich
hoore, _mare clausum_, is onder den druck deur ordre van den Coningh.”

[662] Joannis Seldeni Mare Clausum seu de Dominio Maris, Libri Duo.
_Primo_, Mare, ex _Jure Naturæ seu Gentium_, omnium hominum non esse
Commune, sed Dominii privata seu Proprietatis capax, pariter ac
Tellurem, esse demonstratur. _Secundo_, Serenissimum Magnæ Britanniæ
Regem Maris circumflui, ut individuæ atque perpetuæ Imperii Britannici
appendicis, Dominum esse, asseritur. Pontus quoque Serviet Illi.
Londini, excudebat Will. Stanesbeius, pro Richardo Meighen, MDCXXXV.
The Preface is dated at the Temple, 4th November 1635.

[663] _Vindiciæ_, “proceres apud regem præpollentes.”

[664] Proclamation, 15th April 1636.

[665] Rushworth, _Historical Collections_, ii. 320. Frankland,
_The Annals of King James and King Charles the First_, 476. In the
Exchequer Order Book, under date 5th May, the following entry occurs:
“Whereas S^r William Beecher, K^t, one of the clerks of his Ma^{ts}
most honorable pryvy councill, did this daye deliver in Court to the
Lord Treasurer, Chauncillor, and Barons of the Courte, a booke lately
published by John Selden, Esqr., entituled _Mare Clausum seu de dominio
maris_, to be kept in this Courte as a faithfull and stronge evidence
for the undoubted right of the Crowne of England to the Dominion of
the Bryttishe seas, which saide booke the said Clerke of the Councill
did deliver according to an order in that behalfe made by the King’s
most excellent Ma^{tie} and the Lords of His Highness privy councell at
Whitehall, the third of Aprill last past, a coppie of which said order
is alsoe delivered with the said booke: It is, therefore, nowe ordered
by the said Lord Treasurer, Chauncillor, and Barons that the said booke
bee receaved by his Ma^{ties} Remembrancer of this Courte, and by
him kypt of record amonge the Records of the Courte as his Ma^{ties}
evidence. And as well the said order of the third of Aprill before
mentioned as this present order to bee inrolled upon Record.” _Charles
I. Decrees and Orders_, Series iii., No. 19, fol. 3_b_.

[666] Besides the Romans and the Carthaginians, he mentions as
among these the Cretans, Lydians, Thracians, Phœnicians, Egyptians,
Lacedemonians, and a great many more; but in most cases the evidence
adduced shows merely that naval power was exercised.

[667] Lib. i. cap. xvii.

[668] Lib. i. cap. xx. “Quod ad genus primum attinet (commerce,
travelling, navigation); humanitatis quidem officia exigunt, ut
hospitio excipiantur peregrini etiam ut innoxius non negetur transitus.”

[669] Lib. i. cap. xxii. “Sed vero ex aliorum piscatione, navigatione,
commerciis ipsum mare deterius Domino cæterisque ejus jure gaudentibus
fieri non raro videmus. Scilicet minui, quod alias inde percipi posset,
commodum. Quod manifestius cernitur in marium usu, quorum fructus
sunt uniones, corallium, id genus cætera. Etiam minuitur in horas
marium hujusmodi abundantia, non aliter ac sive metalli fodinarum ac
lapicidinarum, sive hortorum, quando fructus eorum auferuntur.... Et
similis sane ratio qualiscunque piscationis.”

[670] Lib. ii. cap. xiii.

[671] (1) _Ioannis Seldeni Mare Clavsvm sev de Dominio Maris Libris
Dvo. Quorum argumentum paginâ versâ._ Juxta exemplar Londinense.
Will. Stanesbeii pro Richardo Meighen, CIƆ IƆc xxxvi. (12^o); (2) with
the same title and the following addition: _Accedunt Marci Zverii
Boxhornii Apologia pro navigationibus Hollandorum adversus Pontvm
Hevtervm et Tractatvs Mvtvi commercii et navigationis inter Henricvm
VII. Regem Angliæ et Philippvm Archidvcem Austriæ_. Londini, juxta
exemplar Will. Stanesbeii pro Richardo Meighen, MDCxxxvi. (8^o); (3)
with the title as in the original London edition, and Lvgdvni Batavorvm
apud Joannem et Theodorvm Maire, 1636 (4^o). The original London
edition was a small folio. In all the Dutch editions the plates are
badly copied. No. 1 is sometimes referred to by English writers as
the original edition. No. 2 is the one alluded to by Charles in his
proclamation of 15th April 1636.

[672] _Resol. Holl._, 11/21 Dec. 1635. Quoted by Arendt, _Algemeene
Geschiedenis des Vaderlands_, iii., stuck 5, p. 8.

[673] _Resol. Holl._, (31 March)/(10 April) 1636. Muller, _Mare
Clausum_, 283.

[674] “Ego, cum Suecia,” he wrote to his brother on January 14,
1636, “multum teneat oræ maritimæ, quid aliud præstare possum quam
silentium?” Grotii, _Epistolæ_, 864.

[675] Digby to Lord Conway, January 21/31, 1636. _State Papers, Dom._,
cccxliv. 58.

[676] The treatise was entitled, _Th. Graswinckelii, Jurisc. Delph.
Maris Liberi Vindiciæ adv. virum clarissimum Johannem Seldenum_.
Arendt, _loc. cit._; Muller, _loc. cit._ Goffe, writing from Holland to
Archbishop Laud on 2nd February 1637, stated that the book in answer
to Selden’s _Mare Clausum_ was “ready to come forth, and the author is
neither so modest nor discreet that the Elector should trust him with
any written assurance in that kind,”--that Charles would not interrupt
the Dutch fishery that year (_State Papers, Dom._, cccxlvi. 23). We
shall again find Graswinckel in the thick of the controversy during the
first Dutch war, p. 411.

[677] _Joh. Isacii Pontani Discvssionvm Historicarvm Libri Duo, quibus
præcipuè quatenus et quodnam mare liberum vel non liberum clausumque
accipiendum dispicitur expenditurque, &c._, Harderwick, 1637.

[678] _Jacobi Gothofredi De Imperio Maris_, in Hagemeier, _De Imperio
Maris Variorum Dissertationes_.

[679] _Mare Balticum_ (anon.), 1638; _Ante-Mare Balticum, scilicet, an
ad Reges Daniæ, an ad Reges Poloniæ, pertineat_ (anon.), 1639; Azuni,
_Systema dei Principii del Diritto Maritimo_.

[680] The Case of Ship-Money briefly discussed, according to the
Grounds of Law, Policy, and Conscience. Presented to the Parliament,
November 3, 1640. Stubbe, _A Further Justification of the Present War
against the United Netherlands_, 76.

[681] Gardiner, _Hist. Engl._, x. 208. Clarendon, iii. 113.

[682] Rushworth, _Collections_, v. 312.

[683] Penn, _Memorials of the Professional Life and Times of Sir
William Penn, Knt., from 1640 to 1670_, i. 224.

[684] _State Papers, Dom._, dxv. i. 37, 38, 39. There is also in one of
the collections a quotation from Selden’s _Mare Clausum_, that it was
treason not to acknowledge the King of England’s dominion in his own
seas by striking sails.

[685] Instructions given by the Committee of Lords and Commons for the
Admiralty and Cinque Ports, to be observed by all captains, officers,
and common men respectively in this fleet, provided to the glory of
God, the honour and service of the Parliament, and the safety of the
three Kingdoms, March 30, 1647. _Ibid._, dxv. 40.

[686] Rushworth’s _Collections_; Penn, _op. cit._, i. 242.

[687] Loccenius, _De Jure Maritimo_, x. s. 10.

[688] _State Papers, Dom._, 27th Feb. 1649.

[689] 17th January 1650. _A Collection of the State Papers of John
Thurloe_, i. 134.

[690] Penn, _Memorials_, i. 365, 379.

[691] Geddes, _History of the Administration of John de Witt_, i. 102,
106, 150-157. Gardiner, _History of the Commonwealth and Protectorate_,
i. 353, 356.

[692] Geddes, _op. cit._, 157, 159, 165. Gardiner, _op. cit._, 359.
_The Nicholas Papers_, i. 230.

[693] “Wee doe tender the ffriendshipp of the Com̃onwealth of England
unto the High and Mighty Lords the States Generall of the Vnited
Provinces, and doe propound that the Amitye, and good Correspondency
which hath aunciently beene betweene the English Nation and the Vnited
Provinces, be not only renewed, and preserved inviolably, But that a
more strict, and intimate Allyance, and Vnion, be entred into by them,
whereby there may be a more intrinsicall, and mutuall interest of each
in other then hath hitherto beene for the good of both.” Submitted 25
March/6 April. “A briefe Narrative of the Treatie at the Hague betweene
the hono^{ble} Oliver St John, Lord Chiefe Justice of the Court of
Com̃on Pleas, and Walter Strickland, Esq., Embassado^{rs} extraordinary
of the Parliament of the Com̃onwealth of England, to the great Assembly
of the States Generall of the Vnited Provinces begun upon the 20th of
March 1651 and continued vntill the 20th of June 1651 and then broke of
_re infectâ_.” _State Papers, Foreign, Treaty Papers (Holland)_, No.
46, 1651.

[694] “We propound, That the two Com̄onwealths may be confederated
friends, ioyned, and allyed togeather for the defence and Preservation
of the Libertyes, and ffredomes of the people of each, against all
whomsoever that shall attempt the disturbance of either State, by Sea
or Land, or be declared enemyes to the freedome and Libertie of the
people liveing under either of the said Governments.” Submitted, 17th
April. _Ibid._, p. 7.

[695] _Narrative of the Ambassadors_ (ibid.) Geddes, _op. cit._, 157,
159, 165, 171. Gardiner, _op. cit._, 359, 362, 363. Tideman, _De Zee
Betwist: Geschiedenis der Onderhandelingen over de Zeeheerschappij
tusschen de Engelsche Republiek en de Vereenigde Provinciën vóór den
ersten Zee-Oorlog_, 39-47. Thurloe’s _Collections_, i. 176, 179,
181-186, 188, 193. Aitzema, _Saken van Staet en Oorlogh_, 657-660.

[696] See Appendix K. _Narrative of the Ambassadors_, p. 23. Aitzema,
_op. cit._, iii. 698-700. MS. of Duke of Portland in _Hist. MSS. Com.
Thirteenth Report, App. I._, 605. Tideman, _op. cit._, 47, 48, 49.
Geddes _op. cit._ 178.

[697] Articles 17-33, _Narrative of the Ambassadors_. These articles
are given in Appendix K. Tideman, _op. cit._, 50. Aitzema, _op. cit._,
iii. 695.

[698] “Over het strijken van vlaggen ende andere Ceremonieën daeruyt
meenichmael differentien in zee coomen te ontstaen.” _Resol. der Groote
Vergadering_, 15/25 May 1651. Tideman, _op. cit._, 52.

[699] St John and Strickland left The Hague on 20th June, and the
Act was recommended to the Parliament by the Council of State on 5th
August, and passed on 9th October (Gardiner, _op. cit._, ii. 82). The
essence of the Act was to prohibit the importation of extra-European
commodities into any territory of the Commonwealth except in English
vessels, or from Europe unless in English vessels or vessels belonging
to the country in which the commodities were manufactured or produced.
The importation of salt-fish or fish-oil, and the exportation of salted
fish, were to be permitted only in English vessels, but the importation
of fresh fish was not forbidden. Early in the next year two Dutch
doggers, driven into Yarmouth by contrary winds, exposed their cod and
haddocks for sale and were seized by the bailiffs; their release was
ordered by the Council of State.

[700] Geddes, _op. cit._, 192, 193. Tideman, _op. cit._, 89, 96.
Gardiner, _op. cit._, ii. 108. Gardiner, _Letters and Papers relating
to the First Dutch War, 1653-1654_, Navy Records Society. In the third
volume (1906) of this valuable work the papers are brought down to 10th
February 1653.

[701] Tideman, _op. cit._, 96. Aitzema, _op. cit._, iii. 696.

[702] They were Whitelocke, John Lisle, Bond, Scott, Viscount Lisle,
and Purefoy.

[703] Cats’ _Verbael_. Tideman, 94-108. Geddes, 198.

[704] The conferences on the articles were on 3rd, 5th, 6th, 10th, and
13th May. The incorporation and union of Scotland with England was
proclaimed at Edinburgh on the 21st of the preceding month.

[705] Cats’ _Verbael_, _App._, 21. Tideman, _op. cit._, 117.

[706] “De dispuyte over ’t recht hetwelck de Engelsche pretenderen
privative over eenigh ghedeelte van de Zee te hebben, ende in allen
ghevalle aan deselve geen soodanigh recht in eenigher wijse toe te
staen, ende alleen te handelen over de vryheijdt ende seeckerheijdt van
wederzijts visscherije.” Tideman, _op. cit._, 119. Aitzema, _op. cit._,
iii. 708.

[707] Cats’ _Verbael_. Tideman, 118.

[708] Aitzema, iii. 713. Tideman, 124, 130, 132. The draft instructions
were dated (April 30)/(May 10), and were approved on May 6/16. A
translation of the 7th Article is as follows :“The superior officers
and captains either already in command of the aforesaid squadrons
or hereafter appointed, are to be charged to free the ships of this
country from all search by any one whatever, and to defend them against
all who try to do them injury, and to release them to the uttermost of
their power from every one who may have captured them, and further to
do whatever their ordinary instructions in their commission requires
in a sailor-like fashion for the service of the country.” By the 5th
Article, fifteen men-of-war were to be sent for the protection of the
“great” (herring) fishery, “which is of so great importance to the
State,” along with the ordinary national convoy-ships, and the ships
which the towns of Enkhuizen, Delft, Rotterdam, and Schiedam were
accustomed to add. Gardiner, _Letters and Papers_, i. 155.

[709] Tromp’s memorandum was dated (28 Feb.)/(9 March), 1651. The
original is apparently lost (Tideman, _De Zee Betwist_, 68); but an
account of it is given by his contemporary, Aitzema (iii. 731), and
is printed in Appendix L. Tromp, in his _Rescript_ of 14/24 October
1652, justifying and explaining his conduct with regard to the meeting
with Blake, refers to a memorandum on the subject of the flag which
he presented to a committee of the States on “Jan. 6/16, 1650/1651,”
and which they considered in arranging his instructions of “(Feb.
21)/(March 3), 1650/1651” (Gardiner, _Letters and Papers_, i. 422). The
dates here are those given by Tideman.

[710] “Sonderlinge de swackste sijnde.”

[711] Tideman, _op. cit._, 68. _Resol. Holl._, 1/11 March 1651.

[712] _Hollantsche Mercurius_, April 1651, p. 49: “Seer jalours, omdat
hij niet terstond gereedt was voor haar te strijcken.”

[713] _Resol. St. Gen._, 7/17, 12/22 Oct. 1651. Aitzema, iii. 731.
Tideman, 68, 92.

[714] _Add. MSS. Brit. Mus._, 11,684, fol. 30.

[715] Bourne’s letter in _The Answer of the Parliament of the
Commonwealth of England to three Papers delivered to the Council of
State by the Lords Ambassadors Extraordinary of the States-General of
the United Provinces_: and also a _Narrative of the Late Engagement_,
&c., _Brit. Mus._, (517, k, 15)/(36), p. 12.

[716] Letter to States-General, May 30. _Hollantsche Mercurius_, May
1652. _The Answer of the Parliament._ Geddes, 209. Tideman, 130.

[717] Blake’s letter, _The Answer of the Parliament_, p. 8.

[718] Tideman, 128, 129. Geddes, 210, 211.

[719] Young’s despatch, 14th May 1652, in _The Answer of the
Parliament_, p. 20. Penn’s _Memorials_, i. 419. Tideman, 197. Gardiner,
_Letters and Papers relating to the First Dutch War_, i. 178. _The
French Occurrences_, &c., _Brit. Mus._, E, 665, 6. It may be noted that
Tromp, in his _Rescript_ to the States-General (see note, p. 398),
mentioned that Huyrluyt and van der Saen had received instructions to
strike only to royal squadrons.

[720] In the Dutch writings the place was described as “Fairle,”
“Fayrleigh,” “Virly,” “Vierly,” &c. Its position is shown, as Fairlee,
in the reproduction of the chart from Selden in this book (Fig. 3, p.
121).

[721] _The Answer of the Parliament._ Gibson, Collections of Naval
Affairs, _Add. MSS._, 11,684, fol. 5_b_. Geddes, _op. cit._, 212.
Gardiner, _op. cit._, ii. 118; _Letters and Papers_, i. 172. Tideman,
_op. cit._, 135. The Dutch accounts, which vary in certain particulars
from the English and from one another, are unanimous in saying that the
first broadside came from Blake’s ship, the _James_, which would have
been according to custom, since Tromp did not lower his flag after the
third shot.

[722] See his memorandum, p. 398. Tromp wrote to Blake from Calais
four days afterwards ((23 May)/(2 June)), saying he had intended to
salute him, and asking for the restoration of a ship taken. In reply
Blake accused him of having sought out the English fleet, and “instead
of performing those usual respects which of right belong unto them,
and which yourself have often done,” had attacked him. In _The Answer
of the Parliament_, p. 11, it is said that one of the Dutch captains
who had been taken prisoner stated that when he struck to some English
men-of-war at Calais a few weeks before, Tromp asked him “why he did
strike sail to them,” saying, “Were you not as strong as they? And
being so, why were you afraid?” As the above-mentioned letter from
Tromp to Blake is given by Gardiner (_Letters and Papers_, i. 216) only
as “translated from a Dutch translation of the French original,” an
authenticated copy of the French original is given in Appendix M, from
Tideman (_De Zee Betwist_, App. C, p. 202). It is from the archives at
The Hague (_Lias Engeland_, 1652 (_Copie_), and is endorsed by Job.
Corñ. Rhees, and again by N. Ruysch, as identical with the authentic
copy. The original of Blake’s reply is also given. It is printed by
Gardiner as “retranslated from the Dutch translation” (_ibid._, i.
257), and differs in some points from the original.

[723] _The Answer of the Parliament_, p. 4.

[724] _Resol. St.-Gen._, (25 May)/(4 June), 3/13 June 1652. Tideman,
_De Zee Betwist_, 164. Articulen van Vreede ende Confederatie,
&c. _Brit. Mus._, 8122, ee. 12--“Dat hij aengaeñ het voeren ofte
strijcken van vlagge in de Rencontre mette Engelsche Vlooten of
Schepen hem bij provisie respectivelijck sal hebben te gedragen en te
reguleren in sulcker voegen als bij tijden van voorgaende Coningen van
Groot-Britaignen is gedaan ende gepractiseert geweest.”

[725] Tideman, 171.

[726] _State Papers, Dom._, xxiv. 15.

[727] Cats, Schaep, and van de Perre to the States-General, 27th June
1652. _Add. MSS._, 17,677, U, fol. 162. Pauw was officially informed
by the Council of State that the fleet had put to sea “to execute its
designs.” Geddes, _op. cit._, 223. Gardiner, _Letters and Papers_, i.
301. The number of Blake’s fleet was variously stated as 60, 64, 66,
68, 72 vessels: 60 were counted passing Dunbar.

[728] Letter from Leyden, 4/14 August 1652. _Mercurius Politicus_,
_Brit. Mus._, E, 673, 1. The accounts vary somewhat. _Severall
Proceedings in Parliament_, _Brit. Mus._, E, 796, 11. _A Perfect
Diurnall_, E, 796, 14. _French Occurrences_, E, 669, 6. _Onstelde-Zee_,
p. 34, (8122, ee. 6)/(11). _Hollantsche Mercurius_, 1652, p. 70.
Gibson in his narrative (_supra_) says he was on board one of the
ships (the _Assurance_) that attacked the busses, and that they found
them “northwards of the Dogger Bank”; but there is no doubt that the
locality was far north of the Dogger, off Buchan Ness, _Brit. Mus. Add.
MSS._ 11,684.

[729] _Memoirs of Edward Ludlow_, 420.

[730] _Proc. Council of State_, 20th July 1652.

[731] _Resol. Holl._, 1652, pp. 343, 364, 387. _Hollantsche
Mercurius_, 1652, p. 86. Beaujon, _Hist. Dutch Fisheries_, 363. _Groot
Placaet-Boeck_, ii. 506. Aitzema, _Saken van Staet_, iii. 810. Penn’s
_Memorials_, i. 526, 527. _State Papers, Dom._, xxv. 25; xxxii. 15;
xxxvi. 15, 29, 55; xxxviii. 116; xxxix. 73; xli.

[732] The Declaration and Speech of the Lord Admiral Vantrump, and
his setting up a great Standard of Broom for the States of Holland,
for the Cleering of the Narrow Seas of all Englishmen: New Broom
sweepes clean, p. 4. _Brit. Mus._, E, 689, 13. A Perfect Account of
the Daily Intelligencer, _Brit. Mus._, E, 689, 14. Gardiner, _Hist. of
Commonwealth_, ii. 151. Geddes, _op. cit._, 270, 319.

[733] _Journals of the House of Commons_, vii. 145.

[734] _State Papers, Dom._, _Interregnum_, xxix. 42-47.

[735] This collection is in a treatise in the British Museum (_Harleian
MSS._, 4314), entitled “The Sovereignty of the English seas vindicated
and proved by some few Records (amongst many others of that kynd)
remayning in the Tower of London,” Collected by William Ryley, senior.
Among the State Papers (_Dom._, xxxv. 35) is a copy of the ordinance
of John, in Latin, French, and English, endorsed by Bradshaw, “A
transcript of a record in the time of King John touching the striking
of sail; brought in by Mr Ryley, Keeper of the Records in the Tower,
by order of the Council of State.” It contains the following note by
Ryley, referring, presumably, to the _Black Book of the Admiralty_:
“The French is in a very ancient and fair MS. book amongst the rest of
the maritime laws, and undoubtedly was a record of the Admiralty Court,
then in the possession of the registrar of that Court, the names of the
Lord Admiral and registrar being written at the beginning of the book,
which is now remaining with Mr Selden, and is of no less authority than
antiquity.”

[736] _State Papers, Dom._, _Interregnum_, xxix. 48.

[737] Masson, _Life of Milton_, iv. 149, 226.

[738] _Of the Dominion or Ownership of the Sea, written at first in
Latin and entituled_ Mare Clausum seu De Dominio Maris _by John Selden,
Esqr: translated into English and set forth with some Additional
Evidences and Discourses_ by Marchamont Needham. Published by special
Command, London, 1652. Another edition, by “J. H. Gent,” was published
in 1663, “perfected and restored.” It is, however, so far as Selden’s
text is concerned, merely Needham’s translation, careful inspection
showing that it was printed from the same type.

[739] _State Papers, Dom._, _Interregnum_, xxxiv. 31-49; vol. 33, No.
14. The copy belonging to Cromwell, and bearing his autograph, was sold
in 1908.

[740] In some dedicatory verses Neptune thus addresses the Great
Commonwealth of England:--

“Go on (great State!) and make it known
Thou never wilt forsake thine own,
Nor from thy purpose start:
But that thou wilt thy power dilate,
Since Narrow Seas are found too straight
For thy capacious heart.
So shall thy rule, and mine, have large extent:
Yet not so large, as just, and permanent.”

The work appeared when Tromp was lord of the narrow seas; the preface
is dated 19th November, the day before Blake’s defeat.

[741] _De Dominio Serenissimæ Genvensis Reipublicæ in Mari Ligustico._
Rome, 1641.

[742] _Maris Liberi vindiciæ adversus Petrum, Baptistam Burgum
Ligustici Maritimi Dominii Assertorem._ Hagæ Comitum, 1652.

[743] Cap. vi. p. 118. See _supra_, p. 367.

[744] _Joannis Seldeni vindiciæ secundum integritatem existimationis
suæ, per convitium de Scriptione Maris Clausi, petulantissimum
mendacissimumque insolentius læsæ in Vindiciis Maris Liberi adversus
Petrum Baptistam Burgum, Ligustici Maritimi Dominii assertorem. Hagæ
Comitum jam nunc emissis._ London, 1653.

[745] _Maris Liberi Vindiciæ adversus Gulielmum Welwodum Britannici
Maritimi Dominii assertorem._ Hagæ Comitum, 1653. Other works were
Mord. von der Reck, _Disputatio juridica de Piscatione_, 1652; Martin
Schook, _Imperium Maritimum_, Amsterdam, 1653; Stephen S. Burman, _Mare
Belli Anglicani injustissimè Belgis illata_, Helena, 1652. The latter
contains a pretty full account of the old “Burgundy” treaties, and of
others concluded by England with various countries in the seventeenth
century, in which, as the author points out, no claim was made to the
sovereignty of the seas.

[746] For example, Robinson, _Briefe Considerations concerning the
Advancement of Trade and Navigation_, 1649.

[747] Stubbe, _A Further Justification_, 91.

[748] Geddes, i. 282, 289, 292. Gardiner, ii. 128, 183, 329. Aitzema,
iii. 804.

[749] Geddes, i. 315. Gardiner, ii. 340. _Verbael gehouden door de
Heeren H. van Beverningk, W. Nieuport, J. van de Perre, en A. P.
Jongestal, als Gedeputeerden en Extraordinaris Ambassadeurs van de
Heeren Staeten Generael der Vereenigde Nederlanden, aen de Republyck
van Engelandt_, i. 7, 12.

[750] Clarendon, _The History of the Rebellion and Civil Wars_, vi.
607. Gardiner, _op. cit._, ii. 111.

[751] _Verbael of the Ambassadors_, 10, 21, 35.

[752] _Ibid._, 84. Thurloe’s _State Papers_, i. 394.

[753] 21st July 1653. _Verbael_, 53.

[754] 25th July, _Verbael_, 56, 59, 62. Geddes, i. 341. Thurloe, i. 382.

[755] The Deputies to the Council, (27 July)/(6 August); reply of the
Council, 1/11 August. _Verbael_, 64, 66, 70.

[756] _Verbael_, 75, 142, 143, 150. Thurloe, i. 370, 417, 418. Geddes,
i. 362. Gardiner, ii. 350,

[757] _Verbael_, 155. “7. Dat alle schepen onder het ressort van
haer Ho. Mog. t’ huys behoorende, in alle rencontres in de Zee, aen
Oorloghschepen van de Republyck van Engelandt sullen draegen het
selvige respect, ende deselve eere doen, als sy ooit voor desen syn
gewoon geweest te doen.”

[758] Stubbe, _A Further Justification_, 92. Stubbe says he had
an account of part of the proceedings from one of the English
commissioners; he had also the use of official manuscripts.

[759] _Verbael_, 189. “Syn Excellencie ... gesyt ... dat sy daerom
voor af meenden, dat moeste vaststellen haer Reght ende Dominie in de
naeuwe Zee, ende het stuck van haere Visscherye, ende ... eyndelyck
besluytende dat die pointen van de Zee ende Visscherye geadjusteert
synde, het vordere werck seer souden faciliteren.”

[760] _Verbael_, 189, 190, 196, 198, 214.

[761] Art. xviii. _Verbael_, 203.

[762] Stubbe, _A Further Justification_, 62.

[763] Art. xv.

[764] Gardiner, _Letters and Papers_, i. 49, 170.

[765] Art. xvi. _Verbael_, 203.

[766] Art. xiv. “That the inhabitants and subjects of the United
Provinces may, with their ships and vessels, furnished as merchantmen,
freely use their navigation, sail, pass and repass in the seas of Great
Britain and Ireland, and the Isles within the same, (commonly called
the British Seas) without any wrong or injury to be offered to them, by
the ships or people of this Commonwealth, but on the contrary shall be
treated with all love and friendly offices; And may likewise with their
men of war not exceeding such a number as shall be agreed upon in this
treaty, sail, pass and repass through the said seas, to and from the
countries and parts beyond them: but in case the States-General shall
have occasion to pass the said seas with a greater number of ships of
war, they shall give three months before notice of their intentions to
the said Commonwealth, and obtain their consent for the passing of such
fleet, before they put them forth upon these seas, for preventing all
jealousies and misunderstandings between the States by means thereof.”
_Verbael_, 202.

[767] Sir H. Vane, who was the chief director of the war, is reported
to have said that the interests of the two countries “were as
irreconcilable as those of rivals, trade being to both nations what a
mistress is unto lovers; that there never could intervene any durable
peace, except both nations did unite by coalition, or the English
subjugate the others and reduce them into a province, or by strict
conditions and contrivances ensure themselves against the growth and
future puissance of the Dutch.” Stubbe, _op. cit._, 119.

[768] The Ambassadors to the States-General, 18/28 November. _Verbael_,
215. Geddes, i. 372.

[769] _Verbael_, 216, 219.

[770] _Verbael_, 229, 230, 236.

[771] See pp. 78-81.

[772] Art. xviii. “Antiqui intercursus et commercii tractatus,
provisionaliter pristinam vim et auctoritatem obtineant.”

[773] Beukelsz, who invented the modern method of pickling herrings, is
said by some to have died in 1347, by others in 1397, and by a few in
1401. Stubbe says the deputies assigned the year 1414 to the discovery,
but no year is mentioned in their report.

[774] _Verbael_, 237, 238, 240-243. Stubbe, _op. cit._, 64.

[775] The statement referred to the licenses for fishing on the Zowe.
See p. 65.

[776] Whitelock to Thurloe, 10th March 1654. Thurloe’s _Collection_,
ii. 158.

[777] Council of State Order Book, 6th Aug. 1653. _State Papers, Dom.,
Interregnum._

[778] Dumont, _Corps Diplomatique_, VI. ii. 125. “X. Subditis
Serenissimi Regis Sueciæ liberum erit, per Maria atque Littora, quæ in
Ditione hujus Reipublicæ sunt, piscari, atque Haleces, aliosque Pisces
capere; dummodo mille Navium numerum piscantes non excedant. Neque
inter piscantes ullum iis impedimentum, aut, molestia asseratur Neque
à Navibus præsidiariis hujus Reipublicæ, neque ab iis quibus Diplomate
permissum est, res suas privatim suo marte repetere, nec a piscantibus
in Boreali plagâ Britanniæ, piscationis nomine onera aliqua exigantur,
immo omnes humaniter atque amice tractentur, usque retia in Littore
siccare, quemque opus est commeatum ab eorum Locorum Incolis, justo
pretio comparare sibi licebit.”

[779] Stubbe, _op. cit._, 68. Robinson, _England’s Safety in Trades
Encrease_, 1641. Ibid., _Considerations Concerning the Advancement of
Trade and Navigation_, 1649.

[780] The Deputies to the States-General, 7/17 December 1653.
_Verbael_, 246.

[781] It may be noted that Philip Meadows now became Latin Secretary
to the Council in place of Milton. He was afterwards an extremely able
opponent of the English claims to the sovereignty of the sea, and wrote
the best book against them. See p. 524.

[782] _Verbael_, 260, 261. MS. Commentary, Stubbe, _op. cit._, 60.

[783] “Ende dat sy alleenlyck spraecken van de naeuwe Zee.”

[784] _Verbael_, 231.

[785] _Verbael_, 272.

[786] Stubbe, _op. cit._ Geddes has shown that Beverning, acting
secretly with De Witt, had clandestine communications with Cromwell as
early as 8th December, clearly with reference to the exclusion of the
Prince of Orange. _Op. cit._, i. 385.

[787] _Verbael_, 273.

[788] Ad. 15. ut ad angustum mare (quod Britannicum vocant) ibique ad
certas regulas cum distinctione locorum et littorum ita restringatur,
ut idem ille honor eademque dignitas, quæ vexilli supremi et veli
dimissione unquam delati aut observati fuerunt, in posterum adhuc
deferantur, et observentur. _Verbael_, 275.

[789] “Ende met eenen voortgaende tot het 15 Artikel raekende het
stryken van de Vlagge, &c., syn wederom gerepeteert alle de argumenten
ende redenen, die in voorige Conferentien syn geallegeert geweest,
ende wierdt ten uytersten by den Heer Generael daer in gepersisteert,
alleenlyck, dat hy die explicatie byvoeghde op haere laetste antwoorde,
daer sonder eenige distinctie van de rencontres in zee gesprooken
wordt, dat sy dat verstonden van de naeuwe Zeën die de Britannische
Zeën genoemt worden.” _Verbael_, 278, 27 December 1653/4 January 1654.

[790] _Secrete Resol. St. Generael_, 9/19 Feb. 1654. _Verbael_, 300.

[791] “Met seer scherpe woorden, ende hatelycke illatien tegensprack.”
_Ibid._, 307.

[792] _Ibid._, 320. “Angustum mare, quod vulgo Britannicum mare
appellatur.”

[793] “Tot de naeuwe Zee expresselyck gerestringeert.” _Ibid._, 288.

[794] _Verbael_, 283, 285, 289.

[795] Geddes, _op. cit._, i. 380.

[796] _Ibid._, 290, 293, 311, 319. Geddes, i. 378-393. Gardiner, _op.
cit._, ii. 368, 369.

[797] “Gelyk sy in ’t 14 van de 27 Artikelen haere Brittannische Zën
selver gedefinieert hadden.” _Verbael_, 396.

[798] “Daer op syne Hoogheyt in colere seyde, dat sonder de versoghte
elucidatie ende interpretatie, hy de Ratificatie niet konde
uytwisselen.” _Ibid._, 397.

[799] Next day Cromwell entertained the Dutch ambassadors and their
wives to a sumptuous banquet, and after dinner he passed them a paper
with the remark, “We have hitherto exchanged many papers, but in my
opinion this is the best.” It was the first verse of Psalm cxxxiii.,
which they all then sang together solemnly--

“Behold, how good a thing it is,
And how becoming well,
Together such as brethren are
In unity to dwell.”

_Verbael_, 419. Aitzema, iii. 927. Geddes, i. 422.

[800] Dumont, _Corps Diplomatique_, VI. ii. 75. _Verbael of the
Ambassadors_, 356.

[801] XIII. Item, quod naves et navigia dictarum Fœderatarum
Provinciarum, tam bellica et ad hostium vim propulsandam instructa,
quam alia, quæ alicui e navibus bellicis hujus Reipublicæ in maribus
Britannicis obviam dederint, vexillum suum e mali vertice detrahent,
et supremum velum demittent, eo modo, quo ullis retro temporibus, sub
quocunque anteriori regimine, unquam observatam fuit.

[802] Lawson, from the _Fairfax_, at Aberdeen, to the Admiralty
Committee, 13th May 1654. Same to Blackburn, 13th May. _State Papers,
Dom._, lxxi. 78, 79.

[803] Cockraine to the Admiralty Committee, 11th Aug. 1654. _Ibid._,
lxxiv. 39.

[804] Heaton to the Admiralty Committee, 15th Aug. 1654. _State Papers,
Dom._, lxxiv. 61, 62.

[805] The Skagerreef or Scaw, the north point of Jutland, Denmark.
The ships were going to the north in connection with the war between
Denmark and Sweden.

[806] Richard Cromwell, the Protector, to General Montague, 18th March
1659. Thurloe’s _Collections_, vii. 633.

[807] The Information of William Gunnell, and others, of Great
Yarmouth, 25th September 1654. _Verbael of the Ambassadors_, 600, 601.

[808] _Ibid._, 612, 614, 646, 689, 711. From the sworn depositions made
before the Burgomasters of Enkhuisen, it appears that that town had at
least 246 busses at the Yarmouth fishing in 1654.

[809] _Brit. Mus. MSS. Stowe_, 152, fol. 135.

[810] Proc. Council of State, 9th June 1654. Vice-Admiral Lawson, in
transmitting to the Admiralty the request from the Governor of Calais,
said it had been the practice for the French and Spanish men-of-war to
suffer the fishermen of each nation to fish freely, although the war
between these Powers had lasted so long. _State Papers, Dom._, xcviii.
13.

[811] Bills to repeal it were introduced into the Commons in 1656,
1657, and 1658. _Commons’ Journals_, vii. 451, &c.

[812] _An Act for the Encouraging and Increasing of Shipping and
Navigation_, 12 Car. II., c. 18, cl. v. 1660.

[813] _An Act for the Encouragement of Trade_, 15 Car. II., c. 7, ss.
xiii., xiv. 1663.

[814] _An Act against importing Cattle from Ireland and other parts
beyond the Seas, and Fish taken by Foreigners_, 18 & 19 Car. II., c.
2, s. ii. Any ling, herring, cod, pilchard, fresh or salted, dried or
bloated, or any salmon, eels, or conger, taken by aliens and brought
into the realm, were liable to be seized by any person for his own
benefit and the benefit of the poor of the parish. The prohibition to
import stockfish and live eels was withdrawn by 32 Car. II., c. 2, 1680.

[815] “To the High and Mighty Monarch Charles ye Second, &c., the
humble petition of Simon Smith, late agent for the Royall Fishing,” MS.
prefixed in a copy of _The Herring-Bvsse Trade_, and _A True Narration
of the Royall Fishings of Great Brittaine and Ireland_, bound together
in vellum, elaborately ornamented in gold, and bearing the royal arms
and the letters C. R. on both sides.

[816] Sir Edward Nicholas to the Lord Mayor, 23rd July 1660.
_Remembrancia_, p. 143. There is an undated copy among the State Papers
(_Domestic_) erroneously calendared under September 1662 (vol. lix.
6: compare vol. xli. 19, under date September 1661). The original is
in the Guildhall. Simon Smith was employed in the preliminary work
connected with the Society, and in 1662 rendered an account of his
disbursements, amounting to £456, including £150 “for setting the poor
to work so as to breed up teachers for making nets, &c.” _State Papers,
Dom._, liv. 77.

[817] _Commons’ Journals_, viii. 179. _State Papers, Dom._, Charles
II., xxi. 27.

[818] _Commons’ Journals_, viii. 203, 215, 222, 228. _Lords’ Journals_,
xi. 228_b_. According to the Dutch ambassador, the Bill was not passed
without much debate and opposition (De Witt’s _Brieven_, iv. 68), no
doubt principally owing to the provisions concerning fish-days. An
amendment was carried limiting Wednesday to be a fish-day in all inns,
taverns, and victualling houses.

[819] _Lords’ Journals_, xi. 239. De Witt’s _Brieven_, iv. 66. The
preamble was of the usual kind: that the honour and greatness of the
king and the power and wealth of the kingdom depended upon shipping and
commerce, the fisheries being one of the greatest means thereto; and
it proceeded to say that the kingdom was specially suited for fishery
by reason of the number of harbours, and the sea from which foreign
nations took such great wealth, set their people on work, and made
their towns populous and prosperous. The foreigners were not content
with a temperate and moderate exercise of the liberty of fishing on
our coasts, which was permitted to them by favour of the king, but
fished with illegal instruments which served to destroy the brood of
fish in some places, causing the greatest poverty; and in other places
they came with whole fleets among the nets and boats of subjects, to
the great damage and hindrance of their lawful business. The king was
therefore most humbly beseeched to establish completely and vigorously
and maintain the rights of his crown over the seas, and to give such
orders and instructions to the admirals and commanders at sea as might
be necessary to this effect. The first clause prohibited trawling,
whether by subjects or foreigners, within eight miles of the coast of
Sussex and the coast to the westwards, and other clauses prohibited the
use of set-nets or other nets with small meshes on the coast “or within
half seas over,” or the use of seines by foreigners within ten miles of
any part of the coast to the hindering of subjects in their fishing.
Offenders were to be brought in as prize. These provisions were in part
aimed against the French.

[820] _Act for the Fishings and Erecting of Companies for promoting the
same_, 12th June 1661. _Acta Parl. Scot._, vii. 259.

[821] _Records Convent. Roy. Burghs_, iii. 523, 15th September 1660.
The commissioners, taking into consideration how advantageous it would
be to the increase of trade and the common weal of the whole burghs
and kingdom “that the fisching tread be erected within the samyn, and
wnderstanding by thair registeris and wther paperis in thair clarkis
handis that the said tread hes bein endevoured in former tymes but not
takin full effect,” instructed that the records be searched, and the
matter represented to Parliament.

[822] _Rec. Conv. Roy. Burghs_, iii. 626. _Acta Parl. Scot._, vii. 64,
103, 195, &c. _Ibid._, William and Mary, c. 103.

[823] _State Papers, Dom._, xli. 20.

[824] ΙΧΘΨΟΘΗΡΑ, _or the Royal Trade of Fishing, Discovering the
inestimable Profit the Hollanders have made thereof, with the vast
Emoluments and Advantages that will redound to his Sacred Majesty and
his three Kingdoms by the Improvement of it. Now seasonably published
by Command for the Benefit of the Nation._ London, 1662.

[825] _State Papers, Dom._, 1663, lxxiii. 56; lxxxvi. 104, 105, 106;
xci. 53; ciii. 130; cix. 2. “But Lord!” says Pepys, “to see how
superficially things are done in the business of the Lottery, which
will be the disgrace of the Fishery, and without profit.” _Diary_, iv.
369 (ed. 1893).

[826] _Commons’ Journals_, viii. 378, 383. 14 Car. II., c. 28.

[827] Lord Southampton to the Masters of the Trinity House, 31st
July 1662. The Masters to the Lord Treasurer, 23rd August. The Lord
Treasurer to the king, 2nd Sept. _State Papers, Dom._, lix. 7; _Entry
Book_, vii. 258. Pepys’ _Diary_, ii. 403, 404.

[828] _Commons’ Journals_, viii. 497, &c. _Lords’ Journals_, xi.
555, &c. 15 Car. II., c. 16. All herrings, white or red, were to be
“justly and truly packed, and of one time of taking, salting, saving,
or drying, and equally well packed in the midst and every part of the
barrel.” This was to be done by a sworn packer, and the barrel branded
after the Dutch method.

[829] John Collins, _Salt and Fishery_, 2. 1682.

[830] _State Papers, Dom._, ciii. 130.

[831] _Diary_, vol. iv. 177, 192, 233, 263, &c.

[832] The ambassadors were Van Beverwaert (Louis of Nassau), Simon van
Hoorn, the burgomaster of Amsterdam, Michael van Gogh, and Joachim
Ripperda. Pontalis, _John de Witt_, i. 263. _Brieven, geschreven
ende gewisselt tusschen de Heer Johan de Witt, Raedt-Pensionaris
en Groot-Segelbewaerder van Hollandt en West-Vrieslandt, ende de
Gevolmaghtigden van den Staedt der Vereenigde Nederlanden_, &c., iv. 1,
46.

[833] De Witt’s _Brieven_, iv. 109, 119. Clarendon’s _Memoirs_, iii.
434. There are numerous papers referring to these negotiations and
the subsequent treaty, including “the articles which the States’
Ambassadors Extraordinary are to procure from his Majesty of Great
Britain,” among _State Papers, Foreign Treaty Papers (Holland)_,
1651-1665, Bdl. 46.

[834] _Res. Holl._, 13th Sept. 1659, 261. _Ibid._, 1660, p. 749; 1661,
p. 181.

[835] _Hollantsche Mercurius_, 1661, pp. 9, 10. De Witt’s _Brieven_,
iv. 48, 61, 68, &c.

[836] De Witt to Van Beuningen, 27 December 1660/6 January 1661; the
same to Van Beverwaert and Van Hoorn, 4/14 Jan. 1661; Van Beverwaert
to De Witt, 3/13, 4/14 Jan. 1661. _Brieven_, i. 344; iv. 65, 66, 68.
Pontalis, _John De Witt_, i. 267.

[837] “Dutch Amb^{rs} Memoriall desiring the Act of Parliament
about fishing may not pass,” 17th Dec. 1660. Copy in _S. P., Dom._
Collection, Chas. II., vol. 339, p. 581. It is to the effect that
the extraordinary ambassadors were informed that a Bill had been
introduced into the Lower Chamber regarding the herring fishery, in
which foreigners were to be prohibited from fishing within eight or
ten “leagues” (“huiet ou dix lieuës”) from the coast, and praying the
king to prevent the said Bill from becoming an Act of Parliament.
It contains the usual arguments as to immemorial possession, treaty
rights, &c.

[838] _Brieven_, i. 344; iv. 66, 69, 81, 87, 89, 105, 109.

[839] Boreel to De Witt, (25 Nov.)/(5 Dec.) 1653. _Ibid._, i. 54.

[840] Letters from Van Beuningen to De Witt, 1/11 Feb. 1661 to (20
Feb.)/(2 March) 1662; from De Witt to Van Beuningen, 3/13 Oct. 1661 to
12/22 March 1662. _Brieven_, i. 432-514. _Secreete Resolutiën van de
Staaten van Holland en West-Vriesland_, ii. 246. Pontalis, _John de
Witt_, i. 276. Pontalis scarcely grasps the question of the fishery
when he says: “The free right of fishing still more directly concerned
the States-General; they could not prevail in England to allow them
the enjoyment of it, _so long as it had not been accorded to them by
France_, and they therefore made it a condition of their treaty with
Louis XIV.”

[841] Dumont, _Corps Diplomatique_, VI. ii. 412. Aitzema, _Saken
van Staet en Oorlogh_, x. 305. The article was as follows: “IV.
L’obligation reciproque de s’entr’aider et deffendre, s’entend aussi
pour estre Sa Majesté et lesdits Seigneurs Estats Generaux, leurs Pays
et Sujets, conservez et maintenus en tous leurs Droits, Possessions,
Immunitez et Libertez, tant de Navigation, que de Commerce et Pêche,
et autres quelconques par Mer et par Terre, qui se trouveront leur
appartenir par le Droit commun, ou estre acquis par des Traitez faits
ou à faire, en la maniere susdite, envers et contre tous Roys, Princes,
Republiques, ou autres Estats Souverains,” &c.

[842] “Herr Downingh de voorsz. antwoorde begonde te justificeren,
door de gepretendeerde Souverainiteyt van de Engelschen op de Zee,
... ende hebbe ick rondt uyt verklaert, dat eer wy die imaginaire
Souverainiteyt souden erkennen, ofte by maniere van concessie van de
Engelschen ontfangen, die vryheydt tot het bevaeren ende bevisschen van
de Zee, die ons van de nature, ende nae ’t Volckeren-reght competeerde,
wy alle den laetsten druppel bloedt daer by souden laeten.” De Witt to
Van Beverwaert and Van Hoorn, 14/24 June 1661 (_Brieven_, iv. 144); the
same to Van Beuningen, 4/14 Dec. 1661 (_ibid._, i. 471).

[843] Dumont, _op. cit._, VI. ii. 424. “X. Item, quod naves et navigia
dictarum Fœderatarum Provinciarum, tam bellica et ad hostium vim
propulsandam instructa, quam alia, quæ alicui e navibus bellicis dicti
Domini Regis Magnæ Britanniæ in maribus Britannicis obviam dederint,
vexillum suum e mali vertice detrahent, et supremum velum demittent, eo
modo quo ullis retro temporibus, unquam observatam fuit.”

[844] _State Papers, Dom._, lv. 14.

[845] _State Papers, Dom._, xliv. 64. Pepys’ _Diary_, ii. 135, 151.
According to Rugge (_Brit. Mus. Add. MSS._, 10, 116), quoted by Lord
Braybrooke, Holmes insisted upon the Swede’s lowering his flag, and
had even fired a shot to enforce the observance; but the ambassador
sent a message to the English frigate to assure the captain, on the
word of honour of an ambassador, that the king by a verbal order had
given him leave and a dispensation, and upon this false representation
he was allowed to proceed. The Swedes, it may be added, were always
disinclined to strike to English ships.

[846] Pepys’ _Diary_, ii. 145, 146, 148, &c.

[847] Pontalis, _op. cit._, i. 313. It would appear that on a previous
occasion Lawson had returned the salute with the flag, for in the
controversy with France on the striking of the flag a few years later,
the Dutch stated, as an instance of the custom with England, that
Lawson had shown this courtesy to De Ruyter off Tangiers. De Witt’s
_Brieven_, ii. 474.

[848] _Commons’ Journals_, viii. 548, 553; _Lords’ Journals_, xi. 599,
614; _Parlt. Hist._, iv. 291, 308; Clarendon’s _Memoirs_, ii. 235-237,
288; Hume, _Hist. of England_, lxiv.; Pepys’ _Diary_, iv. 31, 42, &c.;
Pontalis, _John de Witt_, i. 309.

[849] _The Dutch Drawn to the Life_, 1664. “Never was anything so
unanimously applauded by men of all persuasions and interest as a Dutch
Warre, which is the universal Wish of the people.”

[850] 16 & 17 Car. II.

[851] The king to the Duke of York, 22nd March 1665. _State Papers,
Dom._, cxv. 76.

[852] The author of _The Dutch Drawn to the Life_ expatiated on
the inestimable benefit the Dutch derived from the British seas
by encroaching on our fisheries, and asserted that the only way
to keep them under was “by commanding the narrow sea, their coast
and ours,”--the narrow sea, according to this writer’s view, or at
least the “right and dominion of England,” extending as far as the
Mediterranean (p. 75).

[853] See Mahan, _The Influence of Sea Power upon History_; Colomb,
_Naval Warfare_; Pontalis, _op. cit._; Clarendon’s _Memoirs_, ii. 111.

[854] _Groot Placaet-Boeck, inhoudende de Placaten ende Ordonnantien
van de H. M. Heeren Staten Generael der Vereenighde Nederlanden_, iii.
291-293. _Resol. Holl._, 1665, 24, 59, 78, 210, 383. _State Papers,
Dom._, cxiv. 104. _Ibid._, _Warrant Book_, 18, p. 213; 23, pp. 283,
475. _Ibid._, clxxviii. 172.

[855] _S. P., Dom._ Collection, Chas. II., vol. 339, p. 591. It is a
copy in English. The petition was from the “Burgomasters, Eschevins,
Counsellors, and the rest of the body of Citizens.”

[856] “Warrant to ye Lord Chancellor for affixing ye great seale to an
instrument containing a grant of fishinge in these seas for a certain
number of boates belonging to ye City of Bruges, yearely,” July 17,
1666. _State Papers, Warrant Book_, 23, p. 27. “Patent in favour of the
Citie of Bruges in fflanders for a libertie of fishing in the British
Seas with 50 saill of ships,” 29th August 1666. _Advoc. MSS._, 25.
3. 4. The draft or copy of the Royal Letter which followed upon the
Warrant is given in Appendix N.

[857] See p. 617.

[858] _Resol. Holl._, 11/21 Jan. 1665, p. 54. _Hollantsche Mercurius_,
15th Oct. 1665, p. 143. _State Papers, Dom._, 4th Nov. 1665, cxxxvi. 35.

[859] _Groot Placaet-Boeck_, iii. 295, 296.

[860] _State Papers, Dom._, clxvi. 8, 46, 77, 100; clxvii. 148; clxxv.
146; clxxxi. 113.

[861] _Ibid._, clxxi. 30; clxxii. 7, 41. At the Yarmouth fishing this
year (1666) “the sea was fuller of herrings than was ever known”; no
sooner were the nets in the water than they were full of fish, and many
herrings had to be thrown overboard, so that it was locally rhymed,
“twelve herrings a penny fills many a hungry belly.” The exceptional
abundance was attributed by the fishermen to the war having practically
put a stop to the Dutch fishing off our coast, so that the shoals
came to the inshore grounds in a body and not broken up. The herring
fishing was also unusually successful during the third Dutch war. In
1666, however, the herring fishing in Ireland was likewise uncommonly
productive. _Ibid._, clxxiv. 52, 100, 129, 156; clxxv. 49.

[862] _Resol. Holl._, 21 June/1 July 1667, p. 210. _State Papers,
Dom._, ccxvi. 143; ccxvii. 77.

[863] De Witt to Van Beuningen, 12/22 July 1666 to 18/28 July 1667;
Van Beuningen to De Witt, (21 June)/(1 July) 1666 to 12/22 July 1667.
“Raisons par lesquelles il paroît, que le contre-salut du Pavillon,
aux rencontres des Flotes de Sa Majesté Très-Chrétienne et des États
Généraux, est d’une justice toute évident.” De Witt’s _Brieven_, ii.
473, &c. Pontalis, _op. cit._, i. 353.

[864] _Articles touching Navigation and Commerce, concluded at Breda_,
21/31 July 1667.

[865] “Dat de scheepen van oorlois (_sic_) van den Coninck van Groot
Brittannien door die van desen staet met het strijcken van de vlagge
gesalveert werdende, van haere sijde vervolgens met het strijcken van
haere vlagge contra salueren sullen.” Extract from _Secret Resolution,
States-General_, 11th May 1667, Instructions to Ambassadors. _Treaty
Papers (Breda)_, 1667, Bdl. 73.

[866] Art. xix. See p. 455. Van Beuningen to De Witt, 5/15 April 1667.
De Witt to Van Beuningen, 18/28 April, 20/30 June, (27 June)/(1 July)
1667. _Brieven_, ii. 483, 487, 528, 533.

[867] _Treaty of Breda_, Art. vii. It may have been in connection with
the interpretation of this clause that the High Court of Admiralty
asked the Trinity House their opinion as to the end of the English
Channel westwards, and got the following answer: “We shall not
presume,” said the Masters, on 2nd January 1668, “to determine matters
that have for some ages past been controverted, and for anything that
we at present know have not had a full resolution or any precedent
for deciding questions relating thereunto;” but the opinion of “the
past and present age,” with which they concurred, was that when
any commander brought Scilly N.N.W. he had entered “the Channel of
England.” _Brit. Mus. Add. MSS._, 30,221.

[868] _Treaty of Peace and Alliance between Charles I. and Louis XIV.,
concluded at Breda_, 21/31 July 1667. Article xvii.

[869] _Treaty of Peace and Alliance between Charles II. and Frederick
III., concluded at Breda_, 21/31 July 1667. Art. ii.

[870] In the negotiation of subsequent treaties, controversy was
usually occasioned about the wording of these articles relating to
the date of cessation of hostilities on the sea, the United Provinces
or France pointing to the treaty of Breda as a precedent, while the
English took their stand on Cromwell’s treaty of 1654. In the treaty
of Ryswick in 1697, between the United Provinces and France, the term
“British Channel” was employed in conjunction with the Baltic and North
Sea (Art. ii.); and in the treaty between William III. and Louis,
signed at Ryswick on the same day, the words were “in the British and
North Seas, as far as the Cape St Vincent” (Art. x.) In the negotiation
with France in 1712 for a suspension of hostilities, the French
insisted on the words, “the seas which surround the British Isles,”
citing the treaty of Breda, while the British were equally obstinate
to have the term _in maribus Britannicis_ inserted, as in the treaty
of 1654, arguing that the “error” of Breda had been rectified in the
later treaty of Ryswick; the result being that in one article “the
Channel, the British Sea, and the North Sea” were specified, and in
another the phrase was “in the Channel and North Sea.” Dumont, _Corps
Diplomatique_, VIII. i. 306. Burchett, _A Complete History of the Most
Remarkable Transactions at Sea, &c._, p. 38.

[871] See p. 474.

[872] This was the farthing known later as the “Lucas farthing,” from
the gibes of Lord Lucas in his attack on the king’s policy made in the
debate on the Subsidy Bill in the House of Lords in 1670. Speaking
of the scarcity of money in the kingdom, he said: “What supply is
preparing for it, my Lords? I hear of none, unless it be of copper
farthings; and this is the metal that is to indicate, according to the
inscription on it, ‘The Dominion of the Four Seas.’” _Parl. Hist._, iv.
473.

[873] “Omtrent het point van de Vlagge, saegen wy alhier seer gaerne
iets seeckers gedetermineert, ten minsten dat wy moghten weten waer
mede men buyten nieuwe feytelyckheydt ende Oorloge konde verblyven; dat
een Fregatje ofte een Kitsje een gantsche Oorloghs-Vloote soude doen
strycken, is notoirlyck intolerabel.” De Witt to Meerman, 12/22 June
1668. The same to the same, (29 Feb.)/(9 March), 3/13, 7/17 April, (24
April)/(4 May), (22 May)/(1 June) 1668. De Witt to Meerman and Boreel,
17/27 March, (29 May)/(8 June) 1668. Meerman to De Witt, (28 March)/(7
April), 6/16 June 1668. De Witt’s _Brieven_, iv. Sir William Temple to
Lord Arlington, 2/12 Feb., 6/16 March 1668; the same to the Lord-Keeper
Bridgeman, (25 Oct.)/(4 Nov.) 1668. _Works_, iii. 134, 199, 348.
_State Papers, Dom._, 1668, ccxxxv. 49, 62; _ibid._, 1665, cxxiii. 67.
Aitzema, _Saken van Staet en Oorlogh_, v. 390.

[874] The king to the Duke of York, 31st Oct. 1669. _State Papers,
Entry Book_, 31, fol. 37.

[875] Pepys’ _Diary_, 20th Dec. 1668, viii. 184.

[876] Pontalis, _op. cit._, ii. 24.

[877] The king to the Duke of York, 26th June 1669. _State Papers,
Entry Book_, 31, fol. 29. Instructions by the Duke of York to Sir
Thomas Allin, 6th July 1669. _Ibid._, cclxii. 120. A marginal
memorandum on the latter document says, “This rule was adjusted with
Colbert, the French Ambassador here, _but nothing passed in writing but
this_.”

[878] _State Papers, Dom._, 1669, cclxi. 82-87.

[879] _State Papers, Dom._, 1668, ccli. 191; 1670, cclxxiv. 157;
cclxxv. 43; cclxxvi. 206; cclxxxi. 15; 1671, ccxc. 5, &c. Temple’s
_Memoirs_, iii. 433. Justice, _Dominion and Laws of the Sea_, 298.

[880] Bynkershoek, _De Dominio Maris_, cap. ii. iv. As elsewhere
explained (p. 557), it was this custom which helped to prepare the way
for the acceptance of the principle that now determines the extent of
the territorial sea on an open coast--viz., the range of guns.

[881] Hume, _Hist, of England_, c. lxv. Temple’s _Memoirs and Letters_.
Pontalis, _John de Witt_. Macaulay, _Hist._, i. c. ii.

[882] _Parl. Hist._, iv. 456. Hume, _op. cit._

[883] De Witt’s _Brieven_, iv. 837. Pontalis, _op. cit._, ii. 122.

[884] Sir Leoline Jenkins to Sir Thomas Allin, Admiral of the Blue
Flag, 8th Oct. 1670. _Life of Sir Leoline Jenkins_, ii. 699.

[885] _Brit. Mus. Add. MSS._, 30,221, ff. 46_b_, 48_b_.

[886] _Brit. Mus. Add. MSS._, 30,221, fol. 47_b_. The affidavits of
three English sailors who witnessed the meeting of the _Merlin_ and
the two Dutch convoyers off Flamborough. The sailors swore “that they
exchanged guns but did not strike their flags, but went away with their
flags abroad.” This evidence was obtained to magnify the offence; the
position assigned, “off the Flamborough,” makes its value doubtful.

[887] “A Draft made by Sir Leoline Jenkins about the King’s Sovereignty
in the British Seas.” _Brit. Mus. Add. MSS._, 30,221, fol. 46_b_.
Undated, but probably referring to this case.

[888] Sir William Temple to Sir John Temple, 14th Sept. 1671. _Works_,
iii. 501. Pontalis, _John de Witt_, 126, 127. Hume, _Hist. of England_,
cap. lxv. _State Papers, Dom._, 1671, ccxcii. 45, 77, 78, 81, 215.
Evelyn’s _Diary_ (ed. 1850), ii. 69. _Brit. Mus. Add. MSS._, 30,221.

[889] Pontalis, _op. cit._, ii. 130, 134. Hume, _op. cit._, cap. xlv.
Sir William Temple to his brother, 23rd May 1672. _Works_, iii. 505.
Clarendon’s _Memoirs_, ii. 289. _England’s Appeal_, p. 22. _State
Papers, Entry Book_, 24, fol. 54. _Ibid._, _Dom._, 1671, ccxciv. 127;
1672, cccii. 55, 112, 233; ccciii. 206. _Entry Book_, 34, f. 147.
It was in connection with the offers of the Dutch on this occasion
or a little later in the year that Sir Leoline Jenkins made the
following pronouncement as to the king’s rights to the dominion of
the seas. He was asked by Secretary Coventry “what his Majesty, his
heirs and successors, Kings of England, may reasonably pretend to
be signified by these words, _en la pleine et entiere joüissance du
droit de pavillon_”? Jenkins replied (1) that the King of England for
the time being was Lord of these seas, where he had the right of his
flag acknowledged, and that these seas were, as much as that watery
element is capable of being so in its nature, no less a domain of the
Crown than the Honour of Greenwich or the Manor of Eltham; (2) that
the _droits souveraines_ of the king in his seas against strangers had
all the legal requisites of a prescription beyond the memory of man,
and did not consist in one individual point, as for instance in having
the flag struck to, or in having the liberty of fishing acknowledged
by yearly sums of money; but in all the several rights, honours, and
perquisites that a sovereignty is capable of producing, and have been
enjoyed by former kings of England, with this difference from all
_seigneuries_ that move from a _mesne_ Lord, or Lord Paramount, that
our kings hold this as they do their crown, from God alone, and by
their sword. _Life_, ii. 697.

[890] The account was brought to Court by Lieutenant Churchill,
afterwards the great Duke of Marlborough, who was serving under Lord
Ossory.

[891] Pontalis, _op. cit._, ii. 239. Hume, _loc. cit. State Papers,
Dom._, _Entry Book_, 24, f. 57; _ibid._, 34, f. 164; cccii. 130;
ccciii. 26, 72, 211-218; ccciv. 9, 11, 20, 21, 25, 36; cccvii. 169;
_Foreign Entry Book_, 21, ff. 1, 9.

[892] Hume, _loc. cit._ Pontalis, _loc. cit._ Temple’s _Works_, i. 175;
iii. 505. _Parl. Hist._, iv. 512. _Hollantsche Mercurius_, 1672, p. 50.
Dumont, _Corps Diplomatique_, VII. i. 163. _State Papers, Dom._, cccii.
210; ccciv. 21, 22; cccvi. 27; _Entry Book_, 31, f. 90. _Ibid._, 34, f.
157.

[893] Mahan, _op. cit._ Colomb, _op. cit._

[894] 9/19 March, 5/15 Sept. 1672. _Groot Placaet-Boeck_, iii. 292,
298. The embargo was renewed in the next year.

[895] _State Papers, Dom._, cccxv. 108, &c.; cccxvi. 43.

[896] Dumont, _Corps Diplomatique_, VII. i. 206. Hume, _op. cit._,
c. lxv. In _State Papers, Foreign, Treaty Papers_ (_Breda_), 1667,
Bdl. 73 (as at present arranged), are a number of papers belonging to
these negotiations and the later ones at Cologne in 1673, consisting
mostly of draft articles, with copious notes by the plenipotentiaries.
In one, marked “1st project as framed,” Art. xiv. refers to the flag
as follows, the words in brackets being inserted here from a second
copy: “That the ships and vessells of the United Provinces, as well
men-of-war as others, be they single ships or in Fleets how great
soever, meeting in any part within ye Brittish seas, with any one of ye
ships of war (yachts) or other vessells w’soever of ye said K. of Gr.
Brittain, or in his service and wearing his flagg, colours (or Jack)
shall strike their flaggs and lower their Topsailes untill they be
passed by, as a Ancient and undoubted Right belonging to the said K.,
and which hath been payd and performed to his R^{ll} progenitors in all
times.” The fishery article (xxiv.) was as follows, the words within
brackets being taken from another copy, to fill up a blank: “And the
said States acknowledging his said Maj^{ts} ancient and undoubted Right
in the Brittish Seas, as they do hereby own and acknowledge ye same,
Doe further promise and agree, that they and their successors will from
henceforth pay to his said Maj. his Heirs and successors, for euer,
at the Receipt of his Exchequer, a yearly sum̄ of ... (10^{mte}--as
likewise ye yearly summe of 2^{mt} sterling by ye yeare at ye Receipt
of his Ma^{tys} Treasury of his Kingdom of Scotland) ... sterling by
the year, in consideration of his Maj^{ts} license and permission to
them and their subj^{ts} to fish in the said seas and upon his Ma^{tys}
coasts.” Another article (xxv.) provided for the payment of £1,000,000
for the charges of the war, £400,000 in the following October, and the
remainder later.

[897] Hume, _loc. cit._ Temple’s _Memoirs_, i. 166. _State Papers,
Dom._, cccxi. 75, 82, 206; cccxiii. 233. _Commons’ Journals_, ix. 246.
Dumont, _op. cit._, VII. i. 206. _Hollantsche Mercurius_, 1672, p. 265.

[898] _Brief Animadversions on, Amendments of, and Additional
Explanatory Records to the Fourth Part of the Institutes of the Lawes
of England, concerning the Jurisdiction of Courts, compiled by the late
famous Lawyer, Sir Edward Coke, Knight, &c._, 1669.

[899] England’s _Improvement Reviv’d: Digested into Six Books_, 1670.

[900] Roger Coke, _A Discourse of Trade_, 1670.

[901] William de Britaine, _The Dutch Usurpation, or a Brief View of
the Behaviour of the States-General of the United Provinces towards the
King of England_, 1672.

[902] _State Papers, Dom._, cccviii. 143.

[903] _A Justification of the Present War against the United
Netherlands, wherein the Declaration of his Majesty is vindicated, and
the War proved to be Just, Honourable, and Necessary; the Dominion of
the Sea explained, and his Majesty’s Rights thereunto asserted; the
Obligations of the Dutch to England, and their continual Ingratitude:
Illustrated with Sculptures. In Answer to a Dutch Treatise entitled,
Considerations upon the Present State of the United Netherlands._ By an
English Man, 1672.

[904] 8th July 1872. _State Papers, Dom._, cccxii. 166.

[905] Benson to Williamson, 28th June, 9th July 1672. Stubbe to
Williamson, 8th July. _State Papers, Dom._, cccxii. 45, 166, 184. The
warrant was to Mr Thurloe and Mr Bish of Lincoln’s Inn. Stubbe made
considerable use of the book, citing it as “MSS. Commentary of the
Treaty and Articles betwixt the English and the Dutch in 1653.”

[906] _A Further Justification of the Present War against the
United Netherlands, illustrated with several Sculptures._ By Henry
Stubbe, a lover of the Honour and Welfare of Old England, &c., 1673.
Unfortunately for Stubbe, he tried his hand on another line, and was
arrested and imprisoned in the same year for denouncing, in his “Paris
Gazette,” the Duke of York’s marriage with Princess Mary of Modena.

[907] _Life of Sir Leoline Jenkins_, i. 3. For the use of the
plenipotentiaries a volume of transcripts of documents, mostly State
Papers, and chiefly in the handwriting of Williamson’s clerks, was
prepared, dealing with the claims to the sovereignty of the sea in its
various phases. It comprised 613 folio pages, and forms volume 339
of the Domestic series of Charles II. There is a long memorandum in
regard to the striking of the flag, consisting for the most part of
brief paragraphs reciting precedents (and many of them are omitted),
and arranged under the following heads: (1) Strikeing in Generall; (2)
Whole Fleets to Single Ships and a Greater Number to a Lesser; (3) Till
they be passed by to keepe downe their Flag in sight of ye English;
(4) Within the Brittish Seas, What the Brittish Seas are, &c., where
done, &c. What Places esteemed according to this Practice to be within
ye Brittish Seas; (5) This done as a Duty and Right and not only as a
Civillity. Some of the papers have notes on them, apparently penned by
the ambassadors at Cologne.

[908] In one of the papers in the volume provided for the use of the
ambassadors, containing a copy of the fishery article put forward by
Cromwell in 1653 and afterwards withdrawn, is the following, with
a sidenote referring to the “king’s instructions to the special
ambassadors”: “Lastly, that y^e subiects of y^e States generall shall
for y^e future abstayne from fisheing vpon y^e Countreys and shores of
any of his Ma^{tyes} Dominions w^{thout} leaue and Passeports first
obtayned. One thing more I must obserue to you relating to those six
propositions particularly that of y^e fishery. In his Ma^{tyes} former
Instructions to you vpon that Point you were bid to consent to y^e
leauing out that Article in case y^e Dutch should be obstinate vpon
it. But his Ma^{ty} by progress of tyme finding that his Subiects seem
fonder thereof, bids me now to direct you to insist vpon that, as vpon
y^e rest and to frame it as neare as you can according to y^e Words set
down in y^e Reply.” Then after Cromwell’s article is the following: “Ye
Art. of the Fishery as contained in y^e Project, 1673.” It is the same
as that given in the previous year (note, p. 491),--the part referring
to the contribution of £2000 for Scotland being interpolated,--except
that it concludes with this sentence, “In w^{ch} fisheing y^e said
States shall oblidge themselues that their Subiects shall not come
w^{th}in one league of y^e shoares of England and Scotland,” which is
the first mention of a three-mile limit that has been discovered. Sir
Arnold Braems suggested to Arlington, in August 1673, that the king
should insist in the treaty for an annual payment of £10,000 or £12,000
for their free fishing on his coasts, and that £3000 of this should
be devoted to the bringing over of Dutch families and fishing-busses
to England, a project which was then being tried by more or less
surreptitious methods. _State Papers, Dom._, vol. 336, No. 295.

[909] See p. 461.

[910] The ambassadors to the Earl of Arlington, 8/18 Aug., (26 Aug.)/(5
Sept.), 13/23 Sept., (23 Sept.)/(3 Oct.), 3/13 Oct. 1673. _Life of Sir
Leoline Jenkins_, i. 68, 86, 87, 109, 126, 133.

[911] Penn was in error in supposing that “Finisterre” in the
subsequent treaty was _finis terræ_, and meant the Land’s End in
England (Granville Penn, _Memorials of the Professional Life and Times
of Sir William Penn_, ii. 255). It was described as “Finisterre, in
Galicia,” by the Dutch ambassadors in 1668. See p. 469.

[912] The ambassadors to Arlington, (29 Aug.)/(8 Sept.), 2/12, 13/23
Sept., (23 Sept.)/(3 Oct.), 3/13 Oct. 1673. _Life of Sir Leoline
Jenkins_, i. 91, 95, 109, 117, 120, 125, 133.

[913] The same to the same, (24 Oct.)/(3 Nov.), 11/21, 14/24 Nov. 1673,
(23 Dec. 1673)/(2 Jan. 1674), 2/12 Jan., 3/13 Feb. 1674. _Ibid._, i.
151, 170, 171, 223, 235, 237, 279.

[914] The same to the same, 10/20 Oct. 1673 to 3/13 Feb. 1674. _Ibid._,
i. 139, &c. _State Papers, Foreign, Treaty Papers_ (_Breda_, sic),
Bdle. 73. There were prolonged discussions as to the extent of the
British seas both in regard to the article on the flag and that on the
cessation of hostilities on the sea, as shown by the very numerous
notes on the draft articles. The ambassadors were of opinion with
regard to the latter article that St George’s Channel and the sea
between England, Ireland, and Scotland were comprehended in the term
“the Channel,” a point which was left for the opinion of the king.

[915] _Commons’ Journals_, ix. 282. _Lords’ Journals_, xii. 588.

[916] P. 513.

[917] Hume, _loc. cit. Commons’ Journals_, ix. 299. Temple’s
_Memoirs_, i. 167-169. Temple to the Prince of Orange, Feb. 1674. The
same to the Duke of Florence, 11th Feb. 1674. _Works_, iv. 13, 16.

[918] “Prædicti Ordines Generales Unitarum Provinciarum debite, ex
parte sua agnoscentes jus supramemorati Serenissimi Domini Magnæ
Britanniæ Regis, ut vexillo suo in maribus infra nominandis honos
habeatur, declarabunt et declarant, concordabunt et concordant, quod
quæcunque naves et navigia ad præfatas Unitas Provincias spectantia,
sive naves bellicæ, sive aliæ, eæque vel singulæ vel in classibus
junctæ, in aliis maribus a Promontorio _Finis Terræ_ dicto usque ad
medium punctum terræ _van Staten_ dictæ in Norwegia, quibuslibet
navibus aut navigiis ad Serenissimum Dominum Magnæ Britanniæ Regem
spectantibus, obviam dederint, sive illæ naves singulæ sint, vel in
numero majori, si majestatis Britannicæ sive aplustrum, sive vexillum
_Jack_ appelatum gerant, prædictæ Unitarum Provinciarum naves aut
navigia vexillum suum e mali vertice detrahent et supremum velum
demittent, eodem modo parique honoris testimonio, quo ullo unquam
tempore aut in alio loco antehac usitatum fuit, versus ullas Majestatis
suæ Britannicæ aut antecessorum suorum naves ab ullis Ordinum
Generalium suorumque antecessorum navibus.” Art. iv. Dumont, _op.
cit._, VII. i. 253. The land _van Staten_ (which is a Dutch expression)
is the peninsula of Stadtland in N. Berghus, in 62° 5´ N. latitude. It
is probable that the English Ministers took the advice of the Trinity
House (p. 478) to consult the authors who had written on the northern
boundary of the British seas, and that the substitution of _van Staten_
for the North Cape, first made at the congress of Cologne (see p. 506),
was based upon Selden’s plate showing the British seas (_Mare Clausum_,
lib. ii., cap. i., p. 122), and which is reproduced in the frontispiece
of this book. Selden’s plate was much less liberal to the British seas
than was his text. The Dutch appellation may have been extracted from a
Dutch map.

[919] _Memoirs_, i. 170. Temple added: “Nothing, I confess, had ever
given me a greater pleasure, in the greatest public affairs I had run
through, than this success; as having been a point I ever had at heart,
and in my endeavours to gain, upon my first negotiations in Holland,
but found Monsieur De Witt ever inflexible, though he agreed with me
it would be a rock upon which our firmest alliances would be in danger
to strike, and to split, whenever other circumstances fell in to make
either of the parties content to alter the measures we had entered into
upon the triple alliance.”

[920] _Brit. Mus. Add. MSS._, 30,221, fol. 59. Some writers on
international law erroneously describe the boundaries mentioned in the
article as the boundaries of the British seas.

[921] Temple to the Duke of Ormonde, Oct. 1673. The same to the Duke of
Florence, 11th Feb. 1674. _Works_, ii. 91; iv. 19.

[922] _Life of Sir Leoline Jenkins_, ii. 697.

[923] _State Papers, Dom._, vol. ccclxxvi. 46.

[924] _State Papers, Dom._, ccclxx. 238, 245, 252.

[925] _State Papers, Dom._, ccclxxvi. 92; ccclxxix. 9. The incident
occurred on 11th November 1675, between 46 and 47 degrees latitude.
The Spanish ship “required him to strike for the King of Spaine,
and the said Cap^n Harris haueing seuerell times refused to doe it,
and required the said Ostender to strike for his Ma^{ty} of Greate
Brittain; yet neuerthelesse he, Cap^t Jos. Harris, in the time of their
convention (_sic_) about this matter, did order the Topsaile of the
said Ketch to be Lowered, w^{ch} was accordingly done, and is proued
by the depositions vpon Oath taken in Court,” &c. The court found that
by lowering his top-sails he struck to a foreigner in his Majesty’s
seas, “a great derogac͠on from his Ma^{ties} Honour, contrary to the
32th Article of the General Instrucc͠ons and punishable by the Eleventh
Article of War.”

[926] _H. O. Warrant Book_, i. 126, 144.

[927] 8th Oct. 1674. Tanner, _Catalogue of Naval MSS. in Pepysian
Library_, No. 1838.

[928] _Life_, ii. 716. Various other indictments are referred to in
_Brit. Mus. Add. MSS._, 30,221, fol. 62_b_.

[929] _Navigation and Commerce; their Original and Progress_, 1674.

[930] Evelyn’s _Diary and Correspondence_, ii. 90, 91 (ed. 1850).

[931] Evelyn to Pepys, 19th Sept. 1682. “To speake plaine truth,” he
says, “when I writ that Treatise, rather as a _philological_ exercise,
and to gratifie the present circumstances, I could not clearly satisfie
myself in sundry of those particulars, nor find realy that euer the
Dutch did pay toll or tooke license to fish in Scotland after the
contest (with Spain) from any solid proofs.... I think they neuer payd
a peny for it ... nor did I find that any rent (wheroff in my 108 page
I calculate the arrears) for permission to fish, was euer fixed by both
parties.”

[932] _De Jure Maritimo et Navali, or a Treatise of Affaires Maritime
and of Commerce_, London, 1676. Editions were published in 1682, 1690,
1744, 1769, &c. It is still quoted by writers on international law.
Molloy was the author of a work attacking the Dutch during the second
Dutch war--_Holland’s Ingratitude, or a Serious Expostulation with the
Dutch, &c._, 1666.

[933] _A View of the Admiral Jurisdiction, &c._, London, 1661; 2nd
edition, 1685.

[934] _The Jurisdiction of the Admiralty of England Asserted_, London,
1686.

[935] _England’s Great Interest_, 38. _State Papers, Dom._, cccxi. 86;
cccxv. 196 ; cccxxxvi. 295.

[936] _State Papers, Dom._, ccclxix. 263. It is endorsed by Williamson,
“Herring Fishery: Given me by ye King to keepe. Sunday, 24 Ap. 75,”
and is unsigned. Each buss was to be of 70 tons, with a master, mate,
pilot, and 12 seamen, to be all paid partly by results. The whole
charge for the first year was put at £58,537, and the earnings at
£90,000, on the assumption that each buss would catch 100 lasts of
herrings, 15,000 cod, and 10,000 ling.

[937] _State Papers, Dom._, _ibid._, 264, 265.

[938] _Memoires relating to the State of the Royal Navy of England for
Ten Years, determin’d December 1688._ London, 1690.

[939] Dumont, _Corps Diplomatique_, VII. ii. 236. Wagenaar,
_Vaderlandsche Historie_, c. lxi.

[940] Valin, _Nouveau Commentaire sur l’Ordonnance de la Marine, &c._,
ii. 689.

[941] Dumont, _op. cit._, VII. ii. 230.

[942] “Upon your meeting with any ship or ships within his Majestie’s
Seas, (which for your better guidance herein, you are to take notice
that they extend to Cape Finisterre) belonging to any foreign Prince or
State, you are to expect them in their passage by you, to strike their
topsail and take in their flag, in acknowledgment of his Majestie’s
Sovereignty in these Seas; and if any shall refuse, or offer to resist,
you are to use your utmost endeavour to compel them therto, and in no
wise to suffer any dishonour to be done to his Majesty; and in case any
of his Majestie’s subjects shall be so far forgetful of their duty,
as to omit striking their topsail as they pass by you, when it may be
done without the loss of the voyage, you are to bring them to the Flag
to answer their contempt, or otherwise to return the name of the ship
and of the master to the Secretary of the Admiralty, or the Lord High
Admiral of England, or the Commissioners for executing the office of
Lord High Admiral for the time being, as also the place whence and the
port to which he shall be bound. And you are to make the master of
such ship pay the charge of what shot you shall make at her. And you
are further to take notice that in his Majestie’s Seas his Majestie’s
ships are in no wise to strike to any; and that in other parts no ship
of his Majestie’s is to strike her flag or topsail to any foreigner,
unless such foreign ship shall have first struck, or at the same time
strike, her flag or topsail to his Majestie’s ship, except in the
harbour of some foreign Prince, or in the road within shot of cannon of
some fort or castle, where you are to send on shore to inform yourself
what return they will make to your salute. And in case you have good
assurance you shall be answered gun for gun, you are then to salute
the port as is usual; but if you shall not be well assured that you
shall have an equal number of guns returned you, you are in no wise to
salute that place. And in case the ship in which you now command shall
at the same time carry his Majestie’s flag, you are, before you salute
the place, carefully to inform yourself how flags of the same quality
with that you carry, of other Princes, have been saluted there, and you
are to insist on it being saluted with as great respect and advantage
as any flag of the same quality with yours, of any other Prince, hath
been saluted in that place, from which you are in no wise to depart.”
Art. xxxv. 1691. _State Papers, Dom._, _H. O. Admiralty_, 1, No. 14.
Justice, _A General Treatise of the Dominion and Laws of the Sea_, 595.

[943] _Regulations and Instructions relating to His Majesty’s Service
at Sea. Established by His Majesty in Council._ 2nd edition, 1734, Art.
xi. _Ibid._, 10th edition, 1766. _Ibid._, 13th edition, 1790.

[944] _State Papers, Dom., H. O. Admiralty_, 5, 1108, October 19.

[945] _State Papers, Dom., Petition Entry Book_, 3, 90.

[946] Justice, _op. cit._, 193.

[947] _State Papers, Dom., Naval_, 1769, 45. Copies of the various
papers sent from the Admiralty to the Under-Secretary of State.
Professor Laughton states that Lieutenant Smith was reinstated to a
higher rank next day. _Fortnightly Review_, Aug. 1866, p. 721.

[948] _A Complete History of the Most Remarkable Transactions at Sea,
&c._ By Josiah Burchett, Secretary to the Admiralty, 1720. Burchett’s
account and definitions were adopted by later writers, as Lediard, _The
Naval History of England_, 1735; Colliber, _Columna Rostrata; or a
History of the English Sea Affairs_, 1727; Entick, _A New Naval History
or Compleat View of the British Marine, &c._, 1757; Campbell, _Lives
of the Admirals and other Eminent British Seamen_, 1742-44. Entick
claimed for the crown the right to all the fisheries in the British
seas, the right to impose tribute on all merchant ships navigating
them, the execution of justice for all crimes committed within them,
the permitting or denial of free passage through them to foreign ships
of war, and the striking of the flag.

[949] In both it was as follows: “Art. ii. À l’égard des honneurs
du pavillon, et du salut en mer, par les vaisseaux de la République
vis-à-vis de ceux de Sa Maj. Britannique, il en sera usé respectivement
de la même manière qui a été pratiquée avant le commencement de la
guerre qui vient de finir.” Martens, _Recueil de Traités_, iii. 514,
561.

[950] Mahan, _The Influence of Sea Power upon History_, 209, 225, 510,
&c.

[951] _The Life of Richard, Earl Howe_, 200 (1838).

[952] In the _Regulations and Instructions_ issued in 1808, the article
is as follows: “XXIV. Within his Majesty’s seas his ships are not on
any account to strike their topsails, nor take in their flags; nor in
any way to salute any foreign ship whatever; nor are they, in any other
seas, to strike their topsails, or take in their flags, to any foreign
ships, unless such foreign ships shall have first struck, or shall at
the same time strike, their flags and topsails to his Majesty’s ships.”

[953] _Observations concerning the Dominion and Sovereignty of the
Seas: being an Abstract of the Marine Affairs of England._ In his
preface the author says the work was presented in manuscript to Charles
II., “and well accepted by him.” In a letter from W. Bridgeman to Sir
J. Williamson, dated from Whitehall, 13th May 1673, there was enclosed
“a paper drawne up as I remember about the beginning of this Warre by
S^r Philip Meadowes, which I find amongst other papers, and showing
it to My Lord he directed mee to send it to you.” The enclosure is
endorsed, “Soveraignity and Fishery by S^r Phil. Meadowes, 1674,” the
proper date being probably 1672. It is evidently a draft of the later
work, essentially the same in substance and tone. (_State Papers,
Dom._, Chas. II., vol. 335, Part II., No. 168.) Later he sent a copy to
Pepys, dated January 2, 1686. _Brit. Mus. Add. MSS._, 30,221, ff. 13-43.

[954] _Op. cit._, pp. 44-46. The draft article was as follows: “To
maintain a due distinction betwixt natives and foreigners fishing
upon the coasts of their respective sovereigns; and to prevent the
manifold inconveniences which occasionally arise by a promiscuous
and unlimited fishing; ’Tis mutually covenanted, concluded, and
agreed, That the people and subjects of the United Netherlands shall
henceforth abstain from fishing within any the rivers, fryths, havens,
or bays of Great Britain and Ireland, or within a distance of ...
leagues from any point of land thereof, or of any the isles thereto
belonging; under a penalty and forfeiture of all the fish that shall
be found aboard any vessel doing to the contrary, and of all the nets,
utensils and other instruments of fishing. The like distances, and
under the same penalties, to be kept and preserved by the subjects
of His Majesty of Great Britain and Ireland, from any of the coasts
belonging to the United Netherlands. But beyond these precincts and
limits, that the people and subjects on both sides be at freedom to
use and exercise fishing, where they please, without asking or taking
licenses or safe-conducts for so doing, and without the let, hindrance,
or molestation one of another. Saving always the ancient rights of the
crown of England, and that nothing herein contained be interpreted
or extended to any diminution or impeachment thereof, But that they
remain in the same force and vertue, as before this agreement.” Meadows
does not suggest the number of leagues within which fishing should be
reserved, but he quotes with approval the proposal of James, in 1618,
to fix a limit of fourteen miles--that is, one “land-kenning” of the
Scotch.

[955] “Reflections upon a Passage in S^r William Temple’s Memoirs,
printed 1692, relating to the Right of Dominion on the British Seas.”
_Brit. Mus. Add. MSS._, 30,221, fol. 55. It is dated 1693.

[956] _A Treaty of Peace, Good Correspondence and Neutrality in
America, &c._, 16th November 1686, Art. v. By Article xvi. French
subjects were to be at liberty to fish for turtles in the islands of
Cayman.

[957] Rayneval, _Institutions du Droit de la Nature et des Gens_, i. c.
x.

[958] _Resol. van de Staten-Generael_, April, May, June 1616. _Resol.
d. Stat. van Holl._, March, April 1616. _Ibid._, 15th Dec. 1623; March,
May 1635; 19th May 1637; Dec. 1639, _Res. St.-Gen._, 18th June 1639.
_Res. Holl._, 13th April 1691. Lindemann, _Die Arktische Fischerei der
Deutschen Seestädte_, p. 8. _Groot Placaet-Boeck_, iv. 235, 237. Auber,
_Annuaire de l’Institut de Droit International_, xi. 144.

[959] _Resol. St.-Gen._, Nov., Dec. 1698, 1740, 1741. _Resol. Holl._,
July 1699; Jan., March, April, Sept., Dec. 1739; Jan., March, May 1740,
1741; Oct. 1757; Jan. 1758; Aug. 1761; April 1762. Martens, _Causes
Célèbres_, i. 359-398; ii. 122-131. Beaujon, _Hist. Dutch Fisheries_,
479. A full account of the proceedings in 1738-40 is said by Beaujon
to be contained in the memorials of Mauricius, who was the Dutch
ambassador at Hamburg at the time, and was closely connected with the
negotiations; they are contained in the Koninklijke Bibliotheek at The
Hague.

[960] Art. xii. “D’exercer la pêche dans lesd. mers, bayes, et autres
endroits à trente lieues près des costes de la nouvelle Ecosse au
sudest, en commençant depuis l’isle appellée vulgairement de _Sable_,”
&c. Dumont, _Corps Diplomatique_, VIII. i. 341.

[961] Treaty of Paris, 10th February 1763, Art. v. Hertslet,
_Collection_, i. 274. Martens, _Recueil_, i. 109.

[962] Treaty of Versailles, 3rd Sept. 1783, Arts. v., vi., and
Declaration attached. Hertslet, i. 246. Martens, iii. 522.

[963] _Parl. Hist._, xv. 1063, 1261-1263. In the negotiations for peace
in 1761, Pitt, who was then in office, most wisely insisted on an
exclusive fishery.

[964] _Treaty of Peace between Great Britain and the United States
of America, signed at Paris_, 3rd Sept. 1783, Art. viii. Martens,
_Recueil_, iii. 556.

[965] Gander, _A Vindication of a National Fishery, wherein is asserted
that the Glory, Wealth, Strength, Safety, and Happiness of this Kingdom
... doth depend (under God) upon a National Fishery ... to which is
added the Sovereignty of the British Seas_, 1699. Puckle, _England’s
Way to Wealth and Honour_, 1699. _A Discourse concerning the Fishery_,
1695. _The British Fishery recommended to Parliament_, 1734. _The
Wealth of Great Britain in the Ocean Exemplified_, 1749, &c., &c.

[966] 23 Geo. II., c. 24, 1750. _An Act for the Encouragement of the
British White Herring Fishery._

[967] Gifford, _Historical Description of the Zetland Isles_;
Edmondston, _A View of the Ancient and Present State of the Shetland
Isles_; _Europische Mercurius_, 1703, ii. 107.

[968] Maine, _International Law_, 77.

[969] _Tyberiadis, D. Bartoli de Saxoferrato, Jurisconsultorum omnium
facile principis, Tractatus de Fluminibus, &c._, Bononiæ, 1576, p.
55. “Jurisdictionem habens in territorio mari cohærenti habet etiam
jurisdictionem in mari usque ad centum milliaria, ... sicut præses
provinciæ debet purgare provinciam malis hominibus per terram, ita
etiam per aquam.... Constat autem quòd centum miliaria per mare minus
est duabus dietis.”

[970] _Commentaria ad Institutiones, Pandectas et Codicem_, iii. 79.
Venice, 1577.

[971] Bodinus, _De Republica_, lib. i. c. x. § 170, Frankfort, 1591;
Pacius, _De Dominio Maris Hadriatici Disceptatio_, c. i., Leyden, 1619;
Welwood, _De Dominio Maris_, c. i. p. 5, 1615; Dee, _General and Rare
Memorials_, p. 21, 1577; Gryphiander, _De Insulis Tractatus_, c. xiv.,
1623; Gentilis, _Advocatio Hispanica_, c. viii. de marina territorio
tuendo, 1613; Gothofredus, _De Imperio Maris_, 1637.

[972] “Mare dicitur esse de territorio illius civitatis cui magis
appropinquat et ideo Veneti quia domini sunt maris Adriatici possunt
imponere navigantibus vectigalia, et adversus contra facientus pœnam
adjicere.”

[973] _Loc. cit._

[974] “Et dicunt doctores, quod domini Veneti, et Genuenses, et alii
habentes portum, dicuntur habere jurisdictionem, et imperium in toto
mari sibi propinquo per centum miliaria, vel etiam ultra, si non
propinquant alteri provinciæ.” _Loc. cit._

[975] Azuni, _Systema Universale dei Principii del Diritto Maritimo
dell’ Europa_, i. 58, 1798. Jurisdiction was conferred within certain
boundaries on land, “et intus mare centum milliaria.”

[976] _Parl. Papers, U.S., No. 1._, 1893. _Behring Sea Arbitration,
British Case_, 37, 133.

[977] In the definitions of the boundaries of lands and fisheries in
Anglo-Saxon charters such descriptions occur as “up midne streame,”
“ūt on Temese oð midne streām,” “up midne streame by halfen streame,”
&c. Birch, _Cartulariurm Saxonicum_.

[978] “Quicquid etiam ex hac parte medietatis maris inventum et dilatum
ad Sandwic fuerit sive sit vestimentum sive rete arma ferrum aurum
argentum, medietas monachorum erit, alia pars remanebit inventoribus.”
Kemble, _Codex Diplomaticus Ævi Saxonici_, iv. 21.

[979] _Le Mirroir des Justices_, c. iii., “la sovereine seignurie de
tote la terre jeqes el miluieu fil de la meer environ la terre.”

[980] See p. 102.

[981] _Brit. Mus. Hargraves MSS._, No. 98; printed by Moore, _Hist. of
the Foreshore_, 362.

[982] _A Treatise relating to the Maritime Law of England_, 10.

[983] See p. 35.

[984] _Brit. Mus. Add. MSS._, 30,221, fol. 50. The opinion of the
Trinity House was given in November 1686. In 1677 the Privy Council,
on a petition of the fishermen of Hastings complaining of the French
fishing on the coast, sent to the Cinque Ports for an account “of the
old limitations used to be put upon the French and others in their
proceedings in that fishing,” and also ordered two ships to be sent “to
forbid the French to fish on the coast as having no license thereto,
and to drive them away from thence” (_ibid._) On the other hand,
Jeakes, in his _Charters of the Cinque Ports_, written in 1678, states
with reference to the powers “by land and sea” conferred on the Ports
by various charters, that _per mare_ did not mean _altum mare_, the
high sea, where the Admiral had jurisdiction, but only the “havens,
creeks, and arms of the sea, so far as can be judged in a county, where
the land is on both sides,” p. 69.

[985] See p. 547.

[986] 31st Oct. 1563, tit. i. par. 27, “Ne qua in mari vis fierit vel
suis subditis, vel sociis, vel peregrinis, sive belli, sive alterius
rei causa intra conspectum a terra vel portu.” Bynkershoek, _Quæstiones
Juris Publici_, lib. i. cap. viii. _De Domini Maris_, c. ii.

[987] _Mare Liberum_, c. v. See p. 347.

[988] Foreigners were not to fish “nerer the land nor nor yai mycht see
the shoir out of yair main toppis.”

[989] Stair, _The Institutions of the Law of Scotland_, bk. ii. tit.
i. 5 (1681). “The vast ocean is common to all mankind as to navigation
and fishing, which are the only uses therof, because it is not capable
of bounds; but where the sea is enclosed, in bays, creeks, or otherwise
is capable of any bounds or meiths, as within the points of such lands,
or within the view of such shores, there it may become proper, but with
the reservation of passage for commerce, as in the land. So fishing
without these bounds is common to all, and within them also, except as
to certain kinds of fish, such as herrings, &c.” The qualification and
the “etcetera” are peculiar.

[990] See p. 528.

[991] Captain George St Lo, _England’s Safety, or a Bridle to the
French King_, 1693. “During the time I was convoy to our fishing there,
as aforesaid (1685-6), my business was to see that no foreigner should
fish in sight of the shore, because the fish draw thither to spawn; the
best draughts are there.”

[992] Azuni, _Sistema universale dei Principj del Diritto marittimo_,
i. 78.

[993] _Dominio del Mar’ Adriatico e sue Raggione per il Jus Belli della
Serenissima Repvblica di Venetia_, Venezia, 1686.

[994] Hale, _A Treatise relating to the Maritime Law of England_, c.
iv. Coke’s _Fourth Institute_, c. xxii. p. 140 (ed. 1797). Blackstone,
_Commentaries_, i. 110. Hale, _Pleas of the Crown_, ii. 54. An early
authority is in Fitzherbert’s _La Grande Abridgment_ (1565), Corone
et Plees de Corone, fol. 259, placit 399, “Nota p. Stanton justic q̃
ceo nest pas sa͠nce demere ou hoe puit veier ceo q̃’est fait del ou
part del ewe et del aut, coe a rier de lun terr tanq̃ a laut q̃ le
cozon viendr’ en ceo cas et fra son offic auri coe auent a vyent en vu
brau del mer la ou home puit vier de lun parte tanque a lauter del auer
que en cel lieu auient puyt paiis auer conisans.” There are some words
in this passage difficult to translate, but the following has been
given as its rendering: “Nota per Stanton Justice, that that is not
sance [which Lord Coke translates ‘part’] of the sea where a man can
see what is done from one part of the water and the other, so as to see
from one land to the other; that the coroner shall come in such case
and perform his office, as well as coming and going in an arm of the
sea, there where a man can see from one part to the other of the [word
undeciphered], that in such a place the country can have conusance.”

[995] See p. 119.

[996] Lib. ii. cap. iii. s. xiii. 2, “Ratione territorii, quatenus ex
terra cogi possunt qui in proxima maris parte versantur, nec minus quam
si in ipsa terra reperirentur.” See p. 349.

[997] _Discussiones Historicæ de Mari Libero_, 1637.

[998] _De Dominio Seren. Genuensis Reipub. in Mari Ligustico_, 1641.

[999] _Imperium Maritimum_, 1654.

[1000] _Dissertatio de Imperio Maris_, 1676.

[1001] _De Imperio Maris._

[1002] _Jus Maritimum_, 1652.

[1003] _Maris Liberi Vind. adv. P. B. Burgum_, 1652; _Maris Liberi
Vind. adv. G. Welwodum_, 1633.

[1004] _De Jure Maritime et Navali_, lib. i. c. iv. Ed. 1652.

[1005] _De Jure Naturæ et Gentium_, 1672.

[1006] Lib. iv. c. v. s. vii.

[1007] 7th March, 1689, Art iv.

[1008] _State Papers, Dom._, Chas. II., ccxxxiv. 112, 113, 8th Feb.
1667/8. _Brit. Mus. Add. MSS._, 30,221, fol. 64, 12th March 1683.

[1009] Wynne, _Life of Sir Leoline Jenkins_, ii. 727, 732, 755, 780,
783. In reporting to the king in one case, in which he found the
capture was made in the Channel beyond the limits of a chamber, Jenkins
says: “However the truth be as to the chamber, ’tis certain the seizure
was made in your Majesty’s seas: but so it is, that notwithstanding
your Majesty’s undoubted right of dominion and protection in these
seas, strangers do hold themselves, if not permitted, yet excused for
such hostilities, when they are acted at a due distance from your
Majesty’s ports, harbours, and chambers; grounding themselves upon
what was done and observed in that long war between Spain and the
Netherlands.” The preamble of the proclamation of 12th March 1683 was
as follows: “Whereas the safeguard and protection we owe to such of our
own subjects, and to all others in league and amity with us, as pass
and repass the seas belonging to these our kingdoms, has been always
a principal part of our royal care and concern, and we, finding that
the freedom and security of our navigation and commerce to and from
our ports in time of hostility between our neighbouring princes has
been much disturbed, nay, the reverence due to our ports, harbours, and
other places under our immediate protection has been violated by the
partial practices, depredations, and insolencies of private men-of-war
and others pretending commissions for the present hostilities: We have
thought fit, by the advice of our Privy Council, after an exact view
first taken of the rules, ordinances, and provisions made on the like
occasions by our royal progenitors and ourself, to revive, establish,
ratify and publish to all the world these rules and ordinances
following.” The rules are similar to those in the regulations of 1633
and 1668; but it is noteworthy that the “King’s Chambers” are not
specifically mentioned, nor is any reference made to a “platt,” and the
claim to the dominion of the seas, so prominent in 1633, is omitted.

[1010] _De Dominio Maris Dissertatio._ Hagæ-Batavorum, 1703.

[1011] _Quæstiones Juris Publici._ Lugduni-Batavorum, 1737.

[1012] “Unde dominium maris proximi non ultra concedimus, quam e terra
illi imperari potest, et tamen eo usque; nulla siquidem sit ratio,
cur mare, quod in alicujus imperio est et potestate, minus ejusdem
esse dicamus, quam fossam in ejus territorio.... Quare omnino videtur
rectius, eo potestatem terræ extendi, quousque tormenta exploduntur,
eatenus quippe cum imperare, tum possidere videmur. Loquor autem de his
temporibus, quibus illis machinis utimur: alioquin generaliter dicendum
esset, potestatem terræ finiri, ubi finitur armorum vis; etenim hæc,
ut diximus, possessionem tuetur.” _De Dom. Maris_, cap. ii. In the
_Quæstiones_ the phrase is “imperium terræ finitur, ubi finitur armorum
potestas,” and “terræ dominium finitur ubi finitur armorum vis.”

[1013] _Ibid._, cap. ii.

[1014] See p. 381.

[1015] _De Jure Maritimo_, p. 150.

[1016] _Discursus Legales de Commercio_, Venice, 1740, D, 136. 174,
211, tom. 2. An earlier edition was published at Florence in 1719.

[1017] “Naves exteræ dicuntur esse sub protectione illius principis,
cujus mare navigant, quando reperiuntur intra portus illius, aut in
mari, ita vicino, ut illuc tormenta, bellica adigi possent. Et si
deprædentur ab inimicis, de jure restituendæ sunt.”

[1018] _Tratado jurídico-politico, sobre pressas de mar, y calidades,
que deben concurrir para hacerse legitimamente el Corso_, Part I. c. v.
Cadiz, 1746.

[1019] “No podrá con razon pretender mas extension de sus Costas, que
las dos leguas.”

[1020] “Y circunda en el espacio á lo menos de cien millas en recto: lo
qual es una infalible, y conforme tradicion de los Letrados de todas
las Naciones.”

[1021] _Jus Gentium_, Halæ Magdeburgicæ, 1749, cap. i. ss. 120-132, pp.
99-107. “Partes maris a gentibus, quæ idem accolunt, occupari possunt,
quousque dominium in iisdem tueri possunt.”

[1022] _Le Droit des Gens_, Liv. i. c. xxiii. 5, 279-295, 1758.

[1023] _De la Saisie des Bâtimens Neutres_, La Haye, 1759, tom. i. Part
I. c. iii. s. 5, p. 57.

[1024] _Nouveau Commentaire sur l’Ordonnance de la Marine du mois
d’Août 1681_, Rochelle, 1766, t. ii. Liv. v. tit. i. pp. 687, 688.
“Jusqu’à la distance de deux lieues, et avec cette restriction encore,
la mer est donc du domaine du souverain de la côte voisine; et cela
que l’on puisse y prendre fond avec la sonde, ou non. Il est juste au
reste d’user de cette méthode en faveur des États dont les côtes sont
si escarpées, que dès le bord on ne peut trouver le fond; mais cela
n’empêche pas que le domaine de la mer, quant à la jurisdiction et à
la pêche, ne puisse s’étendre au delà; soit en vertu des traités de
navigation et de commerce, soit par la règle ci-dessus établie qui
continue le domaine jusq’où la sonde peut prendre fond, ou jusqu’à
la portée du canon, ce qui est aujourd’hui la règle universellement
reconnue.” Lawrence, in his annotated edition of Wheaton’s _Elements
of International Law_, Part II. c. iv. s. 6 (1864), makes a curious
blunder in regard to the limit proposed by Valin, who, he says,
“proposed to fix it according to the _sound of a cannon_, or as far as
the ball would reach.” The authority Valin gives for the statement that
the rule was universally recognised is _Journal de Commerce_, Mai 1759,
p. 40.

[1025] _Versuch des Neuesten Europäischen Völkerrechts in Friedens-und
Kriegs-zeiten_, Bd. v. 486, Frankfort, 1778. “Das an die Küsten
eines Landes stossende Meer stehet nach dem Völkerrecht unter der
Oberherrschaft des angränzenden Landes unstreitig, so weit es mit
Canonen von dem festen Land bestrichen werden kan.”

[1026] _Juris Publici Universalis, sive Juris Naturæ et Gentium,
Theoremata_, ii. 7, 65. “Nobis visum est singulas gentes eam partem
circa littus suum occupare posse, cujus usus necessarius, quamque
tuendis littoribus et territorio necessarium arbitrantur.”

[1027] _De’ Doveri de’ principi neutrali verso i principi
guerreggianti, e di questi verso i neutrali._ Naples, 1782.

[1028] “Mi parrebbe peraltro ragionevole, che senza attendere a
vedere se in atto tenga il Sovrano del territorio construtta taluna
torre o batteria, e di qual calibro di cannoni la tenga montata, si
determinasse fissamente, e da per tutto la distanza di tre miglia dalla
terra, come quella, che sicuramente è la maggiore ove colla forza della
polvere finora conosciuta si possa spingere una palla, o una bomba,” p.
432.

[1029] _Précis du Droit des Gens moderne de l’Europe, fondé sur les
Traités et l´Usage_, Göttingen, 1789, Liv. iv. c. iv. In an earlier
work, _Primæ Lineæ Juris Gentium Europæarum_, published at Göttingen
in 1785, the three-league limit is omitted. After speaking of ports,
bays, and straits, he says, “Neque minus in genere eæ maris partes, quæ
territorio proximæ sunt (mare proximum vocant) et tormentorum in limite
terræ constitutorum ictui subsunt, censentur esse in dominio gentis
terræ dominæ, et pro parte territorii habentur.”

[1030] “Sur la mer voisine en général jusqu’à la portée du canon placé
sur le rivage; c. a. d. jusqu’à trois lieues du rivage,” p. 189. He
also speaks elsewhere of the range of guns being equivalent to three
leagues; but it would appear that the terms “miles” and “leagues” were
sometimes used indifferently and carelessly (see Bluntschli, p. 682),
and three leagues was far beyond the range of guns in Von Marten’s time.

[1031] _Sistema universale dei Principj del Diritto marittimo dell’
Europa._ Florence, 1795-96. The work was translated into French
in 1801--_Système Universel de Principes du Droit Maritime de
l’Europe_--and revised, enlarged, and republished in 1805.

[1032] See p. 574.

[1033] “Giacchè essa sola è, secondo me, il giusto ed unico mezzo, che
potrebbe servire di norma per fissare una volta il mare territoriale
sempre combattuto, e non ancora deciso, o almeno non stabilito come si
dovrebbe in un pubblico Trattato tra le Potenze marittime,” i. 75.

[1034] “La distanza di tre miglia dalla Terra come quella, che senza
dubbio è la maggiore, dove colla forza della polvere a fuoco finora
cognita si possa spingere una palla o una bomba,” p. 76.

[1035] _Répertoire de Jurisprudence._

[1036] See p. 571.

[1037] Daru, _Histoire de la République de Venise_, i. 445; Smedley,
_Sketches of Venetian History_, i. 72. See p. 4. When Venice was
conquered, the _Bucentaur_ was stripped of her gilding and finery, and,
under the name of _Hydra_, became a prosaic guard-ship, stationed at
the mouth of the Lido until 1824, when she was destroyed.

[1038] _Rescripter, Resolutioner og Collegial-Breve for Kongeriget
Norge, i Tidsrummet fra 1660-1813_, i. 315, 18th June 1745. “Rescr.
(til Stiftsbefalingsmændene i Norge) ang. det ikke skal være nogen
fremmed Caper tilladt at opbringe noget Skib een Miil nœr de Norske
Kyster og de der udenfor beliggende Grunde og Skjær,” &c. The league in
the Scandinavian ordinances measures fifteen to one degree of latitude,
or one German mile, equal to about 7420 metres. The marine league,
or three-mile limit ordinarily adopted, is of twenty to a degree of
latitude, or about 5565 metres, or 3.4517 English statute miles.

[1039] _Ibid._, i. 423, 439, 602.

[1040] 14th Sept. 1807, s. 5; 28th March 1810, s. 7. In the last the
privateers were forbidden to capture ships in the Sound within such
distance of the Swedish coast as was within the range of guns. Auber,
_Ann. de l’Institut de Droit Internat._, xi. 145.

[1041] Kleen, _Neutralitetens Lagar_, ii. 865.

[1042] Boeck, _Oversigt over Litteratur, Love, Forordninger Rescripter,
m.m. vedrørende de Norske Fiskerier_, p. 12.

[1043] Real Cédula, 17th December 1760; Real Órden, 1st May 1775;
Real Decreto, 3rd May 1830; Real Decreto, 20th June 1852. Riquelme,
_Elementos de Derecho Público Internacional, con esplicacion de todas
las reglas que, segun los Tratados, &c., constituyen el Derecho
Internacional Español_, i. 211, App., 187, 197, 200; Madrid, 1849.
Negrín, _Tratado de Derecho internacional maritimo_, Madrid, 1883, p.
66.

[1044] Martens, _Recueil_, i. 479.

[1045] 21st Nov. 1777; 9th May 1778. Martens, _Recueil_, iii. 16, 18.
In Kent’s _Commentaries on American Law_, i. 118 (ed. 1884), it is said
(apparently on the authority of Sparks’ _Diplomatic Correspondence_,
ii. 110) that the Commissioners, in their circular letter of 1777
to the commanders of American armed vessels, “carried very far the
extension of neutral protection when they applied it indiscriminately
to all captures within sight of a neutral coast.” There is nothing of
this in the document given by Martens.

[1046] 19th Sept. 1778. _Op. cit._, i. 47.

[1047] 1st Aug. 1778. “E ne’ mari adjacenti agli altri porti, scali,
torri, e spiagge del Gran Ducato non potrà usarsi atto veruno di
ostilità nella distanza, che potrebbe circoscriversi da un tiro di
cannone.” _Op. cit._, 24.

[1048] 4th March 1779. “Nè generalmente dentro la distanza di un tiro
di cannone da terra.” _Op. cit._, i. 52.

[1049] 1st July 1779. “Nei porti, golfi, e spiagge del nostro dominio
nella distanza, che potrebbe circonscriversi da un tiro di cannone.”
_Op. cit._, 64.

[1050] 9th Sept. 1779, Arts. viii., ix. “Ed in tutti mari ad essi
adjacenti, limitati, almeno allo spazio circoscritto dalla portata d’un
grosso cannone di batteria.” _Op. cit._, i. 78.

[1051] Jenkinson (Lord Liverpool), _A Discussion on the Conduct of the
Government of Great Britain in respect to Neutral Nations_ (1758), ed.
1801, Pref. Phillimore, _Commentaries_, iii. 273. Wheaton’s _Elements_
(ed. 1864), 1024. Martens, _Recueil_, iii. 158, _seq._

[1052] Mutual protection was to be afforded “dans leurs ports ou rades,
mers internes, passages, rivières, et aussi loin que leur jurisdiction
s’etend en mer.” 8th Oct. 1782, Art. v. Martens, _op. cit._, 433.

[1053] “À la portée du canon des châteaux de l’autre.” _Vide_ Martens
and De Cussy, _Rec._, i. 381.

[1054] 26th Sept. 1786, Art. xli. “Leurs dites Majestés ne souffriront
point que sur les côtes, à la portée du canon, et dans les ports et
rivières de leur obéissance, des navires et des marchandises des sujets
de l’autre soient pris par des vaisseaux de guerre, ou par d’autres
qui seront pourvus de patentes de quelque prince, république, ou ville
quelconque,” &c. Martens, _Rec._, iv. 178.

[1055] 11th Jan. 1787, Art. xxviii. “... Hors de la portée du canon des
côtes de son allié ... dans les ports, havres, golfes et autres eaux
comprises sous le nom d’eaux closes.” By Article xx. the salute was
abolished. _Ibid._, 207, 210. The mention of closed waters no doubt
referred to the Baltic, which was declared to be a closed sea (_une
mer fermée_), into which the armed vessels of belligerents were to
be refused entry, by a decree of the King of Denmark in 1780, and by
conventions between Russia and Denmark and Sweden in the same year, and
between Russia and the United Provinces and Prussia in the following
year. _Ibid._, iii. 175, 195, 219, 250.

[1056] 17th Jan. 1787, Art. xix. _Ibid._, iv. 237.

[1057] 7th August 1803. Martens, _Recueil_, 2. viii. 105.

[1058] Martens, _Recueil_, iii. 763, 10th Sept. 1784, Art. vi.

[1059] See p. 527.

[1060] Oct. 28, 1790, Art. iv. Martens, _ibid._ iv. 489, 497. Wheaton,
_Elements_, 307 (ed. 1864).

[1061] Wheaton, _Elements_, 723 ; President’s Proclamation of
Neutrality, April 22, 1793; Mr Jefferson, Secretary of State, to M.
Genet, 8th Nov. 1793; Wharton’s _Digest of the International Law of the
United States_, i. c. 2, s. 32.

[1062] Opinion of Attorney-General, 14th May 1793; Letter of Sec. of
State to the French Minister, 15th May 1793; Kent’s _Commentaries_,
i. 30. Delaware Bay, it may be said, has always been, and still is,
claimed as territorial water by the United States. _Vide_ reply of
Government of United States to Observations of British Government on
Draft Treaty, 1887. Correspondence relative to the Fisheries Question,
1887-1888. _Parl. Papers (Canada)_, 1888, p. 70.

[1063] Act of Congress, 5th June 1794, c. 50. Kent’s _Commentaries_, 30.

[1064] Wheaton, _Elements_, 724.

[1065] Wharton’s _Digest_, i. c. 2.

[1066] Mr Madison to Messrs Monroe and Pinckney, 17th May 1806. Kent,
_Commentaries_, i. 31.

[1067] Hall, _A Treatise on International Law_, Part II. c. ii. s. 2.

[1068] The High Court of Admiralty, for instance, decided in 1760 that
a French vessel taken by an English privateer at Hayti was not good
prize, as it had been attacked while in a port belonging to the King of
Spain, “within reach of his cannon and under his protection” (Marsden,
_Report of Cases determined by the High Court of Admiralty_, 175).

[1069] There were two cases of _Twee Gebroeders_--the first (Alberts,
master) tried on 29th July 1800; the second (Northolt, master) tried on
27th November 1801.

[1070] Robinson, _Reports of Cases Argued and Determined in the High
Court of Admiralty_, iii. 162. London, 1802.

[1071] _Ibid._, 339.

[1072] _Ibid._, v. 373.

[1073] _Vide_ Chief Justice Cockburn, _Law Reports, Excheq. Div._,
ii. 178. It is a curious circumstance that many English writers on
municipal law, even after this time, adhering to a different line of
inquiry, clung tenaciously to the husk of the old claims of England to
the sovereignty of the sea. Hale, as we have seen, followed Selden, as
did Hargrave and Blackstone, though with apparent diffidence. Chitty,
in his _Treatise on the Law of the Prerogative of the Crown_, published
in 1820, relying on Selden, Hale, and Molloy, declares that “the king
possesses the sovereign dominion in all the narrow seas, that is, the
seas which adjoin the coasts of England, and other seas within his
dominions” (p. 173); and that he “has an undoubted sovereignty and
jurisdiction, which he has immemorially exercised, through the medium
of the admiralty courts, over the British seas, that is, the seas which
encompass the four sides of the British islands; ... the law of nations
and the constitution of the country have clothed the sovereign with
this power, that he may defend his people and protect their commercial
interests” (p. 142). He also assigns the soil under the sea to the
king. Hall, in his _Essay on the Rights of the Crown and the Privileges
of the Subject in the Sea Shores of the Realm_, published in 1830,
states the doctrine even more nakedly. After defining the British seas
according to Selden, he says, “Over the British Seas, the King of
England claims an absolute dominion and ownership, as Lord Paramount,
against all the world. Whatever opinions foreign nations may entertain
in regard to the validity of such claim, yet the subjects of the King
of England do, by the common law of the realm, acknowledge and declare
it to be his ancient and indisputable right.” Hall also assigns the
bottom or _fundum_ of the British seas to the king, the authorities
cited being Coke, Callis, Molloy, Hale, and Blackstone. Loveland, the
editor of the second edition of Hall’s _Essay_, which was published in
1875, does not attempt to qualify the statements. It was not, indeed,
till after the decision in the case of the _Franconia_ in 1876, and
the Territorial Waters Jurisdiction Act of 1878, that the doctrine was
abandoned in theory by English lawyers. Even Moore, the editor of the
third edition of Hall’s _Essay_, which appeared in 1888, while pointing
out the alteration of the law by the decision in the _Franconia_ case,
and by the Territorial Waters Jurisdiction Act, thought it undesirable
to vary Hall’s text, having regard to the diversity of the opinions
expressed by the judges in the case referred to. _Vide_ p. 590.

[1074] Convention, 1818, Art. i. “... And the United States hereby
renounce for ever any liberty heretofore enjoyed or claimed by the
inhabitants thereof to take, dry, or cure fish on or within three
marine miles of any of the coasts, bays, creeks, or harbours of his
Britannick Majesty’s dominions in America not included within the
above-mentioned limits.” Wheaton, _Elements_, 324, 463 (ed. 1864).
_Parl. Papers, North America_, No. 1 (1878). Henderson, _American
Diplomatic Questions_, 497.

[1075] Martens, _Nouv. Recueil_, V. ii. 358; Behring Sea Arbitration,
British Case, _Parl. Papers, United States_, No. 1 (1893), p. 38, App.
I. No. 1.

[1076] The Duke of Wellington to Count Nesselrode, 17th Oct. 1822; G.
Canning to the Duke of Wellington, 27th Sept. 1822; Count Nesselrode to
Count Lieven, 26th June 1823; G. Canning to S. Canning, 8th Dec. 1824;
S. Canning to G. Canning, 3rd April 1825. _Parl. Papers_, _ibid._, 41,
42, 44, 46, 56, App. II. pt. i. 14, 15, 29, 52, 57.

[1077] _American State Papers, Foreign Relations_, v. 452; _Parl.
Papers_, _ibid._, App. II. pt. ii. No. 5; Wheaton, _Elements_, 308.

[1078] Treaty between Russia and the United States, April 17th, 1824,
Art. i. iv.; treaty between Great Britain and Russia, 28th Feb. 1825,
Art. i. vii. Martens, _Nouv. Recueil_, vi. 684. _Parl. Papers_,
_ibid._, 52, 53.

[1079] In 1842. _Parl. Papers_, _ibid._, 83.

[1080] In 1846. _Ibid._, 84.

[1081] _Ibid._, 87.

[1082] _E.g._, the case of the _Leda_, in which Dr Lushington claimed
that the term United Kingdom included the waters to a distance of
three miles from the shore (Swa., _Adm._, 40); General Iron Screw
Company, in which Lord Hatherly said that it was “beyond question that
for certain purposes every country may, by the common law of nations,
legitimately exercise jurisdiction over that portion of the high seas
which lies within three miles from its shores,”--whether this limit was
determined by the range of cannon was not material, since it was clear
it extended at any rate to that distance (1 J. and H., 180); Whitstable
Fishery Case, in which it was said that the soil of the seashore to the
distance of three miles from the beach was vested in the crown, and
in which Lord Chelmsford observed that “the three-mile limit depends
upon a rule of international law, by which every independent state is
considered to have territorial property and jurisdiction in the sea
which washes their coast within an assumed distance of a cannon-shot
from the shore” (11 C.B. (N.S.), 387; 2 H.L.C., 192); the _Annapolis_,
in which Dr Lushington said. “Within British jurisdiction, namely,
within British territory, and at sea within three miles from the
coast” (1 Lush., _Adm._, 306); Rex _v._ Forty-nine Casks of Brandy, in
which Sir John Nicholl said that “as between nation and nation, the
territorial right may, by a sort of tacit understanding, be extended
to three miles” (3 Haggard, 257); Gammell _v._ Commissioners Woods
and Forests and Lord Advocate, in which Lord Wensleydale referred to
the distance of three miles as belonging, by the acknowledged law of
nations, to the coast of the country, and “under the dominion of the
country by being within cannon range, and so capable of being kept in
perpetual possession” (3 MacQueen, H.L., 419).

[1083] This subject is treated of by Mr A. H. Charteris, Lecturer in
International Law, University of Glasgow, in a paper read before the
International Law Association at Berlin in 1906 (_Twenty-third Report_,
103).

[1084] Two small islands in the Channel.

[1085] Bell, _Crown Cases Reserved_, 72. See Hall, _Internat. Law_, 5th
edit., p. 156; Westlake, _Internat. Law_, i. 118.

[1086] The Direct United States Cable Company _v._ the Anglo-American
Telegraph Company, Privy Council, 1877. _Law Reports_, Appeal Cases,
ii. 394.

[1087] 33 & 34 Vict., c. 90.

[1088] See pp. 592, 632.

[1089] Regina _v._ Keyn, _Law Reports, Excheq. Div._, ii., 1876-7, p.
63.

[1090] _E.g._, p. 204: “There are several treaties by which nations
have engaged, in the event of either of them being at war with a third,
to treat the sea within three miles of each other’s coasts as neutral
territory,” the treaties being those referred to on p. 572. “After
the three-mile theory had been propounded by Bynkershoek,” p. 177. Mr
Justice Amphlett went further, and attributed a similar doctrine to
Grotius: “All the earlier writers, including Grotius, the vigorous
advocate of the free navigation of the high seas, and many of the later
writers, maintained that within the zone of three miles the state had,
without qualification,” &c., p. 122.

[1091] 41 & 42 Vict., c. 73.

[1092] 58 & 59 Vict., c. 42.

[1093] _Hansard_, xxxiii. 504. The Lord Chancellor (Lord Herschell),
who followed, said : “He was far from saying that three miles was
to be the limit of territorial waters for all time. Originally the
distance was fixed by gunshot, and it was always said that the distance
a gun could fire to was three miles. How far this principle was to
be extended, and whether it was to be extended indefinitely, was a
question for consideration, and it was a question which would not be
without its difficulty.” Lord Salisbury referred to a gun which was
fired on Jubilee Day and carried twelve miles, and Lord Herschell to
one which had a range of thirteen miles.

[1094] 9 Geo. II., c. 35; 24 Geo. III., c. 47; Twiss, _The Law of
Nations in Time of Peace_, 261; Hall, _A Treatise on the Foreign Powers
and Jurisdiction of the British Crown_, 244.

[1095] 16 & 17 Vict., c. 107, ss. 212, 218; 39 & 40 Vict., c. 36, s.
179.

[1096] Kent, _Commentaries_, i. 31; Wheaton, _Elements_, 267, 323.

[1097] Riquelme, _op. cit._ See p. 569.

[1098] _Fifteenth Ann. Rep. Assoc. for Reform and Codification of the
Law of Nations_,. 18, 22; _Seventeenth_, _ibid._, 302; _Annuaire de
l’Institut_, xi. 151.

[1099] _Fifteenth Rep._, _ibid._, 84, 121; _Ann. de l’Institut_ for
1894. Customs Act of Canada, 49 Vict., c. 32, s. 21.

[1100] 26 Geo. II.; 6 Geo. IV., c. 78.

[1101] _Mer Territoriale_, 222; and see pp. 551, 560, 564.

[1102] Twiss, _op. cit._, 261-264; Phillimore, _Commentaries_, i. 236;
Kent, _loc. cit._; Wheaton, _loc. cit._; Hall, _loc. cit._ The latter
author states that they “repose on an agreement which, though tacit, is
universal,” and that “no civilised country encourages offences against
the laws of a foreign state when it sees that the laws are just and
necessary.”

[1103] _De la Liberté des Mers, ou le Gouvernement Anglois devoilé_,
1798.

[1104] _La Mer Libre, La Mer Fermée_, 1803.

[1105] _Institutions du Droit de la Nature et des Gens._

[1106] _De la Liberté des Mers._

[1107] _A Practical Treatise on the Law of Nations relative to the
Legal Effect of War on the Commerce of Belligerents and Neutrals._
London, 1812.

[1108] _Das Europäische Völkerrecht_, Berlin, 1817, p. 141.

[1109] “So weit der Schuss des Geschütses vom Ufer es bestreichen möge;
dies selbst nahm man mit noch ungebundenerer Will-Kühr auf 3 Lieues an.”

[1110] P. 564.

[1111] _Europäisches Völkerrecht_, Stuttgart, 1821, p. 204; _Droit des
Gens moderne de l’Europe_, 1819, III. ii. 130 (ed. 1831).

[1112] _A Digest of the Law of Maritime Captures or Prizes_, New York,
1815, c. ii. p. 55.

[1113] _Elements of International Law_, c. iv. ss. 6-10. London, 1836.

[1114] The King’s Chambers were, however, confined to the coast of
England. See p. 122.

[1115] _Commentaries on American Law_, i. Part I. Lect. iii.

[1116] _Commentaries on the Law of Nations_, p. 119. 1839.

[1117] _Das Europäisches Völkerrecht der Gegenwart_, Berlin, 1844. _Le
Droit International de l’Europe_, Paris, 1873, s. 75. “La ligne de la
portée du canon elle-même, bien qu’elle soit regardée comme de droit
commun, ne présente aucune base invariable et peut-être fixée par les
lois de chaque État, du moins d’une manière provisoire.”

[1118] _Researches in Maritime International Law_, i. 16. 1844.

[1119] _Règles Internationales et Diplomatie de la Mer_, i. 177.

[1120] _Histoire des Origines, des Progrès, et des Variations du Droit
Maritime International_, ed. 1858, p. 22.

[1121] _Traité des Prises maritimes_, i. 93. Paris, 1855.

[1122] “La portée du canon, placé à terre, est la seule limite réelle
et vraie des mers territoriales.”

[1123] _Le Droit commercial, dans ses rapports avec le Droit des Gens
et le Droit Civil_, Paris, 1844-47, tom. i. Liv. ii. tit. i. c. i. ss.
103-105.

[1124] _Plans and Proposals transmitted to the Committee on the
Fishery_, No. 1, &c.

[1125] _Reports by the Commissioners for the British Herring
Fishery_ for 1819, 1821, 1822; _Staatsblad_, No. 28, 4th April
1824, for a copy of which I am indebted to Mr H. van Hall, of the
Universiteits-Bibliotheek, Amsterdam. After a reference to the
previous decrees prohibiting the taking of herrings “between the
banks and rocks of Scotland,” as being injurious to the reputation
of Dutch pickled herrings (see p. 201), it is stated that the Board
for the Great Fishery is of opinion that, in the interest of this
branch of national industry, the fishing should be carried on at a
farther distance from the main coast of Scotland (_Schotsche vaste
kust_), and it is determined and resolved as follows: “Art. I. Het
zal aan geenen Nederlandschen visscher geoorloofd zijn, de groote of
pekelharingvisscherij op eenen naderen afstand der vaste kust van
Schotland uitteoefenen, dan dien van twee uren hemelsbreedte (20
zoodanige uren eenen graad uitmakende), noch onder eenig voorwendsel
hoe ook genaamd (alleen met uitzondering van het geval van dringende
noodzakelijkheid bij art. 22 der voormelde wet voorzien), gedurende
den tijd dat hij de vangst van pekelharing bedrijft, de vermelde kust
op eenen minderen afstand te naderen.” The second article excepted the
fishing at Shetland (Hitland) and Fair Isle (Fair-hill), the autumn
fishing on the English coast and off Yarmouth, and the fresh-herring
fishery; but these exceptions were withdrawn by a royal decree of 5th
June 1827 (_Staatscourant_, 1827, No. 278). It may be said that in
1818 the old prohibition of fishing between the sandbanks and rocks of
Norway, Shetland, and Scotland had been renewed. _Staatsblad_, No. 15,
12th March 1818.

[1126] _Rapport fait en Exécution des Ordres du Ministre de la Marine_,
par M. L. de Montaignac, Capitaine de frégate, Commandant la Station de
la Mer du Nord.

[1127] Montaignac, _op. cit._; _Parl. Papers_, Sess. 1837-38; _Rep.
Com. Brit. Herring Fishery_, 1834.

[1128] _Report from the Select Committee on British Channel Fisheries,
Parl. Papers_, Sess. 1833, No. 676.

[1129] An ordinance of the French Marine Department, of 15th January
1829, prohibited the use of certain nets, as drag and trawl nets,
within _three leagues_ of the shore from 15th April to 1st September,
and within two leagues from 1st September to 15th April.

[1130] Some of the English fishery Acts then in force, at least
nominally, extended jurisdiction beyond the distance of one league with
regard to the use of certain nets, &c., and the Committee apparently
desired that, besides a zone of exclusive fishery, foreigners should
be bound to observe the municipal law for the protection of the spawn
and brood of fish that might apply beyond such zone. The Acts referred
to were 3 Jac. I., c. 12 (1605), for the better preservation of sea
fish, which, _inter alia_, prohibited the use of certain nets within
five miles of any harbour, haven, or creek; 14 Chas. II., c. 28 (1662),
regulating the pilchard-fishing in Devon and Cornwall, which prohibited
the use of any “drift, trammel, or stream net,” between 1st June and
30th November, within one and a half leagues of the coasts of these
counties; 1 George I., stat. 2, c. 18 (1714), which prohibited the use
“at sea upon the coast of England” of certain nets, and the landing or
sale of undersized fish; the Act 33 Geo. III., c. 27 (1759), prohibited
the taking or knowingly possessing “any spawn, fry, or brood of fish,
or any unsizeable fish, or any fish out of season.”

[1131] Under the Act 6 Geo. IV., c. 108, 1825.

[1132] Mr Cornish, quoting from his MS. treatise on zoology, said: “It
is generally supposed that all sea fish, the cetaceous (_sic_) and
cartilaginous excepted, deposit their ova in sand-banks, in creeks,
bays, and shallow water near the shores, because it is imagined that a
certain, though a small, degree of the sun’s action on the water and
atmosphere is necessary to bring such ova to maturity. This we know to
be the case with the salmon species, which always ascend to the shallow
parts of rivers for that purpose, and never lay their eggs in deep
water, and therefore we infer that the same influence prevails over the
sea fish: this cannot, however, be proved, and rests mainly on opinion
and probable conjecture, founded on such facts as we are acquainted
with.” It may be said that a Select Committee of the House of Commons,
appointed in 1817 to inquire into the condition of the fisheries on
the south coast of Devon, strongly recommended Parliamentary action
for the protection of the fisheries, founding on the same erroneous
assumption that the fishes spawned near the shore. A Bill was
accordingly introduced in the session of 1819, and again in 1822, for
the appointment of conservators or overseers of the bays, creeks, and
arms of the sea, to supervise regulations for the preservation of the
fish coming there to spawn, and of their brood and fry, and applying
to a distance of one and a half leagues from the shore; but it did not
pass the Lords. _Rep. Select Com. on the State and Condition of the
Fisheries on the South Coast of Devon_, 1817; _Parl. Bills_, xxii. 587,
601. _Eighth Ann. Rep. Fishery Board for Scotland_, Part III., pp. 13,
258 (1890); _Tenth, ibid._, pp. 19, 235; _Eleventh, ibid._, p. 13.

[1133] Memorials, &c., received by Her Majesty’s Government since
1st January 1832, complaining of the Aggressions of French fishermen
on the British Coasts, _Parl. Papers_, Sess. 1837-38; Supplementary
Papers relative to the Complaints respecting the Aggressions of French
fishermen on the British Coasts, 1838, _ibid._, 1839; _Reports by the
Commissioners for the Herring Fishery_, for 1834, 1835, 1839.

[1134] _Convention between Her Majesty and the King of the French,
defining and regulating the Limits of the Exclusive Right of the Oyster
and other Fishery on the Coasts of Great Britain and of France._ Signed
at Paris, August 2, 1839.

[1135] The line of closure, as will be seen from fig. 16, was not a
single straight line, as usual, but a series of lines determined by
landmarks. The area between this series and the three-mile limit, from
which British fishermen were excluded, measures a little over 100
square (geographical) miles. On the other hand, all of the closing
line north of 49° 3´ (and thus the greater part of it) is, curiously,
_within_ the three-mile zone; the area outside this line to the
three-mile line is about 23 square miles.

[1136] 6 & 7 Vict., cap. 79. “An Act to carry into Effect the
Convention between Her Majesty and the King of the French concerning
the Fisheries in the Seas between the British Islands and France,” 22nd
August 1843. The mesh of trawl-nets, the length of the trawl-beam,
the weight of the trawl-irons and of the ground-rope, the mesh of
herring, mackerel, “bratt,” and trammel nets, were in no case to be
over or under a specified standard. A series of detailed regulations
for oyster-fishing was also made, including a close-time and a minimum
size. This Act was repealed by the Sea Fisheries Act, 1868 (the
Convention Act), 31 & 32 Vict., c. 45, but it was revived by Parliament
in 1877 (40 & 41 Vict., c. 42), the Convention of 1867 not having been
ratified by France.

[1137] _Reports of the Commissioners for the Herring Fishery_, 1839,
1840, 1841.

[1138] It was denounced in the Boulogne Chamber of Commerce as the
greatest blunder the French Government had ever made, and many
complaints were received from French fishermen of their boats having
been captured or pursued by British cruisers. Deseille, _Histoire de la
Pêche à Boulogne-sur-Mer_, 229. The French cruisers were no less active
in apprehending British transgressors. _Parl. Papers_, Sess. 1854-5,
459.

[1139] Mitchell, _The Herring: Its Natural History and National
Importance_, 243.

[1140] The Board pointed out that the fishermen of other foreign
countries were not disposed to observe the limits laid down in the
Anglo-French convention, specifying Dutch as well as Belgians, and
that the naval superintendents were perplexed from the want of fixed
instructions on this point. The letter from the Board of Trade was as
follows (_Report of the Commissioners for the year ended 5th January
1849_):--

“OFFICE OF COMMITTEE OF PRIVY-COUNCIL FOR TRADE,

“WHITEHALL, _14th September 1848_.

“SIR,--With reference to your letter of 4th ultimo, requesting, on
the part of the Commissioners of British Fisheries, to know whether
Foreign Fishermen are permitted to fish within three miles of the
Shore; I am directed by the Lords of the Committee of Privy-Council
for Trade, to inform you, that it is the opinion of this Board, that
no such permission is recognised by the British Government, and
accordingly, that it is the duty of the Superintendents of British
Fisheries, to warn Dutch, Belgian, or any other Foreigners, as well as
French Fishermen, to keep outside of the limits above mentioned.--I
am, sir, your obedient servant,

(Sd.) DENIS LE MARCHANT.

The Honourable B. F. PRIMROSE, Secretary,
Board of Fisheries, Edinburgh.”

[1141] See p. 461.

[1142] Convention between Her Majesty and the King of the Belgians
relative to Fishery. Signed at London, March 22, 1852. “Art. I. Belgian
subjects shall enjoy, in regard to fishery along the coast of the
United Kingdom of Great Britain and Ireland, the treatment of the most
favoured foreign nation. In like manner, British subjects shall enjoy,
in regard to fishery along the coast of the Kingdom of Belgium, the
treatment of the most favoured foreign nation.” The convention was to
endure for seven years, and it was to remain in force thereafter until
the expiry of twelve months after either party notified to the other
its intention of terminating it.

[1143] _Reports by the Commissioners for the British Fisheries_,
1848-51. _Parl. Papers_, Sess. 1856.

[1144] _Reports of the Commissioners for the British Fisheries_, 1852,
1853, 1862.

[1145] _Report of the Commissioners appointed to Enquire into the Sea
Fisheries of the United Kingdom_, I. lxix. (1866).

[1146] _Convention between Her Majesty and the Emperor of the
French, relative to the Fisheries in the seas between Great Britain
and France._ Signed at Paris, 11th November 1867. Art. I. “British
fishermen shall enjoy the exclusive right of fishery within the
distance of three miles from low-water mark, along the whole extent of
the coasts of the British Islands; and French fishermen shall enjoy
the exclusive right of fishery within the distance of three miles from
low-water mark along the whole extent of the coast of France, the only
exception to this rule being that part of the coast of France which
lies between Cape Carteret and Point Meinga. The distance of three
miles fixed as the general limit for the exclusive right of fishery
upon the coasts of the two countries shall, with respect to bays, the
mouths of which do not exceed ten miles in width, be measured from a
straight line drawn from headland to headland. The miles mentioned in
the present Convention are geographical miles, whereof sixty make a
degree of latitude.” In neither of the conventions was it expressly
said that the ten-mile closing-line for bays was to be measured from
low-water mark of the headlands, but it was so declared in the Act of
1843, 6 & 7 Vict., c. 79.

[1147] 31 & 32 Vict., c. 45.

[1148] _London Gazette_, 9th Feb. 1869. C. E. Fryer, _The Relation of
the State with Fishermen and Fisheries. Parl. Papers, Commerc._, 24
(1882), p. 1.

[1149] 46 & 47 Vict., c. 22, sec. 30.

[1150] 6 & 7 Vict., c. 79, s. vi.

[1151] 5 & 6 Vict., c. 106.

[1152] _Parl. Papers_, Sess. 1867-68, Fisheries (Ireland), 135.

[1153] 31 & 32 Vict., c. 45, s. 67.

[1154] _Report from the Select Committee on Oyster Fisheries_, 8, 166
(1876).

[1155] Had the coasts of the United States been visited by British
fishermen, it is not unlikely that the Government of that country would
have been more willing to admit the ordinary interpretation with regard
to bays. British vessels do not, however, fish on the coasts of the
United States, and the United States fishermen, having exhausted the
once productive waters of their own coasts of the New England States,
go to catch a large part of their fish to the waters on the coasts of
British North America, and hence it is to their interest that the limit
of exclusive fishing on the latter should be as small as they can get
it made. The position is very similar to that of the English trawlers
who, having impoverished the North Sea, now go to foreign coasts, as
Iceland, to keep up the supplies. See p. 707.

[1156] Treaty between Her Majesty and the United States of America,
signed at Washington, 1st June 1854, Art. i., ii. I. “It is agreed by
the high contracting parties that in addition to the liberty secured
to the United States’ fishermen by the above-mentioned convention of
October 20, 1818, of taking, curing, and drying fish on certain coasts
of the British North American Colonies therein defined, the inhabitants
of the United States shall have, in common with the subjects of Her
Britannic Majesty, the liberty to take fish of every kind, except
shell-fish, on the sea coasts and shores, and in the bays, harbours,
and creeks of Canada, New Brunswick, Nova Scotia, Prince Edward’s
Island, and of the several islands thereunto adjacent, without being
restricted to any distance from the shore, with permission to land
upon the coasts and shores of those Colonies and the islands thereof,
and also upon the Magdalen Islands, for the purpose of drying their
nets and curing their fish; provided that, in so doing, they do
not interfere with the rights of private property, or with British
fishermen, in the peaceable use of any part of the said coast in
their occupancy for the same purpose.” The second article accorded
to Canadian fishermen similar privileges in the waters of the United
States, north of 36 degrees N. latitude.

[1157] Before this arrangement was made, the British Government, on
12th April 1866, instructed the Admiralty “that American fishermen
should not be interfered with, either by notice or otherwise, unless
they are found within three miles of a line drawn across the mouth of
a bay or creek, which is less than ten geographical miles in width, in
conformity with the arrangement made with France in 1839.”

[1158] 27th June 1870. “The limits within which you will, if necessary,
exercise the power to exclude United States’ fishermen, or to
detain American fishing vessels or boats, are for the present to be
exceptional.... Her Majesty’s Government are clearly of opinion that,
by the Convention of 1818, the United States have renounced the right
of fishing, not only within three miles of the Colonial shores, but
within three miles of a line drawn across the mouth of any British
bay or creek. It is, however, the wish of Her Majesty’s Government
neither to concede, nor for the present to enforce, any rights in this
respect which are in their nature open to any serious question. Until
further instructed, therefore, you will not interfere with any American
fishermen, unless found within three miles of the shore, or within
three miles of a line drawn across the mouth of a bay or creek, which,
though in parts more than six miles wide, is less than six geographical
miles in width at its mouth. In the case of any other bay--as Bay des
Chaleurs, for example--you will not interfere with any United States’
fishing vessel or boat, or any American fishermen, unless they are
found within three miles of the shore.”

[1159] Treaty between Her Majesty and the United States of America,
signed at Washington, 8th May 1871, Art. xviii., xix.

[1160] _Parl. Papers_, No. 1 (1888), (C.--5262).

[1161] The number of American fishing vessels which take the licenses
for Canadian waters is usually about 100, the fees aggregating 10,000
or 12,000 dollars per annum. _Ann. Reports, Marine and Fisheries_,
Ottawa.

[1162] The three-mile limit is measured from the ten-mile arc.

[1163] Mr Phelps to the Marquis of Salisbury, 3rd August 1887,
enclosing ad interim arrangement proposed by the United States’
Government, with “Observations” by the British Government and Reply of
the Government of the United States.

[1164] Gordon, _15th Ann. Rep. Assoc. for Reform of Law of Nations_
(8). 1893.

[1165] _Report by the Commissioners for the Herring Fishery_, Scotland,
1869, p. 4; _Report by the Commissioners of the Fishery Board,
Scotland_, 1876, p. 7.

[1166] Report of W. H. Higgin, Esq., Q.C., on the Outrages committed
by Foreign upon English Fishermen in the North Sea. _Parl. Papers_
(C.--2878), 1881.

[1167] After all, however, the damage from the monetary point of view
was not very great, amounting, according to the detailed information
collected by Mr Higgin, to £4372, 3s. over the years 1870-1880, or at
the rate of about £400 per annum.

[1168] Correspondence respecting the Conference at The Hague and the
Convention of the 6th May 1882, relative to the Police of the Fisheries
in the North Sea. _Parl. Papers, Commercial_, No. 24, 1882.

[1169] M. Barthélemy St Hilaire to Lord Lyons, 2nd July 1881; M. de
Freycinet to M. Challemel-Lacour, 2nd March 1882.

[1170] “The fishermen of each country shall enjoy the exclusive right
of fishery within the distance of three miles from low-water mark
along the whole extent of the coasts of their respective countries and
of the dependent islands. As regards bays, the entrances of which do
not exceed ten miles in width, the distance of three miles shall be
measured from a straight line joining the two extreme points of the
bay. The present article shall not in any way prejudice the right of
free navigation and anchorage in territorial waters accorded to vessels
of all sizes, provided they conform to the special police regulations
enacted by the Powers to whom the shore belongs.”

[1171] Messrs Kennedy and Trevor to Mr Farrer, Oct. 31, 1881. In the
Anglo-French convention of 1867 the British negotiators unsuccessfully
pressed for the insertion of the words, “the islands ... and their
dependencies.” M. de Freycinet to M. Challemel-Lacour, 2nd March 1882.

[1172] Vide _Fiskeri-Beretning for Finansaaret_, 1907-1908, p. 178.
Kjobenhavn, 1908.

[1173] _Report on the Sea Fisheries of England and Wales_, 1879. The
British delegate laid stress on one of the conclusions reached by Mr
Buckland, to the effect that “nothing that man has done, and nothing
that man can do, can affect the supply of herrings in the seas.” Even
if this were proved for the herring in the absolute form in which it is
expressed,--and it is clearly illogical and unwarrantable to pledge the
future in this loose way,--it obviously might not, and in point of fact
does not, apply to the great bulk of the fishes that would have been
affected by the German suggestion.

[1174] _International Convention for the Purpose of Regulating the
Police of the Fisheries in the North Sea outside Territorial Waters._
Signed at The Hague, 6th May 1882.

[1175] Sir H. Rumbold to Earl Granville, 16th March 1882; H.M.
Plenipotentiaries to the same, 8th May 1882.

[1176] The boundaries specified are, on the north, the parallel of the
61st degree of latitude; on the east and south, the coast of Norway
between the above parallel and Lindesnæs Lighthouse, a straight line
thence across the Skagerrack to Hantsholm Lighthouse in Denmark, the
coasts of Denmark, Germany, the Netherlands, Belgium, and France, as
far as Cape Gris Nez Lighthouse; on the west, a straight line from Gris
Nez Lighthouse to the easternmost lighthouse at the North Foreland in
Kent, the eastern coasts of England and Scotland, a line from Duncansby
Head in Caithness to the southern point of South Ronaldsha in the
Orkneys, the eastern coasts of the Orkney Islands, a straight line
from North Ronaldsha Lighthouse to Sumburgh Head Lighthouse in the
Shetland Islands, the eastern coasts of these islands, and the meridian
of the North Unst Lighthouse as far as the parallel of the 61st degree
of latitude. The Dutch proposed the 60th degree of latitude as the
northern limit, and the British the 62nd degree.

[1177] 46 & 47 Vict., c. 22. An Act to carry into effect an
International Convention concerning the Fisheries in the North Sea, and
to amend the laws relating to British Sea Fisheries.

[1178] Messrs Kennedy and Trevor to Mr Farrer, 31st Oct. 1881. _Doc.
cit._

[1179] Dispatch to Hon. E. Ashley, 17th Nov. 1881; Earl Granville to
Her Majesty’s Representatives at Paris, Brussels, The Hague, Berlin,
Copenhagen, and Stockholm, 6th December 1881.

[1180] A case occurred in 1908 in which the master of an English
trawler, the _Taurus_, was convicted in a German court for trawling
within the three-mile limit on the German coast, and the case was
appealed on the ground that the place was outside the territorial
waters, and was so shown on the English fishery charts. It was found,
however, that the three-mile line on these charts did not take into
account the dependent banks, whereas the German charts did take them
into account, the limit running in some cases six or seven miles
from the coast. It may be mentioned that as considerable parts of
the Goodwin Sands are visible at low-water of neap tides, such parts
are entitled to a three-mile limit in the same way as the dependent
banks on the German coast. Recently, also, it has been found that
the three-mile limit in the neighbourhood of the Scaw fluctuates
considerably owing to the shifting of the shoals, and the Danish
authorities, early in 1907, intimated that any case of alleged
infraction of the limit by foreign fishing vessels would be judged of
by the actual position of the line at the time, and not by what may
be shown on any chart in use. The point in regard to banks was raised
a century ago in connection with neutral rights in a case in which a
British privateer captured a French corvette, the _Africaine_, on the
coast of the United States, six miles from shore. It was argued that
the capture was unlawful, because the place was within the neutral
waters of the United States, the extent of which had been defined by
Congress in 1794 as one marine league from the coast (see p. 574). It
was contended that “coasts” included all the shoals or banks which,
in Florida, extended to a distance of twenty miles from the land, and
were therefore within territorial jurisdiction, and that the distance
of protection should be reckoned from the outermost shoal. The American
judge overruled the argument, because, although in a maritime sense
this interpretation of “coasts” might be correct, it was too vague
for juridical purposes, since the shoals vary, and there would be
no fixed rule by which the boundary could be ascertained; and that
the district courts would have to apply different rules at different
places, instead of the one marine league everywhere. A somewhat similar
question was argued in 1805 in the English Admiralty Court in the
case of an American ship, the _Anna_, captured by a British privateer
off the mouth of the Mississippi, at a point claimed to be within the
neutral waters of the United States--viz., 1½ mile from an island, and
“within view” of a fort, which was, however, five miles distant. A
question raised was whether certain small mud-islands, formed of earth
and drifted logs, and covered with reeds, where people occasionally
went to shoot wild-fowl, was United States territory from which the
marine league could be measured. It was argued that the islands had
not sufficient consistency to support the purposes of life, and were
sometimes scarcely distinguishable, and that since the distance
of neutral protection “is reckoned according to the efficacy of
protection, that is, within the range of firearms,” the land from which
the extension is measured should be a place from which this protection
could be in reality afforded. Lord Stowell, in deciding that they
were United States territory, stated that the right of dominion did
not depend upon the texture of the soil; and he quoted Bynkershoek’s
formula as the rule of law, saying that the distance “has usually been
recognised to be about three miles from the shore.” It may be said
here that in the earlier writings and decisions about the limit of
territorial waters, low-water mark is not specified, and in the case
of the _Twee Gebroeders_ (see p. 577) it is clear that sand-banks
uncovered at low-water were not regarded as entitled to an independent
zone, the distance being measured from _terra firma_.

[1181] _Fish Trades Gazette_, May 31st, 1902, p. 8; _ibid._, April 4th,
1903, p. 21.

[1182] “Les articles 2 et 3 de ce contrat stipulent que les pêcheurs
nationaux jouiront du droit exclusif de pêche dans le rayon de trois
milles géographiques de 60 au degré de latitude, à partir de la laisse
de basse mer, le long de toute l’étendue des côtes de leurs pays
respectifs, ainsi que des îles et des bancs qui en dépendent.” _Loi
relative à la pêche maritime dans les eaux territoriales. Exposé des
motifs._ Sess. 1890-91.

[1183] The Marquis of Lothian, Secretary for Scotland, in introducing
the Bill which became the Herring Fishery (Scotland) Act, 1889, said:
“With regard to the east coast there is no very great difficulty in
fixing the limits of territorial waters, because between Her Majesty’s
Government and what I may call the riparian powers of the North Sea
there is a Fisheries Convention; but on the west coast there is no
such convention, and therefore it has been thought desirable to attach
a schedule to this Bill in order to show exactly what are the waters
closed against trawlers apart altogether from the general international
rule as to the three-mile limit.” June 28th, 1889. Hansard, vol. 337,
p. 975.

[1184] 46 & 47 Vict., c. 22, s. 28.

[1185] 6 & 7 Vict., c. 79 (1843). The international regulations
agreed upon in virtue of the eleventh article of the convention were
to apply to “the seas lying between the coasts of Great Britain and
of France”; and differences of interpretation arose in this country
as to the extent of the seas coming under this denomination--_e.g._,
whether those on the west coast of Scotland were included. The power
given to the crown to suspend the operation of the Act on the Irish
coasts, and the obvious intention of the Act and articles, seemed to
the Royal Commissioners of 1863 to warrant the opinion that these
extra-territorial regulations applied to all the seas around the
British Isles (_Report, Royal Commission on Sea Fisheries_, i. p.
lxiii). On the other hand, it was contended that the words quoted
must be construed strictly, and included only those seas which were
situated geographically between the two countries. This difference of
opinion as to the interpretation of the phrase in question does not,
however, affect the validity of Article ix. of the convention, one of
the principal objects of which was to determine the limits of exclusive
fishery.

[1186] _Vide_ 46 & 47 Vict., c. 22, s. 24.

[1187] _Report from the Select Committee on Oyster Fisheries_, p. 1.
1876.

[1188] 19th, 22nd, and 23rd _Reports Fishery Board for Scotland_, Part
I. Corresponding particulars are not given in the English or Irish
fishery reports.

[1189] The preceding laws, however, left the territorial limits
indefinite, under the law of nations, or subject to any special
international agreement, as that of 12th February 1872, concerning
foreign fishermen at Iceland. (“1. Drive fremmede Nationers Fiskere
nogetsomhelst Fiskeri under Islands Kyster indenfor Søterritoriets
Grænse, saaledes som denne er bestemt ved den almindelige Folkeret,
eller ved særlige internationale Overenskomster for Islands Vedkommende
maatte blive fastsat, straffes de med Bøder fra 10 til 200 Rd.” C. F.
Drechsel, _Samling af Islandske Love, Forordninger, m.m. gældende for
Fiskeriet paa Søterritoriet ved Island_, 1892.) Later laws, both for
the Faröes and Iceland, merely referred to the “territorial sea.”

[1190] Convention between His Majesty the King of the United Kingdom
of Great Britain and Ireland and His Majesty the King of Denmark
for regulating the Fisheries of their respective Subjects outside
Territorial Waters in the Ocean surrounding the Faröe Islands and
Iceland. Art. ii. “The subjects of His Majesty the King of Denmark
shall enjoy the exclusive right of fishery within the distance of three
miles from low-water mark, along the whole extent of the coasts of the
said islands, as well as of the dependent islets, rocks, and banks.

“As regards bays, the distance of three miles shall be measured
from a straight line drawn across the bay, in the part nearest the
entrance, at the first point where the width does not exceed ten
miles.” The geographical limits for the application of the convention,
which embodies practically the same regulations as in the North Sea
Convention, are as follows: on the south, by a line commencing from
where the meridian of North Unst Lighthouse (Shetland Islands) meets
the parallel of 61st degree of north latitude to a point where the 9th
meridian of west longitude meets the parallel of 60° north latitude,
and from thence westward along that parallel to the meridian of 27°
west longitude; on the west, by the meridian of 27° west longitude; on
the north, by the parallel of 67° 30´ of north latitude; on the east,
by the meridian of the North Unst Lighthouse (which is about 50´ west
longitude). The area is thus very large, much larger than the North
Sea. The convention continues in force until the expiration of two
years from notice by either party for its termination, and a clause
is inserted providing for the adhesion of any other Government whose
subjects fish in the ocean surrounding the Faröe Islands and Iceland.

[1191] “Das positive deutsche Recht enthält keinerlei ausdrückliche
Bestimmung über die Grenze der Küstengewässer landwärts.... Auch
für die Grenze seewärts hat das deutsche Recht keine ausdrückliche
Bestimmung, und adoptiert in dieser Richtung lediglich die Regeln des
Völkerrechts.” Harburger, _Fifteenth Ann. Rep. Internat. Law Assoc._,
73. 1893.

[1192] Herstlet, _Commercial Treaties_, xiv. 1055. Perels, _Das
Internationale öffentlichs Seerecht der Gegenwart_, 38.

[1193] _Mittheilungen des deutschen Seefischerei-vereins_, Bd. xiii.
61. 1897.

[1194] “Vi ville have fastsat som Regel i alle de Tilfælde hvor
Spørgsmaal er om Bestemmelse af Vor Territorial-Hoiheds Græendse udi
Søen, at denne skal regnes indtil den sædvanlige Sø-Miils Afstand fra
den yderste øe eller Holme fra Landet, som ikke overskylles af Søen.”
_Rescripter Resolutioner_, &c., i. 626, 22 (25), Feb. 1812. A circular
of the Royal Danish Chancellory of 18th August 1810 made an exception
for the territorial waters near the fortress of Kronberg, on the Sound,
and of Glückstadt, on the Elbe, where the distance was to be computed
only up to the range of the guns of the fortress. Auber, _Annuaire de
l’Institut de Droit International_, xi. 146 (1894).

[1195] _Svensk Fiskeri Tidskrift 9e_ Årg., 78. Stockholm, 1900.
“Danmark räknar på grund af konvention samma [with Sweden] fyra mils
gräns mot oss, men däremot på grund af Nordsjötraktaten blott tre
mil gentemot de i denna deltagande makterna, t. ex. engelsmän och
tyskar.” Instruks for det ved Fiskerikontrollen ansatte Personale,
Landbrugsministeriet, den 20 Marts 1908, _Fiskeri-Beretning for Aaret_
1908-9.

[1196] Natzen, _Den Danske Statsforfatningsret_, i. 36. 1888.

[1197] Fiskerikonventionen mellem Danmark og Sverig, 14de July 1899.
_Fiskeri-Beretning for Finansaaret_, 1898-1899, Copenhagen, 1900. “Art.
I. I de til Kongerigerne Danmark og Sverig grænsende Farvande skal,
med de i Art. II. nævnte Undtagelser, det Omraade, hvor Fiskeriet
udelukkende er forbeholdt hvert Lands egne Undersaatter, udgøre en
Strækning af en geografisk Mil (1/15 Breddegrad) fra Kysten eller
yderste der udfor liggende Holme og Skær, som ikke til Stadighed
overskylles af Vandet,” &c. The definition in the Swedish is “en
geografisk mil (1/15 breddgrad) från kusten eller ytterst därutanför
liggande holmar och skär, som icke ständigt af vattnet öfversköljas.”
(_Svensk Fiskeri Tidskrift, 16e_ Årg., Häft 6, p. 189.) Article II.
makes the fishery in the Sound, including Kioge Bay, common to the
subjects of each state, except that on either side, _within a depth of
seven metres_ (four fathoms), subjects of the other country shall be
allowed to fish for herrings only, with nets; and mutual liberty of
herring-fishing with drift-nets is conceded in like fashion at certain
other specified places. Certain amendments were made to this agreement
in 1907, the chief one being the prohibition of trawling in the
Sound. _Fiskeri-Beretning for Finansaaret_, 1906-1907, p. 45. _Svensk
Författningssamling_, No. 79, År., 1907.

[1198] _Sixth Supplement to Section 44 of Customs Orders_, vol. vi.,
1886; _Ordinance of Home Department for the Regulation of the Fishery
Supervision on the Murman Coast_, 4th May 1887. See footnote, p. 657.

[1199] _Norsk Fiskeritidende_, 466, 1893: Revue Général de _Droit
International Public_, 1894, p. 440.

[1200] In July 1910, a British trawler, _Onward Ho_, while engaged
in fishing off the Kanin Peninsula, at a distance, according to the
skipper, of 40 miles from Russian Lapland, and admittedly much beyond
the three-mile limit, was arrested by a Russian cruiser and taken to
Archangel, on the charge of illegal fishing. The vessel was released
after representations had been made by the British Government, the
Russian authorities finding that it had been arrested outside the
boundary under the protection of the cruiser. The action was doubtless
taken in connection with a new law of 10th December 1909, establishing
a limit of 12 miles from the coast for customs purposes,--all vessels,
Russian or foreign, being held to be subject to the control of the
Russian authorities when within that distance. _Handelsberichten_, 12th
May 1910, p. 135.

[1201] “Art. 2. Sur la demande des prud’hommes des pêcheurs, de leurs
délégués et, à défaut, des syndics des gens de mer, certaines pêches
peuvent être temporairement interdités sur une étendue de mer au delà
de 3 milles du littoral, si cette mesure est commandée par l’intérêt
de la conservation des fonds ou de la pêche de poissons de passage.
L’arrêté d’interdiction est pris par le Préfet Maritime.”

[1202] M. de Chasseloup Lubat, in _Ann. di Agricoltura_, 50. 1891.

[1203] Law of 7th June 1832. Heffter, _Le Droit International de
l’Europe_, c. ii. s. 75.

[1204] “Loi relative à la pêche maritime dans les eaux territoriales,”
19th August 1891. A decree of 5th September 1892 regulated foreign
fishing-boats when within territorial waters.

[1205] Wet van 15 Juni 1883, _Staatsblad_, No. 73; Koninklijk Besluit
van 20 March 1884, _Staatsblad_, No. 40, putting in force the North
Sea Convention: “Art. 1. De bepalingen dezer overeenkomst, welke
ten doel heeft de politie der visscherij in de Noordzee buiten de
territoriale wateren te regelen, zijn toepasselijk op allen, die
tot de nationaliteit der Hooge contracteerende Partijen behooren.
2. De visschers van elken Staat zullen het uitsluitend recht van
visscherij genieten binnen een kring van drie mijlen, gerekend van de
laagwaterlijn, langs de geheele uitgestrektheid der kusten van elken
Staat en evenzeer langs de eilanden en banken, die daarmede zijn
verbonden,” &c. Wet van 7th December 1883, _Staatsblad_, No. 202; Wet
van 26th October 1889, _Staatsblad_, No. 135, “Tot vaststelling van
bepalingen tegen het visschen door opvarenden van vreemde vaartuigen
in de territoriale wateren van het Rijk”; the limits, as laid down in
the convention of 1882, are applied to all foreign fishing vessels.
There are special agreements with Belgium as to the fishings in the
Schelde. H. van der Hoeven, _Wetgeving betreffende de Zee- en de
Zalmvisscherijen_. Leiden, 1897.

[1206] Strisower, _Annuaire de l’Institut de Droit International_. 1894.

[1207] Verordnung der Ministerien des Handels und des Ackerbaues, im
Einvernehmen mit dem Ministerium des Innern, vom 5 December 1884,
betreffend die Seefischerei, s. 3.

[1208] Handels- und Schiffahrtsvertrag vom 27 Dec. 1878, zwischen
Oesterreich-Ungarn und Italien. Schlussprotokoll ad Art. xvii., xviii.;
Marchesetti, _La pesca lungo le coste orientali dell’ Adria_. Trieste,
1882.

[1209] Vorschriften über die See-Fischerei giltig in Oesterreich-Ungarn
seit 12 December 1884.

[1210] Legge sulla pesca del 4 marzo 1877, No. 3706 (Serie 2^a).

[1211] _Annali di Agricoltura_, 1891. Atti della commissione consultiva
per la pesca, pp. 32, 86.

[1212] Definizione del mare territoriale e ordine di vigilare sugli
armamenti alla pesca. _Ann. del Ministero di Agricoltura, Industria e
Commercio_, i. parte i. 96. Genoa, 1871.

[1213] Corsi, in _Fifteenth Ann. Rep. Assoc. for the Reform and
Codification of the Law of Nations_, 83.

[1214] No. 7, 409, 2nd Dec. 1869. Apostolidès, _La Pêche en Grèce_, 86.
Athens, 1888.

[1215] Dr Kishinouye, _in litt._

[1216] Civil Code, Articles 593, 611.

[1217] Reglamentendo la pesca y caza, _Boletin official_, 20th
September 1907.

[1218] Reglamento para las concesiones de pesca en el litoral
oceánico de la Provincia de Buenos Aires, 4th June 1909. “Art. 3^o.
Los concesionarios solo podrán emplear redes arrastradas por vapores
en una zona distante no menos de doce (12) millas, contadas desde
las líneas de las más bajas mareas. Art. 4^o. Dentro de la zona de
doce millas hasta la línea de las más bajas mareas, podrán usarse
redes arrastradas por veleros. Se declara libre el uso de las líneas,
palangres ó espineles, nasas y redes verticales de deriva. Art. 6^o.
Las personas ó empresas que quisieran usar artes especiales de pesca
distintos de los indicados, deberán solicitar permiso especial de la
División de Ganadería y obtener la autorización correspondiente. Art.
7^o. Las embarcaciones llevarán bandera nacional y sus tripulaciones
se compondrán de una parte de individuos de nacionalidad argentina,
de acuerdo con las leyes y reglamentos de cabotaje nacional.” I
am indebted to the courtesy of Mr R. M. Bartleman, the American
Consul-General at Buenos Aires, for a copy of these regulations.

[1219] Reuter’s telegrams from Buenos Aires, 21st March, 30th June
1908. _Scotsman_, 23rd March, 2nd July 1908. _La Prensa_, one of the
leading journals of Buenos Aires, is quoted as declaring it hard to
believe that the British Government has decided to raise a question of
such exceptional gravity, seeing the first effect of such action would
be to bring about a conflict to which there could be no conciliatory
or friendly solution, since the immediate reply, which would be final,
would be absolute rejection of the claim put forward--that is, that the
waters of the estuary outside the limits of three miles from the coasts
are non-territorial.

[1220] Award of the Tribunal of Arbitration, p. 23, “outside the
ordinary three-mile limit.” The President, Baron de Courcel, has since
explained that the tribunal “s’est borné à constater que les parties
étaient d’accord pour admettre que l’étendue de trois milles à partir
de la côte comme formant dans l’espèce qui lui était soumise, la limite
ordinaire des eaux territoriales.” M. de Courcel to M. Auber, _App.
Ann. de l’Institut de Droit Internat._ for 1894, p. 282. _Vide_ Hall,
_A Treatise on International Law_, 4th ed., p. 161.

[1221] For example, Leoni Levi, “No territorial sovereignty exists or
can be claimed beyond the three miles zone.” _Internat. Law_, 112.

[1222] Mr Seward, Secretary of State, to Mr Tassara, 6th December 1862.
The same to Mr Burnley, 16th September 1864. Wharton, _A Digest of the
International Law of the United States_, i. 105. American ships were
charged with pursuing Confederate vessels into British waters, and
the balls from the guns they fired had struck objects on shore. The
facts were used to show that the hostile acts had occurred within our
territorial jurisdiction. Hansard, vol. 173, p. 509; February 1864.

[1223] Secretary Fish to Sir E. Thornton, 22nd January 1875. “We have
understood and asserted that, pursuant to public law, no nation can
rightfully claim jurisdiction at sea beyond a marine league from the
coast.” _Loc. cit._

[1224] Torres-Campos, in _Fifteenth Ann. Rep. Assoc. for Reform and
Codification of the Law of Nations_, 93. Negrin, _Tratado de Derecho
internacional maritimo_, 1883.

[1225] _Negocios Externos. Documentos apresentados ás Cortes na Sessão
legislativa de 1879 pelo Ministro e Secretario d’Estado dos Negocios
Estrangeiros. Questão das Pescarias_, p. 258. Lisboa, 1879. The volume
contains a full discussion of the questions between the two Governments.

[1226] Tratado de navegación y comercio entre España y Portugal,
firmado en Madrid el dí 27 de Marzo de 1893. Apéndice Sexto. Reglamento
de policía costera y de pesca. Sec. 1. Disposiciones aplicables á
las aguas de cada país, “Art. 1^o. La policía costera y de pesca en
las aguas jurisdiccionales de España y de Portugal, quedará sujeta
á las disposiciones siguientes. Art. 2^o. Los límites dentro de los
cuales el derecho general de pesca, queda reservado exclusivamente á
los pescadores sujetos á las jurisdicciones respectivas de las dos
naciones, se fijan en seis millas, contadas por fuera de la linea
de bajamar de las mayores mareas. Para las bahías cuya abertura no
exceda de diez millas, las seis millas se contáran á partir de una
linea recta tirada de una punta á la otra. Las millas mencionadas son
millas geográficas de 60 al grado de latitud. Art. 3°. Cada una de los
Estados tendrá el derecho de reglamentar el ejercicio de la pesca en
sus respectivas costas marítimas hasta una distancia de seis millas
de las mismas, límite dentro del cual solamente será permitido á los
Pescadores nacionales ejercer esta industria.” F. López y Medina,
_Colección de Tratados Internacionales, Ordenanzas y Reglamentos de
Pesca_, pp. 44, 49 (Madrid, 1906). I am indebted to Sir Reginald
MacLeod, K.C.B., late Under-Secretary for Scotland, for this volume.

[1227] _Revista de Pesca Marítima_, ix. 97 (1893); x. 209 (1894).
Various regulations have been lately made with respect to trawling
beyond the six-mile limit at certain parts of the Spanish coast (_vide_
López y Medina, _Primer Apéndice a la Colección de Tratados, &c._,
pp. 34-45. Madrid, 1907), and also on the coast of Portugal (_vide
Collecção de Leis e Disposições diversas com relação á Pesca e Serviço
maritimo dos Portos_, pp. 28, 54, 276, 535. Lisboa, 1907). In no other
countries, it may be added, have more regulations been made restricting
all kinds of trawling than in Spain and Portugal.

[1228] Prof. A. F. Marion, _in litt._

[1229] The National Sea Fisheries Protection Association:
_Twenty-fourth Ann. Rep. of the Committee of Management_, 1905, p. 7.
“Spanish and Portuguese Territorial Limits. Communications were made to
the Foreign Office on the subject of Spanish and Portuguese Territorial
Limits, and, in reply, the Association was informed that His Majesty’s
Government did not recognise any claims of the Spanish or Portuguese
Governments to exercise jurisdiction over British vessels beyond the
three-mile limit.”

[1230] _Fish Trades Gazette_, 10th Dec. 1904, p. 23. London. _Boletin
Oficial de la Liga Marítima Española_; _Vida Marítima, Revista de
Navegación y Comercio, Pesquerias, &c._ Madrid. In 1905 no less than
forty-five English trawlers, as well as four German trawlers and one
Spanish, landed fish at Lisbon and Oporto, which had been caught in
neighbouring waters and as far as Morocco, the value being 332,220
milreis, or about £74,750. _Estatistica das Pescas Maritimas, Anno de
1905._ Lisboa, 1907.

[1231] A summary of this new law, which received the sanction of the
King of Portugal on 26th October 1909, is given in _Mitteilungen
des Deutschen Seefischerei-Vereins_ for February 1910 (Bd. xxvi.
No. 2), from _Diario do Governo_, No. 247, viz.: Portugiesisches
Gesetz betreffend das Verbot für fremde Fahrzeuge zum Fischen
in den territorialen Gewässern. “Art. 1. In den portugiesischen
Territorialgewässern innerhalb einer Zone von 3 Seemeilen, von der
Linie des Niedrigstwasserstandes an gerechnet, ist fremden Fahrzeugen
das Fischen verboten. In den Buchten ist die Zone von 3 Seemeilen
gemäss den Grundsätsen des internationalen Rechts zu berechnen.”

[1232] Tratado de comercio con el emperador de Marruecos, 20th November
1861, _Revista de Pesca Marítima_, xiv. 149, 1898. López y Medina, _op
cit._, 72.

[1233] This is also the interpretation made by Mr Arctander (_Norsk
Fiskeritidende_, Tolvte Aargang, 1893, p. 464) of the wording of the
ordinances, that the line must be drawn through points that lie above
the water at high tide (_flod_), the rule thus differing from the usual
one. On the other hand, the Norwegian Department of the Interior, in
replying to certain queries from the International Law Association,
stated, with reference to the royal ordinance of 1812 (see p. 653),
that “it is not expressly said whether the distance is to be reckoned
at half-tide, high-water, or low-water”; and they did not suggest which
ought to be adopted. _Rep., Seventeenth Conference_, 1895, p. 301. The
Danish terms agree with the Swedish. See p. 655.

[1234] Professor Auber thus states the practice in Norway: “Nous avons
regardé comme tout naturel que, l’île n’étant pas située plus qu’à,
deux anciens milles marins (deux quinzièmes de degré) de la terre
ferme, l’étendue de la mer territoriale doive être compter jusqu’à un
mille au delà de l’île, et ainsi de suite d’île en île” (_Annuaire de
l’Institut de Droit International_ for 1889, p. 139). M. Kleen, on
the other hand, speaks of the outermost isle being included “sous la
condition que cette île ou ce brisant ne soit pas situé plus loin de
la côte qu’une lieu géographique” (_Fifteenth Ann. Rep., Internat.
Law Association_, p. 20). The Norwegian law refers to “the island or
islet farthest from the mainland, and not covered by the sea,” while M.
Kleen says: “Comme brisant à compter sera alors considéré chacun qui
n’est pas _continuellement_ submergé par la mer ... pourvu qu’il soit à
découvert périodiquement et que la mer ne le couvre pas _toujours_.”

[1235] _Kongelig Resolution_ af 16 Oktober 1869: “At en ret linie,
trukket i en geografisk mils afstand fra og parallelt med en ret linie
mellem Storholmen og Svinö, bliver at betragte som grændsen for den
havstrækning udenfor den tilsvarende kyst af Söndmöres fogderi, paa
hvilken fiskeriet er landets egen befolkning udelukkende forbeholdt.”
_Kongelig Resolution_ af 9 September 1889: “En linie, trukket i en
geografisk mils afstand fra og parallelt med en linie fra Storholmen
over Skraapen (udenfor Harö), Gravskjær (udenfor Ona) og Kalven (det
yderste af Orskjærene) til yderste Jevleholme udenfor Grip, bliver
at betragte som grændsen for den havstækning udenfor den tilsvarende
kyst af Romsdal amt, paa hvilken fiskeriet er landets egen befolkning
udelukkende forbeholdt.”

[1236] From about 62° 20´ N. lat. and 5° 13´ E. long, to about 63° 13´
N. lat. and 7° 35´ E. long.

[1237] Provisorisk Anordnung angaaende vaartorskefiskeriet ved
Söndmöres kyster, 3 Jan. 1870; Lov angaaende vaartorskefiskeriet ved
Söndmöres kyster, 6 June 1878; Lov om vaartorskefiskeriet ved Romsdals
amts kyst og fjorde, 1 July 1907.

[1238] It is referred to in A.D. 888. The fishery is prosecuted from
about the middle of January to the end of April; in 1908 over 20,000
fishermen, drawn from all the neighbouring parts of the coast, took
part in it. _Aarsberetning vedkommende Norges Fiskerier for 1908_:
4^{de} Hefte. _Lofotfiskeriet_, 1908.

[1239] “Le droit exclusif de la pêche dans le golfe du Vestfjord,
consacré par un usage plusieurs fois seculaire, n’a jusqu’ici été
l’objet d’aucune disposition legislative.” Letter of the Minister for
Foreign Affairs, 6th August 1908. “The Vestfjord through centuries
has been considered as Norwegian territorial waters, but no decree
or decision as to the special frontier or limit between this fjord
and the open sea has been issued up to the present.” Letter from his
Excellency M. J. Irgens, the Norwegian Minister, 13th June 1908. Having
some difficulty in getting authentic copies of the various Norwegian
decrees, I applied to Dr Fridtjof Nansen, then Norwegian Minister in
London, and later received full information from three sources--from
Mons. J. Irgens, Dr Nansen’s successor, and now the Foreign Minister of
Norway; by the courtesy of Sir Reginald MacLeod; and through Dr Baty,
the Secretary to the International Law Association.

[1240] 5th January 1881; 19th June 1880; 14th June 1890; 17th December
1896; 7th January 1904. In the law of 17th December 1896 the limits
are mentioned as follows: “Paa Havstrækningen ved Tromsø Amts og
Finmarkens Amts Kyst i en Afstand af indtil én geografisk Mil fra
Kysten, regnet fra den yderste Ø eller Holme, som ikke overskylles
af Havet, skal det indtil videre være forbudt at jage, anskyde eller
dræbe Hval i Tidsrummet fra 1ste Januar til Udgangen af Mai. For
Varangerfjordens Vedkommende i Finmarkens Amt bliver Grændsen for den
fredede Strækning udad mod Havet en ret Linie trukket fra Kibergnæs
til Grændse, Jakobselv, dog saaledes, at det ogsaa udenfor denne Linie
skal være forbudt i den ovenanførte Tid at jage, anskyde eller dræbe
Hval i kortere Afstand fra Kysten ved Kibergnæs end én geografisk Mil.”
See also Auber, Annuaire, xi. 136, 1892; Kleen, _Fifteenth Ann. Rep.
Internat. Law Assoc._, 17; Aschehoug, Norges nuvarende Retsforfatning,
90; Kleen, _Neutralitetens Lagar_, 1889; _Norsk Fiskeritidende_, 1893,
461.

[1241] “Räknadt från kusten eller längst ut från denna liggande ö
eller skär, som ej ständigt af hafvet öfversköljes.” _Svensk Fiskeri
Tidskrift_, 9e Årg., p. 78.

[1242] Auber, _loc. cit._

[1243] Kleen, _op. cit._; Egerström, _Sveriges Landtbruksförvaltning_,
1896, p. 37. It is the same in Finland,--J. A. Sandman, _Uebersicht
ueber die Seefischerei Finnlands_, p. 145, 1906.

[1244] Minister of the Interior to Minister of Foreign Affairs, 28th
October 1868 ... “Cela s’explique: ces pêches, ayant lieu dans un golfe
considéré comme faisant partie de la mer territoriale de la Norvège,
out été regardées comme la propriété exclusive du pays. Cela ne peut
certainement pas cadrer avec les principes du droit international,
qu’on puisse tout à coup amener des changements dans une situation
légale qui repose sur une reconnaissance tacite de plusieurs siècles.”

[1245] Letter of the Minister for Foreign Affairs, 7th November 1868.
“Aussi il est défendu aux sujets étrangers de faire la pêche dans ce
golfe, et cette défense s’applique également à la mer voisine et à
l’embouchure jusqu’à une distance d’une lieue marine à partir du point
le plus méridional du group d’îlots dit ‘Röst.’”

[1246] Minister of the Interior to Minister for Foreign Affairs, 28th
January 1870.

[1247] 20th August 1886. “Art. 7 ... Les deux parties contractantes
conviennent de considérer comme limites des mers territoriales de
leur côtes respectives pour tout ce qui se rapporte à l’application
des règlements de douane et aux mesures prises pour empêcher la
contrebande, une distance de trois lieues marines comptées depuis de la
ligne de marée basse.” A similar customs treaty, it may be mentioned,
was concluded between Mexico and Great Britain on 27th November 1888,
in which three marine leagues was stipulated by each country “as a
limit of their territorial waters on their respective coasts,” strictly
for customs purposes. “The two Contracting Parties agree to consider,
as a limit of their territorial waters on their respective coasts, the
distance of three marine leagues reckoned from the line of low-water
mark. Nevertheless, this stipulation shall have no effect, excepting in
what may relate to the observance and application of the Custom-house
Regulations and the measures for preventing smuggling, and cannot be
extended to other questions of civil and criminal jurisdiction or of
international maritime law” (Hertslett, _Treaties_). It is of interest
to note, however, that the ordinary limit adhered to by the British
Government so rigorously in connection with fishery rights, may be
legitimately extended by treaty in order to protect the revenue.

[1248] Auber, _op. cit._, 141.

[1249] Foreigners are forbidden to carry on fishing within the
territorial waters, the most recent law relative to this subject
being that of 2nd June 1906. Instructions to the commanders of the
Norwegian cruisers, dated 22nd December 1906, with reference thereto,
describe the limit as an “ordinary sea mile” (measured as described),
the equivalent distance being stated at 7529 metres, which is equal to
4·065 mean nautical miles, or 4·68 English statute miles. A law of 1908
prohibits trawl-fishing within the territorial waters.

[1250] _Le Droit International_, i. 349; _Dict. de Droit
International_, 501. Bluntschli endeavours to place the doctrine on a
philosophical but absurd basis, by stating that the sovereignty over
the sea extended originally only to a stone’s-throw from the coast,
later to an arrow-shot, and then according to the range of firearms.

[1251] _Das Moderne Völkerrecht_, s. 307-9.

[1252] _Commentaries upon International Law_, I. viii. cxcviii.

[1253] _International Law_, 135.

[1254] _Commentaries on Criminal Law_, iv. c. 5, s. 74.

[1255] _Introduction to the Study of International Law_, s. 56.

[1256] Wheaton’s _International Law_, 8th ed., p. 359.

[1257] _The Law of Nations in Time of Peace_, s. 172.

[1258] _Trattato di Diritto Internazionale Pubblico_, ii. c. 3, pp.
65-67.

[1259] In Fiore, _Nouveau Droit International Public_, note, p. 372.

[1260] _Das Internationale Öffentliche Seerecht der Gegenwart_, p. 21
_et seq._

[1261] _International Law_, 399.

[1262] _Droit Commercial Maritime_, 10.

[1263] _La Mer Territoriale_, 36.

[1264] _Neutralitetens Lagar_, i. s. 160; _Annuaire de l’Institut de
Droit International_, xii. 140.

[1265] _Norges Offentlige Ret_, 79-81; _Annuaire_, xi. 141.

[1266] _Revue générale de Droit International Public_, No. 1.

[1267] _A Treatise on International Law_, 4th edition, 1895, p. 160.

[1268] _International Law_, i. 242 (1905).

[1269] The Committee of the Association was composed of ten
members--viz., Sir Travers Twiss, President; Sir George Baden-Powell;
Hon. D. Dudley Field, New York; Dr F. Sieveking, President of the
Hanseatic High Court of Appeal, Hamburg; Mr E. H. Schweigaard,
Christiania; Rear-Admiral P. H. Colomb; E. Edouard Clunet, Paris; Dr
E. N. Rahusen, Amsterdam; Mr T. H. Haynes; and Mr (now Sir) Thomas
Barclay, Paris, who was Secretary. The Committee of the Institut
comprised twenty-four members, including Sir Travers Twiss; Professor
Westlake; Professor Lorimer; M. Desjardins, Advocate-General of the
Court of Cassation; Feraud-Giraud, Judge of the French Court of
Cassation; Harburger, Judge of the Court of First Instance at Munich;
Hartmann, Privy Councillor, Hanover; Perels, Director of the German
Admiralty; Marquis d’Olivart, Ex-Professor of International Law,
Madrid; Edouard Rolin, Editor of the _Revue de Droit International_;
&c. M. Renault, the Paris Professor of International Law, was appointed
“reporter” to the Committee, but this position was soon occupied by Sir
Thomas Barclay.

[1270] Most of the English members who expressed their opinion, as Sir
Travers Twiss, Professor Holland, and Mr Moore, preferred to retain the
limit at three miles; Professor Westlake favoured five miles.

[1271] _Report from the Select Committee on Sea Fisheries_, 1893;
_Seventeenth Rep., International Law Assoc._, p. 103, 1896; _Annuaire
de l’Institut de Droit International_, xiii.

[1272] “Il en est ainsi pour les _firths_ écossais.... Toutes ces baies
sont considérées comme étant sous la domination exclusive de l’État
riverain.” _Annuaire_, 23.

[1273] _Annuaire de l’Institut de Droit International_, x., xi., xii.,
xiii. _Reports, International Law Association_, xv., xvi., xvii.

[1274] 49 Vict., c. 95.

[1275] 38 Vict., c. 18; Order in Council, 28th November 1876.

[1276] _Award of the Tribunal of Arbitration_, p. 23. Declarations made
by the Tribunal of Arbitration, 1893. As the Behring Sea case has been
often referred to in recent controversies about the right of fishing,
as having affirmed the three-mile limit as the true international
boundary of the territorial sea, the facts may be briefly recalled.
In 1867 the United States purchased from Russia the territory of
Alaska with its dependent islands, &c., and an American company,
very powerful financially and politically, was formed in 1870, which
obtained a lease of the Pribilov Islands in order to engage in the
fur-seal industry. Under the Act of Congress of 1870 which enabled this
to be done, it was made unlawful to kill any seals upon the islands,
“or in the waters adjacent thereto,” except during certain specified
months. Sealing vessels, both from the United States and from British
Columbia, began to frequent Behring Sea and the waters adjacent to
the islands; their competition impaired the practical monopoly of
the Company in the markets for seal-skins; and in 1886 three British
vessels were seized by American revenue cruisers at distances of 70,
75, and 115 miles from the land, and the masters and mates were fined
and imprisoned for illegal sealing. Up to 1890 other eleven British
sealers were similarly seized and dealt with for fishing at distances
between 15 and 96 miles from land, and five others were ordered out
of Behring Sea. In the negotiations which followed, the American
Government first pled a virtual _mare clausum_ for the whole of Behring
Sea; then that they had jurisdiction up to 100 miles from land; and
lastly, that they had special property in and right of protection over
the fur-seals in Behring Sea and frequenting the islands for breeding
purposes. The Tribunal of Arbitration decided that they had not this
right of protection or property “when such seals are found outside the
ordinary three-mile limit.” Then the Tribunal, in terms of the treaty
appointing them, prescribed the regulations above referred to, leaving
to Great Britain the honours of the contest, and to the United States
the advantage. The true lesson to be derived from this chapter of
international diplomacy, is not that the high tribunal reaffirmed the
three-mile limit as the legal boundary of the territorial sea, which
they did not do (see letter from Baron de Courcel, the President, p.
664), but that that limit may be set aside and a much wider boundary
fixed (in this instance 60 miles) if the protection and preservation
of a marine fishery require it. It may be added that of late years
pelagic sealing by Japanese has greatly increased in Behring Sea, and
since the regulations apply only to British and American subjects, the
Japanese carry on their operations up to the ordinary three-mile limit
around the Pribilov Islands, and sometimes within it, there having
been several encounters with the American patrol-boats involving loss
of life, and heavy fines have been inflicted on offenders. In the
summer of 1908 a fleet of thirty Japanese schooners, some with sixteen
boats, were thus engaged, and according to the Government agent, they
effectually blocked the escape of the seals from the islands. The agent
says that in the last ten years the seal herds have diminished almost
three-fourths, and if the slaughter by the Japanese is not put a stop
to, complete destruction of the industry will follow. Thus, while the
British are compelled to keep sixty miles off the islands, and can only
kill the seals with spears, the Japanese operate up to three miles from
shore, and can use firearms or any other method. It is stated that some
of the British Columbia sealers are endeavouring to nationalise their
vessels in Japan, so that they may be able to fish under the Japanese
flag. In April 1910, when the lease of the Company expired, the United
States Government did not renew it, but took the seals under their
own protection, and an Act was passed prohibiting the killing of the
fur-seal unless authorised by the Secretary of Commerce and Labour.

[1277] _Parl. Papers, Russia_, No. 1 (1895). Correspondence respecting
the Agreement with Russia relative to the Seal Fishery in the North
Pacific. Seal Fishery (North Pacific) Act, 1893, 56 Vict., c. 23; Order
in Council, 4th July 1893.

[1278] The Western Australian Pearl and Bêche-de-mer Fishery
(Extra-Territorial) Act, 1889.

[1279] An Act for the further Encouragement and better Regulation of
the British White Herring Fishery, 48 Geo. III., c. 110, s. 60, 46.
Section 60: “And whereas it may be useful to provide a jurisdiction
for preserving order and settling disputes among persons carrying on
the fishery for herrings on the coast and in the lakes of Scotland;
be it therefore enacted, That the jurisdiction of the sheriffs and
stewarts depute of Scotland, and their substitutes, shall be extended
over all persons engaged in catching, curing, and dealing in fish
in all the lochs, bays, and arms of the sea within their respective
counties and stewartries, and also within ten miles of the coasts of
their said counties and stewartries, and that in as full and ample a
manner as the same is exercised over the inhabitants of these counties
and stewartries; and if any loch, bay, or arm of the sea shall adjoin
to two or more counties or stewartries, or any part of the sea shall be
within ten miles of the coasts of two or more counties or stewartries,
the sheriffs and stewarts of the said counties shall have and exercise
a concurrent jurisdiction over such persons as aforesaid, in any such
loch, bay, or arm of the sea which shall be in or opposite to their
respective counties and stewartries, or any part of the sea within the
aforesaid distance of the coast thereof.”

[1280] _Report of Commission on Sea Fisheries_, 1863, p. lxvi.

[1281] Trawling, and, in particular, steam-trawling, is practically
unknown in America; but in recent years French steam-trawlers have
begun to frequent the Newfoundland banks.

[1282] _Annual Reports_, Fishery Board for Scotland; _Journal of the
Marine Biological Association, &c._

[1283] For the earlier periods the statistics are incomplete. In 1863
the number of sailing trawlers was 955, of which 650 to 700 fished in
the North Sea, 530 belonging to Ramsgate, Yarmouth, Grimsby, and Hull;
in 1883 the aggregate was estimated at 3000, some being large vessels
of ninety tons; in 1889 there were 230 steamers and 2323 smacks; in
1899 the steamers numbered 1186 and the smacks 1637.

[1284] Garstang, The Impoverishment of the Sea, _Journal Marine Biol.
Assoc._, vol. vii. p. 47, 1900.

[1285] Return of the Number of Steam Trawlers registered at Ports in
the States of Western Europe in the Year 1907, _Parl. Papers_, Cd.
4236, 1908.

[1286] _Report of the Commissioners appointed to inquire into the Sea
Fisheries of the United Kingdom_, vol. i., 1866. The late Professor
Huxley and Mr Shaw Lefevre (now Lord Eversley) were two of the
commissioners.

[1287] _Report on the Sea Fisheries of England and Wales_, 1879
(C.--2449). The commissioners were Mr Frank Buckland and Mr (afterwards
Sir) Spencer Walpole.

[1288] _Report of the Commissioners on Trawl-Net and Beam-Trawl
Fishing_, 1885 (C.--4328).

[1289] “That taking into consideration that the question of the
destruction of immature fish is one of international importance, it
is, in the opinion of this meeting, imperative in the public interest
that an International Conference be held to consider the desirability
of recommending legislation upon the subject; and this meeting of
practical fishermen further requests of Her Majesty’s Government to
take immediate steps to bring about such Conference at the earliest
possible date.” _Fisheries Exhibition Literature_, vol. iv. pp. 346,
355.

[1290] Conference of Representatives of the Trawl-Fishing Industry,
held at the Inns of Court Hotel, London, 13th November, 1888. “1.
That we find a large and distressing diminution in the North Sea
of soles, turbot, plaice, and all flat fish, and view with alarm
the future, unless some steps are immediately taken to prohibit the
catching of immature fish.” 2. “That the Conference petition Her
Majesty’s Government, urging them to enter into negotiations with all
Continental Governments to establish an international law to prohibit
the wilful catching of immature fish, and to make it unlawful to offer
such immature fish for sale.” 3. “That copies of the resolutions be
forwarded to the President of the Board of Trade asking for immediate
action, and to the President of the National Sea Fisheries Protection
Association, asking that Association to undertake the responsibility of
a measure for legislation, and to do all they can for the protection
of immature fish in and around the coasts of the North Sea and other
coasts of the United Kingdom upon which breeding-grounds exist.”

[1291] Conference of the Trawl-Fishing Industry of the East Coast
Ports, held at Hull, 30th April 1890. 1. “That this Conference of the
Trawl-Fishing Industry of the East Coast, consisting of delegates from
Hull, Grimsby, Yarmouth, Lowestoft, Scarboro’, and Boston, having
realised the enormous loss which the trade has sustained year by
year through the wholesale capture and destruction of immature and
inedible fish, hereby resolves that the time has come when a strong
and united effort should be made to put a stop to this growing evil;
and as a preliminary step in this direction, it is agreed by the whole
of the delegates here assembled, for themselves individually and the
Companies, Corporations, Fleets, and Associations they represent, to
abstain during the coming summer from fishing on the grounds where
immature fish are generally caught in great abundance, such grounds
being specified in the next Resolution.” 2. “That the Fishing Grounds
or Nurseries where experience has found immature fish to be most
prolific, and which are referred to in the foregoing Resolution, shall
be defined as follows: That part of the North Sea the Eastern Boundary
of which is the German and Danish Coasts; the Western Boundary,
Longitude 7 deg. 30 min.; the Northern Boundary, Latitude 56 deg.;
the Southern Boundary, 53 deg. 50 min.” The third resolution defined
immature lemon soles, soles, turbot, brill, and plaice; and the fourth
expressed the opinion that it was “highly necessary for the future
wellbeing of the trade, and for the preservation of an important
food-supply, that Parliament should be asked to impose restrictions
upon the sale and purchase of immature fish”; and the delegates
were instructed to press for legislative interference, national and
international.

[1292] International Conference of Representatives of Maritime Powers
convened under the auspices of the National Sea Fisheries Protection
Association, to discuss the Question of Remedial Measures necessary to
be taken for the Preservation and Development of the Fisheries in the
Extra-territorial Waters of Europe, 1890. _Minutes of Proceedings._
The Conference passed a resolution that an official international
conference of European maritime powers should be held with the view
of concluding a convention for the preservation of undersized fish;
and another, proposed by Dr P. P. C. Hoek, the delegate for the
Netherlands, that before such a conference met, “the different nations
interested in the sea fisheries of European waters should collect,
with as little delay as possible, sufficient information, scientific
as well as statistical, with regard to the damage done by the capture
of undersized fish by their fishermen.” The author, who was present,
conscious of the advantages of international co-operation, if the
programme and conditions were appropriate, proposed that Dr Hoek’s
resolution “should be modified in the way of recommending that a joint
scheme of investigation might be drawn up by the countries concerned”;
and on the motion of Captain C. F. Drechsel, the delegate for Denmark,
who approved of it, the delegates adjourned to consider this proposal.
The result, however, was merely the tabling of a resolution, which
was adopted, “That the National Sea Fisheries Protection Association
be requested to formulate a set of questions with a view to obtaining
scientific and statistical information in relation to undersized fish,
and forward it to each delegate, in order that he may submit it to his
Government for adoption”--with what result does not appear. _Ibid._,
pp. 21, 34, 36, 37.

[1293] “Your Committee are sensible of the difficulties of making
international regulations, but are nevertheless of opinion that the
best method for effectively governing the operations of the various
classes of fishermen, and, at the same time, for securing, so far as it
may be found possible, the proper protection of spawning and immature
fish, would be to throw the responsibility of these duties, so far as
the waters immediately adjacent to the various countries are concerned,
on those various countries; that, for the effective realisation of this
object, the present territorial limit of three miles is insufficient,
and that, for fishery purposes alone, this limit should be extended,
provided such extension can be effected upon an international basis,
and with due regard to the rights and interests of all nations. Your
Committee would earnestly recommend that a proposition on these lines
should be submitted to an international conference of the Powers who
border on the North Sea.” _Report from the Select Committee on Sea
Fisheries_, 377, 1893. The Chairman of the Committee, which consisted
of fourteen members, was Mr Marjoribanks (the late Lord Tweedmouth);
among the others were Sir Albert Rollit, Mr Buchanan, and Mr (now Lord)
Heneage. The report was presented to the House of Commons and ordered
to be printed on 17th August 1893.

[1294] _Special Report and Report from the Select Committee on the
Sea Fisheries Bill_, 1900 (287): “Your Committee think that it is
proved beyond doubt that there is a very serious diminution of the
supply of certain kinds of flat-fish, particularly in the North Sea.
Of late years the total quantity of such fish caught has remained
nearly stationary. This fact, when taken along with the enormously
increased catching power and the vastly larger area of sea subjected
to fishing operations, seems to show that the ancient fishing-grounds
are much depleted. The whole of the local evidence, differing in many
other respects, is practically unanimous as to this point. It seems
clear that the evil is a growing one, and that in default of a remedy
the consequences to the fishing industry in the diminished supply of
flat-fish will at no very distant future be disastrous.” The late Mr
(afterwards Lord) Ritchie, President of the Board of Trade, Mr Graham
Murray (now Lord Dunedin), and Captain Sinclair, now Lord Pentland,
Secretary for Scotland, were members of the Committee.

[1295] “Your Committee feel that the subject of the diminution of the
fish supply is a very pressing one, and that the situation is going
from bad to worse. In their view, no effort ought to be spared (1st)
to arrange for international treatment of the subject generally,
and especially for regulation of the North Sea area; and (2nd) to
provide for the adequate equipment of the Government Departments in
charge of the subject, so that they may effectively pursue scientific
investigation and ascertain with sufficiency and precision what has
been done, either in the way of scientific research or in the matter of
practical legislation, by other inquirers and by other countries, with
the view of determining whether any, and if so what, legislation may be
desirable to effect the objects of the Bill.” _Ibid._, iv.

[1296] _E.g._, “That this conference regards as conclusive the evidence
of a widespread diminution of the supply of food fishes in the North
Sea and adjacent grounds, and is of opinion that the only practicable
remedy is the prevention of landing and sale of immature and undersized
fish.” Nat. Sea Fisheries Protection Ass., 1902.

[1297] _Report from, the Select Committee of the House of Lords on
the Sea Fisheries Bill (H.L.)_, 1904 (36). The Earl of Onslow, Lord
Tweedmouth, and Lord Heneage were members of this Committee.

[1298] _Op. cit._

[1299] Thus from the year 1903 (when these statistics begin) to 1906
the number of tons of bottom fishes landed on the East Coast of England
by first-, second-, and third-class fishing vessels, from the North Sea
and from beyond the North Sea, was as follows:--

1903. 1904. 1905. 1906.

From North Sea 260,313 230,975 207,440 217,567
From beyond the North Sea 67,625 78,216 93,395 129,697

[Illustration:

Fig. 28.--_Chart showing the Fishing-grounds frequented by British
trawlers. Depths under 100 metres represented in black; those from 100
to 200 metres in shading._

From Report of the Board of Agriculture and Fisheries for 1906.]

The particulars for all coasts are only given for 1906, and they show
that almost half of the total supply of bottom fishes in England and
Wales come from grounds outwith the North Sea. The figures are: from
North Sea, 217,571 tons; from beyond the North Sea, 203,863 tons.
Captain Walter S. Masterman, of the Board of Agriculture and Fisheries,
in a valuable report on his research work in the North Sea, states that
while the total quantity of bottom fishes taken within the North Sea by
steam-trawlers and landed on the East Coast of England has decreased
in the four years, 1903-1906, by 39,650 tons, or nearly 17 per cent,
the decrease in flat fish has amounted to 23,590 tons, or nearly 42 per
cent; and that “the decrease has been continuous from year to year,
especially in the case of plaice.” _Report on the Research Work of the
Board of Agriculture and Fisheries in relation to the Plaice Fisheries
of the North Sea_, 1908 (Cd. 4227).

[1300] A leading representative of the trawling industry, Mr G. L.
Alward, thus described the process to the Committee of the Lords in
1904. The diminution, he said, was from over-fishing, “first of all
in our original old fishing-grounds. We denuded those, and found less
year by year as time went on. We then discovered new grounds, with,
in process of time, the same result. In going back originally, say to
about 1830 to about 1890, we found, at ground after ground, after being
fished for a few years, the same results; the fish became scarcer and
scarcer.” _Report_, p. 78.

[1301] The quantity brought to England from Iceland and Faröe in 1907
was nearly 117,000 tons, or nearly 26 per cent of the total quantity of
bottom fishes landed. _Board of Agriculture and Fisheries Annual Report
on Sea Fisheries for 1907_. Schmidt, _Fiskeriundersøgelser ved Island
og Færøerne i Sommeren_, 1903, p. 132.

[1302] A sidelight is thrown upon the risks as well as the enterprise
of their labours by the fact that in 1908 a trawler’s crew, on the
one hand, fishing on the coast of Africa, fell into the hands of the
Moors; while another, whose vessel was wrecked near the White Sea, were
saved from starvation by the kindness of Russian Laplanders, who killed
reindeer for their sustenance.

[1303] Trawlers, on discovering new and productive grounds, invariably
select out the fish that are most remunerative and throw the rest back
into the sea. “Hundreds of thousands of tons” of immature fish are
said to have been destroyed in this way in the North Sea, and what has
happened at Iceland with regard to mature fish is thus described in a
letter from one trawler to another, which was read by the recipient to
the Parliamentary Committee in 1893: “Dear Manton, ... At present the
trawlers who are running Iceland are throwing thousands of tons of good
mature fish away, which, if some scheme of storage were got up, the
fish sorted, and bought for food, would supply thousands in the year.
I have been to Iceland, and we have to throw away hundreds of tons of
good mature fish, such as haddock, supposed to be too large, and great
quantities of cod, ling, and other fish. The fact is, the ground, which
is valuable for fishing, is completely rotten with the refuse from the
trawlers. We have to haul every two hours, and we have to carry extra
hands to get rid of the fish and get the bit below we choose to save.
The ground is fairly poisoned, and the plaice-fishing not so brisk,
only in odd places; whereas before it was more general where there is
any trawling ground” (_Report cit._, p. 248). The grounds had only
been recently opened up when this was written. It is different to-day,
when 85 per cent of the fish brought back from Iceland are round fish,
chiefly haddocks and cod (_Ann. Rep. Sea Fisheries for 1906_, App., p.
15). It used to be the same in the North Sea, only prime fish being
taken, and haddocks, &c., thrown away.

[1304] _Vida Marítima, Órgano de la Liga Marítima Española_, 1904,
1905; _Boletin oficial_.

[1305] Sea Fisheries Regulation Act, 1888, 51 & 52 Vict., cap. 54.
Section 1 is as follows: “1.--(1) The Board of Trade may from time to
time on the application of a county council or borough council, by
order, (_a_) create a sea fisheries district comprising _any part of
the sea within which Her Majesty’s subjects have by international law
the exclusive right of fishing_, either with or without any part of the
adjoining coast of England and Wales; and (_b_) define the limits of
the district,” &c. _Sea Fisheries (England and Wales), Annual Reports
of the Inspectors_; _Board of Agriculture and Fisheries, Annual Reports
of Proceedings under Acts relating to Sea Fisheries_. An excellent
chart, showing the regulations with respect to trawling around the
English coast, is published in the _Report from the Select Committee of
the House of Lords on the Sea Fisheries Bill_, 1904.

[1306] _Department of Agriculture and Technical Instruction for
Ireland: Report on the Sea and Inland Fisheries for 1907._ Part I.,
General Report, pp. 56-62.

[1307] _Report on the Sea and Inland Fisheries of Ireland for 1904_, p.
xxv. _Manual of Fisheries (Ireland) Acts._ Section 3 (subsection 1) of
the _Steam Trawling (Ireland) Act_, 1889 (52 & 53 Vict., c. 74), gave
powers to the Inspectors of Irish Fisheries to make, alter, and revoke
byelaws for prohibiting steam-trawling “within three miles of low-water
mark of any part of the coast of Ireland, _or within the waters of
any other defined areas specified in any such byelaw_, and subject to
any conditions or regulations contained in such byelaw.” Subsection
2 enacted that “each and every person who uses any trawl-net, or any
method of fishing in contravention of any byelaw of the Inspectors of
Irish Fisheries made in pursuance of this section,” shall be subject
to a fine not exceeding five pounds for a first offence, or twenty
pounds for a second or subsequent offence, with forfeiture of the
gear employed. Section 4 made it unlawful for “any person” to land or
sell in Ireland any fish caught in contravention of any such byelaw.
Section 1 (subsection 1) of the _Fisheries (Ireland) Act_, 1901 (1 Ed.
VII., c. 38), makes “every person who uses any trawl-net or any method
of fishing in contravention of any byelaw” of the department made in
pursuance of the third section of the Act of 1889, liable on conviction
under the Summary Jurisdiction Acts to a fine not exceeding one hundred
pounds, with forfeiture of the gear, for the seizure of which any duly
authorised officer is empowered to “go on board any vessel propelled by
steam employed in fishing.” The Irish byelaws must be approved by the
Lord-Lieutenant and Privy Council of Ireland.

[1308] _Sea Fisheries (Clam and Bait Beds) Act_, 44 & 45 Vict., c. 11.

[1309] 48 & 49 Vict., c. 70; 50 & 51 Vict., c. 52.

[1310] 48 & 49 Vict., c. 70.

[1311] 1st Feb. 1886, 18th April 1887, 25th April 1887, &c. _Manual of
Sea Fisheries (Scotland) Acts and Statutory Bye-laws_, pp. 253-257.

[1312] See pp. 592, 643.

[1313] _Ibid._, p. 255.

[1314] _The Herring Fishery (Scotland) Act_, 1889, 52 & 53 Vict., c.
23. Section 7.--(1) “The Fishery Board may, by byelaw or byelaws,
direct that the methods of fishing known as beam trawling and otter
trawling shall not be used within a line drawn from Duncansby Head, in
Caithness, to Rattray Point, in Aberdeenshire, in any area or areas to
be defined in such byelaw, and may from time to time make, alter, and
revoke byelaws for the purposes of this section, but no such byelaw
shall be of any validity until it has been confirmed by the Secretary
for Scotland.” The next section prohibits the landing or sale in
Scotland of any fish caught in contravention of the Act or byelaws.

[1315] “11.--(1) The Fishery Board may, by byelaw or byelaws,
direct that the methods of fishing known as beam trawling and otter
trawling shall not be used within a line drawn from Rattray Point, in
Aberdeenshire, to the Farne Islands, in Northumberland, in any area or
areas to be defined in such byelaw, and may from time to time make,
alter, and revoke byelaws for the purposes of this section.”

[1316] _A Bill [as amended in Committee] intituled An Act for the
better Regulation of Scottish Sea Fisheries_ (52), s. 10, February 1895.

[1317] _Sea Fisheries Regulation (Scotland) Act_, 1895, 58 & 59 Vict.,
c. 42. Section 10.--(1) “The Fishery Board may, by byelaw or byelaws,
direct that the methods of fishing known as beam trawling and otter
trawling shall not be used in any area or areas under the jurisdiction
of Her Majesty, within thirteen miles of the Scottish coast, to be
defined in such byelaw, and may from time to time make, alter, and
revoke byelaws for the purposes of this section. Provided that the
powers conferred in this section shall not be exercised in respect to
any areas under Her Majesty’s jurisdiction lying opposite to any part
of the coasts of England, Ireland, or the Isle of Man, within thirteen
miles thereof.” (2) provided for a local inquiry to be held. (3)
“Provided that no area of sea within the said limit of thirteen miles
shall be deemed to be under the jurisdiction of Her Majesty for the
purposes of this section unless the powers conferred thereby shall have
been accepted as binding upon their own subjects with respect to such
area by all the States signatories of the North Sea Convention, 1882.”

[1318] _Eighteenth Ann. Rep. Fishery Board for Scotland_, Part I., p.
xxxii. The information relating to this part of the subject is taken
mostly either from the _Annual Reports_ of the Scottish Fishery Board
or from Hansard’s _Parliamentary Debates_.

[1319] See _Norges Officielle Statistik; Norges Fiskerier_, 1906,
pp. 17, 18. Sixteen steam trawlers were on the list as registered in
Norway in that year, but “they did not carry on fishing from Norwegian
ports,” and were not included in the list of _bona fide_ Norwegian
fishing-vessels.

[1320] _Peters_ v. _Olsen_, 7, _Court of Session Reports_, 5th Series
(_Justiciary Cases_); 42 _Scottish Law Reporter_, p. 735.

[1321] “In fact, the Moray Firth, within the line from Duncansby
Head to Rattray Point, is not the high seas, but is a bay or area
between these headlands _intra fauces terræ_,--between the jaws of the
land,--which has been called in England one of the King’s Chambers.
In law, such an area must be dealt with by the Courts of this country
as part of the territorial limits of Scotland, unless the Legislature
chooses to enact, in fairness to other countries or for any other
reason, that the extent of the space involved is too great to come
within the reasonable definition of a bay.”

[1322] See p. 545.

[1323] _Court of Session Reports_, 8 Fraser, p. 93.

[1324] “For the purpose of regulating the police of the fisheries
in the North Sea outside territorial waters.” The use of the words
“territorial waters” and “exclusive fishery limits” indifferently for
the same thing is common, but improper.

[1325] “I, George Milne Cook, Vice-Consul for Norway for Aberdeenshire
and the adjacent districts, by instructions of Herr Laveland, Minister
for Foreign Affairs of Norway, hereby protest, on behalf of the
Government of Norway, against any conviction of the masters of the
Norwegian trawling vessels _Stroma_, _Sando_, and _Catalonia_, provided
the trawling with which they were charged has taken place outside
the territorial limits, and I further protest against any punishment
or fines being inflicted in the Sheriff Court at Elgin on the said
masters.”

(Sd.) GEORGE M. COOK.

ELGIN, _31st January 1908_.

[1326] Hansard, vol. 169, pp. 557, 558, 988; vol. 170, pp. 1202, 1206.

[1327] A letter appeared in the _Fish Trades Gazette_, on 14th October
1905, from Mr Hans Johnsen, the Fisheries Agent for Norway in Great
Britain, stating that he had resigned his membership of the National
Sea Fisheries Protection Association owing to the President (Lord
Heneage) having prevented him from reading at the annual conference of
the Association at Aberdeen, with reference to a resolution regarding
the Moray Firth, a letter from the Norwegian fishery authorities. His
object in endeavouring to speak on the resolution, he said, “was to
clear the Norwegian flag from having anything to do with the piracy
practised by Grimsby steam trawl-owners in the Moray Firth, and which
the Government of Norway and the Norwegian Fishery Board is highly
indignant at.”

[1328] Hansard, vol. 170, pp. 472, 1206, 1246, 1383.

[1329] In these Norwegian vessels there were a “flag-master” and a
“fishing-master,” the former, nominally in charge of the vessel,
being a Norwegian in order to comply with the registration laws, but
often, or usually, occupying a humble position, such as cook. The
“fishing-master” had the real control and occupied the master’s rooms
on board. He, like all or most of the crew, was English, resident at
Grimsby.

[1330] In April the penalties ranged from £10 to £2, 10s., or two to
ten days’ imprisonment; in July they ranged from £1 or one day to £45
or fourteen days; three cases were dismissed, one was found not proven,
and in five the verdict was not guilty; four cases were appealed to
the High Court by the Procurator-Fiscal and the appeal sustained.
_Twenty-Sixth Ann. Rep. Fishery Board for Scot._, Part I., App. L., II.

[1331] Hansard, vol. 170, p. 472.

[1332] See p. 707 _et seq._

[1333] Hansard, vol. 169, pp. 832, 991, 1037; vol. 170, pp. 786, 1246,
1247; vol. 192, p. 832. &c.

[1334] _Ibid._

[1335] Thus, in the “Reply on behalf of Her Britannic Majesty’s
Government to the Answer of the United States of America,” submitted to
the International Fisheries Commission at Halifax in 1877, it was said:
“It is not understood that the Answer either raises or invites the
discussion of any rules or doctrines of international law, save such
as bear upon the question of what are to be considered the territorial
waters of a maritime State for the purposes of exclusive fishing. The
contention of the Answer in relation to these doctrines which requires
special attention, is that which asserts that Great Britain and other
Powers have traditionally recognised a rule, by which foreigners were
excluded from fishing in those bays only which are six miles, or less,
in width at their mouths. It is distinctly asserted on the part of Her
Majesty’s Government _that this alleged rule is entirely unknown to,
and unrecognised by, Her Majesty’s Government_, and it is submitted
that no instance of such recognition is to be found in the Answer or
the Brief accompanying the same, and that none can be produced.” This
was approved of by the Earl of Derby, Foreign Secretary (the Earl of
Derby to Mr Ford, August 31, 1877; the same to the same, Oct. 6, 1877).

[1336] 11th Nov. 1908. Hansard, vol. 196, p. 236. Very important
declarations as to the territorial character of bays will be found
in the decision of the Permanent Court of Arbitration at The Hague,
on the North Atlantic Fisheries (7th September 1910, Award No. V.),
received as these sheets are passing through the press. The application
of the three-mile limit to bays was rejected, the following rule being
formulated: “In case of bays the three marine miles are to be measured
from a straight line drawn across the body of water _at the place where
it ceases to have the configuration and characteristics of a bay_. At
all other places the three marine miles are to be measured following
the sinuosities of the coast.” In its practical application to British
North America, the Tribunal recommended a ten-mile limit generally,
except for certain specified bays (including Chaleurs, Miramichi,
Egmont) where special lines, enclosing much larger areas, are proposed.

[1337] Hansard, vol. 170, p. 1383. The miles referred to are English
statute miles.

[1338] Hansard, vol. 191, p. 1769.

[1339] Reports of the British Delegates attending the International
Conferences held at Stockholm, Christiania, and Copenhagen, with
respect to Fishery and Hydrographical Investigations in the North
Sea. _Parl. Papers_, Cd. 1313, 1903. Corresponding “Reports” to 1906
(_Parl. Papers_, Cd. 2966/06, 3033/06, 3165/06). Conseil Permanent
International pour l’Exploration de la Mer, _Rapports et Procès-Verbaux
des Réunions_, Copenhague. A summary on the subject, by Dr A. T.
Masterman, will be found in the Minutes of Evidence, Committee on
Fishery Investigations (_Parl. Papers_, Cd. 4304, p. 479, 1908).

[1340] “2. The delegates should propose that the scientific
investigations shall be accompanied by a practical _exposé_ of the
steps to be taken in order to bring the exercise of sea-fishing more in
accord with the natural conditions regulating the growth and increase
of fish in our seas, and thus permanently increase the supply of fish
in the markets of the countries adjoining the North Sea. 3. In making
this proposal, which they should do at the outset, the delegates should
make it clear that the principal object the British Government have in
directing them to take part in the Conference, is to secure a careful
inquiry into the effect of present methods of fishing in the North Sea;
and the delegates should give every assistance in promoting a scheme
for determining whether protection against overfishing is needed,
and, if so, where, when, and how such protection should be given. 4.
The delegates should propose that a thorough scheme for obtaining
statistical information with regard to the quantity and quality of fish
caught by the different methods of fishing shall be organised, with a
view of determining whether protection against overfishing is needed,
either by the prohibition of trawling in certain selected areas or the
limitation of fishing during certain selected seasons.”--Instructions
to the British Delegates for the Meeting at Stockholm, 15th June 1899;
Reports of the British Delegates, &c., p. 13. _Parl. Papers_, Cd. 1313,
1903; Committee on Fishery Investigations, Minutes of Evidence, &c., p.
278, _Parl. Papers_, Cd. 4304, 1908. The instructions of the British
Government to the Delegates for the Meeting in 1901, at Christiania,
were of similar tenour:--“His Majesty’s Government fully share in
the interest shown in the cause of scientific research, but having
regard to the importance of the evidence which was laid before the
Select Committee of the House of Commons [see p. 709], and which was
adopted by them as showing that the supply of fish in the North Sea is
decreasing, they are of opinion that the consideration of this subject
will admit of no delay, and you should press on your foreign colleagues
the importance of entering at once upon the pursuit of investigations
calculated to lead to an international agreement. You should in no
way discourage or check any desire which you may find to exist for
scientific research into problems not so immediately pressing, but his
Majesty’s Government place in the forefront of their reasons for taking
part in the forthcoming Committee the desire that no delay should be
incurred in the adoption, by international agreement, of measures for
arresting the diminution of the supply of fish in the North Sea, and
for restoring, as far as possible, that source of supply to its former
abundance.” _Ibid._, p. 278.

[1341] _Memorandum drawn up by the Expert Members of the Ichthyological
Research Committee_, Report of the Committee appointed to Inquire and
Report as to the Best Means by which the State or Local Authorities
can Assist Scientific Research as applied to Problems affecting the
Fisheries of Great Britain and Ireland (_Parl. Papers_, Cd. 1312, p.
xxii, x, 1902). _Evidence of Mr Walter E. Archer, Assistant-Secretary,
Board of Agriculture and Fisheries_, Minutes of Evidence given before
the Committee appointed to inquire into the Scientific and Statistical
Investigations now being carried on in relation to the Fishing Industry
of the United Kingdom, pp. 277, 288, 346, 359 (_Parl. Papers_, Cd.
4304, 1908).

[1342] Reports of the British Delegates, &c., _Parl. Papers_, Cd. 1313,
p. 72, 1903. The countries represented were Great Britain, Germany,
Denmark, Belgium, the Netherlands, Norway, Sweden, and Russia.

[1343] Hansard, vol. 169, pp. 992, 996; vol. 170, p. 786; and 11th Nov.
1908.

[1344] Mr Frank Barrett, of Grimsby, thus referred to the condition
of the North Sea at the conference of the National Sea Fisheries
Protection Association in 1905: “Unless they did something as a
counterpoise to the continual trawling which was going on, they would
find themselves powerless as regarded that splendid fishing-ground, the
North Sea. He did not believe the North Sea, if left to itself, could
last for ever. He was one of those who thought it could not last very
long; and he thought they should apply the lessons of science in order
to rehabilitate the North Sea.” _Fish Trades Gazette_, Oct. 14, 1905.

[1345] Mr G. L. Alward, one of the leading and most experienced
trawl-owners of Grimsby, who was invited to take part in a discussion
on sea fisheries in the Zoological Section of the British Association
in 1906, thus referred to the subject. He said: “There was no doubt
that the North Sea was deteriorated as a fishing-ground, and in order
to maintain an adequate supply they had had to explore fresh fields.
They had shifted the trawling-grounds to the coasts of Faröe, Iceland,
and Norway, while others had had to go out into the Atlantic, to the
Bay of Biscay, and to the coast of Morocco. But if they had exhausted
the 147,000 square miles of the North Sea,--every mile of which had
been fished,--and they fished out the area between Norway and Faröe and
Iceland, not more than forty or fifty thousand square miles, with the
same rapidity, they had to look forward to nothing short of a dearth of
fish and a rise in value to famine prices.” _Aberdeen Free Press_, 9th
August 1906.

[1346] According to an interesting table on a chart appended to the
_Annual Report of the Board of Agriculture and Fisheries_ for 1906 (see
fig. 28), the areas, in square miles, between the three-mile limit
and the 200-metre line, are as follows: North Sea, 152,473; North of
Scotland (Orkney and Shetland), 18,096; West of Scotland, 32,099; West
of Ireland, 9066; Irish Sea, 15,743; Southwards of Ireland, 50,416;
Bristol Channel, 8613; English Channel, 25,238. The area at Iceland is
36,608, and at the Faröes, 4949 square miles.

[1347] Hansard, vol. 169, p. 996; vol. 196, p. 217. I have been
courteously informed by Mr Bjarni Sæmundsson, of Reykjavik, a
well-known authority on the fisheries of Iceland, that no laws
proposing to extend the territorial waters were passed, or proposed, by
the _Althing_.

[1348] Hansard, vol. 170, p. 786.

[1349] On Mem. 1 the words “le dit Roi Dengleterre et” follow
“Procurors.”

[1350] Mem. 1 and 8, “de touz autres de son Roialme.”

[1351] Mems. 1, 14, and 15, “il ny ad.” Mem. 8, “du temps qil ny ad.”

[1352] Mem. 8, “aueroient este.”

[1353] Mem. 1, “oue touz les Isles et les apportenaunces.”

[1354] Mem. 1, the words are “estatuitz et defenses comunes et priuees”
and the rest is omitted to “sur toute manere des gentz taunt,” &c. Mem.
8, “communes et priuees a garder pays et droiture entre tote manere des
gentz tant,” &c. Mem. 15, “estatuitz et defences pur gouerner en toute
manere,” &c.

[1355] Mems. 1, 8, 14, 15, “come de lour propre.”

[1356] Mem. 1, “oue.”

[1357] Mems. 1, 8, and 15, “oue.”

[1358] Mem. 1, instead of gouernement, “a la generalte”; Mem. 8, “a la
garde.”

[1359] Mems. 1, 8, and 15, “le dit Roi.”

[1360] Mem. 1 omits “Dengleterre.”

[1361] Mems. 1 and 8, “Rois Dengleterre deputez eient este.”

[1362] Mem. 8, “de la dite seignurie et garde.”

[1363] Mems. 1, 8, 14, and 15, “forspris.”

[1364] Mems. 1, 8, and 15 insert “et.”

[1365] Mem. 15, “a.”

[1366] Mem. 1, “ou mesfaitz”; Mem. 8, “ou de mesfaitz.”

[1367] The sentence from “Et come” to “Coustumes” is omitted on Mems.
1, 8, and 15.

[1368] Mems. 1 and 8 omit “en vne cedule anexe ayceste,” and Mems. 1,
14, and 15 omit the whole of the next paragraph, recommencing “Monsieur
Reymer Grimbaus.” Mem. 8_d_, paragraph commencing “Primerement.”

[1369] Mem. 8, “et a maintener.”

[1370] Mem. 8, “excepte pur le dit Roy.”

[1371] Mem. 8, “le dit Roy.”

[1372] Mem. 14 omits “et.”

[1373] Mems. 1 and 8 omit “Dengleterre.”

[1374] Mems. 1, 14, and 15, “du dit Roi.”

[1375] Mems. 8 and 15 insert “les.”

[1376] Mems. 1, 8, and 15 insert “et marchandises.”

[1377] Mem. 1 omits “et.”

[1378] Mem. 1 omits “de Fraunce.”

[1379] Mems. 1, 14, and 15 read (here and elsewhere) “ceo.”

[1380] Mem. 8 omits “et la prise,” &c., recommencing, “sur la
forfaiture,” &c.

[1381] Mem. 14, “ou.”

[1382] Mem. 8 inserts “et.”

[1383] Mems. 1, 14, and 15, “sa.”

[1384] Mems. 1 and 8, “de par le dit Roi.”

[1385] Mem. 1, “de la”; Mems. 8, 14, and 15, “de le.”

[1386] Mems. 1, 8, 14, and 15 insert “a vous Seigneurs.”

[1387] Mems. 8 and 14, “qil.”

[1388] Mem. 8 inserts “il.”

[1389] Mems. 1, 14_d_, and 15 complete the passage as follows: “Come
il purra suffire et en sa deffaute son dit seignur le Roi de Fraunce
par qi il estoit deputeez al dit office et qe apres dewe satisfactioun
faite as ditz damagez le dit Monsieur Reiner soit si duement punitz
pur le blemissement de la dite alliance qe la punicioun de lui soit as
autres example [Mem. 8, ‘ensample’] pur temps auenir.” Mem. 15 ends
here. Mem. 8 transposes the next paragraph and the last.

[1390] Mem. 1, “aunciens”; Mem. 14, “auncienes.”

[1391] Mems. 1, 8, and 14, “ne.”

[1392] Mems. 1, 8, and 14 omit “nefs.”

[1393] Mem. 8, “leurs.”

[1394] Mem. 8, “doiuent.”

[1395] Mem. 8. “deuantdiz.”

[1396] Mems. 1 and 8, “les.”

[1397] Mems. 1 and 8, “ses.”

[1398] Mem. 8, “soy.”

[1399] [_Sic_]: not previously mentioned; probably Johan Paderogh.

[1400] _See_ below.

[1401] Side-note says: “The said goods have been delivered to Will.
Bush.”

[1402] _24th Aug. 1303, Saturday._

[1403] _St Lawrence_, _Aug. 10_.

[1404] _29th Sept. 1303, Sunday_.

[1405] Differences found in copy, _State Papers, Dom._, Chas. II., Vol.
339, p. 589, are shown in brackets.

[Transcriber's Note:

Manuscript abbreviations on pages 765-767 have been changed to modern
letters due to the unavailability of suitable characters.

Inconsistent spelling and hyphenation are as in the original.]

*** End of this LibraryBlog Digital Book "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" ***

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