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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: Thomas Wemyss Fulton

Release Date: June 24, 2017 [EBook #54977]

Language: English

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i

The Sovereignty of the Sea ii


The “British Seas,” according to Selden. iii


The Sovereignty of the Sea
An Historical Account of the Claims of England to the Dominion of the British Seas, and of the Evolution of the Territorial Waters: with special reference to the Rights of Fishing and the Naval Salute BY
THOMAS WEMYSS FULTON
LECTURER ON THE
SCIENTIFIC STUDY OF FISHERY PROBLEMS, THE UNIVERSITY OF ABERDEEN

WITH ILLUSTRATIONS

William Blackwood and Sons
Edinburgh and London
1911

ALL RIGHTS RESERVED

iv

v


I DEDICATE THIS BOOK TO
MY WIFE
vi


vii

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 viii 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 ix 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 x 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.


xi

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 25xii
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 xiii 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 xiv 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 xv 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 xvi 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 PROTECTORATEcontinued.
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 xvii 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 441xviii
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 xix 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 537xx
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 xxi 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 650xxii
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 693xxiii

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 777xxiv

xxv

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 324xxvi
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

1


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 2 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 3 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 4 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 5 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 6 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 7 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, 8 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 9 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 10 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 11 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 12 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 13 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 14 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 15 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 16 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 17 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 18 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 19 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, 20 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 21 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 22 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. 23

SECTION I.
THE HISTORY OF THE CLAIMS TO THE SOVEREIGNTY OF THE SEA

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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 Solinus15 in which Irish warriors are described as decking the hilts of their swords with the tusks 26 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 27 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 28 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 29 (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 30 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 31 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 32 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. Froissart40 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 33 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, 34 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 35 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, 36 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 37 equally great victory over the Spaniards off Winchelsea (“Les Espagnols sur Mer”), commanding the fleet in person on each occasion.48

Fig. 1.—Edward’s Noble.

It appears to have been in connection with the former victory that Edward coined his famous gold noble, in which the obverse bears the effigy of the king, crowned, standing in a ship with a sword in one hand and a shield in the other, while the reverse bears the legend from St Luke, Jesus autem transiens per medium eorum ibat, “but Jesus, passing through the midst of them, went his way,” which Nicolas thinks was meant to indicate the action of the king in passing through the French fleet at the battle of Sluys. The impress on the obverse has been usually regarded as symbolic of Edward’s power and sovereignty on the sea. The unknown author of The Libelle of Englyshe Polycye, written some ninety years later, makes frequent reference to Edward’s noble,—

“Ffor iiii thynges our noble sheueth to me,
Kyng, shype, and swerde, and pouer of the see,”49

and it is always mentioned by the English writers on the sovereignty of the sea as evidence that Edward exercised 38 that sovereignty. A recent author50 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 39 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 40 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 41 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., 42 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 43 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 44 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 Coke66 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 45 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 England73 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 46 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 47 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 48 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 49 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 copy78 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 50 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 51 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 52

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 53 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 54 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, 55 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 56 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. 57-


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 58 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. 59

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 60 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 61 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 62 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 63 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 64 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 65 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 66 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. 67 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 68 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 69 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 70 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 71 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 added128 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 72 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, 73 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 74 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 75 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 76 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 77 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 78 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 79 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 80 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 81 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. 82 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 83 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 84 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 85 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. 86


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 87 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 88 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 89 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 90 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 91 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 92 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 93 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 94 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 95 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 96 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, 97 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, 98 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 99

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 100 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 101 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, 102 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. 103

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 104 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 105 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 106 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 107 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 108 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 109 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 110 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 111 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 112 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 113 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 victual214 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, 114 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. 115 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 116 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 117 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. 118


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 119 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 120 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 121 122 some parts of the coast to the contour, it is due on other parts to a selection of headlands, no doubt according to the custom which had grown up and was recognised among the officers and others concerned. Thus the great bay between Cornwall and Devon would have formed a natural “chamber” by a line, not so long as some of the others, between Start Point, or Prawl Point, and the Lizard, and which would have formed part of the girdle around the coast; whereas three chambers are formed along its shores. On the east coast the “chambers” are as a rule small,232 the largest embracing the mouths of the Humber and the Thames; they are generally large on the south coast, and largest of all on the west coast, where the whole of the Bristol Channel was enclosed by the line from Land’s End to Milford, a distance of nearly 100 nautical miles, the whole area containing about 3400 square nautical miles. This chamber, as well as those to the north of it, must have been of importance on account of the volume of shipping which passed through it.233

Fig. 3.—Chart prepared by the Trinity House showing the bearings of the King’s Chambers. From Selden.

It is to be noted that the King’s Chambers were confined to the coast of England, and, further, that they had no reference to the claim of James to property in his seas, so far at least as fisheries were concerned. They were strictly limited to questions of neutrality and jurisdiction, in view of the war then existing between Spain and the United Provinces and the frequent depredations of privateers. The chambers on the east coast, where the Dutch carried on their great herring fishery, were much too small to have any relation to the subject of unlicensed fishing; and at no time during the prolonged discussions on the fishery were the limits of the King’s Chambers made use of in argument. Neutral protection, moreover, was strictly limited to the waters defined. It was in vain that Gentilis, the Spanish advocate in the Admiralty Prize Court, argued that the jurisdiction of England extended far beyond the limits of the “chambers,” and ought therefore to be lawfully and justly applied in protecting Spanish vessels from 123 124 the talons of the Dutch on the high seas. The judgment of the Court of Admiralty, so far as concerned the place of capture, was always based upon the consideration whether that place lay within or without the limits of a “chamber.”

Fig. 4.—Showing the King’s Chambers on the Coast of England.

The campaign against foreigners fishing on the British coast, which opened up the claims of England in the seventeenth century to the sovereignty of the sea and introduced a new principle into English international policy, originated in another set of ideas, which James brought with him from Scotland. The Scottish people had been always very jealous of foreigners sharing in their fisheries, and, as we have seen, never consented to give them the liberty to fish, so freely accorded by England. Moreover, a tax or tribute, called the “assize-herring,” was imposed upon the native fishermen in Scotland, and formed a part of the revenues of the crown. Although its value was not great, James conceived the idea of levying it also from the foreign fishermen, who frequented the British seas in large numbers, and before he formally demanded it in 1609, some curious negotiations took place with a syndicate of London merchants who proposed to form a fishery association based on the taxation of foreign fishermen, and in return they promised a handsome revenue to the king. The desire for an increased revenue may therefore have had something to do with the proposal to restrain unlicensed fishing on the British coasts. But neither this consideration, the practice in Scotland, nor the king’s passion for his prerogative, fully accounts for the reversal of the long-settled policy of England, which was accomplished with the concurrence of the Privy Council, and, so far as may be judged, with the full approval of the people.

In truth, a great change had taken place in the national sentiment. England had now entered upon the long struggle for commercial and maritime supremacy, with the aim of increasing the power of the nation against all rivals.234 It was obvious to every one that the great rival and competitor was the Dutch Republic, whose rapid rise to the first commercial state in Europe deeply impressed the minds of English statesmen and writers. In the reign of Elizabeth, the common interest of the two countries in opposing Spain prevented measures being taken to curb the growing power of the 125 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, 126 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 127 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 128 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 129 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 130 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.247 131

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 132 £3,600,000 sterling. But the merchants who exported the pickled herrings—and by far the greater quantity were exported248—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, 133 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 134 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 135 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 136 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 137 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, 138 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 139 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 140 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 141 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 142 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 143 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 144 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 145 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 146 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 147 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. 148 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 149 150 of fishing, as (either by the multitude of strangers, which do preoccupy those places, or by the injuries which they receive most commonly at their hands) our subjects are constrained to abandon their fishing, or at the least are become so discouraged in the same, as they hold it better for them to betake themselves to some other course of living, whereby not only divers of our coast-towns are much decayed, but the number of mariners daily diminished, which is a matter of great consequence to our estate, considering how much the strength thereof consisteth in the power of shipping and use of navigation.” It was therefore both just and necessary, the king continued, to take lawful means to put an end to these inconveniences, although he had no intention, as he desired the world to take notice, to deny his neighbours “those fruits and benefits of peace and friendship” which might justly be expected at his hands in honour and reason. He therefore gave notice to all the world, that after 1st August 1609, “no person of what nation or quality soever, being not our natural born subject, be permitted to fish upon any of our coasts and seas,” “until they have orderly demanded and obtained licenses from us,” or the commissioners appointed at London and Edinburgh. The licenses were to be renewed yearly, “upon pain of such chastisement as shall be fit to be inflicted upon such wilful offenders.”282

Fig. 6.—Facsimile of the concluding part of the Draft of Committee’s Report to Privy Council regarding the restraint of foreigners fishing on the British coasts.

The prohibition of unlicensed fishing in the British or Irish seas was general in its character, and applied to all foreigners indifferently. But it was well understood to be aimed at the Dutch. There is no evidence to show that any steps were taken to induce the hundred or so of French boats that took part in the herring-fishing on the east coast to obtain licenses; and though the Earl of Salisbury wrote a long letter to the English ambassador at Madrid, explaining the reasons that had induced the king to issue the proclamation, it does not appear that the numerous Spanish fishermen who caught mackerel off the coast of Ireland and the south-west coast of England were ever interfered with, or asked to apply for licenses.283

In the United Provinces the important step taken by the King 151 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.286 152 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 153 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 154 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 155 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 156 political considerations. They said the United Provinces had always been in peaceful possession of free fishing, and that from time immemorial they had enjoyed complete liberty to fish over the whole sea, both as a matter of usage and of right. To disturb them by force in the enjoyment of that right would be unjust. Besides, by the Law of Nations the boundless and rolling sea was as common to all people as the air, “which no prince could prohibit.” No prince, they said, could “challenge further into the sea than he can command with a cannon, except gulfs within their land from one point to another,”—the first occasion on which this principle for delimiting territorial waters, afterwards so celebrated, appears to have been advanced.292

Fig. 7.—Facsimile of Minute of the Declaration of the Dutch Envoys as to the range of guns. 157

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 158 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. 159

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 160 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 161 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 162 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 163 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 wool307 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 164 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. 165


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 166 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 167 “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 168 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 169 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 170 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 171 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 172 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 173 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 174 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 175 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 concerned325 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 176 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 there327] 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.330 177 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 178 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 179 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 180 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 181 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 182 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 183 of the intruders away.345 The Englishmen then set up a cross on the shore with the king’s arms on it, and they called the land “King James’s Newland.” It is noteworthy as indicating the attitude and practice towards France throughout almost the whole of the disputes about mare clausum, that the French whalers were allowed to continue their operations, subject, however, to the payment of a tribute of whales or train-oil, while the two Dutch ships were despoiled of their catches and fishing-gear and were sent home empty. On their arrival at Amsterdam the ill-treatment to which they had been subjected was naturally resented, and representations to King James were made through the ordinary channels, but without success. The Dutch founded their case partly on the general principle “that according to the practice of all times and peoples, navigation, fishery, and the use of the shore were free and common to all,” and partly on the claim of prior discovery. Spitzbergen, they said, was discovered by Jakob van Heemskerk, a Dutchman, in 1596; they had therefore at least as good a right as the English or any other nation to the fisheries there. On the other hand, the powerful Muscovy Company argued that Spitzbergen was discovered by Willoughby in 1553, and accordingly belonged to England; and the king adopted this view, notwithstanding the elaborate case drawn up by the famous cosmographer, Plancius, on the other side, which was submitted to him.346 The seas around Spitzbergen were held to pertain to the British seas, and to be under the maritime dominion of the King of England,—a claim which Selden attempted to vindicate later.

Fig. 8.—Dutch Whalers at Spitzbergen. After Van der Meulen. 184

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 185 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 186 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 187 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, 188 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 189 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 190 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 191 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 pacificus361 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 192 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.”364 193 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 194 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 195 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 196 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 197 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 198 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 199 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 200 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, 201 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 202 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 203 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. 204

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 205 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 206 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 207 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 208 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. 209


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 210 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. 211

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 212 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 213 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 214 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 215 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 216 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 217 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 218 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 219 “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.409 220

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, 221 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 222 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 223 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.413 224

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 225 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, 226 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 227 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, 228 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 229 [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.”420 230


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 231 232 measurement of the fourteen miles mentioned in the Draft Treaty was to be understood as expressed in the report of the burghs.422

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 233 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 234 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),” 235 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 236 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 237 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 238 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. 239 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 240 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 241 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 242 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 243 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 244 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 245 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.” 246


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 247 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 248 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 249 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 250 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 251 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 252 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 253 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 254 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 255 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 256 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 257 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 258 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 259 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 260 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 261 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 262 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 263 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 264 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 265 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 266 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 267 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 268 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 Weymouth485 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 269 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 270 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 271 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 272 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 273 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 274 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 275 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, 276 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 277 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 278 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 279 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 280 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 281 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.513 282

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 283 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 284 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 285 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.519 286


CHAPTER VIII.
CHARLES I. NAVYcontinued.

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 287 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, 288 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 289 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 290 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 291 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 292 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 293 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 294 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 295 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.537 296

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 297 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 298 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

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 299 back to port by reason of “divers desertes,” which made them unfit to keep the sea longer.541

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 300 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 301 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, 302 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 303 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 304 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 305 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 306 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 307 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 308 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.”555 309

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 Dollors 878 163 10 08
In halfe Crownes 145 018 02 06
In pieces of 3s 40 006 00 00
In Kunnings Dollors 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”

310

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 311 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.558 312

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 313 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 314 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 315 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 316 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 friend566 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 317 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 318 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.”571 319

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 320 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 321 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 322 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. 323

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 324 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

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 325 326 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 327 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 328 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 329 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 330 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 331 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 332 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, 333 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 334 (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 335 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 336 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, 337 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. 338


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 339 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. 340

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 341 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.615 342

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 343 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 344 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 345 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, 346 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 347 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 348 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 349 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 350 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 351 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. 352

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 353 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 354 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 355 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. 356

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 357 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.641 358

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 359 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 peace646 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 360 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 361 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 362 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 363 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 364 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 365 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 366 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 367 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 368 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 369 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 370 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 371 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 372 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, 373 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 374 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 375 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, 376 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 377 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. 378


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 379 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 380 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 381 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.685 382 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 383 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 384 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 385 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 386 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 387 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 388 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 389 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 390 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 391 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. 392 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 commissioners702 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 393 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 394 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 395 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 396 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 397 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 398 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 399 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 400 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, 401 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, 402 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 403 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 404 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 405 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 406 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 407 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. 408 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 409 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.735 410

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 411 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, 412 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 413 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.747 414


CHAPTER XI.
THE PARLIAMENT, THE COMMONWEALTH, AND THE PROTECTORATEcontinued.
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. 415

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 416 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 417 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 418 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 419 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 article761 on the fishery was framed on the model of the 420 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, 421 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.766 422

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 423 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. 424

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 425 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 426 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, 427 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 428 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.781 429

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 430 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 431 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 432 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 433 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 434 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 435 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.799 436

Comparison of the treaty as completed800 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 437 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, 438 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 439 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 440 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.810 441


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 442 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 443 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 444 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 445 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 446 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 447 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 448 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 449 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 450 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 451 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 452 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 453 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, 454 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.”842 455

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 456 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 457 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 458 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, 459 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 460 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