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diff --git a/old/54977-0.txt b/old/54977-0.txt deleted file mode 100644 index 139c21b..0000000 --- a/old/54977-0.txt +++ /dev/null @@ -1,36526 +0,0 @@ -Project Gutenberg's The Sovereignty of the Sea, by Thomas Wemyss Fulton - -This eBook is for the use of anyone anywhere in the United States and most -other parts of the world at no cost and with almost no restrictions -whatsoever. You may copy it, give it away or re-use it under the terms of -the Project Gutenberg License included with this eBook or online at -www.gutenberg.org. If you are not located in the United States, you'll have -to check the laws of the country where you are located before using this ebook. - -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 - -Character set encoding: UTF-8 - -*** START OF THIS PROJECT GUTENBERG EBOOK THE SOVEREIGNTY OF THE SEA *** - - - - -Produced by MWS, Wayne Hammond and the Online Distributed -Proofreading Team at http://www.pgdp.net (This file was -produced from images generously made available by The -Internet Archive) - - - - - - - - - -The Sovereignty of the Sea - -[Illustration: _The “British Seas,” according to Selden._] - - - - - The Sovereignty of the Sea - - An Historical Account of the - Claims of England to the Dominion of - the British Seas, and of the Evolution - of the Territorial Waters: with special - reference to the Rights of Fishing - and the Naval Salute - - BY - - THOMAS WEMYSS FULTON - - LECTURER ON THE - SCIENTIFIC STUDY OF FISHERY PROBLEMS, THE UNIVERSITY OF ABERDEEN - - _WITH ILLUSTRATIONS_ - - [Illustration] - - William Blackwood and Sons - Edinburgh and London - 1911 - - _ALL RIGHTS RESERVED_ - - - - - _I DEDICATE THIS BOOK TO - MY WIFE_ - - - - -PREFACE. - - -In this book I have endeavoured to bring together from all available -sources such information as exists as to the ̉claims formerly made -to the sovereignty of the British Seas, and to trace the evolution -of the territorial waters in recent times. The work was originally -undertaken with the intention of dealing only with these subjects so -far as they related to the sea fisheries, but it soon became apparent -that to restrict the scope in this way would involve considerable -disadvantages, and would enable only a partial picture to be presented. -For though during a large part of the period with which the book -is concerned, the question of the fishery was the main question in -determining the claim to sea sovereignty, and is the one of the -greatest frequency at the present day with respect to the territorial -waters, it was by no means the only one. The freedom of ̉commerce to -regions more or less remote; the jurisdiction of a State in the sea -which washed its shores or which it claimed as belonging to it; the -naval salute or homage to the flag, and various other matters, were -commonly bound up with the question of the fisheries. It was therefore -deemed more satisfactory to treat the subject as a whole, even though -this necessarily involved much additional labour. - -The book is divided into two sections, the first comprising an -historical account of the pretensions to the dominion of the sea; the -second dealing with the relic of such pretensions, the territorial -waters, more particularly in the aspect which they present under the -Law of Nations and in relation to the rights of fishing. With some -doubtful exceptions, the claim to a special sovereignty or dominion -over the so-called British Seas was a doctrine of the Stuarts, -introduced from Scotland to England with that dynasty, and terminating -with it. It was aimed in particular against the Dutch, whose commerce, -shipping, wealth, and power were believed to be derived from the -fisheries which they carried on along the coasts of this country. -Hence a very considerable part of the work refers to the dealings and -negotiations with that people as to the liberty of fishing and the -homage to the flag. Such pretensions to extensive maritime sovereignty -gradually decayed and disappeared, but the troubles and disputes as -to the rightful jurisdiction of a State in the waters adjacent to -its coasts have continued to the present day, and are dealt with in -the second section of the book. Scarcely a year passes that does not -witness one or more international differences of this kind, notably -with respect to fisheries, and in various quarters of the globe--it -may be now on the coasts of Portugal and Spain, or in the Pacific and -South America, or again at the White Sea, each case giving rise to -international negotiations and discussions as to the common usage and -the Law of Nations. - -One great group of such questions, which for long formed a troublesome -heritage of the British Foreign Office, concerns the fisheries on the -coasts of British North America. Under various treaties, some of them -old, France and the United States possess special rights in these -fisheries, the true nature of which has occasioned numerous disputes. -It is a happy circumstance of recent years that those differences -have now been composed. The agreement with France in 1905 settled the -question of the fishery rights of that Power at Newfoundland, and the -Award of the Permanent Court of International Arbitration at The Hague -in the North Atlantic Coast Fisheries Arbitration, which was made -last autumn while this work was passing through the press, has in a -manner equally satisfactory settled the difficulties with the United -States,--a fortunate result due in great part to the exceedingly able, -lucid, and temperate presentation of the British case by Sir Robert -Finlay, but chiefly, it cannot be doubted, to the growing feeling of -goodwill between the two great branches of the Anglo-Saxon race. It -is to be hoped that similar differences now pending and to come, as -to the fisheries on other coasts, may be adjusted in a corresponding -spirit of amity and compromise. The fish in the sea, as Dr Nansen has -said, are not the property of any particular nation. They are, if the -word may be used, international, and it would therefore be as just -as it would be auspicious if all such questions were dealt with in a -spirit of international brotherhood, with due regard to the interests -of the coast population on the one hand, and the legitimate rights of -the enterprising fishermen from other nations on the other. To this end -the joint fishery investigations at present being conducted under the -guidance of a Council of representatives of the western and northern -Powers of Europe may be expected to contribute, if only by providing -that full and precise information, without which an effective and -equitable arrangement is difficult. - -As far as possible, I have gone to original sources for my information; -the State Papers in the Record Office, the MSS. in the British Museum, -and those preserved at Hatfield--access to which was courteously -granted by the late Marquess of Salisbury--have been laid under -contribution. References to the various authorities are given for -practically all the statements in the book; and in the Appendix are -printed, either entire or in part, some of the more important documents -which are cited. - -Among foreign friends and colleagues to whom my thanks are due for -information kindly given during the progress of the work, I must -mention four, who, alas! are no longer with us: Professor A. F. Marion, -Marseilles; Professor Enrico H. Giglioli, of Florence, for long the -esteemed President of the Commissione consultiva per la pesca, Rome; -Secretary of State M. Vladimir I. Weschniakow, President of the -Société Impériale Russe de pisciculture et de pêche, St Petersburg; -and Dr Rudolf Lundberg, Stockholm, all very willingly complied with -my requests for information. Among others who have aided me from time -to time are Dr Georges Roché, Paris; Dr Eugène Canu, Boulogne-sur-mer; -Señor Rafael Gutierrez Vela, Madrid; Dr Cav. Enrico Giacobini, of the -Ministry of Agriculture, Rome; Dr F. Heincke, Heligoland; Dr Johan -Hjort, Bergen; and Captain C. F. Drechsel, Copenhagen. My thanks are -also due to Dr Fridtjof Nansen, formerly the Norwegian Minister in -London; to M. J. Irgens, his successor; and to Dr T. Baty, Honorary -Secretary to the International Law Association, London, for copies -of documents and laws relative to the Scandinavian limits of the -territorial sea; and likewise to Mr R. M. Bartleman, the American -Consul-General at Buenos Aires, for papers referring to the extensive -claims recently advanced by the Argentine Republic for the regulation -of the fisheries in the adjacent seas. - -Very specially have I to thank my friend, Dr P. P. C. Hoek, the -Scientific Adviser for the Fisheries of the Netherlands, and the -Commissioner appointed by The Hague Tribunal in the North Atlantic -Fisheries Arbitration, for his valued assistance and advice. Dr Hoek -was good enough to read over the proofs of the book, and I am indebted -to him for a number of emendations and improvements which his knowledge -of Dutch fisheries and history enabled him to suggest. - -In transcribing records and preparing the index, and in some other -ways, I have been assisted by my wife. - -I feel that an acknowledgment is due to my publishers for the patience -and consideration they have shown in the delay which, for several -reasons, has occurred in the completion of the book. - -It is right to add that I alone am responsible for all the opinions -expressed, unless when otherwise stated. - - T. WEMYSS FULTON. - - 41 QUEEN’S ROAD, ABERDEEN, - _January 1911_. - - - - -CONTENTS. - - - INTRODUCTION. - - PAGE - - Prominence of maritime affairs in English history--The meaning - of the term Sovereignty of the Seas--Early appropriation - of seas--Venice--Genoa--Denmark, Sweden, Poland--Spain and - Portugal--Reasons for appropriation--Insecurity of sea in middle - ages--Merchants associations--Origin of the English claims--Their - nature--Became important under the Stuarts--James I.--Charles I.--The - Commonwealth--Charles II.--Decay of the English pretension to the - dominion of the seas--Extent of the “Sea of England” and of the - “British Seas”--The “Narrow Seas”--The “Four Seas”--Selden on the - British Seas--The territorial waters 1 - - - SECTION I.--THE HISTORY OF THE CLAIMS TO - THE SOVEREIGNTY OF THE SEA. - - - CHAPTER I. - - EARLY HISTORY. - - Alleged sea sovereignty exercised by ancient Britons, Romans, and - Anglo-Saxons--King Edgar--Canute--Norman, Angevin, and - Plantagenet kings--The Channel or Narrow Sea--The safeguarding - of the sea--Admiralty jurisdiction--Impressment of ships--Liberty - of navigation and fishing--The question of tribute--English - kings as lords of the sea--King John’s ordinance as to - lowering sail to a royal ship--The sovereign lordship in the so-called - Sea of England--The roll _De Superioritate Maris Angliæ_--Complaint - against Reyner Grimbald--Nature of jurisdiction - exercised in Sea of England 25 - - - CHAPTER II. - - THE FISHERIES. - - Importance of fisheries in middle ages--Ecclesiastical fasts--A great - herring fishery--Foreign fishermen frequent British coasts--The - question of freedom of fishing--Licenses to French to fish in the - Channel--Treaties guaranteeing liberty for foreigners to fish on - the British coasts--The “Burgundy” treaties--The _Intercursus - Magnus_--Practice in Scotland differed from that in England--Waters - reserved for natives, and foreigners excluded--Treaties with the - Netherlands--Acts of the Parliament of Scotland 57 - - - CHAPTER III. - - UNDER THE TUDORS. - - Decay of English fisheries--Influence of Reformation--Rise of - Dutch fisheries--The “Political Lent”--Cecil’s inquiries and - proceedings--Legislation to protect the English fisheries and - encourage the consumption of fish--First complaints against foreign - fishermen on English coast--Hitchcock’s “Pollitique Platt”--His - scheme of a national fishery association to compete with the - Dutch--Proposals of Dr John Dee to tax foreigners fishing on British - coasts--Claim advanced to the sovereignty of the sea--Supposed - limits of British seas--Queen Elizabeth opposes all claims to _Mare - Clausum_--Spanish and Portuguese pretensions to dominion on the - great oceans--Negotiations with Denmark as to trading and fishing at - Iceland and Norway--Queen Elizabeth’s exposition of the principles - of the freedom of the seas--Further legislation to promote the - fisheries--Failure of the policy of fish-days--The striking of the - flag 86 - - - CHAPTER IV. - - UNDER THE STUARTS. JAMES I. A NEW POLICY. - - Change of policy as to freedom of fishery--The “King’s - Chambers” defined and described--Limited to questions of - neutrality--Beginning of struggle with Dutch for commercial - and maritime supremacy--Expansion of Dutch fisheries--English - accounts of their extent--John Keymer--Sir Walter Raleigh--Tobias - Gentleman--The Dutch great herring fishery along British - coast--Its value and importance--English fishery trifling in - comparison--English envy and jealousy of Dutch--Rival fishery - schemes proposed--Plan of London merchants--Proposals to tax foreign - fishermen--Complaints of encroachments of Hollanders in England - and Scotland--Petition from Cinque Ports for protection--Privy - Council consider unlicensed fishing by foreigners--Recommend - proclamation restraining foreigners from fishing on British coasts - without license from the king--Proclamation issued--Aimed against - Dutch--Protest of States-General--Proclamation suspended--The - “assize-herring”--Discussions with the Dutch ambassador--Dutch - embassy of 1610--Fishery question postponed--Other fishery - schemes--The queen’s proposals--Records to be searched to establish - king’s jurisdiction at sea and right to the fishings 118 - - - CHAPTER V. - - JAMES I.--_continued_. DISPUTES WITH THE DUTCH. - - Grant of “assize-herrings” in Scotland to Duke of Lennox--Considered - by Scottish Council--James instructs that the tax be levied from - foreign fishermen--Mr John Brown collects them in 1616 from - Dutch--Protest by Dutch ambassador--Dutch naval commanders ordered - to prevent further payments--Brown again sent in 1617--Seized - and carried to Holland by Dutch man-of-war--Repudiation of - act by States-General--Further complaints in Scotland against - Dutch--Representations by British ambassador at Hague--“Land-kenning” - or range of vision claimed as limit--Scottish Council asked to - prevent Hollanders from fishing within sight of land--Dutch edict of - 1618--Assize-herrings again demanded by the _Restore--Mare Clausum_ - in the Arctic Seas--Spitzbergen whaling disputes--Dutch embassy of - 1618--Evasion of fishery question--James’s displeasure--Threats - to use force--Fishery treaty again postponed--A limit of fourteen - miles requested--Dutch concession--Proposals regarding whaling at - Spitzbergen--Assize-herrings again demanded by the _Charles_--The - Dutch strengthen their convoying squadrons--Dutch embassies of 1619 - and 1621--Fishery question still evaded--Edict of 1618 renewed--Fresh - complaints against Hollanders--Fishery societies proposed--The - striking of the flag--Incident with French in 1603--Monson’s action - against Dutch--Spanish complaint--The custom as to striking the flag 165 - - - CHAPTER VI. - - CHARLES I. FISHERIES AND RESERVED WATERS. - - Extravagant pretensions to the sovereignty of the sea--The ship-money - writs and the old records--Charles proposes a great fishery society - to compete with the Dutch--Coke prepares a scheme--Difficulties - with Scottish burghs--Charles requests Scottish Privy Council to - further the scheme--Strenuous opposition in Scotland--Claim of - “reserved waters” advanced--Commissioners on behalf of England and - Scotland appointed--Prolonged negotiations--Extent of reserved waters - defined--Modifications proposed--Burghs petition Charles to prevent - the Hollanders from fishing in Scottish waters--Fisheries declared - to be under the royal prerogative--Charles attends the conferences - of the commissioners--Scheme finally agreed to--The “Royal Fishery - of Great Britain and Ireland” established--Operations at the - Lewes--Misfortunes and eventual failure of the society 209 - - - CHAPTER VII. - - CHARLES I.--_continued._ THE NAVY. - - Need of a strong navy--Insecurity of seas from pirates--Violations of - King’s Chambers and ports by Dutch and Dunkirkers--Proclamation - concerning same and claiming sovereignty of sea--Charles’s - private policy to recover the Palatinate--Negotiations for alliance - with Spain against the Dutch--Pretexts for creating a fleet--The - ship-money writs--Feeling in Holland--Coke’s despatch on the - dominion of England in the seas--The first ship-money fleet, - under the Earl of Lindsey--His instructions--All hostilities in - narrow seas to be prevented--Previous instructions to Pennington - compared--The king’s private instructions--Their object--Lindsey’s - queries--Proceedings of the fleet--Rumours in London--Friction - with the admiral--Fails to meet the French fleet--Richelieu’s - strategy, and proposals as to salute--Licenses for Dutch - herring-busses--Lindsey quits the fleet--Discontent at his failure--The - question of the salute becomes very prominent--Doubts - and queries as to the custom in enforcing it--Practice on foreign - coasts--Between ships and forts--Arrogance of English captains--Usual - compliance of the Dutch--British merchantmen the - worst offenders 246 - - - CHAPTER VIII. - - CHARLES I.--_continued_. THE NAVY. - - The second ship-money fleet--Placed under the Earl of - Northumberland--What was to be done with it?--Opinion of - Admiralty as to convoying foreign merchant vessels and preventing - foreigners from fishing without license--The instructions - to Northumberland--The proceedings of the fleet--Cruise in - Channel--Royal proclamation forbidding foreigners from fishing - without license in British seas--Northumberland goes in quest of - Dutch herring-busses--Licenses forced upon them--English men-of-war - left to “guard” them--Anxiety in the United Provinces--Mission of - van Beveren--States of Holland resolve to equip a fleet to protect - their fishermen from molestation--Mission of Joachimi--Intervention - of Queen of Bohemia--Northumberland’s fleet goes to the Yarmouth - fishing--Licenses again forced on the Dutch fishermen--The amount - of the “acknowledgment money” received--Misrepresentations on the - subject--Renewed excitement in Holland--Proceedings of Admiral Van - Dorp--Another change in the king’s policy--Arundel’s mission to - Vienna--Negotiations with the Prince of Orange--Terms of a proposed - treaty--Charles tries to get his licenses secretly accepted in - Holland--Third ship-money fleet--Tortuous action of Charles--Captain - Fielding sent in a merchant vessel to offer licenses to Dutch - fishermen--Dutch men-of-war interfere and prevent licenses being - taken--The story leaks out, and is to be “cried down” and another - story told--National discontent and domestic troubles--The “Sovereign - of the Seas”--The question of the salute--Increasing strength and - boldness of Dutch fleet--Arrest and search of English ships--Tromp - and Pennington--The battle in the Downs--Action of English - fleet--Humiliation of Charles--The Dutch the real masters of the seas 286 - - - CHAPTER IX. - - CHARLES I.--_continued._ THE JURIDICAL CONTROVERSIES. - - _Mare Liberum_ and _Mare Clausum_--Dawn of international - law--Claims to maritime dominion conflict with commercial - expansion of period--Opinions of publicists previous to - Grotius--De Castro--Vasquius--The _Mare Liberum_ of Grotius--Its - origin and object--Arguments of Grotius against appropriation - of seas--His later work and opinions--Opponents of _Mare - Liberum_--De Freiras--Pacius--Welwood--His _Abridgment of All - Sea Lawes_ and _De Dominio Maris_--Arguments for appropriation - of sea fisheries--Grotius’ _Defensio_ in reply to Welwood--Other - authorities--Thomas Craig--Gerard Malynes--Alberico Gentilis--The - 100-mile limit--The rights of the Crown in the foreshores and bed of - the sea--Thomas Digges--Sergeant Callis--Chief Justice Coke--Charles - desires to establish his rights to the dominion of the seas by “some - public writing”--Records searched--Sir John Boroughs’ _Soveraignty - of the British Seas_--Its contents and reasoning--Selden’s _Mare - Clausum_--Begun at desire of King James--Published in 1635 by - the king’s commands--Its importance immediately recognised--The - king’s eulogy--The character of _Mare Clausum_--Its facts and - arguments--Absolute sovereignty claimed for English crown--Anxiety in - Holland--States-General resolve on an official refutation of _Mare - Clausum_--Graswinckel’s treatise--Pontanus 338 - - - CHAPTER X. - - THE PARLIAMENT, THE COMMONWEALTH, AND THE PROTECTORATE. - - THE FIRST DUTCH WAR. - - Claim to the sovereignty of the sea and the salute - continued--Instructions to naval officers essentially the - same--Encounter with Swedish squadron--Action approved by Admiralty - committee--Council of State instruct Blake to preserve the dominion - of the seas--The Dutch strike willingly--Strained relations between - the Parliament and the United Provinces--Political revolution in - Holland--Mission of St John and Strickland to The Hague--Propositions - for fusion and alliance--The _Intercursus Magnus_ taken as basis for - treaty--St John’s seven Articles--The thirty-six Articles of the - Dutch--Failure of negotiations--Feeling in England--English letters - of reprisal--Embassy of Cats, Schaep, and Van de Perre--Dutch fleet - increased--Discussion of thirty-six Articles--Fresh instructions - from Holland--The negotiations suddenly interrupted--Blake’s - encounter with Tromp in the Straits of Dover regarding the striking - of the flag--Its antecedents--Tromp’s defective instructions as - to striking--Account of the fight--Indignation in London--Embassy - of the Grand Pensionary, Adrian Pauw--First Dutch war--Blake and - the herring-busses--Tromp’s broom--The Parliament asserts the - right of the Commonwealth to the sovereignty of the seas and the - fishery--Selden’s _Mare Clausum_ translated and published by order of - the Council of State--Controversy between Selden and Graswinckel 378 - - - CHAPTER XI. - - THE PARLIAMENT, THE COMMONWEALTH, AND THE PROTECTORATE--_continued._ - - THE PEACE NEGOTIATIONS. - - The negotiations for peace--Mission of Beverning, Nieuport, Van de - Perre, and Jongestal--The attitude of Cromwell--Proposals for - fusion abandoned--Cromwell’s twelve Articles--The sovereignty - of the sea and the fishery put in the foreground--The twenty-seven - Articles proposed by the Council of State--Claim to the - fishery, the salute, the right of search, the exclusive guard of the - British seas, &c.--The strong objections of the Dutch--Cromwell - acts as spokesman of the Council--Discussion on the flag and the - herring fishery--The negotiations come to a standstill--The Dutch - ambassadors ask for their passports--Cromwell becomes Lord - Protector--Negotiations continued--Dutch proposals regarding - the salute--Cromwell withdraws the fishery article and the - declaration respecting the sovereignty of the sea--The terms - British Seas and Narrow Seas--Dutch propose to strike the flag all - over the world--The ambassadors return to Holland--They come - back again--Cromwell suddenly reopens the question as to the - British seas--Conclusion of treaty of peace--Diplomatic success - of the Dutch regarding the claim to the sovereignty of the sea--The - article on the striking of the flag--Enforcing the salute--Complaints - of English fishermen 414 - - - CHAPTER XII. - - CHARLES II. - - THE SECOND DUTCH WAR. - - Pretension to sovereignty of sea maintained--Efforts to revive - the fisheries--Legislation--Bill against foreigners fishing - on British coasts--Act of Scottish Parliament--Council of the - Royal Fishery of Great Britain and Ireland appointed--The - scheme receives little public support--Slovenly management of - the Society’s affairs--Negotiations with Dutch regarding the - sovereignty of the sea, the flag, and the fishery--Attitude of - De Witt--His negotiations with France--Treaty concluded with - Louis XIV. guaranteeing mutual protection to fishermen--Downing - and De Witt--Treaty of London--Article on flag--Ignorance at - Admiralty as to practice in striking--Second Dutch war--Causes - of--De Ruyter in the Thames--Licenses for fishing offered to - Dutch and refused--Grant of fishing rights to Bruges--Effect of - the war on the fisheries--Dispute between Dutch and French as to - salute--Peace conference at Breda--Claim to fishery withdrawn by - Charles--Treaty article on flag--The term British Seas restricted - to the Channel--Ambiguities regarding the practice of striking--De - Witt’s proposals to Temple for a “Regulation”--The Dutch ambassadors - discuss the matter with Charles--Their declaration about striking - to a frigate or ketch--Practice of striking described--Denmark also - proposes a “Regulation”--De Witt’s intrigues at Paris regarding the - salute disclosed to Charles--Arrangement between France and England - as to striking--Admiralty give close attention to the rules--Foreign - disputes about the salute--General order by the States of Holland 441 - - - CHAPTER XIII. - - CHARLES II.--_continued._ - - THE THIRD DUTCH WAR. - - Policy of Louis XIV.--The Triple Alliance--Secret compact of - Charles and Louis against the Dutch--Parliament deceived--Pretexts - for a fleet--Ill-feeling against Dutch fomented--Inquiries - by Sir Leoline Jenkins as to striking and extent of British seas--The - king’s yacht, _Merlin_, sent to pick a quarrel about the flag--The - scheme miscarries--Downing’s mission to The Hague--Capture - of Dutch shipping--Attack on Smyrna fleet--Declaration - of war--The dominion of the seas flouted--The English to - salute the French--The war and the fisheries--The Dutch sue - for peace--The terms offered--Tribute for fishing asked--Meeting - of Parliament--Shaftesbury on the sovereignty of the sea--The - war most unpopular--Attempts to arouse public feeling as to - dominion of the sea--Prynne--Smith--Roger Coke--Henry - Stubbe--Charles forced to negotiate for peace--The Congress - at Cologne--Prolonged discussions about the flag, the fisheries, - and the sovereignty of the seas--Charles requires the salute - between Cape Finisterre and the North Cape--Dutch assume - a firmer attitude--Refuse to ask for liberty to fish--Offer to - strike in all seas--Congress breaks up--Strong attitude of - Parliament in favour of the Dutch--Separate peace made in - London--Sir William Temple--The claim to the fishery dropped--Article - regarding the salute--A diplomatic triumph for the - Dutch--Disputes at sea about striking--The incidents of the - _Cleveland_, the _Charles_, the _Cambridge_--English commander condemned - to death for striking to the Spaniards--Masters of foreign - merchantmen prosecuted in Admiralty Court for refusing to strike--Works - on the sovereignty of the sea--Evelyn--Molloy--Further - schemes to promote the fisheries 474 - - - CHAPTER XIV. - - JAMES II. AND AFTER. - - Gradual decline of the pretension to the sovereignty of the - sea--England and the United Provinces allied against France--Louis’ - ordinance regarding the salute--William III. claims the - sovereignty of the narrow seas--The question of striking becomes - of little international importance--The Admiralty instructions - concerning--Disputes about it less common--Encounter with a Swedish - man-of-war--The case of the _Gironde_--The naval historians - on the sovereignty of the sea--Articles regarding striking - in later treaties--The ceremony abandoned after the battle of - Trafalgar--General claims to maritime dominion give place to - international arrangements--Sir Philip Meadows--His treatise against - the dominion of the seas--Definite boundaries begin to be fixed - for fisheries--Fishery disputes between Denmark and the United - Provinces--Great Britain sides with the Dutch in opposing claims to - _Mare Clausum_--The North American fishery treaties of the eighteenth - century--The claim to the sovereignty of the seas dies out--Decay of - the Dutch fisheries and rise of the British 517 - - - SECTION II.--THE TERRITORIAL WATERS. - - - CHAPTER I. - - THE HISTORICAL EVOLUTION OF THE TERRITORIAL SEA. - - Various limits proposed or adopted--The old English - lawyers, Glanville, Bracton, Britton, “Fleta”--Early - Italian jurists--Bartolus, Baldus--Limits of 100 and of 60 - miles--Bodin--Gentilis--No general common usage--The mid-line - or Thalweg--The “Mirror of Justice”--Plowden--Chief Justice - Hales--Jurisdiction of Cinque Ports in Channel--The range of - vision or “land-kenning”--Lord Stair--Sarpi’s proposal--Bays, - straits, and arms of the sea--The King’s Chambers--Range of - guns from shore--Proposed by Dutch in 1610--Not adopted in - seventeenth century--Selden, Pontanus, Burgus, &c.--Influence of - Loccenius and Puffendorf--Opinion of publicists at end seventeenth - century--Usage in seventeenth century--Decisions of High Court of - Admiralty regarding King’s Chambers--Gradual change of opinion - and practice--Publicists in eighteenth century--The teaching - of Bynkershoek--Dominion extends as far as projectiles can be - thrown from the shore--Connection with salute and visit and - search--Bynkershoek’s principle only slowly accepted--Opinions of - Casaregi, Abreu, Wolff, Vattel, Hübner, Valin, Moser, Lampredi, - Galiani, Von Martens--Three miles as equivalent to the utmost - range of guns proposed by Galiani (1782), C. F. von Martens - (1789), and Azuni (1795)--Summary of opinions--Usage in eighteenth - century--Tendency to fix definite boundaries--Venice--Great - Britain--Denmark--Sweden--Norway--Spain--Range of guns adopted by - Tuscany, the Pope, Genoa, Venice, and in various international - treaties--Three-mile limit first adopted by the United States of - America in 1793--Exception of bays--Various limits claimed by the - United States 537 - - - CHAPTER II. - - GENERAL ADOPTION OF THE THREE-MILE LIMIT. - - Cannon-range and three-mile limit as its equivalent introduced into - English Jurisprudence in 1800, 1801--Lord Stowell’s decisions - regarding the _Twee Gebroeders_ and the _Anna_ in British High - Court of Admiralty--Restricted to questions of neutrality--The - practice of Great Britain and the United States leads to - general adoption of three-mile limit--First applied to fisheries (of - North America) by Great Britain--Treaty of 1818--Negotiations - concerning Behring Sea--Russian claim of 100 miles--Adoption of - gunshot or three miles--Judicial decisions as to extent of territorial - sea--The Bristol Channel--Conception Bay--Statutes relative - to territorial waters--Foreign Enlistment Act--Territorial - Waters Jurisdiction Act--The _Franconia_ case--Three-mile - limit restricted to the open coast for certain purposes only--Bays - excluded--The Hovering Acts--Customs’ jurisdiction--Quarantine - Acts--Opinions of publicists of earlier part of nineteenth - century--Rayneval, Chitty, Schmalz, Klüber, Wheaton, Kent, - Manning, Heffter, Reddie, Ortolan, Hautefeuille, Pistoye and - Duverdy, Massé--Summary--Most accept cannon-range--Few - accept the three-mile limit 576 - - - CHAPTER III. - - THE FISHERY CONVENTIONS. - - In nineteenth century the boundaries of territorial sea concerned - chiefly with fisheries--Encroachment of foreign fishermen--Dutch - decrees of 1824 and 1829 fixing a limit of two leagues on British - coast--Disputes with French fishermen--Inquiry by select committee - of House of Commons, 1833--Their recommendations--Opinion as to - bays--Renewed encroachments and disputes--Convention with France, - 1839--Three-mile limit and ten miles for bays adopted--Granville - Bay reserved for French--Regulations regarding trawling--Disputes - with Belgian and Dutch fishermen--Belgians claim special rights - under Bruges Charter--Convention of 1852 with Belgium--Dispute - about Fame Islands--Second Convention with France, 1867--Not - ratified--Question of Irish oyster-beds beyond three-mile - limit--Fishery disputes in British North America--The definition - of bays and creeks--British cruisers seize American vessels--The - British Government relax the rule as to Bay of Fundy--Decision of - referee as to this bay--Reciprocity Treaty, 1854--Terminated by - United States, 1866--Concessions by British Government--Licenses - to American vessels--A six-mile limit for bays conceded--Treaty - of Washington, 1871--Terminated by United States, 1885--Treaty - of Washington, 1888--Precise delimitation of bays--Treaty not - ratified by United States--_Modus vivendi_ conceded and still in - force--Discussion as to bays--Renewed disputes in North Sea--The - Belgian “Devil”--The Higgin’s Inquiry--Conference at Hague, - 1881--Views of British Government as to territorial limit--Question - of dependent banks--Trawling and preservation of fish--North Sea - Convention, 1882--Sweden and Norway refuse to join--Discussion - of its terms--Views of British Government as to inclusion of - banks--Question of the Eddystone, the Bell Rock, the Seven-Stones - Rocks--Discussion as to limit under the Conventions and under the Law - of Nations--Anglo-Danish Convention, 1901, respecting the Faröes and - Iceland 604 - - - CHAPTER IV. - - THE MODERN PRACTICE OF STATES AND THE OPINIONS - OF RECENT PUBLICISTS. - - Apparent discrepancy between general practice and - the opinions of publicists--No state has formally - defined the extent of its territorial sea--Practice in - Germany--Denmark--Two limits enforced--Russia--The White - Sea--France--Belgium--Netherlands--Austria-Hungary--Italy--Greece--British - Colonies--Japan--United States of - America--Chile--Argentina--Uruguay--Three-mile limit - generally adopted for fisheries--Exceptions in four European - states--Spain and Portugal claim six miles--Repudiated by - British Government--Discontent in Spain and Portugal--Norway - and Sweden--Special Scandinavian limits--Fjords - reserved--Vestfjord--Varangerfjord--Discussion of Norwegian - limit--Rejection of three-mile boundary--Recent Norwegian laws--The - three-mile limit is an Anglo-American doctrine--Opinions of modern - publicists--Calvo, Bluntschli, Phillimore, Halleck, Lawrence, Bishop, - Woolsey, Dana, Twiss, Fiore, Pradiere-Fodéré, Perels, Ferguson, - Desjardins, Kleen, Aschehoug, de Martens, Hall, Oppenheim--The - limit under the Law of Nations is the range of guns--Declarations - of the International Law Association and the Institut de Droit - International--Three miles insufficient--Six miles proposed for - fisheries, &c--The zone or line of respect for neutrality to be - declared by each state 650 - - - CHAPTER V. - - THE INADEQUACY OF THE THREE-MILE LIMIT FOR - FISHERY REGULATIONS. - - Three miles insufficient for the regulation of the fisheries--Seal - fisheries--Behring Sea arbitration--Oyster, pearl-oyster, and coral - fisheries--Regulations for “floating” fish--Relation of trawl-fishing - to three-mile limit--Recent great extension of trawling--The effect - on the fishing-grounds--Official inquiries--English trawlers desire - an increased limit in North Sea--International conference at - London, 1890--Inquiry by select committee of House of Commons--They - recommend international extension of present limit for fishery - purposes--Immature Fish Bill--Its object--Parliamentary inquiry, - 1900--They urge international arrangement for North Sea--Bill again - introduced--Inquiry by committee of House of Lords, 1904--They - recommend international agreement for North Sea--The impoverishment - of the fishing-grounds in the North Sea--Trawlers flock to foreign - coasts--Feeling among foreign fishermen--Legislation in various - countries regulating trawling beyond the three-mile limit--Norway, - Spain, Portugal, Italy, Austria--Ireland--Not restricted to - bays--Scotland--Fishery Acts--Firth of Clyde--Moray Firth--Act - of 1895 empowering a thirteen-mile limit--Intrusion of foreign - and pseudo-Norwegian trawlers into Moray Firth--Prosecutions and - convictions--Case of Peters _versus_ Olsen--Case of Mortensen - _versus_ Peters--Decision of the Scottish High Court of - Justiciary--Opinions of the judges--Intervention of Norwegian - Government--Release of offenders--Foreign Office decline to open - negotiations with foreign Powers--Debates in Parliament--Lord - Fitzmaurice on territorial limit and bays--Opinions of Lord - Halsbury, Lord Herschell, Lord Salisbury, Lord Chancellor - Loreburn--Declarations of Sir Edward Grey, Minister for Foreign - Affairs--Views of British Government--Previous action of Great - Britain in connection with extra-territorial fisheries--Recent - proceedings with foreign Powers regarding the three-mile limit--The - international fishery investigations--Need of an international - arrangement 693 - - - APPENDIX. - - _A._ The Libel regarding Reyner Grimbald. De Superioritate Maris - Angliæ et Jure officii Admirallatus in eodem 741 - - _B._ Abstract of Proceedings before the Auditors regarding the same - 744 - - _C._ License for Fishing at the “Zowe” Bank in the Channel, 1615 749 - - _D._ Proclamation of James I. relative to the King’s Chambers, 1st - March 1604/1605 750 - - _E._ Declaration of the Jury of the Trinity House as to the Limits of - the King’s Chambers, 4th March 1604/1605 753 - - _F._ Proclamation of James I. for the Restraint of Foreigners fishing - on the British Coasts, 6th May 1609 755 - - _G._ Instructions by the Privy Council of Scotland for the Levying of - the “Assize-herrings” from Foreign Fishermen 757 - - _H._ Proclamation of Charles I. as to preventing Abuses in the Narrow - Seas and Ports, and claiming Sovereignty of the Sea 759 - - _I._ Report of the Admiralty to Charles I. as to the Employment - of the Ship-money Fleet in wafting and securing Foreign Merchants - passing through His Majesty’s Seas, and in protecting Foreign - Fishermen who accept the King’s License, 5th February 1635/1636 762 - - _K._ Abstract of the Thirty-six Articles proposed by the Dutch to St - John at The Hague, 1650, 1651 764 - - _L._ Tromp’s Memorandum to the States of Holland as to the Custom of - Striking the Flag to the English, 27th February/9th March 1651 770 - - _M._ Copy of Originals of Letters between Tromp and Blake, after the - encounter in the Straits of Dover, 1652 771 - - _N._ Concession to Bruges to fish in the British Seas, 1666 772 - - _O._ Articles adopted by the Institut de Droit International at - Paris, and by the International Law Association at London, with - reference to the Territorial Waters 774 - - - INDEX 777 - - - - -LIST OF ILLUSTRATIONS. - - - FIG. PAGE - - THE “BRITISH SEAS,” ACCORDING TO SELDEN _Frontispiece_ - - 1. EDWARD’S NOBLE 37 - - 2. HITCHCOCK’S REPRESENTATION OF THE ENGLISH AND FLEMISH - FISHERIES 99 - - 3. CHART PREPARED BY THE TRINITY HOUSE, SHOWING THE - BEARINGS OF THE KING’S CHAMBERS. FROM SELDEN 121 - - 4. SHOWING THE KING’S CHAMBERS ON THE COAST OF ENGLAND 123 - - 5. FACSIMILE OF KEYMER’s SIGNATURE TO HIS ‘BOOK OF OBSERVATIONS’ 127 - - 6. FACSIMILE OF THE CONCLUDING PART OF THE DRAFT OF - COMMITTEE’S REPORT TO PRIVY COUNCIL REGARDING THE - RESTRAINT OF FOREIGNERS FISHING ON THE BRITISH - COASTS 149 - - 7. FACSIMILE OF MINUTE OF THE DECLARATION OF THE DUTCH - ENVOYS AS TO THE RANGE OF GUNS 156 - - 8. DUTCH WHALERS AT SPITZBERGEN. AFTER VAN DER MEULEN 182 - - 9. SHOWING THE LIMITS OF THE “RESERVED WATERS” CLAIMED - BY SCOTLAND 231 - - 10. DUTCH HERRING-BUSSES UNDER SAIL. AFTER VAN DER - MEULEN 297 - - 11. DUTCH HERRING-BUSSES HAULING THEIR NETS, WITH CONVOYING - SHIP-OF-WAR. AFTER VAN DER MEULEN 299 - - 12. FACSIMILE OF THE OFFICIAL ACCOUNT OF THE MONIES RECEIVED - FROM THE DUTCH HERRING FISHERMEN FOR THE - KING’S LICENSES 310 - - 13. THE “SOVEREIGN OF THE SEAS.” AFTER VANDEVELDE 324 - - 14. FACSIMILE OF PART OF THE CHART, SHOWING WHERE THE - “TWEE GEBROEDERS” WERE TAKEN. FROM ROBINSON, - ADMIRALTY REPORTS 578 - - 15. THE BRISTOL CHANNEL 587 - - 16. SHOWING THE LIMITS RESERVED FOR FRENCH FISHERMEN IN - GRANVILLE BAY 613 - - 17. BAY OF FUNDY 623 - - 18. BAY DES CHALEURS 625 - - 19. SHOWING THE SANDBANKS AT THE MOUTH OF THE EMS 635 - - 20. SHOWING THE LIMITS FOR THE ANGLO-DANISH FISHERY CONVENTION - OF 1901 648 - - 21. SHOWING THE TWO LIMITS IN DANISH WATERS. FROM - ‘DANSK-FISKERITIDENDE’ 654 - - 22. THE WHITE SEA, SHOWING THE LINE BETWEEN CAPE KANIN - AND CAPE SVIATOI 656 - - 23. SHOWING THE LIMIT AT ROMSDAL AMT, NORWAY 670 - - 24. THE VESTFJORD, LOFOTEN ISLANDS 673 - - 25. THE VARANGERFJORD 675 - - 26. SHOWING THE THREE-MILE LIMIT AND A THIRTEEN-MILE - LIMIT IN THE NORTH SEA 703 - - 27. SHOWING THE AREA OF THE SMALL-FISH GROUNDS, WHICH - THE ENGLISH TRAWLERS DESIRED TO HAVE CLOSED FOR - THE PRESERVATION OF IMMATURE FISH 705 - - 28. CHART SHOWING THE FISHING-GROUNDS FREQUENTED BY - BRITISH TRAWLERS. FROM REPORT OF THE BOARD OF - AGRICULTURE AND FISHERIES FOR 1906 712 - - 29. THE FIRTH OF CLYDE, SHOWING THE LINE OF CLOSURE AND - THE ORDINARY THREE-MILE LIMIT 719 - - 30. THE MORAY FIRTH, SHOWING THE LINE OF CLOSURE 723 - - - - -THE SOVEREIGNTY OF THE SEA. - -INTRODUCTION. - - -One of the most prominent and characteristic features in English -history relates to the sea and maritime affairs, and the reason is not -far to seek. The geographical situation of the country--everywhere -surrounded by the waves, separated on the one side from the Continent -by a narrow strait and open on the other to the great ocean--made it -almost inevitable. And to the advantage of insularity was added the -potent influence of race. A great part, if not the larger part, of our -blood has come from the old Scandinavian peoples,--the sea-wolves, as -the Roman poet said, whose school was the sea and who lived on the -pillage of the world; and it is to this circumstance even more perhaps -than to the accident of position that we owe our maritime and naval -supremacy and the vast empire scattered around the globe. Running -through the web of English history one perceives the connecting thread -of maritime interest and occupation interwoven with the national life, -and at all times affecting the national policy. First and foremost -was the necessity of securing the land from invasion; then came the -duty of safeguarding shipping and commerce; and with regard to those -fundamental interests, the language used by our rulers centuries ago -was the same as that which is used by our statesmen to-day. The sea -must be “kept.” That has been the maxim and watchword of national -policy throughout the ages, and the recognition of its truth was -by no means confined to rulers and statesmen. The people at large -have always been as convinced and as resolved that the supremacy or -dominion on the sea should be maintained as were those in whose hands -was placed the guidance of the affairs of the state. Again and again, -when owing to mismanagement of the national resources, the poverty -of the exchequer, or from some other cause, the supremacy at sea was -endangered or temporarily lost, one will find the people clamouring for -steps to be taken to maintain it. On the other hand, such was the deep -and abiding sentiment with respect to the sovereignty of the sea, when -this king or that wished to embark upon a policy or engage in a war for -an object that was secret or unpopular, there was no better method of -deceiving the people than by declaring that the dominion of the sea was -in danger. Thrice in the compass of a single generation the nation was -plunged into war with the object of maintaining it. - -One thus finds in English history a great deal which refers to the -sovereignty of the sea, although the words were not always used to -signify the same thing. Most commonly perhaps they meant a mastery -or supremacy by force of arms,--what is now so much spoken of as -sea-power. In times of peace, the strength of the navy should be such -as to safeguard the commerce that came to the realm and went from -it, thus enabling merchants and traders to carry on their traffic -in security. In time of war, the fleets should be strong enough to -sweep the seas, so that, as it has been described, the bounds of the -empire should then be the coasts of the enemy. But, more strictly, the -sovereignty of the sea was a political sovereignty that existed as a -matter of right, and was duly recognised as such, apart from an actual -predominance of naval power at the time, just as the sovereignty of a -state exists on land, though in both cases its maintenance may depend -upon the sword. In this sense, the sovereignty of the sea signified -the same sole power of jurisdiction and rule as obtained on land, and -also, in its extreme form, an exclusive property in the sea as part -of the territory of the realm,--very much indeed like the rights that -are now admitted by the law of nations to appertain to the so-called -territorial waters of a state. Many things and many interests were -thus embraced in the term besides the question of naval ascendency. -There were jurisdictions of various kinds and for various purposes. -There was the important subject of the fisheries in the waters adjacent -to the coasts, or, it might be, in distant regions. There was the still -more important question of the freedom or restriction of commerce and -navigation from one European country to another, or to the remote -countries in the east or west which had been opened up to commercial -enterprise by the discoveries of the early navigators. There was, -moreover, another subject which was specially characteristic of the -English pretensions to the dominion of the seas, and which gave rise to -more trouble than all the others combined, and that was the demand that -foreign vessels on meeting with a ship of the king’s should lower their -top-sails and strike their flag as a token and acknowledgment of that -dominion. - -Although according to the Roman law the sea was common and free to -all, in the middle ages many seas had become more or less effectively -appropriated, and Civilian writers began to assign to maritime states, -as a principle of law, a certain jurisdiction in the waters adjacent to -their coasts. The distance to which such jurisdiction was allowed by -those writers was variously stated. Very commonly it extended to sixty -or one hundred miles from the land, and thus included all the bordering -sea within which navigation was practically confined. Sometimes -the principle governing the ownership of rivers was transferred in -theory to the sea, the possession of the opposite shores by the same -state being held to entitle that state to the sovereignty over the -intervening water; or, if it possessed only one shore, to the same -right as far as the mid-line. In most cases, however, the appropriation -of the sea was effected by force and legalised afterwards, if legalised -at all, and the disputes on the subject between different nations not -infrequently led to sanguinary wars. - -The most notable instances are to be found among the early Italian -Republics. Long before the end of the thirteenth century Venice, -eminent for her commerce, wealth, and maritime power, assumed the -sovereignty over the whole of the Adriatic, though she was not in -possession of both the shores, and after repeated appeals to the sword -she was able to enforce the right to levy tribute on the ships of -other peoples which navigated the Gulf, or to prohibit their passage -altogether. The neighbouring cities and commonwealths were soon -compelled to agree to her claim, which was eventually recognised by -the other Powers of Europe and by the Pope. The right of Venice to the -dominion of the Adriatic, arising in this way by force, became firmly -established by custom and treaty; and even after she had fallen from -her greatness and was hardly able to sustain her claim by the sword, -it was still for a time admitted by other nations, who looked upon the -Republic as forming a useful barrier to the farther extension of the -Turk in Europe and as a scourge to the Saracen pirates.[1] On the other -side of the Italian peninsula, the Republic of Genoa advanced a similar -claim to the dominion of the Ligurian Sea, and some of the other -Mediterranean states followed the example in the waters with which they -were most immediately concerned. - -Then in the north of Europe, Denmark and Sweden, and later Poland, -contended for or shared in the dominion of the Baltic. The Sound and -the Belts fell into the possession of Denmark, the Bothnian Gulf -passed under the rule of Sweden; and all the northern seas between -Norway on the one hand, and the Shetland Isles, Iceland, Greenland, -and Spitzbergen on the other, were claimed by Norway and later by -Denmark, on the principle referred to above, that possession was held -of the opposite shores. The Scandinavian claims to maritime dominion -are probably indeed the most important in history. They led to several -wars; they were the cause of many international treaties and of -innumerable disputes about fishery, trading, and navigation; they were -the last to be abandoned. Until about half a century ago Denmark still -exacted a toll from ships passing through the Sound,--a tribute which -at one time was a heavy burden on the trade to and from the Baltic. - -Still more extensive were the claims put forward by Spain and Portugal. -In the sixteenth century these Powers, in virtue of Bulls of the -Pope and the Treaty of Tordesillas, divided the great oceans between -them. Spain claimed the exclusive right of navigation in the western -portion of the Atlantic, in the Gulf of Mexico, and in the Pacific. -Portugal assumed a similar right in the Atlantic south of Morocco and -in the Indian Ocean. It was those preposterous pretensions to the -dominion of the immense waters of the globe that caused the great -juridical controversies regarding _mare clausum_ and _mare liberum_, -from which modern international law took its rise. The task of Grotius -in demolishing them by argument was, however, materially facilitated -by the exploits of Drake, Hawkins, and Cavendish on the part of the -English, and of Jakob van Heemskerk on the part of the Dutch; and, as -we shall show, the credit on having first asserted the freedom of the -seas in the sense now universally recognised, belongs rather to our own -Queen Elizabeth than to the Dutch publicist. - -In thus appropriating the seas adjacent to their territories, or which -formed the means of communication with them, the various nations -were doubtless impelled by consideration of their own immediate -interests. Sometimes it helped to secure the safety of their coasts or -commerce; in other cases it enabled them to levy tribute on foreign -shipping traversing the appropriated waters, and thus to increase -their revenues; or it allowed them to preserve the fisheries for the -exclusive use of their own subjects. In most instances, however, the -principal object appears to have been to maintain a monopoly of trade -and commerce as far as possible in their own hands, in accordance with -the commercial spirit of the times. - -But when the matter is more carefully examined in its historical -aspects, a less selfish explanation may be found of the tendency to -appropriate seas in the middle ages. In the state of wild anarchy which -prevailed after the break-up of the Roman empire, pirates swarmed along -every coast where booty might be had. Scandinavian rovers infested the -Baltic, the North Sea, and the Channel; Saracens and Greeks preyed upon -the commerce of the Mediterranean; everywhere the navigation of trading -vessels was exposed to constant peril from the attacks of freebooters. -The sea was then common only in the sense of being universally open to -depredation.[2] The lawlessness and insecurity that reigned on the -sea led merchants, in the absence of effective sovereign authority, -to form associations among themselves for mutual protection, and to -maintain by force the security of navigation in the common interest. -Independent princes at first made use of the armed fleets of those -voluntary associations, and later, as their power grew stronger and -better organised, they took over the duty of policing the neighbouring -seas under an admiralty jurisdiction of their own, which enforced the -maritime laws and customs, such as the Laws of Oleron, that had been -gradually developed among the merchant associations. In the thirteenth -century this duty of exercising supreme admiralty jurisdiction on the -neighbouring sea came to be regarded as a prerogative of sovereign -power,[3] and it was only a short step further to the assertion of an -exclusive dominion. It was natural that this assumption of sovereignty -on the sea should first be made by the great trading cities of -Italy, who then controlled the important traffic between the east -and the west, and whose shipping was to be found in all the ports of -Christendom. It was also natural that the Italian jurists should be -the first to attempt to give it a legal sanction, by assigning a large -part of the bordering sea for the exercise of those sovereign functions -which were originally confined to the maintenance of order and the -punishment of delinquents. There is little doubt that the assumption of -sovereign jurisdiction in this way was advantageous to navigation and -commerce in those times, though later, with the extension of commercial -intercourse and the increased security of the sea, it became burdensome -and unnecessary. - -There are good reasons for the belief that the English claims to the -sovereignty of the sea originated in this humble way--by the exercise -of jurisdiction in the interests of peaceful commerce--some time -after the Norman Conquest, and in all probability first of all in the -Channel or the Straits of Dover. The earliest indication of it is to -be found in the much-discussed ordinance which King John issued in -1201. By that ordinance any ships or vessels, “laden or empty,” which -refused “at sea” to lower their sails when ordered to do so by the -king’s lieutenant or admiral in any voyage appointed by the Council, -and resisted the demand, were to be reputed as enemies, and the ships, -vessels, and goods were to be seized and forfeited and the crews -punished. This is the first evidence of the custom of lowering the -top-sails and striking the flag which afterwards became so notorious as -a supposed acknowledgment of the English sovereignty of the sea; and it -is to be noted that, in later times at least, the vessel had not only -to strike, but had also to “lie by the lee.” Considering the prevalence -of piracy and the jurisdiction exercised by the state for its -suppression, as above described, and in view likewise of the special -measures taken by John to encourage and safeguard foreign commerce, the -most reasonable explanation of the origin of the custom is that the -demand for the sail to be lowered--and the largest vessels then had but -one mast and a single sail--was to enable the king’s officers, who were -there to maintain the security of navigation, to ascertain the true -nature of the vessel which they challenged, whether it was a peaceful -trader or a pirate. In all ages piratical vessels have been generally -swift, and, if we judge from later times, the ships used in the navy -were generally slow: the command to a vessel to lower its sails was -thus made in order to deprive it of the power of escaping until the -king’s officers had satisfied themselves as to its _bona fides_, and -was equivalent to the gun that was fired in later times in connection -with “visit and search.” Shortly before the ordinance was issued, -John sent writs to the Mayor and Commonalty of London and to all the -Sheriffs of England instructing that all merchants, of what nation -soever, should have safe conduct to pass into and repass from England, -and to enjoy peace and security.[4] It is noteworthy that in the first -record relating to the seizure of a vessel for not lowering its sail (a -Flemish herring smack, in 1402) it was pled on its behalf that it was -not armed, and that the sail had been dropped at the first command. It -is also noteworthy that the ordinance of John was placed in the _Black -Book of the Admiralty_ immediately after the mercantile marine laws. - -Further evidence as to this sort of jurisdiction in the so-called “Sea -of England” is to be found in the reign of Edward I., at the end of -the thirteenth century and the beginning of the next, in the reign -of Edward III., and later, more particularly in the famous rolls, -“On the Supremacy of the Sea of England and the Right of the Office -of Admiralty in the same,” as well as in the _Black Book_. The rolls -referred to show that England had the sovereign jurisdiction in regard -to the maintenance of peace and security in the Sea of England, but -there is no evidence to indicate that that Sea extended far from the -coast, or that the rights exercised differed from those put in force by -other maritime states in the waters adjoining their territory. A great -deal was made later of these rolls and of the ordinance of John, as -proving that the Angevin or Plantagenet kings possessed the sovereignty -of the sea; but beyond the jurisdiction in question, which doubtless -was exercised in the Straits of Dover and perhaps in the Channel when -the coasts on each side were in the possession of the crown, there is a -lack of evidence to prove that any claim of the kind was made. In those -times the kings of England were not infrequently styled Lords of the -Sea, but this appears to have been either because of the existence of -this “sovereign lordship” in the neighbouring waters, or, more usually, -because they held at the time the actual command and mastery of the -seas in a military sense. There were long periods when nothing was -heard of any pretension by England to a special sovereignty of the sea, -and, in point of fact, the characteristic features of appropriation -were always absent. No tribute was levied on foreign shipping passing -through the Channel or the narrow seas, even when both coasts were -held by the king, as was done by Denmark at the Sound and by Venice in -the Adriatic. After the battle of Agincourt, when Henry V. had been -recognised by the Treaty of Troyes as the future king of France and the -power of England was predominant, the proposal of Parliament that such -tribute should be levied was set aside. Foreign ships of war freely -navigated the adjacent seas without asking or receiving permission to -do so. The sea fisheries, moreover, were not appropriated. All people -were at liberty to come and share in them, and this freedom to fish -on the English coast was expressly provided for in a long series of -treaties with foreign Powers. The so-called sovereignty of the seas -exercised by England thus differed from the actual sovereignty enjoyed -by Venice and the northern states of Europe, whose rights were, -moreover, recognised in numerous treaties with other nations. - -Until the accession of the Stuarts indeed, any pretension of England -to a sovereignty in the sea had but little international importance. -The custom of lowering the sail by vessels encountering a king’s ship, -which probably, as above described, originated in a practical way, -had grown into a ceremony in which the top-sails were dropped and -the flag hauled down; but it is evident that this was done, even in -Tudor times, rather as a matter of “honour” and respect than as an -acknowledgment of maritime sovereignty. But after the Stuarts came to -the throne the claim of England to the sovereignty of the sea became -prominent in international affairs. The doctrine may be said to have -been introduced by this dynasty and to have expired with it. One of -the first acts of James I. was to cause to be laid down on charts the -precise limits of the bays or “chambers” along the English coast, -within which all hostile actions of belligerents were prohibited. This -sensible proceeding, which had reference to the continuance of the war -between the United Provinces and Spain (from which James had himself -withdrawn), is not to be regarded as in any sense an assertion of -maritime sovereignty or jurisdiction beyond what was customary; and -it does not appear that any other prince or state contested the right -of the king to treat these bays and arms of the sea as territorial in -respect of neutrality. The limits of the “King’s Chambers” were fixed -by a jury of thirteen skilled men, appointed by the Trinity House, -according to their knowledge of what had been the custom in the past; -and there is little doubt that the limits they adopted merely defined -in an exact way what was previously held to be the waters under the -special jurisdiction of the crown, or, in other words, the “Sea of -England,” though the latter doubtless included, at times at least, the -Straits of Dover and perhaps the Channel as well. - -But James went further than this. In 1609 he issued a proclamation -in which he laid claim to the fisheries along the British and Irish -coasts, and prohibited all foreigners from fishing on those coasts -until they had demanded and obtained licenses from him or his -commissioners. This policy of exclusive fishing, though in complete -agreement with the views held in Scotland as to the waters “reserved” -for the sole use of the inhabitants, was a reversal of the long-settled -practice in England, where fishing in the sea was free. It is from -this time that one may date the beginning of the English pretension -to the sovereignty of the sea. The proclamation and the policy were -aimed against the Dutch, the great commercial people of those times. -Their ever-increasing herring fishery along the British coast was one -of the principal sources of their wealth and power; by means of it -indeed, according to their own accounts, they were able to maintain -their vast commerce and shipping. The action of James may be looked -upon as the first blow in the great contest between the English and -the Dutch for maritime and commercial supremacy, which was prolonged -throughout the seventeenth century; and the ready acceptance of the new -policy by the English people was owing to the fact that the conditions -had been gradually preparing for it in the preceding reign, while the -two nations were still bound together in alliance against Catholic -Spain. With the new development of commercial enterprise the English -found the Dutch their competitors in trade in all parts of the globe to -which they ventured. The feeling of jealousy that was thus engendered -was embittered by the belief that they were often circumvented by the -Dutch by unfair means, and this feeling deepened with every year as -the century advanced. It was thus against the Dutch that the English -pretension to the sovereignty of the sea was specially directed, and it -eventually culminated in war. From various circumstances, and not least -perhaps from the timid character of James when force was necessary, the -policy of preventing the Dutch from fishing on the British coasts was -not carried into effect in his lifetime. But with the tenacity that -was a curious feature in his nature, his claim to the fisheries was -kept alive and formed the subject of mutually irritating negotiations -throughout the whole of his reign. - -Under Charles I. the English pretension rapidly developed and -reached its greatest height, in connection more particularly with -the ship-money fleets. The need of an efficient navy for the most -elementary duty of safeguarding the sea had been made fully manifest -by the frequent and flagrant violations of the king’s sovereignty in -his “chambers,” and even in the ports and harbours, both by the Dutch -and Dunkirkers. And some of the reasons which were used to justify the -formation of a powerful fleet, far beyond the requirements necessary to -enforce the ordinary jurisdiction, were sound enough. Without it, it -was said, the kingdom could not be made safe, whereas if the king had -the command of the seas he would be able to cause his neighbours “to -stand upon their guard” whenever he thought fit; and it could not be -doubted that those who would encroach upon him by sea would do it by -land also when they saw their time. But the pretensions of Charles went -far beyond this. He had caused the records in the Tower to be searched -for evidence of the ancient supremacy exercised by the crown in the -Sea of England, and when they were found they were interpreted in the -widest possible sense. Charles assumed the rôle of the Plantagenets -with a good deal added. The bounds of the Sea of England were extended -to the coasts of the Continent, and over all the intervening water -the king was to enforce an absolute sovereignty. No foreign fleets or -men-of-war were to be allowed to “keep any guard” in them, to offer any -violence, or to take prize or booty. All passing through them were to -be “in pace Domini Regis,” in the peace and under the protection of the -King of England, who was Lord of the Seas, ruling over them as part of -his territory, and he would take care that there was no interruption of -lawful intercourse. And as an acknowledgment of this sovereignty, all -foreign ships or vessels meeting with a king’s ship in “those his seas” -were to lower their top-sails and strike their flag as they passed by. -Charles even proposed to levy tribute on the foreign ships that passed -through “his seas,” but by the advice of the Admiralty this was to be -only voluntary, in payment for waftage or convoy. - -These extraordinary pretensions Selden attempted to justify in his -book, _Mare Clausum_, but Charles was unable to carry them into effect. -It is pitiful to read of the proceedings of the great ship-money -fleets, created under circumstances so memorable in English history, -roaming about the Channel in their vain attempts to compel the French -men-of-war to strike their flags, and in the North Sea forcing the -king’s licenses on the poor Dutch herring fishermen. The Earl of -Northumberland succeeded in the latter mission, against which the -Dutch Government strongly protested, and there is no doubt that if -the policy had been persisted in, the first Dutch war would have been -antedated by some fifteen years. - -At this period and during nearly all the remainder of the century the -greatest prominence was given to the striking of the flag, which had -continued to be a matter of small importance in the reign of James. It -was now claimed as a token and acknowledgment of England’s sovereignty -of the sea, and it was insisted on with the utmost arrogance. The -“honour of the flag” burned like a fever in the veins of the English -naval commanders, who vied with one another in enforcing the ceremony, -not merely in the Channel or near the English coast, but in the roads -and off the ports on the Continent; and the records relating to their -achievements in this respect were treasured up in the archives of the -Admiralty, to be used again and again in later diplomatic negotiations -as to the rights of England to the sovereignty of the sea. Dutch -ships, and in particular the men-of-war, made little scruple about -performing the “homage.” The Government of the United Provinces were -keenly concerned about their commerce and fisheries, and so long as the -English pretension did not menace these substantial interests they were -willing to show “respect” to the English flag--never, however, as an -acknowledgment of any supposed sovereignty of the sea. - -While Charles was on the throne no serious international consequences -resulted from the enforcement of the salute. The Dutch, as has been -said, readily rendered it, and by the prudent policy of Richelieu the -French ships were kept out of the way; and not very long thereafter -Charles was stripped of his sovereignty on land as well as on the sea. -But a little later it had noteworthy results. It was the reluctance of -Lieutenant-Admiral Tromp to lower his flag to Blake in their historic -meeting in the Straits of Dover in 1652 that precipitated the first -Dutch war. By this time the States-General of the United Provinces, -and the State of Holland in particular, had considerably abated their -readiness to render the “homage of the flag,” even as a mark of -respect, thinking that it might be construed as an acknowledgment -on their part that the Republic of the Netherlands was inferior to -the Republic of England. They had dallied with the subject when it -was brought before them in connection with the instructions to their -fleets, and had refrained deliberately from giving precise orders about -it. The Commonwealth, on the other hand, assigned as much importance -to the striking of the flag as Charles had ever done, considering that -it touched their dignity as well as their sovereignty in the seas, and -the instructions they issued to the naval commanders were practically -the same as those that had been given to the ship-money fleets. Even -the godly Barebones’ Parliament of 1653, which looked upon the Dutch -as a carnal and worldly people, held it necessary that the seas should -be secured and preserved as peaceable as the land, as a preparation -for the coming of Christ and the personal reign. The traditional -sentiment of the English nation respecting supremacy at sea had never -been stronger; their jealousy of the commercial pre-eminence of the -Dutch was never keener. In the prolonged negotiations that preceded the -conclusion of peace, Cromwell, who, until he became Lord Protector, -acted as spokesman for the Council, put the questions relating to the -dominion of the sea in the foreground. The draft articles which he -submitted to the Dutch for their acceptance, while permitting their -merchant vessels to navigate the British seas (a provision offensive in -itself), proposed to limit the number of their men-of-war that might -be allowed to pass through those seas, and if occasion arose for a -larger number, the Dutch Government were to give three months’ notice -to the Commonwealth and obtain consent before they put them forth. -Their men-of-war, as well as their merchant vessels, were to submit to -be visited and searched. The Dutch were to have liberty to fish upon -the British coasts on payment of an annual sum for the privilege. They -were to render the honour of the flag to any ship of the Parliament. Of -all these demands the only one that was conceded was the last, and it -was a small triumph for Cromwell that he was able, for the first time, -to bind another nation to this ceremony by the formal stipulation of a -treaty. The Dutch, however, were able to eliminate from the article the -words representing that the striking of the flag was an acknowledgment -of England’s sovereignty of the sea; and it was pointed out in Holland -that they had undertaken to do nothing more than they had previously -done. - -After the Restoration the pretension to the sovereignty of the sea -was continued with almost as much zeal as before. Charles II. did not -indeed lay claim to an absolute dominion over the British seas, such -as his father had done in the earlier part of his reign. But on all -occasions when the opportunity offered, he held to his alleged right -to levy tribute for the liberty of fishing on the British coasts, but -without the least success. And as for the right to the “honour of -the flag,” if it was not exacted with the same arrogance as it had -been earlier in the century, it came now to be more than ever before -a subject of importance in international relations, especially with -the United Provinces. De Witt, the able Minister who directed Dutch -affairs, was very desirous to arrive at a definite understanding about -it, for he saw that to leave in ambiguity a matter which England -regarded as touching her national honour would be to imperil the -peaceful relations between the two countries. His object was to have a -well-considered regulation prepared and agreed to, so that the points -in ambiguity might be made clear, and also to provide that if the -Dutch saluted first the English should then return the salute; and he -stipulated that the striking of the flag or any agreement about it -must not be looked upon as an acknowledgment of England’s so-called -sovereignty of the sea; the Dutch, he said, “would rather die” than -admit it. One of the points which was in obscurity was whether a whole -fleet or squadron of the States was to strike to any single ship of the -king’s, even if it was a frigate or a ketch, which did not customarily -carry the royal flag in the main-top, or only to an admiral’s ship or -one carrying the royal flag. De Witt let it be known in the clearest -manner that in his opinion it was intolerable that an English frigate -or ketch could claim to force a whole Dutch fleet to strike to it. -A few years later, when Charles wished to give effect to his secret -compact with Louis XIV. by waging war against the United Provinces, it -was necessary to hoodwink the English people as to this flagrant breach -of treaty obligations. He therefore contrived, as the means of picking -a quarrel with the Dutch, a dispute about the honour of the flag, and -he sent, not a frigate, but his yacht, the _Merlin_, to force the whole -Dutch fleet to strike to it, and thus to raise a clamour in England, -as he hoped, about the sovereignty of the sea being flouted and -endangered. In the third Dutch war which followed, the United Provinces -maintained the contest at sea with credit and success against both the -English and the French. For domestic reasons Charles was forced to make -a separate peace, and in the long negotiations with that object the -question of the sovereignty of the sea was brought prominently forward. -An attempt was made again to induce the Dutch to agree to pay an annual -sum of £12,000 for the privilege of fishing on the British coasts, but -the only concession obtained from them related to the striking of the -flag. The article in the treaty of peace which dealt with this differed -from the corresponding article in previous treaties. The term “the -British Seas” was omitted, and it was agreed that even squadrons of the -Dutch should strike to any single ship of the king’s in “any of the -seas” from Cape Finisterre to Van Staten in Norway; but it was to be -done as an “honour” to the king’s flag, and not as an acknowledgment -of his alleged sovereignty of the sea. The Dutch, indeed, offered to -strike in the same way all the world over. - -After this time the English claim to the sovereignty of the sea began -to lose its importance. In subsequent treaties with the Dutch Republic, -even as late as 1784, a clause was inserted providing for the salute, -but it had become merely a matter of form and precedent. The ceremony, -in truth, had grown to be a political encumbrance, and after the battle -of Trafalgar, when British supremacy at sea was unquestioned, the -clause relating to the enforcement of the salute was quietly dropped -out of the Admiralty instructions. - -It is remarkable that throughout the whole of the long period in which -England claimed sovereignty in some form or other over the so-called -“Sea of England,” or the “British Seas,” no authoritative definition -was ever given of the extent of sea included in the term. In the case -of the Adriatic there was no difficulty in understanding the limits -within which Venice assumed maritime dominion, for the Adriatic is -a narrow landlocked gulf whose boundaries were obvious. It was much -the same with the claims put forward by Denmark. Both shores of the -Sound were in her possession, and both coasts of the northern or -Norwegian Sea. But with our island, washed everywhere by the waves, no -such natural boundaries existed. Except when the crown possessed the -opposite coast of France, England was isolated; and the Sea of England, -so frequently referred to from the thirteenth to the seventeenth -century, like the British Seas later, remained only a political -expression, not officially described or represented on charts. Reasons -have been given above for supposing that the Sea of England prior to -the accession of the Stuarts included the waters of the King’s Chambers -as defined by James, and perhaps also at times the Straits of Dover -and it may be the Channel, though precise evidence is lacking. In the -seventeenth century, when the term the British Seas was commonly used, -it is clear that the boundaries assigned to them were as vague and -fluctuating as the sovereignty exercised over them. They expanded and -contracted according to the naval power at the time and the condition -of international affairs. Sometimes the whole sea up to the continental -coasts was claimed as British; at other times the claim was restricted -to the Channel or the Straits of Dover, and to a more or less narrow -but undefined belt along the coast; not unfrequently it seemed to -vanish altogether, at least as a thing to be regarded in international -affairs. In the earlier records in which the sea is referred to in -connection with English law or jurisdiction, it is evident that a -certain part was held to appertain to the crown. In an article in the -_Black Book of the Admiralty_ which is ascribed to the reign of Henry -I. (A.D. 1100-1135), reference is made to “the sea belonging to the -king of England”; in John’s ordinance of 1201 the term was simply “the -sea” (_la mer_), but very commonly it was “our sea,” or the “sea of -England,” or “the sea under the dominion or jurisdiction of the king”; -while the declaration is often made that the kings of England are lords -of the sea or of the English sea.[5] Similar phrases were used in -later times. Thus Queen Elizabeth spoke of “our seas of England and -Ireland,” and James of “his seas” and “streams,” as did also Charles -I.; and such terms as “the adjacent sea,” the “environing seas,” -the “ambient seas,” and “the seas flowing about the isle,” were not -uncommonly used.[6] Still more common and scarcely more definite was -the term the “Four Seas of England,” or simply the “Four Seas,” which -was employed as early as the thirteenth century in law books, statutes, -and official documents, as indicating the boundaries of the realm in -connection with legal proceedings. Within the four seas (_infra_ or -_intra quatuor maria_; dedeinz les quaters meers) was to be within the -realm; and without the four seas (_extra quatuor maria_, oultre les -quaters meers) was to be without the realm.[7] - -In the seventeenth century, when the English pretension to the -sovereignty of the sea was at its height, Coke, Selden, Prynne, and -others maintained that to be on the four seas, as well as within them, -was to be within the realm, under the jurisdiction of the Admiralty, -and this doctrine was held, at least formally, as late as 1830.[8] -Rarely the “Three Seas” are mentioned,[9] and less rarely the “Two -Seas,” by which was meant the two arms of the sea passing respectively -between England and France, and England and Flanders, and corresponding -to one of the meanings of the Narrow Sea. - -The term, the Narrow Sea or the Narrow Seas, was applied at different -times or by different writers to very various areas. In its original -and more restricted sense it denoted the Straits of Dover; sometimes it -signified only the southern sea or the Channel proper; at other times -it included also the sea south of the Wash and the Texel; and yet again -it was synonymous with the whole of the British seas in which dominion -was claimed. In the political poem, _The Libelle of Englyshe Polycye_, -which was written about 1436 with the object of rousing the nation to -the paramount duty of “keeping the sea,” the narrow sea is spoken of -as lying between Dover and Calais,[10] as it is also in the records of -the Privy Council for 1545, which mention the appointment of ships to -“kepe the passage of the Narrow Seas.”[11] Later in the same century, -and very generally in the seventeenth century, it was used to include -the Channel, as when the Earl of Salisbury in 1609 referred to “his -Majesties narrow seas between England and France,”[12] and likewise -the sea off the Dutch coast; and at this period the Admiralty usually -distinguished between the guard of the Narrow Seas and that of the -North Sea. - -But in other cases, and very commonly in the seventeenth century, the -Narrow Sea was equivalent to the marginal sea along the whole coast or -to the “British Seas.” Thus in one of James’s proclamations in 1604 for -preventing abuses in and about “the narrow seas,” they are referred to -as being commonly called the four English Seas, and this was repeated -in a proclamation of Charles I. in 1633. So also Lord Chief Justice -Hale in his treatise, _De Jure Maris_, describes the narrow sea, -adjoining to the coast of England, as part of the waste and demesnes -and dominions of the King of England; and in another work he speaks of -the narrow sea lying between us and France and the Netherlands. - -After the union of the Crowns the “British Seas” were very often -referred to, and there was equal want of definition of their limits as -in the case of the Sea of England. The advocates of the English claims -to the sovereignty of the sea assigned them a wide but vague extent, -while the Dutch argued that the British Sea was the Channel, the Mare -Britannicum of Ptolemy and others, the North Sea being distinct and -known as Oceanus Germanicus. In many of the diplomatic negotiations -that took place on the subject there were heated discussions as to -the meaning of the term the “British Seas,” and in point of fact the -British representatives, like the Admiralty itself, were unable to -define them. The only serious attempt which was made to define the -Sea of England or the British Seas in relation to the claim to its -sovereignty was made by Selden in 1635. It did not fail on the side -of modesty, for according to him the Sea of England was “that which -flows between England and the opposite shores and ports.”[13] More -particularly in the opening chapter of his second book he describes -the British Sea (Oceanus Britannicus) as being divided into four parts -according to the four quarters of the world. On the west lay the -Vergivian Sea, also called the Deucaledonian Sea where it washes the -coasts of Scotland, and in which Ireland is placed; on the east is the -German Ocean, so called by Ptolemy because it lies opposite the German -shore; on the south, between England and France, is the sea especially -noted by Ptolemy as the British Sea, the Mare Britannicum; but in -reality all the sea extending along the shores of France through the -Bay of Aquitaine (Bay of Biscay) as far as the northern coast of Spain -was British. Since the northern and western ocean stretches to a great -distance, to America, Iceland, and Greenland, and to parts unknown, -it could not “all be called British,” but inasmuch as the King of -Great Britain had very large rights in those seas, beyond the extent -of the British name, it was not wholly to be left out of account. The -indefiniteness of these boundaries to the north and west is obvious, -but in a chart which he furnished, and which is reproduced in the -frontispiece of this book, he presumably represented what he regarded -as the British seas proper; and in several places in his work he -expressly declared that the English sea and the English sovereignty of -the sea extended to the opposite shores of the Continent. - -Throughout almost the whole of the remainder of the century after -the appearance of _Mare Clausum_, Selden’s authority was paramount -on all questions relating to the sovereignty of the sea, and his -description of the extent of the British seas was very generally -adopted, both by writers and by the Government, at least in theory. -But it not infrequently happened on particular occasions when a -precise definition of their extent was required, that only a vague -declaration was forthcoming. Again and again one finds English admirals -and naval commanders imploring the Admiralty to tell them the bounds -of the British seas, so that needless broils about the salute might -be avoided. As a rule, no reply was given to their inquiries; and -when it was, it was usually so oracular as to be of little practical -advantage. Thus the Earl of Lindsey, when placed in command of the -first ship-money fleet, put the question to Secretary Coke, and was -told that his Majesty’s seas “are all about his dominions, and to the -largest extent of those seas,” and similar explanations were given on -other occasions. There is evidence that neither the Admiralty nor the -law officers of the crown were able to state what the boundaries of the -British seas were, and sometimes the Trinity House was appealed to, -with but little better result. In truth, it was part of the national -policy to leave their boundaries undetermined. The free navigation -of the North Sea and the Channel was of vital importance for many of -the states of Europe, and three of them at least--the Netherlands, -France, and Spain--had large interests in the fisheries on the British -and Irish coasts. If this country had by a formal act of state -assigned definite and wide boundaries to the British seas within which -sovereignty was claimed, it would have led to frequent and hopeless -wars or to constant humiliation. By leaving them vague and ambiguous -the pretension to maritime sovereignty could be put forward and used -as a political instrument when the navy was strong and occasion -offered, and when the navy was weak the pretension might fall into -the background without the national honour being unduly tarnished. But -on the whole, the claim to the sovereignty of the so-called British -seas became an anachronism and was allowed to die out from practical -affairs, surviving only in the pages of historians, naval writers, and -pamphleteers. During the almost constant naval wars in the eighteenth -century a new principle came into being for the delimitation of the -neutral waters of a state, the extent of the adjacent open sea that -might be appropriated being determined by the range of guns from the -shore. All the water within reach of cannon-shot could be protected -and commanded by artillery on the land, and thus made susceptible -of exclusive and permanent dominion. This principle was accepted -very generally by the various maritime Powers as offering a just and -equitable means of fixing the limits of their territorial waters, -within which the bordering state had exclusive sovereign jurisdiction. -It has also been accepted by the great majority of modern publicists, -and the phrase of Bynkershoek, “terræ dominium finitur ubi finitur -armorum vis,” has become enshrined in the Law of Nations. - -Later, and mainly through the action and practice of the United States -of America and Great Britain since the end of the eighteenth century, -the distance of three miles from shore was more or less formally -adopted by most maritime states as equivalent to the range of guns, and -as more definitely fixing the limits of their jurisdiction and rights -for various purposes, and, in particular, for exclusive fishery. At -the time the three-mile limit was introduced, that distance did indeed -represent the farthest range of artillery, so that the boundary was the -same in each case; and it was sufficient to secure to neutrals that -their coasts should not be violated by the operations of belligerents -carried on beyond three miles from the shore, while at the same time -it furnished a practical measure of the extent of the protection that -neutral Powers were bound to afford to the vessels of one belligerent -from attacks by the other. But all this is changed. Guns are now able -to throw shells to a distance of fifteen miles and more, and the -three-mile limit has become quite inadequate to secure the coasts -of a neutral from damage from the guns of belligerents engaged in -hostilities in the waters near their shores. The argument is not -uncommonly used that inasmuch as Great Britain is the predominant -maritime Power, it is to her advantage that the territorial waters of -all countries should be as narrow as possible. The wider the theatre -the better chance for our navy, either in engaging the battle fleets -of the enemy or in capturing his shipping. The importance of the -change in the conditions referred to above is overlooked. There has -been no great maritime war in Europe since the three-mile limit was -adopted as the equivalent of the range of guns. If and when another -maritime war unfortunately breaks out, it would be absurd to suppose -that the neutral Powers within the sphere of possible operations would -be content with a three-mile limit to safeguard the security of their -coasts. As provided for in the rules drawn up by the Institute of -International Law, their duty would be to prohibit all hostilities -within such distance of their coasts as would render them secure, and -this in turn would involve the immunity from capture within the same -space of the merchant vessels of one of the belligerents by the vessels -of the other. And thus if this country were engaged in a great maritime -war, such as occurred a century or so ago, a very considerable belt of -sea on neutral coasts would be closed to the operations of the fleet, -and the conditions of naval warfare would be profoundly changed. - -With regard to the other questions of sovereignty or exclusive rights -in the seas washing the coasts of a country, it is becoming more and -more recognised that there is no reason in nature why the boundary -for one purpose should be the boundary for all purposes. Just as -the three-mile limit is now obsolete in respect to belligerents and -neutrals in time of war, so is it inadequate in all cases with regard -to the protection and preservation of the sea fisheries. In the -concluding chapters of this book it is shown that all recent inquiries -by Parliament into the condition of the fisheries, especially of the -North Sea, have resulted in proving the inadequacy of the present limit -for fishery regulations, and in recommendations that the subject should -be dealt with internationally by the various countries concerned. - - -SECTION I. - - THE HISTORY OF THE CLAIMS TO THE - SOVEREIGNTY OF THE SEA - - - - -CHAPTER I. - -EARLY HISTORY. - - -When the claim of the English crown to the sovereignty of the British -seas became a question of international importance in the early part of -the seventeenth century, the records of history and the treasures of -ancient learning were searched for evidence to establish its antiquity. -Some of the greatest lawyers and scholars of the time took part in the -task, and they were not always content with the endeavour to prove that -the claim was in conformity with the laws of England as an old heritage -of the crown, but they tried to trace it back to a remote past. Selden, -who was incomparably the ablest and most illustrious champion of the -English pretension, as well as Boroughs and Prynne and other writers -of lesser note, laboured with more or less erudition and ingenuity -to show that the British dominion in the adjoining seas was anterior -to the Roman occupation. From the ancient Britons it was supposed to -have passed to the Roman conquerors as part and parcel of the British -empire, and to have been exercised by them during their possession of -the island.[14] It is unnecessary to discuss the evidence and arguments -for these contentions. They are for the most part drawn from scattered -passages or even phrases in the writings of classical authors, to which -a strained and improbable significance was assigned. An example may -be given from Selden, who, in referring to the well-known passage in -Solinus[15] in which Irish warriors are described as decking the hilts -of their swords with the tusks of sea-beasts (walrus), first tries to -show that the passage applied also to the Britons, and then argues that -there must have been a great fishing and a large number of fishermen -to provide sufficient material, the conclusion being that the British -seas were “occupied” by navigation and fishing. In reality the walrus -tusks came by barter from the north, and there is little or no evidence -to show that the ancient Britons fished for anything except salmon. At -the utmost it may be said that the Romans were masters of the British -seas, or parts of them, in a military sense. During their occupation of -Britain they were also in possession of Gaul, and thus held both coasts -of the narrow sea, and no doubt exercised authority over it, as the -Norman and Angevin kings under similar circumstances did later. - -Throughout the Anglo-Saxon period of English history evidence of -the existence of a sovereignty over the adjoining sea, or even of a -pretension to it, is almost as unsatisfactory. Here again the authors -who championed _mare clausum_ professed to find in very ordinary -events arguments in favour of their case. The seafaring habits of the -Teutonic invaders and their daring and valour--they were described by -the Roman poet as sea-wolves, fierce and cunning, with the sea as their -school of war and the storm their friend--were regarded as proof that -they possessed maritime sovereignty after their conquest of Britain. -The Danegeld, a tax which was originally levied as a means of buying -off the Danes, or of providing a fleet to resist their attacks, was -thought by Selden to show the same thing.[16] So also with the fleets -collected by Alfred, Edgar, Ethelred, and other English kings to oppose -the invasions of the Northmen,--they were believed to have secured -and maintained dominion over the sea. Even the beautiful lesson in -humility which Cnut desired to convey to his courtiers when, seated in -regal pomp on the seashore, he vainly commanded the inflowing tide to -stay its course at his behest, was seized on for the same end. “Thou, -O sea,” said the great king, “art under my dominion, like the land -on which I sit; nor is there any one who dares resist my commands. I -therefore enjoin thee not to come up on my land, nor to presume to wet -the feet or garments of thy lord.” In these words Selden professed to -find clear proof that Cnut claimed the British seas as part of his -dominions.[17] - -There appears to be only one instance before the Norman Conquest in -regard to which _prima facie_ evidence was produced that an English -king expressly claimed the sovereignty of the sea, and as it is -constantly quoted by later writers it may be worth while examining it. -The chronicles agree that the naval power of England was specially -manifested by King Edgar (A.D. 959-975), who is said to have possessed -a fleet of several thousand vessels, with which he cruised every -year along the English coasts. In the words of the Saxon Chronicle, -“no fleet was so daring, nor army so strong, that mid the English -nation took from him aught, the while that the noble king ruled on -his throne.”[18] According to William of Malmesbury, who wrote in the -twelfth century, Edgar usually styled himself the sovereign lord of all -Albion and of the maritime or insular kings dwelling round about,[19] -the assumption being that he also exercised sovereignty over the -intervening and surrounding seas. In a charter by which Edgar, in 964, -granted large revenues to the Cathedral Church at Worcester, the claim -to the ocean around Britain is more definite, and it is this version -that is usually quoted by the writers maintaining the antiquity of the -English rights.[20] The title thus said to have been used by Edgar is -expressive enough, but an important difference in the wording of this -part of the charter is to be found in the transcript printed by Coke in -the Epistle to the Fourth Book of Reports, by Spelman,[21] Wilkins,[22] -and by the more recent authorities on Anglo-Saxon charters, Kemble,[23] -Thorpe,[24] and Birch,[25] from which it appears that Edgar claimed -to be, not lord of the sea, but of the islands in the sea.[26] This -is the version given by Sir John Boroughs in his _Sovereignty of the -British Seas_, and it is also mentioned by Selden. But, after all, the -authenticity of the preamble of this charter is not well established. -Kemble marks it as doubtful, a view supported by intrinsic evidence -as to an imaginary conquest of Ireland. Thorpe is of opinion that -the preamble was fabricated about 1155, when Henry II., in concert -with Pope Adrian IV., was meditating the conquest of that island. It -may therefore be concluded that King Edgar’s assumption of maritime -sovereignty had its source in a monkish fable, although he may have -possessed the actual command of the sea in his time. Later on, the -supposed _rôle_ of Edgar among the Anglo-Saxon kings was a common -argument for the English claims. He was looked upon as a sort of patron -saint of the doctrine that the kings of England were lords of the sea. -Charles I. put his effigy on the beak of his great ship, the _Sovereign -of the Sea_, and inscribed his name in a motto on her guns. Oliver -Cromwell, too, quoted his exploits to the Dutch ambassador in the -course of the negotiations after the first war with Holland. - -It is not to the Anglo-Saxon period of our history that we must look -for the origin of the claims of England to the sovereignty of the -sea, even in a purely military sense. At that time, for at least -three centuries before the Norman Conquest, the Northmen and not the -English were the real lords and masters of the sea. They offered an -example of what is now so much spoken of as the influence of sea-power -on history that is unsurpassed in later annals. Their leaders were -styled sea-kings for the best of reasons. Their fleets darkened every -coast from within the Arctic circle to the furthermost bounds of the -Mediterranean. Through their command of the sea they took permanent -possession of the larger part of England; they penetrated almost every -great river in Europe--the Elbe, the Schelde, the Rhine, the Seine; -they formed settlements from Friesland to Bordeaux; they discovered -and planted colonies in Iceland (A.D. 861), Greenland (A.D. 985), -and North America (A.D. 861); and they founded kingdoms or dynasties -not only in England, but in France, Sicily, Ireland, and Russia.[27] -In the presence of such irrepressible energy in maritime and warlike -enterprises the English were not able to hold their own on the sea, far -less to acquire dominion over it. - -It is not until a considerable time after the Norman Conquest that -valid evidence is to be found of the English claim to the sovereignty -of the sea. Although obscurity surrounds the precise time and mode -in which the pretension took its rise, there is little doubt that it -originated in the period following the Conquest. The shores on both -sides of the Channel were then brought under the same dominion. In the -reign of Henry I. almost the whole of the Atlantic coast of France from -Flanders to the Pyrenees was in the possession of the English crown, -and for about four and a half centuries, until the loss of Calais in -1558, England held more or less territory in France. The Channel thus -became in effect an English sea--the narrow sea--intervening between -the continental and insular territories of the king, and it acquired -high importance as the passage from one part of the realm to the other. -It was in this connection and for the guarding of the coasts that -the organisation of the Cinque Ports was developed by the Norman and -Angevin kings.[28] Even after the loss of the French provinces, the -continued possession of the Channel Islands and the usual possession -of Calais kept alive the English claim to the narrow sea. The Conquest -was, moreover, followed by a great increase in the stream of traffic -between the two countries,[29] while fishermen from Normandy and -Picardy, as well as from Flanders, came in large and increasing numbers -to take part in the great herring fishery along the east coast of -Scotland and England. - -During the frequent wars with France from the commencement of the -twelfth century onwards, the Channel acquired special significance -from a military point of view, and it was from this time that the -importance of “keeping the narrow seas” began to be recognised in -English policy. The command of the Channel was not only of value in -safeguarding the coast. The Channel formed the great avenue of commerce -between the north and south of Europe. The merchant vessels from -Venice, Genoa, and the Mediterranean, from Spain and France, passed -northwards through it on their way to Flanders and the Baltic, and -those from the Hanseatic towns and northern parts had in like manner -to traverse it in their southern voyages. The Channel was thus crowded -with shipping in summer, and the nation which commanded it had the -power of interrupting the commerce of other nations, and consequently -retained a potent political weapon in its hands. It is this aspect of -“keeping the narrow sea” which forms the burden of the remarkable old -poem, _The Libelle of Englyshe Polycye_. - -Moreover, in the period following the Norman Conquest another condition -came into existence in connection with the security of the commerce -passing through the Channel, which throws light on the origin of the -English claim to sovereignty over it. As already mentioned, owing to -the lawlessness that prevailed on the sea after the break-up of the -Roman empire, when pirates and freebooters infested every coast, it -became customary for merchants to associate themselves together for -mutual protection. Their vessels sailed forth in fleets under the -charge of an elected chief, called the “admiral,” and armed vessels -were frequently fitted out by them for the express purpose of purging -the sea of pirates. In the course of time this duty of maintaining the -police of the seas was taken over by sovereign princes, who exercised -their jurisdiction through an admiralty, and put in force the old -“laws of the sea” which had gradually grown up among the merchant -associations.[30] In the thirteenth century this supreme admiralty -jurisdiction came to be regarded among the principal states of Europe -as a prerogative of sovereign power, and it is about this time and in -this connection that we first find certain evidence of the claim of -England to the sovereignty of the adjacent sea. The Plantagenet kings, -or at all events some of them, asserted the right of “maintaining the -ancient supremacy of the Crown over the Sea of England” by exercising -jurisdiction according to the old maritime laws, for the maintenance -of “peace and justice amongst the people of every nation passing -through the said sea.”[31] It was the production of the old rolls -concerning these claims by Sir John Boroughs, the Keeper of the Records -in the reign of Charles I., which furnished that king with the material -on which to base his pretension to the sovereignty of the sea. - -The English writers of the seventeenth century who strove to prove -that the kings of England anciently exercised an exclusive sovereign -jurisdiction over the so-called Sea of England, as if it were a -“territory or province of the realm,” quoted largely from the old -Admiralty records. Selden sought to show that they had perpetually -enjoyed the dominion of the surrounding sea from the coming of the -Normans from the fact that they had maintained a guard upon it.[32] -The evidence adduced, however, merely proves that measures were -taken for guarding the seas, defending the coasts, and suppressing -piracy,--duties which were discharged, even in the same seas, by the -Admiralty of other countries, as that of France. Such phrases as “to -guard the seas,” “to guard the sea and sea-coasts,” are common enough -in the early records of the Admiralty,[33] but they do not imply -exclusive dominion. It was a duty common to neighbouring nations. In -England, from the time of Henry I., at the beginning of the twelfth -century, orders were given for the seas to be guarded as occasion -required; and officers were appointed by Henry III. and other kings as -Wardens, Keepers, and Guardians of the sea and sea-coasts, and also -as Governors and Captains of the Navy, whose title was subsequently -changed to Admiral in the latter part of the thirteenth century, -following the practice of the merchant associations, as above -mentioned. Much was made by the English writers of the appointment of -admirals by the kings of England for safeguarding the sea. The first -appears to have been appointed in 1297 with the title of Admiral of -the Sea of the King of England,[34] but before this time the King of -Castile and Leon had appointed an admiral with similar duties, and an -Admiral of all France was appointed about the year 1280.[35] So too -with the equipment of fleets. Edward I. divided the ships charged with -the guarding of the seas into three squadrons, each with an admiral,--a -measure which, it was argued, showed his resolution to maintain his -dominion of the sea. But the practice in France was similar. From an -early period French fleets were equipped under “governors or custodians -of the sea” (_præfectus maris_), “lieutenants-general of the sea and -the shores thereof,” and “admirals,” and their maritime jurisdiction -was regulated from at least the early part of the fourteenth -century.[36] Selden laboured to show that the office of admiral and the -admiralty jurisdiction had a different significance in France from what -they had in England,[37] but on quite inadequate grounds. - -Another class of evidence adduced by the English authors refers to the -impressment of ships for the defence of the realm or the transport of -troops on occasions of emergency. These duties were at first performed -by the vessels of the Cinque Ports, in accordance with their charters; -but as early at least as the reign of Richard I., ordinances were -issued (at Grimsby) regulating the mode of arresting vessels and -men for the service of the king,[38] and it became an established -and common practice. Numerous instances occur which show that on -such occasions foreign vessels were not exempt from arrest, though -compensation was at least sometimes made to their owners.[39] The -argument of the English writers that these arbitrary proceedings were -evidence of the dominion exercised by the kings of England on their sea -is rebutted by the practice in France. Froissart[40] tells us that the -French adopted similar measures in 1386 when they were preparing for an -invasion of England, and the practice was doubtless common enough, and -justified by the emergency which occasioned it. - -With regard to the most important attribute of maritime -sovereignty--the right to exclude others from an equal use of a -particular sea by prohibiting navigation, at least of vessels of -war, and from fishing in it, or by imposing dues and conditions for -the liberty--there is scarcely a scrap of evidence to show that any -authority of the kind was exercised by England in the adjacent seas. -The circumstance is noteworthy, inasmuch as other countries which then -enjoyed undoubted maritime sovereignty, did not permit unrestricted -navigation or fishing in the seas specially under their control, as -Venice in the Adriatic, and Denmark in the northern seas and in the -Baltic. The evidence concerning the liberty of fishing in the sea -along our coasts is dealt with in another chapter, but it may be -said here that this liberty was provided for in a series of treaties -with other Powers. As for liberty of navigation, it was asserted, or -rather implied, by Selden, in guarded language, that the kings of -England anciently possessed the power of refusing it;[41] but the -evidence relates for the most part to passports and safe-conducts “by -land and sea,” and to the impressment of vessels, referred to above. -There appears to be not a single fact to prove that the liberty of -innocent navigation in the English seas was ever interfered with by -the king. The Parliament of Ireland, it is true, passed an Act in -1465 prohibiting all foreign vessels “from going to fish at Ireland -among the king’s enemies” without first obtaining a license, on pain -of forfeiture of the vessel. But it is clear from the preamble that -the Act was passed because foreign vessels frequenting the Irish coast -for fishing were supplying the king’s enemies with money, arms, and -provisions. - -Nor is there any valid evidence that tribute was ever imposed on -foreigners for liberty of navigation in the sea of England. A case -frequently quoted to the contrary was the imposition of a duty by -Richard II., in 1379, on merchant vessels and fishing smacks, to -provide means for the defence of the eastern coast and the security of -navigation and fishing. At that time the English navy had almost ceased -to exist, through the mistaken policy of Edward III. in the latter part -of his reign. In 1377 a French and Spanish fleet had not only scoured -the seas, but plundered and burned Rye, Folkestone, Hastings, Plymouth, -and other towns on the southern coast, which they ravaged. In the -following year they continued their depredations on the English coast, -and held such complete command of the sea that “no victualler, fishing -boat, or any other, could pass or return without being taken.”[42] In -1379, as the enemy still held the sea and the coast, Parliament, after -consultation with the merchants, decreed that certain duties should -be levied to provide means to secure the safeguarding of the sea, and -among these was one on vessels laden with goods belonging to merchants -of Prussia, Norway, or Scania. Selden says this ordinance applied to -foreign as well as English vessels, which had therefore to pay for -passage through the sea “just as one may exact payment for passage over -one’s field.”[43] But there is no evidence that the tax was levied -on other than English vessels; and in any case it is clear from the -preamble that it was a voluntary arrangement, and probably made at -the request of the merchants themselves, who had been petitioning the -king and Parliament for protection.[44] It is noteworthy also that the -keepers of the northern sea were not to convoy the vessels to or from -Flanders and Calais unless they were paid for doing so. - -An incident which occurred early in the next century shows the temper -in which the Parliament regarded the sovereignty of the narrow sea, -as well as the caution of the king. By that time the English navy had -recovered its strength and France lay prostrate at the feet of Henry -V., and the Parliament petitioned the king to levy an impost on all -foreign ships passing through the Channel, in emulation, no doubt, of -the practice of the Danish kings at the Sound. It was a few years after -the battle of Agincourt, and the Treaty of Troyes, by which Henry was -recognised as the future king of France, had just been concluded. “The -Commons pray,” ran the petition, “that seeing our Sovereign Lord the -King and his noble progenitors have ever been Lords of the Sea, and now -by the grace of God it has come to pass that our said Lord the King is -Lord of the shores on both sides of the sea, such tribute should be -imposed on all strangers passing through the said sea, as may appear -reasonable to the King for safeguarding the said sea.”[45] The answer -of the king was that he would consider it (_soit avise par le Roy_), -the usual formula of refusal. In the following year Henry was again -involved in war with France, and he died in 1422 and nothing more was -heard of the proposal. But it is extremely doubtful if he or any other -English king would have ventured to adopt the policy recommended by -the Commons. The shipping that passed through the Channel was far more -voluminous and important than that passing through the Sound, and the -waterway could not be so easily commanded, as by guns from the shore. -Any measure of the kind would doubtless have led to a combination of -other maritime Powers against England, which would have been fatal to -the attempt. It may be noted that the Parliament based their proposal -on the king’s possession of both shores; and this, in accordance with -the opinions of the Italian lawyers of the preceding century, whose -authority was great, carried with it the right of sovereignty over the -intervening sea. - -The statement in the petition that the kings of England had ever -been lords of the sea is true at least to the extent that on several -occasions previously the title was applied to them, and this was -usually at times when they possessed actual supremacy and mastery -over the seas in a special manner, though it may also have implied -the idea of sovereign jurisdiction. Nearly a century earlier than -the above petition we find the same title used by Edward III., who -is peculiarly identified with the naval glory of England, and he too -refers to his progenitors as having been lords of the sea. In a mandate -to his admirals in 1336, the king, after stating that twenty-six -galleys of the enemy were reported to be on the coasts of Brittany and -Normandy, said: “We, calling to mind that our progenitors, the Kings -of England, were Lords of the English sea on every side, and also -defenders against the invasions of enemies before these times; and it -would greatly grieve us if our royal honour in such defence should be -lost or in any way diminished in our time, which God forbid, and being -desirous with the help of God to obviate such dangers and to provide -for the safety and defence of our realm and people, and to restrain the -malice of our enemies: We strictly require and charge you” to proceed -against the galleys, &c.[46] Later in the same year, in a commission to -certain nobles, prelates, and the Warden of the Cinque Ports respecting -measures to be taken against the Scottish fleet, which was attacking -merchant and other ships, and had ravaged Guernsey and Jersey, the king -desired it to be remembered that his progenitors the kings of England, -in similar disturbances between them and other lords of foreign lands, -were in all bygone times “lords of the sea and of the passage across -the sea,” and he would be much afflicted if his royal honour should be -in his time impaired.[47] These declarations, made in the first half of -the fourteenth century, indicate clearly enough at least the pretension -to special interest and jurisdiction in the narrow sea and the Straits -of Dover on the part of the earlier kings. No English king deserved -the title of Lord of the Sea better than Edward III. Only a few years -after the above missives were written he gained the memorable victory -over the French in the battle of Sluys, and in 1350 the equally great -victory over the Spaniards off Winchelsea (“Les Espagnols sur Mer”), -commanding the fleet in person on each occasion.[48] - -[Illustration: Fig. 1.--_Edward’s Noble._] - -It appears to have been in connection with the former victory that -Edward coined his famous gold noble, in which the obverse bears the -effigy of the king, crowned, standing in a ship with a sword in one -hand and a shield in the other, while the reverse bears the legend from -St Luke, _Jesus autem transiens per medium eorum ibat_, “but Jesus, -passing through the midst of them, went his way,” which Nicolas thinks -was meant to indicate the action of the king in passing through the -French fleet at the battle of Sluys. The impress on the obverse has -been usually regarded as symbolic of Edward’s power and sovereignty -on the sea. The unknown author of _The Libelle of Englyshe Polycye_, -written some ninety years later, makes frequent reference to Edward’s -noble,-- - - “Ffor iiii thynges our noble sheueth to me, - Kyng, shype, and swerde, and pouer of the see,”[49]-- - -and it is always mentioned by the English writers on the sovereignty of -the sea as evidence that Edward exercised that sovereignty. A recent -author[50] doubts whether there was any connection between Edward’s -noble and the battle of Sluys or the claim to the sovereignty of the -sea; but at all events in the next century, in the reign of Henry -VI., when the naval power of England had again sunk to a low point, -the noble was made an object of jest and derision among foreigners, -especially the Flemish and French. They told the English to take away -the ship from their noble and put a sheep on it instead--an allusion, -no doubt, to the growth of sheep-farming in England.[51] - -If Edward intended to symbolise his naval power and sea sovereignty -by the device on the gold noble in the early part of his reign, it -was certainly inappropriate towards the end of it. The navy had been -starved for the sake of the army, and when the Spaniards defeated the -English fleet and were masters of the sea, complaints became rife -as to the insecurity of the country. The king had then to listen to -language from his Parliament to which he was unaccustomed, and which -must have galled him. There are many instances in our history where -the Commons have shown their spirit and temper when they thought the -navy was inadequate for its duties, and on the occasion in question, in -1372, after granting a naval subsidy, they called the king’s attention -to the fact that while twenty years previously, and always before, -the navy was so noble and so numerous in all the ports, coast towns, -and rivers that the whole country deemed and called him King of the -Sea,[52] and he and all his country were the more dreaded by sea and by -land by reason of the said navy, it was then so decreased and weakened -from various causes that there was scarcely sufficient to defend the -country, if need were, against royal power, by which there was great -peril to all the realm.[53] From this complaint of the Parliament it -would appear that the title of king or Lord of the Sea was applied in -a popular sense, to signify the great sea-warrior who had overcome his -enemies and made himself master of the sea. - -There was another symbol or supposed symbol of the sovereignty of the -sea, which later became exceedingly prominent--viz., the striking of -the flag or the lowering of the top-sails to a king’s ship, about -which there is little to be found in the records of those times. It -is nevertheless with this that the earliest of the records relating -to the subject is concerned, and it is a very interesting one. The -famous ordinance of King John which compelled the lowering of the -sails has given rise to much controversy. It was first brought -prominently to notice by Selden in 1635,[54] but it is also contained -in the little work of Boroughs on the _Sovereignty of the British -Seas_, which was written in 1633, although not published till 1651, -and that author transcribed it from a manuscript in the possession of -Sir Henry Marten, the Judge of the Court of Admiralty. Selden gave -as his authority for it, “MS. Commentarius de Rebus Admiralitatis,” -without further specification, and its authenticity was questioned by -contemporary critics. Prynne, who, like Boroughs, was Keeper of the -Records, printed it in 1669 from the _Black Book of the Admiralty_,[55] -and from the fact that the _Black Book_ was lost until quite lately, -and the existence of Selden’s manuscript in the Bodleian Library was -overlooked, and that used by Boroughs unknown, some recent authors have -regarded the ordinance with suspicion.[56] The most elaborate account -of the various manuscripts containing the ordinance of John is given -by Sir Travers Twiss in the Introduction to the _Black Book of the -Admiralty_; and through his efforts the original _Black Book_, lost -for more than half a century, was found at the bottom of a chest in -1873.[57] Twiss gives the following free translation of the ordinance, -made by the Registrar of the Admiralty Court in the reign of James -II.:-- - - ITEM, it was ordained at Hastynges for lawe and custome of the sea - in the tyme of Kyng John, in the second yeare of his raigne, by the - advice of his temporall lordes, that if the lieutenant of the king or - the admirall of the king or his lieutenant in any voyage appointed - by Common Counsell of the Kyngdom did at sea meet with any shyps or - vessells laden or empty which would not stryke and lower their sailes - at the command of the kyng’s lieutenant, or the kyng’s admirall, - or his lieutenant, but makeing resistaunce against those of the - ffleet, that if they can be taken that they be reputed as enemies, - and their shyps, vessells, and goodes, taken and forfeited as goodes - of enemies, albeit that the maysters or possessors thereof should - afterwards come and alleadge the same ships, vessells, and goodes to - be the goodes of friends of our lorde the kyng, and that the company - therein be chastized by imprisonment of their bodies for their - rebellion at discretion.[58] - -This ordinance is the last of a series of articles in the third -part of the _Black Book_, which contains Admiralty regulations, the -Laws of Oleron, and other three ordinances of King John, as well as -ordinances which purport to have been made in the reigns of Henry -I., Richard I., and Edward I. The facts ascertained by Sir Travers -Twiss show that of the six or seven extant manuscripts which contain -the ordinance, the oldest was written before 1422 and probably about -1420,[59] and appears to have been drawn up for the use of Sir Thomas -Beaufort, the Lord High Admiral. The manuscript used by Selden was -probably written between 1430 and 1440; that of the _Black Book_ itself -a little later, but still in the reign of Henry VI.[60] The others -are not older than the seventeenth century. None of the manuscripts -is therefore contemporaneous with the reign of John, but it is clear -that the ordinance existed and was ascribed to John in the reign of -Henry V., before 1422. Moreover, from intrinsic evidence it is proved -that part of the _Black Book_ originated in 1375, in the reign of -Edward III., and that the compilation of other parts of it is still -earlier. Pardessus,[61] the great authority on ancient marine laws, -is of opinion that the part of the _Black Book_ which includes the -ordinance of John contains the results of the consultations with the -judges in 1338 on the subject of the maritime laws, which were recorded -in the roll, still preserved, of 12 Edward III., _De Superioritate -Maris_--which also, as we shall see, claimed supremacy for the king -in the sea of England. Twiss, however, thinks it was more probably -compiled between 1360 and 1369. He is of opinion that the ordinance is -authentic, and was in reality, as it purports, made by John at Hastings -on 30th March 1201, and that it was transcribed into the compilation of -the _Black Book_ with the earlier ordinances of Henry I. and Richard I. - -The arguments against the authenticity of the ordinance are mainly -that it is written in the French language instead of in Latin, as -was customary at the time; that there is no other evidence that John -was ever at Hastings; and that the terms “king’s admiral” or “king’s -lieutenant” are not to be found in contemporary documents. Twiss -has shown that John and his Queen were at Canterbury on Easter Day -1201, and it is not an improbable conjecture that the king passed -from Canterbury to Hastings, and thence to London--a supposition that -Sir Thomas Duffus Hardy, the author of the _Itinerary of King John_, -regards as quite possible. Twiss also explains in an elaborate argument -that the circumstance of the ordinance being written in French offers -no difficulty, if the compilation of the third part of the _Black Book_ -is assigned, as above stated, to the reign of Edward III.; but there -might be some difficulty in deciding whether the ordinances attributed -to Henry I., Richard I., Edward I., and John were originally written -in French as they now appear in the _Black Book_, or were at first -drawn up in Latin and translated into French by the compilers.[62] - -The best authority is therefore in favour of the authenticity of the -ordinance; but whether it be held as genuine or apocryphal there is -no doubt that in the reign of Henry V. it was incorporated among the -official regulations of the Admiralty, and it is almost as certain, as -Twiss and Pardessus believe, that it was contained in the Admiralty -regulations in the reign of Edward III. The question whether it should -be antedated one hundred and fifty years, or thereabout, and placed -in the reign of John, or ascribed to the time of Edward III., when so -much consideration was given to naval affairs, is perhaps of minor -importance. - -The language of the ordinance is worthy of close attention with regard -to the claim to sovereignty in the narrow sea. Selden says that the -ordinance shows it was held to be treason for any ship whatever not -to acknowledge the dominion of the king of England in his own seas by -lowering sails, and that the king prescribed penalties for infraction -of the rule, just as if a crime were committed in some part of his -territory on land.[63] In 1201 John still possessed both shores of -the Channel, a circumstance which, according to the ideas of the -time, conferred on him special rights in regard to it; and though the -ordinance contains no qualification of the general term “at sea,” -it is probable that it applied in particular, and at first perhaps -exclusively, to the waters between the two shores. There is nothing -to show whether the ordinance applied to or was enforced against the -war vessels of other princes navigating the narrow sea, which was the -principal feature of the rule in later times. From the terms used it is -probable that it applied only to merchant vessels,--a supposition that -agrees with its place in the _Black Book_ at the end of the articles -entitled the Laws of Oleron, or the laws of the mercantile marine; and -it was to be enforced only in voyages appointed by the Council. As -already mentioned, it is reasonable to suppose that the lowering of the -sail at the demand of a king’s ship was to enable a suspected vessel to -be overhauled, and the king’s officers to be satisfied whether it was -engaged in piracy or in lawful trade. - -Until the sixteenth century there is scarcely any evidence to show -that the “right of the flag,” as it came to be called, was enforced -even in the Channel. The record of one such incident, however, -exists, which occurred in 1402, in the reign of Henry IV.,--and -thus, it is interesting to note, before the oldest extant manuscript -containing John’s ordinance was written,--and, curiously, the place -where the lowering of the sails was demanded was not the Channel but -the North Sea. In the year mentioned, the town of Bruges complained -to the king and Council that a poor fisherman of Ostend, named John -Willes, along with another from Briel, while fishing for herrings -in the North Sea, had been captured by an English vessel and taken -into Hull, notwithstanding that they were unarmed--a remark which is -significant--and had lowered their sails at the moment the English had -called to them.[64] It is singular that the earliest record of the -“ceremony” refers to the humble herring-boats of Flanders. Later on we -shall see that the lowering of top-sails and the striking of the flag -became a burning question in international politics. - -Of greater interest and importance than this question of the lowering -of the sail or the ordinance of John is the claim put forward by the -Plantagenet kings to sovereign lordship and jurisdiction in the “sea of -England,” for the maintenance of peaceful navigation and commerce,--a -claim which may still be read in some of the rolls of Edward I. and -Edward III. The great importance of these documents for the English -pretension to dominion of the sea in the seventeenth century was shown -by the fact that Boroughs, Selden, Coke, and Prynne all quote freely -from them, Selden especially turning to them again and again for fresh -quotation and argument. They are the more interesting since the claim -to the sovereignty of the narrow sea in the reign of Edward I. could -not, as Boroughs points out, be based on possession of both shores; the -king was not then _Dominus utriusque ripæ_, as when Normandy belonged -to the English crown. The rolls in question are still preserved in -the Record Office, and the earlier parchments appear to have been -collected together in the reign of Edward III., in connection with -the consultations that the judges held in 1338 on the subject of the -maritime laws.[65] - -The documents were first brought into prominence by Lord Coke[66] and -Selden,[67] both of whom published parts of them. The handwriting -belongs to the beginning of the fourteenth century, and its contents -show that it must have been drawn up after 1304 and before 1307, in -which year Edward I. died. - -The events that preceded may be summarised as follows. During the -war between Edward I. and Philip the Fair of France it was concluded -between them in the year 1297 that notwithstanding the war there should -be freedom of commerce on both sides, or a truce for merchants, known -as sufferance of war, and in the following year certain persons were -appointed by both kings to take cognisance of things done contrary -to this truce, and to pass their judgments according to the law of -merchants and the tenor of the sufferance referred to.[68] On 20th May -1303 a treaty of peace and alliance was signed at Paris,[69] the first -article of which embodied a declaration of amity and mutual defence -of all their respective rights, and the third that each would abstain -from assisting or succouring the enemies of the other. A little later -in the same year four agents or commissioners were appointed by Edward -and four by Philip to hear complaints and decide upon them, and the -English members were instructed to inquire into the “encroachments, -injuries, and offences committed on either side during the truce or -sufferance between us and the said King of France, on the coasts of the -sea of England and other neighbouring coasts, and also towards Normandy -and other coasts of the sea more remote.”[70] To these commissioners -the following joint complaint or libel bears to have been submitted on -behalf of England and certain mariners of other nations, charging one -Reyner Grimbald or Grimaldi, a Genoese who is known to have been at the -time in command of ships in the service of France operating against the -Flemings, with seizing their merchants and merchandise contrary to the -treaty at Paris:[71]-- - - -CONCERNING THE SUPREMACY OF THE SEA OF ENGLAND AND THE RIGHT OF THE -OFFICE OF ADMIRALTY IN THE SAME.[72] - -To you the Lords Auditors deputed by the Kings of England and of France -to redress the wrongs done to the people of their kingdoms and of other -lands subject to their dominions by sea and by land in time of peace -and of truce The proctors of the prelates and nobles and of the admiral -of the sea of England[73] and of the commonalties of cities and towns -and of the merchants mariners messengers and pilgrims and of all others -of the said realm of England and of other lands subject to the dominion -of the said King of England and elsewhere, as of the coast of Genoa, -Catalonia, Spain, Almaigne, Zeeland, Holland, Friesland, Denmark, and -Norway, and of several other places of the Empire do declare, That -whereas the Kings of England by right of the said kingdom, from a time -whereof there is no memorial to the contrary, had been in peaceable -possession of the sovereign lordship of the sea of England and of -the isles within the same, by ordinance and establishment of laws, -statutes, and prohibitions of arms, and of ships otherwise furnished -than merchant vessels, and to take surety and afford safeguard in -all cases where need shall be, and by ordinance of all other actions -necessary for the maintaining of peace, right, and equity among all -manner of people as well of any other dominion as of their own passing -thereby, and by sovereign guard and all manner of cognizance and -justice high and low, concerning the said laws, statutes, ordinances, -and prohibitions, and by all other actions that may appertain to -the exercise of sovereign lordship in the places aforesaid. And A. -de B.[74] deputed Admiral of the said sea by the King of England, -and all other Admirals [appointed] by that same King of England and -his ancestors heretofore Kings of England, had been in peaceable -possession of the said sovereign guard with the cognizance and justice -and all other the aforesaid appurtenances, except in case of appeal -and complaint made of them to their sovereigns the Kings of England -of default of right or of wrong judgment, and especially by putting -hindrance (making prohibitions) and doing justice, taking surety of the -peace of all manner of people using arms in the said sea, or carrying -ships otherwise provided or furnished than appertained to a merchant -ship, and in all other points wherein a man may have reasonable cause -of suspicion towards them of robbery or other misdemeanours. And -whereas the masters of the ships of the said kingdom of England in the -absence of the said admirals had been in peaceable possession to take -cognizance and to judge of all actions in the said sea between all -manner of people according to the laws, statutes, and prohibitions, -franchises and customs. And whereas in the first article of the -alliance formerly made between the said Kings, in the treaties upon the -last peace of Paris are comprised the words which follow in a schedule -annexed to these presents. - - First, it is concluded and accorded between us and the messengers - and proctors aforesaid in the name of the said Kings that the said - Kings shall from this time forward be good, true, and loyal friends, - and be aiding to one another against all men saving the Church of - Rome in such manner that if any one or more, whosoever they be, - will disturb, hinder, or molest the said Kings in the franchises, - liberties, privileges, rights, dues, or customs of them and their - kingdoms, they shall be good and loyal friends and allies against - every man living, and ready to die to defend, keep, and maintain - the franchises, liberties, privileges, rights, dues and customs - aforesaid; Except (on the part of) the said King of England, Monsieur - John, Duke of Brabant, in Brabant, and his heirs descended from him - and the daughter of the King of England, and except (on behalf of) - our said lord the King of France, the excellent Prince, Monsieur - Albert, King of Almaigne [and] his heirs Kings of Almaigne, and - Monsieur John, Count of Hainault in Hainault. And that the one shall - not be of counsel nor aiding where the other may lose life, member, - temporal estate, or honour.[75] - -Monsieur Reymer Grymbaltz, Master of the navy of the said King of -France, who calls himself admiral of the said sea, deputed by his -lord aforesaid for his war against the Flemings did after the said -alliance made and confirmed, and against the form and force of the -same alliance and the intent of them that made it, by commission of -the King of France wrongfully usurp the office of admiralty in the -said sea of England and did exercise it for a year and more taking -the people and merchants of the kingdom of England and elsewhere -passing through the said sea with their goods, and committed the -people so taken to the prison of his said lord the King of France, -and by his judgment and award caused their goods and merchandises -to be delivered to the receivers of the said King of France deputed -for this purpose in the ports of his said kingdom, as to him forfeit -and acquired. And the taking and detaining of the said people with -their said goods and merchandises, and his said judgment and award -concerning the forfeiture and acquest of them, he has justified before -you, Lords Auditors, in writing, according to the authority of the -said commission of the admiralty aforesaid by him thus usurped, and -during a prohibition commonly made by the King of England by his power, -according to the tenor of the third article (_sic_) of the alliance -aforesaid, which contains the words below [above] written, requiring -that he may thereupon be quit and absolved, to the great damage and -prejudice of the said King of England and of the prelates and nobles -and others above named, Wherefore the said proctors in the names of -their said lords do pray [you Lords] Auditors aforesaid that you would -cause due and speedy deliverance of the said people with their goods -and merchandises thus taken and detained, to be made to the Admiral -of the said King of England, to whom the cognizance thereof of right -belongs, as above is said, so that, without disturbance from you or -any other, he may take cognizance hereof and do that which belongs to -his office aforesaid, and that the said Monsieur Reyner be condemned -and constrained to make due satisfaction to all the persons wronged -as aforesaid as, etc. [so far as he is able to do, and in his default -his said lord the King of France, by whom he was deputed to the said -office, and that after due satisfaction made for the said damages, the -said Monsieur Reyner may be so duly punished for the violation of the -said alliance that his punishment may be an example to others in times -to come.[76]] Item, the said proctors require that whereas according -to the ancient laws, franchises and customs of the realm of England, -to the keeping whereof your said lord the King and his ancestors Kings -of England were wont to be bound by their oaths. Their admirals of the -sea of England with the masters and mariners of ships of ports of the -coast of England, being in the armies of the said admirals, needed -not to answer before any justices of the Kings aforesaid concerning -actions in the sea abovesaid during their wars against their enemies. -And the said admiral of your said lord the King and many of the masters -and mariners of the ports aforesaid now being in his army against the -[their] enemies of Scotland and their helpers and allies, by express -commandment of your said lord the King, are accused before you by -people of Normandy and Brittany and elsewhere concerning some actions -in the said sea in time of truce and since the peace confirmed between -the said Kings of England and France, and before the war begun between -them as is said. It may please you to surcease the process already -commenced against them and to forbear to commence a new one during the -war abovesaid, that they may have no cause to complain to your said -lord and to the prelates and nobles of his said realm, bound by their -oath to keep and maintain the said laws, franchises, and customs. - - * * * * * - -Selden alludes to this document as proving that the right of dominion -over the sea, and that ancient and confirmed by long prescription, -was in express terms here acknowledged by almost all the neighbouring -nations to belong to England.[77] This is, however, not quite -justified, because there is no record at all to show any decision, or -even whether the matter was ever brought to proof, and no mention -is made of the proceedings by any English or French historian. There -seems to be no doubt of the authenticity of the record. It is in the -handwriting of the time, is preserved among the public records, and -agrees with other circumstances elsewhere recorded. On the other hand, -even the most complete copy[78] is only a draft, as Selden states, -without date or seals; the admiral’s initials only are given, and -the citation of the first article of the treaty at Paris is not on a -separate schedule as the text states, but is part of the text. Selden -gives it as his opinion that it was a matter “of such moment” that it -was thought better to make an end of it by agreement than to bring it -to a trial. - -Light is thrown on the above record by another of the proceedings -before the Auditors deputed by the kings of England and France for the -redress of the grievances between the subjects of the two countries, -27-33 Edward I.[79] It consists of a series of libels or complaints, -which, as Mr Salisbury of the Record Office has been good enough to -inform me, are in the handwriting of the time of Edward I., and are -doubtless those, or part of those, on which the _De Superioritate_ roll -is based.[80] The complaints are sixteen in number, and they refer -to the seizure of a number of ships and the removal of goods from -them, between May 1298 and September 1303, at various places,--the -foreland of Thanet, the mouth of the Thames, off Blakeney, off Kirkele, -Scarborough, Dover, and Orfordness,--the goods, and sometimes the -vessel, being taken to Calais. Most of the vessels were freighted -from London to Brabant, or from the latter place to London, one from -Winchelsea to Dieppe, another from Antwerp to London, a third from -Berwick to London, a fourth from Scotland to Brabant, a fifth from Lynn -to Scotland, a sixth from Antwerp to England, and another from Yarmouth -to London; in two cases the crews were killed, and the ships as well as -the goods disposed of. In most cases the complaints are laid against -Johan Pederogh or John de Pederogue (see p. 45), Michel de Navare, and -others, who appear to have been under Grimbald, but in some instances -they are against the latter. The first is by Richard Bush against -“Reyner Grymaus,” complaining of goods having been taken from a ship -going from Winchelsea to Dieppe, in August 1301, by Michel de Navare -and others of Calais, who took the goods thither and disposed of them. -The “chevalier” denied this, and asserted he was “not in that country” -at the time specified nor for nearly a year afterwards, and in the -“rejoinder” note was taken of the answer “that he was not admiral till -some time after the events specified.” The eighth complaint refers to -the seizure of goods from a ship going from Berwick to London in August -1303, off Blakeney, “by men from Calais.” In reply John (Pederogh) says -the demand concerns “mi sire Reniers de Grimaus” only, for he was then -admiral, and said John was on shore at the date specified, and was only -in the company of Reniers in Zealand and Holland. The twelfth complaint -declares that the ship _Michele de Arwe_, from London to Brabant, with -a cargo valued at £556, was seized “on the high seas” by Sire Reyner -Grimbaud, admiral, in September 1303, taken to Normandy, and the crew -sent to Calais and imprisoned. In reply the “chivaler” confesses he -took such a ship, and seized it rightfully, as it was consorting with -the enemies of France; and in response to the demand of one of the crew -still in prison at Calais, he says he is there as a malefactor against -the King of France, and that the commission of the deputies does not -extend to such cases. The fourteenth complaint is by John de Chelchethe -against Reyner de Grymaus, and John Pedrogh replies “as he did to -William Servat,” the latter name not occurring elsewhere in the record, -a circumstance which points to these libels being only part of those -brought before the commissioners. - -It is to be noted that, with the exception of the _Michele de Arwe_ -above mentioned, which was taken “on the high seas,”--an elastic -term,--all the ships were attacked near the English coast, and well -within what may be called the sea of England, or the waters included -in the King’s Chambers in 1604, where the jurisdiction of the English -Admiralty undoubtedly extended. In all cases, moreover, the goods -seized belonged to Englishmen, though some of the ships were foreign. - -Too much importance appears to have been attached to the roll _De -Superioritate_. It furnishes no proof, or even reasonable probability, -that any other Power acquiesced in an English claim to a specific -sovereignty of the sea beyond what appears to have been customary among -maritime states at the time. The point of the libel is that Grimbald -seized shipping after the alliance was made and took people and goods -to France, and was thus said to have usurped the sovereign lordship or -jurisdiction of the English king or admiral in “the sea of England.” - -An important light is thrown on the nature of the jurisdiction -exercised by the English admiral by the memorandum of 12 Edward III., -in the same roll, the documents in which were collected together at -the time it was written, in connection with the consultation of the -judges to which it refers.[81] It recites that, among a number of -other things, the King’s Justiciaries were to be consulted as to the -appropriate method of revising and continuing the form of proceedings -instituted and ordained by Edward I. and his Council for maintaining -and preserving the ancient supremacy of the crown in the sea of -England and the right of the admiral’s office over it, with the view -of correcting, interpreting, declaring, and upholding the laws and -statutes made formerly by his ancestors, the kings of England, for -the maintenance of peace and justice among the people of all nations -whatsoever passing through the sea of England, and to take cognisance -of all attempts to the contrary in the same, and to punish delinquents -and afford redress to the injured; which laws and statutes, the -memorandum states, were by Richard I., on his return from the Holy -Land, corrected, interpreted, and declared, and were published in the -Island of Oleron and named in the French language _La Loy Oleroun_.[82] - -This memorandum furnishes an important clue as to the nature of the -jurisdiction exercised in the so-called sea of England. It is evident -from the concluding part that the laws and statutes referred to are the -mercantile marine laws, which were best known in this country as the -Laws of Oleron, and are included in the _Black Book of the Admiralty_ -together with other articles peculiar to the English Admiralty.[83] -They appear to have been published by Richard I. at the end of the -twelfth century, at a time when the old customs of the sea began to be -committed to writing, as rules proper to be observed by the admirals -of his fleet for the punishment of delinquencies and the redress of -wrongs committed on the sea. They were continued among the Admiralty -regulations in subsequent reigns, and it was part of the duties of the -admiral to see that they were duly observed in the seas within his -jurisdiction. The powers of the admiral were extensive, as may be seen -from the memorandum of the fourteenth century defining his office and -duties, which has been published by Nicolas,[84] by those given by -Twiss in the _Black Book_,[85] and later by Godolphin.[86] - -At the time with which we are dealing the utmost lawlessness reigned on -the sea, the depredations of undisguised freebooters being scarcely a -greater evil than the constant acts of reprisal between the traders of -different nations. It was a common practice for the seamen of different -countries or cities to carry on hostilities with one another, and to -enter into treaties of peace or truce without the sovereign on either -side being concerned in their quarrels, except as mediators or umpires. -In 1317, although there was peace between England and Flanders, the -mutual reprisals of the seamen and merchants reached such a height -that commercial intercourse was entirely suspended, and Edward II. -and the Earl of Flanders had to actively interpose in order to bring -about “peace” between their subjects.[87] A marked feature in the -policy of Edward III. was the promotion and encouragement of foreign -commerce, and quite a number of statutes were passed in his reign with -that object, and to facilitate the entrance of foreign merchants into -the realm. One of these, made six years after the consultation of the -judges on the maritime laws, was specially passed to declare the sea -open to all merchants.[88] - -With these circumstances in view, it can be readily understood how -desirable it was to have the maritime laws for the security of -commerce and shipping carefully considered and put in force; and a -consideration of the whole case shows that the roll _De Superioritate -Maris_ deals with the maritime laws, the interpretation of the -documents having been strained by the later advocates for the English -claim to the sovereignty of the seas. It is interesting no doubt to -learn that the King of England and his admiral exercised jurisdiction -of the kind in the neighbouring sea at the early time referred to, but -there is nothing in the case of Grimbald or in the other documents -associated with it to indicate any claim to a sovereignty such as was -enjoyed by Venice and Denmark. There was no attempt made to interfere -with the innocent use of the so-called sea of England, or to exact -dues for navigation or fishery. The jurisdiction extended only to the -keeping of the peace and the security of the sea--duties exercised -by other princes and states in like manner, and indeed now exercised -by all countries within the waters under their control. This view is -supported by the interpretation of Callis, who stated that the king -ruled on the sea “by the laws imperial, as by the roll of Oleron -and others,” in all matters relating to shipping and merchants and -mariners.[89] It would no doubt be of great interest if there were -distinct evidence as to how far from the coast “the sea of England” -extended. The records cited show that the vessels were seized close -to the English coast, within the waters covered by the proclamations -concerning the King’s Chambers in the seventeenth century, and even -within the narrow limits of the territorial waters as now usually -defined. It is to be noted with reference to the vessel taken “on the -high seas” that in the Court of Admiralty in the seventeenth century -this phrase covered seizures made a few miles from the coast. - -There is, however, one case which occurred in the fourteenth century -which has been referred to as showing that the sea of England and -the jurisdiction of the king extended far from the English coast, -over indeed to the coast of Brittany. In the mutual aggressions -of Flemish and English sailors, the robberies by the men of Rye -of Flemish ships off “Craudon” and Orwell became so flagrant that -commissioners on both sides were appointed in 1311, further proceedings -were instituted in 1314, and finally, in 1320, envoys from Flanders -arrived in London during the sitting of Parliament, and a treaty was -concluded. In this it is stated that divers merchants of Flanders, -while “proceeding on the sea of England near Craudon,”[90] were -robbed of their wines and merchandise by evil-doers of England, and -that the goods had been brought to England. The Flemish envoys prayed -the king, “of his lordship and royal power to cause right to be done -and punishment awarded, since he is lord of the sea, and the said -robbery was committed in the sea under his power.”[91] The account -goes on to state that the king and his council in Parliament, with the -assent of the peers, agreed to appoint justices to inquire into the -matter, and that those who were concerned in the robbery should be -promptly punished.[92] Accordingly, in December 1320, the Keeper of -the Cinque Ports and others were instructed to make inquiry regarding -the pillaging of a Flemish ship, laden with wines and merchandise, -said to have been committed by Englishmen on the sea of England, off -Craudon, so that the malefactors might be brought to justice.[93] -Selden, who gives the document in which the previous proceedings -are also recited,[94] does not attempt to locate Craudon, which in -other records in the rolls of Parliament in 1315 was also called -“Carondon,” “Crasdon,” and “Grasdon”; but Nicolas states that there -was no place of that name on the sea coast of England, nor in any part -of the territories of Edward II., and he identified it with a small -seaport, since called “Crowdon,” in Brittany, lying on the extreme part -of the Point du Raz, about eight leagues west of Quimper, where he -shows that the fleets returning to England with wines frequently took -shelter.[95] If this explanation be correct, it would extend the “sea -of England” more than 120 miles south of the Lizard, which, however, -is still well within the limits which were claimed for it by Selden -(see p. 19). Although, according to the English record, the Flemish -envoys themselves described the sea off Craudon as part of the sea of -England and under the jurisdiction of the king, it is evident that this -admission would facilitate redress from England, and standing alone -it is not of much weight. The whole value of the admission, moreover, -depends on the position of the “Craudon” of the record; and it is -remarkable, if it was really the Crowdon referred to by Nicolas, that -that fact was unknown to Selden, to whom it would have furnished a very -strong argument for his case. - - - - -CHAPTER II. - -THE FISHERIES. - - -It was with respect to the right of fishery on the British coasts -that the claim to maritime sovereignty was revived in the seventeenth -century, and with which it was chiefly concerned. The “honour of -the flag,” however gratifying to national pride or important in the -international relations of England, was unprofitable, and served at -best to stimulate and maintain the spirit of the nation for power and -adventure on the sea. But the question of free or licensed fishing -touched the profit as well as the “honour” of the king and the -prosperity of the people, and hence the monarchs of the Stuart line, -the Commonwealth, and the Protector strove to impose tribute on foreign -fishermen for the liberty to fish in the British seas. This policy was -in direct opposition to that which had long prevailed in England. It -is shown below that the freedom of fishing on the English coast had -been guaranteed to foreign fishermen by a series of treaties extending -over some centuries, and that in point of fact the fishermen of various -nations had immemorially frequented the British seas in large numbers, -and there peacefully pursued their business of catching fish without -molestation or interruption by the English Government. In some respects -this liberty enjoyed was remarkable, when one considers the practice in -many other countries and the value of the fisheries. - -In the early and middle ages the sea fisheries were indeed much more -important relatively than they are now. There was a greater demand for -fish, and fishermen from various countries--from France, Flanders, -Spain, and England--made long and distant voyages, extending to Iceland -and even beyond the North Cape, in quest of fish. One reason for -the great demand was the numerous fast-days enjoined by the Church; -for although fish were eschewed by the ascetic monks of early times -as dangerous to purity of soul, the fashion changed, and they were -later consumed plentifully on the days of fast both by clergy and -laity.[96] The fasts were strictly observed throughout Catholic -Europe, and a large variety of sea and fresh-water fishes, as well -as seals and cetaceans, were consumed on such occasions. Some of the -large monastic establishments had their own staff of fishermen, and -their fish-houses at seaports for the salting and curing of herring. -Another reason for the extensive consumption of fish was the want of -winter-roots and the scantiness of fodder in winter, so that it was -impracticable to keep cattle and sheep for slaughtering throughout the -winter. It was customary to kill them and salt the flesh in autumn; -and thus fish, fresh, dried, smoked, or salted, formed a valued -article of food in place of salted beef and mutton. Fish were also -used to an extraordinary extent in victualling the army and navy, and -in provisioning castles, the expense on this item of the commissariat -generally equalling or exceeding that for beef, mutton, or pork.[97] -The distribution even of fresh fish was also much better than might -have been expected. Barges and boats carried them up the rivers, and -pack-horses and waggons transported them throughout the country, so -that even in inland counties the harvesters in the fields were supplied -with herrings for their dinner.[98] In mediæval times, moreover, -fishermen and fishing vessels constituted a considerable part of the -naval force available for the defence of the kingdom, for offensive -operations and the transport of soldiers. The fishermen of the Cinque -Ports, who had the government of the great herring fair at Yarmouth, -had also to provide vessels for the king’s service under their -charters. Later, when a permanent navy existed, the fisheries were -looked upon as a very important “nursery” of seamen to man the fleets. - -The herring fishery was by far the most important of all the sea -fisheries, and as this fish was found in greatest abundance on the -British coasts, foreign fishermen were attracted hither in great -numbers. It was with reference to the herring fishery that exclusive -claims were raised by England in the seventeenth century, and it is -desirable at the outset to understand the policy which was pursued -previously in regard to it both in England and Scotland. At what -period foreign fishermen first began to frequent the British coasts is -uncertain; but we know that within fifty or sixty years of the Norman -Conquest fishermen from Flanders and Normandy--and doubtless from other -countries--visited our shores and carried on a fishery for herrings by -means of drift-nets. An important fishery was established at the mouth -of the Firth of Forth, on the east coast of Scotland, in the early part -of the twelfth century, and it was shared by fishermen from England, -Flanders, and France, who paid tithes to the monks of the priory on the -Isle of May. This monastery was founded by King David I. before the -middle of the twelfth century, and was endowed by him with the manor of -Pittenweem in Fife, and by Cospatrick, the great Earl of Dunbar, with a -house and “toft” at the village of Dunbar, both grants being of value -in connection with the fishery. King William the Lion (A.D. 1165-1214) -confirmed these grants, and addressed missives to “all his good -subjects and the fishermen who fish round the Isle of May” commanding -them to pay their tithes to the monks as they were paid in the time -of his grandfather, King David (A.D. 1124-1153); and he prohibited -them from fishing in their waters or using the island without license -from the monks.[99] This very early claim to the right of exclusive -fishing in the sea is characteristic of the policy of all the Scottish -kings. It was repeated on several occasions, the royal mandate being -sometimes addressed solely “to all fishermen who fish around the Isle -of May”; and that some of them were foreigners appears to be shown not -only by the statement above given, on the authority of contemporary -monks, but by the size of the vessels, some of which had four hawsers, -and paid much higher dues at the neighbouring harbours than the local -fishing-boats. We know also from contemporary Flemish records that as -early as the first half of the twelfth century fishermen from Nieuport -and other places in Flanders fished from large vessels for herrings -with drift-nets in August and September in the northern parts of the -North Sea. - -The men from France and Flanders alluded to, no doubt continued to -fish each season down the east coast of England to the mouth of the -Thames, as they did later and do still. About the period mentioned, -Yarmouth was a great fishing centre, and was frequented by foreign -merchants--Flemings, French, Swedes, and Frieslanders--who purchased -and cured herrings; but the earliest notice of foreign fishermen on the -English coast is in the year 1274, shortly after Edward I. came to the -throne. Complaint was then made that during a time of truce the English -fishermen had been attacked by the Flemish disguised as fishermen and -twelve hundred of them killed.[100] On the other hand, the Countess -of Flanders complained that twenty-two of her subjects who had been -fishing on the coast of England and Scotland, and had gone ashore at -Berwick to rest themselves and get provisions, had been seized, with -their nets, at Norham and thrown into the castle there.[101] About -twenty years later, Edward I. issued a mandate to John de Botetourt, -the Warden of the coast of Yarmouth, and to the bailiffs of that -town, saying that he understood that many men from Holland, Zealand, -and Friesland would shortly come “to fish in our sea off Yarmouth,” -and commanding them to make public proclamation once or twice a-week -forbidding any molestation or injury to be done to them, but that they -should rather be helped to pursue their fishing to advantage.[102] The -number of English fishermen stated to have been killed by the Flemings -in the encounter mentioned above, indicates how extensive the fishery -then was. This also appears a few years later, when the Flemings -resorted to a similar device; for in July 1296 above a thousand men of -Flanders, and others of France, disguised as fishermen, were preparing -to attack and burn Yarmouth and neighbouring places, and the bailiffs -and men of the port were ordered to collect their ships to oppose them. -These proceedings show the lawless state of the sea in those times. In -the thirteenth century an extensive herring fishing was also carried -on by the Scots on the east coast, especially in the Firth of Forth -and the Moray Firth, and particularly by the men of Fife, and cargoes -of herrings, cod, and haddocks, as well as salmon, were exported to -England and chiefly to London, but also to Bordeaux, Rouen, Dieppe, and -other ports in France. - -From the foregoing it is clear that centuries before the question of -_mare clausum_ was raised, important fisheries were established along -the east coast of England and Scotland, and that foreign fishermen took -part in them. The number of French and Flemish fishermen attending the -fishery must have been always great, because they had to furnish a -large part of Catholic Europe with fish. But the number was increased -after the fourteenth century, and especially in the fifteenth, from -two causes. One was the decline of the great herring fishery at -Scania, in the Baltic, upon which the Hanseatic League had risen to -power and opulence, and which provided perhaps the greater part of -continental Europe with salted and smoked herrings--Germany, Poland, -Russia, part of France, and even to some extent Flanders and England. -The Scanian herrings were esteemed the best, and the Hanse controlled -the trade.[103] The other circumstance was the invention in the latter -part of the fourteenth century by Beuckelsz, a native of Biervliet, in -Zealand, of a greatly improved mode of curing herrings,--an invention -which most materially aided the Dutch in taking the place of the -Hansards in the herring industry, and in the commerce which it brought -in its train. Some of the towns in the Low Countries early belonged to -the Hanseatic League, and their fishermen were in the habit of going to -the Scanian fishery;[104] but from the fifteenth century at least the -herring fishery on the British coasts became by far the most important -in Europe. It attracted foreign fishermen in increasing numbers, and -gradually the Dutch came to take the leading part in it, displacing -the Flemings and the men from Normandy and Picardy, and even to a -large extent the English themselves. In 1512 we find Margaret of Savoy -appealing to Henry VIII. to protect the fishermen of Holland, Zealand, -and Friesland in their herring fishery, in which they were menaced by -the Hanseatic towns, which were fitting out vessels to interrupt them; -and in her letter she describes the herring fishery as the principal -support of these states.[105] Towards the end of the century, when the -Dutch had begun to call their herring fishery on the British coast -their “great gold mine,” another event occurred which tended still -further to strengthen their hold on it by opening fresh markets on -the Continent. This was the failure of the great Bohuslän fishery in -Sweden, which continued barren for about seventy years.[106] They were -also enabled to prosper in their fishery by the beneficent policy of -the English sovereigns towards them up to the reign of James I., when -the claim to the exclusive fishing in the British seas was put forward -on behalf of the crown. - -When this claim was advanced in the seventeenth century, it was argued -that the sea fisheries had always belonged to the crown. Selden -declared that “license had usually been granted to foreigners by the -Kings of England to fish in the sea; and that the protection which the -kings gave to fishermen, as in their own territory, was an ancient and -manifest evidence of their maritime dominion.”[107] The cases adduced -in support of that contention are singularly few and unconvincing. One -is the tax imposed by Richard II. in 1379 on fishing vessels, among -others, in the admiralty of the north, but which, if it was imposed on -foreign vessels at all, must have been done with their consent (see -p. 33). Another relates to the arrangements which were occasionally -made for “wafting” or guarding the fishermen at the Yarmouth fishing, -and for which the fishermen thus protected had to pay,--an arrangement -which was also adopted in the reign of Charles I. Thus, in 1482, -Edward IV. invested certain persons, called Guardians, Conductors, -and Wafters, with naval powers, to protect the fishermen “of whatever -country they be, who shall desire to fish under the protection” of -the said wardens on the coasts of Norfolk and Suffolk; and all those -who took advantage of such protection had to pay an equal share of -the cost of it; any other persons pretending to have power to protect -the fishermen were to be apprehended. This arrangement was repeated -in the reigns of Richard III. and Henry VII.[108] It is evident that -the payment was only exigible from such foreign fishermen as took -advantage of the protection offered to them; those who desired to fish -without protection of the wardens were at liberty to do so. A more -pertinent case is the Act of the Irish Parliament in 1465--also during -the reign of Edward IV.--which has been previously alluded to.[109] It -was passed to prevent aid being given to the king’s enemies by foreign -vessels that went to fish at Ireland. All foreign fishing vessels were -prohibited from fishing on the Irish coast (except the north part of -Wicklow) without first obtaining a license from the Lieutenant, his -deputy, a “justice of the land,” or other person authorised to grant -it, upon pain of forfeiture of ship and goods. All foreign vessels -allowed to fish, which were of twelve tons burthen “or less,” and had a -“drover” or boat, were to pay thirteen shillings and fourpence yearly -for the maintenance of the king’s wars in Ireland; smaller vessels, -as “scarfes” or boats not having “drover nor lighter,” and within the -burthen of twelve tons, were to pay two shillings. This was obviously -a temporary measure, designed for a special purpose, though clearly -imposing a tax on foreign vessels; but there is not evidence to show -whether it was enforced. - -Other two instances referring to later times were adduced in support -of the contention that the sea fisheries belonged to England, and -they may be mentioned here. One was the statement made by Camden -about 1586,[110] and by Hitchcock some years earlier,[111] that the -Hollanders and Zealanders before they began to fish for herrings off -the east coast of England, first, “by ancient custom, asked leave of -Scarborough Castle”; “for,” adds Camden, “the English have always given -them leave to fish, reserving the honour to themselves, and resigning, -as if from slothfulness, the benefit to strangers.” Neither Hitchcock -nor Camden quotes any authority for the statement. Scarborough Castle -was in early times an important stronghold on the north-east coast, -and it is not unlikely that foreign fishermen, who were frequently at -the port, found it to their interest to maintain friendly relations -with the governor, and gave notice of their arrival, or perhaps asked -leave to dry their nets and paid for the privilege. It was the practice -for the governor to levy dues, in kind, on fish brought ashore, for -Edward III., in 1347, ordered writs of attachment to lie against -those who during the fishing season sold their fish at sea instead of -bringing them to the town, thus defrauding the Castle of its dues. -Another instance, which was frequently made use of in negotiations -later with the Dutch on the question of the fishery, was an alleged -lease for twenty-one years granted by Queen Mary to her husband Philip -II. of Spain, by which his subjects received licenses to fish on the -Irish coasts. The first trace of this story is found in a memorandum -addressed to Lord Salisbury in 1609 by one Richard Rainsford, an agent -for a fishery company,[112] in which it is said that £1000 per annum -had been paid into the Irish Exchequer by Philip for the privilege, -and that Sir Henry Fitton, the son of the treasurer at the time, could -substantiate the statement “on oath if need is.” No year is mentioned -by any of those who put forward this story,[113] and no record of it is -referred to. If not entirely apocryphal, and invented as an argument -against the Dutch, who were subjects of Philip in the early part of his -reign, it was probably constructed on a very slender basis. - -There is, however, one interesting case, or series of cases, in which -licenses to fish in the Channel were frequently granted by the Lord -Warden of the Cinque Ports to a limited number of French fishermen, -chiefly of Dieppe and Treport, for the ostensible purpose of supplying -the king of France’s table with fresh fish, and especially soles. It -is stated that the French kings “time out of mind” had applied for -such licenses,[114] and they were certainly granted under Elizabeth, -the Stuart kings, and Oliver Cromwell. It is doubtful when the custom -originated, but since the liberty of fishing was granted for a -definite area or bank, called the Zowe or Sowe, off Rye and well out -in the Channel, it was probably of considerable antiquity, and may -have survived from the Norman or Angevin reigns. James also furnished -similar licenses for the use of certain high personages, such as the -Duchess of Guise and the French ex-ambassador; but the liberty was -greatly abused, and was the cause of much friction and trouble with the -English fishermen later.[115] The fact that such licenses were asked -for by the French court on behalf of fishermen of Dieppe, Treport, -Calais, and other ports on the coast of France, may indicate that the -fisheries out in the Channel were at one time claimed by England. But -it is possible it was only the survival of a custom adopted during the -times when great lawlessness reigned on the seas, and when the men of -the Cinque Ports were a terror to their neighbours. A license from the -Lord Warden would be then a safeguard and protection. - -Such are the cases which were adduced to prove the rights of the -English crown to exclusive fishing in the British seas. On the other -side there is an overwhelming body of testimony to show that the -fishery was free. It may be noted in the first place that Bracton -and the other early English lawyers, unlike those of the seventeenth -century, made no claim for an exclusive fishery. They merely propounded -the Roman law that the sea and the shores of the sea were common to -all; that the right of fishing in rivers and ports was likewise free -to all; and that animals, _feræ naturæ_, including fish, belonged to -no person. The law laid down by Bracton and the others was not, of -course, international; but if it had been in agreement with English -jurisprudence in the twelfth and thirteenth centuries (as it was -made to be in the seventeenth) to consider the sea fisheries as the -property of the crown, that would have been declared, because Bracton -was embodying the customary law of England, and adopted Roman law only -when that failed him. He is careful to state that wreck of the sea and -“great fish,” such as sturgeons and whales, “belong to the lord the -king himself by reason of his privilege” or prerogative, precisely -on the ground that Callis, Coke, Selden, and Hale claimed the sea -fisheries generally for the crown in the seventeenth century. Had any -such right existed or been thought of in the reign of Henry III., -Bracton could not have failed to incorporate it, since the king placed -the archives and everything necessary at his disposal to enable him to -embody the common law of England.[116] So also there is nothing in the -rolls of Edward I. and Edward III., which deal with the sovereignty of -the sea, to indicate any claim to the fisheries; nor is there in the -Admiralty ordinances and regulations in the _Black Book_, although it -was part of the duties of the admirals to supervise the sea fisheries -and to enforce the laws relating to them. - -But the assertion that the fisheries were free in those early times -does not depend upon negative testimony. Liberty of fishing was -guaranteed in various treaties concluded with foreign nations from -the middle of the fourteenth century until the end of the sixteenth. -The first of these was made in the reign of Edward III., and it was -in keeping with the liberal policy of that monarch in regard to the -promotion of foreign commerce. It was almost a necessity, for English -fishermen were by themselves unable to meet the home demand for fish. -Fish caught by foreigners were regularly imported into England, and -such importation was encouraged by the crown and by Parliament until -after the Reformation. Foreign fishermen were also encouraged, as is -shown by the mandates of Edward I. and Edward II. above alluded to, and -by many others. - -The first of the formal treaties providing for liberty of fishing -was concluded in 1351 between Edward III. and the king of Castile -and towns on the coast of Castile and Biscay. Edward had signally -defeated the Spanish fleet in the year before in the battle known -as “L’Espagnols sur Mer,” and in the truce for twenty years which -followed, it was stipulated that there should be mutual freedom of -commerce and navigation, and that the fishermen from Castile and Biscay -should be at liberty to come freely and safely to fish in the ports of -England and Brittany, and in all other places and ports, paying the -dues and customs to the lords of the country.[117] Spanish fishermen -do not appear to have taken part in the great herring fishing on the -east coast,--Spaniards, indeed, have never cared for pickled or cured -herrings, differing in this respect from the Teutonic races, but have -preferred the mackerel, the pilchard, and the cod. The liberty of -fishing conferred by the treaty was no doubt chiefly valuable to them -with respect to their fishery off the Irish coast, the south-west coast -of England, and along the coasts of Aquitaine and Brittany for sardines -and mackerel. Two years later a similar treaty was concluded between -Edward and the towns of Portugal and Algarve, in which liberty of -fishing was stipulated in precisely the same terms,[118] and no doubt -related to the same waters. - -Early in the next century we find what seems to be the first of the -numerous agreements as to the liberty of fishing for herrings in the -narrow seas, quite a number of which were made in the comparatively -short and troubled reign of Henry IV. In a truce concluded in 1403 -between Henry and the King of France, it was provided that merchants, -mariners, and fishermen should be free to pass to and through either -kingdom without requiring letters of safe-conduct. Henry, therefore, -issued a mandate to his admirals and other officers concerned, -enjoining that during the current herring season the fishermen of both -countries should freely fish for herrings and all other fish, from -Gravelines and the Isle of Thanet down to the mouth of the Seine and -Southampton, without hindrance or molestation, and that if they were -chased by pirates or met with contrary winds they were to be allowed -to take refuge in the ports within the area defined, and were to be -well treated.[119] As the king’s missive is dated 26th October, it -appears that there was then, as there is now, a considerable winter -herring fishing in the Channel. Three years later, on 5th October -1406, Henry took all the fishermen of France, Flanders, and Brittany, -with their ships and boats, under his protection until 2nd February -in the following year,--that is to say, during the winter herring -fishery,--for which time they were to be allowed to fish freely and -without molestation, and to carry away their fish, provided they did -nothing to prejudice him or his kingdom.[120] Considering the weak -condition of the English navy at the time--the security of the sea had -been committed to the merchants on the east coast, a system which in -this month of October was known to have failed--and the prevalence of -pirates, it is unlikely that the protection of the king was of much -avail. - -In November of the same year, with reference to his treaty with France, -Henry published another proclamation stating that, on the supplication -of the burgesses and people of Flanders, it had been agreed that the -fishermen of England and Flanders, and generally of all the realm of -France, should, during the continuance of the treaty, go in safety to -fish in the sea. To the end that the fishermen who travelled on the sea -at great peril to gain their living might fish in greater security, and -obtain sea fish for the sustenance of the people, it was ordained that -for a year from the publication of the proclamation all the fishermen -of England, of Calais, and of other towns and places belonging to -the King of England, as well as the fishermen of Flanders, Picardy, -Normandy, and Brittany, and other parts of France, might go in peace -over the whole sea to fish and gain their living, without any restraint -or hindrance; provided no fraud was committed, and that English -fishermen had the same privileges from Flanders, Picardy, Normandy, -Brittany, and other parts of France. If the fishermen were driven into -port by the violence of the wind, or other cause, they were to be -received freely and treated reasonably, paying the dues and customs -as of old, and be at liberty to return to their own ports. The king, -therefore, commanded his admirals, captains, bailiffs, the commanders -of castles and ports, and others concerned, to see that the provisions -of the treaty were carried out.[121] - -In the following year was concluded the first of the great series -of Burgundy treaties, about which so much was to be heard in the -diplomatic negotiations with the Dutch in the seventeenth century. -Flanders was then part of the dominions of the Duke of Burgundy, who -held it as a fief of France, and freedom of commerce and fishery was of -the highest importance to his Flemish subjects. A treaty or convention -was therefore drawn up between Henry’s ambassadors and the Duke of -Burgundy, dealing chiefly with commercial intercourse, in which the -above-mentioned provisions for mutual liberty of fishing were embodied, -in practically the same language, and comprising likewise the whole of -France.[122] In 1408 the mutual freedom of fishing in the sea was twice -confirmed,--in the prorogation of the truce with the Duke of Burgundy, -and in the ratification by the King of France of the treaty between -Henry and the Duke;[123] and it was again confirmed at Amiens by John, -Duke of Burgundy, in 1417, in the reign of Henry V.[124] - -The various fishery truces and conventions of Henry IV., which -were made at a time when great insecurity prevailed on the sea and -depredations were committed on all hands, reflect credit on that able -monarch, and notwithstanding the naval weakness in the early part of -his reign, they must have had a favourable influence in fostering the -sea fisheries. The sort of treatment that fishermen in those times had -frequently to undergo is indicated in a complaint made to the king in -1410 that, notwithstanding the fishery truce with France, the men of -Harfleur had seized an English fishing vessel of twenty-four tons, _Le -Cogge Johan de Briggewauter_, and had thrown the master and fourteen of -the crew into prison, without food and water, and held them to ransom -for a hundred pounds.[125] Such occurrences were by no means uncommon, -and it was customary for fishing vessels to go to sea armed,[126]--a -provision which also enabled them on occasion to do a little piracy on -their own account. It was sometimes difficult for the authorities to -decide whether a vessel provided with fishing-lines and armed, as some -were, with “minions, falcons, and falconettes,” and having a good store -of powder and bullets, had been equipped to catch fish or prey upon -other vessels. - -It does not appear that any treaty concerning liberty of fishing was -made in the warlike reign of Henry V. (1413-1422); but, as stated -above, this king confirmed the Burgundy treaty in 1417. In the -succeeding reign of Henry VI., in 1439, a treaty was concluded for -three years with Isabel of Portugal, as representing her husband, -Philip, Duke of Burgundy, which provided for liberty in fishing in -much the same language as in the treaty of Henry IV. It was stipulated -that all the fishermen of England, Ireland, or Calais, as well as -of Brabant and Flanders, should be free to go all over the sea for -fishing, without any hindrance or molestation on either side, and that -they should have free access to the ports of either, under the usual -conditions. Although the Duke of Burgundy was also Count of Holland -and Zealand, these states were not specifically included in this -treaty, which was renewed in 1442 for other five years, and again, at -Calais, in 1446, for a term of twelve years, in precisely the same -terms, and the commonalties of Ghent, Bruges, Ypres, and of the French -dominions promised to observe it.[127] In the renewal of the treaty -of intercourse at Brussels, in 1468, by Edward IV. and the Duchess of -Burgundy on behalf of her husband, Duke Charles, in addition to the -mention of Brabant, Flanders, and Mechlin, words were added[128] which -brought Holland and Zealand into the treaty, and thus formally gave -them that liberty of fishing on the British, or at least the English, -coast which they struggled so hard and so successfully to retain in -the seventeenth century. The article on the fishery also declared that -the fishermen should be at liberty to fish without being required to -obtain any license, permission, or safe-conduct,[129] which appears to -indicate that the practice of obtaining such letters for their security -had been previously in vogue. In 1468, in the treaty of peace, at -Péronne, between Louis XI. of France and Charles, Duke of Burgundy, a -similar clause was inserted providing for the freedom of the herring -fishery;[130] and in the ten years’ truce agreed upon in 1471 between -Edward IV. and the King of France mutual liberty of commerce and -fishing was stipulated during the continuance of the truce.[131] The -treaty of 1467, above referred to, which included Holland and Zealand, -was to last for thirty years, but by the death of Charles the Bold, -and the marriage of Mary of Burgundy to Maximilian of Austria, it was -deemed necessary to renew it with the new Duke; and this was done, and -the compact declared to be perpetual, in 1478, the clause providing for -the liberty of fishing remaining unaltered.[132] - -It is thus clear from those numerous treaties that in the fifteenth -century the liberty of fishing in the sea was so generally recognised -by England that the principle might be regarded as having become a part -of her international policy and custom. Towards the end of the century -the Burgundy treaties were superseded by the great treaty of peace and -commercial intercourse which was concluded in 1496 between Henry VII., -the first of the Tudor sovereigns, and Philip, Archduke of Austria -and Duke of Burgundy. This treaty, which became so well known later -as the Great Intercourse (Intercursus Magnus, le Traité d’Entrecours, -’t Groot Commercie-Tractaat), was the sheet-anchor of Dutch policy in -relation to England in the seventeenth century, and was constantly -appealed to by them in their diplomatic struggles with the Stuarts and -with Cromwell. It was the price paid by Henry for the expulsion of -Perkin Warbeck from Flanders, the provisions in regard to whom, when -slightly modified by St John in 1651 to apply to the “rebels” of the -Commonwealth, so startled the Dutch Government (see p. 387). The treaty -was to be perpetual, and it actually endured for a century and a half. -The article dealing with the liberty of fishing was couched in almost -the same language as in the preceding treaties. The fishermen of both -nations were to be at liberty to go in security to fish anywhere on -the sea, without requiring any license or safe-conduct, and to have -free use of one another’s ports under stress of misfortune, weather -or enemies, on paying the ordinary dues.[133] As conservators for -this treaty of peace and commerce, which was received with much -rejoicing in the Low Countries, Henry appointed, among others, the -mayors and aldermen of London and of a large number of towns, including -Southampton, Sandwich, Dover, Winchelsea, Boston, Yarmouth, and -Berwick; and the Archduke, on his side, appointed the burgomasters of -Ghent, Bruges, Dunkirk, Antwerp, Dort, Delft, Leyden, Amsterdam, Briel, -and others. - -Several supplementary treaties dealing with commercial subjects were -concluded between Henry VII. and Henry VIII. on the one side, and the -Archduke of Burgundy on the other--viz., in 1499, 1506, 1515, and -1520.[134] While they confirmed in general terms the previous treaty, -the clause referring to the freedom of fishery was not specifically -mentioned, a circumstance which, considering the nature of the matters -dealt with--the staple at Calais, the cloth trade, the Zealand -tolls,--was not surprising. Nevertheless, the fact that treaties -of commerce had been made with the Low Countries subsequent to the -Intercursus Magnus, without containing a clause expressly renewing the -liberty of fishing, was used later by English statesmen, as by Lord -Bacon, as an argument that the provision of that treaty had thereby -been rendered inoperative. But the policy of Henry VIII., and indeed -of all the Tudor sovereigns, proved the contrary; liberty of fishing -on the English coast was not called in question till James came to the -throne. - -We have already seen that Margaret of Savoy appealed to Henry VIII. in -1512 to protect the herring fishermen of the Low Countries from the -attacks of the Hanseatic towns, and apparently with success. The same -regard for the herring fishery was shown in a marked manner in 1521 -in the negotiations between the Emperor Charles V. and King Francis -I. of France. Cardinal Wolsey, who was the “mediator” between them, -strongly urged the need of allowing the herring fishery to be free, -safe, and unmolested. He made this stipulation one of the chief points -of the proposed treaty. It is stated in a despatch which was sent -to Charles V. by his ambassadors at Calais, where the negotiations -were being conducted, that the Cardinal declared his intention to -propose, among other things, security for the fishermen and cessation -of hostility on the sea between England and Flanders, and that either -party should be free from attack by the other in English ports. There -was no difficulty about the fisheries, the ambassadors said, as they -knew the Emperor wished it, and that his subjects would more willingly -go to sea in that event than they then did under the protection of -ships charged to defend them.[135] The French ambassadors also informed -Francis that Wolsey pressed the point on them, and that they had -ultimately agreed in order “to conciliate him, considering it can be -revoked at pleasure, and will be profitable to those living on the -coast of Normandy and Picardy, and without it they will not be able -to pay their taxes.”[136] It is clear from the political events that -followed, that the great Cardinal, in stipulating for the security of -the fishermen, had principally in view the interests of the Emperor, -to whom the Netherlands belonged; but it was in perfect accord with -established English policy. The agreement for the security of the -herring fishery was embodied as a leading article in the formal treaty -concluded between the two potentates in October of the same year, it -being provided that until the end of the following January, even though -the war should continue between the two countries, the fishermen of -both parties should be allowed to fish unmolested and to go home in -safety.[137] In the war which ensued, the French admirals did not push -the advantage they had on the sea to extremes, but sold safe-conducts -to the fishermen of the Netherlands, and allowed them to pursue their -fishing. In several treaties and truces made in the next few years -between the Powers named, it was provided that the herring fishery -should be carried on freely and in security on both sides, even during -the existence of hostilities. One of these, to last for eight months, -was concluded in 1528 between Charles V., Francis I., Henry VIII., and -Margaret of Austria, who represented Holland, Zealand, and Friesland, -as well as Flanders.[138] It may perhaps be surmised that in the common -concern about the winter herring fishery the influence of the Church -was not without effect, so that the fish for Lent might not be wanting. - -From the foregoing it is apparent that the kings of England, so far -from claiming an exclusive right to the sea fisheries along the English -coast, entered into a series of treaties with their neighbours, -extending over a period of nearly two hundred years, by which freedom -of fishing was mutually recognised and guaranteed. Throughout the -reigns of the Plantagenet and Lancastrian kings, as well as under -the Yorkists and Tudors, foreign fishermen were at liberty to fish -freely in the English seas without requiring any license or paying -any tribute. Not only so, but up to the middle of the sixteenth -century, and especially in the time of the Plantagenet kings, they were -encouraged to take part in the fisheries off our coasts, and to bring -into the realm and freely trade in fish, both fresh and cured; and, in -point of fact, a large proportion of the fish consumed in England was -caught and sold by foreigners. It was not until after the Reformation, -when the English fisheries began to decay, that protective measures -were adopted in favour of the native fishermen; and it was not until -the reign of James I. that any attempt was made to place restrictions -on the liberty of fishing immemorially enjoyed by foreigners along the -English coasts. - -But when we turn to Scotland we find there was not only in that country -an absence of the toleration which was extended in England to foreign -fishermen, but that restrictive measures were in force from an early -period. The claim made by the Scottish kings in the twelfth century -for the exclusive fishing in the sea around the Isle of May on behalf -of the monks of the priory there, strikes the keynote of their policy -in later times. This difference between the policy in England and -Scotland might to some extent be due to the nature of the fishings. In -the northern kingdom the herring fishery was confined almost entirely -to the firths and lochs “within land”: the native fishermen did not -compete with the foreign vessels which carried on the fishery at a -greater or lesser distance from the coast from the neighbourhood of the -Shetlands to the Thames. The encroachments of the foreign fishermen, -which sometimes occurred from the vagaries of the shoals, were thus -resented. On the English coast the native fishery was carried on -for the most part alongside the foreign fishermen, and the English -fishermen were thus accustomed to the presence of the foreigners. In -Scotland, moreover, the sea fisheries, and in particular the herring -fishery, were of greater relative importance to the people than was -the case in England, which possessed rich pastures and was essentially -agricultural. Fishing was much more of a national pursuit, and besides -supplying what was required for home consumption, Scotland was able -to export large quantities of fish to other lands: in the fifteenth -century the title “Piscinata Scotia” was referred to as an “old -proverb.” The fisheries, besides forming a not unimportant source of -revenue to the crown, supplied a chief staple of the trade and commerce -of the “royal burghs,” which were always extremely jealous of their -rights and privileges, and possessed great power. Hence the Acts of -the Scottish Parliaments which dealt with sea fisheries--and they are -numerous--breathe a much more exclusive spirit than those of England. -Hence also the treaties and conventions between Scotland and the -Netherlands did not extend to foreign fishermen the generous treatment -which was so evident in the south. The earliest of those commercial -agreements seems to have been made in 1291; others were concluded in -1321 and 1323, in the reign of Robert the Bruce, by which free ingress -and egress were given to merchants to pass with their merchandise to -any parts of the kingdom, “with their ships and goods”; and similar -freedom of commercial intercourse was stipulated in 1371, 1401, 1407, -1412, 1416, and on numerous occasions subsequently.[139] These early -agreements contain no provision about the fisheries, and nothing to -indicate a desire on the part of the Scottish king or people to allow -fishermen from the Low Countries to fish in the adjacent waters. The -feeling of the coast population towards the foreigners was usually -jealous and aggressive; attacks by the one and reprisal by the other -were of frequent occurrence, especially in the fifteenth and sixteenth -centuries. The Earl of Holland complained in 1410 that the Scots had -attacked the fishermen of that province “when they went to sea to -catch herrings in their fishing vessels and to gain their living like -honest men”; and by way of reprisal he gave permission to the people of -Brouershaven to attack and injure their “enemies,” the Scots, wherever -they could find them, on sea or land.[140] There is much testimony to -show that in those times the Scottish fishermen were of a fierce and -forceful disposition, and little inclined to tolerate the intrusion -of foreign fishermen within what they claimed as their “reserved -waters,”--that is, the firths and bays and a distance along the coast -described as “a land kenning,” which extended to fourteen miles or to -twenty-eight miles from the shore. An indication of their treatment of -those who intruded is afforded by a story told in one of the English -State Papers on the authority “of the old Bishop of Ross, who came in -with King James to England.” He said that in the time of King James V. -(A.D. 1513-1542) the Hollanders, who had only a verbal license to fish -at twenty-eight miles off, came near the shore within the mouth of the -Firth of Forth, “and there fished in despite of the king’s command.” -James thereupon set out men-of-war and took so many of them that “he -sent a baril ful of their heads into Holland, with their names fixed -to their foreheads on cards,” as a warning to their fellows.[141] This -tale of savagery, probably apocryphal, no doubt originated in the -conflicts and reprisals between the Dutch and the Scots which are known -to have occurred in the reign of James V., and led to the treaty of -1541, in which, for the first time, there is a stipulation concerning -the fisheries. For some years previously the relations of the Emperor -Charles V. (in whose dominions the Low Countries were included) and the -King of Scotland had been strained, owing to the renewal of the old -alliance between Scotland and France. A number of armed vessels, under -the command of Robert Foggo of Leith, cruised about and captured many -Dutch herring-busses, especially those belonging to Schiedam and Briel. -The States of Holland retaliated by seizing Scottish goods in Holland, -and then James V. threatened that he would put an entire stop to their -herring fishing on the coast of Scotland.[142] Owing to the war with -France and the depredations of privateers, the Netherlands at that time -had much difficulty in protecting their herring-busses, and the threat -of the Scottish king speedily brought about negotiations. The States -of Holland petitioned the Emperor to interfere,[143] alleging that -the prohibition of their herring fishing by the King of Scotland was -inconsistent with the freedom of navigation, and even with the treaties -subsisting between them--which, however, as has been said, did not -include the question of fishing. In the treaty which followed between -James V. and the Emperor,[144] it was, amongst other things, agreed -that means should be devised for reparation of the damages done on -both sides “to merchants, fishers, and other traders or subjects,” or -to their ships and goods, in time of peace; and that mutual protection -should be afforded to the fishermen against pirates. It contained no -fishery clause like those in the English treaties, and not a word about -the liberty of fishing. It can scarcely be doubted that the omission -was deliberate, and that those conducting the negotiations on behalf -of the Dutch wished to have a guarantee of the kind. We learn from -the treaty that the last article in the instructions of the Scots -ambassador contained some proposal about the fishery. Its nature -does not appear; but from the fact that it was not agreed to, and was -reserved for further consideration on the part of the Emperor, it is -not unlikely that it referred to the fixing of a limit within which the -Dutch were not to fish.[145] The Scottish lawyer, Welwood, early in the -next century referred to the “notorious covenant” which had been made -with the Dutch, that they should not fish within eighty miles of the -coast of Scotland, a statement that may have been a reminiscence of -this proposal. - -The peace was not of long duration. The Scots again attacked the Dutch -fishermen on the coast of Scotland; the goods of Scotch merchants were -in turn seized in the Netherlands, and their ships and seamen arrested, -and arrangements were made by the Dutch to convoy their herring-busses -with many ships of war.[146] On the representations of Rotterdam and -Schiedam--towns which had a great stake in the herring fishery on the -Scottish coast--a request was made to the Emperor, in the name of the -States of Holland, asking him to arrange in his negotiations with the -Scots for the restitution of the goods taken by them from the Hollander -fishermen; and early in 1545 he was petitioned to conclude a truce -with them on account of the herring and dogger (cod) fishing.[147] -It was not until 1550 that another treaty was signed between the -two countries,--also at Binche, on 15th December, on behalf of the -Emperor Charles V. and Mary Stuart, Queen of Scotland. It confirmed -all previous treaties, and contained provisions for mutual freedom -of commerce and navigation without the need of any safe-conduct or -license, general or special, and with liberty to make use of one -another’s ports, and also mutually to protect one another’s subjects, -including fishermen, from the attacks of pirates. The part referring -to the fishery did not, however, differ from that in the previous -treaty, which it merely confirmed. “With regard to the fishery and -the free use of the sea,” it said, “that which was made, concluded, -and agreed upon by the foresaid treaty made at Binche on the 19th -February 1541, between the Most Serene Queen Mary (of Hungary and -Bohemia) and the aforesaid ambassador of the King of Scotland, shall -be truly and sincerely observed.”[148] This treaty, which was called -in the Netherlands “celebre fœdus,” may be regarded as the Scottish -counterpart of the Intercursus Magnus, concluded with England in 1496. -The older Dutch writers, as Wagenaar and Plegher, professed to regard -it as having guaranteed freedom of fishery on the coasts of Scotland -in the same way; and it was cited by the Dutch ambassadors in the -negotiations concerning the fishery in the seventeenth century in this -sense. But in the English treaty freedom of fishing all over the sea -was expressly covenanted in the most plain and explicit language, while -the treaty with Scotland in 1550 merely confirmed a previous treaty -which certainly did not confer liberty of fishing, though the phrase -“the free use of the sea,” now introduced in the preamble, might at -first sight imply the contrary. Nothing more appears to have been heard -of the proposal of the Scottish ambassador in 1541, which had been -deferred for further deliberation.[149] - -A treaty which took a still more important place in the subsequent -disputes and negotiations respecting _mare clausum_ and unlicensed -fishing, and upon which the Dutch relied even more, at least in the -reign of James, than they did on the Intercursus Magnus, was concluded -with King James VI. in 1594, fifteen years before he issued, as king -of England as well as of Scotland, his famous proclamation forbidding -promiscuous and unlicensed fishing. On the occasion of the baptism of -his son, Prince Henry, which took place at Stirling on 30th August -1594, the States-General despatched two ambassadors, Walraven van -Brederode and Jacob Valck, laden with costly gifts, to take part in -the ceremony, and also to do a little business with the king. The -two previous treaties between Scotland and the Netherlands had been -concluded at a time when the whole of that country had been under the -rule of Charles V. In the interval it had passed into the possession of -Philip of Spain, and then the northern provinces had revolted, thrown -off the Spanish yoke, and formed the famous federal commonwealth of -the seven United Provinces of Holland, Zealand, Utrecht, Gelderland, -Over-Yssel, Friesland, and Groningen. It was thought to be desirable -by the prudent Dutchmen to renew if possible on their own behalf the -treaties with Scotland, especially as it was then recognised that James -would succeed to the English throne. The ambassadors therefore brought -with them a long draft treaty, in which the previous treaty of 1541 -was recited and that of 1550 was given in full. James agreed to the -confirmation of the previous treaties, and the ratification was signed -at Edinburgh on 14th September 1594. In his declaration he stated that -he had “seen, read, and examined” the treaty of peace and alliance -made at Binche in 1550 between Charles V., Emperor of the Romans, -in the capacity of sovereign of the Low Countries, and Queen Mary, -“his honoured dame and mother,” and having found it very desirable, -good, and beneficial for him and his country, it was to be observed -inviolably for the good of the traffic and commerce of the subjects of -the two nations; and he sincerely promised to observe the treaty and -every clause and article in it. Then the easy-going monarch appears -to have forgotten all about it. The document itself was lost, and -when it was urgently wanted for the negotiations in the next century -it could not be found, and nobody in this country seemed to know what -it contained; it was even regarded by some--as the English ambassador -at The Hague--as apocryphal. Although the Dutch relied much on this -treaty, it contained no stipulation regarding liberty of fishing. The -treaty of 1550 was confirmed, by which it was provided that commerce -and navigation were to be free; merchants were to be at liberty to -pass safely and freely with their goods by land and sea, and to buy -and sell; pirates were to be chased from the sea, and the subjects -of either state, including fishermen, were to be mutually protected -from their attacks; but the fishery clause was precisely the same as -before.[150] - -It is thus evident that there was a great difference between the -English and the Scottish treaties with the Netherlands respecting the -right of fishery. The former contained a separate clause, conceived -in a broad and liberal spirit and again and again renewed, providing -for mutual freedom of fishing everywhere on the seas, while no such -agreement or anything like it was made on the part of Scotland. The -Dutch fishing on the coast of Scotland was more important to them than -their fishing on the English coast, and there is no doubt they strove -to obtain the same privileges for it as they received in England. -The omission of a corresponding clause in the Scottish treaties was -in accordance with the long-settled policy of the Scottish kings and -Parliaments, and it was that policy that James carried with him to -England when he attempted to reverse the established practice with -regard to the fisheries, and opened up the claims to _mare clausum_. - -There is, unfortunately, little contemporary evidence as to the precise -extent of the claim to the fisheries which was anciently put forward in -Scotland. The Acts of the Scottish Parliaments do not help us very far, -although they reveal the jealous and conservative spirit previously -referred to. Many statutes were made prohibiting strangers from buying -fish except such as were salted and barrelled, and then only at free -burghs; concerning the “assize-herring,” of which so much was to be -heard; and the payment of customs by foreigners exporting fish. The -language of some of the Acts implied a certain control over foreign -fishermen on the sea,[151] and all that we know of the practice and -customs in Scotland makes it highly probable that these enactments were -in point of fact enforced against foreign fishermen as far as they -could be. The Scots were always particularly jealous about the fishings -in the firths and lochs “within land.” An important herring fishery of -this kind was carried on in the lochs on the west coast, especially in -Loch Broom and Loch Fyne, in autumn and winter, by fishermen from the -Clyde, the Ayrshire coast, and Fifeshire, who built timber houses on -shore where they cured the herrings; and this fishing was attended by -Frenchmen, “Flemings,” and English, who purchased the cured herrings -or bought the fish and cured them themselves.[152] Wishing to catch -the herrings for themselves, these “divers strangers” most earnestly -petitioned Queen Mary in 1566 for “license to fish in the said lochs.” -But the Council, to whom the petition was referred, after consultation -with the burghs, refused the request, and ordained that “no stranger -of whatever nation they be come in the said lochs, nor use the -commodity of the said fishing in any time to come, but the same to be -reserved for the born subjects and natives of the realm,” under pain -of confiscation of ships and goods.[153] Some of the old Scots Acts, -of the reign of James III. (1460-1488) and later, refer to previous -statutes, which seem to be lost, respecting the herring fishery in -the western seas; and they indicate that “letters” had sometimes been -granted by the king favouring foreigners in some way, but whether by -allowing them to fish there is unknown. - -On the east coast, where the Dutch carried on their great -herring-fishing from busses, there is evidence that a limit was early -fixed within which they were not allowed to fish, but no contemporary -records relating to it appear to have been preserved. It is probable -that an arrangement was come to between them and the Scottish -fishermen, possibly in the reign of James V. or even earlier, by which -they were not to fish within sight of land. At the beginning of the -seventeenth century, when the question of unrestricted fishing was -raised in an acute form, there was a remarkable unanimity of opinion -in Scotland that the ancient and established custom was that foreigners -were not allowed to carry on their operations within a “land-kenning” -of the coast,--that is, not nearer than where they could discern the -land from the top of their masts. This distance was usually placed at -fourteen miles, but sometimes a double land-kenning, of twenty-eight -miles, was claimed; and we shall see that the former distance was -embodied in the Draft Treaty of Union with England in 1604, as well -as proposed to the States-General as a provisional limit in 1619 (see -p. 192), and declared by Parliament and the Privy Council of Scotland -to be the bounds of the “reserved waters” belonging to Scotland. -Welwood, a Scottish lawyer who wrote at the end of the sixteenth and -the beginning of the seventeenth centuries, states that before his -time, after “bloody quarrels” about sea affairs between the Scots and -the Hollanders, the disputes were arranged on the understanding that -in future the Hollanders were to keep at least eighty miles from the -coast of Scotland, which, he says, they did for a long time. If they -were driven nearer by stress of weather they paid a tax or tribute -at the port of Aberdeen, where a castle was built for this and other -reasons. This tax, he adds, was paid until by frequent dissensions at -home and the audacity of the Hollanders the right was lost.[154] There -is no very satisfactory evidence to show in how far the statements of -Welwood were in accordance with the facts. In the records of the Privy -Council a case is mentioned which might be interpreted in another -way. In 1587 two English ships belonging to Shields, coming from the -“easter seas” laden with fresh fish and bound for England, were seized -and brought into port by one Thomas Davidson of Crail, apparently on -the plea that they had been fishing too near the shore. The owners -contended that the fish had been caught “upon the main sea, outwith his -Majesty’s dominions, where not only they but the subjects of all other -princes had had a continual trade and fishing in all times bygone past -the memory of man.” But even, it was argued on their behalf, if the -fish had been caught within his Majesty’s waters, still, in respect of -the “continual trade” which strangers had had there in all time past, -“there being no inhibition made or published to the contrary as yet,” -no such treatment should have been meted out to them.[155] This was in -the reign of James VI.; and the most likely explanation, in the absence -of information as to the decision taken by the Council, is that while -no official proclamation forbidding fishing by foreigners had been -promulgated, and no recent measures carried out to prevent them from -doing so, it was believed that a certain part of the sea was reserved -for the use of the Scottish fishermen, apart from the waters of firths -and lochs. - -The difference in the national policy of England and Scotland -concerning foreigners fishing along our coasts prevailed until -the Union of the crowns, when James introduced the Scottish ideas -into England and soon endeavoured to transform them into practice. -Meanwhile, under the Tudors, certain changes were slowly and silently -taking place which paved the way for the new policy, and that too -although, very shortly before, the freedom of the seas had been -proclaimed and vindicated by Queen Elizabeth. - - - - -CHAPTER III. - -UNDER THE TUDORS. - - -The policy of freedom of commercial intercourse, navigation, and -fishery which was enunciated in the Intercursus Magnus and the treaties -which preceded it, was faithfully observed throughout the sixteenth -century. No attempt was made by any of the Tudor sovereigns to -interfere with the liberty which foreigners enjoyed of fishing on the -English coast; nor was any claim put forward by them to the dominion -or lordship of the surrounding seas. On the contrary, throughout the -greater part of the century, facilities were given for the peaceful -exercise and encouragement of sea-fishing, even in time of war; while -on several occasions the last and greatest of the monarchs of the -Tudor line actively contested the old pretensions of Denmark to the -sovereignty of the northern seas, and the more recent claims of Spain -and Portugal to the exclusive right of navigating the great oceans. -It was nevertheless during this century that changes occurred which -made it easy for James early in the next to initiate a new policy -of _mare clausum_, and to repudiate the provisions of the so-called -Burgundy treaties. The most important of these changes was perhaps the -decay which overtook the sea fisheries. Apart from their commercial -and economic value, the fisheries were looked upon as indispensable -for the maintenance of maritime power, and probably at no previous -time had greater efforts been made to foster maritime power than -under the Tudors. The hardy fishermen who navigated their barks to -distant seas--to Iceland, to Wardhouse, round the North Cape, and -now to Newfoundland--were trained in a school of seamanship which -fitted them admirably to take their place for the naval defence of the -country. Even the herring-smacks and the dogger-boats that fished in -the North Sea and the Channel turned out mariners by no means to be -despised,--men acquainted with the coasts and the tides, able to manage -sails and educated to the sea. It was this aspect of the fisheries -which was mostly regarded by the statesmen of those times, and for -which the “political lent” and the protective legislation were designed. - -The causes which led to the decay in the English fisheries were no -doubt various, but perhaps the chief one, and the one on which most -stress was laid in the latter part of the century, was the Reformation. -The very large consumption of fish due to the observance of Lent -and the numerous days of fasting, or fish-days, has been referred -to (see p. 58). The suppression of the monasteries (1536-1539) and -the dispersal of the inmates and dependants must alone have had -considerable influence, but the relaxation of ecclesiastical rule among -the laity which followed was much more detrimental to the fisheries. -The decay of the sea-coast towns, so frequently spoken of in the reign -of Elizabeth, was mainly attributed to this cause. Another influence -which operated in the same direction, most markedly towards the end -of the century, was the great growth of the fisheries and commerce of -the Dutch. After the assertion of their independence of Spain (1581), -commonly called the “abjuration of Philip,” their fisheries developed -with great rapidity. One of the first acts of the new Republic (1582) -was the codification of the fishery statutes; and about this time -they applied to the deep-sea herring fishery the name of Great or -Grand Fishery (_Groote Visscherye_), as being “the chief industry of -the country and principal gold-mine to its inhabitants,” in contrast -to the real gold-mines of Spain. They furnished the greater part of -Europe with cured herrings and other fish, and the fish supply of -England, and more particularly of London, fell to a large extent into -their hands. Their herring fishery was carried on along our east -coast, and the spectacle of great fleets of foreign fishing vessels -frequenting our waters, while the native fisheries were falling to -decay, roused envious and jealous feelings in the breasts of patriotic -Englishmen.[156] - -Under the Tudors the efforts made to foster the sea fisheries did -not, as has been said, take the form of interfering with the foreign -fishermen. They were rather directed, on the one hand, to increase -the consumption of fish by restoring the strict observance of Lent -and fish-days, and, on the other hand, to check the importation -of fish caught by foreigners. In this way it was hoped that the -native fisheries would be stimulated to supply at least the home -markets. As early as 1541--a year or two after the suppression of the -monasteries--an Act was passed which apparently indicates that the -decline in the fisheries had already set in, and that it was customary -for the English people to purchase fish from foreigners rather than -catch them for themselves. Heavy penalties were imposed on any person -who should bring into the realm for sale fresh fish (except sturgeon, -porpoise, and seal, which were then included in the term) which they -had purchased from strangers in Flanders, Zealand, Picardy, France, or -elsewhere beyond the sea, “or upon the sea between shore and shore”; -but the buying of fish at Iceland, Scotland, Orkney, Shetland, Ireland, -or Newfoundland--to all which places English vessels went--was not -prohibited.[157] This statute was re-enacted four years later, and -again by Edward VI. and Queen Mary.[158] In the reign of Elizabeth a -number of similar statutes were made, with the object of favouring the -native fishermen in their competition with foreigners. - -About the same time as the first Act of Henry was passed we begin -to get evidence of laxity in the observance of Lent and of measures -taken to deal with it. Many persons, including noblemen, were brought -before the Privy Council charged with having eaten flesh in Lent, and -were committed to the Fleet. The mayor and aldermen of London were -commanded to make inquisition throughout all the wards of the city as -to the households in which flesh was used in Lent, and the butchers -were required to furnish information as to the quantity of flesh sold -by them, and to whom, in the same period.[159] This activity of the -Privy Council foreshadowed the new policy of the “political lent” -which was inaugurated a few years later in the reign of Edward VI., -and with which the name of Cecil was associated. By this time it was -clearly recognised that the religious changes that had taken place were -prejudicial to the fisheries by lessening the consumption of fish, and -in 1548 an “Act for Abstinence from Flesh” was passed, by which fines -were imposed on those who did not observe the usual fast-days. The -object of the measure was clearly explained. “One day or one kind of -meat of itself,” it said, “is not more holy, more pure, or more clean -than another, for that all days and all meats be of their nature of one -equal purity, cleanness, and holiness;” but “considering that due and -godly abstinence is a mean to virtue, and to subdue men’s bodies to -their soul and spirit, and considering also especially that Fishers, -and men using the trade of living by fishing in the sea, may thereby -the rather be set on work,” it was enacted that no person should eat -flesh meat on Fridays, Saturdays, Ember-days, Lent, or on any other day -which was accustomed a fish-day, under a penalty of ten shillings fine -and ten days’ imprisonment without flesh food.[160] - -By this statute the political lent was established, and the policy of -compelling the people to eat fish for the good of the fisheries and -the navy was continued with more or less vigour for a century and a -half. Sir William Cecil was especially active in its favour. He caused -careful inquiries to be made into the condition of the decayed havens -and sea-coast towns and the state of the fisheries. He was informed by -the London fishmongers, to whom he had submitted a series of questions, -that there was not so much fish then consumed “by a great quantity” -as used to be the case, and that the number of vessels engaged in the -fisheries had greatly decreased. On the latter point they referred to a -return made about the twentieth year of the reign of Henry VIII., which -showed that seven-score and odd ships then went to the Iceland fishery, -about 80 crayers to Shetland, and about 220 crayers from Scarborough -and other towns to the North Seas fishing, making a total of about 440 -fishing vessels; while at the time they wrote--in the reign of Edward -VI., and probably in 1552 or 1553--the number had fallen to about 133, -of which 43 went to Iceland, 10 crayers to Shetland, and 80 to “the -North Seas,” showing a decrease in the twenty-four or twenty-five -years of about 307 “ships and crayers.”[161] A similar story of the -decay of the fisheries came from the east-coast towns. At Lynn, which -was maintained chiefly by the Iceland and the herring fisheries, and -which twenty or thirty years before sent out about thirty vessels -to those fisheries, there were then only two Iceland barks, and no -herring-smacks at all. It used to be able to furnish 300 mariners for -the king’s service, while now it could not supply more than twenty -or thirty. And so at Burnham (where the fishing-boats had decreased -from 26 to _nil_), Wells, Clee, Cromer, Yarmouth, and other Norfolk -ports--all had greatly decayed. The fisheries and the shipping had -fallen off, the “men of substance” had lost their money or left, the -population had diminished, and even the houses were falling down. -To a statesman like Cecil, who knew the value of the mariners bred -at the fishing ports for manning the navy if need arose, and how a -flourishing fishery multiplied shipping, such information must have -been disquieting. He calculated that while within twenty years back -there had been 150 ships for Iceland, 220 for the north seas, and 78 -for “Shotland” (Shetland), the numbers had fallen when he wrote to 43 -for Iceland, 75 for the north seas, and 9 for Shetland; and that the -number of fishing vessels had decreased from 448 to 127.[162] - -In replying to Cecil’s second question as to the cause of the decay -in the fisheries, the fishmongers said it was first of all due to the -diminished consumption of fish, since the fish-days were not “duly -observed as heretofore,” which “took away such hope of gain as in time -past they have had” in carrying on the fisheries. A second reason they -gave was the greater love “for ease and pleasure” than in former times, -people now preferring to buy their fish from strangers rather than to -“travail and venture for it themselves,”--a very common charge against -Englishmen then and for a long time afterwards. As a third reason, they -said the price of fish was regulated in various towns by the mayors -and other officers in such a way that they were often forced to sell -without sufficient profit, while Government purveyors made them part -with their fish at nominal prices. It is to be noted that they made no -complaint against foreign fishermen or the importation of foreign fish. - -During the brief reign of Mary (1553-1558) Cecil was in the shade, but -shortly after the accession of Elizabeth he again devoted attention to -the decay of the fisheries and tried to apply fitting remedies. Among -the State Papers of the year 1563 is a long and elaborate document, -copiously revised by Cecil himself, which deals with the condition of -shipping and fisheries, and obviously formed the basis and argument for -the great Act made in the same year.[163] In this paper the decay of -the navy both in ships and mariners was traced by Cecil to a variety -of causes: the piracies of Turks and Moors on the Levant trade, the -transference of the spice trade from the Venetians to the Portuguese -and Spaniards, the Spanish law of bottomry, the augmentation by the -King of Denmark of the tolls at the Sound and his recovery of Iceland, -and the decay of the English fisheries. Herrings and other sea fish, -he said, were now taken upon our coast by strangers, who brought them -into the realm and sold them “to the very inhabitants of the parts -that were used to be fishermen,” while Englishmen had themselves been -prohibited from exporting fish.[164] The remedies which Cecil proposed -were that the importation of wines and woad should be allowed only in -English ships; that Englishmen should be prohibited from purchasing -fresh herrings which had been caught by strangers; that they should be -free to export and sell sea fish out of the realm; and, principally, -that Wednesday should be made an additional fish-day. The decay of the -fisheries, he said, was manifest on all the sea coast in the decay of -the port towns, which soon would be “remedeless,” and it was caused -by diminished consumption of fish at home and the want of foreign -markets.[165] On the other hand, Scotland, Norway, Denmark, Friesland, -Zealand, Holland, and Flanders caught not only sufficient fish for -themselves, but exported it to other countries, including England; -while Spain provided herself by her fisheries on the south coast of -Ireland, and France “aboundeth with fishermen” from her great fisheries -at Newfoundland and Iceland.[166] Cecil’s conclusion was that there was -no likelihood for a long time of developing a flourishing export trade -in fish, and that it would be necessary to institute another fish-day -to increase the demand at home. On this part of his proposals he -entered into a long argument, showing that in 1536 the 500 monasteries -which paid tithes to the king, with a minimum number of 25,000 inmates, -must have required a great supply of fish, as fish was then eaten on at -least seventy-six days a year more than at the time when he wrote.[167] - -By the great Act passed in 1563, “Touching certain Politic -Constitutions made for the Maintenance of the Navy,” Wednesday was -added to the two fish-days previously enjoined by the statute of Edward -VI., but only after long debate and opposition on the part of the -“puritans.”[168] The Act also contained provisions to restrain foreign -importation of fish, to encourage the export of English-caught fish by -subjects, and to remove the complaints as to the action of purveyors -and burdensome impositions--points on which the fishmongers had laid -some stress. Herrings and other sea fish taken by Englishmen in English -ships were to be freely exported without paying custom; no tax, toll, -or restraint was to be imposed on fish taken and landed by subjects; it -was made illegal to buy from strangers any herrings unless they were -“sufficiently salted, packed, and casked”; only English vessels were to -be allowed to carry coastwise any fish, victuals, or other goods; the -cultivation of flax for fishing-nets was to be encouraged; and on the -plea that there was “much deceitful packing” of cod and ling brought -into the realm by aliens, the importation of these fish was forbidden, -except only “loose, in bulk and by tale.” Most of these provisions -and prohibitions would operate against the Dutch, who had not only a -large part of the trade in herrings with England, but practically the -monopoly in supplying barrelled cod and ling.[169] - -From this time forward the policy of protecting the native fisheries -by checking the competition of foreigners went hand in hand with the -encouragement of the consumption of fish by the compulsory observance -of fish-days. Interfering as it did with established practice and -conflicting trade interests, the Act aroused opposition in various -quarters, especially on the part of those who were interested in the -important commerce in cured cod-fish. In the year after it passed, -the Queen’s purveyors were unable to obtain in England sufficient -supplies of fish for the navy and the royal service, and they were -licensed to import cod-fish, lings, and green-cod, in barrels or casks, -notwithstanding the prohibition in the Act,[170]--a privilege which -had to be extended to all English subjects a few years later with -respect to fish caught in their own vessels “with cross-sails.”[171] On -the other hand, it was claimed that the Act had done good. The coast -people of Norfolk and Suffolk informed the Council in 1568 that it had -increased the trade in fish in these counties; and as the Act had been -passed for four years only and continued at the Queen’s pleasure, they -petitioned that it should be renewed, and that provision should be -made to put a stop to the importation by strangers of cod and ling in -bulk, which were dried and sold under the name of Iceland fish, to the -detriment of those engaged in the Iceland fishery, and also to ensure -that fish-days should be better observed.[172] In the same year the -Council instructed the magistrates of London, Hull, and Southampton, -and the justices of various shires, to commit to jail any persons -fraudulently dealing with foreign imported cod and ling as Iceland -fish;[173] and three years later another Act was passed, giving effect -to the wishes of the fishermen, and continuing the former Act for other -six years.[174] It contained a new provision showing that complaints -had been made about the vessels, some of them foreign, which came -“pretending” to buy fresh herrings on the coast of Norfolk. To avoid -“lewd outrages” by these “catches, mongers, and Picardes,” in cutting -and damaging the drift-nets of the fishermen, they were prohibited from -anchoring between sunset and sunrise during the fishing season in the -places where the boats were accustomed to fish. - -Up to about this time no complaint seems to have been made against -the foreign fishermen either by English fishermen or by statesmen or -writers. The men from the Low Countries appear to have pursued their -occupation in peace side by side with the Englishmen. But in 1570 -the first note was heard of what became later almost a continuous -lamentation. A petition was presented to the Privy Council asking -that “letters” should be sent to Zealand and Holland, or ships of -war despatched to protect the English fishermen from the evil doings -of the Low Countrymen. “Otherwise,” the petitioners said, “both wee -and all others that entend fysshing in all partes of this realme -shall be utterly undone, for that the fishermen Flemynges this yeire -have so spoyled and mysused all the coaste men, that it hath so -discomforted them” that they feared “the whole avoyadaunce of fysshing -both for herring and other fysshing upon all the north coast of this -realme.”[175] Whether or not this complaint referred to the outrages -described in the Act quoted above is uncertain, but probably it did -not, as the Hollanders and Zealanders fished for themselves, and they -were now becoming rather numerous. It does not appear that any special -action was taken regarding the petition. It was Cecil’s aim to increase -the use of fish within the realm and to foster the native fisheries, -but he had no desire to interfere with the liberty of fishing enjoyed -by the Hollanders. Such action would have been contrary not only to the -treaties but to the international policy of England at that time. On -political and religious grounds the aid of the Dutch was needful in the -struggle against the common enemy, Spain. - -That the English people had become interested in the condition of -the fisheries and somewhat jealous of the fleets of foreign vessels -which fished along their coast may be inferred from the appearance -at this time of two works--one by Captain Robert Hitchcock, and the -other by the learned and unfortunate Dr John Dee. It is a curious -circumstance that those authors, who wrote at the same period, should -each have advocated one of the two lines of policy adopted in the next -century. Hitchcock was all for freedom of fishing, for strangers and -natives alike. His remedy was the creation of a great English fishery -organisation to oust the Dutch from our seas. Dee, on the other hand, -was emphatic in claiming _mare clausum_ and an exclusive fishing for -Englishmen, and in urging heavy taxation of foreigners who fished in -the British seas. - -Hitchcock was a gentleman and a soldier who, in 1553, as he himself -tells us, while serving the Emperor Charles V. in his wars in the Low -Countries, had observed with astonishment that the wealth and shipping -of Zealand and Holland were due to their sea fisheries. Pondering on -his discovery, he thought out a plan some years later by which a great -national fishery might be established in England to supplant the -Dutch, so that the wealth acquired by them in the British seas might -go to profit his own countrymen. It was the first of the innumerable -schemes of the kind which are to be found scattered over the economic -literature of the next two centuries. Having reduced his plan to -writing, he submitted it about the year 1573 to the Earl of Leicester, -in 1575 to Queen Elizabeth, and in the following year he distributed -copies to men of influence, in the hope “that God would stir up some -good man to set out this work.” It appears even to have been brought to -the notice of Parliament by Sir Leonard Digges, but its consideration -was deferred “for want of time.”[176] The copy presented to the Queen -is preserved among the Burghley Papers in the British Museum,[177] and -the completed work, somewhat enlarged,--now very rare,--was published -(in black-letter) on 1st January 1580 as “A New Year’s Gift to -England.”[178] - -The plan of Hitchcock was to borrow £80,000 for three years, when the -whole amount would be repaid from the proceeds of the fish sold. The -shires were to be arranged in eight groups, each group providing with -its £10,000 fifty fishing vessels of not less than 70 tons burthen, or -400 altogether. These were to be built after the manner of “Flemysche -Busses” and distributed at eighty ports around the coast; and at -eight of the chief ports (London, Yarmouth, Hull, Newcastle, Chester, -Bristol, Exeter, and Southampton) two “honest and substantial men of -credit” were to be appointed chief officers, to act as treasurers, -purveyors, and directors. Hitchcock estimated that each ship when -ready for fishing would cost £200; the crews were to consist of a -skilled master, twelve mariners or fishermen, and twelve “strong -lustie beggers or poore men taken upp through the land.”[179] The -scheme proposed that the busses should first fish for herrings on the -coast of England and Ireland during the fourteen or fifteen weeks -this fishing lasted, the herrings being cured and branded after the -“Flemish” fashion. The busses were also to visit Newfoundland for cod -and ling; or some were to go to Iceland, “Wardhouse,”[180] the north -seas of England and Scotland, or to Ireland. It was intended to employ -some of them in winter in exporting the surplus of cured fish to -France, “or elsewhere.” As for the all-important question of earnings, -it was calculated that each buss would catch at least 50 lasts, or 600 -barrels, of herrings, worth £10 a last; altogether £200,000 from this -item,[181] and if two voyages were made, the amount would be doubled. -It was supposed that each buss would bring back from Newfoundland -20,000 of the best “wet” fish and 10,000 dried--together worth £500; -the same value was placed upon the 15,000 cod and 10,000 ling to be -procured at Iceland, Wardhouse, or the north seas; and besides the -fish, each ship was estimated to return with £50-£60 worth of cod-liver -oil. Then with regard to the “vent” or sale of the fish, it was assumed -that about half of the herrings, or 120,000 barrels, would be required -for home consumption--not an exaggerated idea, for from other accounts -it appears that London and the parts around it consumed about this time -60,000 barrels. Markets for the surplus herrings, it was believed, -would be found at Normandy, Nantes, Bordeaux, and Rochelle. The profits -were to be divided into shares, and besides paying off the borrowed -capital and the interest (at 10 per cent), a stock of £8000 was to be -formed at the eight chief ports, and £400 at the “225 decayed towns” -in England and Wales for the philanthropic purpose of giving work to -the poor. Nay, there was more. At the chief ports the surplus earnings -were to provide a salary for “an honest, virtuous and learned man,” who -was to travel constantly about the coasts preaching to the people, “as -the Apostles did.” Among the indirect benefits to the nation Hitchcock -included the transformation of idle vagabonds, of whom there were -plenty, “daily increasing,” into good subjects--some of the Members -of Parliament thought this part of the scheme alone entitled it to -national support,--the addition of 9000 mariners for manning the navy, -the saving of coin spent on foreign fish, the increase of the Queen’s -customs, of commerce and navigation, and the repair of the decayed -towns. - -Such was the dream of this enthusiastic but thoroughly sincere old -soldier: to expel the Hollanders from our seas by means of a national -fishery organisation and to win back for England the wealth they -gathered from her waters. At the time when he wrote, foreign fishermen -were not nearly so numerous on our coasts as they became later. The -herring-busses from the Low Countries which fished on the east coast -numbered, he says, between 400 and 500, and the Englishmen “for feare -of them,” and of tempests, fished in small vessels near the shore, as -he shows in a “similitude,” here reproduced (fig. 2). Besides these, -between 300 and 400 ships and barks from Biscay, Galicia, and Portugal -fished off the south-west coast of Ireland from April to July, “near -to Mackertymors country”; and also on the west and north-west coasts -of Ireland for cod and ling from about Christmas to March. Hitchcock -makes no complaint against the foreign fishermen for fishing in “her -Majesty’s seas.” With a fine catholic generosity he indeed expressly -says that all men of what country soever should be free to do so; that -there was enough fish in the northern seas for all, even if there were -1000 sail more than there was. He believed that the English, by being -so much nearer the fishing grounds, ought to be able to undersell the -foreigner and get the markets and the trade.[182] - -[Illustration: Fig. 2.--_Hitchcock’s representation of the English and -Flemish fisheries._] - -The scheme of Dr John Dee was very different from that of Hitchcock. -A mathematician, an astrologer, a reputed magician, and, above all, -an accomplished scholar, he looked at the subject from another point -of view. Well acquainted with the writings of the Italian jurists -and the practice of the Italian states, he expounded the view that -the fisheries and the sovereignty in the British seas pertained to -the crown of England, and that foreigners should be compelled to pay -tribute for the liberty of fishing within them. It is the philosopher -of Mortlake, indeed, who must be recognised as the literary pioneer -of the claims to the sovereignty of the sea which were put forward -by England in the seventeenth century. In 1577 he published a book -entitled _General and Rare Memorials pertayning to the Perfect Arte -of Navigation_,[183] in which he dealt with the fisheries and the -boundaries of the British seas, and recommended that the tribute to -be exacted from foreign fishermen should be expended in maintaining a -navy to be called “The Petty Navy Royall,” for keeping the seas and -supervising the fisheries. “Should not forreyne fishermen,” he asks, -“(overboldly now and to to injuriously abusing oure riche fishings -about England, Wales and Ireland), by the presence, oversight, power -and industry of this Petty Navy Royal be made content; and judge -themselves well apaid to enjoy, by our leave, some great portion of -revenue to enrich themselves and their countries by, with fishing -within the seas appertayning to oure ancient bounds and limits? Where -now, to oure great shame and reproache, some of them do come in a -manner home to our doors; and among them all, deprive us yearly of -many hundred thousand pounds, whiche by our fishermen using the said -fishings as chief, we might enjoy; and at length, by little and little, -bring them (if we would deal so rigorously with them) to have as little -portion of our peculiar commodity (to our Islandish Monarchy, by God -and Nature assigned) as now they force our fishermen to be contented -with; and yearly notwithstanding, doo at their fishing openly and -ragingly use suche words of reproche toward our Prince and realm, as no -true subject’s hart can quietly digest; and besides that, offer such -shamefull wrongs to the good laboursom people of this land, as is not -(by any reason) to be born withall, or endured any longer: destroying -their nets, cutting their cables to the los of their anchors; yea, and -often-tymes of Barkes, men and all.”[184] Here is the first note of -a plaint which will become very common. He also accused the foreign -fishermen, under colour of fishing, of making secret soundings of the -channels and banks along our coast, to the great danger of the realm. - -As for their fishing on the English coast, he says, erroneously, that -the men from the Low Countries had frequented the herring fishing off -Yarmouth for only thirty years (since 1540), since when their numbers -had greatly increased. They had now become “very rich, strong, proud, -and violent,” so that the ships of Norfolk and Suffolk, next to the -fishing places, were reduced in numbers by 140 sail, besides crayers -and other craft. The number of Flemish herring-busses that came to -our coast he placed at over 500, while there were about 100 French; -and 300 or 400 “Flemings” fished for cod in the north seas, “within -the English limits.” Other foreigners, moreover, caught herrings on -the Lancashire and Welsh coasts, and about 300 sail of Spaniards, -besides Frenchmen, fished off Cape Clear and Blackrock in Ireland. All -these fishings, said Dee, were “enjoyed as securely and freely from -us by strangers, as if they were within their own King’s peculiar sea -limits; nay, rather as if those coasts, seas and bays were of their -private and several purchases: to our unspeakable loss, discredit and -discomfort, and to no small further danger in these peculiar times of -most subtle treacheries and fickle fidelity.” While admitting that the -British seas were free for navigation, Dee held that the fisheries -pertained to the crown of England, and that no foreigner had a right -to cast a net in our sea without first obtaining leave from the Queen. -To her belonged “the tenth” of all foreign fishings “within the royal -limits and jurisdiction” in the British and Irish seas, and it was “a -most reasonable and friendly request” that foreigners should pay that -tenth in acknowledgment of the liberty to fish,--a tribute which he -calculated would amount to £100,000 a-year, and which he urged should -be devoted to the maintenance of the “Petty Navy Royal.” - -Dee was not only the first English writer who claimed the sovereignty -of the sea and the fisheries for England; he was also the first who -attempted to define their boundaries in detail. At the time when he -wrote, it appears indeed to have been held in theory by some lawyers -that the limit of the English seas extended to the mid-line between -England and foreign coasts, except in the case of the Channel, where -the water right up to the opposite shore was believed to be under the -sovereignty of England. The doctrine, no doubt, was evolved from the -opinions of the Italian jurists, whose authority was then very high -(see p. 539), and from the political relations with France then and in -former times. Two years before Dee published his book, Plowden, an -eminent lawyer, acting as counsel in a case concerning the rights on a -manor to wreck of the sea, argued for the defendant that “the bounds of -England” extended to the middle of the adjoining sea which surrounded -the realm, but that the Queen had the exclusive jurisdiction on the -sea between England and France by reason of her title to France, and -so also with Ireland; whereas in other places, as towards Spain, she -had only the moiety. It was the same, said Plowden, with the sea as -with great rivers. But while Plowden allowed the “jurisdiction and -governance of all things” to the Queen on the sea within the limits -stated, he denied to her the right of property in it or in the land -under it; it was common to all men, and she could not prohibit any -one from fishing in it; the water and the land under it were things -of no value, and “the fish are always removable from one place to -another.”[185] - -Dee adopted the same opinion as to the limits, but held, as we have -seen, that the fisheries were appropriated. The boundaries of the -Queen’s “peculiar seas,” he said, were “in all places to be accounted -directly to the myddle seas over betweene the sea-shores of her own -kingdom (and of all petty Isles to the same kingdom appertayning) and -the opposite sea-shores of all forrein princes: and in all seas lying -immediately betweene any two of her own coasts or sea-shores, the whole -breadth of the seas over (in such places) is, by all reason of justice, -appropriate to her peculiar jurisdiction and sea royalty,” even if -the distance in such cases were 1000 miles or more.[186] On the other -hand, according to Dee, neighbouring countries were to be allowed the -same rights and interests in the moiety of the sea appropriate to their -coasts. - -The limits of the British seas, and the sovereignty pertaining to -them, were more fully described by Dr Dee some years later in a long -unpublished letter or treatise addressed to Sir Edward Dyer,[187] -who had apparently asked him for a fuller statement of his views on -the subject. In his book Dee said little about the boundaries in the -Channel, where the principle of the mid-line was complicated by two -circumstances--the claim of Elizabeth to the French crown, and the -possession by England of the Channel Islands. In his later treatise he -says that presupposing “for doctrine’s sake” that Calais was in the -hands of Spain, and the northern coasts of Picardy and Normandy were -appropriated by France (which was the case), then the boundary must -be drawn in the very middle of the Channel between Dover and Calais, -and then westwards in the middle line between the opposite coasts of -England and of Picardy and Normandy, until it touched the middle of a -straight line drawn between Portland and the island of Alderney. In -this region, west of the line, inasmuch as the coasts of the Channel -Islands and the opposite coast of England belonged to the Queen, her -Majesty had “absolute, peculiar, and appropriate Sea Sovereignty and -Jurisdiction Royall.” The western boundary of this area of absolute -sovereignty in the narrow seas coincided with a line drawn from Start -Point to an “island” that Dee calls “Rocktow,” which is unrepresented -on charts, but which is probably a phonetic synonym for “Roches -Douvres,” a group of islets off the north coast of Brittany.[188] From -the middle of this line the boundary passed westwards, again midway -between the coasts of England and Brittany, until it touched the middle -of a third straight line drawn from the north-west part of Ushant -to about the Lizard. These were the limits on the supposition above -referred to; but, “speaking more boldly in her Majesty’s right,” Dee -declared that the whole sea between the south coast of England and -the north coast of France--Picardy, Normandy, and Brittany--was under -the Queen’s “sea-jurisdiction and sovereignty absolute,” inasmuch -as she was a real monarch of France by direct inheritance and prior -conquest, and therefore had right to the French coasts; and this -“absolute sovereignty” served to “enlarge and warrant” the Queen’s -“Jurisdiction Respective” in the ocean to the west of France. So also -the jurisdiction of the crown of England extended into the main ocean -to the west of England and Ireland by reason of the possession of the -shores; while the ocean around Scotland, inasmuch as that country was -(he said) in olden times tributary to the English kings, yielded to -her Majesty “a mightie portion of Sea Sovereignty,” as it stretched -away westwards to “that famous and very ancient Platonicall or -Solonicall Atlantis.” For the same reasons Dee claimed prerogative and -jurisdiction for the Queen in the northern ocean, and between Scotland -and the opposite coasts of Norway and Denmark, “at least to the -mid-sea,” and so to the southwards “half seas over” between the east -coast of England and the coasts of Denmark, Friesland, and Holland, to -the Straits of Dover. - -Within the British seas as thus defined, Dee claimed that the crown -of England had first of all sovereign jurisdiction, over foreigners -as well as over subjects,[189] and part of the duty of the Petty -Navy Royal--which, as stated, was to be maintained by taxing foreign -fishermen--was to guard and protect foreign ships passing through our -seas. This doctrine he based upon the law as laid down by the Italian -jurists. Nor did he forget the purely naval side. Quoting the old -proverb, “A sword keepeth peace,” he argued that the presence of a -fleet such as he suggested would cause other nations to respect us more -than they did, and enable us to enjoy the royalty and sovereignty of -the narrow seas and of our other seas better than the possession of -Calais and Boulogne could do. - -Dee’s work was premature. His proposals that Elizabeth should tax -foreigners for fishing in the British seas and exercise jurisdiction -over foreign vessels passing through them remained as much a dream -as the scheme of Hitchcock.[190] It need not be supposed that such -measures as Dee proposed were intrinsically distasteful either to -the Queen or to Cecil. If a navy could have been acquired so easily, -or a much less sum than £100,000 gathered from foreign fishermen in -a “friendly” way, as Dee supposed, neither the sovereign nor the -statesman was likely to let the chance go by. But they knew better than -the philosopher, or than the Stuarts in the next century, that a policy -of the kind would involve them in difficulties with other Powers,--with -France and Spain as well as with the Protestant Netherlands. - -So far from adopting any policy of this nature or making any claim -to a special sovereignty in the surrounding seas, Elizabeth steadily -opposed all claims which other nations put forward to _mare clausum_. -Long before Grotius, she was the champion of the free sea, although -it must be admitted that the action of the English Queen was no more -based on considerations of the general good of mankind than were the -efforts of the Dutch publicist: both had in view the interests of -their native land. Elizabeth’s motive was to secure liberty of trade -and fishery for her subjects, which was threatened by the pretensions -of Spain and Portugal on the one hand and by Denmark on the other. -The Portuguese pretension was of long standing. When that nation in -the latter half of the fifteenth century had pushed her way down the -west coast of Africa and ultimately round the Cape of Good Hope to the -East Indies, she obtained from the Pope various bulls securing her -in her possessions, and granting sovereign authority to the crown of -Portugal in all the lands it might discover in the Atlantic from Cape -Bojador to the Indies. By an inhuman doctrine established during the -Crusades, Christian princes were supposed to have the right to invade, -ravage, and acquire the territories of infidel nations on the plea of -extending the sway of the Christian Church; and the Pope, from his -supreme authority over all temporal things, disposed of these heathen -lands to such princes as might bring them under the dominion of the -Church and propagate the true faith among the inhabitants. Immediately -on the return of Columbus from his first voyage in 1493, the Spanish -monarchs accordingly obtained a bull from Pope Alexander VI. confirming -them in the newly-discovered regions; and in order to prevent disputes -with Portugal as to the extent of their respective claims, another bull -was issued, on 4th May 1493, containing the famous line of demarcation -between their territories. This was an ideal straight line drawn from -the North Pole to the South Pole, passing 100 leagues to the west of -the Azores and Cape Verde Islands. All islands or lands discovered -to the west of this line by the Spaniards, and which had not been in -the possession of any Christian Power before the preceding Christmas, -were to belong to the Spanish crown; and all territory discovered to -the east of it was to belong to Portugal. The Pope, moreover, granted -a monopoly of commerce within those immense regions to the respective -crowns, so that other nations could not trade thither without license -from the Spanish or Portuguese sovereigns.[191] Spaniards even were not -allowed to go to the New World either to trade or form establishments -without royal license and authority. Disputes arose between Spain and -Portugal as to the equity of the Pope’s line of demarcation, and by the -Treaty of Tordesillas, 7th June 1494, they agreed that the inter-polar -line should pass 370 leagues to the west of Cape Verde Islands.[192] -The exclusive rights conferred by the Pope were rigorously enforced -by Spain and Portugal. Navigation to their new possessions, or the -carrying on of any trade or commerce with them, without royal license -was made punishable by death and confiscation of goods.[193] - -Early in her reign Elizabeth had occasion to protest against the -claims of Portugal, and had a heated dispute with King Sebastian about -them.[194] Later, the daring exploits of Drake on the Spanish seas were -more than a flagrant violation of Philip’s pretension to _mare clausum_ -in the western Atlantic and the Pacific Oceans--a claim which Elizabeth -refused to recognise. When Mendoza, the Spanish ambassador, complained -to her in 1580 of Drake’s depredations, and that English ships -presumed to trade in the “Indian” seas, he was told in effect that the -Spaniards, contrary to the Law of Nations, had prohibited the English -from carrying on commerce in those regions, and had consequently drawn -the mischief upon themselves. She was unable to understand, she said, -why her subjects and those of other princes should be barred from the -“Indies.” She could not recognise the prerogative of the Bishop of -Rome “that he should bind princes who owe him no obedience,” and her -subjects would continue to navigate “that vast ocean,” since “the use -of the sea and air is common to all; neither can any title to the ocean -belong to any people or private man, forasmuch as neither nature nor -regard of the public use permitteth any possession thereof.”[195] - -About the time when Drake left England, the question of the right of -Spain to forbid the English to trade to the Indies had been considered. -It was argued that the Pope’s bull was void, for several reasons. The -consent of the Pope had been conditional for the conversion of the -natives, while the “usage of the Spaniards hath been otherwise.” The -bull could have no force in tending to the prejudice of a third party, -because all princes by the Law of Nations had the right of navigation -in the sea and the right of traffic, and the Pope could not deprive -them of these rights. Besides, there had been agreements between Spain -and England since the date of the bull that the subjects of each state -might freely traffic in the dominions of the other; and the Spanish -lawyers had come to the conclusion that the Venetians could not legally -inhibit others from trading in the Adriatic, and therefore, by the -same reasoning, neither could the Spaniards or Portuguese prohibit -orderly and lawful traffic to their Indies.[196] Elizabeth has been -charged with inconsistency on the ground that at the time when she was -asserting the freedom of the seas against the claims of Spain she was -claiming for herself, “with very great energy,” a similar dominion in -the British seas.[197] The charge is quite unfounded. No claim was put -forward by her to the sovereignty of the British seas. On the contrary, -they were declared to be free for the navigation and fishery of all -nations. - -The policy of Elizabeth as to the freedom of the sea is revealed still -more clearly in the negotiations with the King of Denmark as to the -right of fishery at Iceland and in the northern seas. Denmark claimed -not only the Sound and the Belts and the maritime dominion of the -Baltic, with the right of controlling the navigation through them, but -also the seas intervening between the coasts of Norway on the one hand -and Iceland and Greenland on the other. A similar claim was made to the -sea between Norway and the Orkney and Shetland Isles, at all events -prior to 1468, when they were acquired by Scotland. Putting aside -altogether the differences that arose with regard to the dues exacted -at the Sound and in connection with the Baltic, a great many disputes -had occurred between England and Norway and Denmark as to the right of -Englishmen to trade and fish at Iceland and along the Norwegian coast, -and many treaties were made between the two Powers regulating that -right. From an early period numerous barks from Lynn, Yarmouth, Hull, -Scarborough, and other east coast ports, and from Bristol, frequented -the northern seas for fishing and buying fish, and for traffic, -visiting not only Iceland, but Helgeland, Nordland, and Finmark, and -going at least as far east as Wardhouse or Vardö. In 1415 Henry V., at -the request of King Eric, and notwithstanding an earnest petition of -the Commons to the contrary,[198] prohibited his subjects from going to -Iceland or other islands belonging to Norway or Denmark;[199] in 1429 -the King of Denmark prohibited English merchants from purchasing fish -at Finmark, or elsewhere in his dominions than at Bergen, against which -the English petitioned Henry VI.;[200] and in 1490 an important treaty -was concluded between Henry VII. and King John II. of Denmark and -Norway, by which English subjects were granted liberty to sail freely -to Iceland for fishing or trading on paying the usual customs, provided -that they obtained a renewal of their license to do so every seven -years.[201] This treaty was renewed in 1523 between Henry VIII. and -Christian II.,[202] but disputes frequently arose later, and several -embassies were charged with composing the differences. - -Apparently the English fishermen did not always conduct themselves -with propriety. They were accused of committing various wrongs and -injuries on the inhabitants, and in 1585, on the complaint of the King -of Denmark, Queen Elizabeth issued an Order in Council reproving them -for their excesses, and intimating that if they were continued the King -of Denmark would interdict their fishing, and “punish such as shall -without his license repair thither, and confiscate their ships and -goods.” The king, she said, had promised that if the English fishermen -abstained from committing outrages and behaved themselves, and paid the -customary duties, he would allow them to enjoy the liberties they had -formerly possessed; and she commanded the principal officers at her -ports to take bonds from all those going to Iceland or Wardhouse for -their good behaviour.[203] But the disputes and difficulties continued. -The English fishermen omitted to renew their licenses septenially,--in -1592 it was said they had not been obtained for twelve years, and the -stipulation had been forgotten by those in authority,[204]--and the -Danes began about 1593 to interrupt them in their fishing at Westmoney -and in the sea off Iceland, and to seize their vessels. On complaint -being made to the King of Denmark, he declared his willingness to allow -the Englishmen to fish at Iceland under license, except at Westmoney -(small islands on the south coast), where the fishing was reserved for -his court.[205] At the close of the century the Danes used stronger -measures. In 1599 several English vessels were seized or molested. Five -ships of Kingston-upon-Hull, while at Wardhouse for fish, as had been -their custom for years, were met there by a small Danish fleet with -the King of Denmark himself on board, who caused them to be seized as -prize, took all the goods and effects of the Englishmen, beat some of -the crew and put them in irons, and finally carried off four of the -ships.[206] Other English vessels were driven away from their fishing -on the high seas around Iceland, although far from the coast. - -Elizabeth complained strongly of these acts of injustice as being -contrary to the Law of Nations.[207] A Danish ambassador who came to -England at this time tried to justify the prohibitions by reference -to the treaty of 1583, by which permission had been given to English -vessels to navigate the northern seas to Russia, but which did not -grant any authority for fishing; and he requested the Queen to publish -an edict inhibiting her subjects from fishing at Iceland or Wardhouse -without the license of the King of Denmark, declaring that many English -vessels persisted in carrying on the fishery without any license, -contrary to the treaties. Reliance was also placed on an old treaty -made in 1468 between Edward IV. and Christian I., in which it was -stipulated that English vessels should not go farther north on the -coast of Norway than Hagaland.[208] In the following year ambassadors -were dispatched from England to negotiate an arrangement concerning -the tolls levied at the Sound and the freedom of the northern seas for -English fishermen,[209] and in a paper of 1602 conveying instructions -to the ambassadors at Bremen we find an admirable exposition of the -principles of the freedom of the seas. - -After claiming that the treaties of 1490 and 1523 had given liberty of -fishing to the English, the ambassadors were to declare that the Law -of Nations allowed fishing in the sea everywhere, as well as the use of -the ports and coasts of princes in amity for traffic and the avoiding -of the dangers from tempests; so that if the English were debarred -from the enjoyment of those common rights, it could only be in virtue -of an agreement. But there was no such contract or agreement. On the -contrary, by denying English subjects the right of fishing in the sea -and despoiling them for so doing, the King of Denmark had injured them -against the Law of Nations and the terms of the treaty. Moreover, with -respect to the licenses the Queen declared that if her predecessors -had “yielded” to take them, “it was more than by the Law of Nations -was due”; they might have yielded for some special consideration; and -in any case it could not be concluded that the right of fishing, “due -by the Law of Nations,” failed because licenses were omitted. As to -the claim to the sea between Iceland and Norway on the ground that the -King of Denmark possessed both coasts--the argument used by Dee and -Plowden for the dominion of the English crown in the Channel--Elizabeth -was emphatic. If it was supposed thereby “that for the property of -a whole sea it is sufficient to have the banks on both sides, as in -rivers,” the ambassadors were to declare “that though property of sea, -in some small distance from the coast, may yield some oversight and -jurisdiction, yet use not princes to forbid passage or fishing, as is -well seen in our Seas of England and Ireland, and in the Adriatic Sea -of the Venetians, where we in ours and they in theirs, have property of -command; and yet neither we in ours nor they in theirs, offer to forbid -fishing, much less passage to ships of merchandise; the which by Law -of Nations cannot be forbidden ordinarily; neither is it to be allowed -that property of sea in whatsoever distance is consequent to the banks, -as it happeneth in small rivers. For then, by like reason, the half -of every sea should be appropriated to the next bank, as it happeneth -in small rivers, where the banks are proper to divers men; whereby it -would follow that no sea were common, the banks on every side being -in the property of one or other; wherefore there remaineth no colour -that Denmark may claim any property in those seas, to forbid passage or -fishing therein.” - -The ambassadors were to declare that the Queen could not agree that -her subjects should be absolutely forbidden the seas, ports, or coasts -in question for the use of fishing, “negotiation,” and safety; she had -never yielded any such right to Spain and Portugal for the Indian seas -and havens. Nevertheless, if the King of Denmark for special reasons -desired that she should “yield to some renewing of license,” or that -“some special place upon some special occasion” should be reserved for -his own use, they were in their discretion and for the sake of amity -to agree; but the manner of obtaining the license was to be defined in -such a way that it would not be prejudicial to her subjects, nor “to -the effect of some sufficient fishing,” and the licenses were to be -issued in the subject’s name rather than in hers or the king’s.[210] -Denmark continued to insist upon her right to the trade with Iceland, -and to the fisheries in the northern seas,[211] which became of greater -importance early in the next century when the whale-fishing was -established at Spitzbergen. The Danish claim to a very wide zone of -territorial sea around Iceland was enforced until quite recent times. - -The dispute between Elizabeth and the King of Denmark as to the rights -of fishing in the North Atlantic bears a strong resemblance to that -between James I. and the Dutch, which began a few years later, when the -positions, however, were reversed, James insisting on his right to the -fishery on the British coasts, while the Dutch used the arguments of -Elizabeth in favour of the complete freedom of the seas. One difference -in the two cases may be pointed out. England by agreeing to take -licenses from the King of Denmark, in the treaties of 1490 and 1523, -acknowledged the sovereignty of Denmark in northern waters, whereas -the Netherlands never acknowledged the sovereignty of England in the -British seas, within which the liberty of fishing had been expressly -granted to them by the Burgundy treaties. - -Meantime the condition of the English fisheries had not much improved, -either under the restrictive legislation respecting imports and -exports of fish or by the measures taken to enforce the political -lent. The liberty given by the Act of 1571 for the importation of -cod-fish was opposed to the interests of the Iceland trade, and gave -rise to abuses. Great quantities of inferior fish were “engrossed” -by English merchants abroad and brought into the realm, which was -thus “furnished with foreign fish and herrings,” while the Iceland -fishery declined and the number of mariners available for the navy -diminished. The importation of foreign salted fish or salted herrings -by Englishmen or denizens was therefore prohibited; such fish were -allowed to be brought by aliens alone, who were to pay additional -customs, but fish from Iceland, Shetland, Newfoundland, and from the -Scottish seas were still to be admitted.[212] But the attempt to keep -out foreign fish failed in its object, the restrictions were found to -be otherwise injurious, and they were repealed in 1597. “It had been -hoped and expected,” it was said in the preamble of the repealing -Act,[213] “that the fishermen of this realm would in such sort have -employed themselves to fishing, and to the building and preparing of -such store of boats and shipping for that purpose, as that they should -long ere this time have been able sufficiently to have victualled this -realm with salted fish and herrings of their own taking, without any -supply of aliens and strangers, to the great increase of mariners and -maintenance of the navigation within this realm. Notwithstanding it -is since found by experience that the navigation of this land is no -whit bettered by means of that Act, nor any mariners increased, nor -like to be increased by it; but contrary wise, the natural subjects of -this realm being not able to furnish the tenth part of the same with -salted fish of their own taking, the chief provision and victualling -thereof with fish and herrings hath ever since the making of the same -Statute been in the power and disposition of aliens and strangers, -who thereby have much enriched themselves, greatly increased their -navigation, and (taking advantage of the time) have extremely enhanced -the prices of that victual[214] to the great hurt and impoverishing of -the native subjects of this realm, and yet do serve the markets here in -very evil sort,” housing their fish till the price was raised to their -liking. Thus the merchants in England were hindered in their trade, -the navigation of the realm “which was intended to be augmented, hath -been rather impaired than increased,” and the price of fish had been -greatly raised, to the general prejudice of the people. After this very -thorough condemnation of its previous Act,[215] Parliament declared -that as strangers and subjects were at liberty to export English-caught -fish and herrings, it was only right to allow subjects as well as -foreigners to bring in fish to provision their own country, and the -previous Act was wholly repealed. Thus the condition reverted to what -it had been before this course of legislation began. - -It is equally doubtful whether the compulsory fish-days or political -lent had much influence in fostering the fisheries. At first, if -a return from the Trinity House can be trusted, the number of -fishing-boats increased. They reported in January 1581 that since -the previous Parliament there had been an increase along the coast -from Newcastle to Portsmouth of 114 sail of fishing-boats, of between -fifteen and forty tons, which was equal to the maintenance of a -thousand additional seamen for the navy.[216] It is not improbable that -an increase of the herring-boats occurred on the east coast at this -time, but it was temporary, and more likely due to other provisions of -the Act of 1563. Cecil’s Wednesday, for which he had fought so hard, -was abolished in 1584, while certain penalties for eating flesh in -Lent, on Fridays, Saturdays, or other fish-days, were at the same time -augmented;[217] but in 1593 all the penalties were greatly reduced.[218] - -The policy of the political lent did not fail from want of efforts to -enforce it. In London especially precautions were taken to have the law -carried out, and the fishmongers were naturally active in their own -interests. Taverns and inns were often raided; those who had flesh in -their houses during Lent were often put in the pillory, and those who -partook of it in the stocks; and butchers were frequently prosecuted -for selling flesh on forbidden days. Those who were licensed to provide -flesh in Lent for the sick were put under bond, and had to keep an -account of every joint they sold; watchmen guarded the city gates lest -any beef should be smuggled in. Similar measures were taken throughout -the country. The sheriffs and justices of the peace were ordered by the -Council to see that the Act was duly enforced, and innkeepers had to -enter into recognisance to observe it. - -But there is abundant testimony that the observance of the fish-days -was evaded on all sides. The policy was against the temper of the -people. So long as it had been a matter of religion and ecclesiastical -rule they were faithfully observed. The motive was now too remote; and -although the people were exhorted on grounds of “conscience” to eat -fish on 153 days in the year in order to maintain the navy, and “great -numbers” at first obeyed, the “universal multitude” always abstained, -and their example was followed by the better classes. Many considered -abstinence from flesh on fish-days to be “papistical”; others objected -on economic grounds, saying they could maintain their families better -and cheaper on flesh than on fish; and great numbers took advantage of -the clauses in the Act granting license of exemption. The Lord Mayor -was pestered by such applications, very commonly from noblemen and -persons about the Court, even receiving them from the Queen herself, -and in 1595 he begged that the Act might be repealed altogether.[219] -Thus “Cecil’s fasts,” as the unpopular fish-days were vulgarly -called, designed by the great statesman to increase the fisheries and -strengthen the navy, became the butt of the popular dramatist, and -served little purpose except, in the words of Ben Jonson, to “keep -a man devoutly hungry all day, and at night to send him supperless -to bed.”[220] There is little doubt that the policy of the political -lent, if it had been feasible, would have succeeded in its object. -Edward Jennings at the end of the century calculated that shipping -had diminished in the proportion of two to five since the time when -fish-days were observed, and that the fisheries were reduced in the -proportion of four-fifths in the same period; while the number of idle -persons in England who had previously engaged in fishing in the sea -was estimated at 10,000. Even if those figures were exaggerated, they -indicate, as Parliament admitted, that the measures hitherto taken -to revive the fisheries had failed. It remained for King James to -try another plan, that of exercising an effective sovereignty on the -British seas by prohibiting foreign fishermen from fishing within them -without taking license and paying tribute. - -Before passing to the reign of James something must be said about one -symbol of this sovereignty, as it was now regarded--the striking of -the flag and top-sails. From the beginning of the fifteenth century, -when the Flemish herring-boats, and no doubt others, lowered their -sails to English ships (see p. 43), there appears to be no record of -the ceremony until the middle of the next. In the reign of Henry VIII., -although he was sometimes called “Lord of these seas,”[221] and ships -were appointed to “keep the passage of the narrow sea,” the honour of -the flag was probably only occasionally enforced. But under Edward -VI., during the Protectorate of Northumberland, we find it stated in -the King’s Journal that in April 1549 “the Flemings’ men-of-war would -have passed our ships without vailing bonnet, which they seeing shot at -them, and drave them at length to vail bonnet and so depart”; and again -in July of the following year, at Dieppe, the Flemish ships lowered -their sails to an English man-of-war.[222] This appears to be the first -recorded instance of foreign men-of-war saluting the ships of the -King of England, and it is noteworthy that in the latter case it was -performed in a French port by Flemish vessels. - -That it was not always demanded in the absolute manner of later times -is shown by orders issued by the Privy Council in 1552. The Baron de la -Garde was in command of a French fleet of twelve men-of-war, and Sir -Henry Dudley, whose force was weaker, asked how he should act “touching -the preeminence of honnour to be gyven” when he met the Baron. The -Council replied that “in respect of thamitie and that the sayd Baron -is stronger then he uppon the sees sume tymes yelde and sume tymes -receyve thonnour”; and he was told to use the Baron courteously, “and -with such discression that the same yelding of the preeminence may -be interpreted to be of curtesy rather then to the derogacion of the -Kinges honnour.”[223] It was the French who consistently and constantly -opposed the English claim, and there is evidence that the salute was -a point of rivalry between the two countries even at this time. An -ordinance issued by Henry II. of France in 1555 (repeated by Henry III. -in 1584) required all vessels to strike their sails to ships of the -French navy whenever they met them at sea, and some Hamburgers were -seized because they did not do so.[224] The honour appears to have been -generally accorded by the Dutch in the reign of Elizabeth,[225] and -compelled from the Spaniards. In 1554, in the reign of Mary, when the -Spanish fleet was coming up Channel in all its bravery, with the royal -flag flying on the Admiral’s ship, and bringing Philip of Spain to -marry the Queen of England, the English Admiral, Lord William Howard, -fired a broadside into the Spaniard and forced him to lower his colours -while in his presence.[226] And later, when Anne of Austria was on -her way to Spain to marry Philip, the Spanish ships were fired on by -Admiral Hawkins at Plymouth and forced to strike the flag and lower -top-sails in like manner.[227] But it was not till the reign of Charles -I. that this punctilio became of great international importance. - - - - -CHAPTER IV. - -UNDER THE STUARTS. JAMES I. A NEW POLICY. - - -Shortly after the accession of James to the throne of England, the -liberal policy of his predecessors as to the freedom of the sea -suffered a marked change. In the previous century, under the Tudors, -little was heard of the pretension to the sovereignty of the sea, -with the exception of the striking of the flag to the royal ships -in the narrow seas--a ceremony that was not peculiar to England. -Foreigners then, as always before, enjoyed complete liberty of fishing -on the coasts of England and Ireland, and no attempts had been made -to exact tribute from them on the Scottish coasts. Queen Elizabeth, -as has been shown, not only refrained from putting forward claims to -the sovereignty of the sea, but on several occasions and in the most -positive manner asserted the freedom of the seas for both navigation -and fishing against the exclusive policy of Denmark and Spain. At -the end of the Tudor period England was the great champion of _mare -liberum_--long before the Dutch Republic had challenged the monopolies -of the Portuguese either by the pen of Grotius or the guns of Jakob van -Heemskerk. - -But under James the old doctrine was revived, and something new was -added in a claim to the fisheries along the British coasts. Before -he had been a year in England he took measures, with the laudable -object of defining the bays, or “King’s Chambers,” within which the -hostile actions of belligerents were prohibited. In its essence this -act was opposed to extensive claims to maritime sovereignty, because -it restricted a most important attribute of such sovereignty to -comparatively a narrow space in the adjacent sea, though a space much -greater than that now comprised in the so-called territorial waters. -In point of fact, throughout his reign no assertion was made to such -a maritime sovereignty as was claimed by Charles I.[228] The measures -referred to were in relation to neutrality in the war which continued -between the United Provinces and Spain, James having promptly concluded -peace with the latter Power. He issued a number of proclamations -referring to privateering and depredations at sea, most of them being -conceived in the interests of Spain; and in one of these, for the -recall of British mariners in foreign service, dated 1st March 1604, -the king forbad hostilities within his ports, havens, roads, creeks, or -other places of his dominions, or so near to any of his ports or havens -as might be reasonably construed to be within that title, limit, or -precinct, as well as the hovering of men-of-war in the neighbourhood -of such places; and he caused “plats” of the limits of his ports -and jurisdiction to be prepared for the instruction of his officers -concerned.[229] - -Long before the time of James the harbours, roadsteads, and at all -events some of the bays of a country were recognised as belonging to -it, in the sense at least that hostilities of belligerent men-of-war -or the capture of prizes were forbidden within them; they were -“sanctuaries” under the jurisdiction and protection of the adjoining -territory. With regard to the English Chambers, we find that in the -treaty which Cardinal Wolsey drew up in 1521, when acting as mediator -between the Emperor Charles V. and King Francis I. of France, it was -stipulated that during the war between these two sovereigns, the -ships, whether armed or unarmed, as well as the mariners, of either -side should be secure from attack by the other Power in the harbours, -bays, rivers, mouths of rivers, roads or stations for shipping, and -especially in the Downs or other maritime place under the jurisdiction -of the King of England.[230] There is little doubt that this article -only embodied in a formal manner what had long been the practice of -nations, the Downs being specially mentioned as the most important -anchorage in the kingdom. - -When James decided to mark out distinctly on a chart the boundaries of -his neutral waters on the coast of England, the matter was submitted -to the Trinity House, and a jury of thirteen men, specially skilled -in maritime affairs, was appointed to prepare tables and charts -showing the position and limits of the King’s Chambers and ports and -the sailing directions for the same, according to their knowledge -of what had been the custom in the past. The charts and schedules -were presented to Sir Julius Cæsar, the Judge of the High Court of -Admiralty, on 4th March 1604, together with a sworn declaration that -they represented the true boundaries.[231] The chambers formed were -nominally twenty-six in number, the points or headlands selected by the -surveyors being as follows, beginning at the northern extremity of the -east coast and ending at the Isle of Man--Holy Island, Souter Point, -Whitby, Flamborough Head, Spurn Point, Cromer, Winterton Ness, Caster -Ness, Lowestoft, East Ness, Orfordness, the North Foreland, the South -Foreland, Dungeness, Beachy Head, “Dunenoze” (Isle of Wight), Portland -Bill, Start Point, Rame Head, Dodman Point, the Lizard, the Land’s End, -Milford, St David’s Head, Bardsey Island, Holyhead, the Isle of Man. -The extent of the “chambers” varies in different places; and while this -is obviously due on some parts of the coast to the contour, it is due -on other parts to a selection of headlands, no doubt according to the -custom which had grown up and was recognised among the officers and -others concerned. Thus the great bay between Cornwall and Devon would -have formed a natural “chamber” by a line, not so long as some of the -others, between Start Point, or Prawl Point, and the Lizard, and which -would have formed part of the girdle around the coast; whereas three -chambers are formed along its shores. On the east coast the “chambers” -are as a rule small,[232] the largest embracing the mouths of the -Humber and the Thames; they are generally large on the south coast, -and largest of all on the west coast, where the whole of the Bristol -Channel was enclosed by the line from Land’s End to Milford, a distance -of nearly 100 nautical miles, the whole area containing about 3400 -square nautical miles. This chamber, as well as those to the north of -it, must have been of importance on account of the volume of shipping -which passed through it.[233] - -[Illustration: Fig. 3.--_Chart prepared by the Trinity House showing -the bearings of the King’s Chambers._ From Selden.] - -It is to be noted that the King’s Chambers were confined to the coast -of England, and, further, that they had no reference to the claim -of James to property in his seas, so far at least as fisheries were -concerned. They were strictly limited to questions of neutrality and -jurisdiction, in view of the war then existing between Spain and the -United Provinces and the frequent depredations of privateers. The -chambers on the east coast, where the Dutch carried on their great -herring fishery, were much too small to have any relation to the -subject of unlicensed fishing; and at no time during the prolonged -discussions on the fishery were the limits of the King’s Chambers made -use of in argument. Neutral protection, moreover, was strictly limited -to the waters defined. It was in vain that Gentilis, the Spanish -advocate in the Admiralty Prize Court, argued that the jurisdiction of -England extended far beyond the limits of the “chambers,” and ought -therefore to be lawfully and justly applied in protecting Spanish -vessels from the talons of the Dutch on the high seas. The judgment -of the Court of Admiralty, so far as concerned the place of capture, -was always based upon the consideration whether that place lay within -or without the limits of a “chamber.” - -[Illustration: Fig. 4.--_Showing the King’s Chambers on the Coast of -England._] - -The campaign against foreigners fishing on the British coast, which -opened up the claims of England in the seventeenth century to the -sovereignty of the sea and introduced a new principle into English -international policy, originated in another set of ideas, which -James brought with him from Scotland. The Scottish people had been -always very jealous of foreigners sharing in their fisheries, and, as -we have seen, never consented to give them the liberty to fish, so -freely accorded by England. Moreover, a tax or tribute, called the -“assize-herring,” was imposed upon the native fishermen in Scotland, -and formed a part of the revenues of the crown. Although its value -was not great, James conceived the idea of levying it also from the -foreign fishermen, who frequented the British seas in large numbers, -and before he formally demanded it in 1609, some curious negotiations -took place with a syndicate of London merchants who proposed to form -a fishery association based on the taxation of foreign fishermen, and -in return they promised a handsome revenue to the king. The desire -for an increased revenue may therefore have had something to do with -the proposal to restrain unlicensed fishing on the British coasts. -But neither this consideration, the practice in Scotland, nor the -king’s passion for his prerogative, fully accounts for the reversal of -the long-settled policy of England, which was accomplished with the -concurrence of the Privy Council, and, so far as may be judged, with -the full approval of the people. - -In truth, a great change had taken place in the national sentiment. -England had now entered upon the long struggle for commercial and -maritime supremacy, with the aim of increasing the power of the nation -against all rivals.[234] It was obvious to every one that the great -rival and competitor was the Dutch Republic, whose rapid rise to the -first commercial state in Europe deeply impressed the minds of English -statesmen and writers. In the reign of Elizabeth, the common interest -of the two countries in opposing Spain prevented measures being taken -to curb the growing power of the Dutch. But early in the seventeenth -century this motive had lost its force. James had promptly concluded -peace with Spain, and even spoke of the Dutch as rebels.[235] Thus, -during his reign arose that bitter rivalry and keen emulation of the -Dutch which continued throughout nearly the whole century, and of which -the English claim to the sovereignty of the sea may be looked upon as -an important phase. It was against the United Provinces that the claim -was directed, and as the Dutch themselves openly boasted that the sea -fisheries were the foundation of their shipping, wealth, and power, it -was to the sea fisheries that England first turned in her efforts to -cripple them. - -Those fisheries had greatly increased towards the end of the sixteenth -and in the early part of the seventeenth century. An official account -of the fisheries of Holland, Zealand, and Flanders in 1562 estimated -the number of busses and fishing-boats at 700, of which Holland had -400, most of them being “great” busses of about 46 lasts burden.[236] -Guiccardini, who visited the Low Countries about the same time, placed -the fleet of busses at 700, each of which made three voyages, bringing -back on an average 70 lasts of herrings, or a total of 588,000 barrels, -valued at £441,000 sterling.[237] Another author of the period gave a -list of towns whose prosperity and even existence depended upon the -fishery;[238] and a little later Hitchcock, and, following him, Dee, -stated that 400 or 500 busses came every year from the Low Countries -to fish for herrings on the east coast of this country.[239] Those -figures referred to the fisheries of the Netherlands as a whole, -including Flanders, but during the war of independence, after the -United Provinces threw off the yoke of Spain and secured command of the -sea, the Flemish fisheries withered away. At Dunkirk, for example, -which sent 500 busses to the herring-fishing in 1532 and 400 in 1550, -the fishermen at the beginning of the next century were scarcely able -to supply the town with herrings.[240] The industry passed into the -hands of the Dutch. At the end of Elizabeth’s reign, so greatly had it -prospered that 1500 busses went to the herring-fishing in 1601 from -Holland and Zealand alone.[241] - -From this time much attention was given by English writers to the -Dutch fisheries, and on the whole they exaggerated their extent and -the number of boats and vessels engaged in them. One of them, John -Keymer, who was afterwards much quoted, professedly based his account -upon his personal observations in the Netherlands about the year 1601. -His statement appears to have been submitted to King James in 1605 or -1606, but it was not published until 1664. He said that the fishing -fleet of the Hollanders numbered more than 4100 vessels, of which 100 -were dogger-boats, 700 pinks and well-boats, 700 “strand-boats,” 400 -“euers,” and 400 “galliotts, drivers, and tod-boats,” and 1200 busses, -afterwards increased to 2000. The pinks and well-boats, each from 60 to -100 tons burden, fished on the coasts of England and Scotland for cod -and ling, while the busses, ranging from 60 to 200 tons burden, pursued -the herring fishery along our east coast. There were also, according -to this author, 400 Dutch vessels, called “Gaynes” and “Euers,” which -fished for herrings off Yarmouth; 1000 vessels, of from 50 to 100 tons, -that caught cod and ling in his Majesty’s seas; as well as 600 ships -engaged in carrying cod and ling to London. Keymer also says that -he had seen near 3000 sail of English, Scotch, French, Hollanders, -Embdeners, Breemeners, and Hamburgers fishing _at one time_ upon the -coast of Scotland, Shetland, Orkney, Gattney (Caithness?), North -Farrel, and Fowl (Fair) Isle, and divers other places.[242] In a later -treatise which Keymer wrote in 1620 and submitted to King James, it -is also said that the Hollanders employed about 3000 ships and 50,000 -people in fishing on the coasts of England, Scotland, and Ireland. -This tract has usually been attributed to Sir Walter Raleigh and is -published among his works, and it obtained celebrity in consequence, -both in this country and on the Continent, but it was without doubt -written by Keymer.[243] A more moderate statement was made by another -writer, Tobias Gentleman, who published the best work on the subject, -in 1614, and was evidently well versed in the fisheries both of Holland -and England. He states that 1000 sail of Hollanders came every year -to fish for herrings in “his Majesty’s streams”; that more than 600 of -them were “great busses,” some of 120 tons, most of about 100 tons; -that the crews numbered from 16 to 24 men, so that there could not be -less than 20,000 mariners altogether. In addition to the great fleet -of busses, the Hollanders had “a huge number” of smaller vessels of -from 20 to 50 tons burden, with crews of from 8 to 12 men, which were -called “sword-pinks,” “flat-bottoms,” “Holland-toads,” “Crabskuits,” -and “Yeuars,” and fished for herrings along with the busses on the -east coast from Shetland southwards, carrying home their catches or -selling them at Yarmouth. Gentleman says there had been seen at one -time, “and numbered,” at Brassey Sound, in Shetland, where the busses -rendezvoused, either going to sea or at sea within view, 2000 sail of -busses and schuits, besides those that were out of sight. All these -fished for herrings during the season “in his Majesty’s seas.” Then the -pinks and well-boats, which caught cod and ling all the year round, -numbered between 500 and 600; they were from 30 to 40 tons burden, -and had crews of about 12 men each. There were also more than 200 -“fly-boats” which fished with lines to the north-east of Shetland all -the year round for ling, which were split and salted in bulk and were -known as “Holland-lings,” although, says Gentleman, they were really -Shetland lings before they took them from his Majesty’s seas. This -author placed the total number of Dutch fishermen who fished off the -British coasts at not less than 37,000, of whom 32,000 were engaged in -the herring fishery, and 5000 in fishing for cod and ling.[244] - -It would thus appear from the evidently honest account of Gentleman, -that early in the reign of James fully 2000 Hollander busses and -fishing vessels frequented the British seas. But the Dutch were not -the only foreigners who reaped the harvest of fishes along our coasts. -Fishermen likewise came from France, Spain, and Portugal, from Hamburg, -Emden, and Bremen. The French herring-boats, from Normandy and Picardy, -generally numbered about 100; sometimes there were only 40, and they -did not go so far north as the Hollanders.[245] Spanish, Portuguese, -and French vessels fished for mackerel on the Irish coast and to the -south-west of England, as well as for cod in the North Sea. Those from -Hamburg, Bremen, and Emden took part in the herring fishery on the east -coast, but they appear to have mostly confined their operations to the -northern parts of Scotland. French and Flemish vessels also visited -the western lochs of Scotland, both for fishing and for the purchase -of fish.[246] The total number of foreign vessels thus fishing in the -British seas at the time in question must have been large. In both of -Keymer’s treatises it is stated that there were 20,000, with 400,000 -people. This estimate is obviously greatly exaggerated; but making -all due allowances, it is certain that the fleets of foreign fishing -vessels frequenting our coasts in the reign of James were of formidable -extent. The great herring-busses, while fishing along the east coast -of Scotland, were described in 1608 as occupying an area of the sea of -at least 45 miles in length by 22 miles in breadth, within which space -they allowed no others to shoot a net.[247] - -The herring fishery of the Dutch along the British coast was known as -the “great fishery” (_Groote Visscherye_), to distinguish it from the -“small” or fresh-herring fishery which was pursued locally, and it -was subjected to minute regulations. The busses collected at Bressay -Sound in Shetland in the early part of June, but the fishing was not -allowed to begin until St John’s Day, on the 24th of the month, when -the vessels departed in fleets for the fishing-grounds under the charge -of “commodores” and guarded by men-of-war. As the season advanced -the fishing was carried on farther and farther to the south. Until -St James’ Day (25th July) it was prosecuted in the neighbourhood of -Shetland, Fair Isle, and as far south as Buchan Ness; from then until -Elevation Day (14th September) it was from Buchan Ness to the coast of -Northumberland; then southwards to the deep water off Yarmouth till St -Catherine’s Day (25th September); and so to the mouth of the Thames, -the fishing usually coming to an end at the beginning of December. -The “fleet” or train of nets was more than a mile in length, which -necessitated the busses keeping some distance apart to prevent fouling; -they were shot in the evening and hauled in the morning, when the crew -began to salt and pack the herrings into barrels, which were then taken -to Holland in “yagers,” or carriers, repacked, branded, and exported to -various countries. The smaller vessels which took part in the “fresh” -herring fishery were employed especially off Yarmouth in the autumn, -and they sold their herrings for ready money to the fish-curers with -whom they were “hosted.” On some occasions as many as 200 of those -smaller Dutch vessels lay in Yarmouth harbour at a time. The boats that -went for cod, ling, and haddock fished throughout the North Sea,--the -smaller ones at the Dogger Bank as a rule, the larger on the Scottish -coast and at Shetland. Hand-lines, baited with herring or lamprey, were -used, the cod being either pickled, dried, or brought to land alive in -wells, and these vessels furnished the larger part of the supply to -London. - -The quantity and value of the fish caught by the Dutch off the British -coasts were variously stated. Keymer, in his first tract, estimated -the quantity of herrings taken by the 2000 busses in the twenty-six -weeks of their fishing at about 300,000 lasts (or 3,600,000 barrels) -annually, and the value, at first hand, at £3,600,000 sterling. -But the merchants who exported the pickled herrings--and by far the -greater quantity were exported[248]--are said to have charged from -£16 to £36 a last, the eventual value as merchandise being estimated -at not less than £5,000,000 sterling. In his later treatise the -value of the herrings exported by the Dutch is placed lower, at -about £1,768,000, the quantity being stated at from about 89,500 to -100,500 lasts, or from 1,074,000 to 1,206,000 barrels. Gentleman, -whose work seems to have been the most trustworthy, estimated the -quantity of herrings taken by the Dutch in the British seas at over -100,000 lasts or 1,200,000 barrels, the original value at £1,000,000 -sterling and the gross value at twice that amount; “while we,” he -says, “take no more than to bait our hooks.” Gentleman’s estimate -of the quantity may be taken as approximately correct, because in -the present day the least effective of the vessels taking part in -the Dutch herring fishery--namely, the old-fashioned flat-bottomed -boats (_bommen_)--catch and cure on an average in a season about 660 -barrels each, so that the quantity taken by a fleet of 2000 of such -vessels would be about 1,320,000 barrels. But the old busses were -of a superior type, keeled vessels (_hoekers, sloepen_), and the -average catch of their modern representatives in a season is about -1060 barrels, which for a fleet of the same number would give a total -yield of about 2,120,000 barrels, or over 176,000 lasts. Monson placed -the value of the herrings exported from Holland to the Baltic at -£800,000, and of those sent to other countries at £1,000,000,[249] -while Sir Nicholas Hales in 1609 estimated the value of the exported -herrings at £4,000,000, but raised it later, in 1634, to £6,000,000, -owing to information received from Amsterdam.[250] Sir John Borough’s -estimate was still higher. He said that if account was taken of all -the herrings, cod, ling, and other fish caught in the British seas by -foreigners, the gross value would exceed £10,000,000 a year. - -The larger figures above cited are unquestionably exaggerated, but -even the lowest shows how very valuable the sea fisheries were to the -Dutch at the beginning of the seventeenth century, for the total value -of all the commodities exported from England in 1613 was placed at -£2,487,435, and the value of the imports at £2,141,151.[251] - -The English fisheries, which Cecil had laboured to revive, presented -a striking contrast to the prosperous fishery of the foreigners. As -in the days of Hitchcock, our fishermen shot their nets for herrings -from small vessels near the shore, and on the east coast, at least, -only in the period from September to November, with the exception of -an occasional “summer” fishing.[252] They had very “sorry” nets and -poor frail boats, and most of those going to the Yarmouth fishing -from Yorkshire and Durham were only “five-men” cobles.[253] “The -Hollander busses,” it was said, “are greate and strong and able to -brooke foul weather, whereas our cobles, crayers, and boats, being -small and thin-sided, are easily swallowed by rough seas, not daringe -to adventure far in fair weather by reason of their weaknesse for -feare of stormes.” The largest of the crayers were of 20 tons burden, -their catch of herrings for a night being generally from one to three, -and rarely as much as seven, lasts.[254] One can only guess at the -number of fishing boats and vessels belonging to east coast ports -at this time. Gentleman stated that the number of “North Sea boats” -which fished for cod, and probably also for herrings, in autumn, was -from 224 to 237 along the stretch of coast between the Thames and the -Humber, the crews employed in them being between 1500 and 1600. The -Iceland barks numbered about 125 in 1614; 20 of them, as well as 150 -of the North Sea boats, belonged to Yarmouth. The town-clerk of that -port, writing about the same time, said that they sent annually to -Iceland and the north seas for cod and ling about 120 sail, while all -the “ships, crayers, and fisher-boats” belonging to Yarmouth numbered -220; the able-bodied mariners and fishermen amounted to 1000.[255] The -only other fisheries on the east coast were a small one for mackerel, -which employed 40 boats at Yarmouth in the spring; a sprat fishery with -bag-nets; while some small trawlers worked in the bays and estuaries. -On the east coast of Scotland there was no native herring fishery -except in the firths. - -Compared with the great trade of the Dutch, the exports of fish from -this country were insignificant and trifling in view of the quantity -imported: in London alone no less than £12,000 was paid to the -Hollanders for barrelled fish and Holland lings between the Christmas -of 1613 and 18th February 1614. Scotland still sent tolerably large -quantities of salmon, herrings, and salt fish to France, Spain, and -elsewhere; but the exports from England were almost quite confined to -red-herrings from Yarmouth and pilchards from Cornwall,--both sent to -the Mediterranean, and very commonly in Dutch bottoms.[256] The English -had no share whatever in the trade in pickled herrings or in pickled -cod; they were indeed ignorant of the method of curing the latter. - -From the foregoing it is not difficult to realise the feeling of -irritation against the Dutch which began to gather in the breasts of -the English people. They witnessed with envy the great fleets of alien -fishing vessels which darkened their coasts every season and reaped a -rich harvest in waters which they regarded as their own. “No king upon -the earth,” said Gentleman, “did yet ever see such a Fleet of his own -subjects at any time, and yet this Fleet is there and then yearly to -be seen. A most worthy sight it were, if they were my own countrymen!” -Statesmen and economists saw in the extension of the Dutch fisheries a -menace to the power and wealth of the nation. The fisheries formed a -valuable nursery of seamen to man the mercantile marine and the royal -navy; it was chiefly from this point of view that the political lent -and the fishery Acts of the previous reign were designed. Another -consideration began to excite even more attention. The trade in fish -was looked upon as forming the basis of commerce and national wealth. -The Dutch boasted that the herring fishery was their “gold-mine”; that -“the herring keeps Dutch trade going, and Dutch trade sets the world’s -afloat”;[257] and the argument that national power and wealth depended -on the sea fisheries became a commonplace in the seventeenth century, -and was urged as a reason why the English people should secure for -themselves the fisheries in their own seas. This, it was said, would -do more good to the kingdom than all the mines and the whole trade in -cloth and wool; the fisheries would be more valuable to us than the -Indies were to Spain, or than was the commerce with the West Indies; -they were the “very goal and prize of trade and of the dominion of -the sea.”[258] Had not Holland, which was “not so big as one of his -Majesty’s shires,” and where nothing “grew” save “a few hops, madder, -and cheese,” become a rich and powerful state, full of goodly towns, -and the great mart of Europe, owing to the fish drawn from the British -seas? Did not Dutch ships, in return for the fish they exported, come -back laden with the riches of other lands,--with oil and wine, honey -and wool, from France and Spain; with velvets, silks, and spices from -the Mediterranean; with corn and wax, hemp, iron, and timber, from the -Baltic? And all this great commerce was founded on their fisheries in -his Majesty’s seas. - -Two other arguments were very commonly put forward,--that the -development of the fisheries would directly increase shipping, and -also give birth to many other industries. Ingenious and detailed -calculations were made to show that if 20 busses were built at a -seaport they would cause other 80 ships to be constructed, increase the -number of mariners by 1000, and give employment to nearly 8000 people -by sea and land. “It is the fish taken upon his Majesty’s coasts,” said -Sir William Monson, the Admiral of the Narrow Sea, “that is the only -cause of the increase of shipping in Europe; and he that hath the trade -of fishing becomes mightier than all the world besides in number of -ships.”[259] Dutch ships crowded our ports; they carried away English -commodities at lower freights than English vessels could afford to -do, and thus we were “eaten out of all trade and the bread taken out -of our mouths in our own seas, and the great customs carried from his -Majesty’s coffers to foreign princes and states.” The Hollanders were -accused of trying “to get the whole trade of Christendom into their -own hands, as well for transportation as otherwise for the command and -mastery of the seas.” Yet the king was “Lord Paramount of those seas” -in which the foreigners caught the fish that made them so rich and -powerful: surely “he would not, without question, allow strangers to -eat up the food that was provided for his children!”[260] - -Such was the national spirit and sentiment that had been developing -during the closing years of Elizabeth’s reign and the early part of -the reign of James, and was well expressed by Sir Walter Raleigh when -he said that “whosoever commands the sea commands the trade; whosoever -commands the trade of the world commands the riches of the world, and -consequently the world itself.”[261] England was to become powerful -and rich by shipping and maritime commerce, and the first step in the -struggle was to secure the fisheries for herself. Opinions varied as to -how this was to be accomplished. Some recommended the establishing of a -national fishery on the plan recommended by Hitchcock in the preceding -generation and tried by Charles I. in the next. Others suggested the -institution of a commission of “State Merchant,” which would have trade -and commerce as well as fisheries under its charge. A few spoke, more -faintly, of the potency of fish-days and the strict observance of Lent. -But all or almost all agreed that foreigners, and in particular the -Hollanders, should be either prohibited from fishing in the British -seas or allowed to do so only under license and regulations and the -payment of a tribute to the crown. - -The proposal most commonly mooted was to build a fleet of -herring-busses for ourselves, and, in short, to imitate the Dutch -system in all particulars. The natural advantages we possessed -were made the most of. The fishing-grounds were at our doors, while -the Dutch had to sail long distances. We had numerous harbours and -sheltered beaches for the wintering of the busses. We had all the -materials for building and equipping the busses except pitch and tar, -whereas the Dutch had to import everything save hemp; and abundance of -men to man the vessels could be got from the “decayed towns.” It was on -the other hand admitted that we laboured under one disadvantage. The -Dutch fishermen were more frugal, more industrious and painstaking, -than the English. They were content with plain fare--with bread and -butter, cheese, a little pork, and fish,--while the English required -beef and beer, and much of both.[262] And while the Dutch worked hard, -“labouring merrily together,” the English fishermen “sat day and night -drinking in the ale-houses.”[263] - -But any scheme for establishing a great national fishery had little -chance of financial support from the public unless it could be shown to -be profitable, and there was no lack of calculations and computations -to prove the great profits that might be made. Gentleman estimated that -the clear gain from one buss, allowing for wear and tear, would amount -to £565 in four months, and from a pink for cod-fishing to £158 in -two months. The author of _Britaines Buss_ calculated that the yearly -profit from one herring-fishing and one cod-fishing of a single buss -would amount to £897, after all expenses had been paid. This writer -proposed that a corporation should be formed, consisting of noblemen, -gentry, and citizens “of ability,” each of whom should provide one -buss; that the corporation should receive from the king certain -powers, privileges, and immunities; and that a joint-stock should be -raised like that of the East India Company, the annual profit on which -was estimated at 75 per cent. - -Those schemes resembled the one put forward by Hitchcock in the -previous reign and frequently advocated since. Sir Walter Cope -indeed told King James, in 1612, that “this royal work,” within his -own knowledge, had been in project for thirty years, but that in -Queen Elizabeth’s time it had been “ever silenced” in favour of the -Netherlands, who then maintained war against a common enemy.[264] - -Within two or three years of the accession of James, the project took -more definite form, and was brought before the Privy Council, and it -was carefully considered in 1607. An integral part of the proposal was -that strangers fishing in the British seas should pay tribute to the -king, while the native fishery remained untaxed, and that the tribute -should be farmed out to patentees, as was done with the assize-herrings -in Scotland, who would then establish a national buss fishery and pay -a rent to the crown.[265] There were several schemes of the kind, -but the one which received most attention was put forward by a Mr -Richard Rainsford, acting on behalf of a number of London merchants, -who aimed at forming an association to be called the Society of -Fishing Merchants. In 1608 the proposals were referred to the Earl of -Northampton, Lord Privy Seal, and the Earl of Devonshire, who commended -them as being for the public good, and early next year a formal and -detailed scheme was prepared.[266] In the preamble stress was laid on -the fact that the Hollanders and other nations had their principal -fishing on his Majesty’s coasts and seas, “whose soveraignty ought -therein to be acknowledged, not only to procure thereby payment of -his Majesty’s duties of fishing, but also to have his kingdom provided -with fish at such reasonable rates and prices as other nations have -maintained thereby navigation and mariners; and setting of an infinite -number of subjects on work within the realm of England and Scotland -to strengthen his Majesty’s dominion by sea and land, as the chief -point of a most commendable Union,” that is to say, a union of England -and Scotland, the idea of which was still in the mind of James. The -justification for imposing a tribute on foreign fishermen, which was -to be in kind, was the king’s right to the tithe, “grounded by ancient -customs and records of his Majesty’s predecessors demanding the tenth -fish; whereunto three things were required: (1) how his Majesty’s tithe -and right can be evidently proved; (2) precedents, that other kings -and princes have and do the like in their seas; (3) that it shall -give no cause of offence to other princes or states to move war.” The -second part of the project was to build a “competent number” of ships -or busses yearly, and so to re-establish the fishing trade which, -it was said, one Violet Stephens and other discontented fishmongers -from England had transferred to Enkhuisen and other places in Holland -some ninety years earlier, teaching the Dutch to come and fish in the -British seas--a false tale current in England in the reign of James. - -As an alternative plan, to be put into immediate execution in -connection with the truce just concluded between Spain and the United -Provinces,[267] it was proposed that, his Majesty’s right and tithe -having been made plain as above described, the Hollanders themselves -should be invited to join on reasonable terms with the English -projectors in the fishing trade for one-third part, or even a half, of -the fishery. This course, it was believed, would prevent any cause of -offence, being, it was said, in agreement with “the known precedents of -other princes.” It was also thought that it would be agreeable to the -Hollanders, since they would see that the Society of Fishing Merchants, -being free from license or tribute, could afford to have busses built -in Denmark for themselves should that be necessary. If the Hollanders -could be induced to associate themselves with the Society, then, -it was argued, when the time came to interfere with their “general -fishery,” the risk of war would be removed, and the king’s tithe -and right might be acknowledged and established by proclamation or -otherwise.[268] - -The acknowledgment of the king’s “sovereignty or title annexed to the -dignity of the Crown” required the contribution of the tenth or the -twentieth fish, more or less, to be delivered at sea for the general -good of the Society, so that they might be able to tide over bad -years and maintain the fishermen. In this way, by heavily taxing the -Hollanders, it was believed that “no man should be discouraged by bad -successe, but might depend upon God’s blessing with a quiete minde -to follow his vocacion avoydinge Idlenes by ye survey of others.” On -the other hand, the Society would undertake to pay the king so much -upon every last of fish as might be thought convenient, provided that -letters patent were granted under which the Hollanders and other -strangers would be “limited and ruled.” - -In this scheme of the London merchants it was proposed to acquire in -the first year fifty fishing vessels, partly by buying them beyond the -seas, and partly by building them in Denmark, Scotland, and the north -of England. The busses were not to exceed fifty, or the dogger-boats -thirty tons, since the Dutch in recent years had found the smaller -vessels more profitable than the larger ones. It was stated that some -families in Holland, the “east countries,” and Hamburg, with vessels -of their own, were desirous of joining the London Society,--several -of them had indeed arrived in England,--and it was proposed to admit -them for a few years only, in order to lay the foundations of the -business, and to educate English lads in the curing of herrings, and, -what was “not the least point,” to make the English as industrious -as themselves. When the fishery was thoroughly established, it would -be easy to erect “staple towns and magazines” for the commodities of -other countries; the ships of the Society would bring back merchandise -for the fish exported, and a great commerce would be created. In all -this prosperity “the King’s Majesty might be made a partaker, as a -Royal Merchant,” while the stock required would easily be found among -the merchants. On the other hand, if the king confined his action -to the issuing of licenses to foreigners, without giving means for -establishing a society of merchants for the fishing, then his subjects -would be entirely dependent for their fish on these foreign fishermen, -who would charge higher prices to recoup themselves for the cost of -the licenses. The country, moreover, would suffer from the loss of the -commerce that sprung from the trade in fish; the transportation of -money and bullion for fish and other commodities brought into the realm -would continue unchecked; and the king would lose the great strength of -shipping and mariners that otherwise would be available for the defence -of the kingdom. - -Objections were raised to the project on the ground that it was -unlikely that the Society, even with the advantages which they desired, -would be able to compete with the Hollanders. The Hamburgers and other -peoples who had previously made the attempt had failed, for the Dutch -were very industrious and frugal, their fish always brought the highest -price, often 25 per cent above that of other nations, because they were -thoroughly skilled and experienced in the industry. The freights of the -Hollanders were, moreover, far lower than in English ships, as they -took barrelled herrings for ballast, or even for “drink money.” - -A more serious difficulty was the principle that lay at the root of -the scheme--the taxation of the Dutch fishermen for the benefit of -the Society. It was evidently admitted that the project would fail, -even if the busses were manned by Dutchmen and the herrings cured and -exported by them, unless some form of subsidy was provided. But on the -threshold lay the question of the king’s right to impose a tribute -on foreign fishermen. Rainsford endeavoured to help the solution by -submitting a memorandum, “Touching his Majesty’s Tythe.”[269] It has -some interest from the circumstance that it was the first attempt made -in the reign of James to furnish historical and legal precedents for -interfering with the liberty of fishing. In substance it is little more -than a collection of the stories current at the time concerning the -sovereignty of the sea, such as those about King Edgar, Queen Mary and -Philip, and Camden’s statement about Scarborough.[270] It was also -said that fishermen were compelled to pay taxes for liberty to fish -in Russia, at the “Shoffland” islands and other islands belonging to -the King of Sweden, in Denmark, and in Spain, where the Duke of Medina -Sidonia derived a large revenue from the taxes on the tunny fishery. -Rainsford reiterated the advantages of the scheme to the nation and -the navy, and promised an annual revenue of £20,000 to the king, after -the lapse of seven years, so long as he granted to the patentees the -tribute on foreign fishermen. - -About this time, whether by arrangement with the London merchants -or independently, some influential persons addressed the king in -denunciation of the Dutch. Sir Nicholas Hales in 1608, and again in -1609, strongly advised the king to take action against them. Their -fisheries in his Majesty’s seas, he said, were worth more than the -mines of gold and silver in the Indies; in one year they had sold -fish in England alone to the value of £1,200,000; by their means they -maintained 100,000 men with their wives and families. Then their -immense shipping was a menace to the security of the realm. They -came into our roads and harbours with their guns and ordnance on -board: sometimes three or four hundred sail of Hollanders sheltered -in St George’s Channel, where our fleet, if need were, could always -strike them. The whole trade of Christendom appeared to be going -into their hands. Sir Nicholas was afraid they might join with the -“Turks” against us; there was even risk of invasion unless measures -were taken to curb their growing power. The measures he proposed -were the delivery of Flushing and Brill as pledges of security, and -the payment of £4,000,000 for the king’s license to carry on their -fishery for twenty-one years on the British coasts. Otherwise they -should be compelled to pay a tithe of the twentieth herring or be -forbidden altogether.[271] Sir William Monson--who was a Roman -Catholic, had been Admiral of the Narrow Sea, and was accused by the -Dutch of antipathy to them--wrote several papers in the same strain. -He dwelt upon the danger to England of their increase in shipping -commerce and power, all derived from the fisheries in the British -seas. They had already got the Irish and Russian trade, as well as -that to the Mediterranean, so that while twelve years before there -were twelve English ships to one Hollander in that sea, there were now -ten Hollanders to one English; they even transported the red-herrings -from Yarmouth and the pilchards from Cornwall and Ireland, which was -previously done by English vessels. Monson’s remedy was to obtain -possession of the fisheries and build a fleet of English busses.[272] - -There is no doubt James was inclined to listen with a favourable ear to -the proposals to establish a native herring fishery at the expense of -the Dutch. A year or two earlier he had, indeed, induced the Parliament -of Scotland to pass an Act providing, among other things, that the -royal burghs should equip busses for the herring fishery,--a suggestion -frequently made and never well received. When the burghs were called -upon to state the number of busses they were prepared to set forth, -they declared that some of the coast towns already had vessels engaged -in this fishery, especially in summer, “att the back of the Isles -besyid the Flemeingis”; that on the coast there was more shipping for -fishing than “substance” to furnish them with or mariners to serve in -them; and that the most profitable and “easy” fishing was at the Isles -and lochs on the west coast, though they were hindered there by the -barbarous conduct of the natives. It was therefore, they said, “in -vain” to ask them to fish “in the mayne sea” when they could get this -easy and profitable fishing at the lochs and near the shore at all -seasons, in great abundance, both summer and winter.[273] - -At the time the fishery scheme was under consideration some events -occurred which favoured the plans, if not of the London merchants, at -least of those who were preaching hostility to the Dutch. A chorus of -complaints came from Scotland and England as to the encroachments of -the Hollanders near the shore on the east coast, not only interfering -with the operations of the native fishermen, but breaking up and -scattering the shoals of herrings. Whereas they had been prescribed “in -ancient times” in Scotland from fishing nearer the land than they might -see the shore from the main-tops of their vessels, they now came as -near as they pleased, and would not sutler any others, whether subjects -or strangers, to fish within the bounds of their fleet, which, it was -said, extended over a space “at least forty Scottish miles in length -and twenty broad,” thus “breaking and killing” the shoals before they -could reach the mainland. They were also accused of drawing “the great -fish” (by which was meant cod, saithe, &c.) from the grounds along the -shore, by casting into the sea the guts of the herrings they cured -on board their busses. By reason of all this the Scottish fishermen, -who used to get abundant supplies at “yair awn dooris” to supply the -whole country, were now scarcely able, with great pains, to supply -their own families, and there was in consequence a general clamour in -the country, the people affirming that “the Hollanderis fishes the -meait out of thir mouthis.” The evil was felt all the more by the -Scottish fishermen because they paid three “assizes” every year for -their several fishings, each consisting of 1000 herrings, while the -Hollanders paid nothing.[274] - -Early in 1609 the fishermen of the Cinque Ports, who frequented the -Yarmouth fishing in large numbers, sent a petition to the king, in -which they recited their grievances. They alleged that the laws -prohibiting the purchase from foreigners of fish unless sufficiently -salted and casked (laws which, they pointed out, had done great good in -the past, and had increased shipping and mariners) were not properly -enforced. This complaint was aimed against the Dutch, who sold large -quantities of fresh herrings at Yarmouth, and supplied London and other -towns with fresh cod. They also complained that fishermen from the -Low Countries, with a few from France, came before the fishing season -and “preoccupied and environed” the best places with their shipping, -enclosing, as in a circle, the shoals of herrings, and preventing the -native fishermen from fishing among them. They were thus deprived of -one of the best commodities of the land, and the herrings which they -were prevented from catching were taken by the Hollanders and sold -fresh on the English coast in contravention of the statutes. They said -they were threatened with utter decay and impoverishment, and were -discouraged from building barks for the Iceland fishing, which had in -the past produced numbers of good mariners, to the great honour and -defence of the realm. They pointed to the “ingenious dexterity of the -Netherlanders, who in the care and pollicy of their State, and for -the maintenance of their navigation and fishing,” had imposed a tax -of fifteen shillings on every last of herrings imported by foreigners -into their country; and they begged the king, by the justice of _lex -talionis_, to do likewise, and thus to save the poor fishermen from -the multitude of foreigners who oppressed them.[275] About this time -complaints began to be made of cruel and harsh treatment of the native -fishermen by the Dutch, but they appear to have rested on very slender -grounds.[276] - -The complaints against the Hollanders gave James his opportunity. -The policy of issuing a proclamation to forbid unlicensed fishing by -foreigners on the British coasts was discussed by the Privy Council -early in the year. Doubts, however, were expressed whether such -action would be in conformity with the provisions of the “Burgundy” -treaties, which granted liberty of fishing to the Low Countries. In -the “qualification” of Rainsford’s fishery scheme the question as to -how the king’s title and rights could be proved had been answered in -a lofty spirit--“By prerogative royall, without any accompt to be -rendered to other nations; yet others to declare the reasons thereof.” -But the Privy Council had to consider the matter more carefully. They -remitted the draft proclamation to a committee consisting of Sir John -Herbert, the second Secretary, Sir Julius Cæsar, now Chancellor of the -Exchequer, Sir Daniel Dunn, Sir Thomas Crompton, and Sir Christopher -Perkins, instructing them, after perusing all the Burgundy treaties, to -report as to the lawfulness or unlawfulness of the proposed action.[277] - -A fortnight later the report of the committee was sent to the Council. -They had, they said, considered of the liberty taken by the subjects -of foreign princes and states to fish upon the coasts of the King’s -Majesty, by which not only the English fishermen received wrong in -their fishing, but the very coast towns were decayed; they had also -considered the proclamation for the restraint of fishing, and had -perused the Burgundy treaties as required, and they were “of opinion -that the King’s Majesty may without breach of any treaty now in force, -or of the law, upon the reasons specified in the proclamation sent -unto us, restrain all strangers from fishing upon his coasts without -license, in such moderation and after such convenient notice given -thereof by public proclamation, as his Majesty shall think fit.”[278] - -It was on this extremely important deliverance that the new policy -of interfering with the liberty of foreigners fishing on the British -coasts was based. The cautious language of the Privy Council indicates -that they were conscious of the strength of the case against them from -the existence of the Burgundy treaties; but the committee professed to -find that those treaties were no longer in force,--an argument which -was made the most of in the subsequent negotiations with the Dutch -Republic. The report was submitted to the Council in February; in -March Grotius published his _Mare Liberum_, in which he branded as -“insanely cupid” any one who attempted to interfere with the common -liberty of fishing in the sea; and within a week or two thereafter the -Truce of Antwerp was signed by Spain and the States-General, by which -the long war between those Powers was brought to a close, and James was -free to begin his policy against the Dutch fishermen. On 12th April -1609 a memorandum was drawn up for the Council, in which it was stated -(1) that a conference having been held with the fishermen concerning -the seasons of all the fishings on the coast, it was thought fit that -the proclamation should take effect from 1st August ensuing; (2) that -from that day forward it should be unlawful for any stranger to fish -“upon those his Majesty’s coasts and seas of Great Britain and Ireland -and the Isles adjacent,” where the fishing was usually carried on, -until they had obtained license for the same from the king; (3) that -commissioners should be appointed by the king, at London, for England -and Ireland, and for Scotland at such place as the king should select, -to give out licenses on such conditions as he might think fit; and (4) -that the licenses should be apportionable to the number and tonnage of -the ships.[279] - -These provisions were embodied in the proclamation, which was issued -on 6th May 1609.[280] “Whereas,” said James, in his wordy style, -“we have been contented since our coming to the crown, to tolerate -an indifferent and promiscuous kind of liberty to all our friends -whatsoever, to fish within our streams, and upon any of our coasts of -Great Britain, Ireland, and other adjacent islands, so far forth as -the permission or use thereof might not redound to the impeachment -of our prerogative royal, nor to the hurt and damage of our loving -subjects, whose preservation and flourishing estate we hold ourself -principally bound to advance before all worldly respects: so finding -that our connivance therein hath not only given occasion to over -great encroachments upon our regalities, or rather questioning for -our right,[281] but hath been a means of much daily wrongs to our -own people that exercise the trade of fishing, as (either by the -multitude of strangers, which do preoccupy those places, or by the -injuries which they receive most commonly at their hands) our subjects -are constrained to abandon their fishing, or at the least are become -so discouraged in the same, as they hold it better for them to betake -themselves to some other course of living, whereby not only divers of -our coast-towns are much decayed, but the number of mariners daily -diminished, which is a matter of great consequence to our estate, -considering how much the strength thereof consisteth in the power -of shipping and use of navigation.” It was therefore both just and -necessary, the king continued, to take lawful means to put an end to -these inconveniences, although he had no intention, as he desired -the world to take notice, to deny his neighbours “those fruits and -benefits of peace and friendship” which might justly be expected at -his hands in honour and reason. He therefore gave notice to all the -world, that after 1st August 1609, “no person of what nation or quality -soever, being not our natural born subject, be permitted to fish upon -any of our coasts and seas,” “until they have orderly demanded and -obtained licenses from us,” or the commissioners appointed at London -and Edinburgh. The licenses were to be renewed yearly, “upon pain of -such chastisement as shall be fit to be inflicted upon such wilful -offenders.”[282] - -[Illustration: Fig. 6.--_Facsimile of the concluding part of the Draft -of Committee’s Report to Privy Council regarding the restraint of -foreigners fishing on the British coasts._] - -The prohibition of unlicensed fishing in the British or Irish seas was -general in its character, and applied to all foreigners indifferently. -But it was well understood to be aimed at the Dutch. There is no -evidence to show that any steps were taken to induce the hundred or -so of French boats that took part in the herring-fishing on the east -coast to obtain licenses; and though the Earl of Salisbury wrote a long -letter to the English ambassador at Madrid, explaining the reasons that -had induced the king to issue the proclamation, it does not appear that -the numerous Spanish fishermen who caught mackerel off the coast of -Ireland and the south-west coast of England were ever interfered with, -or asked to apply for licenses.[283] - -In the United Provinces the important step taken by the King of -England was regarded with much concern. Early in June the proclamation -was discussed by the States of Holland, and it was resolved that as the -interference with the liberty of fishing was contrary to the treaties -between England and the Netherlands, the States-General should maintain -their right to fish off the British and Irish coasts.[284] This -resolution was confirmed on the same day by the States-General, and it -was decided to make representations against putting the proclamation -into force. The herring-fishing, as previously described, began in June -at Shetland, and was prosecuted down the east coast to Yarmouth, where -the busses were usually to be found in September. There was therefore -not much time to lose. Sir Noel Caron, the Dutch ambassador in London, -had several interviews on the subject with the Earl of Salisbury and -with James himself. Lord Salisbury, who was believed by Caron to be -the real author of the scheme, held out little hope of an amicable -settlement. But the good-natured king, who loved peace even more than -he loved his prerogative, was more conciliatory. He explained to Sir -Noel that the proclamation was for the purpose of introducing better -order into the fishery, and to make manifest to the world the authority -and power which he had on the sea,[285] and was not meant in any way -to wrong the States, either by hostile force or otherwise. The French -Government had in the meantime moved in the matter. At first nothing -was said to our ambassador at Paris about the proclamation, and he -thought it “no wisdom” to speak about it to them unless they raised -the question. This they did later, either on account of the French -fishermen or at the instigation of the Dutch, and a year’s respite -was granted.[286] Caron learned the welcome intelligence from the -French ambassador in London, that a promise had been made to him that -the project would proceed no further until after mutual negotiations, -which would occupy the whole of that year.[287] Sir Ralph Winwood, who -was appointed English ambassador at The Hague in August 1609, also had -conferences about the proclamation with Barnevelt, whose authority -in Holland was then supreme. He was told that the States would send -special ambassadors to the king, “to acknowledge those many royal -favours they had received from him,” and to treat of the liberty of -fishing. Meantime their ambassador in London had been instructed to -beseech the king to have patience with their people “trading” on his -coasts, and that “without impeachment they might use their accustomed -liberty and ancient privileges.”[288] - -Sir Noel Caron had also discussions in London with respect to the -legality of imposing any tax on Dutch fishermen, the principle of which -he could not well understand. As previously mentioned, one of the -precedents upon which James founded his claim to impose tribute was -the payment by Scottish fishermen of the so-called “assize-herrings.” -This was an ancient tax or custom of a thousand herrings levied from -each fishing-boat employed at the herring fishery, and they belonged -to the king as part of the crown revenues.[289] From the extent of -the Dutch herring fishery it is evident that a similar tax imposed on -it would have brought in a goodly sum annually to the king’s coffers. -A few years later, when James did attempt to collect the tax from -the Dutch fishermen, each buss was to be charged an “assize duty” of -10,000 herrings, or £66, 13s. 4d. Scots, which was equal to about £5, -11s. 1d. sterling; so that if the duty had been exacted from the 2000 -herring-boats fishing on the coast the crown would have benefited to -the extent of about £11,000 a year, and the Hollanders would have been -all that the poorer. - -When the principle of the assize-herring was explained to the Dutch -ambassador, he appears to have devoted some attention to it. He argued -that although the Scots Acts showed that the assize-herrings had been -exacted from the Scottish fishermen in the firths on the east and west -coasts, the tax had never been imposed in the north seas and at the -Isles (Shetlands) where the Hollander busses fished; it would therefore -be an “innovation” to enforce the payment there now. He further averred -that treaties between King James and the United Provinces existed by -which Dutch fishermen were freed from any payment to the king for -fishing on his coasts and seas. Moreover, he declared the sea was -free to all, _mare est liberum_, and consequently there was no king -nor lord to be acknowledged upon the sea, “but every stranger may -fish over all the seas where he pleases, without asking license, or -paying any toll or duty whatsoever.” It was moreover apparent, apart -from considerations of principle as to the freedom of the sea, that no -certainty existed that the king, or a successor, would not raise the -tax, if once imposed, as the King of Denmark had done with the dues at -the Sound, until they became a heavy burden. - -A Scottish lawyer, probably in the service of the crown, in reply to -the objections of Sir Noel Caron, argued that it could not be called -an “innovation” to exact the tribute, if the herrings swam from the -ancient places of their resort and appeared in new places in his -Majesty’s seas, where the tax was not previously levied, or because -there was an “oversight” in levying it in olden times when, he said, -there was little fishing in the north seas and about the Isles, and -the cost of collecting it would have been great. As for treaties, it -was most improbable that any stranger would ask or king grant that -strangers should be more free to fish “within the seas of the king’s -dominions” than the native subjects of the kingdom. But even if such -grant had been made, it could not stand good in law, because it was -“repugnant to reason.” By negligence, he said, the Hollanders had -been allowed two advantages. In ancient times they were “appointed” -to fish no nearer the land than they could see the shore from their -main-tops; but now they fished as near as they pleased, excluding the -natives and breaking up the shoals. Then, while the natives had to pay -three assizes yearly, the Dutch were “as yet” asked to pay only one, -though many of the busses made three voyages in a year. And if the sea -was free to all, why had the Netherlanders entered into treaties for -freedom of fishing? By making covenants with the kings of Scotland, -“and taking liberty of them to fish within the Scottish seas,” they -had “disclaimed _mare liberum_ and acknowledged the Kings of Scotland -to be Lords of these Seas.” Why should the Dutch alone object, if -the natives, the French, and all other foreigners willingly pay the -assize-herring?[290] It was, however, untrue to say that the tax was -paid by the French or other foreign fishermen. Even Scottish fishermen -who fished at the North Isles were exempt; and when an attempt was made -some years later to force them to pay, the burghs obtained a decree of -_absolvitor_ from the court and the Privy Council, on the ground that -the tax could only be levied on “green” or fresh fish landed, and not -on herrings cured on board (see p. 166). - -In the spring of 1610 James’s proclamation was again taken into -consideration by the States of Holland and the States-General, and it -was resolved to send an embassy to London, primarily to thank the king -for his friendly offices in connection with the conclusion of the truce -with Spain, but in reality to deal with the fishery question and some -other matters. One of the ambassadors was Joachimi, who afterwards -represented the States at the English Court for over twenty-five -years. Another was Elias van Oldenbarnevelt, a brother of the great -statesman who was then at the head of affairs in the Netherlands, -and to him the business of the fishing was specially committed. They -arrived in England on 14th April, and had an audience with the king a -few days later and another with the Privy Council. They asked for an -assurance that the king’s proclamation was not meant to extend to the -United Provinces, since he was in alliance with them, and treaties -existed between the two countries. But the Earl of Salisbury plainly -told them that the principal motive of the proclamation arose from the -multitude and disorder of their fishermen, “who had wholly drawn the -fishing to themselves, to the destruction of his Majesty’s people and -coast-towns”; and they were invited to further conference.[291] - -On the 6th May, exactly a year after the publication of the -proclamation, the ambassadors had a formal conference with Sir Julius -Cæsar, Sir Thomas Parry, Sir Daniel Dunn, Sir Christopher Perkins, -Dr Henry Marten (Advocate-General), and Levinus Muncke, a Fleming, -and “clerk to his Majesty’s Signet.” The English commissioners -began the discussion by justifying the proclamation on the grounds -previously indicated. The Dutch contended for complete freedom of -fishing, resting their case on arguments drawn from the civil law, on -immemorial possession, on the existence of treaties, and on political -considerations. They said the United Provinces had always been in -peaceful possession of free fishing, and that from time immemorial -they had enjoyed complete liberty to fish over the whole sea, both -as a matter of usage and of right. To disturb them by force in the -enjoyment of that right would be unjust. Besides, by the Law of Nations -the boundless and rolling sea was as common to all people as the -air, “which no prince could prohibit.” No prince, they said, could -“challenge further into the sea than he can command with a cannon, -except gulfs within their land from one point to another,”--the first -occasion on which this principle for delimiting territorial waters, -afterwards so celebrated, appears to have been advanced.[292] - -[Illustration: Fig. 7.--_Facsimile of Minute of the Declaration of the -Dutch Envoys as to the range of guns._] - -Besides these more or less abstract arguments, the ambassadors made a -strong case by reason of the treaties in which liberty of fishing was -stipulated. It is noteworthy that they referred to only one of the -treaties with England, the Intercursus Magnus of 1496, while they laid -stress on the treaties with Scotland in 1541, 1550, and especially in -1594, when James himself was on the throne of the northern kingdom -(see p. 81). They further declared that there were reasons of state -which forbade the United Provinces from allowing the free use of the -sea to be disputed. More than 20,000 mariners were maintained by the -herring fishery alone, besides other 40,000 people who gained their -livelihood by making nets, packing the fish, and in other industries -depending upon the fishery. The power and security of the country and -much of its commerce rested on the fishery. As for the complaint that -the decay of English coast-towns was caused by their fishing off the -coast, it was explained that they only fished there for herrings which -were cured on board, and that this industry had been discovered by -themselves, which gave them a prior claim to it. The English were free -to carry on the herring fishery themselves, though, they dexterously -added, it was a business that required much experience, and it would be -a long time before they succeeded, especially as heavy losses sometimes -occurred, which the Dutch were able to bear, since they lived cheaply -and each of the 60,000 people mentioned were “adventurers,” the losses -being thus spread over a great number. They suggested that the English -had given up the fishery because they had found a more comfortable -livelihood in other ways.[293] - -On the other side, the English commissioners argued that by the custom -of nations the king had a right to the whole of the seas around his -coasts; and this right was exercised by other countries, as Spain, -France, Denmark, Sweden, Venice, Genoa, and Russia, and generally by -all maritime states; and it was not opposed to the Roman law or the -teachings of the Civilians. They admitted that the sea was free for -navigation, but denied that it was free for fishing. All the kings of -England since Edgar had the adjoining seas under their jurisdiction, -and had always received “consideration” for the fishing within them. -The commissioners evidently felt that the treaties offered the greatest -difficulty to the policy of James, and they contended that all the -Burgundy treaties had become obsolete for a variety of reasons. The -great treaty of 1496 had lost its effect, inasmuch as a later treaty in -1520 (which, however, dealt with quite other things) did not confirm -it. The treaties, moreover, had been made with the House of Burgundy, -and concerned only the subjects of that house; but there were now no -subjects of the Duke of Burgundy; and the Dutch at least could not -found upon those treaties, because they had themselves broken and -transgressed them. Even if those old treaties could be supposed to be -in force and provided liberty of fishing without license, that could -not mean without the payment of the usual dues, customs, and taxes. -Besides, when the treaties were made the circumstances were different. -The fishing of the Netherlanders was not then so disagreeable to this -country as it was now; then about 100 vessels came to fish, while now -they sent 2000. The king was therefore not bound to tolerate them any -longer. - -The negotiations between the English and Dutch commissioners went -on for a short time, the arguments on either side being elaborated -without much hope of agreement, when an event occurred that brought -them to a sudden end. This was the assassination of King Henry IV. of -France, the head of the Protestant League, which made James anxious -to retain the goodwill and alliance of the Dutch Republic, in view of -his relations with Spain. On 14th May the ambassadors were told by the -Earl of Salisbury that while the king held his right to forbid the -Netherlanders to fish on his coasts to be indubitable, he, “out of his -great love to the Low Countries, would forbear to proceed according to -the proclamation.”[294] At the farewell audience James used very kind -expressions. He made the remarkable but characteristic statement to -the ambassadors that he had issued the proclamation owing to the just -complaints of his subjects, not from the solicitation of courtesans -or courtiers.[295] He assured them of his affection towards them and -the preservation of their state, “which next unto his own he held most -dear above all other respects in the world.” As for the business of the -fishing, he thought it was not fit now to spend more time on it, but to -refer it to some better season, and in the meantime, he said, things -would remain as they were.[296] This termination to the negotiations -was naturally gratifying to the Dutch. Barnevelt and the States-General -had become somewhat anxious as to the issue, and the ambassadors had -been instructed to try to get the matter shelved for a little. Although -James had suspended the operation of the proclamation, however, he -had not withdrawn it. The question was merely postponed to a more -convenient season. - -The failure to carry out the policy of exacting tribute from the Dutch -fishermen was fatal to the scheme of the London merchants to form a -Society of Fishing Merchants. Rainsford wrote to Lord Salisbury in -October 1609 expressing his fears that the Earl disapproved of the -project to raise a great revenue to the king for the fishing in his -seas;[297] and in 1611 he again addressed a memorandum to the Earl, -answering various objections that had been raised to the scheme, and -renewing the offer for farming the tribute. - -The plans to form a national herring fishery founded on taxation of -the Dutch having failed, others were brought forward on the basis -of receiving special privileges and immunities from the crown. -One proceeded so far towards realisation, that in December 1611 a -corporation was formed, consisting of a governor, deputy-governor, a -treasurer, twenty-four “consuls,” with “searchers” (cure-masters), -gaugers, and other officials, in imitation of the Dutch system. The -administration was to be general “for matter of order, and particular -for matter of adventure,” leaving every town at liberty to venture for -itself; and laws and ordinances were drawn up for the central body in -London and the affiliated societies throughout the country. Since the -money necessary was to be found by private individuals, a number of -privileges were asked from the Government. One of these, which made it -lawful for the corporation to carry their fish abroad and to bring back -commodities in exchange, “from all parts wheresoever, notwithstanding -any former privileges to the contrary,” was strenuously opposed by all -the trading companies, and in particular by the Merchant Adventurers, -who objected that it would be most injurious to their great trade in -cloth.[298] This opposition killed the “business of the busses,” as the -fishing project was popularly called. Writing ten years later, Gerard -Malynes, a London merchant and author, who appears to have been one of -the promoters and to have spent both time and money on it, deplored -the failure of this society, which he said was due to the opposition -of the Merchant Adventurers, the Russia Company, and the Eastland -Merchants.[299] - -Within a year or two another project came from an unexpected quarter. -No less a personage than the queen became a suppliant for a royal -patent empowering her to compound with strangers for licenses to -fish on the British coasts. The arguments adduced from the point of -view of benefit to the nation were of the usual kind; but others of -a more or less domestic nature were added, which must have appealed -to the heart of her consort. “It is desired by the Queene,” proceeds -the petition, “that the King’s Majesty will be pleased to graunt unto -her a Pattent of theis fishings under his Majesty’s great Seales of -England and Scotland, whereby her Majesty may have power to graunt -lycense and to compound with these strangers for an yearly revenue to -be paid unto her Majestie for theis fishings.” By this means a great -revenue would be drawn into the country, which would be sufficient to -support and maintain her estate, “and so his Majesty’s coffers will -be spared.” She promised besides that she would give him a full fifth -of the amount she obtained; and another advantage would be that the -king would be “royally invested in possession of his undoubted right, -which,” she naïvely added, “hath never ben yet obtayned by anie of his -royall progenitors.” The petition was brought before the Privy Council, -who decided that the proposal was not feasible, as it depended upon “so -many points of question and circumstance between us and the House of -Burgundy in former times, and the States of the Low Countries and us -for the present.”[300] - -In her petition the queen referred to the proposal to build a number of -busses. While explaining that her project would not prevent the king -or any of his subjects from building busses if they so desired, she -questioned whether that plan would be successful. Some men, indeed, of -great judgment, she said, were of opinion that the king would reap no -benefit at all in that way, for 1000 busses was “the least number that -could be thought to doe any good upon this fishing,” and each would -cost £1000 at least, while £100 a-year would be required for repairs, -and 20,000 men would be needed to man them. - -About this time several works were published giving details as to the -cost and equipment of herring-busses,[301] but little was accomplished. -The net result in 1614 was that one Richard Godsdue, Esquire, of -Bucknam Ferry, in Norfolk, had five busses on the stocks at Yarmouth, -and Sir William Harvey had built a large one at Limehouse. But all the -efforts made in the reign of James, and indeed throughout the whole -century, to form a great national fishery on the model of the Dutch -completely failed. It required nearly two centuries of experience, and -the squandering of vast sums of money, to teach the people that a great -industry could not be suddenly created in this way by servile imitation -of a system not suited to the natural circumstances of the case. It was -chiefly by the gradual evolution of the Scottish herring-boat, and not -by the building of busses, that the herring industry was wrested from -the Dutch. - -James was doubtless privy to the queen’s petition before it was -officially considered,[302] and he appears not to have been satisfied -with the decision of the Council. At all events, the question of the -fisheries was still kept alive. In the spring of 1614 we find Wotton -writing from The Hague to Secretary Winwood, saying that he still had -his Majesty’s commission regarding the fishings, and that it was, as -Winwood said, “a tender and dainty piece,” adding that though he had -seen Mr Barnevelt on several occasions he had not mentioned the matter -to him, and was waiting for a suitable time to speak of this “dainty -and delicate business.”[303] Later in the year, the Keeper of the State -Papers was requested by the Lord Chancellor and the Archbishop of -Canterbury to search the records in his custody relating to the king’s -jurisdiction on the sea and his right to the fishing. “Whereas,” they -said, “there is occasion for his Majesty’s special service to look out -such precedents and records as concern his Majesty’s power, right, and -sovereign jurisdiction of the seas and fishing upon the coast; and -that we are informed there are many of that kind among the records in -your custody, we do hereby require you to make your personal repair -hither to seek out all such precedents and papers as are remaining -there and do any way concern that business,” and to hold them ready for -inspection.[304] - -This search was doubtless in connection with the subject of the -assize-herrings mentioned in the next chapter, but that the queen’s -scheme had been revived is evident from the action of Sir Noel Caron. -As soon as he got wind of it, he wrote hurriedly to the States-General -stating that the king had assigned to the queen for twenty-one years -the revenue to be derived from taxing the herring-busses, and that -no one would be allowed to fish on the coasts of England or Scotland -without her consent.[305] This letter was at once considered by the -Dutch Government. A committee was appointed to look into the treaties -bearing on the question and the instructions which had been given to -the ambassadors in 1610, and to report as to what action should be -taken; but it was finally resolved to await further developments in -England before interfering, and at the beginning of November Caron was -able to announce that the danger had passed.[306] - -At this period there were other disputes with England that caused -apprehension in Holland. One referred to the trade in cloth, and in a -proclamation which prohibited the export of wool[307] James took the -opportunity to extol the commanding situation of the British Isles for -navigation and trade, and to draw a parallel between the commodities of -wool on land and fish in the sea, “which,” he said, “are the Adamants -that draw and govern all other Trade and Merchandizing”--language -which led the Dutch to think the proclamation anent unlicensed fishing -was about to be renewed. Another referred to the whale fishery at -Spitzbergen, which was claimed both by the Dutch and the British, and -was regarded by James as being within his maritime dominion. It led, -as shall be seen, to an interesting contest for _mare clausum_ in the -Arctic Seas. - - - - -CHAPTER V. - -JAMES I.--_continued_. DISPUTES WITH THE DUTCH. - - -It would probably be too flattering to James to suppose that he had -any well-considered plan for extending his authority over the foreign -fishermen frequenting his coasts, or for extracting from them a tribute -for their liberty of fishing. But the existence of the tax of the -assize-herrings in Scotland clearly offered the best means for bringing -that about if it was to be brought about at all. It has been explained -that in the negotiations which followed the issue of the proclamation -of 1609, Sir Noel Caron laid his finger on a weak spot in the English -case, by pointing out that the assize-herring had never been levied on -the native fishermen who fished where the Dutch fished at the North -Isles. The special ambassadors in 1610 also mentioned that their -fishermen had never been asked to pay it, though they naturally did not -lay stress on the point. James resolved that those omissions should be -remedied. In 1610 he granted the assize-herrings to Captain John Mason, -who was employed with two ships of war in that and in the following -year on the coast of Scotland. Mason accordingly made strenuous efforts -to collect the tribute. The fishermen of Fifeshire, who carried on a -herring fishery at Orkney and Shetland, resisted the unaccustomed tax, -and in 1612 raised an action of _absolvitor_ before the Lords of the -Privy Council and gained their case.[308] The Lords of the Council -decided that the “adventure” of the fishermen at the Northern Isles -was of the nature of a merchant voyage, and that the fishermen had -no right to pay any such assize, which had never been craved of them -before.[309] - -Notwithstanding this decision of the Privy Council of Scotland, James -in 1614 again granted the assize-herrings of the North Isles, on this -occasion to the Duke of Lennox, who was his Admiral in Scotland and -one of the chief noblemen of the time. In ordinary course the grant -came before the Privy Council for confirmation, and the Council at once -informed the Convention of Burghs, requesting them to make it known to -the burghs that the Duke of Lennox had obtained a gift from the king of -“ane excyse to be tayne of all heyring to be tayne be north of Buqhan -Nes” (Buchan Ness, Aberdeenshire), so that they might lodge their -defences. The commissioners for Dundee, St Andrews, Dunbar, and the -burghs on the coast of Fife, were accordingly appointed to proceed to -Edinburgh to give reasons to the Council against the “gift.”[310] After -hearing the representatives of the burghs and the agents of the Duke -(one of whom was “Maister Johnne Browne,” the central figure in the -dramatic episode in 1617, referred to later), the Lords of the Council -indited a long letter to the king. They cited the decision in Mason’s -case two years before, and the reasons for it. They expatiated on the -great decay which had occurred in all trades and commerce in Scotland, -and stated that the fishings would also decay if the duty was levied. -In plain words they told the king that the fisheries should rather be -encouraged--for the general welfare of the country, the increase of -customs, the inbringing of bullion, and providing work for the poor. In -face of the decree in Mason’s case, the Duke’s agents had to admit that -they could not levy the tax from the burghs, but they craved leave to -exact them from the native fishermen of Orkney and Shetland, and from -the foreign fishermen who fished there. On the former point the opinion -of the Council was clear. They upheld the contention of the burghs that -the native fishermen were only their servants, since they paid wages to -them for their labour, and that the herrings, being cured and barrelled -on the sea, were exempt from assize duty, which could be exacted only -on herrings brought fresh and “green” to land.[311] The Council evaded -giving an opinion on the point of chief importance, the proposal to -levy the tax on the foreign fishermen, all of whom cured their fish on -board their vessels. There were, they said, according to information -supplied by the burghs, “some strangers, especially of Holland,” who -claimed the liberty and privilege of fishing “by his Majesty’s patent -granted in their favour to fish in his Majesty’s waters”; but the -tenour of this patent was obscure and not known to them, and they had -no record of it. They suggested that the king should ask his ambassador -at The Hague to procure an authentic copy of it, to be sent to Scotland -for inspection and consideration.[312] - -Evidently the Council in Scotland were at this time as cautious as the -Council in England in doing anything contrary to the treaties with the -Netherlands. Had they sanctioned offhand the request of the Duke to -exact the assize-herrings from the Hollanders, they would have taken -the responsibility, without direct authority from the king, of an act -which they knew might have serious consequences. They had no sympathy -with the foreign fishermen, for complaints regarding them from the -burghs were frequent. In 1611 the city of Edinburgh represented to them -the “inconvenience” which was sustained by the whole realm and by the -merchants in particular through the non-observance of the Act of 1581, -“anent the comming of schippis to burrowis in the west and north Isles -be Flemings and uther nations”; and in the following year the “mater -of the fischeing of the Flemins in the West and North Isles” was again -brought up, and it was remitted to the burghs of Edinburgh and Dundee -to draw up a supplication to the Privy Council to have the fishing by -the Flemings in those places repressed.[313] - -In view of the decision of the Privy Council, the Duke of Lennox did -not at this time attempt to collect the tribute from the foreign -fishermen at the North Isles. But two years later the political -relations between this country and the Netherlands having become -strained, the opportunity was seized to raise once more the question of -the fishery and the exaction of the assize-herrings. Serious disputes -involving retaliatory measures had broken out respecting the trade in -cloth. In England strong resentment was aroused by an edict of the -States prohibiting the importation of English dyed cloth. Winwood, now -Secretary of State, wrote to Sir Dudley Carleton, who had taken his -place at The Hague, that it was the opinion of “every true-hearted -Englishman” that the king “ought to forbid all manner of intercourse -between the Kingdoms and the United Provinces, and forbid the -Hollanders, by a fresh reviving of former proclamations, to continue -their yearly fishing upon our coasts.”[314] The influence of this -feeling was soon apparent. The Duke of Lennox was now instructed by the -king to levy the assize-herrings from foreigners fishing at the North -Isles, the grant, under the great seal of Scotland, being dated in June -1616; and to render his task more easy he obtained from Sir Noel Caron -in the same month a letter of recommendation (“aanbevelingsbrief”) to -the captains of the Dutch convoying-ships. This letter was innocently -given by Caron in the belief that it concerned the payment of dues on -land at Shetland, which the busses had been accustomed to pay, and -which were then payable to the Duke,[315] but it was made use of by the -Duke’s agent to cover the collection of the assize-herrings. The duty -of collecting the tax was assigned to Mr John Brown, one of the Duke’s -deputies. The detailed instructions he received in 1616 do not appear -to have been preserved, but they were probably similar to those issued -a year or two later (see Appendix G). He was to proceed to the North -Isles in one of the king’s pinnaces and there to demand the assize duty -from the foreign fishermen. - -At the end of July 1616 Brown, in one of the king’s vessels, appeared -among the Dutch busses at work off the Scottish coast, and began to -carry out his instructions, offering a “quittance or receipt” for the -tax claimed. Probably to his surprise, it was peaceably paid by the -busses, amounting for each to one angel or a barrel of herrings and -twelve cod-fish. The fishermen were told that if they did not pay it -the amount would be doubled in the following year; and that the king -had a right to levy this tax for a distance of 100 miles from the coast -in virtue of the agreement made with the States at the baptism of -Prince Henry.[316] Although the toll was paid by most of the busses, it -was without the consent of the captains of the convoying men-of-war. -They came to Brown and demanded to see his commission; and it is said -that he showed them the letter which the Duke of Lennox had obtained -from Sir Noel Caron. Since no force had been used in collecting the -tax, the States’ officers contented themselves with forbidding any -further proceedings, and Brown then departed.[317] - -The success of the mission was gratifying to James, and the payment -willingly made on this occasion by the Dutch fishermen was often -afterwards cited as an argument that they had acknowledged the king’s -rights in the fishery. In the United Provinces the matter was naturally -viewed in another light. The Dutch officers promptly reported the -occurrence to the directors of the Enkhuisen branch of the fishery; the -authorities of the town complained to Barnevelt in energetic terms, -and the matter was brought before a meeting of the States-General, who -characterised the proceeding of Brown as an “unheard of and intolerable -innovation, contrary to the existing treaties,” and instructed their -ambassador in London to make a strong protest against it. Orders were, -moreover, issued to the commanders of the convoying ships of war to -put a stop to any further payments, and even to refuse to give their -names. Caron, who was indignant at the use to which his friendly letter -had been put, complained to the king and to the Duke of Lennox. James -explained that it was merely a small tribute or tax which was levied -in Scotland on all foreign fishermen, and even on his own subjects, -and had been leased to the Duke of Lennox, who paid an annual rent for -it into the Exchequer. He had, he said, arranged that one of his ships -of war should be stationed on the fishing-ground for the security of -the fishermen and to protect them from pirates. Caron declared that -their High Mightinesses were exempt from all imposts or taxes for their -fishery, both by the treaties “and otherwise,” and he begged the king -to give other instructions, as the matter had occasioned great disquiet -and alarm in Holland. Lennox also tried to minimise the importance of -the measure. It was, he said, a small matter; a mere “acknowledgment” -of a barrel of herrings or ten shillings from each buss, which had to -be paid thrice a year by all the king’s subjects who fished at the -North Isles, and was willingly paid by the English, French, German, -and all other foreign fishermen. The ambassador says he was shown a -printed book in which it was stated that the Scottish Parliament had -decreed that the assize-herrings should be paid not only by the native -fishermen but by foreigners who came to fish on their coasts.[318] The -latter were furthermore prohibited from approaching the coast nearer -than they could see the land from the top of their masts, whereas of -late they came within ten, eight, six, and even four miles of the -shore, which had caused much murmuring in the country, particularly as -in that year between 1500 and 1000 of their busses were there in June. -Sir Noel Caron, however, continued to protest against what he said was -an unjust innovation, and he closed the interview with the important -declaration that, be the consequences what they might, the States -would not allow a single herring to be paid in future, as it might be -regarded as a precedent for further demands.[319] - -Notwithstanding this strong protest from the Dutch ambassador, and a -request he made to the king to forbear the right he claimed pending -the appointment of a special embassy to treat of the matter, Brown was -again sent to the North Isles in the next year to collect the king’s -dues from the herring fishers. This he attempted to do as quietly -and inoffensively as possible, but his mission had an abrupt and -dramatic termination. Immediately on his arrival among the busses, -Captain Andrees Tlieff, the commander of one of the convoying ships -from Rotterdam, formally refused the payment in the name of all the -Netherland fishermen, handing to Brown a declaration to that effect -in writing. Brown professed himself satisfied, and was about to leave -Tlieff’s vessel to proceed, as he said, among the fishermen of other -countries, when the captain of the convoyer from Enkhuisen, Jan -Albertsz by name, who had spoken to Brown in the previous year, came on -board. He asked Brown if he was the person who had levied the tax in -the year before, and on receiving a reply in the affirmative he at once -arrested him, saying he had orders to that effect; and notwithstanding -Brown’s warning as to the consequences, and the exhibition of his -commission, he was made prisoner by the irate Dutchman and carried off -to Holland. Whether the king’s pinnace had on this occasion, as two -years later, more than “two small guns and ten muscattis” to represent -the power and majesty of the British navy, does not appear. But Brown, -meek and peaceful, was seemingly quite contented with his position. He -wrote from the Dutch ship to Captain Murray, in charge of the king’s -pinnace, telling him of his arrest and advising him to make no attempt -at rescue, but to return to Scotland and report the matter to the -king.[320] - -James received the news of the capture of Brown at Dumfries while on a -visit to Scotland. He felt that the arrest of an officer of the state, -discharging business of the state and with his Admiral’s commission in -his pocket, was an “insolent” personal affront to himself. The members -of the Privy Council who were with him--and the Duke of Lennox was -one of them--immediately wrote to the Council in London requesting -them in the name of the king to arrest the masters of two or three -Dutch ships in the Thames by way of reprisal, and to retain them as -hostages; to inform Sir Noel Caron that reparation must be made by the -States; and to instruct the British ambassador at The Hague to “demand -satisfaction from them for this insolence offered to his Majesty.” -Winwood at once sent for Caron, and informed him of the “disgraceful -affront” which had been put upon the king while his Majesty himself was -in Scotland. The king, he said, was very sensible of their “injurious -and scornful carriage,” and immediate satisfaction and redress were -demanded. Sir Dudley Carleton used even stronger language in addressing -the States-General at The Hague. What, he asked, would the world say -when they knew that a public officer and Minister of the King of -England had been seized by them in Scotland, in sight of the ships of -other nations and while the king himself was in that country? That the -outrage was committed by the orders of the States he did not believe; -but the captains pretended they had a commission for what they did, and -produced certain letters patent containing, as they said, an express -commission from their masters. The ambassador concluded by requiring -instant reparation and satisfaction.[321] - -Meanwhile Brown himself had, perhaps, little cause for regret. He -spent two days on board the Dutch man-of-war, and was then landed -at Enkhuisen. The authorities of the town at once perceived the -rashness of the step that had been taken by Captain Albertsz. Brown -was immediately liberated, treated with the greatest courtesy, and -conducted by one of the chief magistrates, with profuse apologies, to -the British ambassador at The Hague. All his expenses were defrayed; he -was presented with seventy “double Jacobus pieces” as a personal gift, -and he left for home on 13th September. Count Maurice and Barnevelt -promptly disavowed the act of Albertsz, and when the matter was brought -before the States-General by Carleton, it fell to the lot of Grotius, -in the absence of Barnevelt, to express the regret of the assembly for -the “accident,” and to request the British ambassador to put the case -in writing for inquiry. In their reply later, the States-General threw -the whole blame on the captains, Albertsz and Tlieff, who had, they -said, acted without authority, and would be punished on their return -from the fishing. They renewed their regrets, said that Brown had been -immediately released, and begged that the Dutch merchant captains -who had been thrown into prison in England and Scotland might be set -free, and their “ancient accustomed liberty of fishing maintained.” In -preferring this request the States relied on their treaty with James in -1594, and the gracious answer he had given to their ambassadors in 1610 -concerning the proclamation of the year before.[322] - -If the States-General thought they were to get so easily out of the -awkward position in which the precipitate action of their officers had -placed them, they were disappointed. James not only refused to release -the Dutch ships, but said their masters would be detained in prison -until the offending commanders had been sent as prisoners to England, -there to receive such justice as their case merited. This request was -most unpalatable to the States, and they raised various objections to -it, founded both on law and privilege; and although they were assured -by Carleton that the only punishment the offenders would receive would -be “the crossing and re-crossing the seas,” they begged that some -other means might be found of settling the matter. James, however, who -had submitted the case to counsel as to the legality of his demand, -remained obdurate.[323] Finally, after much negotiation and debate, the -States, in February 1618, resolved to send over the two captains to -receive the personal rebuke of the king. Albertsz, the chief offender, -fell ill and died, but Tlieff did actually come to England in April. -Notwithstanding letters of recommendation from the States-General, Sir -Noel Caron, and Sir Dudley Carleton (with whom Grotius had interceded), -he was “very wrathfully” received by James, who scolded and rebuked -him severely for the enormity of his offence, and then dismissed -him without further punishment.[324] Thus ended an incident in the -claims to _mare clausum_ which almost led to a rupture between the two -countries. - -It would appear that James, though thus foiled in his attempt to -levy the assize-herrings from the Hollander fishermen in 1617, -did not intend to let the matter rest in the following season, -and circumstances occurred which brought up the question of the -“land-kenning” in another quarter. Early in 1618 the King of Denmark -complained to him that Scottish fishermen were in the habit of fishing -“within the waters of Faeröe,” which was part of the dominions of -Denmark, and that the native fishermen had been so much injured by -their encroachments that they were unable to pay their dues and taxes. -Here was a complaint against Scottish fishermen like that which they -so commonly made against the Dutch. The complaint was brought before -the Privy Council of Scotland, who summoned the burghs concerned[325] -to appear and explain their conduct. They admitted that for some -years they had gone to the Faeröe Isles to fish, but they said that -they had been “driven thereto upon necessity, and by the violence -and oppression of the Hollanders, who came yearly with two thousand -sail and above within his Majesty’s waters, and within a mile of the -‘continent’ of Orkney and Shetland, and not contented with the benefit -that the liberty of their fishing within the said bounds affords -yearly unto them, they do very heavily oppress his Majesty’s poor -subjects and fishers.” They said that the Hollanders “stoppis thame, -houndis and chaisis thame frome thair fischeing, cuttis thair nettis, -threatnis thair lyveis, and thairby compellis thame, who ar a nomber -of poore people haveing no other trade quhairby to manteene thair -families, to seeke thair fischeing elsquhair and far frome thair awne -coist, with grite tormoyll, travell, trouble, and chargeis.”[326] The -Lords of the Council, however, held that the oppression committed -by the Hollanders on them was no warrant for their oppressing the -subjects of other princes, and “that they ought not to have fished in -the said waters without some license and oversight.” A proclamation -was thereupon issued by the king and Council forbidding Scottish -fishermen “to fish within sight of the land of the Isle of Faeröe, -but to reserve the [fishings there[327]] to the inhabitants of the -said Isle, and to other” subjects of the King of Denmark, “conform -to the law of nations,” under a penalty of confiscation of the -ships, vessels, and goods of the persons offending. At the same time -the Council wrote to the king acquainting him with the oppressions -committed by the Hollanders on the Scottish fishermen, and suggesting -that his ambassador at The Hague should demand reparation and “instant -prohibition” by the States to their people, “that they fish not within -sight of his Majesty’s land, but reserve these bounds to his Majesty’s -own subjects, conform to the law of nations.”[328] - -Sir Dudley Carleton accordingly made a strong representation to the -States-General on the subject in April. They asked for particulars as -to the persons who were alleged to have been ill-treated in Scotland, -and the nature of the wrongs done to them; while with respect to the -limit proposed to be set them in their fishery--namely, not to come -within sight of land--they said they had never heard of any such -custom, and did not understand how it could be put into practice.[329] -On reporting this home, Carleton was told by the king to raise the -question of the fishing again before he came away, and he explained to -him that the custom of the land-kenning was that no stranger should -fish either within the creeks of the land or within a kenning of the -land, “as seamen do take a kenning.” He asked Carleton to ascertain -whether the Dutch claimed to fish wherever they liked, or were willing -to accept reasonable bounds, adding that the resolution that might be -taken on the subject would depend largely on this.[330] A few months -before this Carleton had brought similar complaints to the notice of -the States-General, declaring that the Hollanders were daily guilty of -“great outrages and insolencies on the Scottish fishermen.” It was even -said to be the opinion in London that the prosecution of the herring -fishery by the Dutch under the protection of ships of war was a direct -challenge to and defiance of the king.[331] - -The authorities in Scotland lost no time in preparing statements -recounting in detail the outrages and insolences committed by the -Dutch fishermen; but an impartial perusal of the complaints leaves -little doubt that they were greatly exaggerated. The Dutch fishermen -were accused of going ashore in large numbers and chasing, taking, and -slaying sheep; they “intromitted” with growing timber, trod down all -the corn they could find, induced the best and ablest of the native -fishermen to join them, or even took them by force; entered the kirks, -where they broke down the seats and polluted the pulpits; carved their -names on the green pastures; took uninvited rides on the horses in -the fields, “to the great hurt of the owners”; and made free with the -eggs and young of seafowl on the uninhabited isles, to the hurt of -the proprietors. In the long catalogue of their supposed outrages on -land, two were more important. It was alleged that they gave refuge to -thieves and malefactors, so that justice could not reach them; and that -some years before they seized an honest young woman who was selling -stockings among them and held her head-downwards on an eminence in -sight of the whole fleet, owing to which she died later. Among their -offences at sea they were charged with shooting at native fishermen, -“catching of their small netts and lynes within those huge long netts” -that they used, and which they laid hard by the shore, “whereas before -they approached not nearer the coasts than fourty (_sic_) myles.” -By fishing near the shore they had impoverished the whole trade of -fishing; before they began to do so the herrings came close in, so that -the poorest fisherman could enrich himself, while the shoals were now -broken up and dispersed. So near did the busses come in stormy weather -that they fished “hard by gentlemen’s doors,” where the fishing was -“appropriate to the owners of the land nearest adjacent for their own -fishing in the time of storms when they could not go to sea for the -entertaining of their houses.”[332] - -Since the States-General appeared to be tardy in admitting the offences -with which their fishermen were charged, the king wished strong -measures to be taken by the Council in Scotland, and he instructed -Lord Binning, his Secretary there, to take steps “for interrupting and -staying the Hollanders to fish in his seas within sight of the land.” -The Council, however, pointed out in a very humble tone that inasmuch -as it was a matter which concerned not only “thir Hollanders, who ar -your Maiesties confederatis, pretending thair awne interes thairin, -ather be right or lang possessioun,” but also the whole of the kingdom, -it would be better if the king’s proposals were first imparted to the -Privy Council in England. They requested, further, that the ambassador -in Holland should again expostulate with the States as to the injuries -caused to the king’s subjects by their “unjust usurpation to fish -within sight of his Majesty’s land,” and to urge them to issue a -proclamation to prohibit, under heavy penalties, their people from all -further fishing within his Majesty’s seas, which, they said, ought by -the Law of Nations to be exclusively reserved for his own subjects. -They advised the king to make the States clearly understand that if -they continued any longer in their “oppression,” he would so provide -for the maintenance of his right and the freeing of his people as his -honour and justice required; and if the answer was not satisfactory he -might then resolve upon the “next expedient,” and the Council would be -ready to obey whatever he should command.[333] - -The States-General, while they did not go so far as the Council -desired in prohibiting their fishermen from approaching near to the -land, did all that they reasonably could do to prevent injuries being -committed on the Scottish people. After an inquiry was made among those -taking part in the great herring fishery, without any evidence being -forthcoming in support of the Scottish complaints, they published -an edict forbidding their subjects, under pain of severe punishment -“as pirates and malefactors,” from interfering with the Scottish -fishermen, with whom they were enjoined to maintain “true friendship, -neighbourliness, and good correspondence.”[334] In forwarding a copy -of this proclamation to the king, the States said that they had issued -it for his satisfaction, and had given strict orders to their captains -to apprehend any one who acted contrary to it. But they expressed the -hope that he would not permit the fishermen of the United Provinces to -be disturbed or troubled in the liberty and freedom of taking herrings -throughout the whole sea, of which liberty they were in immemorial -possession, and it had been confirmed to them by several treaties, in -particular by that made in 1551 between the king’s predecessor and -Charles V. The prosperity of their country, it was added, depended on -navigation, traffic, and fisheries, and the freedom of these had been -provided for in treaties.[335] James, however, was far from satisfied. -He sent on the missive to the Privy Council in Scotland, with the -request that the rolls and registers should be searched to see if any -record existed of any such treaty, whether “with the said Emperor or -any other potentate of the Low Countries.” The States, he said, had -promised to send a copy of it, but they had not done so, and in the -meantime he would cause the rolls in London to be searched.[336] - -The negotiations with the States-General dragged on throughout the -summer without much result, and in August James took the sudden -resolution again to demand from the Dutch fishermen the payment of the -assize-herrings. This was doubtless caused by the receipt of a letter -from Sir Dudley Carleton, informing him that the herring-fishers had -gone that year to the coast of Scotland with extraordinary convoy, the -number of their men-of-war having been doubled, and expressing the -hope that notwithstanding this the king would send some one to make -the usual demand in a peaceable manner; otherwise, said Carleton, the -Hollanders “will think his Majesty has laid aside his pretension.”[337] -James accordingly wrote hurriedly to the Council at Edinburgh, saying -it was necessary to make requisition of his duties from the Hollanders -fishing on the coasts of Orkney and Shetland, in order both to keep -possession of the fishing and to foil any plea from the States-General -that no such duties had been demanded of them. He had intended, he -said, to send a ship of war, but those which were ready were otherwise -engaged, and there would not be time to equip a vessel in England -before the Hollanders returned from the fishing. The Council were -therefore instructed to fit out with all expedition either his own -pinnace or any other ship which could conveniently be procured, and to -send it to the North Isles with such person as the deputy of the Duke -of Lennox should choose, who was to be instructed “in fair tearmes and -calme and peciable maner to crave oure said dewties, and accept of any -suche answer as they sall gif him, without making any furder questioun -or dispute in the mater.”[338] Here was another Brown mission over -again; but James forgot, if indeed he ever knew, that at that time of -year the Dutch herring fishermen would be very far from the North -Isles, and fishing along the English coast.[339] The fact was well -known at Edinburgh, but, for whatever reason, it was not pointed out -to the king; and the Council, urged to use “exceeding great haste,” -chartered a Leith vessel, the _Restore_, put Mr Patrick Bruce on board -to demand the tax from the Hollanders, along with a notary “to give -instruments thereupon,” and despatched it on its bootless errand to the -Shetlands. No Hollanders could be discovered, and the _Restore_ came -back to Leith. - -The reason of the king’s action, as well as of Carleton’s advice, is -doubtless to be sought in the desire to strengthen the case against -the Dutch in view of an expected special embassy from The Hague, whose -appointment was now mooted, and which was designed to settle various -differences between the two countries that had become acute. Besides -the herring fishery, which was a never-failing subject of dispute, -there was the trade in cloth, the East Indies, and the “Greenland” -whale fishery, about which it is necessary to say something here. - -Allusion has already been made to this phase of the controversy -respecting _mare clausum_ which sprang up in the Arctic seas, and was -now mixed up with the question of the liberty of fishing on the British -coasts. Towards the end of the previous century English whalers, -for the most part in the service of the Russia or Muscovy Company, -frequented the coasts of Greenland, and the northern seas which had -been opened up to English enterprise by the voyages of Willoughby and -Chancellor;[340] and early in the next century they also began to catch -whales at Spitzbergen, where they were found in enormous numbers.[341] -The whalers of other nations followed in their wake, and in 1612 two -Dutch vessels arrived at Spitzbergen to take part in the fishery, and -although from their ignorance of the methods they failed of success -that year, a company (_Noordsche Compagnie_) was formed at Amsterdam -to continue the venture under better conditions.[342] The Muscovy -Company, whose whalers in 1612 got within nine degrees of the North -Pole, sighting 700 whales and bringing back 17,[343] became jealous -of competitors. In 1613 they procured from King James a charter by -which they were entitled to exclude all others, foreigners as well as -subjects, from sailing to Spitzbergen; and in that year they dispatched -thither a fleet of seven armed vessels to defend their rights by force -as well as to catch whales.[344] In the seas at Spitzbergen they -found a number of other whalers from Spain and France, as well as two -Dutch ships which had returned to the fishery. The English vessels -immediately attacked them, and drove most of the intruders away.[345] -The Englishmen then set up a cross on the shore with the king’s arms on -it, and they called the land “King James’s Newland.” It is noteworthy -as indicating the attitude and practice towards France throughout -almost the whole of the disputes about _mare clausum_, that the French -whalers were allowed to continue their operations, subject, however, to -the payment of a tribute of whales or train-oil, while the two Dutch -ships were despoiled of their catches and fishing-gear and were sent -home empty. On their arrival at Amsterdam the ill-treatment to which -they had been subjected was naturally resented, and representations -to King James were made through the ordinary channels, but without -success. The Dutch founded their case partly on the general principle -“that according to the practice of all times and peoples, navigation, -fishery, and the use of the shore were free and common to all,” and -partly on the claim of prior discovery. Spitzbergen, they said, was -discovered by Jakob van Heemskerk, a Dutchman, in 1596; they had -therefore at least as good a right as the English or any other nation -to the fisheries there. On the other hand, the powerful Muscovy -Company argued that Spitzbergen was discovered by Willoughby in 1553, -and accordingly belonged to England; and the king adopted this view, -notwithstanding the elaborate case drawn up by the famous cosmographer, -Plancius, on the other side, which was submitted to him.[346] The seas -around Spitzbergen were held to pertain to the British seas, and to -be under the maritime dominion of the King of England,--a claim which -Selden attempted to vindicate later. - -[Illustration: Fig. 8.--_Dutch Whalers at Spitzbergen_. After Van der -Meulen.] - -Having failed by diplomacy to obtain recognition of what they believed -to be their plain rights, the States resolved to oppose force by -force. Early in 1614 a new Dutch company was formed, and exclusive -privileges were conferred on it “to navigate, trade, and fish, from the -Netherlands on or to the coasts of the lands between Nova Zembla and -Davis’ Straits,” including therefore Greenland and Spitzbergen.[347] -A tax of “last-money” was established, and in the same year eighteen -Dutch whalers, armed, and convoyed by three States’ men-of-war, left -Holland for the Arctic seas, prepared to maintain their right to -freedom of fishery by fighting for it if necessary. The English whalers -did not venture to attack so powerful a squadron, and as the Hollanders -came in 1615 and 1616 in even greater force, they were for these three -years enabled to carry on their whale-fishing without molestation. -In 1617, however, their convoyers having been reduced in numbers, -they were again assailed by the English; one of the Dutch vessels was -despoiled, and their “cookeries,” or the buildings on shore in which -the oil was made, were destroyed. Then in 1618 the Dutch reappeared, -and in strength sufficient not only to maintain the right they claimed, -but to make reprisals. They attacked, despoiled, and drove off thirteen -English ships, most of which returned to England empty, and the Muscovy -Company were loud in their complaints to the king. They put their loss -at £66,436, 15s., besides the spoiling of the ships and the killing of -the men.[348] - -At this time, as we have seen, James was pressing more than ever for -the recognition of his claims to the herring fishery in the British -seas, and it may be easily imagined how he was moved by the news of -this fresh “outrage” at Spitzbergen. At a meeting of the States-General -in October, the British ambassador used strong language in -animadverting on these “violencies, robberies, and murders” committed -by the Dutch on the king’s subjects in the Arctic seas, on the injuries -inflicted on the English in the East Indies, and on other matters in -dispute; and he demanded that the embassy so repeatedly promised by -the States should be sent to England without any further delay. The -embassy in question had been originally proposed by the Dutch with the -view of arranging the differences as to the trade in cloth and the -herring fishery. Their diplomacy through the ordinary channels had, -however, been so successful in preserving their freedom of fishing, -notwithstanding the harassing efforts of the king, whom they invariably -foiled, that they preferred to procrastinate, and the proposed embassy -had from time to time been put off. But now the minatory demands of -Sir Dudley Carleton were reinforced by the insistence of the Dutch -East India Company, for it had been proposed in England to arrest the -vessels of that company in the Channel in reprisal for the wrongs done -to the English in the East Indies, and one of their ships had just -narrowly escaped capture.[349] - -The Dutch ambassadors arrived in England on 27th November;[350] -but notwithstanding the earnest exhortations of Carleton, their -instructions were confined to the “Greenland” (Spitzbergen) and East -Indian questions, and did not contain what the king most desired--full -powers to treat on the herring fishery. - -James had been looking forward to this embassy as providing an -opportunity for the final settlement of the fishery dispute. Sir -Dudley Carleton had informed the States-General that the king wished -to go into the matter of the treaties on which their claim to liberty -of fishing was in great measure based, adding jesuitically that it -was probably with the view of confirming them. The king in reality -felt that owing to the dissensions in the Low Countries and the -general political state of Europe, the time was specially opportune -for negotiating a treaty in his favour.[351] He had accordingly made -considerable preparations to meet their arguments both with reference -to the treaties and the Law of Nations. Early in November he wrote -to the Council at Edinburgh, saying that the wrongs suffered by his -Scottish subjects from the fishing of the Hollanders in the seas of -Scotland had caused him to bring the matter before the States, and -to acquaint them of his “resolution to have them duly repaired.” The -States had signified their desire to have their rights and the actions -of their subjects “orderly tried and determined,” and they were -therefore about to send over commissioners “sufficiently authorised” -for that purpose. As commissioners to meet them, he had chosen the -Duke of Lennox, the Marquis of Hamilton, Lord Binning (Secretary), -and Sir George Hay (Clerk of Register), and he asked the Council to -expedite the issue of their commission under the great seal. He also -desired them to send him, in writing, the most perfect information -they could procure as to his right to exclude the States from their -pretended right or alleged possession of the herring-fishing, with -full particulars of the wrongs committed by the Dutch on the Scottish -people, either by scattering the shoals of herrings or by “usurpation -of farder libertie to themselves nor hes bene formerlie granted or -tolerated be us or our prediceesoris to them.”[352] - -The commissioners named were accordingly authorised to treat with -the Dutch commissioners “anent the trial and verification of the -rights, immunities, and privileges alleged to have been granted by -his Majesty or any of his most noble progenitors, Kings of Scotland, -to the said States-General of the United Provinces, or any others -from whom they deduce and derive their claim to fish in the seas of -the said kingdom of Scotland, or any part or place thereof.” They -were further instructed to treat as to the redress required for the -injuries committed by the Dutch fishermen, and for preventing in -future any unlawful proceeding by the States, “either by fishing in -his Majesty’s Scottish seas” or by doing wrong to the inhabitants. -They were, moreover, “to concur” with the English commissioners to be -appointed as to the “friendly behaviour” of British subjects and the -subjects of the United Provinces in all other seas, fishings, voyages, -and other foreign intercourse, necessary for the continuance of peace -and amity.[353] The business of the herring fishery was thus placed in -charge of the Scottish commissioners, while the English had specially -to deal with the other subjects in dispute--the East Indian trade, the -whale fishery, the coinage, and the trade in cloth. Towards the end of -November Lord Binning informed the king that the Council had sent off -the commission, together with a statement of the injury sustained by -the whole kingdom by the daily increase of the Dutch usurpation in his -seas.[354] - -With regard to the other matter about which James had desired “the most -perfect information,”--his right to exclude foreigners from fishing on -his coasts,--the Council had the greatest difficulty in discovering -anything whatever pertaining to it. It was the most important part of -the question to come before the commissioners, because the States had -already issued a strongly-worded edict forbidding their people from -committing any wrongs upon the Scottish people (p. 179), and the king -could scarcely make out a just case for prohibiting the Hollanders from -fishing on this ground alone. He desired to show, what he no doubt -fully believed, that his claims were supported by historical precedents -and the laws of Scotland, and that none of the treaties on which the -Dutch always relied in such negotiations were contrary to his claims. -In his letter to the Council he therefore repeated the request that the -public records should be searched, and desired that Lords Lauderdale -and Balmerino, the Laird of Lundy, and others into whose hands -such documents might have come, “from their ancestors, Chancellors, -secretaries, clerks of register, ambassadors, or councillors of state,” -should try to find any which bore upon the matter, and to have them -forwarded to him without delay. The terms of the king’s letter show -plainly enough the confusion and imperfection of the Scottish state -records at that time; and the Lords of the Council sought high and -low to discover copies of the treaties or any other official papers -relating to the subject, but for a long time without any success. -Copies of some of the treaties were afterwards found, but nothing -to establish the king’s right to exclude the Hollanders from the -fishery. In these circumstances the Council advised the commissioners -“to proceed warily,” and to make the Dutch ambassadors produce what -they had to show for their claim to the fishing, and then to answer -that.[355] - -But as things turned out, it was of no immediate importance whether -or not the Scottish commissioners were armed with documentary proofs -of the king’s claims to the fishery. The Dutch ambassadors, as has -been said, came without any powers to treat on that subject. In their -private instructions, indeed, they were enjoined to avoid carefully any -discussion about the herring fishery. If it was forced upon them, they -were to point out that the States had already issued a proclamation -to prevent wrongs being done to Scottish fishermen, which would be -strictly enforced. If this was not sufficient, they were to fall back -on general arguments as to the natural freedom of the sea, their -immemorial possession of the fishery and its paramount importance to -their country, and to plead for delay on account of the confusion and -difficulties of their home affairs. - -On their arrival in London they were met by two high Scottish -personages, who had been awaiting their coming for some weeks. They -took this for a bad sign, concluding from it that the king was resolved -to raise the fishery question. They had several interviews with the -Council and the king. On finding that their instructions limited -them to the discussion of the two points on which there was least -anxiety in England, the East India business and the whale-fishing, the -Council received them coldly, Bacon indeed rating them soundly for -coming without adequate powers. James himself was very angry, and made -no effort to conceal his disappointment. He expressed astonishment -that after all the complaints that had been made, and after all the -negotiations that had gone on through the ambassadors at London and The -Hague, they had ventured to come unprepared to deal with the principal -matter in dispute. “The fishing,” he told them, “on the coasts of -England, Scotland, and Ireland, as a regality and point of sovereignty, -was possessed by him alone, to the exclusion of all others.” Spain, -he said, had asked leave to negotiate about freedom of fishing, while -France enjoyed the privilege only under great limitations, a few small -vessels being allowed to fish for the use of the Court and the king’s -family.[356] How little becoming was it therefore, continued James -with heat, that a Republic which had only been recognised for a few -years should be the first to contest his sovereign rights! It was -useless for them to plead unprofitable years and immemorial possession. -He was king of the greatest islands in the world, and he knew very -well the rights he had on the coasts of his three kingdoms.[357] He -further informed them that he was bound by oath at his coronation to -maintain the rights, liberties, and privileges of his crown, and that -he would rather lose all that he had than give up his right to the -fishings.[358] Declarations equally strong were expressed in despatches -to the British ambassador at The Hague. The king, it was said, would -not be taught the laws of nations “by them nor their Grotius.”[2] It -would be to their advantage to ask the king’s leave for the fishing -and to acknowledge his right as other princes had done, or it might -well come to pass “that they that will needs bear all the world before -them with their _Mare Liberum_, may soon come to have neither _Terram -et solum_ nor _Rempublicam Liberam_,”--phrases which lead one to think -that James penned the missive himself.[359] The Council intimated to -the ambassadors that the king declined to discuss only the two points -mentioned in their instructions, and that they must get powers from the -States-General to deal with the question of the herring fishery. - -Language of this kind from the king and Council disturbed and perplexed -the envoys. They were anxious that the friendly relations between the -two countries should be strengthened, and yet it appeared not unlikely -that they would have to return home without having been heard on any -of the matters in dispute. They began to think that after all it would -be better if the fishery question were taken up and settled, and they -advised the States-General in that sense. The British ambassador at The -Hague was using pressure with the same object. But the Prince of Orange -told him that in his opinion the States of Holland would refuse to -give authority for the fishery question to be opened, “for fear of the -people,” because the livelihood of 50,000 of the inhabitants of that -province depended on the herring-fishing, and they feared that the same -thing would happen with the tribute the king claimed as had happened -with the dues at the Sound, which had been gradually raised until they -had become an intolerable burden. He threw out the suggestion at the -same time that perhaps the freedom of fishing might be purchased by a -lump sum. A little later Carleton proposed to the States-General that -the three subjects omitted from the ambassadors’ instructions should -also be brought into the negotiations--viz., the trade in cloth, the -coinage, and especially the herring fishery. In a minatory speech he -declared that the king, who had “a legitimate title and the exclusive -sovereign right and propriety to the fishery on the coasts of his -three kingdoms,” would not any longer permit the subjects of the -United Provinces to encroach on his rights, which were recognised by -all other princes and states. The condition of affairs, he said, had -been brought to extremities by the extravagant discourses of one of -their politicians and the violent conduct of the commanders of their -ships.[360] Sweeping aside the treaties and the claim to immemorial -possession, and using much the same language as the king had done as -to the hardihood of a young republic flouting the sovereign rights of -princes, he ended a long harangue by declaring that if there was any -further delay in dealing with the fishery question, England would take -measures to provide for her rights by force of arms, “for such,” he -said, “was the demand of the people, the advice of the Council, and the -resolution of the king.” - -But all those strong speeches and brave words came to nothing. The -leaders in the States knew the character and difficulties of James, -and felt that the warlike threats of a monarch whose greatest desire -was that he should be known as _Rex pacificus_[361] were not likely to -be carried to the extremity of the sword. A little more delay brought -about a change in the English attitude. In the Privy Council there were -signs of wavering and evident hesitation to recommend extreme measures -against an allied and Protestant state. In the political condition -of Europe--troubles in Bohemia, the King of Spain threatening the -overthrow of Venice, &c.--it was urged that harsh measures might drive -the Dutch to have recourse to France, which supported Barnevelt, the -king’s enemy. Above all, it was feared that the Protestants throughout -the world would be unable to understand how the king could attack the -Dutch at that critical time over so small a matter. On the whole, “for -the sake of the peace of Christendom,” it might be better to “continue” -the question to another time, and thus avoid an immediate rupture. The -faltering in the Council coincided with a humbler tone on the part of -the Dutch ambassadors. They strove to convince James that it was by -no means the desire of the States to refuse to treat of the fishery, -or absolutely to deny his right to regulate it on his own coasts. All -they asked was that the matter might be delayed a little owing to the -religious troubles which were raging in the Netherlands, and because -as all the provinces were concerned and the records and treaties would -have to be searched, it would take some time before they would be in a -position to deal with it in an equitable way. The States-General used -language equally conciliatory to Sir Dudley Carleton, and promised to -send other ambassadors later, fully empowered to treat of the herring -fishery and the trade in cloth. James was appeased and agreed to the -delay, but he told the ambassadors that unless the States gave an -undertaking in writing to send commissioners sufficiently authorised -to settle the matter before a year had expired, he would take it as “a -plain and perpetual declining of the treaty.”[362] - -Thus James was again baffled in his endeavour to force the United -Provinces to acknowledge his rights in the fishery. But scarcely -had the arrangement been completed when he brought forward another -proposal. Pending the conclusion of the final treaty, he wished the -States to issue a provisional edict forbidding their fishermen from -approaching within fourteen miles of the British coasts, to which -they had been coming closer and closer in recent years, a proceeding -which was the principal cause of the complaints from Scotland.[363] -The distance mentioned was that embodied in the Draft Treaty of Union -in 1604, and was supposed to be equivalent to a “land-kenning.”[364] -Carleton, however, thought the States would not immediately agree -to this,--their cumbersome system of government would alone cause -great delay,--and he counselled the king “to begin with the fishers -themselves,” by publishing a proclamation fixing the distance at which -they would be permitted to fish.[365] But the States were disposed to -go so far to meet the wishes of the king. They objected, indeed, that -fourteen miles was a greater distance than that at which a person could -see the coast from the sea, and thus exceeded a “land-kenning” or the -range of vision, but they promised to issue orders to their fishermen -to keep so far from the land as to be out of sight of people on the -shore, and to strongly prohibit them from going nearer.[366] - -The business of the herring fishery having thus been shelved, the -negotiators took up the other matters in dispute. The East Indian -question was settled by a treaty,[367] but the differences as to the -whale fishery were not so easily adjusted. The English case was founded -on the contention that Spitzbergen belonged to King James, on their -prior fishing in those seas, and on the depredations committed by the -Dutch in 1618 on English vessels. The Dutch claimed a right to the -fishery from their discovery of the island, and they proposed three -alternatives: (1) that both nations should fish at Spitzbergen with an -equal number of ships, the bays to be divided by drawing lots;[368] -(2) that fishing should be carried on by both parties everywhere with -an equal number of ships of equal size, disputes to be settled by -regulations; (3) that the island should be divided by an imaginary line -into two equal parts, the Dutch to have one part and the English the -other. The English declined all these proposals, and James informed -the ambassadors that even if the island had been discovered by their -nation the English had the right to the fishery because they were -the first to practise it,--an argument which, it may be remarked, if -applied to the herring fishery, would have been unfortunate for the -king’s claim to it. But while maintaining his abstract right to the sea -at Spitzbergen, James gave way on the immediately practical point, -consenting that the Dutch should continue their fishery at the island -for three years longer.[369] - -We have mentioned that late in 1618 James caused the Scottish Council -to send a vessel (the _Restore_) to the Shetlands to demand the -assize-herrings from the Dutchmen, and that it arrived on the scene -too late. Next year he resolved to be in time, and while the Dutch -ambassadors were still in London he wrote to the Council saying it was -necessary “for divers imperative reasons” that the duties should still -be craved, and requesting them to send a ship that summer with some -discreet person on board, “who in fair terms may require our duties -of the said Hollanders and report their answer”; and the Council were -desired to take special care that the business should not fail through -negligence.[370] At a meeting of the Council at Holyrood House on -29th June, arrangements were made to carry out the king’s wishes. Mr -John Fenton was appointed “his Majesty’s commissioner” for “craving -his Majesty’s rent of assize and teind from the Hollanders and other -strangers fishing in his Majesty’s seas,” and a Mr James Brown was -instructed to accompany him as notary.[371] Fenton’s commission, under -the great seal, commanded him to repair to the north seas, and there -“in his Majesty’s name to ask, crave, receive, intromit with, and -uplift from those of Holland, Zealand, Hamburg, Embden, and Rostock, -and from all other strangers following the trade of fishing in his -Majesty’s said seas this present year, his Majesty’s rent of assize -and teind of the whole fishes taken, or to be taken by them in his -Majesty’s said seas and waters this present year.” The tribute levied -by John Brown, in 1616, on behalf of the Duke of Lennox, amounted to -only one angel (about ten shillings) or a barrel of herrings from -each buss, or twelve cod from a line-boat. But that claimed by the -king was now considerably greater. The “assize” was to be computed at -ten thousand herrings (which would be fully ten barrels) for every -buss that fished for herrings, and a last of white fish for every -buss that fished for white fish, that is to say, cod and ling; or, -if the fishermen preferred to pay in money, they were to pay at the -rate of £6, 13s. 4d. Scots for every thousand of the assize-herrings, -and at the rate of £50 Scots for every last of the assize white fish; -and the same equivalents were to be asked for each thousand “teind -herrings,” and for each last of “teind white fish,”--a new duty now -first mentioned, “teinds” being the Scottish term for ecclesiastical -tithes. The value of the assize-herrings to be levied from each buss -was thus about £5, 11s. 1d. sterling, and the value of the assize white -fish from each dogger about £4, 3s. 4d. On the basis of two thousand -Dutch herring vessels the total duty would amount to the respectable -sum of about £11,000, while the dogger-boats would yield some £1500 -additional. On receiving payment Fenton was to give an “aquittance -and discharge,” which would be as valid and sufficient as if given -by his Majesty’s comptrollers or ordinary receivers of his Majesty’s -rents.[372] - -In the particular instructions given to Fenton,[373] and which, there -are reasons for thinking, were essentially the same as those previously -given to Brown, he was enjoined to proceed to the north seas in H.M.S. -_Charles_, under the command of Captain David Murray, and in the first -place to inquire the names of the admirals and vice-admirals of the -Dutch fleet, the names of their ships, to what towns and provinces they -belonged, and also the number of the convoys and busses sent out to -the fishing by every town, province, and state. This having been done, -he was “in fair and gentle terms and with modesty and discretion” to -demand from the admirals or vice-admirals, and from two or three of the -convoyers and busses of each state, “his Majesty’s rent of assize and -teind” as specified. He was not to dispute with them as to the amount -of the duty. If they offered a smaller amount, “although it were only -an angel for every buss,” he was to accept it, but not less; so also if -he were offered fish instead of money. It was left to his discretion to -make a differential duty according to the size of the busses, if that -point was raised, and also to compound with the admiral for the whole -of the busses of a town, state, or province. If payment of the duties -were refused, Fenton was merely “to take instruments upon the said -refusal without further contestation,” and to report the result. He was -also to inform the Dutch of the oppressions made by those landing from -the fleet at Shetland, and to demand redress and a promise that such -conduct would not be repeated.[374] - -A short time before this the Council, for the sake of economy, had -ordered the _Charles_ to be disfurnished, but now, in view of her -important mission, they judged it to be “no ways meet or expedient” -that she should be made altogether empty of her furniture and munitions -of war, so that she might be able to resist any sudden or secret -onslaught by the Hollanders or others. They therefore instructed that -there should be left on board “twa of the smallest pecceis of hir -ordinance and ten muscattis, with some few bullets ansuerable thairto, -and a litill quantitie of poulder, yf ony be within the schip.”[375] -Orders were given for the manning of the vessel, which was to be -ready to sail before 1st July. It was with this scrimp and penurious -armament, and in this attorney-like manner, that James prepared to -obtain an acknowledgment from the Dutch of his rights in his seas, -whereas Charles I., as we shall see, employed his great ship-money -fleet for the same purpose. But apparently the king would be almost -as satisfied with a refusal as with the payment of the tribute, -either of which he would be able to make use of in the negotiations -for the “final treaty” on which he had set his heart. It is therefore -unfortunate that we can discover no further information as to the -expedition of Fenton. That the _Charles_ left on its mission we -know,[376] but the records are silent as to the result. It may perhaps -be inferred from this circumstance alone that the Charles was no more -successful than the _Restore_ in the year before. - -Early in 1620 the States, which had taken no steps to redeem their -promise to send another embassy to deal with the question of the -herring fishery, were reminded of it, and Carleton urged this course as -a point both of policy and honour. But they were as reluctant as ever -to handle the matter. The increased duty which Fenton was commanded -to ask--of which very probably they had heard--was not likely to make -them more willing, and they continued to procrastinate, alleging the -unsettled state of their affairs at home and the troubles in Bohemia -and Germany as reasons for further delay. Some prominent men in Holland -indeed began now to assume a firmer tone. Hints were thrown out to the -British ambassador that there was really little difference between -forcing on the matter and declaring war, since freedom of fishing was -of fundamental importance to the people of the United Provinces. The -Prince of Orange gave it as his opinion that the seaport towns of -Holland would never be brought to consent to “any innovation” in the -herring fishery, even if it were urged at the cannon’s mouth. Still -more significant was the action of the States in now voting large -additional sums for the equipment of a greater number of men-of-war to -guard the herring-busses from molestation.[377] - -To all appearance, therefore, the Dutch had now stiffened their -backs and were prepared to fight for their liberty to fish on the -British coasts, as they had done at Spitzbergen, instead of sending -commissioners to London to haggle over it. But their uncompromising -attitude was soon modified owing to certain political events, which -taught them the need of caution in flouting the wishes of the King of -England. In the autumn of 1619, Frederick, the Elector Palatine, who -had married Elizabeth, the daughter of James, was offered and accepted -the crown of Bohemia under circumstances pregnant with troubles. In -consequence of this, Spain, in alliance with the Emperor, attacked and -took possession of the Palatinate. The strengthening of the Spanish -power in Germany was by itself inimical to the United Provinces, -and the sense of danger was intensified when it was found that the -occupation of the Lower Palatinate was part of a plan for marching the -Catholic troops overland from Lombardy to the Spanish Netherlands. -In view of an impending conflict with their hereditary enemies, it -became a matter of grave anxiety to the States to retain the goodwill -of England. Accordingly, after many discussions, the States-General -at the end of 1620 appointed another embassy to go to London; but it -was rather with the view of meeting the political dangers with which -they were threatened than of dealing effectually with the subjects -in dispute. The ambassadors’ official instructions, which were most -carefully considered, referred in general terms to the affairs of -Germany and the approaching expiry of the truce with Spain, and more -particularly to the cloth trade, the coinage, and the East Indies. -On the all-important subject of the herring fishery they were mute. -In their private instructions the envoys were enjoined to avoid all -discussion about it; if pressed, they were to assure the king that the -States would be glad to consider it “later”; and in any discussion -that did arise, they were to bear in mind that they always had been -in undisturbed possession of it, and that the profit they derived -from it had been greatly exaggerated and was far less than the king -supposed--so little indeed that they would be quite unable to carry it -on if any “innovation” were made.[378] - -The embassy of six persons arrived in London towards the end of January -1621. At their first audience with the king they spoke only of the -affairs in Germany and the seizure of the Palatinate, desiring it to -be understood that this was the principal matter to be considered; -and when they met the Council they raised the question of a warlike -alliance between the two countries against Spain. But the herring -fishery had not been forgotten by the English, and when the subject was -mooted the Dutch begged that it might be allowed to rest for a time, -pleading in particular that the expiry of the truce with Spain would -leave them face to face with a powerful foe. The Council reminded them -of the promise given, and James bluntly expressed the hope that they -had come on this occasion fully empowered to treat of the business of -the fishery, which had been suspended at the conferences two years -before. While disclaiming any wish to diminish their legitimate profits -from the fishery, he warned them that the question touched his honour -and sovereignty so closely that it could not be always left undecided -and in dispute; and that he would only agree to further delay when -he was informed at what time it would suit the States to conclude an -agreement both about the fishing on the coasts of Great Britain and at -“Greenland.”[379] After many conferences and much negotiation it was -arranged that another embassy should be sent by the States before the -lapse of a year, and the Dutch commissioners quitted London on 16th -April. - -In accordance with this understanding, still another embassy came -to London, in November 1621. On this occasion the ambassadors were -provided with full powers to settle the East Indian disputes, and with -less ample authority to deal with the Spitzbergen fishery question. -But, astonishing as it appears, they were again sent without any power -to negotiate any treaty about the herring fishery. That the States, -after so many delays and evasions, in the face of so many protests -from the king, should again break their promise, shows both the great -importance they attached to the matter and their belief that James -would not force on a quarrel about it. In their secret instructions -the old injunctions were repeated. They were to beg that as a year -had not yet elapsed a little further delay might be granted; laying -stress on the danger to the Protestant cause, in view of the relations -with Spain, if anything were done to lessen the sea-power of the -Netherlands, which depended so much on their fisheries. At this time -the East Indian question had become important and pressing in England, -and the early conferences were confined to it. But later the king -broached the subject of the herring-fishing; and after listening to -the ambassadors for a while, he peevishly asked them to make an end -of their long harangue, called them leeches and blood-suckers, who -sucked the blood from his subjects and tried to ruin him,[380] and then -treated them to the same sort of disquisition as on former occasions. -To the king’s railing and reproaches the ambassadors made such answer -as they could, and the upshot was that they were allowed to go on with -the conferences on the East Indian question. This embassy, at the head -of which was François Van Aerssen, Lord of Sommelsdijck, remained -in England until the spring of 1623, engaged in negotiations, often -interrupted, on political affairs, and on the East Indian and Greenland -fishery questions. James did not harass them further about the herring -fishery. At the farewell audience he spoke of it in a good-natured -way. He must, he said, resume his old song, _veterem cantilenam_, but -not at that time. But whenever the condition of the Netherlands was -favourable, he would, he said, be glad to resume the negotiations.[381] - -During their long stay in England the ambassadors had an opportunity of -learning what was thought about the fishery question. On their return -to the Netherlands they earnestly counselled the States-General to -come to some agreement with England both on the herring fishery on the -British coasts and the whale-fishing at Spitzbergen. These matters, -they said, were close to the king’s heart, and many people whom they -had met had shown much irritation in speaking of them, and had even -advised forcible measures against the Dutch. By this time the Republic -was again at war with Spain, while Prince Charles and Buckingham had -gone to Madrid to woo the Infanta: it would be prudent to do all that -could reasonably be done to cultivate good relations with England. -The States therefore wrote to Sir Noel Caron telling him they had -resolved to take the fishery matter into serious consideration, and -their efforts were directed to the removal of all cause of complaint in -Scotland. Two edicts had already been issued--one, in 1618, prohibiting -any wrong from being committed on Scottish subjects; the other, in -1620, ordering their fishermen to refrain from taking herrings within -the rocks and reefs of Shetland, Ireland, and Norway, on the ground -that such herrings were inferior in quality and unfit for curing.[382] -The technical reason given in the latter for keeping away from the -coast had some foundation, but the real motive was probably to redeem -the pledge which the States had given in the year before (see p. -193). What the States now did was to renew the edict of 1618, and, -after a conference between the ambassadors who had returned from -England and the College or Board of Fisheries, to issue orders that -the herring-busses were not to go too near the coast of Scotland, -which had, indeed, been agreed upon some years earlier, so as to avoid -causing inconvenience to the native fishermen.[383] - -There is evidence that the warning which the ambassadors gave to the -States-General as to the feeling in England was well founded, and -there occurred at this time, both in England and Scotland, a revival -of proposals aimed against the Hollanders. The Scottish burghs -complained of the “heavie hurt” they sustained owing to the English -and the “Fleymings,” who had lately taken up the “trade of fishing” -in the North and West Isles, by which was probably meant the curing -of herrings and other fish. The Council accordingly ordained that the -Islesmen should “suffer no strangers to come within their bounds to -the fishing,” and that none of the country people should sell fish -to them; and they issued a proclamation forbidding “all and sundry -strangers” to “slay or take any fish within the Isles, lochs and bays -of the kingdom, and that they buy no fish but salted and barrelled, and -at free burghs.”[384] - -In England fresh attempts were made to establish a great national -herring fishery which might rival that of the Dutch. Within a month -of the departure of the ambassadors, Lord George Carew, Master of the -Ordnance, was busy with a project. Along with Lord Hervey and Sir -William Monson--who was perhaps the prime mover in the matter--he had -several conferences with “skilful fishermen,” and then he sent for the -city merchants to consider how the scheme might be floated. To them he -proposed that six busses and four doggers should be bought or built -at a cost not exceeding £10,000, explaining, after the usual manner, -how the return from the first year’s fishing would repay the whole of -that sum and encourage “all men” to adventure. The city merchants, one -of whom was Sir William Cockaine, were loud in their praises of the -scheme,--“it was the best work for the public and the most profitable -that the wit of man could imagine,”--but as for the money required, -they were afraid that it could not be raised. Then the promoters asked -the Lord Mayor to propound the plan to the Court of Aldermen. But the -Lord Mayor curtly replied that the Aldermen were engaged in other -adventures, and were “utterly unwilling” to enter into the project of -building busses, while the Merchant Companies were too much in debt to -undertake it. On a second appeal being made to him, he said the Court -of Aldermen “absolutely declined” to entertain either the general -project for fishing-busses or the lesser scheme of building six busses -and four doggers. They would have nothing to do with it;[385] and this -scheme was therefore nipped in the bud. - -Fresh proposals were now brought forward by others, based on -Government support, and a plan was propounded similar to the old one -of Hitchcock and Dee in the reign of Elizabeth, but to be carried out -under an Act of Parliament. Each city, county, and seaport town was to -be encouraged to equip fishing-busses at their common charge and for -their common benefit, with power to employ their idle inhabitants in -manning them. For the security of the fishing fleet the king was to -provide twenty ships of war, five of which were to belong to the royal -navy, and they were to continue at sea from the beginning of April till -the end of September. To meet the cost of this guard the king was to -receive the tenth fish taken both by English and foreign fishermen, the -promoters thinking that the latter would be quite willing to be taxed -when the tax was demanded by an “Act of the King and Kingdom,” and when -they knew they would be protected by a squadron of men-of-war.[386] It -was a pretty scheme, well-intentioned, but innocent of information as -to the actual state of affairs. - -Scarcely anything more was heard about the herring fishery or the -taxation of Dutch fishermen during the brief remainder of James’s -reign. Another embassy came from the Netherlands in 1624, but it was -to conclude a defensive alliance against Spain, and in the shadow of -this new alliance the Dutch fishermen quietly reaped the harvest of -the sea without fear of English interference. James’s policy of the -assize-herring had thus completely failed. All his efforts to induce -or to force the Netherlands’ fishermen to acknowledge his right were -baffled by the superior diplomacy of the States,--their “artificial -delays, pretences, shifts, dilatory addresses, and evasive answers.” -The only immediately practical result of the king’s policy was that the -herring-busses kept for a time farther from the coast of Scotland. But -a new weapon had been forged for the contest with the United Provinces -for supremacy at sea, and one which was to be used by his successors -with much more skill, if with little greater ultimate success. - -Of one symbol of this sovereignty of the sea comparatively little -was heard during James’s reign--namely, the salute or homage to his -flag. This traditional custom of the narrow seas, while maintained on -important occasions, was not enforced with the vigour and arrogance -which characterised it later, perhaps less rigorously than under the -Great Queen. “I myself remember,” said Raleigh a few years before -his execution, “when one ship of her Majesty’s would have made forty -Hollanders strike sail and come to anchor. They did not then dispute -_de mari libero_, but readily acknowledged the English to be _domini -mavis Britannici_.”[387] Sir William Monson, too, who was Admiral of -the Narrow Seas in the earlier part of James’s reign, tells us that -the Hollanders were very “stubborn” about striking their top-sails and -performing the duty due to the king’s prerogative, and that he earned -their lasting ill-will by compelling them to do it.[388] - -But the English commanders were punctilious in enforcing the salute -in the narrow seas on state occasions. A notable instance occurred -in 1603, when King Henry IV. of France sent over the famous Sieur -de Rosny, afterwards Duke of Sully, to congratulate James on his -accession to the throne of England. With a numerous retinue he went on -board an English man-of-war at Calais, which then made sail for Dover -accompanied by a French warship under the command of M. de Vic, the -Vice-Admiral of France. The English captain observed with displeasure -that the French vessel bore the arms of France at his top, “contrary -to the custom of the narrow seas”; but on account of the important -personage on board and the nature of his mission, he restrained himself -from challenging the “indignity” until they approached Dover Road. -Unable to brook the affront any longer, he fired at the French ship, -and so “constrained her to strike her flag.” The shot did no harm, -but M. de Vic at once turned round his vessel and went back to France -in high dudgeon. Cecil thought it necessary to send a despatch to the -English ambassador at Paris explaining the circumstances, and while -saying that the English captain “rashly discharged” his gun, he thought -that if the matter was “well looked into, and the former customs -observed, there would be reason found for us to stand upon.”[389] - -A somewhat similar incident happened two years later, when Sir William -Monson was bringing over an ambassador of the Emperor from Calais to -Dover. In Dover Road he found a number of States’ men-of-war, and -their admiral, as Monson drew near, struck his flag thrice, but then -“advanced” it again and kept it flying in the presence of the king’s -ship. Monson believed the Dutch admiral had come in on purpose to put -this “affront” on him, so that the ambassador, as well as the Spaniards -then at Dover, might “spread it abroad throughout all Europe” that the -Dutch, “by their wearing their flags, might be imputed kings of the -sea as well as his Majesty,” and so lessen the esteem of the king’s -prerogative in the narrow seas. Instead of firing upon the Dutch ship, -he sent to invite the admiral to dinner, and to tell him that he must -take in his flag. To this request the admiral demurred, saying that -he had struck it thrice, and that no former admirals of the narrow -seas had required more at his hands. Monson rejoined that “times were -altered”; that when the mere striking of the flag as he had done was -sufficient, England and Holland were both at war with Spain and it -was tolerated; but now, since the war was ended so far as England -was concerned, his Majesty required “such rights and duties as have -formerly belonged to his progenitors.” On the Dutch admiral still -refusing, Monson threatened to weigh anchor and come near him, and that -the force of their ships should determine the question; “for,” said the -English admiral, “rather than I would suffer his flag to be worn in -view of so many nations as were to behold it, I resolved to bury myself -in the sea.” The flag was then struck, and the Dutch ships stood out to -sea. Monson tells us that he was congratulated by a Spanish general who -had been watching the proceedings, who said that if the Hollanders had -worn their flag times had been strangely altered in England, since his -old master King Philip II. was shot at by the Lord Admiral of England -for wearing his flag in the narrow seas when he came to marry Queen -Mary.[390] - -Sometimes, however, the zeal of the naval officers led them too far -in their resolution to compel the salute. Thus in 1613, when the -Count of Gondomar, the Spanish ambassador, was returning to England -accompanied by two galleons, an English man-of-war forced the Spanish -ships to take in their flags off Stokes Bay. The ambassador complained -to the Lord Admiral (the Earl of Nottingham), who decided that the -captain had exceeded his authority, for the Spaniards were not bound -to strike their flag unless to the admiral of the narrow seas, and -the captain was neither admiral of the narrow seas nor employed under -his commission. The rules or etiquette regarding this ceremony were -indeed somewhat complicated, occasionally changed, and not always -well understood, and as a good deal will be heard of the striking of -the flag in the following chapters, it may be well to say something -here about the practice. It appears that it was customary from a -remote period for merchant vessels to lower their sails on meeting -a ship of war in seas under the dominion of the state to which the -latter belonged,[391] but the ceremony only attained to international -notoriety in connection with the claims of England to the sovereignty -of the narrow seas. The practice varied at different times. Generally -speaking, by the custom of the narrow seas as interpreted in this -country, any foreign man-of-war meeting with an English man-of-war in -those seas had to take in her flag and strike her top-sails as soon -as she came within sight or within range of the English guns, and she -had to keep in the flag until she had passed out of range. A merchant -vessel had to strike in the same way. Further, no vessel in the narrow -seas was to pass to windward of an English ship of war, but must “come -by the lee”; the inferior had to make way for the superior.[392] In -an English port or road no foreign ship or English merchant vessel -could wear her flag in the presence of a king’s ship. This custom was -also sometimes enforced in foreign ports and roads, but usually only -when out of range of forts on shore. If a foreign vessel, whether -man-of-war or merchant ship, did not thus “do her duty” or “perform -the homage of the sea,” the English ship of war might hail her or send -a boat to command her to strike. Or they might at once, without any -parley, fire a shot across her bows, and after an interval another, -also across her bows or over her poop, and if this was ineffective, -then a third between her masts or at her flag. If the foreigner still -refused to strike, a broadside was usually poured in, and the vessel -might be carried into port and the offender punished. In the reign of -Charles II., Spaniards, Dunkirkers, Frenchmen, and other foreigners, -were not infrequently brought before the courts and fined for refusing -to strike. If a merchant vessel refused to strike until she was shot -at, she was compelled to pay to the king’s ship twice the value of the -gunpowder and shot expended. - -In England the custom, no doubt, originated in the Channel, probably -in the time of the early Angevin kings, when the opposite coasts were -under the same rule; and it is most probable, as formerly said, that it -arose in connection with the exercise of jurisdiction over pirates and -for securing peaceful commerce. In early times the utmost lawlessness -prevailed on the sea: it would be a common duty of the king’s ships to -satisfy themselves as to the character of the vessels they encountered, -and the lowering of the sails and the coming under the lee, for “visit -and search,” might well be a relic of a duty enforced for that purpose. -With regard to ships of war, the ceremony appears to have been first -confined to the Channel, and was held to be peculiarly a privilege -of the admiral of the narrow seas. Thus, when Captain Plumleigh was -appointed admiral of a squadron for service in Ireland in 1632, he was -ordered by the Admiralty if he met “in any part of the narrow seas with -the _Convertive_, in which Captain Pennington commands as admiral of -those seas,” to take in his flag, and to “continue it furled whilst in -sight of that ship, it being an ancient honour and privilege belonging -only to that admiral to carry the flag in the maintop in those -seas.”[393] Monson also tells us, in referring to the decision of the -Lord High Admiral in Gondomar’s case, above alluded to, that every ship -of the king’s serving under an admiral could not demand the striking of -the flag when out of sight of the admiral; but the foreign ship, “be -he admiral or no, is to strike his top-sail and hoist it again, to any -one ship of the king’s that shall meet him.” He further states that -any foreign ship or fleet arriving in an English port, or passing by a -fort or castle, had to take in their flag three times, and advance it -again, unless the English admiral’s ship was in the same harbour, in -which case they were to keep it in so long as the admiral was present; -“but if any other ship of his Majesty’s be there but the admiral’s, -they are not bound to keep in their flag, but only to strike it thrice -as aforesaid.” Monson added that he wished, in these later times -(the reign of Charles I.), “that his Majesty’s ships would take more -authority upon them than is due,” in order to curb the insolence of the -French and the Hollander--a wish which, as we shall see, must have been -fully gratified. It was against the Dutch that the striking of the flag -was most thoroughly enforced, and one cannot but admire the patience -and restraint they exhibited under great provocation. The French and -Swedes avoided giving the salute as much as they could. As the century -wore on, the English exaction on this point grew more outrageous. -Foreign ships of war were forced to strike on their own coast even to -our royal yachts, and the Hollanders were asked to strike not merely -in the British seas, but wherever they were encountered. To the old -sea-dogs all seas were “British” where their fleets were strongest. - - - - -CHAPTER VI. - -CHARLES I. FISHERIES AND RESERVED WATERS. - - -It was during the reign of Charles, into whose hands the sceptre passed -in the spring of 1625, that the English pretensions to the sovereignty -of the sea attained their most extravagant proportions,--a circumstance -which was owing in great measure to the condition of domestic affairs -and the king’s assumption of personal government. James had been -content to limit his assertion of sovereignty to the question of -the rights of fishing and the preservation of the “King’s Chambers” -from the hostile acts of belligerents. But Charles, while vigorously -pursuing this policy so long as he was able, combined with it the most -extreme claims to dominion on the neighbouring seas that had ever been -put forward by an English king. The sovereign rights of jurisdiction -over the “Sea of England” which were supposed to have been exercised by -the early Plantagenets, were now roused from the slumber of centuries -and revived in their most aggressive form. The King of England was to -be lord of the surrounding seas, and to rule over them as a part of -his territory. A beneficent and universal peace was to reign over the -waters of the German Ocean and the Channel, unbroken by the sound of an -angry shot. No other fleets or men-of-war--be they Spanish, or Dutch, -or French--were to be allowed “to keep any guard” there, to offer any -violence, to take prize or booty, or to search the merchant vessels of -other nations. The blockade of the opposite coasts of the Continent by -an enemy’s fleet, as that of Flanders by the Dutch or French, was to be -interdicted, because those coasts were washed by the British seas and -blockading was a warlike operation. On the other hand the king was to -protect the commerce and navigation of his friends and allies. Foreign -merchantmen might go on their way in security, undisturbed by fears -of pirates or enemies, for “all men trading or sailing within those -his Majesty’s seas do justly take themselves to be _in pace Domini -Regis_,”--under the peace of our Lord the King. And as an external -symbol and acknowledgment of this absolute dominion, foreign vessels -were “to perform their duty and homage” on meeting his Majesty’s ships -by striking their flag and lowering their top-sails. If they refused -to do so, they were to be attacked and taken or sunk; the vessel was -liable to forfeiture as “good prize,” and the offenders carried into -port to be tried for their high contempt. Moreover--and it looks but a -small thing by comparison,--no foreigners were to be permitted to fish -in British waters without first receiving the king’s license so to do, -and paying to him a tax in acknowledgment of the permission. In this -way Charles hoped to restore the sovereignty of the King of England in -the British seas--that “fairest flower of the imperial crown,” as he -described it--to “its ancient style and lustre.” - -That a scheme so preposterous was seriously entertained and for a time -attempted to be realised showed the inherent incapacity of the king -for rational government. He was no more able to gauge his strength in -relation to foreign Powers than he was to foresee that the contest he -had entered into with his own subjects would end in rebellion and the -scaffold. It was ridiculous to suppose that other nations would tamely -surrender their sovereign rights in the seas off their own coasts and -ports, abandon the protection of their commerce and shipping and their -rights as belligerents, simply because the King of England wished -to be lord of the sea. Had Charles been able to give effect to his -selfish and ambitious scheme, he would soon have been confronted with -an overwhelming coalition of maritime Powers, to whom the free use of -the sea was as necessary as it was to England. As it happened, war was -averted by the dexterity of Richelieu and the prudence and patience of -the Dutch; and also, it must be added, by the vacillation of Charles -himself, who was always trying to arrange some new combination with -Continental Governments to carry out the only policy to which he was -true--the recovery of the Palatinate for his nephew. - -It may be supposed that the splendour of the _rôle_ attributed to the -early kings of England as lords of the sea, would by itself appeal to -the narrow imagination of one so deeply imbued as Charles was with a -belief in the divine prerogative of kings; and the dominion of the -seas was claimed as peculiarly a prerogative of the crown. But there -were other more practical and less exalted inducements. The assumption -of the _rôle_ of the Plantagenet kings was intimately related to the -state of home affairs and the means taken for the equipment of a -fleet. Parliament having refused supply and been dissolved, recourse -was ultimately had to the famous ship-money writs, by which it was -possible to obtain the necessary ships independently of Parliament, as -had been done by the early kings. To declare that these measures were -indispensable for the maintenance of the sovereignty of the sea in its -ancient style and lustre was well adapted to lessen their unpopularity, -if anything could. It was a declaration “exactly calculated for the -meridian of England,”[394] for the English people in all ages have been -prone to maritime glory and willing and anxious to make sacrifices for -the sake of the navy, upon which their national safety depends. - -It was in connection with the policy of the ship-money writs that the -old doctrine of the Plantagenets came again into being. In the writs -themselves the very words were copied that Edward III. had used in -1336 in his mandate to the admirals; but some years before they were -issued one may trace the growth of the idea. In the period from 1631 to -1633 there was much searching of records with the view of establishing -the king’s rights in his seas. Negotiations had been proceeding with -Scotland, described below, with reference to a great fishery scheme, -and the Scots had been very troublesome and persistent about their -“reserved waters,” which the scheme threatened, the “land-kenning,” -and the encroachments of the Dutch. They only agreed to give up their -exclusive claim to the “reserved waters” for the benefit of the fishery -association, provided that Charles would free the Scottish seas of -the Hollander busses. In the long series of papers respecting the -fishery project, mostly prepared by the indefatigable Secretary Coke, -the change referred to may be perceived. In those of 1629 and 1630 -there is no suggestion of the sovereignty of the seas, but in 1631 -instances become numerous. Coke claims the sea fishings as belonging -to the crown; he begins to speak of the king’s “undoubted right of -sovereignty in all the seas of his dominions,” and plainly says it will -be necessary to exclude foreign fishermen from the British seas once -the fishing society is a success. In the next year he goes further. He -begins a long and formal document--also on fisheries--in the following -words: “The greatnesse and glorie of this Kingdom of Great Britaine -consisteth not so much in the extent of his Majesty’s territories by -land, as in the souerantie and command of the seas. This command is -in peace over trade and fishing: and for warre in the power of his -Majesty’s Navie to incounter the sea-forces of anie foren prince.” -And he goes on to say that while Spain alone used to oppose it, it -was now opposed by France and the Low Countries.[395] Still more to -the point were the words of Charles himself. A few months after the -fishery negotiations with Scotland were concluded, he wrote to the -Clerk-Register in Edinburgh saying that, as the fishing business was -now completed, he was desirous that it should be known abroad by his -neighbours through some “public writing,” and asking him to search the -records of the kingdom for authentic evidence to show his rights to the -fishings, and to send such evidence to him.[396] - -At this time also the English records were being subjected to search -and scrutiny with the same object, but for other reasons. The “homage” -of the flag was being hotly enforced in the Channel and disputed by -France. Pennington, the Admiral of the Narrow Seas, reported cases in -which the French demanded the salute from English merchant vessels, and -rumours that it was the intention of the French admirals to wrest the -regality of those seas from England on the ground that the Pope had -given it to France.[397] This news caused Viscount Dorchester--the Sir -Dudley Carleton who had represented King James at The Hague, now a peer -and Secretary of State--to write to Boswell, Clerk of the Privy Council -(soon also to be ambassador at The Hague) for some information, however -little, concerning the King’s admiralty in the narrow seas. Boswell -sent a few brief notes of little relevancy about the jurisdiction -of the admiral and the Cinque Ports; but he added the interesting -information that he believed Sir John Boroughs, the Keeper of the -Records in the Tower, was able to produce an “original” concerning -the first institution of “La Rool d’Oleron” by Edward I., in which -the sovereignty of the kings of England in those seas appeared. This, -said Boswell, was therefore before the kings of France could pretend -to any sovereignty there, having “neither right nor possession of any -part, or part of Britany, Normandy, or Aquitaine.”[398] This, then, -was the famous roll of 26 Edward I. now brought to light, or at least -into use in the sphere of practical affairs. The discovery of Boroughs -led Nicholas, the Secretary of the Admiralty, to draw up a note about -the roll, “by which,” he said, “it is apparent that in those tymes ye -soueraignty of those (Narrow) Seas was acknowledged by those princes -(of Denmark, Sweden, &c., as mentioned in the roll): and justly, though -no man can be said to have ye property of the sea, because a man -cannot say this water is myne which runs, yet it is manifest that ye -Kings of England have and had ye soueraignty and jurisdiction of those -seas; that is, power to give laws and redresse injuries done on the -same.”[399] - -The germ of the new pretension of Charles to play the part of -Plantagenet on the adjoining seas appears to have been this disclosing -by Boroughs of the ancient roll. All the later writers on the English -side of the controversy about _mare clausum_ and _mare liberum_, as -Selden, Coke, Prynne, as well as Boroughs himself, laid great stress on -it. - -It was, however, as we have already hinted, in connection with the -fisheries that Charles’s first actions were concerned. He earnestly -believed in the common opinion of the age that sea fisheries formed a -principal means of developing commerce and navigation and maintaining a -powerful navy, and early in his reign, before the new idea of maritime -sovereignty dawned upon his mind, he did what he could to promote -and foster them. The old laws for the preservation of the spawn and -brood of fish, which had fallen into disuse, were put into force; -proclamations appeared prohibiting wasteful fishing; a vigorous effort -was made to suppress the use of injurious appliances; the strict -observance of Lent was repeatedly enjoined. But what proved most -attractive was the notion which had haunted men’s minds since the time -of the Great Queen, and had always eluded realisation. Charles became -convinced that the formation of a grand national fishery association -would wrest from the Dutch their predominance in the fisheries, drive -their busses from our seas, and transfer to the English people the -herring-fishing, with all the blessings which flowed from it--commerce, -wealth, and maritime power. The last attempt which had been made in -this direction, in 1623, had, as we saw, signally failed, the Lord -Mayor and the opulent aldermen of London “absolutely refusing” to have -anything to do with it. The scheme was now, however, to be launched -by the king himself, who undertook to favour it with important -privileges and immunities, and intended at a suitable time to aid it by -prohibiting foreigners from fishing on the British coasts. - -Shortly after Charles began to reign, the old proposals to tax the -Dutch were renewed. In 1626 a petition was presented to the House of -Commons praying that a duty of 10 per cent might be laid upon all -Dutch or foreign ships fishing in the narrow seas; with what result -the records are silent. Two years later the proposal got a step -further, for in 1628 a Bill was drafted to empower the king to levy -two shillings in the pound on all herrings or fish exported in foreign -vessels, and the tenth of the fish taken by foreigners in the British -seas, the revenue so obtained to be employed for the king’s use. The -latter suggestion looks almost satirical in view of the failure of -the many attempts of James to get revenue from that source, and in -the midst, too, of the squabbles then occurring between Charles and -the Parliament, which refused supplies and was abruptly prorogued; -especially as the House “humbly beseeched” him, “in recompense of the -great sums which your Commons have thus cheerfully granted,” “yearly -to provide and maintain a strong fleet of able ships upon the Narrow -Seas.”[400] - -The original plan of the new fishery association was drawn up by -Secretary Coke and was submitted to a meeting held at Suffolk House on -29th November 1629. The two main points for consideration were: how -they should obtain command of the fishery and be able to supply both -themselves and foreign people, and how to find a “vent” for the fish -taken and encourage merchants to purchase and export them. With regard -to the first point, Coke said that to command and govern the whole -fishing so as to make it a foundation of wealth to the kingdom, “equal -to the Indies,” as it was then to the Hollanders, would require not -fewer than 1000 busses, the cost of which would exceed £800,000. This, -he admitted, would be a work of time, and he proposed, for a beginning, -that timber should be felled in England, Scotland, and Ireland so as -to be seasoned for the construction of 200 busses in the following -year--40 in Scotland, 40 in Ireland, and 120 in England. Meanwhile, -for the year beginning in January 1630, he recommended that ten or -twelve busses should be bought in Holland, six Dutchmen to serve in -each for the year; and that the necessary salt and timber for casks -for curing the herrings should be got at Dunkirk from the prizes taken -from the Dutch. As the cost of ten new busses built in England, fully -equipped, would amount to £8390, including the cost of maintenance for -four months, the plan suggested would be the best, and it was proposed -to raise the money required by the “contributions of such adventurers -as may be persuaded upon hope of the gains and by privileges from -his Majesty.” It was intended that the busses should fish along with -the Dutch on the east coast, beginning like them at Bressay Sound, -Shetland, on 23rd June, and the herrings were to be put ashore to be -repacked, after the Dutch method, at Aberdeen, Tynemouth, and Yarmouth. -Supplementary to the busses, it was proposed to have six “doggers” to -fish for cod and ling at Orkney and Shetland in the spring. - -With respect to the second head, the prospect of obtaining markets for -the produce, Coke said that English fishermen did not catch above 2000 -lasts of herrings in a year, of which not more than 1000 lasts were -consumed in England;[401] and he calculated that the ten busses would -catch another thousand lasts, which he thought might be mostly exported -to Prussia and along the German coast. The first step in carrying out -the scheme was to form a company to raise a capital of about £11,000 or -£12,000, and a committee was appointed for the purpose.[402] - -Coke’s scheme, which, like all the others, was based upon a close -imitation of the Dutch system, met with great favour from the king -and the court. Further consideration, moreover, led the promoters -to believe that the success of the enterprise would be increased if -operations were also undertaken at the Lewes instead of being confined -to the east coast, and various schemes were propounded with this end in -view. The suggestion appears to have emanated from Captain John Mason, -and it was made at a time when the island was a bone of contention -between the royal burghs of Scotland and the Earl of Seaforth, who had -obtained from the king a charter to “erect” Stornoway into a royal -burgh.[403] The burghs strenuously resisted the confirmation of this -charter and refused to give effect to it, all the more since Seaforth -had settled at Stornoway a number of Dutch people who were engaged -in the fisheries there. From an interesting report by a Captain John -Dymes, who visited Lewis in 1630 at the request of certain members -of the Privy Council, and apparently in the interest of the proposed -fishery society, we learn that the Dutch had been fishing there with -great success. Their four busses, each with twenty-five nets and a crew -of sixteen men, caught 300 lasts of herrings in three months, which -were sold at Dantzic for 400 guilders or about £38 a last, which Dymes -calculated would total £11,400, showing, after charges had been met, -a gain for the three months’ work of £7500.[404] The Scottish burghs -protested against the introduction of the Hollanders, which they said -would ruin the whole trade and navigation of the kingdom and completely -destroy the native fisheries. They petitioned the Privy Council to -restrain strangers from resorting to the North and West Isles, pointing -out that from the numbers of the Hollanders, their numerous ships -and great commerce, they would draw the whole trade of the country -into their hands, as they had done everywhere they had gone; and in -a petition to the king they accused them of “great oppressions” in -the Isles and on the coasts of the kingdom, and declared that by a -“pretendit libertie obtenit of his father” they were “the over-throwes -of the haill fischeing of this cuntry.”[405] - -Mr John Hay, the Town-Clerk of Edinburgh, was despatched to London to -the king, to ask that the country might be freed of the objectionable -Hollanders and the Seaforth charter withdrawn; and to declare that the -Scottish burghs would themselves undertake the whole of the fishings -at the Lewes and erect a burgh there. Secretary Coke, full of the -fishery scheme, took advantage of Hay’s presence to obtain from him a -detailed account of Lewis and its fisheries, and of the Dutch fishings -on the coast of Scotland, which, it was said, sometimes employed a -fleet of 3000 busses; and from the information acquired an “estimate -of the charge of a fishing to be established in the island of Lewes -in Scotland” was prepared. This document showed that ten Scottish -fisher-boats, of from twenty-five to thirty tons each, might be bought -for £1200, and other ten boats, of twelve to fourteen tons, for a -proportionately smaller sum. Each of the large boats was to be equipped -with 120 nets of twenty yards in length, and the smaller boats with -forty nets of the same dimensions; and it was calculated that with a -stock of £6743, 6s. 8d. a clear profit of £18,270 might be earned in -one year. - -This alluring prospect was no doubt encouraging to Coke and his -friends; but he learned from Hay some further information which must -have been disquieting. He was told that the Scottish people would not -permit any foreigners to fish within twenty-eight miles of their coast, -or within the lochs, the fishings there being reserved for the natives; -that by the laws of Scotland any stranger found fishing within these -limits was liable to confiscation of goods and loss of life, citing -as an example the story of the barbarous treatment by James V. of the -Dutch fishermen who had transgressed the “reserved waters” by fishing -in the Firth of Forth.[406] This point about the reserved waters was -indeed the main difficulty which soon confronted the fishery scheme. -To be successful, the fishing must be carried on along the Scottish -coast and at the Isles, for it was there the great shoals of herrings -resorted, but the objections of the Scottish Parliament, Council, and -burghs had first to be overcome.[407] - -The first important step was a declaration by the king of his -intentions. On 12th July he wrote to the Privy Council of Scotland, -laying before them his scheme for a great fishery association. With -the advice of his Privy Council in England, he said, he had maturely -considered that “als weill in thankfulnesse to Almighty God as for the -benefite of all our loving subjects we ought no longer to neglect that -great blessing offered unto us in the great abundance of fishe upon all -the coasts of these Yllands. To the end we may at lenth injoy with more -honnour these rights whiche properlie belong to our imperiall crowne -and ar vsurped by strangers, We have considered of a way whiche in -tyme by God’s favour may produce this good effect and also increasse -our navigatioun and trade. And becaus this worke concerneth equallie -all our three Kingdomes and must thairfoir be vndertakin and ordered -by commoun counsell and assistance,” he had taken the opportunity of a -meeting of the Scottish Parliament to send his “instructions” on the -subject by his Secretary for Scotland, Sir William Alexander.[408] - -In his instructions the king, after a preamble reciting the abundance -of fish on our coasts, the benefit which was reaped by strangers, “to -the great disparagement and prejudice” of his loving subjects, declared -his “firm resolution” to set up a “commoun fishing to be a nurserie -of seamen and to increase the shipping and trade in all parts of his -dominions,” and added--what must have been unwelcome news to the -Scottish burghs and people--that as it was to be a “common benefit” to -all the three kingdoms, so it could not be “dividedly enjoyed” by any -one nation in particular. The Council were enjoined to take the matter -into serious consideration, and to give their advice and assistance in -bringing it to a successful issue; and as it was necessary to raise a -“great stock” from adventurers, who would not be drawn into the scheme -except by hope of great and immediate gains, an estimate of the outlays -and profits was submitted to the Council, showing that 200 busses would -earn a clear profit of £165,414 in a single year, after paying all -costs.[409] - -Sir William Alexander was also requested to ascertain how many busses -and how much money might be contributed in Scotland, and he was to urge -the Council to confer on the subject with the nobility and gentry, -and especially with the burghs. Moreover, as it was not thought to -be feasible to manage the whole project by one common joint-stock, -the king advised that subsidiary companies should be formed in the -principal town or burgh of each province, to be related to one central -body or corporation. No foreigners were to be admitted as members of -the company, although they might be employed as servants. All the -adventurers, whether English, Irish, or Scottish, were to be allowed to -fish freely “in all places and at all times”; and the king signified -that as the Lewes was “the most proper seate for a continuall fishing -along the westerne coasts,” it was his resolve to take it from the Earl -of Seaforth into his own hands, as “adherent” to the crown, and to -erect one or more free burghs in the Isles. If difficulties arose in -the acceptance of the scheme, the Lords of Council were to be asked to -appoint commissioners to treat with those he would nominate to act on -behalf of England and Ireland. - -The king’s proposals were brought before the Scottish Parliament on -29th July 1630, and remitted to a large committee to report upon -them.[410] They were ill-received in Scotland. The free burghs in -particular opposed the scheme with great energy. They had brought about -the withdrawal of the charter obtained by the Earl of Seaforth, and -were negotiating among themselves for the formation of a company to -carry on the fishing at the Lewes and establish a free burgh there. -But the charter of the Highland Earl was a small thing to the scheme -of the king. They saw in it an invasion of their special rights and -privileges in trading and fish-curing, which had been conferred on -them and confirmed by many Acts of Parliament, not merely at the Lewes -but throughout the country. The “reserved waters,” moreover, sacredly -preserved for the industry and sustenance of their own people, were to -be thrown open to Englishmen and Irish, whereby the nation would suffer -greatly.[411] - -On 9th August a statement was drawn up by the Convention and circulated -to all the burghs, in which their opinion was asked as to whether any -association with England in the fishings was expedient; whether the -English should be suffered to “plant” or settle in any part of the -Isles; whether, if the burghs undertook the fishing themselves, they -should allow the nobility and gentry to “stock” with them, and if so -on what conditions; and if not, whether the burghs should undertake -it themselves by a company or by burgesses, and what sums might be -subscribed for an exclusive company. On the following day it was -complained in the Convention that, though the king had cancelled the -patent to the Earl of Seaforth, the “Flemings” still remained in the -Lewes; and the burghs thereupon decided that as the Privy Council had -appointed commissioners from each of the Estates of Parliament to treat -on the king’s proposals, their own commissioner, Mr John Hay, should be -empowered to deal with the king in order to have the “Flemings” removed -and the fishing “devolvit in thair hands”; to “stay” the proposed -association with the English, or the plantation of strangers at any -part of the kingdom where fishing was carried on; and to cause the -“Flemings” to forbear from fishing on the Scottish coasts, “or not to -cum neirer to the schoire of anie pairt of this kingdome than ane land -kenning of the said schoire.” - -Meantime a smaller committee which had been appointed by Parliament, -no doubt under the inspiration of the opposition of the burghs, -reported against the association with England in the fishings. Such -a course, they said, would be “verie inconvenient to the estait; and -tuiching the land fishing, whilk consists in fishing within loches and -yles and twenty aucht myles frome the land, and whilk is proper to the -natives, and whairof they have been in continuall possessioun and neuer -interrupted thairin be the Hollanders,”--a statement inconsistent with -the frequent complaints made by the burghs in the reign of James. The -burghs, they said, were able and content to undertake the “said land -fishing” by themselves, without “communicating” therein with any other -nation; and as for the buss-fishing, to which the king’s proposals -specially referred, they stated that the season for it that year was -passed, and that as it was a matter of great importance, it required -time for consideration. The burghs reported to Parliament in the same -sense.[412] - -Thus Charles, in endeavouring to carry out his laudable desire to -create a great national fishery to oust the Hollander from his seas, -had suddenly raised against him a Scottish claim of _mare clausum_, -which he found very provoking. Not only did the Scottish Parliament -declare that a great extent of the sea around Scotland pertained -exclusively to the natives so far as concerned fishing, but they -coupled this with the request that the king should exclude foreigners -from fishing within that area. It must be said that, apart altogether -from the unwritten law as to the “reserved” waters pertaining to -Scotland, the Scottish people had some ground of complaint against -the king for his sudden proposal to open up the whole of their seas -and lochs to the English; for it was well known that in the Draft -Treaty of Union which James had caused to be prepared in 1604, and -which would also have conferred important privileges on Scotland in -matters of trade, words had been inserted reserving to each nation the -fishings within all lochs, firths, and bays within land and up to a -distance of fourteen miles from the coast. This treaty was drawn up by -commissioners appointed by the respective Parliaments, the most active -of whom were Secretary Lord Cecil (afterwards Earl of Salisbury) and -the illustrious Sir Francis (afterwards Lord) Bacon on the English -side, and Lord President Fyvie and Sir Thomas Hamilton (later Earls of -Dunfermline and Haddington) on the part of the Scots. It was signed by -thirty-nine of the forty-four English and by twenty-eight of the thirty -Scottish commissioners; it was approved by the king and adopted by the -Scottish Parliament, and it was thus an instrument of high authority -with respect to the delimitation of the waters of exclusive fishing. -The clause in the treaty dealing with freedom of commerce contained -the reservation referred to, which was as follows: “Exceptand also and -reserveand to Scottishmen thair trade of fisheing within thair loches, -ffirthis, and bayis within land, and in the seas within fourtene mylis -of the costis of the realme of Scotland, wheir nather Englishmen nor -ony stranger or forinaris haue use to fishe, and soe reciprocally in -the point of fisheing on the behalfe of England.” - -Unfortunately, the treaty was never ratified by the English Parliament, -and therefore did not come into force. But the objection of the English -members was not in the least degree founded upon the reservation of -fishing rights, but upon the nationalisation clauses, which caused them -to dread the influx of an army of “hungry Scots” into England, Scotsmen -being at the time very unpopular in London.[413] - -The stipulation in the treaty of 1604 was now brought to mind in the -negotiations on Charles’s fishing scheme. These negotiations, which -were carried on for more than two years, were conducted on the part of -Scotland with an ingenuity and refinement of procrastination scarcely -surpassed by the Dutch in the previous reign. - -After the report above mentioned, a large committee was appointed to -discuss the business with the English authorities, and to report to -the meeting of Parliament in November. Accordingly, on 3rd November -the committee submitted the report of their proceedings with the -English commissioners, which was signed by the Earl of Monteith, the -President of the Council. They understood, they said, that the general -fishing proposed by the king referred only to those fishings of which -the benefit was exclusively reaped by strangers (that is to say, to -deep-sea buss-fishing), and did not in any way touch the fishings which -were enjoyed by the natives of any of the three kingdoms, so that the -laws and freedom of every kingdom might be preserved, as indeed was -“contained in the said instructions.” It was therefore necessary, they -said, in the first place, that such fishings “in everie kingdom whiche -ar onely injoyed be the natives be made known,” and that it should be -clearly determined what those fishings were which were called “common -benefits” that could not be “dividedly enjoyed.” With their eyes -probably on the fate of the nationalisation clauses in the Draft Treaty -of 1604, they declared it to be desirable that Scottish adventurers in -the proposed association should be naturalised in England; and with -reference to the commodities brought back for exported fish, they said -it was necessary to inquire how the return for the fishes exported -out of each kingdom should be made to the kingdom in which they were -actually taken. As to founding a burgh in the Lewes, that, they said, -would be an infraction of the rights of the existing burghs. - -The reply of the English commissioners was somewhat vague and general. -It was, however, made clear that the king’s intention was that every -member, or “brother,” of the company should be free to fish “in places -near and remote, where common fishing is, or may be, used by any of his -people,” this “mutual participation being the bond of union and sole -means to recover his Majesty’s right and power at sea, and to enrich -all his subjects, and those chiefly where the greatest fishings are.” -On the other points they said, in effect, that the king would do what -was best. - -A letter from the king to the Parliament was also read, expressing his -desire that the business should be advanced, as it would be “a worke -of great consequence for the generall good of our whole kingdome, and -more particularlie for the benefite of that our ancient kingdome” by -the improvement of its trade and shipping. So anxious was Charles for -the success of his enterprise, that he added a postscript in his own -hand, in which he said: “This is a worke of so great good to both my -kingdomes that I have thought good by these few lynes of my owne hand -seriouslie to recommend it unto yow. The furthering or hindering of -whiche will ather oblige me or disoblige me more then anie one business -that hes happened in my tyme.” He also sent a letter to the burghs to -mollify them, saying that it was in no ways intended that they should -be wronged in their ancient privileges or benefits; and he requested -Parliament to appoint commissioners charged with absolute powers to -settle the matter with the English commissioners, so that there should -not be undue delay.[414] - -The Parliament thereupon appointed commissioners, on 11th November -1630, to treat with those of England.[415] Nominally they were given -full powers to treat, but their instructions, dated 23rd December, -were so detailed and remarkable that it must have been obvious to -every one that rapid progress was not intended. Nothing was to be -done prejudicial or derogatory to the liberties and privileges of the -kingdom, the crown, or the laws of Scotland; special care was to be -taken that the natives of Scotland were to be preferred in the choice -of the best places for establishing “magazines” for the fishery, and -that the places appointed for the English should be such as would not -prejudice the “land fishing” of the Scotch; the Scottish members of the -association were to have the same privileges and immunities, with power -to erect magazines, in England and Ireland; English members who settled -in Scotland were to be debarred from fishing in the reserved waters, or -from buying fish from the natives, except for their own sustenance, as -well as from any trade or commerce, unless for the same purpose; they -were to be prohibited from importing or exporting commodities except -fishes taken by their own vessels, and they were to pay customs and -other duties for the fish they cured in Scotland and exported--and many -other conditions were laid down which showed how little the Parliament -had been moved by the personal appeal of the king.[416] - -With respect to the fundamental question, the limits of the territorial -seas pertaining to Scotland, the demands of the Parliament went much -further than any previous claim. The old principle of division by the -mid-line, which was held by some lawyers in the reign of Elizabeth, -was now put forward. The commissioners were instructed to take care -that a clause was inserted in the treaty to make it clear, “that the -seas foreanent the coasts of this kingdome and about the Yles thairof -and all that is interjected betuix thame and that mid-lyne in the seas -whilk is equallie distant and divyding frome the opposite land, ar the -Scotish Seas properlie belonging to the crowne of Scotland, and that -the English hes no right nor libertie to fishe thairin, nor in no part -thairof, bot be vertew of the association and not otherwayes.” But -while these were the Scottish seas ideally regarded, English members -of the association were to be permitted to fish in them, except in -the waters which were reserved to the Scottish people in the Draft -Treaty of Union of 1604--namely, bays, firths, and lochs within land, -and a belt of fourteen miles along the coast. These waters were to be -strictly preserved for the native fishermen.[417] - -The instructions which the burghs gave to their representative, Mr John -Hay, although less ample, were equally to the point. He was to agree -to the proposal for the establishment of an English settlement at the -Lewes, provided they did not fish in the reserved waters, and had no -magazines or settlements in any of the other West or North Isles, or -north of Buchan Ness or Cromarty, and not at Aberdeen if they wished -any south of Buchan Ness; and the burghs were also to have the right -to establish colonies at the Lewes. In “retribution,” as they said, -for these privileges to be granted to the English in Scotland, they -required the “liberty” of the pilchard-fishing in England and Ireland, -with equal privileges regarding it. The king was also to remove the -“Flemings” from the Isles, and to prohibit them and all other strangers -from fishing within a “land-kenning” (that is, within a distance at -which the land was visible from the sea), and power was to be conferred -upon the burghs, with the assistance of the Sheriffs and other officers -to prevent their fishing nearer. “Hamburgers, Bremeners,” and all -other strangers, were also to be removed furth of Shetland, Orkney, -Caithness, and other places.[418] - -A week or two before the Scottish commissioners were selected, Charles -issued a commission appointing Lord Weston (High Treasurer of England), -the Earl of Arundel and Surrey (Earl Marshal), the Earl of Pembroke -(Lord Chamberlain), the Earl of Suffolk (Lord Warden of the Cinque -Ports), and eight others as commissioners on behalf of England and -Ireland.[419] His object, he said, was to establish a “common” fishing, -both to be a nursery of seamen and for the increase of navigation, -and “to make the store of fish of all kinds, being a necessary food -for the people on fish-days, to be had at reasonable prices, and the -overplus thereof to be a principal addition to the staple commodities -of our kingdom for the increase of trade.” In order that this common -fishing might be extended and freely exercised in “all places by his -subjects of each of the three kingdoms,” he appointed them “with full -power and authority to confer severally and jointly, and to consider, -treat, propose, determine and conclude what they concurrently found fit -and expedient for the ordering, establishing, and advancing of the said -common fishing.” Power was also given to them to call for any of the -records in the Tower or elsewhere which might bear upon their labours. - -The commissioners from both countries met early in 1631. In March -the Privy Council of Scotland received a report from the Scottish -commissioners in London, stating that several meetings with the English -commissioners had been held, and that the extent of the waters proposed -to be reserved “was thought too much,” unless it could be shown that -“the intention was only to reserve so much without which the natives -could not subsist, and not to hinder the good public work,” and they -craved full and particular instructions on this point. The Privy -Council at once summoned the Lord Provost and Bailies of Edinburgh -before them to furnish the information required, but they replied that -it was a subject which concerned all the burghs, and that time must be -given to consult them. After some further delay the burghs submitted -an elaborate and interesting report to the Council on 21st April, in -which, after citing the clause in the Draft Treaty of Union, they -proceeded to define the bounds of the waters “without the whiche the -countrie can not subsist,” and “whiche trewlie is the bounds whairupon -if anie stranger sall resort this countrie sall suffer utter ruine.” -These bounds were as follows:-- - - “Vpon the east side of Scotland, frome Sanct Tabsheid [St Abb’s Head] -in the shiredom of Beruick directlie north to the Reidhead in Angus -whiche comprehends the coast of the Merce, Lothiane, the Firth, Fyfe -and ane part of the coast of Angus, and 14 myles without the course -frome the said Sanct Tabsheid to the Reidhead. Frome the Reidhead -north north-east alongs the coast of Angus, Mernes, Mar and Buchan -to Buchannesse, northwards and be north to Dungisbeyheid [Duncansby -Head] in Caithnes, comprehending thairin the coast of Bamf and Murrey -upon the south side, Murrey firth and the coast of Rosse, Sutherland -and ane part of Caithnes vpon the north, and fourtene myles without -the course frome the said Buchannesse to the said Dungisbiehead, -and frome the same Dungsbie in Caithnes west alongs the coast of -Caithnes and Strathnauer to Farrayheid in Stranauer [Cape Wrath], -and fourteine myles aff the said coast, with fourtene myles round -about the yles of Orkney and Yetland. Frome the Farrayheid alongs the -coast of Stranauer to the head of Stoir of Assint [Stoir Head] and -14 myles aff the said coast, and frome the said heid of Stoir Assint -directlie west north-west to the eastmost point of the yle of the -Lewes, comprehending thairin the haill seas interjected betuixt the -said heid of Stoir of Assint and eastmost point of the said yle of -the Lewes, with all the yles and loches within the same, and 14 myles -without the course frome the said heid of the Stoir of Assint to the -said east point of the Lewes; frome the said eastmost point of the -Lewes south about the haill yles of the Lewes to the westmost part of -Barra, and 14 myles without the samine; frome the said westmost part -of Barra n-west, south, south-east to southmost part of the yle of Yla -[Islay], frome the said southmost part of yla south-east to the mull -of Kintyre, frome the said mull of Kintyre n-west, south-east, to the -mull of Gallouay: Whiche bounds frome the said heid of Stoir Assint -west north-west to the eastmost point of the Lewes and frome thence -south to Bara be Yla, and mull of Kintyre to the mull of Gallouay, -comprehends the haill west yles and loches within the samine with the -loches vpon the mayne of Stranauer, Tarbet, Lochaber, Kintyre, Argyle, -Renfrew, Cuninghame, Kyle, Carrick, Gallouay, Quhithorne; alongs the -coast of Gallouay eastward to Solloway [Solway] sands and 14 myles -aff the said coast. Quhilk bounds above designed being so necessar -both for the haill lieges living vpon the saids coasts and yles, as if -these sould be exhausted be strangers of fishes, they sould be depryved -of all benefite of living and so be tyme bring ane vtter desolatioun -vpon the land, as lykeways so necessar for ws of the borrowes [burghs] -as without the said fishing the most part of our inhabitants sould -be brought to extreem miserie. Quhairfoir we of the burrowes doe -humbelie beseeke your Lordships to recommend the bounds abone designed -to the saids commissioners in suche maner as they give not way that -strangers be permitted to fishe within the saids bounds vpon anie -conditioune.”[420] - - * * * * * - -A glance at the accompanying chart, indicating the boundary of the -“reserved” waters as claimed by the burghs, will show how large an -extent of the neighbouring seas was considered to be necessary for the -subsistence of the people. Not only were all the great firths included, -and the waters of the Minch and within the Isles, but it will be -observed that the fourteen-mile limit around a very great part of the -coast was drawn, not from the shore, but from an ideal straight line -uniting the headlands. - -When this report from the burghs was submitted to the Privy Council, -they professed to find it “to be of too large an extent”; and they -therefore, as they said, “out of their desire to his Majesty’s -contentment and for the advancement of the great work,” proceeded to -“retrench and restrict the universality of the exceptions” made by -the burghs. The true spirit of the Council was, however, shown by the -fact that their alternative scheme was practically the same. They -rearranged the description of the lines at the Orkneys and Shetlands -without diminishing the extent of the enclosed sea, and they carried -the boundary down the east instead of the west side of the Hebrides, -and so on to Islay. They thus reduced the area of the waters proposed -to be reserved by omitting only the strip of fourteen miles to the west -of the Hebrides. The Council declared that they had reserved an area -of fourteen miles off such coasts as were well peopled, and where the -inhabitants lived mostly by fishing, and could not possibly subsist -and pay their rents and duties without it. They also stated that if a -buss-fishing had been established in Scotland,[421] the fishing would -have been reserved for the use and benefit of the country people, -“seeing it cannot be qualified that ever any Hollanders or other -strangers fished in these waters.” - -In transmitting the two schemes to the commissioners in London, on -31st April 1631, the Council observed that at first the burghs had -“stood very punctually” on the instructions at first issued to the -commissioners, saying there was no need to particularise the reserved -waters, since they had been included in the Act of Union, but that -they had been persuaded to abandon this attitude and condescend to -particulars. If this was not a stroke of Scotch humour, it would -indicate that the measurement of the fourteen miles mentioned in the -Draft Treaty was to be understood as expressed in the report of the -burghs.[422] - -[Illustration: Fig. 9.--_Showing the limits of the “Reserved Waters” -claimed by Scotland._] - -This kind of zeal for the “great work” on the part of the Scottish -Council and burghs was naturally displeasing to the king and the -English commissioners. Coke fumed at the obstacles raised by the -Scottish commissioners against the realisation of his pet scheme. They -disclaim not the name of association, he said, but they decline the -only way of establishing it; we propound a government, and they say -their laws are against it; we desire freedom to fish in all places -where, by his Majesty’s license, it may be lawfully granted to us, and -they reply by the “reserved waters” which “would leave no more scope -to the company than strangers now enjoy.” Nay, they even propound a -further limitation, and request that bounds may now be set to the -seas of England and Scotland; “which debates,” he adds, “tending to -division, we labour to avoid.” At this time the minds of English -statesmen had not yet become saturated with lofty ideas of the king’s -sovereign prerogative in his seas, and Coke did not then, as he did a -little later, make use of high arguments of that kind. But he believed -that the opposition of Scotland would be prejudicial to the scheme, -and that further negotiations would be vain; and he proposed that an -English company should be formed without waiting for the concurrence -of Scotland.[423] But Charles was more patient. In June he again sent -Sir William Alexander, the Secretary for Scotland, to Edinburgh, and -despatched a letter to the burghs assuring them that he would be -careful to preserve their privileges and liberties, and another to the -Privy Council in which he expressed his astonishment that they had -reserved so many places, and likewise “fyftene myles [_sic_] within -the sea distant frome everie shoarr, where it would seeme expedient -that these of the association for this generall fishing, as they have -libertie to land in any place, paying the ordinarie dewteis, sould -lykewayes be free to fish where ever they ar to passe.” He plainly told -the Council that while he was willing to reserve for the natives all -such fishings without which they could not well subsist, and which they -of themselves “have and doe fullie fishe,” he would not allow anything -to be reserved which might hinder the general work which was so -important for all the kingdoms; and he enjoined them to give their best -attention to everything that would conduce to the accomplishment of -his desire. In a later letter to the President of the Council, Charles -expressed his fears that if the places proposed were reserved the -great business of the fishing would be put in hazard.[424] On receipt -of the king’s letter, the Council, on 28th July, summoned before them -the representatives of the burghs, who on being asked if they were -yet resolved on their answer, said they were not; they were thereupon -requested to consider the matter and to report at the meeting on 21st -September. - -The resolute attitude of the king was not without its effect. The -burghs now modified their demands, but they still declared that it was -necessary to reserve the “Firth of Lothian” within a line between St -Abb’s Head and Red Head; the Moray Firth within a line between Buchan -Ness and Duncansby Head; the Firth of Clyde between the Mulls of -Galloway and Cantyre, and also the waters within fourteen miles along -the coast between Red Head and Buchan Ness. They further desired that a -space of fourteen miles outside the boundary lines of the Firths should -be reserved, but on this point they stated their willingness to submit -themselves to the king.[425] - -The modified proposals of the burghs were submitted to the Privy -Council on 22nd September by certain noblemen, gentry, and -commissioners of the burghs, and an additional reason for reserving -the fourteen miles along the coast between Red Head and Buchan Ness -was now brought forward. If this space were opened to buss-fishing, it -would, they said, ruin the salmon-fishings of the Dee, Don, Ythan, -and the two Esks, “to the great prejudice of the whole kingdom.” The -question of the reserved waters at the Isles and on the west coast -had not been dealt with by the burghs, and the Council asked them to -report on these. The burghs thereupon modified their original demands, -specifying certain places that should be reserved, where the fishings -had been continually carried on by Scottish fishermen and merchants, -who were able, they said, to undertake and fish the same “to the full,” -and within which no stranger had ever been admitted to fish. These -places were as follows: (1) all lochs on the mainland between Farryhead -(Cape Wrath) and the Kyle, together with Loch Hourn on the south side -of Kyle; (2) the east side of Lewes, Uist, Barra, and “Muggersland” (? -Mull), and the lochs of the same, together with the Broad Loch and the -“Bybleheid” on the north-east part of the Lewes; (3) “Lochusherd” (? -Loch Eishort) in Skye; (4) between the islands and the mainland, from -“Farayhead” to the north-east point of Lewis, and for fourteen miles -without the line between them it was “absolutely necessary,” for the -good of the fishings in the lochs above mentioned, that no buss-fishing -should be permitted. All the salmon-fishings were to be wholly reserved -for the natives, and the burghs expressed the wish that fourteen miles -around the Orkneys and Shetlands should also be reserved, but they -referred this to the king. The question of the remaining lochs on the -mainland between the Kyle and the Mull of Cantyre, and of the waters -on the “backside” of Lewis, Uist, Barra, “Muggersland,” and Skye, -except those previously mentioned, was to be “remitted” to the king’s -consideration.[426] - -The Council forwarded these propositions to London, and the burghs -instructed their own commissioner in a like sense, but with an -important qualification as to the Hollanders fishing on the coast -of Scotland. The king was to be informed of the great oppressions -and wrongs suffered by his subjects from the encroachment of the -Dutch on the seas and coasts of the kingdom, at Shetland and Orkney, -and lately at the Lewes. If these encroachments were allowed to -continue, the burghs declared that the rich fishings would be made -quite unprofitable, and they appealed to the king “to free the seas -of Scotland and the Isles of the busses of the said Northlands -(Netherlands),” and of other strangers, from Hamburg and Bremen, -resorting to Orkney and Shetland. At the very least, they said, he -ought to free the seas of the Dutch busses or fishing-boats “for the -space of twenty-eight or fourteen miles, and to discharge them to have -any fishing near the coasts of the said mainland or isles.” If the -king would do this, the burghs promised to further to the utmost of -their power “his Majesty’s most royal work of fishing,” to supply the -proportional number of busses that might fall to their part, and to -consent that liberty should be granted to Englishmen and Irishmen to -fish in all the waters around Scotland, except the Firths of Lothian, -Moray, and Clyde, and those reserved for salmon-fishing; but they would -only agree to this on the condition stated and not otherwise. They -also asked that the buss-fishing should not be allowed at the Lewes, -that it should begin on the east coast on 24th June and the fishing at -the Isles on 1st September, and that they should receive equal liberty -to fish in the seas of England and Ireland for pilchards and white -fish.[427] - -In the debates between the Scottish and English commissioners in -London, at most of which the king was present,[428] Coke exerted -himself to reconcile the differences that existed. He adroitly -pointed out that, as the complaints from Scotland showed, strangers -now possessed their fishings, and said they would be able to oust -them only by degrees and by making the most of the natural advantages -on the sea which both nations had. And while claiming that all the -fisheries in the British seas (and even in America) belonged to the -crown, and that there could not therefore be, strictly considered, any -right to “reserve” certain of them, still the king, by the undoubted -right of sovereignty he had in all his seas, had power to give license -of fishing within them, either to subjects or foreigners as he might -think fit, and by his royal prerogative alone he could establish the -proposed company “whereby all his subjects which are brethren thereof -may enjoy that fishing by right which strangers have by usurpation in -our seas.”[429] By this time the Scottish commissioners were becoming -reconciled to the proposal of forming the society on very much the -original plan, and their opposition, perhaps partly from the presence -of Charles at the conferences, was beginning to give way. They had been -told, too, in answer to some of their objections, that while it was -the king’s intention to maintain existing rights, all their liberties -depended wholly upon the king’s grace, and he had expressed his purpose -that his Council in both kingdoms should advise them in anything that -required further consideration. It was much to be desired, they were -told, that his Majesty’s clear intentions should prevail with them as -they had done with the English commissioners, not to question, but to -advance and settle so needful a work.[430] - -Charles himself came forward to help them with an alternative plan -to that of the “reserved waters.” The ground upon which the claim -to the latter was based had gradually shifted. The initial argument -that the surrounding seas pertained to Scotland as an independent -kingdom--that they were the “seas of Scotland”--had been disposed of -by the declaration that the right to the sea and to its fisheries was -a prerogative of the crown; and it could not be denied that though -no union of the kingdoms had taken place, there certainly had been -union of the crowns. The question of the prerogative was a thorny one, -which the Scottish commissioners had to avoid; and the claim to the -reserved waters was now made solely on behalf of the poor inhabitants -of certain parts of the coast, who subsisted mainly by their fishing in -the sea, and would, it was said, be reduced to poverty and indigence -unless these waters were reserved for their exclusive use. To meet -this objection, Coke proposed a resolution at one of the meetings that -the king should be asked to lay down a regulation to guard against -interference with the poor fishermen at the places where the fishing -of the company would be carried on, and at the next meeting a draft in -the king’s handwriting, perhaps laid on the table by Charles himself, -was read as follows: “The English commissioners desire to take away -all showes of wordes that may show diffidence between the two nations, -and hauing heard that the Scots commissioners are to desire some -places to be reserved from the company or association, it is conceived -this to be the fitter way:--That instead of those reservations, that -the association should appoint the same fishermen that now fishe in -them, [so that they] may continue as particular company of the said -association, and to be subject [to] the law of the same, and are -willing that no others should fish in those places, [unless] it be -found upon examination that those places may admit more fishermen than -those that now fish in them, and in that case the great committee -of the association shall add such to them as they shall think fit, -desiring them always to remember that the said committee is compounded -equally of both nations.”[431] The king’s proposition was in keeping -with the intention of Coke, “to bring all private fishing vessels under -the company,” and though it was obviously impracticable, it furnished a -plausible argument against the claim to reserved waters. - -After further conferences a number of articles were agreed to: That -an association should be established, with no joint-stock except that -received from those who voluntarily joined the undertaking; that a -standing committee of the two nations in equal numbers should be -formed, some of whom were to be appointed, also equally from both -nations, to judge of controversies amongst the busses according to -regulations to be made, with the right of appeal to the standing -committee. Two hundred busses were “propounded” for the first year; -“whereof,” said the Scots commissioners, “wee gott to advise what -number we would undertake, but our answer was never yet sought; always -we intend, God willing, to sett out 100 busses.” The main point, in -regard to the reserved waters or fishing-places, was left for the -king’s consideration. Finally, the king was to be asked to give order -for drawing up the charter of association.[432] - -In July 1632 Charles was able to announce that the difficulties were -overcome and the negotiations completed, to his “great contentment,” -and with the mutual consent of both parties. Desirous of removing as -soon as possible the causes of the complaints which had been made -by the burghs, he wrote to the Privy Council at Edinburgh about the -great wrongs done by the Dutch inhabiting the Lewes and fishing -there “against the laws of that our kingdom,” instructing them to put -in force a decree which had been previously issued at the request -of the burghs, to prevent all strangers from trading or fishing -there or at Shetland.[433] He also requested the Council to prohibit -unseasonable fishing for herrings at Ballantrae Bank near the mouth -of the Clyde, which, he had been informed, was very injurious to the -herring fisheries on the west coast of Scotland, the Isles, and the -neighbouring coast of Ireland, by destroying the fry of herrings at -unseasonable times, which, he was informed, if they were spared, might -produce such plenty in all these coasts as might very much advance -the intended work of fishing. At the same time he declared that it -was necessary to establish settlements for the fishings at the Isles, -and the Council were asked to take sureties from the landlords of -the Isles, and of the lochs of the mainland, against violations or -oppressions on those of the association engaged in fishing there, and -from exacting any duties or impositions from them. The Council was also -invited to take into serious consideration the Act of the Scottish -Parliament “of 4 James IV.” respecting the building of busses by the -noblemen, and to use their best means to put it into execution.[434] -The nobility and gentry of Scotland were apparently expected to build -forty busses for fishing on both coasts, at an estimated cost of -£10,960; and in addition to equip them with nets, salt, casks, and -victuals.[435] - -On the all-important question of the reserved waters the king did not -grant the “irreducible minimum” of the burghs. The condition which -the burghs attached to their surrender of everything except the three -great Firths, that is, the exclusion of the Hollanders from fishing -on the coasts of Scotland, was in the meantime nominally met by the -instructions to the Council mentioned above. In two or three years, as -we shall see, when his naval power was greater, he would attempt to -carry out their desire in quite a forcible and dramatic way. Charles -would not concede the Moray Firth as an exclusive preserve for the -Scottish fishermen, but he gave up to them the Firth of Lothian within -a straight line from St Abb’s Head to Red Head in Forfarshire, and also -the Firth of Clyde within a line drawn between the Mulls of Galloway -and Cantyre; because, as he said, the inhabitants of the coasts of -these parts were chiefly maintained by the fishing within them and -could not well subsist otherwise. These waters were therefore to be -reserved to Scottish fishermen, “according to ancient custom.”[436] - -Everything having been arranged to the king’s satisfaction, he issued a -commission providing for the establishment of a Fishery Society under -the great seal of both kingdoms, which was approved by the Scottish -Parliament on 7th September 1632.[437] The Society was to consist of -twelve councillors appointed by the king, six of them to be English or -Irish and six to be Scots,[438] and also a “commonalty” composed of -a large number of noblemen and other persons. They were empowered to -appoint officers, to make laws, and to punish transgressions. In every -“province” of the kingdom and in the towns most convenient, “judges” -were to be elected by the resident members to settle disputes and make -regulations. The members, their servants and fishermen, were favoured -by certain immunities and privileges; they and their vessels were -exempt from impressment for the king’s service and relieved of certain -civil obligations. They were to be free to fish for sea-fish wherever -they pleased “within his Majesty’s seas” and dominions, and at the -isles pertaining thereto, as well as in the “lochs, creeks, bays and -estuaries” wherever herrings or sea-fish were or might be taken, except -in such creeks or firths as might be reserved in a proclamation of the -king. On the trading side of the enterprise, they were to be at liberty -to carry the fish to any place within the kingdom, “as well within free -burghs as without them,” to salt, dry, and barrel them, to erect the -necessary buildings and magazines, and to dispose of the fish as they -thought best, within the realm, or to export them either in their own -vessels or in others. Other clauses prohibited any person not a member -of the Society from exporting, or causing to be exported, abroad any -sea-fish taken within, or brought within, his Majesty’s dominions. -Charles and his advisers aimed at no less a thing than to bring the -whole of the sea fisheries and fish-curing industries of the country, -as well as the foreign exports, under the control of the Council of the -Society. The whole business was then to be organised and developed in -such a manner that the Dutch fishermen would be driven from the British -seas, and the nation to which they belonged deprived of the commanding -position which, it was believed, their fisheries had been the chief -means of conferring. - -But the patience and perseverance of Charles in wearing out the -opposition of Scotland to his scheme, and in giving it the semblance -of a national design, were most inadequately rewarded. Like almost -everything to which he put his hand, the fishery association failed -miserably. The Scottish burghs promised to equip sixty busses for -the fishing in the following year, but in point of fact the Scottish -people took scarcely any part in the operations of the Society. The -London merchants, canvassed personally by Sir Thomas Roe and appealed -to by Pembroke, also held aloof. They gave “fair answers,” but kept -their money. The subscriptions, or stock, came almost exclusively -from persons about the Court, from naval officers and others desirous -of preferment. The first meeting of the Council was called for 24th -January, but so few members attended that the meeting had to be -adjourned until 19th February, when it took place in the Star Chamber. -Oaths were administered, two silver seals were ordered (and never -paid for) at a cost of £12, and Captain John Mason was made “Admiral -of their fleet” of busses. Differences of opinion soon arose in the -Council, and the Society split up into two branches or associations, -one under Weston (now Earl of Portland),--that “man of big looks and -of a mean and abject spirit,” as Clarendon describes him,--and after -his death, under the Earl of Arundel; the other branch under the Earl -of Pembroke, the Lord Chamberlain, who appears to have been almost -the only one, besides the king and Coke, who took a sincere personal -interest in the Society. Portland’s society had its headquarters at -Lewis, while Pembroke’s was more particularly designed to carry on -operations at Shetland and the east coast, but also had a station in -the Lewes. The total amount of the subscriptions to the Society up to -3rd February 1636 was £22,682, 10s., of which only £9914, 10s. was -paid up, and the company had been forced to borrow £3550 at interest -to set the scheme afloat. The stock of Portland’s association amounted -altogether to £16,975 up to and including the year 1637, while the -losses in the same period reached £21,071, 5s. 7d. - -Ground was acquired and houses and magazines for salt and casks erected -at the Lewes,[439] and several busses were purchased in Holland by -both associations, ready for fishing and manned entirely by Dutchmen. -Agents despatched to Shetland and Lewis sent favourable reports of -the prospects. “We hope,” said the one at Lewis, “to furnish London -with some plenty against the hard times of winter”; yet the total -quantity of herrings cured at the island in that the first year of the -Society’s fishing was only 386 lasts, and the price obtained for them -was so low that the loss amounted to £4261. This, according to the -agents, was due to want of proper means of curing them (salt, casks, -hoops, &c.), otherwise they said they might have obtained 1000 lasts -or more. A great effort was therefore put forth in the following -year. Preparations were made to deal with 1500 lasts, and vessels were -chartered to carry them from Stornoway to various Continental markets. -But less than 443 lasts were cured in the second year; some were sent -to Dantzic and fetched “mean prices,” the rest reached London “when -Lent was wellnigh over,” and were sent on to Dunkirk and Dantzic, the -vessels coming back in ballast, and the loss in this year was £8163, -19s. 4d.[440] In this way the operations of the Society went on. The -herrings then failed to come into the lochs, and the Society turned -its attention to the salting and exportation of beef, salmon, cod, and -coal-fish,--a course fraught with less disastrous financial results, -but not well calculated to carry out the objects for which it was -founded. - -Ill-fortune was encountered in other directions. Both the islanders and -the Scots from the east coast treated the English adventurers badly. -The Bishop of the Isles and the heritors insisted on their tithes -and dues in spite of the king’s charter. The busses were attacked -by bands of Highlanders, armed with “swords and bows and arrows and -other warlike weapons,” who took various articles from them in lieu -of dues. The Lowlanders, under the leadership of “one Thomas Lindsay, -a fisherman of Crail,” who pretended to be the deputy to the deputy -of the Vice-Admiral of Scotland, were still less considerate. Lindsay -“villified” their certificates, declared that King Charles had nothing -to do with the Lewes, and vowed that “he would be the death of every -Englishman on the island.” He forcibly seized one of the vessels laden -with herrings which had gone ashore, on the ground that it was wreck, -and wreck belonged to the Admiral of Scotland, and committed other -hostile actions. The grievances of the Society became so acute, and -redress from the Privy Council and the Admiralty Court so tardy and -imperfect, that Charles in May 1635 appointed a commission, consisting -of Archbishop Laud, the Earl of Pembroke, Sir Thomas Edmonds, and -Secretaries Coke and Windebank, as judges, according to the charter, to -deal with cases as they thought fit. - -Disasters at sea were even more injurious to the Society than the -troubles ashore. Again and again the busses were taken by Dunkirk -privateers, who threw the crews into prison and held them for ransom. -When those freebooters came across a Dutch-built buss, with a Dutch -crew on board, they did not quite see why they should relinquish it -because they were told it belonged to an English society; and the -letters of “denization” which were provided by the king did not avail -them much.[441] Notwithstanding strong protests, prolonged negotiations -with the Cardinal Infanta, and reprisals made by English men-of-war on -Dunkirk shipping, the Society suffered great loss in this way. - -The misfortunes of the Society caused many of those who had promised -subscriptions to withhold them. Then followed drastic measures: -summonses before the Star Chamber, warrants for apprehension, threats -of imprisonment, and most of the subscriptions were squeezed from the -unwilling adventurers. On the other hand, creditors sued the Society -for goods supplied and money lent; seamen sued it for wages; even the -clerks had to petition the king for theirs, appropriately suggesting -that they might be paid from the license-money that Northumberland’s -fleet had extorted from the Dutch herring-busses.[442] As Charles’s -domestic troubles thickened and his power on the sea began to wane, -Pembroke and his associates became more and more importunate for help. -Petitions were conveyed to him, and then “remonstrances.” He was -pointedly reminded that he was the originator and “Protector” of the -Society; unless he “really” helped them the work must stop. But Charles -was then unable either to compel the restitution of the captured -busses or to induce his subjects to subscribe to the Society’s funds. -He did what he could. Pennington and the Warden of the Cinque Ports -were ordered to seize Dunkirk ships to be sold for the benefit of the -Society; he granted them a standing lottery, and issued a proclamation -enjoining the strict observance of Lent, which might possibly help them -by increasing the consumption of fish, and could at least do them no -harm. Almost his last act in connection with the fishery association -was to issue an Order in Council in which, somewhat irritably, he -blamed the Dutch for the failure, and remitted to an influential -committee to consider some means by which the fishery in the north -seas might be “advanced and settled,” and particularly whether the -Dutch should not be deprived of English lampreys for bait, which were -necessary for their cod-fishing.[443] It was a great fall for Charles -as Lord of the Seas, with a policy as sketched at the beginning of this -chapter, to use the lampreys of the Thames as a weapon against the -Dutch rather than a powerful armada. But by this time his power at sea -had vanished. The Dutch lorded it in the Channel. - -When the Order in Council was penned, Tromp had hemmed in the Spanish -fleet in the Downs and was ready to pounce on it the moment it quitted -English waters, or to destroy it there if he only could get a plausible -excuse. Charles and his Council were trembling with fear lest the best -known of all the “King’s Chambers” should be flagrantly violated by -the impatient Dutchman, with all the world looking on. And twelve days -after the Council meeting this is just what Tromp did, and Charles’s -sovereignty of the seas vanished for ever. And the fishery scheme, “the -Royal Fishery of Great Britain and Ireland,” set agoing after so much -patient labour, heralded by so many promises of profit and success, -designed to be a great instrument for the development of naval power -and commerce, was extinguished in the following year, with no tangible -result save that those who had given their money to it were left “great -losers.” - - - - -CHAPTER VII. - -CHARLES I.--_continued_. THE NAVY. - - -Since Charles had resolved to assert his claims to the sovereignty -of the sea by force if necessary, it was obviously essential that he -should have a strong and capable fleet. During the peaceful reign of -James the navy had greatly deteriorated from what it had been under -Queen Elizabeth.[444] The expedition to Cadiz in 1625, and that to Rhé -two years later, revealed startling inefficiency and disorganisation, -and efforts were soon made to bring it into a better state. When he -assumed the crown, his fleet consisted of thirty ships; in 1633 it -numbered fifty, including the ten small vessels called the “Lion’s -Whelps”; and when the Civil War broke out there were forty-two, the -difference being due to the shedding of the smaller ones.[445] - -There were many reasons why a strong fleet should be provided, apart -from any question of enforcing a new political sovereignty over -the North Sea and the Channel. The maritime strength of the United -Provinces was growing quickly, and France, under the wise and energetic -guidance of Richelieu, was rapidly becoming a formidable naval power. -Within the space of about five years before 1631, as Charles knew, the -Cardinal had created a fleet of thirty-nine ships, of which eighteen -were of 500 tons or over, and no less than twenty-seven had been built -in French ports.[446] These two states were drawing closer together, -and while it was known that their alliance, which was then mooted and -was soon realised, would be chiefly directed against Spain, it was -nevertheless a danger to England unless she was strong enough to defend -her rights on the sea. - -Other reasons were the insecurity of the seas from the prevalence -of piracy, and the violation of the “King’s Chambers,” and even of -English ports, by the Dunkirkers and the Dutch. Moorish pirates swarmed -in the Channel and made havoc amongst English shipping. So bold and -successful were they, that in 1631 they seized and sacked Baltimore, -on the coast of Munster, and carried off over 200 English subjects -into slavery. Within a space of ten days they captured twenty-seven -ships and 200 men.[447] The Dunkirkers played a corresponding _rôle_ -in the North Sea. In a petition to the king in 1627, the ship-owners -of Ipswich complained that within a year the Dunkirkers had captured -five of their ships, valued with their cargoes at £5000, and carried -the crews to Dunkirk. No ship, they said, could go to sea, and the -livelihood of seafaring men was taken from them, and the king’s service -would thus suffer. The Mayor and burgesses of King’s Lynn put the -losses of the town at twenty-five ships, worth £9000, and complained -that they were unable to carry on the Iceland fishery. The Cinque Ports -also complained that the Dunkirkers had taken their goods, imprisoned -their mariners, and rifled and sunk their ships on the English shore; -and they asked for a guard to enable them to go to the fishing in the -north and at Scarborough and Yarmouth. The alarm was general all along -the coast. In February 1629 the bailiffs of Yarmouth reported that the -sea was overrun with Dunkirkers, who had even rifled and fired one of -their ships close under the cliffs at Mundesley, notwithstanding the -efforts of the sheriff and posse of the county; they said 250 fishing -vessels were ready to go to the northern fishing and awaited convoy. -In the next year they and other towns of Norfolk and Suffolk stated -their intention of sending out two fishing fleets of “ships, barks, and -crayers,”--one of 160 sail to Iceland and Westmony, and the other of -230 sail for the north seas,--and they begged for ships of war to guard -them, as the livelihood or “utter ruin” of 10,000 people and their -families depended on these fleets. Two years later they repeated their -request to the Admiralty, saying they usually sent out a fleet of -about 300 sail, with 5000 persons, to the fishings mentioned, but the -fishermen were now so terrified by the Dunkirkers that they refused to -go. The Mayor of Newcastle also informed the Council that they had been -despoiled to the extent of £7000; he said there were 300 sail in port -which dared not venture out; and the Council were asked to take means -to secure safe passage on the sea. At this time there were said to be -forty Dunkirk privateers scouring the North Sea, many of them with -English sailors on board.[448] We have already seen how successfully -these freebooters preyed upon the busses of the Fishery Society. - -Here then was a clear case for a navy, when an effective navy did -not exist. The Council and the Admiralty took such isolated measures -as they could; but the Dunkirkers were almost always too nimble to -be caught. “They take ships,” wrote the commander of a man-of-war -convoying the Iceland fishing fleet, “and we in sight and cannot come -up to help it.” The duty and expense of providing convoys to protect -the fishermen were thrown on the fishing ports and the counties. In -1627 the Council ordered four Newcastle ships to be taken up for eight -months, to convoy the Iceland fleet, at a cost of £1768, to be paid -out of the “loans” in Suffolk. The estimate in the following year for -a guard of four merchant ships, of 400 tons each, with 120 men for -one month in harbour and 240 men for six months at sea, was £4399; -and the Council in authorising the Admiralty to “press, victual, arm, -and man” the ships, instructed that if Yarmouth and the other towns -wanted convoy in future they should first consult together as to some -mode of levying monies for it, either upon the coast towns or upon the -counties of Norfolk and Suffolk. This was done, in part at least, by -levying a contribution of twenty shillings from each fisherman; and -fishermen also protected themselves by insuring their vessels in London -against the risks of capture by the Dunkirk privateers. The owners and -masters of the merchant ships thus pressed to act as guards to the -fishing fleets were usually most unwilling to serve, and sometimes -“utterly refused,” and the Admiralty had to get an Order in Council -to compel them.[449] Provision of a guard for the east coast generally -was attempted by levying a duty of two and five shillings a ton on all -coal laden at Newcastle or Sunderland for English and foreign ports -respectively.[450] - -Equally impressive evidence of the lawlessness that then reigned on the -sea, and of the inability to deal with it effectively, was furnished by -the flagrant violation of English ports and roadsteads, by the Dutch -as well as the Dunkirkers, who waged incessant war with one another. -The herring-busses and merchant vessels of the former were frequently -captured, rifled, and burned by the privateers, and when the commander -of a Dutch man-of-war had a chance of destroying one of the pests, he -was not always deterred from vengeance by the Dunkirker taking refuge -in English waters; and in like manner the privateer did not scruple to -pursue his prey into English ports and anchorages. Sometimes, indeed, -the warfare was continued on English soil and the lives of the king’s -lieges endangered. In 1634, for example, a Dunkirker chased a Hollander -vessel into Yarmouth harbour and robbed her, and a lively fusillade -went on between the Dutchmen, who had taken refuge on the pier, and -the crew of the privateer, and one of the former was killed. As the -Dunkirkers refused to stop their “furious assault,” the bailiffs -ordered two of the town’s guns to be fired at them, “which they only -scoffed at”; and when the marshal called upon them in the king’s name -to desist and begone, they only “answered with unseemly gestures and -scorn,” and they did not make off until a company of musketeers went -down to them. But next day as the privateer was hovering off the coast, -two States’ men-of-war bore down upon her and she ran for shelter to -the beach near Lowestoft; but the Dutch followed, seized her, and -carried her off, the crew escaping to shore, where they were promptly -arrested and lodged in Yarmouth jail. - -A still more outrageous transgression of the neutrality of an English -port took place in the following year, at the very time that Lindsey’s -fleet was cruising in the Channel. A Dunkirker brought a Hollander buss -into Scarborough harbour, and she was followed by a States’ man-of-war, -which opened fire, and a fight both with cannon and muskets took -place. The bullets, flying into the town, hit several of the citizens, -and some strangers on the sands were also hurt, “to the amazement -and discouragement of the whole town.” Twelve Dunkirkers were slain, -and the rest only saved themselves by swimming ashore, while the -man-of-war went off with both the privateer and the buss. A fortnight -later another privateer was chased into the harbour by a Hollander -man-of-war, which landed three or four score of men, armed with muskets -and pikes, to set upon the Dunkirkers when the ship lay dry; and the -Dutch captain only consented to re-embark them, on condition that the -bailiffs of the town would themselves place a guard of fifty men to -watch the privateer, so as to prevent any of the crew escaping.[451] - -This glaring outrage on English soil caused the Council to arrest a -Dutch man-of-war, to be held until the one that had committed the -misdeed should be delivered up; for, said Windebank, it was a matter -that concerned the king himself in point of honour and the safety of -the kingdom, as an act of hostility, “little less than an invasion,” -had been committed in landing armed men on his Majesty’s territories, -“violating his imperial chamber and threatening his subjects.” -Nevertheless, in the next month a like offence was committed at Blyth, -when a Dutch man-of-war not only attacked a Dunkirk privateer lying -in the harbour, but landed fifty men armed with muskets, who marched -in military order nearly half a mile, “to the great terror of the -inhabitants,” and by seizing the fishing-boats, captured the Dunkirker -and took her away. Not only so, but thirty of the Hollanders, armed, -and with trumpets, pursued the crew of the privateer on land for -a distance of two miles.[452] There was a natural excuse for the -violence of the Hollanders in these proceedings. They were exasperated -by the immense havoc which the privateers had just committed on their -herring-busses, by sinking or burning over 100 of them, the remainder -of the fishing fleet escaping into Scottish and English harbours.[453] - -This insecurity of the sea and the open and daring violation of English -ports remind one of the conditions that too frequently prevailed in -earlier centuries. The misdeeds must have been galling to Charles, -for only a short time before he had issued a public proclamation with -the object of putting a stop to them. In February 1633 Sir H. Marten, -Judge of the High Court of Admiralty, along with the Attorney-General, -had been instructed, in view of the war between Spain and the United -Provinces, to draw up a regulation whereby “his Majesty’s ancient -rights, honours, and sovereignty in the narrow seas and in the chambers -and ports may be preserved, and the trade of the kingdom of England -and Ireland secured.”[454] In this regulation (which is printed in -Appendix H) a claim to absolute dominion over the Four Seas was made. -The king spoke of “that sovereignty and especial and peculiar interest -and property which he and his predecessors, time out of mind, have -had and enjoyed in the said seas, and so approved not only by the -fundamental laws of this his kingdom, but by the acknowledgment and -assent of the bordering princes and nations, as appeareth by undoubted -records”--language which seems like an echo of Selden’s _Mare Clausum_. -Moreover, in referring to the limits of the “King’s Chambers,” he -continued: “Albeit his Majesty doth justly challenge sovereignty and -property in all those his seas, far beyond the limits hereafter to be -described, and might with like justice require from all persons using -those his seas a forbearance from injuries and all hostile actions, yet -(in and through all the same) suddenly to tie the hands of his friends -and allies in open hostility each with other, is not for some reasons -held convenient at this time,” and therefore he would cause the bounds -to be laid down within which he would yield peace and security to his -friends and neighbours.[455] - -Clearly, however, something more than a proclamation was required to -ensure the security of the seas and the neutrality of the chambers -and ports. As early as 1627 official proposals had been made to build -thirty ships of a small class to guard the narrow seas, which might -compete in swiftness with the privateers and freebooters infesting -them,--a plan that was partly carried out by the building of the ten -“Lion’s Whelps,” which, however, proved complete failures. An estimate -was also procured for building eighteen ships and two pinnaces, at a -cost of about £43,000, the estimated expense of the crews being £6100 -per month.[456] Various other schemes were considered, including one -to form a fleet of forty armed Newcastle colliers, to be employed -primarily in convoying the coal ships, but capable of being called -off at any time for the king’s service. The want of money was the -great obstacle to the formation of a strong fleet. The wages of the -seamen and others employed were always in arrear,--at the end of 1627 -the arrears amounted to £251,361,--and the victualling and furnishing -of the ships afloat were of the worst possible description.[457] The -necessity of a fleet to maintain the dominion of the sea and defend the -coasts was being constantly urged upon the king. The Attorney-General, -Heath, in 1632, called attention to the truism that our strength and -safety lay “in our walls, which is our shipping,” and he strongly -recommended that a powerful fleet should be maintained because of -the boldness of the Hollanders, and in order to preserve the king’s -prerogative in the fisheries in the British seas, as well as to secure -the mastery of the narrow seas.[458] - -Charles required no spur in a matter the importance of which he -thoroughly understood, and he had private and personal reasons for -wishing that a strong force should be placed on the sea. It was the -family policy as to the restoration of the Palatinate that chiefly -guided him. At the end of 1633 he entered into negotiations with -Spain for an alliance against the Dutch, and in the following year a -secret treaty was drafted and sent to Madrid (four days before the -issue of the first ship-money writs) in which Charles undertook to -provide a fleet, partly at the charge of the King of Spain, who was to -advance a sum of £50,000 and help to recover the Palatinate for his -nephew.[459] It was intended that the fleet should co-operate with -the Spaniards against the United Provinces; the ports of Flanders -were to be freed from the blockade maintained by the Dutch, and -Spanish vessels carrying soldiers and money for Dunkirk were to be -protected by English ships; the mastery of the Dutch at sea was to be -destroyed, the Republic was to be attacked and overthrown, and the -country divided between the allies. The open avowal of such a policy -would have been equivalent to making it almost impossible, for an -alliance with Catholic Spain against the Protestant Republic was in -the highest degree unpopular in England, and the fleet, moreover, -was to be created by means of the ship-money writs. The negotiations -had been carried on with the greatest secrecy; only three members of -the Council (Portland, Cottington, and Windebank) were in the king’s -confidence, the others remaining in ignorance. It was thus necessary -to deceive them as well as the nation as to the object of equipping a -fleet. The insecurity of the seas from the prevalence of piracy and the -violations of English waters, referred to above, were put forward among -the ostensible reasons to justify it. “The pretext of this arming,” -it was distinctly stated in 1634, “shall be to secure the coasts of -Great Britain and Ireland, and to free them from pirates and others -that commit hostilities and insolencies there.”[460] To deceive the -people by fears of invasion, owing to the “great preparations both by -sea and land of the neighbouring princes,” orders were given to have -the beacons along the coast examined; to muster and make ready the -trained bands to join their colours at an hour’s warning; to enrol all -untrained men between the ages of sixteen and sixty, so that levies of -them might be made “on any sudden occasion.”[461] - -Another reason put prominently forward to cloak the nefarious scheme -was the need of maintaining the ancient sovereignty of the sea. While -the Spanish negotiations were proceeding, Boroughs, as we shall see, -had finished his treatise on the rights of the crown in the adjoining -seas, and Selden was busy with his _Mare Clausum_. The language of the -ship-money writs, sent out in October 1634, and the charge of Lord -Coventry to the Judges, breathed the same spirit as these treatises. -In the writs, which were founded upon extracts made by Boroughs from -records of the times of Edward I., II., and III.,[462] the king -described how “thieves, pirates, and robbers of the sea” were “taking -by force and spoiling the ships and goods and merchandises, not only -of our subjects, but also of the subjects of our friends in the sea -which hath been accustomed anciently to be defended by the English -nation,” delivering the men into miserable captivity. The pirates, he -said, were daily preparing all manner of shipping further to molest the -merchants, unless a remedy was applied, and that in view also of the -dangers menacing the realm “in these times of war,” it was necessary -to hasten the defence of the sea and kingdom. Therefore, he continued, -“We willing by the help of God chiefly to provide for the defence of -the kingdom, safeguard of the sea, security of our subjects, safe -conduct of ships and merchandises to our kingdom of England coming, -and from the same kingdom to foreign parts passing; forasmuch as we -and our progenitors, Kings of England, have been always heretofore -masters of the aforesaid sea, and it would be very irksome unto us -if that princely honour in our time should be lost or in anything -diminished,” it was necessary for the sea-coast towns to furnish ships -or an equivalent in money.[463] In similar language Coventry told the -Judges in 1635 that the dominion of the sea, “as it was an ancient and -undoubted right of the crown of England,” so was it the best security -of the land, which was impregnable so long as the sea was well guarded; -and that those subjects “whose minds are most fixed upon the honour of -the king and country” would not endure that it should be either lost -or diminished. The safety of the realm, he said, required the dominion -of the sea to be kept and the sea guarded: “The wooden-walls are the -best walls of the kingdom; and if the riches and wealth of the kingdom -be respected, for that cause the dominion of the sea ought to be -respected; for else what would become of our wool, lead, and the like, -the price whereof would fall to nothing if others should be masters of -the sea?” If the dominion of the sea was lost, trade and commerce would -be lost by being placed at the mercy of the neighbouring nations, and -the whole kingdom would suffer.[464] - -In carrying out his Spanish policy, Charles’s first task was to deceive -his Council.[465] For this purpose no better agent could have been -chosen than Coke, who, as we have seen, was by this time enthusiastic -about the sovereignty of the seas, and was known to be hostile to -Spain. He was accordingly directed to prepare a report for the king on -the unsatisfactory relations between England and foreign countries, -and the need of providing a fleet. In the long statement he drew up, -Coke described how the credit of the country had been lowered abroad, -and innumerable wrongs and insolences suffered in various parts of -the world, because of the want of a sufficient navy to make our name -respected. “All free trade,” he wrote, “is interrupted”; within the -king’s own chambers squadrons of men-of-war from Biscay and Flanders -took not only Hollanders, but Frenchmen, Hamburgers, and his Majesty’s -subjects. From the Hollanders “we suffered most by their intrusion on -our fishings and pretence of _Mare Liberum_,” and they pursued and -took prizes in our ports and rivers. But our trade and rights were -injured everywhere,--from Constantinople and Morocco to Denmark and -Sweden,--and Coke recommended that the navy should be reinforced in -order that the king might obtain justice and “recover his undoubted -right of sovereignty in all his seas.”[466] Coke read his report to -the Council in June 1634; the ship-money writs were issued in October; -and in May next year the first of the “ship-money fleets” was ready -and was placed under the command of the Earl of Lindsey, with special -instructions to maintain the king’s sovereignty of the sea. - -On the Continent the naval preparations of England were followed with -close attention. As early as 1633, Joachimi, the States’ ambassador in -London, informed his Government that the English were putting forth -pretensions to be sole lords and masters of the narrow seas, and he -earnestly advised the States to avoid everything which might give the -English offence in their excitable condition, on a matter which they -had so much at heart.[467] An indication of the feeling prevailing in -England was observed by the ambassador early in the year, for when he -complained that Dutch vessels had been fired on from Portland Castle -and then detained, he was told they had presumed to put up their flags -in the face of the king’s colours flying on the walls.[468] Next year -the repeated complaints from England as to the violation of the King’s -Chambers by Dutch vessels of war, and the seizure of one of them by the -English in consequence of the attack at Scarborough, did not lessen -the apprehensions that began to be entertained in Holland. Rumours -circulated that the English fleet was being prepared for the purpose of -waging war against the Republic, and the answer given by the English -ambassador at The Hague to inquiries as to the object of the fleet -was not calculated to allay anxiety. In the spring of 1635, a little -before the Earl of Lindsey hoisted his colours on the _Merhonour_, Coke -wrote a long and resounding despatch to Boswell, the English ambassador -at The Hague, explaining the reasons for the naval preparations. -“First,” he said, “we hold it a principle not to be denied, that the -King of Great Britain is a monarch at land and sea to the full extent -of his dominions, and that it concerneth him as much to maintain his -sovereignty in all the British seas as within his three kingdoms; -because without that these cannot be kept safe, nor he preserve his -honour and due respect with other nations. But, commanding the seas, he -may cause his neighbours and all countries to stand upon their guard -whensoever he thinks fit. And this cannot be doubted, that whosoever -will encroach upon him by sea, will do it by land also when they see -their time. To such presumption,” he added, “_Mare Liberum_ gave the -first warning-piece, which must be answered with a defence of _Mare -Clausum_: not so much by discourses, as by the louder language of a -powerful navy, to be better understood when overstrained patience seeth -no hope of preserving her right by other means.” The innuendo against -the United Provinces was still further developed. They had impeached -the king’s dominion in his seas for a long course of years. They had -been permitted to gather wealth and strength in our ports and on our -coasts by trade and fishery, for which they had “sued to King James -for license,” granted under the great seal of Scotland; and when they -had possessed themselves of our fishings “by leave or by connivance,” -and obtained a great trade by our staple, they so increased their -shipping and naval power that now they would not endure to be kept -at any distance. “Nay,” exclaimed Coke, “to such confidence are they -grown, that they keep guard upon our seas,” and prohibit us free -commerce within them; they take our ships and goods unless we conform -to their placards. Besides all which, “what insolencies and cruelties” -they have committed against us in the past, in Ireland, in Greenland, -in the Indies, as known to all the world; care would be taken to -refresh their memories on these wrongs “as there should be cause.” -After a preamble of this sort one might expect a declaration of war -to follow. But the fleet, Coke continued, was neither for revenge nor -for the execution of justice for past wrongs. It was primarily to put -a stop to the “violent current of the presumption” of men-of-war and -freebooters, who had abused the freedom allowed by the king to friends -and allies to make use of his seas and ports, by assaulting one another -within his Majesty’s chambers and in his rivers, “to the scorn and -contempt of his dominion and power.” The king intended no rupture with -any prince or state; he was “resolved to continue and maintain that -happy peace wherewith God hath blessed his kingdom, and to which all -his actions and negotiations have hitherto tended.” But that peace -must be maintained by the arm of power, “which only keeps down war by -keeping up dominion.” Therefore the king found it necessary, even for -his own defence and safety, “to re-assume and keep his ancient and -undoubted right in the dominion of these seas, and to suffer no other -prince or state to encroach upon him, thereby assuming to themselves -or their Admirals any sovereign command; but to force them to perform -due homage to his Admirals and ships, and to pay them acknowledgments, -as in former times they did. He would also set open and protect the -free trade both of his subjects and allies, and give them such safe -conduct and convoy as they shall reasonably require. He will suffer no -other fleets or men-of-war to keep any guard upon these seas, or there -to offer violence, or take prizes or booties, or to give interruption -to any lawful intercourse. In a word,” Coke concluded, “his Majesty is -resolved, as to do no wrong, so to do justice, both to his subjects and -friends within the limits of his seas.”[469] - -The substance of this bombastic despatch, in which Charles was fully -displayed in his new figure as a Plantagenet, was communicated by -Boswell in a memoir to the States-General, and their High Mightinesses -must have rubbed their eyes as they read it.[470] But it at least -removed their fears of immediate war. Explanations of similar tenour, -but couched in more moderate language, were made to other Courts. The -intentions of the king were declared to be quite peaceful, and stress -was laid on the violations of the King’s Chambers, “to the great -derogation of that dominion at sea which has always of right belonged -to the Imperial crown of this kingdom”; the fleet was to free his -coasts and seas from such disturbances, to secure free trade to his -subjects and allies, and “to reduce his dominion upon the British seas -to the ancient style and lustre.”[471] - -Let us now turn to the fleet which was to carry out this grand -programme and see what it actually accomplished. The ships began to -assemble in the Downs in May, the Earl of Lindsey being appointed -“Admiral, Custos Maris, Captain-General and Governor” of the fleet, -with the veteran Sir William Monson as Vice-Admiral, and Sir John -Pennington as Rear-Admiral. It consisted of nineteen of the king’s -ships and five armed merchant vessels, making twenty-four in all;[472] -and though other ten royal ships which were being prepared to reinforce -it were ultimately discharged, it was said by the common people that -“never before had such a fleet been set out by England.” In the -king’s commission appointing the Earl of Lindsey it was stated that -he had thought fit, by the advice of his Council, to set forth to -sea a navy as well for the defence and safety of his own territories -and dominions as for the guard and safe-keeping of his seas, and of -the persons, ships, and goods of his own subjects and of his friends -and allies “trading by sea to and fro our dominions for commerce and -trade, and other their just and necessary occasions, from those spoyles -and depredations committed at sea ... and for sundry reasons and -considerations of state best known to ourselves.”[473] - -In the official instructions from the Lords of the Admiralty, issued -on the day after the secret agreement with Spain had been drawn up, -the Earl was ordered principally to guard the narrow seas and the -king’s subjects and allies trading through them, and so to dispose his -ships that “all parts of the seas, as well from the Start westward as -the rest of the Sleeve from the Start to the Downs, and from thence -northward, might be secured from men-of-war, pirates and sea-rovers and -of picaroons that interrupt the trade and commerce of his Majesty’s -dominions.” It was to be his principal care to preserve the king’s -honour, coasts, jurisdiction, territories, and subjects within the -extent of his employment, “that no nation or people whatsoever intrude -thereon or injure any of them.” If he met “in his Majesty’s seas” any -fleet or ships belonging to any foreign prince or state, he was to -expect that the admiral or chief of them, in acknowledgment of his -Majesty’s sovereignty there, should perform “their duty and homage in -passing by”; if they refused and offered to resist, he was “to force -them thereunto, and to bring them in to answer this their high contempt -and presumption according to law.” He was to suffer no dishonour to be -done to the king or derogation to his power or sovereignty in those -seas. If English ships so far forgot their duty as not to strike their -top-sails in passing, the commanders were either to be punished on the -spot or reported to the Admiralty, who would punish them exemplarily. -When he met with foreign men-of-war or merchant vessels, either at sea -or in any road “or other place,” he was to send to them to discover if -any English subjects were serving on board; and if so he was “to cause -them to be taken forth and committed,” to answer their contempt of the -king’s proclamation forbidding such service, and also to caution the -commander of the vessel in which they were found not to receive English -subjects again; but the Earl was expressly forbidden to send any of his -men on board the foreign vessels to search for English subjects. - -The most remarkable part of the instructions issued to the first -ship-money fleet referred to the hostilities between the ships of -other nations, not merely in the King’s Chambers, but throughout the -narrow seas. “In this your Lordship’s employment,” wrote the Lords -of the Admiralty, “you are not to permit or suffer any men-of-war to -fight with each other, or men-of-war with merchant, or merchant with -merchant, in the presence of his Majesty’s ships in any part of the -Narrow Seas. But you are to do your best to keep peace in those seas -for the freer and better maintenance of trade and commerce through the -same, so that all men trading or sailing within those his Majesty’s -seas do justly take themselves to be _in pace Domini Regis_. And -therefore his Majesty in honour and justice is to protect them from -injury and violence.”[474] - -It is interesting to compare these instructions to Lindsey with those -given earlier to Pennington as admiral of the fleet for the guard -of the narrow seas. His private instructions from the Lords of the -Admiralty in 1631 contained a clause regarding the homage of foreign -vessels on meeting the king’s ships. He was to expect the admiral or -chief, in acknowledgment of the king’s sovereignty in the narrow seas, -“to strike their toppe sayles in passing by,” and if they refused he -was to force them to do so; and in no wise suffer any dishonour to be -done to his Majesty, or derogation to his sovereign power in those -seas. At that time the efforts of Richelieu to create a French navy -had caused some disquiet in England, and Pennington was also ordered -to do his utmost, by spies and otherwise, to discover whether any -considerable preparations were being made abroad.[475] The instructions -in 1631 appear to have represented the English pretensions so far as -they were understood at the time. There was nothing about forbidding -the hostilities of belligerents, as in Lindsey’s instructions. On -the contrary, Pennington was told that if he saw any Hollanders and -Dunkirkers in fight at sea he was to take no part with either, “but to -pass by and leave them to their fortunes”; and he issued orders to his -subordinates to that effect.[476] In his instructions in 1633 this -clause was repeated, but in other respects they resembled those of -Lindsey.[477] The same duties were allotted to him in 1634, and he was -specially charged to free the narrow seas of pirates and sea-rovers, -and to prevent hostilities in the King’s Chambers. “If,” he was told, -“any man-of-war, or other, _in any of his Majesty’s roads, harbours, -or coasts_, shall offer any violence by unduly taking out any ships, -vessels, goods or merchandise, of what nation soever, or commit any -other insolency, you shall do your best to recover the same again from -them, and reform the abuses, either by due admonition, or (if that will -not serve) by bringing the offender to answer to justice, preserving -by all means the honour of his Majesty from such insolencies (as much -as in you lieth), having always a due regard to the amity between his -Majesty, his friends and allies.”[478] - -But a change took place, as we have seen, in the following year. Among -the suggestions made by Pennington to the king, and repeated to the -Admiralty, was one that any foreign ship attacked by another foreigner -in the narrow seas might put herself under the protection of any of the -king’s ships by coming under its lee, “in the same manner as under a -castle on shore.”[479] It was certainly a proposal as bold as it was -brilliant. Ships of war have long been regarded by certain writers on -international law as being essentially an extension of the territory of -the state to which they belong; but no writer ever suggested that the -water around them on the high sea should be looked upon as partaking -of the same character. The sea round a king’s ship, within range of -the guns on board, was to be a sanctuary like the waters of the King’s -Chambers,--a sort of territorial girdle which it carried about with -it like an aureole round the head of a saint. Pennington’s suggestion -was considered by the Admiralty early in April 1634, and Nicholas, -the Secretary, was instructed to confer with Sir Henry Marten, the -Judge of the Admiralty Court, with regard to it. Nicholas summed up -his own views oracularly in the sentence, “If a merchant fly from -men-of-war, it concerns the king’s ships to preserve trade.” Sir Henry -Marten gave a clear opinion. “It is not fit,” he said, “nor honourable -for the king’s ships appointed to guard the Narrow Seas to suffer any -men-of-war to fight with each other, or men-of-war with merchants, or -merchant with merchant, in the presence of the king’s ships within the -Narrow Seas, for that the king’s ships are set forth to keep peace in -those seas for the freer and better maintenance of trade and commerce -through the same: and all men trading or sailing within the king’s seas -do justly take themselves to be _in pace Domini Regis_; and since such -are _in pace Domini Regis_, it doth concern the king in honour and -justice to protect them from injury and violence.” The language of the -first part of this statement is the same as in the regulation prepared -a little before with respect to hostilities within the King’s Chambers -(p. 251); but its purport went much further than the recommendation -of Pennington, and in effect extended the protection afforded by the -King’s Chambers, and the regulation applying to them, to the whole of -the narrow seas. - -The Admiralty approved of the opinion of Sir Henry Marten, and Nicholas -was directed to embody it in Pennington’s instructions. Before doing -so, however, it was deemed desirable to get the king’s own opinion, and -he was asked by Windebank, at the instance of the Admiralty, whether -Pennington should be instructed not to permit any man-of-war to fight -in the narrow seas in the sight of his Majesty’s ships, while he -commanded there as Admiral. Pennington had then only two ships and two -“Whelps” under his command,--a force quite inadequate to enforce an -innovation so revolutionary,--and Charles apparently did not think the -time or circumstances fitting for it, for the Admiral’s instructions in -1634 were virtually the same as in 1633, except that the clause about -passing by Dutch and Dunkirkers in fight and leaving them to their -fortunes was omitted at the special request of Lord Cottington.[480] -But next year, when the imposing ship-money fleet was ready, Sir H. -Marten’s memorandum was inserted, almost verbatim, in the Earl of -Lindsey’s official instructions. - -In addition to the official instructions, the Earl received private -commands from the king. In these the new doctrine as to the sovereignty -of the seas received a new gloss, corresponding to the tenour of -Coke’s despatch to Boswell, and they were clearly intended to embroil -us with the Dutch Republic, as well as with France, and thus enable -Charles to carry out his clandestine agreement with Spain. He was -not to permit the warships of other states to keep guard, or commit -acts of hostility, or take spoil or booty, “within his Majesty’s -seas”; and it was also resolved that the fleet should be employed -in forcing the Dutch herring-busses to take the king’s licenses for -permission to fish, or in interrupting them in their fishing. It was -a common practice for orders of this kind given to naval officers to -be expressed in general or indefinite language, leaving to them the -responsibility of applying them to specific cases according to their -judgment and discretion. Both Pennington in the previous year, and the -Earl of Northumberland in the following year, had to ask for further -and more precise directions. So also did Lindsey now. He wrote to -Charles on receipt of the royal commands, asking a number of questions. -In the first place, he asked that the “bounds of his Majesty’s seas -might be expressed”--a reasonable request, and one frequently made by -naval officers. He was loftily told by Coke, who replied, that “his -Majesty’s seas are all about his dominions, and to the largest extent -of those seas,”--an answer not very illuminating, and of little use -to the Admiral.[481] His second question was whether the ships of the -King of France, or the Archduke, or the Dutch States, might not “lie -to and again” upon their own coasts, as they have anciently done? To -this the reply was that they might stay in their harbours or roads, or -pass “to and again for trade,” but not otherwise. Then he asked whether -the Dutch men-of-war might not lie before Dunkirk, “as they have been -accustomed to do”? (in blockading the port, which belonged to Spain). -For answer, he was curtly referred to his instructions. Then there was -another disturbing suggestion: If no men-of-war were to be permitted -“to lie in the King’s seas,” notice, he said, should be given of the -fact by proclamation or otherwise. He was told that this was already -done--the remark having reference, no doubt, to the despatches sent -to foreign Governments. Finally, he inquired what he should “do with -the herring fishers.” But the patience of Coke appears to have been -exhausted, and no answer at all was given.[482] - -It was obviously the intention of Charles to force a quarrel with -France and the Dutch Republic on a point or points connected with the -sovereignty of the sea, which might rouse popular enthusiasm in England -and enable him to attempt to recover the Palatinate for his nephew, -while ostensibly defending the national honour. But the punctilios and -hesitation of Lindsey about the duties before him must have raised -misgivings at Court as to whether the right man had been chosen for the -job. It was not long before this feeling deepened into mortification -and disgust. - -The fleet was ready at the beginning of June. Before its setting off -one or two incidents happened which might have seemed ominous to the -superstitious. A shot fired from the Admiral’s ship, in answer to the -salutation of the rest of the fleet as he sailed into the Downs, hit a -poor woman on shore and broke her leg; the same day, during musketry -exercise, a seaman nearly killed a master of the navy,--and these, as -it turned out, were the sole effective warlike operations of the fleet. -On the very day of departure a couple of Dunkirk privateers “were so -insolent” as to set upon a Dutch merchantman in Dover Road, under the -Admiral’s nose and in sight of the fleet, battering the ship, slaying -the gunner, and wounding the men. As an offset, the fleet captured a -small prize from a Dunkirker, which was to be sold for the benefit -of the Fishery Society. Then the Earl himself had been snubbed by -the Admiralty, and left with a flea in his ear. He wanted a vessel -to serve as a “kitchen” to accompany the fleet, and a salary for a -secretary; but there being no precedents, the requests were refused. -Then he complained that he had not enough flags, and above all that he -lacked a standard, which made him “not a little wonder, considering -his commission gave him as much power as a Lord Admiral of England--or -rather more by being General, who is always a representative person of -his prince”; he said he was “a little maimed” without it.[483] - -The fleet weighed anchor early on the morning of the 7th June, and -steered down Channel on its mission. At that time a combined Dutch and -French squadron blockaded Dunkirk--France, which in January had entered -into a treaty with the States for an invasion and partition of the -Spanish Netherlands, having declared war against Spain a month before -Lindsey left the Downs. There was thus every prospect of a collision -if the English Admiral carried out the king’s wishes, and both the -Court and the capital were on the tiptoe of expectation of stirring -news. The fleet had scarcely quitted its anchorage when London was full -of rumours. The _Swallow_ got credit for having sent to the bottom a -Dutch man-of-war before she had even left Deptford. A few days later -it was reported that a fight had taken place in the Channel, a violent -cannonade having been heard on the English coast, whereat Charles -looked anxious and moody.[484] But it was only a peaceful salutation -between the English fleet and a Danish man-of-war, “who did their duty” -in passing by. On 12th June “certain news” arrived by express from -Dungeness that a great battle had been fought off Calais, in which the -Hollanders were totally defeated. Authentic despatches from the fleet -soon put an end to such rumours. Very bad weather had been experienced, -which forced them to take shelter at the Isle of Wight; thereafter -they sailed for Portland, having received intelligence that a French -squadron of fourteen sail and a Dutch one of the same number were -there, each flying its national flag. - -At a council held on board the Admiral’s ship, it was resolved that -if the Dutch struck when they came up with them and the French did -not, a message was to be sent to the Dutch Admiral “that we did not -expect to see the friends of the king our master in company of them -that do affront him, therefore we desire them, like friends, to stand -by and see the sport.” But there was no “sport,” for when the English -fleet got to Portland on 20th June, the allies had gone; “the same -wind,” wrote Lindsey, “which brought me thither carried them out to -sea” the day before. Learning from the Mayor of Dartmouth that a fleet -of fifty-six sail had been seen off Falmouth on the 19th, the fleet -went off westwards, calling at Plymouth, where it stayed for a few -days. On one occasion they thought they had come up with their quarry. -They espied a great number of ships at a distance, dimly visible in -the morning mist, which made them “provide their guns” and get ready -for action. But they turned out to be only peaceful salt-ships from -Rochelle. Despatches were sent to the Court from Plymouth on 23rd June, -in which Lindsey stated he was going on to Land’s End, “and so to make -a short return from thence.” He also defended himself from complaints -that seem to have been made against him from Dunkirk, apparently owing -to his seizure of the prize for the Fishery Society. He told Windebank -that two or three more Dunkirk men had been brought to him who had -taken prizes from the French, but that he had dismissed them without -meddling with their prizes. And then he added--what must have been -unpleasant reading to Charles--that the king’s instructions had bound -him to carry an equal hand between the subjects of his allies, and from -that “compass” he would not vary. He would perform as friendly offices -to the Dunkirkers as to either the French or the Hollander. - -Neither the impartial sentiments of the Admiral nor his proceedings -were approved at Court, where the king was getting impatient. The -summer was passing, and the opportunity of forcing a conflict was -passing with it. He soon learned how his conduct was regarded from -despatches from Coke. Since the Earl went to sea, wrote the bustling -Secretary, the account he had been able to give the king out of his -despatches had been only of a fall from his coach, and of the stay his -fleet had made in the Downs, then near St Helens, and thence of his -plying along the coast to Plymouth, where the Mayor had advised him he -was on Sunday, five days earlier. All this, he said, gave his Majesty -little satisfaction, who expected to hear the fame of his acts in -the open sea, whereof he had committed the custody to his trust. And -though the civil answer sent by the French Vice-Admiral to the Mayor of -Weymouth[485] had been well taken, yet it would have been more for the -king’s honour and the Earl’s also if this office had been done with due -homage to the Earl. And this all the more because there was a common -report that the French had forced some English merchant vessels to -strike sail to them, and that the French and Dutch had visited English -ships,--an act, said Coke, of direct pretence to equal rights in our -seas which the Earl must not suffer; he must not allow English ships to -be visited by the men-of-war of any nation whatsoever, and he must be -careful to protect them from all wrongs. In particular--and the request -should have opened his eyes,--if any English merchant ships came from -the Straits, Spain, or Portugal, with Spanish coin or other commodities -(for Dunkirk), he must take care that no man go on board or interrupt -them. He should convoy English ships in the same way, and for the -honourable execution of his employment he should “strive to keep the -open sea.” Coke concluded by telling him that he “thus freely enlarged -himself” chiefly by the direction of the king, out of his own honour -and interest. In another letter to Viscount Conway, who was on board -the Admiral’s ship and had written a note to Coke of their proceedings, -he used similar language. He did not want to hear of “misinformations,” -but of “noble effects”; he had written to the Admiral whereby he would -“perceive that neither spending time in harbour, nor at anchor, nor -coasting along our shore, would answer the expectation they had of -the fleet.” “You must command the seas or be commanded,” said Coke in -his pompous vein. “Wisdom seeks not danger when with honour it may be -shunned; but where honour and dominion lie at stake, brave men will set -up their rests.”[486] - -All which, when he came to know of it, very naturally nettled the -Admiral. He had obtained the information about the allied fleet on 9th -June, three days after he left the Downs, and he had gone in pursuit -as speedily as the weather and the heavy-sailing English vessels would -allow. He was now away at the Scilly Isles, but he failed to see any -French ships, and was duly honoured in the matter of the flag by the -few Dutch men-of-war encountered. He sent further despatches from off -the Lizard on 28th June, explaining his movements, stating that his -ship was leaking, grumbling again about the want of a standard,--“his -commission making him equal to a Lord High Admiral of England,” &c., -&c.,--and complaining that his letters were not answered. Coke’s letter -awaited him at Plymouth, and in reply to it he said, on 5th July, that -he neither deserved his scorn for a fall in a coach nor his blame for -negligence. Was it his fault that the French sought to avoid him? They -had left the English seas, and they could have done no more if he had -fought with them; but if they came again he should meet and fight -them, time enough. Sir Henry Vane had also written to Conway of the -discontent about the fleet. It was not well taken, he said, that they -did not put over to the coasts of Flanders, Holland, and France,--not -indeed that they should go into the harbours and force them to salute -and strike, but to keep at sea upon these coasts and act according to -their instructions. - -Lindsey then stood to sea and plied about in the middle of the -Channel, off the coast between the Lizard and Plymouth, and sometimes -standing over to the coast of France, until the beginning of August, -without finding any trace of the French and Dutch fleet, which was -supposed--and rightly--to be to the southward on the Biscay coast. No -glimpse of the lilies of France could be obtained; not even a pirate -was seen, the presence of the fleet no doubt having scared them from -their haunts in the Channel. On 3rd August Lindsey’s fleet returned -to the Downs for revictualling, what remained of the victuals on board -being very bad,--“the beef is so extremely tainted,” he had written on -21st July, “that when the shifter stirs it, the scent over all the ship -is enough to breed a contagion.” No sooner was he in the Downs than -news came that the French squadron had come back to the English coast, -twenty-six sail of them having been seen about the Lizard. “They haunt -us like a shadow,” murmured the Admiral from his anchorage, “flying -when we pursue, and following when we retreat.” - -Lindsey was not far wrong on this occasion, for the withdrawal of the -French ships from the narrow seas on the approach of the English fleet -was due to the sagacious plan of Richelieu. He appears to have been -well aware of the pretext and design of Charles, and endeavoured to -outwit him. At war with Spain, he desired to avert an open rupture -with England. At the same time, it was not fitting that he should -break the tradition of France, or check the maritime ambitions which -aimed at rivalling England on the seas, by lowering the French flag to -the English Admiral. While the Earl was still at the Isle of Wight, -Richelieu ordered the French Admiral to retire with three of his -smallest vessels round Cape Finisterre to Belle Isle, off the coast of -Brittany and well out of the Channel, and to put the rest of the French -squadron under the command of the Dutch Admiral. The French ships -left in the narrow seas were to carry no flags at all, and therefore -could not strike them; and if the combined fleet met the English, -the Admiral of the States would, in his accustomed manner, strike, -without the dignity of France being compromised or Charles being given -the rebuff for which he was seeking.[487] When on the following day -Richelieu learned that the Spanish transports for the relief of Dunkirk -had entered that port, he ordered the combined fleet to withdraw -altogether from the Channel, as their further presence there was -useless and might give occasion for a conflict.[488] Thus it was that -Lindsey could not find them. While Richelieu’s strategy succeeded, the -course adopted was somewhat pusillanimous and not calculated to add -to the laurels of France. He therefore took advantage of an incident -to raise the question of the flag diplomatically with England, in the -hope of having the respective rights of the two nations settled, and -no doubt for other reasons. He complained to Charles that the Earl of -Lindsey--who denied the story--told a Dutch captain of whom he inquired -the whereabouts of the French fleet, that he was “going to make them -lower their colours”;[489] he inquired as to the intentions of the -king, and he proposed that in future the French should salute the -English on the coast of England, and, reciprocally, that the English -should salute the French on the coast of France; while if the fleets -were in the middle of the sea they should either pass one another -without saluting, or the weaker fleet should first salute the stronger. -If Charles did not like these proposals, he was invited to suggest -others.[490] It appears indeed that instructions of a similar tenour -had been actually given to the French Admiral, except that they might -strike to the English when out of sight of the French coast.[491] - -Richelieu’s proposals for equality and reciprocity in the narrow seas -were instantly rejected. Coke, in a despatch to the English agents -at Paris, the draft of which was revised by the king, expressed -astonishment that the French ambassador, instead of the negotiation -of a treaty for a confederation between England, France, and the -States-General for the restitution of the Elector Palatine, should -raise “impertinent questions” about the king’s dominion at sea. The -king could enter into no such debate with the French ambassador. But -Coke had assured that personage that the instructions given to the Earl -of Lindsey were no other than had been given in effect in all former -times, and “for near forty years within his own knowledge,”--that the -Admiral should defend and maintain the ancient known rights of the -crown; guard the seas, secure freedom of commerce, suppress pirates, -and oppose hostile acts in prejudice thereof; assist his Majesty’s -friends and allies, attempt no innovation, nor do anything contrary -to his treaties,--and so he presumed that no one would do anything to -impeach his Majesty’s ancient and undoubted rights. But instead of -being satisfied with this “fair answer,” the French ambassador put -into Coke’s hands a regulation he had drawn up, prescribing to both -kings “when and where the one shall vail his bonnet to the other.” -Coke informed the agents that it was hoped this proceeding would be -disavowed; and he instructed them, pending the arrival of the new -English ambassador (Lord Scudamore), to refrain from all discussion -with the French king or his Ministers as to the king’s right to the -dominion of the sea, or about the extent thereof, and to say nothing -further as to the designs of the fleet.[492] Richelieu, who had quite -enough to concern him in the failure of his attack on the Spanish -Netherlands, was content to leave alone the dispute about the flag, -and the French ambassador was requested to say as little as possible -concerning it.[493] - -The Earl of Lindsey, failing to find the French fleet and coming to -revictual in the Downs, now bethought himself of the other part of the -king’s private instructions, about the Dutch herring-busses. If he had -been baffled in the attempt to lower the lilies of France, might he -not yet force the herring-boats to take his Majesty’s license before -they cast their nets in his Majesty’s seas? But here, too, obstacles -arose. He wrote to Charles on 2nd August that he had consulted the -ablest men in the fleet, the captains and masters, and they were of -opinion that “his Majesty’s great ships would run much hazard” upon -the northern coasts. Moreover, if the fleet went north, would it not -encourage the French to quit their retreat and “embolden them perhaps -to do that which now standing in awe they forbear to do?” Still, he was -willing to do whatever the king thought best. The king agreed that it -might be better to stay, especially as he thought that before the Earl -could apply himself to that service the fishing season would be past. -Besides, said Coke, who penned the despatch, the fleets his Lordship -had left behind him--“pressing after him,” as he said--were of more -consideration. The king therefore ordered that when the victualling was -completed the fleet should again keep the sea to the westward.[494] - -This decision probably saved the Earl of Lindsey, as well as the -king, from further humiliation and disappointment. Even had he at -once sailed to the north, he would have found no Dutch herring-busses -to deal with, any more than he had found the French fleet. For the -Dunkirk privateers, swiftly taking advantage of Richelieu’s withdrawal -of the blockading squadron from their port, had made a bold dash -into the North Sea and overwhelmed the Hollanders off the coast of -Northumberland. More than 100 busses had been sunk or burnt, and 1000 -fishermen carried prisoners to Flanders; the rest were in full flight -homewards or pent up in British ports, and the herring-fishing was -ruined for that year.[495] - -The calamity soon brought over the Dutch fleet to protect the remaining -busses. Van Dorp, with fourteen French and Dutch men-of-war, arrived in -Calais Road about the middle of August and sailed thence northwards, -thirsting for vengeance on the freebooters. Lindsey detached some -of the ships from his fleet, which lay victualling in the Downs, -for convoys, as well as to punish the “contempt” of the Dutch at -Scarborough (see p. 250), and a few of the smaller vessels were engaged -in looking for “picaroons” in the Straits of Dover. For during the -absence of the fleet, the post-boat between Dover and Dunkirk had been -attacked and pillaged five times within seven weeks, and the packages -containing the king’s letters opened.[496] A French man-of-war, too, -had taken an English ship off Harwich and carried her off to Boulogne. -Such occurrences, and the presence of Van Dorp in the north, delayed -Lindsey’s departure. But on 4th September he again left the Downs with -most of his ships, stood over to Calais and ranged the French coast for -some distance southwards, and then out to sea. Heavy weather coming on, -he had to run for shelter to the Isle of Wight, where the fleet lay -weather-bound, and with much sickness on board, from the 12th till the -29th September. The Admiral then made for the Downs, where he arrived -on 4th October, and on the 8th he struck his flag.[497] - -Pennington was left with seven ships for the winter guard of the narrow -seas; and with “private” instructions from the Earl not to suffer any -breach of the peace to be done to any of his Majesty’s allies, nor -to permit his sovereignty to be infringed upon; to give convoys to -merchants when they wished it; to clear his Majesty’s seas of pirates, -and to compel the “due homage of the sea.” Finally, he was to assist -the farmers of the customs, particularly in preventing the smuggling of -tobacco. - -It was a fitting close to the first ship-money fleet. The great armada -by which Charles expected to recover the Palatinate, and restore his -sovereignty of the seas to its ancient style and lustre, upon which -the eyes of Europe had been fixed, accomplished practically nothing. -It had snatched a petty prize from a Dunkirk privateer and seized a -Dutch man-of-war in reparation for the “contempt” at Scarborough; -it had convoyed a few vessels, English and Spanish, to Dunkirk, and -as its greatest achievement had caused the blockade of that port to -be raised. No wonder that that tough sea-dog, Sir John Pennington, -when he heard that a still stronger fleet was preparing for the next -year, should exclaim, “God grant they may do more than the present -fleet has done, or the money were as well saved as spent.”[498] No -doubt the fleet had a moral value, if that term can be used about -it, the naval demonstration being an intimation to France and to the -Dutch Republic that Charles was resolved to assert command of the -sea. Whether England could have proved herself mistress of the seas -in 1635, had Lindsey’s fleet been opposed, is problematical. But, at -all events, Charles attained none of his special objects. The sudden -and successful uprising of the Spanish Netherlands against the armies -of France dispelled the fears of Spain, and that power having no -further immediate need of England, the nearly completed alliance came -to naught, and the recovery of the Palatinate was further off than -ever.[499] On the other hand, the Dutch were much irritated. Charles -had denied their right to blockade the Flemish ports against free -commerce,[500] and it was through his action that the privateers had -been able to work such havoc and destruction among the herring-busses. - -Something more must be said about one of the duties imposed on -Lindsey, in regard to which it was expected the English fleet would -shine--namely, the homage of the flag. Apart from forcing a number -of merchant vessels, English and foreign, to lower their top-sails, -and some Dutch men-of-war and Dunkirkers, and even one or two of the -French (on the English coast) to strike their flag to the king’s ships, -nothing was accomplished. The politic arrangement of Richelieu foiled -Lindsey and Charles alike, and the great spectacle of the Admiral of -France lowering his flag to the Admiral of England, or giving battle -and refusal, was not witnessed. The disappointment at the English -Court was all the more keen, inasmuch as France, in the treaty of -confederation with the States-General in the beginning of the year, had -stipulated that the Dutch men-of-war should salute the French flag in -the same way as they saluted the flag of England, thus “challenging a -dominion,” as Sir Thomas Roe said, “where anciently they durst not fish -for gurnets without license.”[501] - -By this time the question of the striking of the flag had been forced -into great prominence: even the “footpads” of the Channel, the humble -picaroons and shallops, hailed the English ketches which they pillaged -with the cry of “Strike, you English dogs!” It has been shown in a -previous chapter that though the ceremony was enforced in the narrow -seas in the reign of James, it did not then become a burning political -question, and the same is true of the early part of the reign of -Charles. The English commanders were then satisfied with a moderate -acknowledgment of the “honour,” and the Dutch at least rarely ever -contested it. That it was enforced in 1627 appears from the narrative -of the Earl of Warwick’s voyage in that year, when a French man-of-war -was compelled off Falmouth “to come up by the lee,” though nothing is -said about the flag itself.[502] But when France openly aspired to -become a great naval Power, England began to force the salute with -a high hand. It is from the year 1631 that we may date the marked -development of this symbol, as it was claimed to be, of the sovereignty -of the sea. We have already seen Pennington’s instructions in that -year, which, however, only mention the striking of the top-sail; and -although the omission of the flag may have been only verbal, there are -reasons for thinking that the custom and etiquette of the ceremony were -not well understood at the Admiralty. Thus on Pennington reporting -that French men-of-war were trying to force English merchant vessels -to strike to the French flag,[503] he was ordered by the Admiralty “to -see that no one presumes to carry the flag in the Narrow Seas”; all -the more since “some” pretended to have an interest in the sovereignty -of these seas.[504] When Pennington pointed out that this “was more -than ever was done, for our own merchants’ ships and all other nations -ever have and do wear their flags, till they come within shot of the -king’s ships: if they take them in and keep them in till they are out -of shot again, it is as much as has ever been expected,”--when he -told the Admiralty this, he was informed that the “Lords would not -expect impossibilities”--the main business he was to take care of was -to see that no foreigner carried the flag where his Majesty’s ships -were present in the Narrow Seas.[505] Then Captain Plumleigh in the -_Antelope_ reported that on meeting two States’ men-of-war guarding -the herring-fishers off Orfordness, the Admiral had “stood” with the -_Antelope_ with his flag aloft, and did not take it in till several -shots had been fired at him; and when requested to come on board -and explain his conduct, he refused. How, asked Plumleigh, was he -to comport himself in such cases? The matter was brought before the -Admiralty, but no answer appears to have been then given.[506] Two -or three years later Pennington put the same and other queries to the -king. He had been appointed in April 1633 Admiral of the Narrow Seas, -with general instructions already quoted (see p. 262), to preserve the -king’s honour, coasts, and jurisdiction, and to compel homage to the -flag. Pennington asked whether, when a stranger refused to take in -his flag till forced, he should not be “brought in as a delinquent”; -whether, if he met a foreign fleet of far greater strength than his -own, and they refused to take in their flags, he should fight with -them about it “upon so great disadvantage,” or make “a fair retreat”; -whether on going into Calais, Dunkirk, or the Briel--that is to say, -ports in France, Flanders, and Holland--and finding strangers riding -there with their flags aloft, he should force them to take them -in?[507] He also wrote to the Admiralty in 1634 substantially repeating -these inquiries, and asking for a positive or negative expression in -regard to them in his instructions. The Admiralty remitted Pennington’s -letter to Nicholas and Sir Henry Marten to frame answers. The final -opinion on the first point was that by the law of the Admiralty both in -England and France, the ships were forfeited--that is to say, the same -penalty applied as was prescribed in King John’s ordinance. It was, -however, rarely, if ever, carried into effect. The instructions on this -matter usually ran that punishment was to be inflicted at the place, -or the commander brought in to answer his contempt. When the Earl -of Northumberland asked a similar question in 1636, he was told the -offender should be “punished on the place.”[508] In Nicholas’ opinion -much more than the forfeiture of the ship was required; the offender, -he thought, should be brought in as a delinquent, and if he resisted -he should be tried as a pirate; but this absurd interpretation was -overruled. - -On the other points it is not quite clear what the final official -answers were. Nicholas thought that when a superior fleet was -encountered, the English Admiral ought not to engage rashly about -the flag; but if he once commanded the foreigners to strike, then -“the ships were better to be lost than his (the king’s) honour and -sovereignty yielded.” The opinion he gave with regard to forcing -foreign vessels to strike in foreign ports was in these words: “For -ye French roades,” he said, “ye king of England’s ships should suffer -none to wear ye flag but themselves: but in other roades after salutes -both may weare ye flag without dishonour.” The exceptional treatment -proposed for ships in French roads may have been in part owing to the -political circumstances of the time, but probably chiefly had reference -to ancient custom and the old claims of England to the soil of France. -Charles still styled himself King of France; and later Selden argued -that though English dominion had been lost in France itself, it -nevertheless extended over the sea up to the very shores. It became the -common practice to enforce the homage on the coast of the Continent, -but not within harbours, ports, rivers, or within buoys, or at any -place under the command of the guns of forts or castles.[509] The Earl -of Northumberland, on repeating Pennington’s question in 1636 as to -Calais, Dunkirk, and the Briel, was told that the homage was to be -exacted “in the roads out of command of any forts.”[510] - -There was always some doubt as to the etiquette of the salutation -between ships and forts or castles. Dutch vessels were fired on and -detained at Portland Castle in 1633 for putting up their flags in the -presence of the king’s colours, which were flying on the walls; and -the act was justified to the States’ ambassador when he complained -about it. In the year before, the commanders of the Castles at Deal and -Walmer fired upon a French man-of-war that came in with his flag in -the main-top, because after taking it down when requested, he hoisted -it again on going away. “I gave him five shots,” said the Captain -of Deal, “without hitting him,” and he added that the Council on a -previous occasion approved of a like action against the Dutch, who had -never since offended, but he had never heard of the French attempting -it before. The Admiralty asked Pennington’s opinion as to the proper -course, and he said he thought that all the ships of his Majesty’s -subjects and of foreigners and strangers should strike their flags and -top-sails as they passed by any of his Majesty’s castles; such, he -said, was the custom in all parts of Christendom, “which, being done, -they may ride under the castles with their colours flying abroad if -there be none of the king’s own ships present.” The king’s castles had -thus not so high a status as the king’s ship; but the military officers -were not less zealous than those of the navy. Pennington himself -had an amusing illustration of their zeal, for in 1631 Sir William -Killigrew, the Captain of Pendennis Castle, persisted in “spending -the king’s powder” in shooting at the _Bonaventure_, Pennington’s -ship, for not striking its flag to the castle,--“a thing,” said the -Admiral, “never used by a king’s ship, nor would he be the beginner of -it.” Fortunately, the gunnery of the time was wild; but Killigrew had -to be summoned before the Admiralty, rebuked, and, “upon submission, -discharged with strict command never more to offend in that kind,” -before the practice ceased. The Admiralty also issued an order to the -notorious Sir James Bagg, the Governor of Plymouth and the Vice-Admiral -for South Devon, strictly forbidding that any castle or fort under his -command should fire upon the king’s ship, even if passing near with -their flags on the top of any of their masts, “for,” he was told, “they -are as absolutely his Majesty’s castles or forts, though floating, as -that under your command.”[511] - -As was to be expected from the attempted maritime rivalry openly -displayed by France, and from English policy at the time, our naval -officers vied with one another in compelling homage to the flag. The -Dutch, both merchant vessels and men-of-war, more particularly the -latter, usually struck at once to the English ships. If they showed -reluctance, or hoisted their flag again too soon, they were fired at. -The English captains insisted on the right off Continental ports. Thus -Captain Richard Plumleigh, having gone to Calais in 1632 to bring over -the corpse of Sir Richard Walker, late British ambassador, in his -ship--well named the _Assurance_,--“bestowed some powder on the French -flags,” and caused all the French shipping in Calais Road to take in -their colours, “at which,” he said, “they repined heavily.” Some of -the States’ men-of-war also riding in the Road took the side of the -French, and sent to Plumleigh to say that they knew no reason why he -should demand superiority on that side of the sea, and “threatening” -to wear their flags there as well as he. But Plumleigh boldly returned -a message--what he called “a cooling card”--to their Admiral, saying -that if he showed a Dutch flag there, he “would sink him or be sunk by -him,” which caused him to keep his colours close.[512] In the following -year, Captain Ketelby, of the _Bonaventure_, was sent to Boulogne to -bring over another ambassador (Lord Weston), and finding the Admiral -of Amsterdam in the Road with his flag up, he “gave her a shot,” when -she struck it and presently hoisted it again. Ketelby then sent his -lieutenant to command him to take in his flag or prepare to defend it. -The Dutch Admiral argued, and kept it up till Ketelby was preparing to -shoot again, when he took it in. Two days later another Dutch admiral, -this time the Admiral of Holland, came into the Road with ten or twelve -ships of war; within a reasonable distance he struck his flag twice -and saluted with seven pieces, and then he also hoisted it again. -Ketelby “conceived this homage not sufficient,” and notwithstanding -the disparity of force, sent him a command to take in his flag, which -he did, and kept it in till the _Bonaventure_ departed. Such incidents -show both the domineering conduct of the English captains and the -forbearance and good sense of the Dutch, who acted in obedience to -the strict orders they had received to strike to the English ships. -But nearer home Ketelby had not so much glory. On returning with the -ambassador he met ten sail of Hollanders on the English coast between -Dover and Folkestone, one, a States’ man-of-war, bearing his flag on -the main-top, while a merchant vessel had his top-sails “a-trip.” Both -were obdurate as to rendering the accustomed homage, and in spite of -the fact that Ketelby sent twenty shot “in and through” the sides of -the merchantman, she would not lower her sails in the least.[513] - -In many instances peaceful merchant vessels suffered greatly over this -question of striking. During the cruise of Lindsey’s fleet, Dutch -men-of-war, and also a Danish warship, struck without hesitation, even -at Calais. So also as a rule did the merchant vessels; but sometimes -they transgressed the rule, it might be from ignorance, and then -they were exposed to harsh treatment. Thus, three great ships of -Amsterdam bound for Pernambuco, on meeting the _Constant Reformation_ -off Plymouth, did everything required of them; but hoisting their -sails before they got clear of the _Vanguard_, the latter gave them -six pieces of ordnance, twice sending a cannon-ball through the hull -of one of them. Then for a similar reason, too great an alacrity in -re-hoisting her flag, another Hollander was shot through with five -pieces by the _Rainbow_. So anxious were the English officers to compel -the homage that they sometimes demanded it at night. The _Freeman_, -returning from convoying merchant-ships to Dunkirk, met in the -night-time a fleet of Dutch merchantmen with one convoy accompanying -them, and shot to make them strike. In the darkness the traders took -the English ship for a Dunkirk privateer and made what haste they could -away. The States’ man-of-war, coming up to the rescue, approached -so near the _Freeman_ before she discovered what she was (and then -immediately struck) that a collision occurred, the bowsprit of the -English ship being broken, while her anchor carried away the Dutchman’s -chains and stays. The Dutch captain then came on board, humbly asked -pardon for what had happened, excused himself by the night and the -mistake, offered to go before the Lord Admiral, and paid for the -bowsprit and the shot.[514] - -While the Dutch were thus forbearing, the Dunkirkers, the _protégés_ -of Spain, for whom Charles was supposed to be making sacrifices, were -refractory. They refused to strike to the _Vanguard_ lying at anchor -off Gravelines, although it fired many times at them: before the anchor -could be got up they were off, and it was useless to follow. They -sent a message that they did not care for the English now, and would -not strike. On the other hand, just as Lindsey reached the Downs at -the beginning of October, Captain Stradling in the _Swallow_ met the -French Admiral, for whom the Earl had been searching all summer, off -Falmouth with two ships. He immediately shot at him, and he struck his -top-sails and saluted. But this was on the English coast, and was not -contrary to Richelieu’s instructions. The French, on their part, a week -or two afterwards forced an English merchant vessel to strike “for the -king of France.”[515] - -Perhaps the worst offenders of all were the British merchantmen. -Again and again the naval commanders complained to the Admiralty of -their remissness or neglect to strike, which they said set a very bad -example to foreigners. Pennington reported to the king that they passed -his ships in the narrow seas, not only without speaking, but even -“presumptuously wearing their flag at the topmast head” until forced -to take it in; and he recommended the king to issue a proclamation -commanding all ships to speak with the king’s ships and give an account -of themselves, or be subject to fine and punishment. Pennington asked -what he was to do if any of the king’s subjects were so stubborn as not -to strike their flag and top-sails in due time: “I meane,” he said, -“soe soone as they come within distance of our ordynaunce.” On this -Sir Henry Marten recommended that when an English ship did not strike -in time, the naval captain should complain to his Admiral or to the -Admiralty. He was strongly of opinion that too much discretion should -not be left to the naval officers in this matter. It was, he said, -too much to hazard an English ship being sunk or English lives lost -on a point on which a mistake might easily be made.[516] The official -instruction given to the officers was either to punish the offenders -themselves or to report them to the Admiral or to the Admiralty. -Neglectful merchant vessels were sometimes severely punished. In April -1632, when Lady Strange and a large party of Lords, with a great -retinue, went on board Pennington’s ship, the _Convertive_, lying in -Tilbury Hope, a merchant ship, the _Matthew_ of London, passed up the -river “in an insolent manner,” not striking his flag until he had come -up with the _Convertive_, and soon hoisting it again notwithstanding -the shots Pennington fired at him. For this the master was lodged in -jail, and was only released on expressing his contrition to the Lords -of the Admiralty. The Earl of Lindsey took a sharper course in a -similar case. On returning to the Downs, no doubt irritated from his -failure and smarting under Coke’s gibes, he pounced upon two English -merchantmen who had presumed to wear their flags within full view of -the fleet, “almost within command of shot,” and in the presence of -nearly 200 sail of British and foreign ships. The masters were at once -seized, brought on board and put in custody, and a day or two later, a -council of war having been called and Sir H. Marten consulted, one of -them, William Bushell of Limehouse, captain of the _Neptune_, was fined -£500, and the other, Thomas Scott of Ratcliffe, was fined £100, for so -gross a misdemeanour.[517] - -From the foregoing it is evident that in those days peaceful merchant -vessels traversing the narrow seas had not a very happy time. It must -often have been irksome in the extreme to the masters, probably not -always understanding the minutiæ of the rules,--which, indeed, the -naval captains themselves sometimes failed fully to comprehend,--to -render due and proper homage to the English flag. To compel foreign -men-of-war to salute the king’s ships was a different matter. It -flattered the national vanity and kept alive the national aspiration -for power on the sea, and it did not interfere with the duties of the -men-of-war which gave the salute. But to the merchantman anxious for -his voyage, often undermanned and contending with turbulent seas, it -must have been vexatious to be called upon every now and again to lower -his top-sails to a king’s ship, or take the risk of a shot through his -sides or a heavy fine. The inconvenience led later to a modification in -the practice, so far as concerned English vessels, it being insisted -on only “when it could be done without loss of the voyage”;[518] -but it may be said here that the regulation with regard to merchant -vessels striking to a man-of-war was always afterwards embodied in the -Admiralty instructions, offenders being reported to the Admiralty, and -proceedings often taken against them in the Admiralty Court.[519] - - - - -CHAPTER VIII. - -CHARLES I. NAVY--_continued_. - - -Considering the failure of his foreign policy and the inglorious fiasco -of the first ship-money fleet, it might be supposed that Charles would -pause in the unusual method he had adopted of wringing money from -the country for empty displays. While the Earl of Lindsey was still -cruising at sea, and before the issue of the second ship-money writs, -he knew that his schemes had miscarried. He was left drifting about -without any definite policy, but still clinging to the plan of the -restoration of his nephew to the Palatinate as the one thing before -him. He was equally ready to ally himself with France against Spain, or -with Spain against France, whichever would be most likely to aid him in -realising that object;[520] and as he had neither money nor troops to -attract a Continental alliance, his only pawn lay in the navy. In the -summer of 1635, while Selden was busy in the Temple at his book, it was -resolved to equip a fleet far more formidable than Lindsey’s for the -following year. Coventry made his speech to the Judges in June, and in -August the second writs for ship-money were sent out. In this case, as -is well known, they were addressed not only to the coast towns but to -the whole of England, with consequences notorious in English history. -The number of ships it was at first intended to set out was forty-five, -totalling 21,850 tons, and with 8650 men, the estimated cost being -£218,000.[521] At the beginning of December the Admiralty considered -what number should be set out in the spring; and by an Order of the -King in Council on December 27th, it was decreed that twenty-four -should be prepared “for guarding the narrow seas,” while ten other -ships should be got ready as a second fleet to reinforce the first, or -to take its place later.[522] - -The second ship-money fleet was placed under the command of the Earl -of Northumberland, an able, accomplished, and high-spirited young -nobleman, much better fitted than Lindsey was for the office of -Admiral. This fleet is usually said to have been the most powerful ever -set out by England up to that time.[523] According to Northumberland’s -Journal, it consisted of twenty-seven vessels, all of which were -king’s ships, except three which had been fitted out by London. Sir -John Pennington was appointed Vice-Admiral and Sir Henry Mervin, -Rear-Admiral.[524] - -But what was to be done with the fleet? That was a question put by -Windebank in the autumn of the previous year. The king had remitted -to the Foreign Committee two inquiries: what answer he should make to -the French ambassador concerning “a nearer conjunction” with France; -and whether he should declare his neutrality. Windebank argued against -either a French alliance or a declaration of neutrality. Against the -former proposition he urged four reasons, one being that the French -“had challenged a joint sovereignty on the sea with his Majesty”; -and against the latter that the French and Hollanders would besiege -Dunkirk or some part of Flanders, and the king would have to sit still -and suffer it to be lost, or break his neutrality. “Besides,” said -Windebank, clinching his arguments, “what was to be done with the -fleet next year if his Majesty declared his neutrality? it must lie -still and do nothing.”[525] Apparently the problem of what was to be -done with the fleet was not quite solved until the February following, -though there had been several tolerably clear indications that one part -of its duty at least would be the suppression of unlicensed fishing on -the British coasts. Selden’s _Mare Clausum_ was issued from the press -in December 1635, and it was with great satisfaction that Charles -welcomed it (see p. 368). The idea of playing the more distinguished -_rôle_ of Lord of the Sea was not therefore likely to be abandoned -because Lindsey’s fleet had been able to do nothing. - -At the same time Charles thought he might get some money as well as -honour by means of his fleet, and he submitted two propositions to the -Lords of the Admiralty for their consideration in employing the fleet -“for his honour and profit”: first, in “wafting and securing” foreign -merchant vessels passing through his seas; second, in protecting all -such fishermen as should fish under his license upon his seas and -coasts. With reference to the latter suggestion, Sir Henry Marten -delivered an elaborate opinion to the Admiralty. He recited how King -James, after long and mature deliberation, had satisfied himself -and resolved that the fishing “in his seas and upon the coasts of -his dominions, did justly appertain unto him as a right incident to -his crowns,” and had issued a proclamation declaring his title and -forbidding unlicensed fishing by foreigners. He also explained that the -United Provinces had then sent over commissioners who alleged continued -custom and present possession of the fishings, “mentioning withall -some treaties that had been heretofore between the Kings of England -and the Dukes of Burgundy” in favour of their liberty of fishing. -After hearing Sir Henry, the Admiralty expressed a unanimous opinion -that “the right and royalty of that fishing upon your Majesty’s coasts -doth undoubtedly belong unto your Majesty by inheritance, so as you -may justly prohibit or license all strangers at your royal will and -pleasure.” They further declared that by reason of his strength at sea, -the time was then most fitting to put his claim into execution; and -they recommended that the States’ ambassador should be informed that -the king had not relinquished his right to the “royal fishing,” but -was “resolved to defend it as the hereditary right and possession of -any other of his dominions.” This intimation was to be wrapped up in -sophistries, lest the Dutch should think the king challenged it at a -time when they had most need of his favour and grace. James had offered -them a bare license for liberty to fish; Charles was to offer them -safety and security as well, and the depredations which the Dunkirk -privateers had committed on the herring-busses were to be used as an -impressive argument to convince them of the benefits they would receive -from his protection. The privateers had driven them from the fishing, -even in sight of English harbours, by which the king was prejudiced -both in honour and interest; but if they accepted his licenses he might -feel justified in drawing his sword in their defence, in spite of any -league or treaty. If, however, the Hollanders should be so wanting in -discretion as to refuse the royal licenses, the Lords of the Admiralty -were “all clear of opinion that his Majesty should renew and publish -the like proclamation to that of the King his father, and prosecute -the settling of that his right as a thing so highly concerning him in -honour, dominion and profit.” - -As to the second proposition, the convoying of foreign merchant -vessels, the Admiralty were more guarded in their opinion. They all -agreed that the king was entitled to have profit by it, but not by -way of a general imposition on all ships passing through his seas, -as Charles, fresh from the perusal of _Mare Clausum_, apparently had -proposed. That, they said, would doubtless “draw a just complaint and -clamour” from the neighbouring princes and their subjects. The best -course, they thought, was for a tribute to be taken from such vessels -as desired convoy, in proportion to the value of the ship and the -length of the waftage. The King of England was thus to hire out his -ships of war when any foreign vessels were willing to pay for their -employment.[526] - -The instructions to the Earl of Northumberland were issued by the -Admiralty on 7th April, and they were substantially the same as those -given to Lindsey in the previous year. In the clause referring to -hostilities in the presence of the king’s ships, the phrase, “in any -part of the Narrow Seas,” in Lindsey’s instructions, was replaced by -the words “in any part of his Majesty’s seas,”--an alteration of some -importance in view of Coke’s description of the extent of them; and the -same change was made in the title of his instructions.[527] The king -also gave the Earl private and verbal commands, particularly as to the -operations to be conducted against the Dutch herring-busses. - -The fleet mustered in the Downs, the Earl embarking in the _Triumph_ -on 14th May. Leaving some of the ships to convoy merchant vessels and -guard the Straits of Dover, he hoisted sails on the 20th, and stood -away westwards in search of the French fleet. It was known that a large -number of ships had been equipped by France and lay at Rochelle; and -Pennington had reported at the end of February that twenty-four States’ -men-of-war were at Amsterdam, ready to come out and join the French, -and that they were to wear French colours. It was believed that the -intention of the allies was to lay siege to and blockade Dunkirk, and -Northumberland was ordered to keep a watch on them and to force them -to strike. On leaving the Downs he passed over to the French coast, -sailing along it within sight of Calais, Boulogne, and Dieppe, and -then stood over for the English coast. On 26th May he was at Portland; -thence he passed westwards to the Lizard, and cruised between it and -Ushant and within sight of the French coast till 11th June, when the -fleet put into Plymouth. During all this time they got no glimpse of -the fleet for which they were seeking, but they had frequent reports -from passing vessels that it was at the Isle de Rhé, and numbered -between forty and fifty sail, most of which were small and unprepared -to put to sea. Within ten days of leaving the Downs, Northumberland had -apparently satisfied himself that they would see nothing of the French -that summer; he thereupon reminded the Admiralty that the fishing -season was approaching, and requested to know the king’s pleasure as to -whether he should go northwards. On the 14th, the Admiralty informed -him that as the season for fishing began about the 20th June, he was -to repair to the northwards as soon as his other business would permit. -Northumberland received this letter at Plymouth on the 22nd, together -with other information that the French fleet had passed towards -Dunkirk. He thereupon hurried eastwards, arriving at the Downs on 24th -June, and finding that the report as to the movement of the French -fleet was false, prepared for the campaign against the Dutch fishermen. - -The Channel cruise of Northumberland’s fleet was thus as barren of -result as had been Lindsey’s in the year before. He fell in with a -few Dunkirk privateers, far too nimble to be caught up by the “great -unwieldy” English ships. When in Portland Road, a glimpse was got -of eight large ships at a great distance, which were thought to be -States’ men-of-war. Northumberland stood towards them, but as soon as -they perceived the movement they tacked about and were speedily out -of sight. “They are so well built and fitted for sailing,” remarked -the Earl, “that I can never come near when they have a mind to avoid, -unless by chance.” It has indeed been well said that whether Charles -was sovereign of the seas or not, he could not build ships that would -sail.[528] For the same reason the English vessels were unable to find -the “Turkish” pirates, which, when the Earl put into Plymouth, came -out of the Irish seas, and carried off about thirty English fishermen -into captivity. During Northumberland’s cruise, Captain Carteret with -six ships was busily employed in convoying such trading vessels “as -desired it” from the English coast to Dunkirk or Ostend, “taking an -acknowledgment in money of strangers.”[529] - -But if Northumberland was foiled by the Fabian tactics of Richelieu, as -they had foiled Lindsey, with regard to the striking of the flag, he -succeeded in forcing the Dutch fishermen to take the king’s license, -a policy which Charles had contemplated long before even the first -ship-money fleet was equipped. We have already seen how the Scottish -burghs in the course of the negotiations about the Fishery Society, -repeatedly insisted that the unwelcome Hollander should be driven -from their seas (see pp. 227, 234). As early indeed as 1630 rumours -were rife in Paris that a fleet of fifteen English ships, under the -command of Sir Kenelm Digby, was to be equipped for this purpose;[530] -and there were signs from other quarters of what was impending. In -1634 Sir Nicholas Halse addressed a treatise to the king on Dutch -trade and fisheries, like those so profusely bestowed on James, in -which he drew a lively picture of the ills which arose from their -predominance. The yearly profit derived by the Hollanders from their -fishing in the British seas he placed at £6,000,000 sterling, which -enabled them to maintain their wars; and yet they were so ungrateful -as to say that England would never be well governed until they had -the governing of it. He recommended that the Hollanders should be -licensed to enjoy half the fishings, a course which he said would make -Charles the most powerful sovereign in Christendom,--superlatives -and hyperbole never being stinted in such forecastings.[531] Then -a very influential body, the Merchant Adventurers, exasperated by -certain measures taken by Holland and the States-General with respect -to their staple at Amsterdam, petitioned the Council to retaliate, -and among their retributory suggestions was the prohibition of the -Hollanders from fishing on the British coasts or drying their nets on -the English shore.[532] It would appear indeed that originally one of -the principal ostensible objects of the fleet of 1635 was to force -licenses on the Dutch. Thus Nicholas, the Secretary to the Admiralty, -who was not in the secret of the Spanish negotiations, in a memorandum -drawn up in that year, suggested that the duties of the fleet should -be the suppression of piracy about the mouth of the Straits, and the -establishment of the king’s rights to the fishings in the eastern and -northern seas.[533] - -The course upon which Charles had now embarked in reference to -foreign fishermen was a revival of the policy of the “assize-herring” -of James. No foreigner was to be allowed to fish in the British seas -without obtaining, and paying for, a license from the king. James, -as we have seen, demanded his right in a pettifogging way, sending a -scarcely-armed and half-dismantled pinnace among the busses, with a -lawyer on board, to ask the tribute in fair and gentle words, and if -refused “to take out instruments upon the said refusal.” Charles sent -his Admiral with a powerful fleet, and with instructions to force the -fishermen to take the licenses in spite of all opposition. The first -step was to issue a formal proclamation like that issued by James in -1609, forbidding unlicensed fishing by foreigners. The opinion of the -Lords of the Admiralty and their legal adviser (to whom appertained -the jurisdiction of the fisheries) being emphatically in favour of the -king’s claims, the draft proclamation was drawn up and submitted to -them on 3rd May.[534] It was approved, and published to the world on -May 10th, four days before Northumberland joined the fleet. - -In this proclamation Charles recited the provisions contained in -the earlier one of 1609, “since which time,” he said, “neither Our -said father nor Our Self have made any considerable execution of the -said Proclamation, but have with much patience expected a voluntary -conformity of our neighbours and allies to so just and reasonable -prohibitions and directions as are contained in the same.” But finding -by experience that all the inconveniences which occasioned the previous -proclamation had rather increased than abated, being “very sensible -of the premises, and well knowing how far we are obliged in honour -and conscience to maintain the rights of our Crown, especially of so -great consequence,” he thought it necessary, by the advice of his -Privy Council, “to renew the aforesaid restraint of fishing upon our -aforesaid coasts and seas, without license first obtained from Us, and -by these presents to make public declaration that Our resolution is (at -times convenient) to keep such a competent strength of shipping upon -Our Seas, as may (by God’s blessing) be sufficient, both to hinder such -further encroachments upon Our regalities, and assist and protect those -our good friends and allies, who shall henceforth, by virtue of our -license (to be first obtained) endeavour to take the benefit of fishing -upon our coasts and seas, in the places accustomed.”[535] - -In connection with the proclamation several hundred licenses were -prepared, the precise form of which appears to have occasioned some -trouble.[536] The duty of drawing them up had been remitted in April -to Nicholas and Sir Henry Marten, and on June 14th a hundred of -them were sent to Deal Castle for the Earl of Northumberland, with -instructions from the Lords of the Admiralty. The king, they said, had -told them he had already verbally given the Earl directions to charge -the busses which took the licenses at the rate of twelvepence a ton; -with respect to such as might refuse to accept the license, he was “to -take order that they may not fish in the said seas; and in case they -shall fish without license, he is to send their vessels and fish into -some of his Majesty’s ports till further order.” The Admiralty left -to his own discretion what ships he should take with him, but they -said he would require the bigger ships to repel such force as he might -encounter, and the smaller ships to apprehend the fisher-boats. - -The fleet remained at the Downs, victualling, taking in stores, and -waiting for pilots acquainted with the northern coasts, from 24th June -to 19th July. The masters of the ships were unwilling to risk the -large vessels among “the sands and flats” of the east coast, or where -there were no good harbours; and they were all of opinion that if they -went at all, they ought to leave before 12th July, in order to fall in -with the herring fleet north of Buchan Ness. In any case they declined -to go unless pilots were provided, and these had to be obtained from -the Cinque Ports and Yarmouth. There was obviously much reluctance in -the fleet to go on this expedition. The objections and difficulties -were brought to the notice of the king, but Charles stood firm, and -expressed his “pleasure” that the northern voyage should be undertaken; -and Northumberland before leaving wrote to Windebank to assure him -that the fleet would decide the business they had in hand, for either -the Dutch would take the licenses and pay the acknowledgment, or else -the fleet “would put an end to that work.” There could be no doubt of -success, because the men, he assured Windebank, were full of resolution -to do the king’s service and gain credit to themselves. At the same -time, he asked for further instructions with regard to his stay among -the busses--those he had received, he said, being like oracles.[537] - -On July 19 the English fleet weighed anchor and shaped its course -northwards in its expedition against the Dutch herring-boats. It -consisted of sixteen ships, one Whelp, and a frigate; and both -Vice-Admiral Sir John Pennington and Rear-Admiral Sir Henry Mervin -accompanied the Earl. Contrary winds compelled them to come again to -anchor, but on the 22nd a fair breeze carried them to the north of -Cromer, on the Norfolk coast. On Sunday, 24th, when at Tynemouth, -the Admiral called all his captains together and gave them precise -instructions in the event of their meeting with any considerable -opposition from the States’ men-of-war guarding the busses. On the -25th, 26th, and 27th, foul and misty weather caused them to ride at -anchor ten leagues off the coast. About noon on the 28th they descried -sixteen sail of herring-busses accompanied by one man-of-war; and -immediately the Dutch skippers observed the English fleet they made -off “with all the sails they could pack on.” Northumberland’s unwieldy -ships started in pursuit--“but in vain,” wrote the Earl, “for none -of our ships could come near them.” The States’ man-of-war was less -fortunate or more courageous. It was from the first far astern of the -busses, and it was soon overtaken by the _Swan_--which, it may be -noted, was a Dunkirk privateer that had been captured and converted -into an English warship. Northumberland kept the Dutch captain on -board his own ship, the _Triumph_, all night, expecting, as he said, -that the busses would not go far without him--for of course they were -liable to be swooped upon by the privateers. But the fishermen now -feared the Dunkirkers less than they feared the English fleet, and -the Earl’s ruse failed. After dark he sent off four ships to try to -surprise them at their nets, but “they plied away all night without -making any stop.”[538] They were well aware of the mission of the -fleet, but they had no mind either for the license or the protection of -the King of England. Next day Northumberland, finding that the busses -“trusted only to their good sailing” and did not return, and that the -convoying men-of-war were not likely to be able to oppose him,--two -or three “very meane ships only able to defend them from the Dunkirk -frigates” accompanying each fleet of busses,--and hearing, moreover, -that the principal fishing was past and most of the busses gone home, -resolved to divide his fleet into three squadrons, the better to meet -in with those which remained. Sir John Pennington was sent to the north -as far as Buchan Ness, and Sir H. Mervin to the south as low down as -Flamborough Head, each with instructions to use his best endeavours to -get the Dutchmen to take the king’s licenses, while the Earl himself -plied “to and again” between them. Next day--Saturday, 30th July--being -misty and calm, Northumberland’s squadron lay at anchor. About noon -they espied four or five sail at a distance, and as there was not a -breath of wind, the boats were ordered to take the frigate in tow and -go towards them; but a breeze soon springing up, all the ships weighed -anchor and stood after them. On getting up to them they proved to be a -Hollander man-of-war and a few busses; but the fog was so great that -they were unable that night to get more than three of the busses, -the skippers of which, as well as the commander of the man-of-war, -were brought on board the _Triumph_. On Sunday four other busses were -captured, and having been manned with English sailors and threats made -that their nets would be taken from them, they at last consented to -receive licenses and pay the acknowledgment, and Northumberland sent -them away “very well satisfied.”[539] - -[Illustration: Fig. 10.--_Dutch Herring-busses under sail._ After Van -der Meulen.] - -On August 1 the Admiral stood into the Firth of Forth and despatched -to Edinburgh a missive for the Court, telling the good news. Then -the squadron from the 2nd to the 8th of August beat off and on the -coast, going as far north as Aberdeen (5th August) and reaching twenty -to thirty leagues off without seeing any busses. It then turned -southwards, and on the 9th gave chase to two men-of-war guarding a -fleet of busses, the latter, as before, making all haste away. The -Dutch men-of-war coming up to the English squadron, no doubt to inquire -and protest, were promptly manned with English sailors and sent in -hot haste after the busses that had fled. “Yet,” said the Earl, “with -all the wayes we could use, we gott not above 20 of them, though wee -spent divers shott to make them come in.”[540] On the same afternoon -Pennington’s squadron came up from the northwards, where they had -succeeded in distributing only three licenses; and on this day three of -the ships were sent back to port by reason of “divers desertes,” which -made them unfit to keep the sea longer.[541] - -[Illustration: Fig. 11.--_Dutch Herring-busses hauling their nets, with -convoying ship-of-war._ After Van der Meulen.] - -Passing to the southward of the Firth of Forth on 10th August, the -English squadron, before the day broke on the 11th, had the good -luck to sail into a great fleet of about two hundred busses, which -were guarded by five States’ men-of-war. To thirty-five of these -fishing-boats Rear-Admiral Mervin, whose squadron was found here, had -given licenses on the previous day, and Northumberland now distributed -about a hundred more amongst them, and left the _Convertive_, the -_Bonaventure_, and the _Fifth Whelp_ to act as a guard to them on -behalf of the King of England, with spare licenses for any other busses -that might require them. Next day Northumberland disposed of a few -more licenses and came to anchor, lest the ships should damage the -long drifting-nets of the fishermen. But a heavy gale coming on and -threatening to increase, the Admiral fired a warning gun and weighed -at break of day on the 13th: so furious was the wind and sea that two -of the vessels broke loose, and others had the greatest difficulty in -getting up their anchors, and the English fleet was dispersed. The -_Triumph_ made for Scarborough, where it was joined during the next few -days by the rest of the fleet, and then they all left for the Downs. -On the morning of the 20th they descried twenty sail of good ships, -and on filling sails and standing to them they found they were Dutch -men-of-war, under Van Dorp, who, as we shall see, had been sent by the -States-General to protect the busses and prevent the acceptance of -the English licenses. The Dutch ships, as the Earl carefully recorded -in his Journal, “tooke in all their flaggs, strucke their topsails, -and every ship one after another saluted us with their guns, which -we answered.” Van Dorp went on board the _Triumph_ to explain to the -English Admiral the reason of the presence there of the Hollander -squadron, and when they departed they again saluted. On 22nd August the -English fleet cast anchor in the Downs, and Van Dorp, having arrived -too late to carry out the instructions of his Government, returned to -the Flemish coast.[542] - -From the foregoing narrative it is clear that the Dutch fishermen -evaded as much as they could the acceptance of the king’s licenses. -They endeavoured to escape when escape was possible, and only -yielded when they were threatened with the loss of their nets and -the interruption of their fishing; and it would have shown little -wisdom for the few small men-of-war guarding them to have attempted -resistance to a force so superior. Northumberland, however, in his -report, while explaining that from the lateness of the season they had -encountered fewer busses than they expected, said that “those we could -come to speak with, when they were made to understand the business, -have been very willing to take licenses, and are most desirous of the -King’s protection.” About two hundred licenses, he stated, had been -distributed among the busses, and others were left with the ships he -had appointed as their guard.[543] - -As was to be expected, the revival in England of the policy of James as -to unlicensed fishing by foreigners on the British coasts occasioned -serious concern in the United Provinces. Since Charles came to the -throne the Dutch had been careful to repress as much as they could -any cause of further complaints from Scotland. In 1628, when they -were informed of the continued “insolencies” of their fishermen, the -States-General renewed their previous edict (see p. 179), and gave -instructions that extracts from it should be sent to the Chancellor -of Scotland; and they issued peremptory orders to the captains of the -convoying ships and the masters of the busses and others to obey it -strictly.[544] When the Fishery Society was instituted, the States were -kept advised by their ambassador in London of its progress and of the -measures proposed to be taken at the Hebrides and on the east coast; -and although they soon perceived that they had very little to fear from -it in the sphere of commercial competition, they rightly suspected -that the project foreshadowed the revival of exclusive claims to the -fishery, such as had given them so much trouble under James.[545] We -have noted also how anxiety was aroused in Holland over the equipment -of Lindsey’s fleet, and that Joachimi, their ambassador, had got wind -of the intention to send some of the ships northwards among the busses. -But the proclamation of 10th May as to “restraint of fishing” removed -any lingering doubts they had of the king’s intentions, especially as -it appeared so soon after the publication of _Mare Clausum_. At that -time the policy of the Dutch was earnestly directed towards detaching -England from the side of Spain and bringing her into line with France -and the Republic, and a special ambassador, Van Beveren, was sent -over to the English Court to help Joachimi in bringing this about. -He arrived in London in March 1636, and in April Coke and Windebank -explained to him that the intention of the king in setting forth the -fleet was to preserve and maintain his sovereignty and hereditary -right over the sea, as well as to furnish convoys for the protection -of traffic; and further, that no one could be allowed to fish in the -British seas without express license from the king, and the rendering -of a proper acknowledgment for the liberty. They told him that the -Dutch fishermen would find the king’s protection against the Dunkirk -privateers both advantageous and profitable. On asking for a statement -in writing of the king’s claims, the Dutch ambassadors were coldly -referred to Selden’s _Mare Clausum_. - -In notifying the States-General of this conversation, Van Beveren -asked for prompt and precise instructions how to deal with what he -described as an important, dangerous, and far-reaching business. He -was told by De Seneterre, the French ambassador, that he had received -a similar notification, and that he had expressed the opinion that -it was inopportune to raise at that time a prickly question that had -been sleeping for five-and-twenty years, and which was equivalent to a -tacit declaration of war against the United Provinces. At an interview -which Van Beveren had with Charles on April 25th, he explained that the -main object of his coming was to arrange for open and combined action -against Spain and help to the young Elector to recover the Palatinate; -but the king in a few words put the proposed alliance aside, and began -to speak of the herring fishery. The States-General, always anxious -to burk discussion of this matter, had postponed giving Van Beveren -definite instructions about it, in the hope and expectation that it -would be submerged in the more important business of the alliance.[546] -There were other circumstances which led them to think the king would -not press his claim to the fishery. One was that the publication of the -proclamation for restraint of fishing had been delayed, and even its -promulgation denied. It seems, indeed, that the opinions of Charles as -to his policy on this question were constantly fluctuating, and that -he could scarcely make up his mind as to what it were best for him to -do. Both the young Elector, his nephew, whom Van Beveren had gained -over to his views, and his sister, the Elector’s mother and Queen of -Bohemia, were against any interference with the Dutch fishermen at that -time. It was doubtless with some knowledge of the state of affairs, -that the Earl of Northumberland inquired in May if the king was still -desirous that he should go north against the busses. But in June all -scruples had vanished: the instructions were sent to Northumberland -and the proclamation was widely disseminated. In the States of Holland -the king’s edict was discussed at the beginning of June, and it was -remitted to a committee, with Joachimi (then in Holland) and the Prince -of Orange, for consideration, and to report as to what measures should -be taken to protect the interests of the fishermen. The States finally -resolved to do two things--first, to endeavour by all diplomatic means -to get the proposed action of the king delayed, and second, to equip a -strong fleet to protect the fishermen by force lest diplomacy failed. - -In these anxious days Van Beveren kept a tireless eye on the English -fleet lying in the Downs, and reported to the States-General from time -to time anything he learned of its movements or the rumours he heard -concerning it.[547] Twelve days before it sailed for the north, he -informed them that the general opinion was that it would return to the -westwards to look for the French fleet. A few days later he discovered -its real destination, and at once demanded an audience of the king. -Charles received him very courteously at Windsor on the 17th July; -assured him that he would treat the Dutch “as friends”; and explained -that the measures to be taken by the fleet were of a peaceful nature, -and were intended to benefit the fishermen by extending to them the -protection of England against the Dunkirk privateers, from whom they -had suffered so much in the previous year. The payment of a small -acknowledgment would in reality, he said, be very profitable to them. -Van Beveren had accordingly to content himself as well as he could with -these assurances. He received the condolences of the French ambassador, -with whom he had frequent interviews, and who pointed out to him that -the circumstances of the time were such that the wisest course would -be to deprive the king of every pretext for open hostility. If the -matter could only be prolonged under the pretence of negotiations -until peace was concluded with Spain, then indeed France--ay, and even -Spain too, he added--would join with the States in bringing the King -of England speedily to reason. When Northumberland actually departed -for the north, Van Beveren immediately informed the States-General of -the important fact; but it was not long until the king was able to -tell him that the fishermen had accepted the licenses and paid the -acknowledgment “with good contentment.”[548] - -The ambassador’s reports, and still more the accounts which soon poured -in from the busses and the convoys of their treatment by the English -fleet, raised a storm of indignation in the United Provinces. Captain -Ruyter sent on, for visual inspection, the safe-conduct or passport -which the Earl of Northumberland had forced upon him; and Joost -Bouwensz, and some of the other skippers who had taken the licenses, -were loud in their complaints. The unheard-of proceeding was discussed -in every seaport town. - -The ordinary ambassador, Joachimi, then in Holland, was hurried back to -England--at such a pace, indeed, that two of the horses in his carriage -dropped dead in one day from exhaustion as he sped Londonwards. He was -to express to the king the regret of their High Mightinesses that he -should send his powerful “armada” among the poor herring fishermen, who -had been so much scared and frightened that many had withdrawn from -the fishing altogether and returned home; and the king was to be urged -to suspend further action until the matter had been considered by -commissioners to be appointed by both sides.[549] In his audience with -Charles, Joachimi avoided the long juridical arguments which used to -tire the patience of King James. He laid stress on the close connection -of the fishery question, so dear to the United Provinces, and the -restoration of the Palatinate, in which the States might be able to -afford valuable aid; expatiated on the long and close friendship that -had existed between England and the Netherlands; and depicted in moving -terms the poverty and hard life of the poor fishermen. But it was all -in vain. Charles declared that to ask him to abdicate his sovereignty -of the sea was as absurd as if Spain should ask him to give up Ireland; -and he added--probably with the knowledge that the States-General -had commissioned Graswinckel to answer Selden (see p. 375)--that the -publication of books in France, Spain, and the Netherlands, contesting -his rights, made it necessary for him to vindicate his sovereignty with -all the more strength. The same attitude was maintained in a formal -paper handed to Joachimi a little later, in reply to his proposals -and representations. In this Charles announced his firm intention to -control the fisheries in his own seas. He would only permit foreigners -to fish there if they accepted his license and “acknowledged” his -right, that is, paid tribute. The request for a conference of -commissioners to consider the question was rejected. The king could -not with honour, it was said, listen to such a proposal. His right -had already been publicly confirmed before the whole world, and was -sustained and recognised by all the great kings in performing homage -to the fleet at sea, as well as by the Dutch themselves, who were very -glad of the protection afforded to them.[550] Joachimi had to return to -The Hague without having accomplished anything. - -By another channel influence was brought to bear on the king to induce -him to suspend the campaign against the Dutch fishermen. Elizabeth, -the widowed Queen of Bohemia and the sister of Charles, resided at The -Hague, patiently waiting for some lucky turn in the wheel of fortune -which might replace her son in possession of the Palatinate. She -was led to believe that the States would aid in this project, and in -her correspondence with Sir Thomas Roe and Archbishop Laud she often -murmured gently against her brother’s policy. When Joachimi was hustled -back to London, she wrote to Roe that the Dutch were in great alarm -about the herring-busses, and she breathed the wish that “all might -be laid aside at that time” when they had so much need of the States; -“the king,” she said, “might do it upon that consideration, and keep -his claim still good, to take it up again when he would.”[551] Roe -argued on the other side. He thought it would show wisdom on the -part of Holland, and be greatly to her advantage, if, avoiding an -open breach with England, she acknowledged the right of the king and -accepted his protection for her fishermen. In this way the States -would reap all the advantages they already had, and be relieved of -the expense of maintaining a fleet to protect the busses. The king, -he felt sure, could not now recede “without weakening or blemishing -his right, or his power, to all posterity”; he was prepared to guard -the Dutch fishermen and to fight for them as his own subjects; and -as for the “acknowledgment,” that would be really only a small thing -and would not burden the fishing--which would never be thought of. “I -doe confidently affirme to your Majesty,” continued Roe, “that this -affair of ye king is a safetye, an honour, an happines, and utilitye -to them, and will, if they know how to use it as a medicine, heale all -ulcerations and discontents that have beene bred, or aggravated, by -enemies of our mutuall and necessarye amitye.... Therefore I beseech -your Majestie to inform the Prince of Orange clearely, there is noe -other way, if they desire to reconcile, and to oblige the king at once; -and if our amity be to them of any value, lett them beginn to doe right -and honour to his Majestie,”--and they would get more than they hoped -for in other things. At all events, he said, Joachimi had failed to get -any satisfaction of his request to have the “execution” on the second -fishing suspended, for a new command had been sent to the Admiral to -visit the busses again.[552] - -This was indeed the case. Northumberland’s success had gratified the -king, and yet it was felt it had fallen short of what it might have -been if they only had got among the busses in time. It was therefore -resolved to send the fleet among the Dutch fishermen who came to the -Yarmouth fishing in September and October, and to continue the process -of forcing licenses upon them. The Earl of Northumberland left the -Downs for Yarmouth on 16th September, taking with him eight ships and -a pinnace; another ship was to follow later. He felt that his task at -Yarmouth would be more difficult than his first had been. Then, the -only advantage the busses had was their good sailing; now they would -have others owing to the season and the place--shoal waters; and if -they avoided the king’s ships, he said, as they did in the north, it -would be impossible to bring any numbers of them into “conformity.” He -also requested fresh licenses, because some words in those he had would -require to be blotted out, which “would not be so handsome to be seen -abroad.”[553] - -The weather being stormy, they had to anchor one night off the -North Foreland and the next off Lowestoft, reaching Yarmouth Roads -on the 18th, where they lay for a few days getting pilots and -gathering information about the Dutch fishermen. Hearing that some -Holland men-of-war were cruising outside, the Earl guessed that the -herring-boats would not be far off, and the wind being fair, the -fleet weighed anchor on the morning of the 22nd and stood out to sea. -When clear of the sands they again anchored, and the ketch was sent -out during the night to discover the whereabouts of the busses, but -without success. Next day the fleet stood off farther to sea, but -failed to see or to hear anything of the Hollanders, and being joined -by a ninth ship, the _Swallow_, the fleet lay at anchor in “blowing -weather” about ten leagues from the coast until Monday, September 26. -Two of the ships, the _James_ and the _Nonsuch_, had been driven out -of sight by the gale; two, the pinnace and the _Fortune_ pinck, had -to run nearer shore for fear of foundering; and the Admiral sent the -two London ships, the _Jonas_ and the _Neptune_, into port, because -they were insufficiently victualled. On this day news was brought from -Yarmouth, received from a Scottish ship which had arrived from Zealand, -that the Dutch had forbidden any more busses to go to the fishing that -year, and the Earl advised Windebank to this effect.[554] The rumour, -however, was false, for on the 28th a fleet of fifty sail of busses and -two or three men-of-war was descried to windward, but Northumberland -was able to speak to only three of them that “wanted licenses.” On the -next day, as they were following the busses that “would not come near -them,” they caught sight of another fleet of about sixty sail, with -three men-of-war, and the English ships went amongst them and cast -anchor, and made the convoyers anchor also; “then,” said the Earl, “all -the busses of both fleets came about us; most of them had formerly -taken licenses, and such as were unprovided were then furnished by us.” -Next day, finding no more of the herring-boats “that wanted licenses,” -the English squadron weighed anchor and shortly afterwards perceived -a third large fleet of busses, guarded this time by ten men-of-war. -To this fleet they gave chase, plying up to windward all night, and -on October 1, as the wind prevented the boats being sent out, they -anchored in sight of them. All Sunday it also “overblew,” but as the -weather grew calmer at night the squadron again got under way, and by -daybreak was among the busses, which were, no doubt, busily engaged in -hauling their nets. Northumberland stayed amongst them until October -5, the ships’ boats being kept occupied each day in distributing the -licenses; but they “found it a very troublesome business,” as the -busses dispersed, and it became difficult to distinguish those that -had taken licenses from those that had not. The weather growing misty -and unsettled, and the Admiral being “out of all hope to give out any -more licenses,” the squadron quitted the herring fleet and made for -Yarmouth, where the Earl landed on October 9 and journeyed to the -Court. Altogether, at the Yarmouth fishing, more than 200 licenses -were distributed among over 400 busses which were present, and no -opposition was offered by any of the fifteen men-of-war which were -guarding them. “The unwillingnesse of the busses to come neere us,” -wrote Northumberland to the Admiralty, “hath found us intertainement -for 8 dayes together in following them, but now we have left verie few -of them unprovided of his Majesty’s licenses.”[555] - -Thus ended the campaign against the Dutch herring-boats, from which, as -we have seen, Charles desired to reap profit as well as honour. So far -as the profit went, it did not amount to much. Appended to the official -journal of the voyage of the fleet is a statement of the sums received -for convoying shipping,--which, in accordance with the advice of the -Admiralty, was voluntary,--and also of the “acknowledgment money” -taken from the fishing-busses. The former amounted to £999, nearly -all of which was earned by the convoying of merchantmen and small -traders to Dunkirk and Ostend.[556] Small as the amount was, it greatly -exceeded what was exacted from the Dutch busses for king’s license and -protection, the total being £501, 15s. 2d., collected in a variety of -coins.[557] The detailed schedule is as follows:-- - - “In Rix Dollo^{rs} 878 163 10 08 - In halfe Crownes 145 018 02 06 - In pieces of 3^s 40 006 00 00 - In Kunnings Dollo^{rs} 100 025 00 00 - In Ryalls of 8 134½ 029 02 10 - English money 018 12 08 - English Gold 119 13 00 - Dutch and Scotch Angells 015 15 00 - Hungare Duckats 7 002 09 00 - Dutch and French money 001 05 00 - Dutch shillings 066 00 00 - Double Stivers 030 00 06 - Single Stivers 005 06 00 - In Silver 000 18 00 - ------------ - 501 15 02” - -[Illustration: Fig. 12.--_Facsimile of the official account of the -monies received from the Dutch herring fishermen for the king’s -licenses._] - -There is probably no circumstance connected with the English claims -to the sovereignty of the seas that has been more frequently -misrepresented by historians, pamphleteers, and writers on -international law than the operations of Northumberland’s fleet, and -in particular the amount paid by the Dutch herring fishermen for the -king’s licenses; and so far as appears, the account given here is the -first that is authentic and correct. Although Northumberland’s Journal -is preserved among the national records, only one author seems to have -quoted from it, namely, Evelyn, and he deliberately misrepresented it. -Under the hands of various authors the sum of money gradually became -swelled to £30,000, or even to £100,000, and it was represented as a -rent paid by the Dutch for permission to fish, and played an important -part in all later controversies and negotiations.[558] - -The doings of Northumberland’s fleet at the Yarmouth fishing caused -increased excitement in Holland. Van Beveren knowing, as he said, that -the English ships had not gone northwards “to catch flies,” immediately -sent intelligence of its departure to Admiral Van Dorp, so that he -might extend his protection to the Dutch fishermen. Early in August the -Admiral had been expressly instructed to guard the fishermen “from the -Spanish and all others inclined to molest them”; and he had a fleet -of fifty-seven sail under his command for this purpose.[559] But Van -Dorp was too late. As we have seen, he met the Earl of Northumberland -on the 20th August returning triumphantly to the Downs. On asking the -English Admiral why he was among the busses, he was politely told -“to protect the fishermen,” and when Northumberland asked the reason -of the presence of the Dutch fleet, he received the same answer, “to -protect the fishermen.” It was a perplexing position for Van Dorp. -His instructions were to guard the busses from molestation, but they -contained no article which covered the case as it now presented itself, -and to attack the English squadron under the circumstances would have -been foolish. He therefore sailed back to the coast of Flanders to -watch the Spanish ships. He returned to the English coast in September, -and on the very day that Northumberland left the Downs for Yarmouth the -Dutch fleet was actually lying at that port. Van Dorp again missed both -the English squadron and the herring-busses, and resumed “plying to -and again” between Dover and Calais.[560] The States-General were much -incensed at this failure of their Admiral to prevent the distribution -of the licenses. As they well knew, it furnished Charles with a -precedent, and with the argument that the Dutch fishermen desired his -protection and were willing to accept and pay for his licenses. When a -suitable opportunity occurred in the following year, they forced Van -Dorp to resign his office.[561] - -As the herring-fishing was now over for the year, the States had time -to consider what they ought to do in the following season if Charles -persisted in his attempts. On two occasions it was resolved to issue -an edict forbidding the fishermen to accept licenses from any foreign -prince;[562] and this would certainly have been done had Charles -adhered to his policy. But the States naturally hesitated, until it -should be absolutely necessary, to take a step which would at once have -placed them in direct antagonism to England in the eyes of the whole -world, and the publication of the edict was from time to time delayed. -This cautious conduct served their purpose much better, for before -the fishing season of 1637 arrived, the kaleidoscope of Charles’s -foreign relations had taken another turn, and he was anxious to avoid -further trouble with the Dutch. The Earl of Arundel, who had been -sent to Vienna on one of the king’s wild-goose missions, to negotiate -a treaty with the Emperor for the restoration of the Palatinate, -returned unsuccessful to England at the close of the year. He came back -full of bitterness at the perfidy of Spain, and persistently urged a -French alliance, even if it should lead to war with the former Power. -The strenuous arguments of Arundel, as well as the treatment of his -mission, caused Charles to turn again to France, the ally of the Dutch -Republic; and Richelieu promptly proposed an alliance against Spain and -the Emperor, one result of which would have been to range England and -the States on the same side in a maritime war.[563] - -At such a conjuncture the promulgation of the edict of the -States-General would have been unfortunate, and Arundel requested -George Goring, who had gone to The Hague, to see the Prince of Orange -in order to get it suppressed. But the Prince of Orange, while anxious -enough to avoid further trouble with England, desired, before he -consented, to receive an assurance that the king would cease from -molesting the Dutch fishermen in the ensuing season. The Queen of -Bohemia urged the same course. She “humbly besought” her royal brother -to suspend further execution of his right, which, she said, he might -take up again when he would, without any prejudice, “as the king, -our father, did.” Charles was loth to give an assurance so wounding -to his vanity, and so opposed to what he conceived to be a chief -prerogative of his crown. In the autumn Sir Thomas Roe had declared -that the difficulty in the way for the benefit of the Prince Elector -arose from the fishery dispute, and that upon nothing was the will -of the king more firmly bent: if the Dutch did not yield, he feared -“another procedure” next season. Even in February, Archbishop Laud told -Elizabeth that the king was “so set to maintain the dominion of the -sea” that he durst not speak to him any more about it. At the same time -he gave a broad hint that nothing further would be attempted against -the Dutch fishermen in the approaching season. He much wondered, -he said, that the Prince of Orange and the States should trouble -themselves to gain an overt concession from his Majesty to leave their -fishing that year, since it was “more than manifest” there would -be so much other work for his navy that the business of the fishing -must needs fall asleep of itself. He would advise a silence on all -hands in regard to it, and not to interrupt “business with moving a -question about that which would necessarily do itself (_sic_) without -questioning.” Sir Thomas Roe also sent the queen assurances in the same -sense. The king, he said, would never retract his declaration of the -dominion of the sea, but “only for this year, and at the request of -the Prince (her son) and in contemplation of concurrence expected with -him, he will not trouble their fishing.” These assurances seemed so far -satisfactory to the States that the edicts were suppressed. They would -be well content, they informed Elizabeth, if the king “forgot it and -spoke no more of it,” which she told them she was confident he would -not, having things of greater importance on hand.[564] - -The young Elector, Prince Charles Louis, took a considerable part -in the conversion of the king; or rather, he was made use of by the -Dutch ambassador for this purpose. When Van Beveren first arrived in -London, he let it be known that the States were desirous of doing -something for the Prince; but his hint was not then taken up, since -hopes were entertained that Arundel’s mission to Vienna would make -other aid unnecessary.[565] Arundel was recalled in September; it was -known that his mission had failed, and early in October Van Beveren saw -his opportunity. Through a trustworthy friend[566] the suggestion was -made to the Elector that if some arrangement could be come to about -the fishery question, negotiations might be begun for a treaty between -the States and England relating to the recovery of the Palatinate. -The ambassador learned that the Prince had already taken steps in the -same direction. Through the intermediary of Laud, the proposal had -been made to Charles that the Dutch, instead of paying license-money -for liberty to fish in the British seas, should place at the disposal -of the Elector some ships and soldiers, the king’s proclamation for -restraint of fishing being meanwhile suspended. Charles would not -agree to this. The ambassador, he said, had offered assistance when he -arrived without any hope of an equivalent on his part, and he could -not give up his claim to an acknowledgment of his rights. Van Beveren, -on the other hand, informed his confidant that it was a question of -principle with the States, and that it would be better to break off all -negotiations if the “acknowledgment” was insisted on. Nevertheless, -these private negotiations continued, and finally a draft treaty was -prepared embodying two proposals. The first agreed well enough with -Van Beveren’s instructions. It was to the effect that a fleet should -be equipped to which England should contribute thirty ships and 8000 -men, and the States fifteen ships and 4000 men; and France was to be -asked to furnish the same force as England. The combined fleet was to -attack Spain by sea and effect a landing. The second proposal related -to the fishery, and it provided that while these operations were going -on, the Dutch herring fishermen would be allowed to fish freely and -in security, as they had always done from the time of Queen Elizabeth -and King James, approaching the coasts near enough to carry on their -fishing profitably, and to dry their nets on shore, without the king -interfering with them in any way.[567] - -This proposition, at first sight apparently favourable to the States, -was rejected by Van Beveren. Although it got rid of the difficulty for -the time, the question was sure to be raised at a later period when the -naval and military operations were concluded; its acceptance would, -moreover, be equivalent to a tacit acknowledgment that the king had the -right to exclude them from the fishery. The ambassador was afraid of a -precedent which bargained as a _quid pro quo_ for what was claimed as a -right; and the negotiations went no further. - -But Charles, although unwilling to risk the success of the treaty with -France, from which great things were expected, by openly insisting -upon the acceptance of his licenses by the Dutch fishermen, was -reluctant to abandon his policy. From the readiness with which the -fishermen had taken the licenses after they “understood” them (as -Northumberland reported), he was apparently led to believe that they -really desired his protection, and that the only obstacle in his way -was the opposition of the States’ Government. He therefore decided that -instead of trying--or at least before trying--to enforce the licenses -by means of the fleet in the ensuing summer, the attempt might be made -secretly to induce the fishermen to accept them in Holland before they -left for the fishing. Boswell, the English ambassador at The Hague, -was instructed to try what could be done in this way, and so anxious -was Charles for such acknowledgment of his sovereignty of the sea as -acceptance of the licenses implied, that the ambassador was authorised -to reinforce his persuasion by bribing those who were most influential -among the fishermen. The fishermen, according to Boswell, were not -averse to the proposal, but they very naturally wished to know, first -of all, how the licenses of the King of England would protect them -from the Dunkirk privateers. If the Government at Brussels would -acknowledge the validity of the licenses, or if the Cardinal Infant -agreed to back them with passports of his own, the offer, they said, -would be worth considering; but they could scarcely depend on the -protection of the English fleet alone. As a sign that they were in -earnest, they offered to place £2000 at Boswell’s disposal if he could -get the matter settled in this way. This sum, with the king’s approval, -was forwarded to the English representative at Brussels, to be used in -gaining over the Spanish authorities.[568] The Dutch fishermen were a -practical race of men. They cared little for abstract questions about -the sovereignty of the sea. But they suffered much from the Dunkirk -privateers, and the burden of maintaining convoys was a heavy one. -Any reasonable scheme which promised to free them from the attacks of -their relentless enemy at small cost was bound to be attractive. That -the proposal was seriously considered was also shown by a spontaneous -application made to the Secretary of the English Admiralty on behalf -of the fishermen of Schiedam. The agent in London, Mr Brames, who -supplied them with lampreys for bait, wrote to Nicholas for a copy -of the license granted in the previous year, with a statement of the -rates charged. If the fishermen were pleased with the license and -the price, they would, he said, come themselves for them. Charles -instructed Nicholas to give the information wanted, but only “as from -himself.”[569] - -An unexpected obstacle intervened to prevent the plan being carried -out. Gerbier, the British agent at Brussels, chiefly by bribing -the mistress of the Cardinal Infant, had secured a promise that -the passports would be granted; but the Spanish Admiral absolutely -refused to be bound by them. He declared he would not spare a single -herring-boat, even if the Cardinal went down on his knees to him. -He would pay attention to no passport that did not come direct from -Madrid.[570] Thereupon the Dutch fishermen refused to have anything to -do with the licenses which had been sent to Boswell “under the King’s -hand and signet.”[571] - -Still, the peculiar resources of Charles were not exhausted. He might -yet, he thought, be able to distribute the licenses among the fishermen -when they came to fish off the British coast, without employing his -fleet for the purpose, or running the risk of war with the Republic. -The third ship-money fleet had assembled in the Downs in April and -May; it consisted of twenty-eight ships, of which nine were merchant -vessels, and the Earl of Northumberland was again appointed Admiral, -his instructions, dated 15th April, being identical with those of -the previous year.[572] The state of the negotiations with France, -and other causes, prevented the king from renewing his enterprise -against either the French for the honour of the flag or the Dutch in -connection with the fishery. The fleet, therefore, to the wonder and -discontentment of the officers, was kept for the most part lying at -anchor, ships being occasionally detached for special purposes. - -On 3rd July, Windebank wrote to the Earl of Northumberland telling -him of the failure of the secret treaty with the Cardinal Infant, and -saying that it was the intention of the Hollanders, who had refused -the king’s licenses sent to Boswell, to fish in his Majesty’s seas as -heretofore, many of the busses having already left Holland under strong -convoys. By the king’s commands he sent him about 200 licenses, “and -withal his pleasure is,” said Windebank, “that you dispatch immediately -one of the merchant ships under your charge (being not willing to -employ any of his own until it appear what the success will be) toward -the north with these licenses, with order to make offer of them to -the fishers, and if they accept them to distribute them at the same -rates they were taken the last year. And if such as take them,” he -continued, “desire to be safe-conducted in their return, your Lordship -is to assure them his Majesty will take them into his protection, and -cause some of his fleet to accompany them homewards for their defence.” -But if the fishermen refused to take the licenses, then the Earl was -to notify the fact to the king, who would “take further resolution.” -Sir William Boswell, added the Secretary, had been informed of the -king’s intentions, and told to assure the fishermen willing to take -the licenses of his Majesty’s protection. The Cardinal Infant and -the Spanish Ministers had also been informed, and did not well relish -it.[573] - -This despatch, sent by express messenger, appears to have somewhat -surprised the Earl. His clear intelligence must have told him that a -tortuous and fatuous proceeding of this kind could only end by making -the king ridiculous. He apparently wished Charles to reconsider the -matter, and asked for further directions. Ignoring part of Windebank’s -letter, he inquired how Captain Fielding, whom he intended to send, -should behave himself if the fishermen proved obstinate and refused the -licenses; and he pointed out that if they accepted them and the king -resolved they should be convoyed home, it would need a large number of -ships, as the busses returned in small fleets.[574] Windebank two days -later repeated the instruction that, if they refused, the fact was to -be immediately notified, when the king would take further resolution. -“The truth is,” he said, “his Majesty in this present conjuncture is -not willing to proceed so roundly with them as he hath done heretofore, -and therefore thinks fit to hold this way of inviting them fairly to -acknowledge his right without sending his whole fleet, which would be a -manifest engagement and obligation to him in honour to perfect the work -upon any conditions, and notwithstanding any opposition whatsoever, -and might be of dangerous consequence, and destructive to the present -condition of his affairs. And therefore he chooses rather to attempt it -with as little noise as may be, that if the business take not in this -way it may receive the less blow, and in case of their refusal he may -have time deliberately to consider what resolution to settle.”[575] - -At this time Charles was very anxious to be on good terms with the -States. Van Beveren, the special Dutch ambassador, who was returning -home, was very cordially received by him on taking his leave on 16th -July. The king then insisted on the States entering the alliance, and -he expressed his pleasure at the courtesies which had been shown to -the Prince Elector. Besides the usual gifts on such occasions, Van -Beveren tells us he sent him a few days later a handsome diamond -ring.[576] But even if Charles had been moved by no special desire -to conciliate the Republic, the preparations which were being made -in Holland to guard the fishermen from molestation might have given -pause to the attempt to repeat the operations of the year before. The -Dutch Government were perfectly aware of Boswell’s intrigues about -the licenses, and they put little faith in the assurances received -through the Queen of Bohemia. They resolved to err on the safe side by -equipping a powerful fleet to protect the busses. In April and May, -Pennington reported to the Admiralty that Van Dorp (not yet cashiered) -was cruising between the Downs and Dunkirk with twenty sail of stout -men-of-war, and that he heard that six French warships were bound for -the north to aid in guarding the fishermen.[577] - -Fielding departed on his mission in the _Unicorn_, one of the ships -furnished by London, and on the morning of 18th July he came among the -busses fishing off Buchan Ness, Aberdeenshire. They numbered between -six and seven hundred, and were convoyed by twenty-three men-of-war. -Fielding, according to his account, “found the busses very willing” to -take the licenses, and two did so. Then one of the Dutch warships came -up and lay by him, and the captain asked him to speak to his Admiral -before sending for the busses; “but it blew hard that day and the next, -so that no boat could pass.” On the 20th he spoke with the Admiral of -South Holland and the Commander of North Holland, and explained his -mission; but they would not then give their answer. On the following -day all the commanders of North and South Holland and of Zealand, with -three other captains, told him “that they durst not let his boat pass -among the busses to give out his Majesty’s licenses before they had -orders from their Masters.” This was their answer, but they declined to -give it in writing. The _Unicorn_ then made sail for England to report -the rebuff.[578] - -The result of his manœuvre was mortifying to the king. Fielding, -sailor-like, did not conceal the outcome of his mission in diplomatic -reserve. The story soon spread throughout the fleet, and occasioned -both hilarity and indignation. When Fielding left, Pennington expressed -the opinion to his friend Nicholas that the attempt would fail and -would bring greater inconveniences in its train. On his return, -Northumberland said it would have been much better if the king had -absolutely forborne his request to the Dutch than have demanded it -in the manner he did. After the successful campaign of the year -before, Charles was now practically warned off his own seas, “as he -is pleased,” said Pennington, “to call them.”[579] It was a pitiful -position for the Sovereign of the Seas, with a great armada lying idle -at the Downs and his bombastic declarations still echoing in the ears -of Europe. - -As soon as it was known at Court that the story had got out, Windebank -was commanded to take such measures as he could to contradict it. To -duplicity was added mendacity. Fielding in his report had described an -occurrence he witnessed on returning along the coast to Scarborough. -Thirteen Dunkirkers had attacked a Dutch man-of-war, and as the -_Unicorn_ came upon the scene the latter sank, and the English captain -unsuccessfully endeavoured to save the drowning men. Windebank seized -upon this incident. He wrote to Captain Fogg, who was in command of -the ships in the Downs in the absence of the Admiral, that the report -spread about that the Hollanders had refused his Majesty’s licenses to -fish in his seas was “utterly mistaken.” Fielding had not been sent -to offer licenses to the busses, but to tender the king’s protection. -His Majesty, hearing “that the Dunkirkers had prepared a great -strength to intercept them in their return from the fishing,” had sent -Fielding, “in love to them,” to give them notice of it, and to offer -them safe-conduct. “This,” said Windebank, “you are publicly to advow -whensoever there shall be occasion, and to cry down the other discourse -as scandalous and derogatory to his Majesty’s honour.”[580] Similar -directions were sent to the Earl of Northumberland. - -At the beginning of August 1637, Charles, conscious of the ridicule -that would ensue if the third ship-money fleet lay at anchor all the -year, and yet having nothing for it to do, sent it to the west--“to -make one turn in an honourable procession, to continue the boundaries -of our master’s dominion in the sea,” as Roe, with gentle sarcasm, -described it. It got as far as the Land’s End, and returned to the -Downs on 5th September, having “scarce seen a ship stirring on the sea, -except the poor fishers that dwell upon the shore.”[581] Windebank -told Northumberland that the king was “very sensible” of the story -which was being told about the licenses, and that he had been specially -commanded to give the refutation of it in charge of the Earl, “and -that you should do it in the same way that I have directed him (Fogg), -namely, that his being sent to the busses was to give them notice -of the forces prepared by the Dunkirkers to intercept them in their -return, and to offer them his Majesty’s protection, but no licenses; -that of the licenses to be cried down and the other to be advowed -and reported through the whole fleet.” Fielding was to be admonished -to be more reserved in future “in such great services,” and in the -meantime to “make reparation by divulging this and suppressing the -former report.”[582] Captain Fogg readily agreed to suppress “the false -report,” as he called it; but what Northumberland’s answer was does not -appear. He seems to have received the king’s commands only on returning -to the Downs, and he left the _Triumph_ a few days thereafter. What he -thought is not doubtful: he was getting disgusted at his employment. -“No man,” he wrote to Roe, “was ever more desirous of a charge than I -am to be quit of mine, being in a condition where I see I can neither -do service nor gain credit.”[583] - -There is clear evidence indeed that by this time the naval officers, as -well as the people generally, were becoming tired of the king’s great -pretensions and small performance. Even Pennington, a simple, loyal, -unimaginative man, always ready to obey orders, had begun to joke, as -we have seen, at the king’s seas, “as he is pleased to call them.” -Throughout the country discontent was deepening. The opposition to the -collection of ship-money was growing formidable, and the declaration -of the Judges in favour of the king’s right to levy it only postponed -the inevitable for a little.[584] In his letter to the Judges, Charles -based his case on the necessity of maintaining his sovereignty of the -sea. The honour and safety of the realm of England, he said, “was -and is now more neerely concerned then in late former tymes, as well -by divers councells and attempts to take from Us the dominion of the -seas (of which we are sole Lord, and rightfull owner and proprietour, -and the losse whereof would bee of greatest danger and perill to this -kingdome and other our Domynions) as many other waies.”[585] - -[Illustration: Fig. 13.--_The “Sovereign of the Seas.”_ After -Vandevelde.] - -The king’s dominion on the sea was rapidly waning. Fielding’s ignoble -mission was the last attempt that fate permitted Charles to make in -actively asserting it. The shadow of the coming revolution was already -upon him. The trial of Hampden for refusing to pay the ship-money -focussed the attention of England, and it was followed by complaints -of other grievances arising from the personal government of the king. -The popular tumult in Edinburgh in the summer about the new Liturgy -had as a sequence the National Covenant and insurrection. Charles -found another use for his fleet than the enforcement of his sovereignty -of the sea in the expedition to Scotland to subdue his rebellious -subjects; and the British seas, even the King’s Chambers, were soon -again the scenes of flagrant acts in violation of his authority. By a -strange irony it was at this time that the king’s “Great Ship,” the -famous _Sovereign of the Seas_, whose praises were sung by Thomas -Heywood, the dramatist, was launched at Woolwich. Its construction had -been under consideration for several years; it was begun in January -1636 and launched early in October 1637. Charles took a keen personal -interest in his great ship, and supervised its details. He selected a -scutcheon and motto to be engraved on each of its 102 brass guns--the -rose and crown, sceptre and trident, and anchor and cable, with the -inscription, _Carolus Edgari sceptrum stabilivit aquarum_--Charles -established the dominion of Edgar over the seas; and on the “beak-head” -sat the effigy of King Edgar, trampling on seven kings.[586] As its -name implied, it was meant to be a symbol as well as an instrument of -the king’s sovereignty of the seas; and it was symbolical of it in -a sense undreamt of by Charles. It was costly, highly decorated and -begilt, but useless until it was cut down and made serviceable under -the Commonwealth. He inserted it in the list of ships to serve in the -fleet that assembled in the Downs in 1638, but it was not ready to -join. - -This fleet consisted of twenty-four king’s ships and seven merchant -vessels, and, owing to the illness of the Earl of Northumberland, it -was placed under the command of Sir John Pennington.[587] It did still -less than the fleet of the previous year. Two ships were sent to the -westwards on an alarm that “Turkish” pirates were in the Channel; it -convoyed two vessels laden with gunpowder into Dunkirk, notwithstanding -the blockade by the Dutch, and returned to the Downs; and two ships -were despatched to the north to intercept supplies of arms and -munitions of war from Rotterdam and Bremen to the Scots. There was not -even the “one turn in an honourable procession” to the westwards as in -the previous year, and the fleet rode idly at its anchorage. - -The question of the “homage of the flag” had by this time also fallen -somewhat into the background. In the two preceding years it had been -enforced with much zeal. In 1636, when Northumberland’s fleet was -among the herring-busses, Captain Carteret, in the _Happy Entrance_, -forced a Spanish fleet of twenty-six sail to strike to him off Calais, -though they tried their best to avoid it. A Dunkirker was also made -to strike and “lie by the lee” off Nieuport by Captain Slingsby. But -the French still refused to lower their flag when on the other side -of the Narrow Sea. Sir Henry Mervin, on meeting two French men-of-war -off Gravelines with their colours in the main-top, fired some twenty -shots at them without causing them to strike. In the Mediterranean the -French retaliated. An English vessel on the coast of Barbary was forced -to lower its flag to French ships of war, and because the captain -refused to go on board them when requested, the ship was attacked and -captured. In the following year Captain Straddling of the _Dreadnought_ -used drastic measures against some Hollander merchant-ships. Falling -in with four of them off the Lizard, homeward bound from Brazil, with -their flags abroad, he commanded them to strike. One refused till many -shots were fired, excusing himself afterwards by saying he thought the -English ships were Dunkirkers. Straddling took him into custody, and -lodged him in Plymouth fort “to answer his insolence and contempt of -his Majesty’s regality in these seas,” and he remained a prisoner there -for a fortnight before he was released by order of the Admiralty.[588] -But in 1638 there were few incidents of this kind, probably because of -the fleet lying at anchor so long, though it may be supposed that the -general condition of public affairs did not whet the zeal of the naval -officers. - -It was not long before advantage was taken abroad of Charles’s troubles -in Scotland. In the early part of 1638 Pennington reported that there -were many Hollander, French, and Dunkirk ships at sea, and that they -were pillaging English vessels;[589] but the king was unable to protect -even the herring-busses of the Fishery Society that he had taken under -his peculiar care. The Dunkirkers, emboldened by immunity, took four -of them in 1639, and then daringly anchored in the Downs. The Dutch -men-of-war became bold, and then insolent. They began by protecting a -Calais vessel that had rifled an English ship, their Admiral refusing -to surrender her. Soon their fleets visited the English coasts in -menacing strength, and although they “performed their duty” in the -matter of the flag, they insisted on their right to stop and search -English vessels, even in the King’s Chambers. “The Hollanders’ ships,” -wrote Northumberland’s secretary to Pennington in June 1639, “begin -to be very bold in our seas, and lie about Portland with fifty sail, -examining and searching all English ships and others which pass -by them, so that in effect they command where the King challenges -sovereignty.” The English merchants, he said, made great complaint that -their trade was likely to be destroyed; they were “much perplexed, and -called to mind tonnage and poundage, for which his Majesty was pleased -to promise thirty sail of his ships to secure trade in the Narrow -Sea.”[590] - -The truth was that English ships had been engaged in transporting -Spanish troops and bullion to Dunkirk, and that the Dutch were merely -exercising their rights as belligerents. Their action was nevertheless -a plain flouting of the high pretensions of the king, and it was -the more disagreeable because Charles had now again veered round to -the side of Spain. He was much moved at the “insolencies” of the -Hollanders, which “concerned his honour” and “put his sovereignty in -hazard”; and the Earl of Northumberland, who had been created Lord High -Admiral in the preceding year, also expressed himself as much afflicted -that such affronts were put on the nation in his time. It was, said -Windebank, a very high disorder that any of the king’s neighbours -should presume to lie with a fleet in his Majesty’s Channel, near his -ports, and where he justly claimed sovereignty, and arrest and search -English ships, taking out of them “such persons, being passengers, as -they please”; “especially”--and this no doubt was a potent reason of -the king’s displeasure--“since the merchants and others took occasion -by such pretences of interruption of their trade to make difficulty to -pay their ship-money, which his Majesty is resolved to maintain.” The -king therefore commanded Pennington to put a stop to these affronts and -to preserve the sovereignty of the narrow seas, so “that trade may be -free and open, as well to his Majesty’s subjects as to others in league -and amity with his Majesty, and that peace be kept and the merchants -secured according to his Majesty’s proclamations and declarations -published heretofore to that effect.”[591] - -It was one thing to indite imperious commands in London as to the -necessity of maintaining the king’s sovereignty of the seas; it was -quite another thing to carry them out in the Channel in the presence of -a powerful Dutch fleet under the new Admiral, Maarten Harpentz Tromp. -Pennington, conscious of his impotency, tried at first to justify, or -at least to extenuate, the action of the Dutch men-of-war. They only -took out of the English ships the Spanish soldiers, he said, who were -being carried to Flanders; they were most civil and courteous while -doing so; in reality, it was the English captains who had committed the -greater insolency. At all events, before attempting any reparation, it -would be only prudent to have an overmastering force, lest greater loss -and dishonour should happen, because, he said, the Dutch were in great -strength, and it was reported that the French fleet was about to put -to sea. Pennington was nevertheless ordered to prevent the affronts -as best he could. He then said he would do his best; but he had only -four ships available, and he asked for express orders how far he should -proceed if he were resisted with overmastering strength.[592] - -But the question of the right of search was for the moment relegated -to diplomatic channels, and before anything could be done, either by -peaceful agreement or by Pennington’s ships, another event put an end -to it, and dissipated the king’s dreams of the dominion of the seas. -The battle of the Downs was fought between the Dutch and the Spaniards -on 11th October 1639, in spite of Charles’s express prohibition, and -in spite of his helpless fleet. So glaring a violation of one of the -King’s Chambers within three years of the appearance of Selden’s -_Mare Clausum_--an injury which he was as unable to prevent as to -redress--proclaimed to Europe that he was no longer sovereign over the -sea that was incontestably his own. - -At the end of August a large Spanish fleet, consisting of some thirty -great galleons and thirty-six transports with troops for Flanders, set -sail from Corunna. On 6th September it was attacked in the Channel -by a Dutch squadron of seventeen ships, and a running fight was kept -up, the Spaniards passing eastwards off the English coast. Tromp, -engaged in blockading Dunkirk, heard the cannonading, and on the 8th -he joined the Dutch squadron with fifteen sail, when a fierce battle -took place in the Straits of Dover.[593] The Spanish Admiral, Don -Antonio de Oquendo, having expended all his powder, took refuge with -his shattered galleons in the Downs on 9th September, whither Tromp -followed him. Great anxiety was felt in London, first of all lest the -powerful foreign fleets should refuse to strike to the small English -squadron under Sir John Pennington, and then lest they should begin -hostilities in the King’s Chamber. On the former point doubts were soon -set at rest. Tromp at once took in his flag in the presence of the -English ships, a “civility” with which Charles was pleased. So also -did the proud Spaniard, but only after preliminary refusal and demur; -and Pennington’s insistence that the standard of Spain should be -lowered was made a subject of complaint at Madrid.[594] Anxiety on the -second point was protracted, and it was not diminished by the reports -that were received that the French fleet was coming to reinforce -their allies the Dutch. Pennington, in the most emphatic manner, had -forbidden hostilities within the King’s Chambers, and he assigned the -northern part of the anchorage to the Spaniards and the southern part -to the Dutch. For several weeks the belligerent squadrons remained in -the Downs facing one another. The Spanish Admiral, a few days after his -arrival, succeeded under cover of night in despatching to Dunkirk some -of his smaller vessels laden with soldiers. Tromp and Oquendo appealed -to Charles through their respective ambassadors, “and then ensued an -auction, the strangest in the annals of diplomacy, in which Charles’s -protection was offered as a prize to the highest bidder.”[595] On the -one hand, he demanded £150,000 from Spain, and better treatment in the -business of the Palatinate, as the price of securing the safety of the -Spanish fleet.[596] On the other hand, he declared himself ready to -abandon the Spaniards to Tromp, if France would come under a binding -promise to place Charles Louis at the head of the army which had been -commanded by Bernard of Weimar--as a means, of course, to recover the -Palatinate.[597] - -While waiting the highest bid from one or the other, the king’s -commands regarding the fleet were puzzling and contradictory. -Smith, Northumberland’s secretary, who carried on a confidential -correspondence with Pennington, wrote to him that the king, when the -difficult situation of the English fleet was explained to him and he -was asked for explicit instructions as to how the Admiral should act, -“would not give any express declaration.” “I earnestly pressed his -Lordship [the Earl of Northumberland] to prevail with his Majesty,” -he said, “that you might have some justifiable instructions how you -should demean yourself.... To all this he told me that he had often -pressed his Majesty to declare his resolution, but never could get -any.” Smith privately advised Pennington to make a show of assisting -the Spaniards if there was a fight, but not to run himself or the -king’s ships into danger where there was no hope of victory and “the -only expectation was hard blows and hazard.”[598] - -Desperate efforts were hurriedly made to strengthen the English fleet. -Ten additional ships were being got ready, and Northumberland intended -to take command himself as soon as they reached the Downs, but of the -3000 men which the Admiralty were “labouring” to procure for them, -only 300 could be obtained; they did not join Pennington till some -days after the battle. Pennington had been ordered to press into his -service all English ships he could lay his hands on, and to employ them -“in any warlike manner against any that shall presume to affront his -Majesty, or derogate from his sovereignty in these parts.”[599] Ten -vessels were thus pressed; but it was impossible to find seamen to man -them properly, and by command of the king some of them were dispensed -with. In presence of the powerful States’ fleet, to say nothing of the -Spaniards, Pennington’s instructions to the masters of the merchantmen -must have sounded somewhat ironical. If either of the “great fleets,” -he said, should presume to attempt anything in the King’s Chambers -“contrary to the laws and customs of nations and to the dishonour of -our king and kingdom, you are to fall upon the assailants, and to do -your best to take, sink, or destroy them.” Moreover, if any ships of -the hostile fleets assembled, “or any others that may come,” should -put out a flag, they were to cause them to be taken in; if refused, -they were to do their best to sink the offending ship.[600] The “any -others” meant the French, who were expected daily in the Downs, and -whose arrival there was regarded with apprehension. The general opinion -was that they would refuse to strike when they came, and, in that -event, what would happen? “That,” said Smith, “will set us all in -combustion, for then we must _strike_ them, although peradventure to -our own prejudice. But this punctilio of honour,” added the secretary -to the Lord High Admiral, with prophetic instinct, “will one day cause -more blood to be drawn than ere it will bring profit or honour to our -king.”[601] - -Meanwhile Tromp and his resolute men were getting impatient. Since they -had cooped up the hated Spaniard in the English roadstead, they had -been reinforced from Holland, so that the Dutch fleet was soon in the -overwhelming strength of a hundred sail. Tromp also knew that Charles -had arranged (for a substantial consideration) to supply the Spanish -Admiral with gunpowder, of which he stood in dire need, and that thirty -Dunkirk sloops had succeeded in joining Oquendo. Above all, he had in -his pocket the express orders, just issued by the States-General, “to -destroy the Spanish fleet, without paying any regard to the harbours, -roads, or bays of the kingdom where it might be found.”[602] He -promptly seized an opportunity to carry out his orders. Information -reached London on 8th and 9th October that the Dutch were preparing to -attack. Commands were at once sent to warn them to desist, and they -were informed that the king was going to fix a short period for the -departure of both fleets; and this message was conveyed to the Dutch -Admiral. On the evening of the 10th, the gunpowder for the Spanish -fleet came alongside, and the accidental discharge of a gun on one -of the Spanish ships killed a Dutch sailor. This was enough. Before -the fog lifted next morning Tromp’s fleet was under sail; the roar of -cannon announced that the attack had begun; and within a few hours the -Spanish galleons were driven ashore, burnt, sunk, or in flight for -Flanders, with Tromp in hot pursuit. The English Admiral acted on the -prudent advice which had been given to him by Smith. He made a show -of resenting the violation of the King’s Chambers by firing at the -Dutch. In Madrid it was afterwards said he had fired his guns into -the air, but Pennington himself tells us that (although he affected -to believe the Spaniards had begun the combat) he “chased and shot at -the Hollanders” until they were all beyond the South Foreland; but the -Hollanders took no notice of him. On the morning of the battle Tromp -sent a letter to Pennington which was more than tinged with irony. -Since the Spaniards, he said, had infringed the conditions fixed by -firing at him first, the English Admiral should assist him in fighting -them, “according to his Majesty’s orders.” At all events he--Tromp--was -resolved, by instructions from his masters, to fall upon his enemies, -and to defend themselves “against those that shall resist them.” The -Dutch would rather die as soldiers, he said, “with his Majesty’s leave -in clearing his Majesty’s Road,” than fail to carry out their orders; -and he hoped that this would be “acceptable to his Majesty, but if his -Majesty should take any distaste we hope he will graciously forgive us.” - -After pursuing the remnant of the Spanish fleet to Dunkirk, the Dutch -Admiral returned triumphant to the Downs, and saluted the English -squadron by striking his flag and firing nineteen guns,--“as a token,” -says an ironical observer, “that his Majesty was Sovereign of these -his seas!”[603] Tromp indeed, in those years, was most punctiliously -respectful to this symbol of the king’s sovereignty. Even during the -height of the battle, when he was violating not merely the sovereignty -claimed by Charles but the well-understood Law of Nations, he kept his -flag down until he was a good way off from the Downs,--a circumstance -which Pennington reported with satisfaction. Had the Dutch Admiral -shown the same willingness to strike to the flag of the Commonwealth -when he encountered Blake thirteen years later, the war that followed -might, perhaps, have been averted, or at least postponed. - -Charles was very naturally highly incensed at this open flouting -of his authority. It was an ugly blot on the lustre of his ancient -prerogative, and a painful proof of the contempt in which his -much-vaunted naval power was held by the Dutch Republic, and--what -perhaps he felt quite as much at the time--it robbed him of all chance -of blackmailing Spain. When that Power was asked to pay the great -sum above mentioned, the Cardinal Infant put the proposal aside, -considering that it was the king’s own interest to protect the Spanish -fleet; and when Tromp’s precipitation broke in on the negotiations, -it was decided to withhold any payment at all until it was seen how -Charles would resent the injury done to Spain.[604] At first he -resolved to punish the affront. Pennington was ordered to cause the -Dutch fleet, which had returned to the Downs, and was suspected of -meditating further “insolency” by falling upon the stranded galleons, -to immediately quit the road. The king, he was told, had made up his -mind not to allow them the liberty of his ports or roads “until he -shall have received satisfaction for the insolency already committed.” -If they refused to leave, Pennington, immediately the other ten ships -had reinforced him, was to drive them out with all his power and -strength, or answer the contrary at his uttermost peril. Before these -orders could be executed, Tromp voluntarily departed.[605] Copies of -the letter to Pennington were sent to Brussels and Madrid to show -the Spaniards that the king was full of resolution. They were told -he was very sensible of the affront and insolence of the Hollanders, -and “would make such demonstration of it, and demand and expect such -reparation as in honour he is obliged.” But he was quite unable to -carry out his good intention. It was in vain that he was urged from -Madrid to take strong measures against the Dutch; to seize their -property; even to invade Normandy as a punishment to their ally.[606] -He had no fleet and no money to enable him to cope with the Dutch -Republic, even if the condition of home affairs had permitted the -attempt. On the contrary, to such a level had he fallen by his stubborn -ineptitude that the English Minister at The Hague was ordered to avoid -even a remonstrance about Tromp’s high-handed action in the Downs. If -the States-General mentioned the matter to him, he was to say that he -had received no instructions, “and so to refuse any conference on that -particular.”[607] - -The Dutch Government had expected that Charles would raise loud -complaints, and they decided to take a bold attitude. On the day that -they received news of Tromp’s victory the proposal was made to send -over an ambassador, and Aerssen Van Sommelsdijck, who was chosen for -the mission, reached London early in November. There was to be no -attempt made on this occasion to appease the king with soft phrases and -show of submission. Aerssen was to complain of the action which England -had for a long time taken in favouring the Spaniards. The violation -of the King’s Chamber was to be passed over, and the battle in the -Downs represented as having been merely a continuation of the first -fight in the Channel, which forced the Spaniards to take refuge in -the English roadstead. But the pains taken by the States-General were -hardly necessary. Charles in his perplexity did not know to which side -to lean. He received the Dutch ambassador in a very friendly way, and -began to speak again of an alliance with the Republic.[608] In another -direction he was flouted by the Dutch. On the 1st October, while the -belligerent fleets were at anchor in the Downs, his representative at -the conference at Hamburg proposed that if the Republic joined the -projected alliance with France, Charles would grant them liberty to -carry on their herring fishery in the narrow seas. At the very time -that Tromp was battering the Spanish galleons in the King’s Chamber, -the States-General were engaged in passing the resolution “that they -did not intend to ask for the right of fishing in the North Sea from -any one.”[609] - -A year later, the Long Parliament began its sittings at Westminster, -and Charles was rapidly stripped of sovereign power within his own -kingdom. The Dutch, conscious that they and not the King of England -were the real masters of the sea, became overbearing in their conduct. -More than ever their fishermen indulged in the bad treatment of British -subjects, which this country was unable to prevent. But their triumph -was short-lived. A decade later they were smitten by the heavy hand -of Cromwell, who resumed the sovereignty of the sea. It is to the -period beginning about this time that the Dutch trace the decadence -which set in in their great fisheries as well as the decline of their -trade. It is, however, a satisfaction to think that the part played -by this country in causing the misfortunes of Holland--a country to -which civilisation is indebted for immense advances, both material -and intellectual--was comparatively small. From about the middle of -the seventeenth century to the peace of Utrecht, in 1713, the Dutch -Republic was involved in almost constant wars with its Continental -neighbours, and the herring-fishery and the trade in general suffered -severely, and never afterwards regained the prosperity they formerly -enjoyed. - - - - -CHAPTER IX. - -THE JURIDICAL CONTROVERSIES. - - -The great juridical controversies respecting _mare liberum_ and -_mare clausum_--the sea open to all, or that under the dominion of -a particular Power--which enlivened the international politics of -the seventeenth century, reached their highest pitch in the reign of -Charles I., and may be conveniently considered here. The writers who -touched upon the question in the previous century took it for granted -that the seas were capable of appropriation, and that they were almost -wholly under the dominion of one Power or another. It is true that -now and again a slender voice was raised in protest, on abstract -legal grounds, against the exclusive maritime sovereignty arrogated -by Venice, Portugal, or Spain. Queen Elizabeth too, as we have seen, -not only protested against these claims in certain cases, but actively -opposed them. Her action, however, pertained rather to the sphere of -diplomacy and politics than to legal controversy; and the protests of -the few jurists alluded to were too feeble to have practical effect on -the course of events or on the prevalent opinion. - -It is noteworthy that the birth of modern international law was -associated with the origin of these juridical controversies as to -the freedom of the sea.[610] It was the appearance of _Mare Liberum_ -in 1609 that heralded the dawn of the new epoch. The little book of -Grotius was at once a reasoned appeal for the freedom of the seas -in the general interest of mankind, and the source from which the -principles of the Law of Nations have come. The main reasons why -the controversy broke out at that time and the pleas of Grotius -had so much success are not difficult to discover. The period was -characterised by a great expansion of commercial enterprise. The -Western Powers of Europe, and above all the United Provinces, were -pushing into every sea for the sake of traffic and gain. In some -directions the trading adventurers found their way barred by claims to -_mare clausum_ and monopoly of trade; in other directions it was open -to them only under heavy burdens and aggravating restrictions. The -northern seas, in theory at least, were closed to the whaling vessels -engaged in what was then a most valuable business; and commerce and -fishing within them were permitted only under irksome conditions. The -passage through the Sound into the Baltic was subjected to high dues -by Denmark; Venice claimed dominion in the Adriatic and levied imposts -for the right of navigation there, and Genoa followed her example in -the Ligurian Sea. But it was not so much the claim of Denmark to the -sovereignty of the northern seas, or the rights asserted by Venice -in the Adriatic, that led to the outburst for the freedom of the sea -and of commercial intercourse at the beginning of the seventeenth -century. Except with regard to English traffic with Iceland and -Norway and the fishing there, more or less regulated by treaties, the -Scandinavian claim at this time was not of great practical importance; -and the dominion of Venice over the Adriatic was generally regarded -as beneficial on the whole, by interposing a powerful barrier to the -further extension of the Turkish empire in Europe, and by facilitating -the suppression of pirates and Saracens.[611] It was the extravagant -pretensions of Spain and Portugal to a monopoly of navigation and -commerce with the New World and the East Indies that constituted the -great obstacle to the new spirit of commercial enterprise. Founding -their title on the Bulls of the Pope, and the right of discovery, -conquest, and prior occupation, they arrogated to themselves the -exclusive sovereignty of the great oceans which were the pathways to -these immense regions,--the Atlantic, the Indian Ocean, and parts of -the Pacific. Thus, as Grotius remarked, the whole Ocean except a little -was to remain under the control of two nations, and all the other -nations of the earth were to content themselves with the remnant. - -The commerce with the East Indies was of special value and importance. -The discovery of the Cape route by Vasco di Gama, in 1497, led to the -great stream of traffic between Europe and the East being diverted in -the next century from its old channel in the Mediterranean and Levant -to the Atlantic. The lucrative trade with the Indies was transferred -from the Venetians and the Italian Republics to the Portuguese, who -then became for a time the chief trading people of the world,[612] and -strove to keep it entirely in their own hands. It was particularly with -reference to this monopoly that the disputes about the freedom of the -sea began. The _Mare Liberum_ of Grotius was specially directed against -the prohibition by the Portuguese for any other nation to navigate -round the Cape of Good Hope or to trade with the Indies. It has been -well said by Calvo that the historical antecedents of the controversy -about _mare clausum_ are to be found in the voyages of Columbus and -Vasco di Gama.[613] - -Very soon, however, the claims of other Powers to maritime -sovereignty--of Denmark, Venice, England--were similarly assailed, and -the controversy became general. It may be noted that those who took -part in it on the one side or the other, including some of the most -learned men of their age, were in large measure inspired by patriotic -motives. National interests as much as lofty ethics or legal principles -were at its root. Even Grotius, notwithstanding his impassioned -appeal to the conscience of the world for the liberty of the sea and -the freedom of commerce, was not exempt from this weakness. It was -his happy fortune that the cause he publicly advocated was equally -in conformity with the growing spirit of liberty and the immediate -interests of the United Provinces. Only four years later, when the -Dutch had obtained a footing in the East Indies in spite of the -Portuguese, they in turn wished to exclude the English from any share -in the trade with that opulent region: they did not want any freedom of -commerce that might tell against themselves. And then we find Grotius -arguing, in London, against his own declarations in _Mare Liberum_, and -in favour of commercial monopoly for his native land--a task, which, -we are told, he performed “with uncommon ability.” - -This charge cannot be made against the two authors whose voices were -raised in opposition to the prevailing opinions as to the appropriation -of the sea before the work of Grotius appeared, and of whose writings -he made considerable use. One of these was a Spanish monk, Francis -Alphonso de Castro, who wrote about the middle of the sixteenth -century, protesting against the Genoese and Venetians prohibiting -other peoples from freely navigating the Ligurian and Adriatic Seas, -as being contrary to the imperial law, the primitive right of mankind, -and the law of nature; and also against the Spanish and Portuguese -claims for exclusive rights to the navigation to the East and West -Indies.[614] The other author, also a Spaniard, was Ferdinand Vasquez -or Vasquius, who expressed the same opinions as de Castro, and for -the same reasons. He held that the sea could not be appropriated, but -had remained common to mankind since the beginning of the world; that -the claim of the Portuguese to forbid to others the navigation to the -East Indies, and that of the Spaniards to a similar prohibition to -sail through “the spacious and immense sea” to the West Indies, were -no less vain and foolish (_non minus insanæ_) than the pretensions of -the Venetians and Genoese. The law of prescription, he said, was purely -civil, and could have no force in controversies between princes and -peoples who acknowledged no superior, because the peculiar civil laws -of any country were of no more value with respect to foreign nations -than as if they did not exist; to decide such controversies recourse -must be had to the law of nations, primitive or secondary, which it -was evident could never admit of such a usurpation of a title to the -sea. With regard to the right of fishery, Vasquius drew a distinction -between fishing in the sea and in rivers or lakes. He held that the sea -had been from the first, and still remained, by the primitive right -of mankind, free both for navigation and fishing, and that its use -could not be exhausted by fishing, while lakes and rivers may be so -exhausted.[615] - -From the foregoing, it will be seen that Grotius had ready to his hand -many of the legal arguments of which he made so much use; but the -strength of his work lay rather in its appeal to the sense of justice -and the conscience of the free peoples of Christendom, to whom it was -dedicated. The Spanish authors, moreover, were not in a position to -assail the validity of the Papal Bulls, upon which the Spanish and -Portuguese claims were partly founded, whereas it was against them that -the Protestant writer levelled some of his most powerful philippics. - -The _Mare Liberum_ of Grotius was published anonymously at Leyden, -Holland, in March 1609.[616] As the title declares, the author’s object -was to assert the right of the Dutch to trade with the Indies, and to -combat the pretensions of the Portuguese to a monopoly of navigation -and commerce in those regions; but the genesis of the book has only -been recently made known. At the end of the sixteenth century, when -the commerce of the United Provinces was expanding in all directions, -the Dutch merchants resolved to share in the lucrative trade with -the far east. Having failed to open up a passage to the Indies by the -north-east, they boldly sailed thither by the Cape of Good Hope, in -1595, through the seas and to the regions which Portugal claimed for -herself. Encouraged by success, other trading voyages by the same -route were undertaken almost every year. A United Dutch East India -Company was formed in 1602, and the States-General decided to maintain -their rights to the trade by force. The disputes and conflicts with -the Portuguese which followed were soon brought to a head by the -action of the redoubtable Jacob van Heemskerk in attacking and seizing -Portuguese ships.[617] The valuable booty taken from the Portuguese -was brought to Holland in 1604 and 1605, and caused much searching -of heart among the shareholders of the company. Many were gratified -by the spoil, but others of much influence, moved by conscientious -scruples or good policy, refused to share in it, and they threatened -to separate themselves from the company and form a rival association -to carry on peaceful trade under the protection of the King of France. -It was about this time that Grotius, incited by the condition of -affairs, began to write a treatise with the object of encouraging his -countrymen to resist the claims of the Portuguese by force. In a tract -written about 1614 to vindicate _Mare Liberum_ against the attack of -the Scotch lawyer, Welwood--which was not published, and the existence -of which was unknown till about forty years ago--he says that some -years earlier, perceiving the great importance of the East Indian -trade for the Netherlands, and that it could only be made secure by -armed resistance to the Portuguese, he had written a book in which he -explained the law of war and spoil; and in order to rouse the popular -mind he gave an account of the ill-treatment of the Dutch in the East -Indies at the hands of the Portuguese.[618] Grotius was then only a -little over twenty years of age, and it enhances our sense of the -precocity and fertility of his genius to learn that _Mare Liberum_ was -only one chapter (the twelfth) of this treatise. The treatise itself -was not published by Grotius; but in 1608, during the negotiations with -Spain which ended in the truce of Antwerp, on (March 30)/(April 9), -1609, the Spaniards demanded that the Dutch should relinquish the trade -with the West Indies and also with the East Indies (Portugal being then -united to Spain), and, probably at the request of the directors of the -East India Company, Grotius then detached the part of his work which -dealt with the freedom of commerce and navigation and published it in -March 1609, under the title of _Mare Liberum_. - -In dealing with his theme Grotius attacked in succession all the -arguments put forward by the Portuguese to justify their claim. Their -titles from prior discovery of the Cape route, under Papal Bulls, by -the right of war or conquest, or from occupancy and prescription, -were all, he maintained, invalid; by the Law of Nations navigation -and commerce were free to all mankind. The action of the Portuguese -in attempting to restrain the trade with India furnished a just cause -of war; and the Dutch were resolved to assert their rights by force. -But _Mare Liberum_ was much more than a pleading in a particular case. -An earnest and powerful appeal was made to the civilised world for -complete freedom of the high seas for the innocent use and mutual -benefit of all. Grotius spoke in the name of humanity as against the -selfish interests of a few; and while he made full use of arguments -founded on Roman law, on the law of nature and of nations, it was -principally the lofty moral ideas which inspired his work that gave -it its reputation and charm. He entered into a subtle and learned -disquisition as to the origin of the idea of property from the -primitive times when all things were held in common; the conditions -under which private property is possible or lawful, and the distinction -between what is private, what is public, and what is common. Much of -the argument appears to us now to be of the nature of hair-splitting -and word-play; but inasmuch as it was made use of subsequently in the -numerous controversies regarding the freedom or the sovereignty of -the sea, as well as in diplomatic negotiations, it is necessary to -summarise it here. All property, he says, is based upon possession or -occupation (_occupatio_), which requires that all movable things shall -be seized and all immovable things enclosed; things that can neither be -seized nor enclosed cannot become property: they are common to all, and -their use pertains not to any particular people but to the whole human -race. The distinction is also made between things which are exhausted -by promiscuous use and those which are not: the latter are common, and -their free use belongs to all men. Thus the air is common, because it -cannot be occupied and because it cannot be exhausted by promiscuous -use; it therefore belongs to all mankind. And in the same way the sea -is common to all; it is clearly so infinite that it is not capable of -being possessed, and is fitted for the use of all both for navigation -and fishing.[619] It is also among those things which cannot be bought -and sold--that is, which cannot be lawfully acquired; whence it is, -strictly speaking, impossible to look upon any part of it as belonging -to the territory of a people. The sea is under no one’s dominion except -God’s; it cannot by its very nature be appropriated; it is common to -all, and its use, by the general consent of mankind, is common, and -what belongs to all cannot be appropriated by one; nor can prescription -or custom justify any claim of the kind, because no one has power to -grant a privilege adverse to mankind in general. - -Grotius places navigation and fishing in the sea on the same footing, -or rather he looked upon interference with the freedom of fishing as -a greater offence than interference with navigation. With regard to -imposing tribute on fishermen, he said that such as are reckoned among -the Regalia are imposed not on the thing, that is the sea and the -fishing, but on the person; and while it may be levied by a prince on -his own subjects, it is not to be levied on foreigners, for the right -of fishing everywhere should be free to foreigners, lest a servitude be -imposed on the sea which it cannot bear. An action of this kind would -be worse than the prohibition of navigation; it would be barbarous and -inhuman. If any one, says Grotius, claimed jurisdiction and sovereignty -on the great seas for himself alone against promiscuous use, he would -be looked upon as one who was aiming at extravagant dominion; if any -one was to keep others from fishing, he would not escape the brand of -insane cupidity.[620] - -It is hardly possible to escape the suspicion, which was apparently -shared by King James, as it was by many others, that Grotius in these -sentences was aiming obliquely at England. Such strength of language -about the right of free fishing in the sea was scarcely pertinent to -his theme, for neither the Portuguese nor the Spaniards contested that -right, and the Dutch did not fish in waters under their control. It -would, on the other hand, be explicable if Grotius had got a hint of -James’s intention with regard to the “assize-herring” (see p. 152), and -we know that as early as the beginning of 1606 proposals were made for -the formation of an English fishery society, with taxation of foreign -fishermen, and that in the beginning of 1608 negotiations were on foot -between the English Government and the Dutch Ambassador as to the -“assize-herring.”[621] - -It is important to note--what many of his followers too often -forgot--that Grotius restricts the application of his general argument -for _mare liberum_ to the open sea. He does not, he says, deal with -an inland sea (_mare interiore_) which, surrounded on all sides by -land, did not exceed the breadth of a river; the question concerned -the ocean, which the ancients called immense, infinite, the parent -of things, co-terminous with the air. The controversy, he continues, -was not about a bay or a strait in this ocean, _nor concerning so -much of it as might be seen from the shore_: the Portuguese claim for -themselves whatever lies between the two worlds.[622] Again, referring -to the Italian publicists, he says their opinion cannot be applied to -the matter in question, for they speak of the Mediterranean, he of the -ocean; they of bays or gulfs, he of the vast sea, which differ very -much in respect of occupation.[623] - -The opinions and reasonings of Grotius in _Mare Liberum_ as to the -free use of the sea were repeated more concisely and with some -modification in his greatest work, _The Rights of War and Peace_, which -was published in 1625.[624] No one, he affirmed, can have property in -the sea, either as to the whole or its principal parts; and as some -people admit this in respect to private persons but not in regard to -countries or states, he proceeds to prove its truth by both a “moral -reason and a natural reason.” The moral reason is the vast extent and -inexhaustibility of the sea, whether for navigation or fishing; the -natural reason is that it cannot be occupied or possessed because -of its fluidity, since liquids having no bounds of their own cannot -be possessed unless enclosed by something else, as a river by its -banks; but the sea is not contained in the earth, as it is equal to -it or even greater.[625] Grotius, however, admits that his argument -that rivers and lakes may be appropriated because their banks could -be appropriated, may be logically applied also to certain parts of -the sea. From the example of rivers he says, “It appears that the -sea may be occupied by him who is in possession of the lands on both -sides, although it be open either above, as a bay or gulf, or both -above and below, as a strait, provided that it be not so great a part -of the sea that when compared with the lands on each side it cannot -be supposed to be some part of them”; and what is lawful to one king -or people may be also lawful to two or three, if they have a mind to -take possession of the sea thus enclosed within their land.[626] He -also admits by another train of reasoning--concerning property in the -marine vivaria of the Romans--that if it is not repugnant to the law -of nature for a private person to appropriate a small enclosed part -of the sea, one or more nations possessing the shores might in like -manner appropriate a part of the sea, if it be small compared with the -land; and that might happen although the sea was not enclosed on all -sides. But this admission that the law of nature does not preclude -appropriation of a relatively small part of the sea by the neighbouring -state, he qualifies in a general way by saying that there are many -things tolerated by the law of nature which the law of nations, by -common consent, might prohibit; and where this law of nations was in -force and is not repealed by common consent, the most inconsiderable -part of the sea, although almost enclosed by the shores, can never be -the property of a particular people. And in places where the law of -nations was not received, or was afterwards abolished, it does not -follow that the people merely because they possess the lands also -possess the sea enclosed by them; the taking possession must be made -by an overt act, and signified and made known. And if the possession -thus gained by the right of prior occupation is afterwards abandoned, -the sea returns to its original nature--namely, to the common use of -mankind. Further, he who possesses any part of the sea cannot lawfully -hinder unarmed ships, giving no room to apprehend danger, from sailing -there, in the same way that he cannot justly prohibit innocent passage -through his lands. Grotius goes on to explain that it is more easy to -take possession of the jurisdiction (_imperium_) alone over part of -the sea than of the right of property, and that it is not contradicted -by the law of nations; and he points to a number of instances among -the ancients.[627] He admits that sovereignty or jurisdiction may -be acquired on the sea either in regard to persons or in regard to -territory (_ratione personarum et ratione territorii_),--in regard -to persons, as when a fleet, which is a maritime army, is maintained -in any part of the sea; in regard to territory, as when those who -sail along the coasts may be compelled from the land, as if they were -actually on the land.[628] - -The latter statement of Grotius contains the germ of the idea -subsequently adopted by almost all the writers on international law, -that the extent of the adjoining sea over which the neighbouring state -is entitled to exercise dominion is limited by the range of guns from -the land. Grotius does not mention the means by which compulsion was to -be made effective, but there is little or no doubt of what was in his -mind.[629] It remained for Bynkershoek, at the beginning of the next -century, to give the doctrine precise expression. - -It is obvious from the foregoing that the opinions expressed by -Grotius as to the appropriation of the sea were not always consistent, -and were sometimes self-destructive. If the fluidity and physical -nature of the sea made it impossible to occupy or appropriate it, the -objection applied as much to one part of it as to another, since it is -everywhere fluid; and the admissions in his later book stultify many -of the statements in the earlier one. It seems to be indisputable that -Grotius was to some extent influenced by his environment, and expanded -or contracted his argument to meet the conditions at the time--that he -was, in short, like all the others, more or less of an advocate. When -he published his greater work he was in the service of the Queen of -Sweden, who claimed a somewhat extensive maritime sovereignty in the -Baltic, and it is not unlikely that this influenced him in making the -admissions referred to. - -The immediate object for which _Mare Liberum_ was published--the -recognition of the right of the Dutch to sail to the East Indies and -to trade there--was achieved by the treaty of Antwerp in the month -following its appearance,[630] and no reply from the Portuguese or -Spaniards to the arguments of Grotius was published till sixteen years -later. Grotius tells us that a work in refutation of _Mare Liberum_ -had been prepared by a scholar of Salamanca, but it was suppressed -by Philip III.;[631] but in 1625, when Philip IV. was on the throne, -an elaborate defence of the rights of Portugal in the Indies and a -reply to Grotius was published by Franciscus Seraphinus de Freiras, -a Spaniard, who dedicated his book to the king.[632] The Venetians -also, whose power had by this time declined, began to defend with the -pen their rights in the Adriatic. These rights had been indirectly -assailed by the general argument of _Mare Liberum_, and directly in -the writings of de Castro and Vasquius, from which Grotius had quoted -liberally; and now at the beginning of the seventeenth century they -were actively contested by other Powers, and in particular by Spain. -Hence quite a number of works defending the claims of Venice appeared -at this period, the best of which was that of Pacius, who relied on -the opinions of numerous early jurists, as Bartolus, Baldus, and -Angelus; on immemorial possession and prescription, and stated that the -rights of the Venetians consisted in jurisdiction, the imposition of -taxes, the prohibition or regulation of navigation, the protection of -subjects, and the suppression of pirates.[633] - -But it is probable that _Mare Liberum_ received as much attention -in England as it did in any other country. Grotius, as we have -seen, condemned any interference with the liberty of fishing or the -imposition of taxes on foreign fishermen in very severe language, and -his book appeared just at the time when King James had resolved on -both these courses, and within less than two months of the issue of -the famous proclamation forbidding unlicensed fishing by foreigners on -the British coasts. To be by implication branded as “insanely cupid” -by an anonymous Dutch writer, because he had decided to levy the -“assize-herring” from Dutch fishermen, must have irritated James; and -the irritation would not be lessened when he found the envoys from the -Netherlands in the following year vindicating their right to liberty -of fishing by just such arguments as were contained in _Mare Liberum_. -James, indeed, showed a somewhat bitter feeling towards the great -Dutch publicist when the authorship was revealed and the author lay in -prison; and Carleton, the English ambassador at The Hague, in a speech -to the States-General, held him up to opprobrium and stated that the -disgrace into which he had fallen should deter others from adopting his -opinions. - -The task of replying to Grotius was taken up by a Scottish lawyer, -William Welwod or Welwood, a professor of the civil law. Welwood was -Professor of Mathematics at St Andrews University, but exchanged the -Mathematical for the Juridical Chair about the year 1587; at the royal -visitation in 1597 he was deprived of his office, on the ground that -the profession of the law was in no wise necessary at that time in -the University, but probably because his profession as a teacher of -jurisprudence was obnoxious in the eyes of James.[634] In 1590 he had -published at Edinburgh a treatise on the Sea Laws of Scotland, which -is believed to be the earliest regular work on maritime jurisprudence -printed in Britain, and which was dedicated to James;[635] but -it contains nothing bearing on the question of the fishery or -“assize-herring.” In 1613 he published at London a new and enlarged -edition of his early work, and in one of the chapters on “The Community -and Proprietie of the Seas,” he endeavoured to refute the arguments -advanced in _Mare Liberum_, which he seems to have looked upon as -a reply to James’s proclamation of 1609.[636] This work was also -dedicated to the king, and in a prefatory address to the three High -Admirals--the Duke of Lennox, the Earl of Northampton, and the Earl of -Nottingham--he impressed upon them the importance of the “conservacie” -of the sea, especially for the fisheries, and urged that strangers -should be stayed from scattering and breaking the shoals of fish on the -coast of Scotland, a duty on which some of his Majesty’s ships might -well be employed. - -Welwood was scarcely fitted either by knowledge or capacity to be -a formidable antagonist to a giant like Grotius; and although his -writings contain quite a number of arguments which were later used -and expanded by Selden, it can hardly be said that they had a great -influence on the controversy. He looked upon _Mare Liberum_ as an -attack on the rights of King James and his subjects to the fisheries -“on this side the seas,” veiled under the pretext of asserting the -liberty to sail to the Indies. As befitted his nationality and his -time, many of his arguments were drawn from Holy Writ, and he had no -difficulty in placing Providence on the side of James and in opposition -to the Dutch. Others were more pertinent. He urged that the injunctions -of the Roman law applied only to the subjects of Rome, and not -internationally as between state and state,--an opinion also pressed, -as we have seen, by Vasquius; that the fluidity of the sea was no bar -to its occupation, and that it could be, and had been in certain cases, -divided up into marches and boundaries, by the ordinary methods used -by navigators, “so farre as is expedient for the certain reach and -bounds of seas, properlie pertaining to any prince or people,”--what -these bounds are or should be he does not say, though he quotes the -Italian limit of 100 miles with approval. He held that the liberty of -navigation was beyond all controversy, and agreed to the principle -of the complete freedom of the sea so far as concerned the “main -Sea or great Ocean,” which was “farre removed from the just and due -bounds above mentioned properlie perteyning to the neerest Lands of -euerie Nation.” To Grotius’ statement that it was worse to prohibit -promiscuous fishing than to forbid navigation, Welwood justly replied -that if the free use of the sea is interfered with for any purpose, it -ought to be chiefly for the sake of the fishings, if the fishes become -exhausted and scarce, as he says was the condition at that time on the -east coast of Scotland, from the “neere and dailie approaching of the -busse fishers” scattering and breaking the shoals, so that no fish -“worthy of anie paines and travels” could now be found. - -Two years later Welwood returned to the theme, and published a formal -little book on the dominion of the seas.[637] It was dedicated to -Queen Anne, who had just been endeavouring to set up a fishery society -with power to tax foreign fishermen (p. 161), and, as explained in -the dedication, the book was specially directed against the freedom -unlawfully usurped by foreigners of fishing in the British seas. It may -be regarded as an amplification of his chapter in the _Abridgement_, -but is much superior and more logically arranged; and being written -in Latin, it attained, if not a reputation, at least considerable -recognition on the Continent. He urges strongly that the sea as well -as the land is capable of distinction and dominion, both by human and -by divine law, and explains the contrary opinion of many publicists, -poets, and orators (so copiously quoted by Grotius) by saying they -were ignorant of the true law of nature, and had infected the minds of -later generations with “a preposterous notion concerning some universal -community of things.” The adjacent sea is claimed for the neighbouring -state, because it is as necessary there as it is on land that some one -should have jurisdiction, and this jurisdiction ought to be exercised -by the neighbouring prince, so that both the land and the sea should -be under the same sovereignty. The part of the sea next the land is, -moreover, so joined to and, as it were, incorporated with it, that the -ruler of the land is not permitted to alienate either a part of it, or -the use of it, or to let it out (_locare_) any more than his kingdom or -the patrimony of his kingdom. He held that it was incontestable that -the vast and boundless waters beyond the _mare proximum_ were open -to all nations indifferently for all uses, but that in the adjacent -sea the neighbouring prince had in particular two primary rights -besides jurisdiction--namely, the right of navigation and the right -of fishing, with the power to impose taxes for either. He maintained -that fishing in the sea was for the most part appropriated, and for a -clear reason. God had appointed the fishes (herrings) to swarm along -the coasts of Britain and the surrounding isles at seasons and places -which He had pre-arranged, and for the benefit of the inhabitants: why, -then, should the people be hindered from possessing as their own this -benefit which God had granted them? He would be unwilling to deny the -communication of this natural advantage to other nations, “but only by -the same law by which they possess their own, that is by a just price.” -Yet, notwithstanding this special blessing which had been granted -to the British people, they were despoiled of it and of their just -rights, owing to their seas being taken possession of, as it were, by -a continual inundation of foreign fishermen, so that the shoals were -scattered and the fishery exhausted. Welwood then refers to the alleged -old agreement between the Scotch and the Dutch, whereby the latter were -not to fish within eighty miles of the coast of Scotland (p. 84), but -which they of late totally disregarded, fishing close to the shore, -in front of the houses. And while they were permitted to carry away -their fish from our seas without paying any tribute, the poor Scottish -fishermen had to pay tithes to the Church and the assize-herring to the -crown, as well as having their livelihood damaged by the action of the -foreigners. - -The treatises of Welwood were composed to support the claim of James -to the assize-herring, and the project of the queen to monopolise the -fishings, as much as to demonstrate the law as to the dominion of the -sea. On one account if on no other his works deserve to be remembered. -He was the first author who clearly enunciated, and insisted on, the -principle that the inhabitants of a country had a primary and exclusive -right to the fisheries along their coasts--that the usufruct of the -adjacent sea belonged to them; and that one of the main reasons why -that portion of the sea should pertain to the neighbouring state was -the risk of the exhaustion of its fisheries from promiscuous use. - -But they will be remembered in the history of international law for -another reason. The first of them called forth from Grotius the only -reply he ever vouchsafed to the numerous writers who attacked _Mare -Liberum_. In the year in which the work was published, he was in London -as one of the Dutch ambassadors, engaged in the somewhat ironical -task of defending a Dutch _mare clausum_ in the East Indies, and -probably the book then fell into his hands. In his _Defensio_ (see -p. 344) Grotius reaffirmed the position he took in _Mare Liberum_, -with the old arguments, and with some new ones to meet the criticism -of Welwood, and not without some of the customary logic-chopping and -wire-drawn reasoning. He held that the Roman law as to the sea being -common applied not merely among the citizens of one state, but among -mankind in general, because _communis_ was a different thing from -_publicus_.[638] While admitting the possibility of marking out the -sea by imaginary lines, he said this was not relevant to the question -of appropriation, since appropriation could not take place without -possession, and possession cannot be established merely by the mind -or intellect, but requires a corporeal act; otherwise the astronomer -might lay claim to the heavens or the geometrician to the earth. -Concerning the rights of fishery, with which the _Defensio_ largely -deals, he asserts that as the use of the sea is common to all, no one -can prohibit fishing in it or justly impose taxes on it. With respect -to the right of the Dutch to fish on the British coasts, he cites the -Burgundy treaties and uses the same arguments as the Dutch ambassadors -did in 1610 (p. 155). They had the right by treaties, immemorial usage, -prescription, and the Law of Nations. It is noteworthy that in the -_Defensio_, Grotius, no doubt owing to the polemical spirit inciting -him above all to refute the arguments of Welwood concerning the _mare -proximum_, as well as to demolish the claims of King James, denies the -existence of sovereignty or property in any part of the sea, whereas -it appears to be allowed by implication in _Mare Liberum_, and is -expressly admitted in his later and larger work. Here he says, and -more logically, that whatever applies to the whole sea applies to -all its parts, even to a diverticulum, and he allows no exception for -the sea washing a coast: a conclusion, however, at variance with the -general practice of the time. This tract, as already stated, was not -published by the author, probably because it was likely to excite still -more the ire of James at finding his “rights” again “questioned.”[639] - -In contrast with the writings of Welwood may be cited the opinions of -another and more eminent Scottish lawyer, Sir Thomas Craig, who touched -upon the subject of maritime jurisdiction in a non-controversial work -published before the juridical controversy had arisen.[640] He states -that the sea is common to all for navigation, but that property and -jurisdiction in the adjacent sea pertains to the neighbouring territory -according to the current opinion--the sea washing the coast of France, -England, Scotland, Ireland, &c., to the respective countries. No limits -or bounds are laid down by Craig as to the partitioning of the sea in -this way, but when dealing with the theoretical question of islands -arising in the sea, he follows Bartolus in assigning a space of 100 -miles from the coast. He admits that certain seas may be prescribed, as -the Adriatic, which Venice, though not possessing the shores, claimed -by prescription. With respect to fisheries, the Scottish author, as -might have been expected, holds that those in the adjoining sea belong -to the bordering state: they are prescribed, and fishing there may be -permitted or prohibited according to custom; and he says that it was -not without great injury to us that the Dutch carry on their fishery -around our islands.[641] - -In the period that elapsed between the appearance of the works of -Grotius and Welwood and the publication of Selden’s _Mare Clausum_, -a number of other books were issued which dealt with the question -of the freedom of the seas and the extent to which they might be -appropriated. Gerard Malynes, in treatises on commerce which had a wide -circulation, re-echoed the opinions of Welwood, and of Gentleman and -Keymer. The “main great seas,” he said, were common to all nations for -navigation and fishing, but the bordering sea was under the dominion -of the prince of the adjoining country, and foreigners could only fish -in it by obtaining permission and paying for the privilege; within -this sea navigation was free unless it interfered with the fishings. -Malynes said that this was the practice in Russia, Denmark, Sweden, and -Italy; and he ascribed the decay of English fisheries and trade to the -admission of foreigners to fish in “his Majesty’s streames” without -paying for the liberty.[642] Two other authors, each celebrated in -his respective sphere, touched upon the king’s dominion in the seas, -and they may be regarded as representing two different aspects of the -subject, both of which became of great importance--namely, the limits -of neutral waters, and the rights of the crown by the Common Law of -England to the propriety of the sea and its bed. One was Alberico -Gentilis and the other Serjeant Callis. - -Gentili, or Gentilis, who was a forerunner of Grotius in shaping -the Law of Nations,[643] was an Italian of the school of Perugia, -domiciled in England, where he held the Regius Professorship of Civil -Law at Oxford. In 1605, after the conclusion of peace with Spain, -he was appointed advocate for the Spanish embassy in London, and -was frequently employed in the Admiralty Court in cases where the -legality of the capture of Spanish vessels by the Dutch had to be -determined. His pleadings and the decisions in these and similar cases -were collected and published in 1613, after his death, and they form, -according to Wheaton, the earliest reports of judicial decisions on -maritime law published in Europe.[644] - -In discharging his duties in the English Prize Courts, it often fell -to the lot of Gentilis to deal with the jurisdiction of England in -the seas, for while he held office war existed between Spain and the -United Provinces, and Spanish ships were frequently taken by the -Dutch in the neighbourhood of the British coasts. Of course, captures -made in the King’s Chambers after the proclamation of 1604 (see p. -119) were not good prize, and were restored.[645] But when a Spanish -vessel was seized clearly outside the limits of the King’s Chambers, -Gentilis argued that it was not good prize, because, first, the treaty -of peace[646] between Spain and England provided that the subjects of -either were to be protected in all places throughout the dominions of -the other; and, second, the dominion of the King of England extended -far into the neighbouring seas. He seemed to stretch the joint -sovereignty of Spain and England as far as America, pointing out that -the southern coasts of Ireland were opposite to Spain, and the western -coasts were bounded by the Indies belonging to Spain, while the -northern coasts of Britain, having no countries lying against them, -were washed by an immense and open sea. He held that the proclamation -of 1604, fixing the limits of the chambers in connection with acts of -hostilities between the Spaniards and the Hollanders, ought not to -prevail against the provisions of the treaty, for the proclamation -was subsequent to the treaty, and it would be unjust to allow it -to lessen the extent of the territory (sea) over which protection -was to be afforded by the terms of the contract. It was not a valid -argument, Gentilis continued, to say that the boundaries expressed in -the proclamation--that is, the King’s Chambers--had been observed long -before by common usage in relation to similar cases.[647] - -There is no doubt, however, that although Gentilis as an advocate took -this line of pleading, the boundaries of the King’s Chambers from -headland to headland, as defined by James in his “plat,” were received -as settled law in regard to neutrality both in the English courts and -on the Continent.[648] Gentilis further urged that the limit fixed by -the Italian jurists for the extent of jurisdiction--viz., 100 miles -from the coast, unless the proximity of another state interfered with -its application--also was in force off the British coasts, a view which -the court declined to accept. - -Yet, although this principle of extending and limiting the territorial -jurisdiction to 100 miles was not accepted in the English Courts, we -find it made use of in the diplomatic correspondence of the time. The -Earl of Salisbury in a letter to Cornwallis, the English ambassador -at Madrid, explanatory of James’s proclamation in 1609 forbidding -unlicensed fishing, did not seek to defend the action of the king by -reason of any intrinsic right of the crown of England to sovereignty -in the neighbouring sea, but rather upon what he alleged was the -practice of the civil law. A sovereign prince or state, he said, was -_Mundi Dominus, Lex Maris_, both because of the protection afforded to -navigation in the adjacent sea and from prescription: the adjoining -sea, as Baldus said, pertained to the territory of the neighbouring -state, and thus the Venetians, as lords of the Adriatic, could impose -taxes and penalties on navigation. “In respect of both which titles,” -continued the Earl, “the Kings and Princes in general fronting upon the -seas, as Spayne, France, Denmark, &c., have upon occasion offered, not -only made ordinances and published edicts for the ruling and better -ordering of the seas, but also have put them in execution; as well -civilly for deciding of contracts, as criminally for transgressions; -and have raised taxes and gabells in the seas as on the land to their -best benefit, as part of their regalities properly belonging unto -them, in sign of their sovereignty.” As to the distance to which this -sovereignty extended, he said it was “generally received to be about -one hundred miles at the least into the seas,” unless in narrow seas -only, in which case the limits are divided by the channel, “except the -princes of the one shore have prescribed the whole, as it falleth out -in his Majesty’s narrow seas between England and France, where the -whole appertayneth to him in right, and so hath been possessed tyme out -of mind by his progenitors.” - -By another channel we may trace the course of the ideas which -converged and culminated in the claims of Charles to the dominion of -the surrounding seas--viz., in connection with the development of -the law relating to the rights of property in the foreshore and the -bed of the sea. Cases frequently occurred in which those rights were -contested between private individuals and the crown; and in the course -of litigation, or in writings dealing with the subject, the rights in -the sea which were alleged to belong to the crown were explained. We -have already seen that Plowden, in a case of the kind, argued that -Queen Elizabeth possessed jurisdiction as far as the middle line in -the surrounding seas,--a doctrine which the queen expressly repudiated -in 1602,--but denied to her any right of property in either the sea or -its bed. The claims of the crown to the ownership of the foreshores -originated in the reign of Elizabeth; under James and Charles I. they -were systematically pursued by the “title-hunters”; and while the legal -decisions in contested cases were for a long time adverse to the crown, -they began in the reign of James to be in its favour, and gradually -the idea was imported into and became a part of English law that the -ownership of the foreshore was _prima facie_ vested in the crown in -virtue of the royal prerogative.[649] - -Along with the development of this idea came another, which was -ultimately likewise engrafted on English law--that the crown had the -exclusive right of property in the sea and in the soil beneath it. -The origin of the idea is to be found in a treatise written in 1569 -by Thomas Digges.[650] He argued that as many things--as wrecks, -treasure-trove, waifs and strays, which were originally common by the -law of nature--now belonged to the Prince, so also should the sea, -which was the chief of all waters, and could not by the civil law -become the property of a subject. He held that just as the owners of -the soil had the property in a river and its banks, the king had the -interest and property in the “great salt river” environing the island, -and in its shores and bottom; and he speaks of the sea as the “King’s -river,” the “King’s streme,” and the “King’s water,” in which he had -also jurisdiction. Digges also claimed that the fishings in the sea -belonged to the crown, for “although the Kings of England have benne -content to suffer fishermen _Jure gentium_ to enjoy to theire owen use -such fishe as by theire charges travill and adventure they can in the -Englishe Seas take, Yet haue the Kings of England for remembrance of -this theire favoure that the memorie of theire propertie in the Seas -shoulde not be extinguished, alwaie reserved to them selves the cheif -fishe as Sturgeon, Whale, &c.”[651] - -The contention that the crown had the right of property in the sea -and its bed, denied by Plowden, received in the reign of James much -fuller amplification at the hands of Serjeant Callis, whose well-known -lectures on the Statute of Sewers were delivered in 1622.[652] Callis -argued that in “our _Mare Anglicanum_” the king had, by the common -law of England, four “powers and properties”: sovereignty (_imperium -regale_), legal jurisdiction for the administration of justice, -property in the soil under the sea and in the water, and possession -and profits both real and personal. He cites in proof a number of -authorities, legal and historical, such as were cited later by Selden. -The statement in a case decided in the reign of Richard II. (1377-99), -that “the sea is within the legiance of the king as of his crown of -England”; the charter of the Admiral giving him power in maritime cases -throughout the realm of England; the phrases in certain statutes; the -right to wreck and royal fishes, and so forth, “proved the King full -Lord and owner of the seas, and that the seas be within the realm of -England.” The king rules on the sea, he held, “by the laws imperial” -as by the Roole d’Oleron and others, but only in the case of shipping -and for merchants and mariners; his rights of property in the bed and -waters of the sea, and the personal profits (wreck, flotsam, &c.) -accruing, were his by the common law. Callis did not deal with fishing, -nor attempt to define the bounds of “the seas of England” in which the -king had property and jurisdiction. - -The interpretation of the law as to the rights of the crown in the -seas, as propounded by Callis, was followed by Selden and Hale, and -generally by the lawyers who came after him. Lord Chief-Justice Coke, -in his _First Institute_, which was published in 1628, explains the old -phrase “within the four seas” (_infra quatuor maria_) as meaning within -the kingdom and dominions of England; for if a man be upon the sea -of England he is “within the kingdom or realm of England, and within -the ligeance of the king of England, as of his crown of England.” In -his _Fourth Institute_, which was not published, however, till 1644, -ten years after his death, when treating of the Admiralty Court, Coke -entered more fully into the question of the rights of the crown in the -seas of England; and, as already mentioned, he looked upon the roll -of Edward I., _De Superioritate Maris_, as proving that the king’s -right of dominion over the sea had been expressly acknowledged by -neighbouring nations. - -But none of the works on the rights of England in the adjoining -seas, which had appeared when the new policy of Charles began to be -fashioned, was sufficiently profound or authoritative to furnish -reasonable justification for that policy in the eyes of the world. The -king in 1632, as we have seen, desired to demonstrate his rights by -means of “some public writing,” founded upon the historical records -of the realm,--a demonstration which was to precede the revival of -the English pretension to the dominion of the seas in what Secretary -Coke called its ancient style and lustre. As a result of the search -made amongst the records in the Tower and elsewhere for evidence and -precedents to establish the claim, several treatises and collections -were compiled. Most of these were of little account,[653] but one of -them attained an authority and celebrity only second to the great work -of Selden. Before Charles wrote to the Clerk-Register in Edinburgh -for Scottish documents to substantiate his claims (p. 212), it seems -that Sir John Boroughs, the Keeper of his Majesty’s Records in the -Tower, had been commissioned by the king to prepare the “public -writing” to which he referred. We have already seen that in 1631 -Boroughs brought forward the important roll of Edward I.; he tells us -in his preface that his work was composed at the request of “a great -person”; it was written in Latin, the language which fitted it for -foreign Courts; and it deals very largely with the Dutch and English -fisheries, even recommending the construction of 250 busses for the -fishery association. Boroughs’ treatise, entitled “The Soveraignty of -the British Seas, proved by Records, History and the Municipall Lawes -of this Kingdome,” was completed in 1633, but it was not published -until 1651, when the question of maritime rights had been again raised -between England and the United Provinces.[654] It is probable that -the king discarded it for _Mare Clausum_, the incomparably superior -treatise by Selden, of the existence of which he was probably made -aware as early at least as 1634. - -Nevertheless, Boroughs’ work was the first successful attempt to bring -together a great array of historical facts in favour of the English -claims to the dominion of the seas. Like Selden, he begins with the -Roman occupation of Britain in order to show that from the first the -“British nation had the supreme power of command of their own seas”; -and, moreover, he gives all the more important documents to be found -in _Mare Clausum_,--the ordinance of John, the rolls of Edward I. and -Edward III., the charter of Edgar, the Laws of Oleron, commissions to -the admirals, safe-conducts, and extracts from the Burgundy treaties. -He is very emphatic as to the king’s right to the dominion of the seas -and the fisheries. “That princes,” he says, “may have an exclusive -property in the soveraigntie of the severall parts of the sea, and in -the navigation, fishing and shores thereof, is so evidently true by -way of fact, as no man that is not desperately impudent can deny it”; -and--no doubt for the benefit of the Dutch--he adds that “if any nation -usurp our rights, the king has a good sword to defend them.” He asserts -that the kings of England in succession had the “sovereign guard” of -the seas; had imposed taxes and tributes upon all ships navigating or -fishing in them; and had closed and opened the passage through them -to strangers, as they saw cause. The sovereignty of the sea he calls -“the most precious jewel of his Majesty’s crown, next (after God) the -principal means of our wealth and safety.” A considerable part of the -treatise is taken up with the fisheries, the information being almost -wholly derived from previous writers; the usual comparisons are drawn -of the flourishing state of the fisheries of Holland and the poor -condition of those of England, and the usual statements made as to -the benefits that would accrue to the kingdom if the fisheries were -developed. - -Boroughs’ treatise, however interesting from the historical documents -it contained, had serious defects when considered as a formal -justification to Europe of the policy of Charles. The facts were not -skilfully marshalled; the deductions were bald and crude; and above -all, it was destitute of arguments and reasoning founded on law. -Grotius was then the Swedish ambassador at Paris, his works were well -known and esteemed throughout Europe, and it would have been indiscreet -to attempt to answer his elaborate arguments against such claims to -_mare clausum_ by saying that these claims were self-evident and that -only an impudent person would deny them. - -Fortunately for Charles, Selden now came upon the scene to vindicate -and glorify his prerogative in the surrounding seas. The distinguished -author tells us that his great work, _Mare Clausum_, was begun long -before at the desire of King James, and had been lying in an incomplete -and imperfect form for fully sixteen years.[655] It was presented to -James in 1618, but several reasons prevented its publication, one -of the chief being that the king was afraid that some passages it -contained might give offence to the King of Denmark, from whom he was -then endeavouring to obtain a loan of money.[656] At the request of -Charles, Selden now recast his treatise, added to it, and completed it. -It was dedicated to the king and published by his “express commands,” -as he explained a little later, “for the manifesting of the right and -Dominion of Us and our Royal Progenitors in the seas which encompass -these our Realms and Dominions of Great Britain and Ireland.”[657] - -Selden, as is well known, had taken a prominent part in the Parliament -of 1629, in the majority which resisted the king’s wishes, and was -for a time imprisoned in consequence of his share in the historic -disturbances with which it had ended, when the Speaker was held -down in the chair. He was released on bail under sureties for good -behaviour, and he was bound to present himself, on the motion of the -Attorney-General, in the Court of King’s Bench, on the first day of -each term, as a person under surveillance.[658] Selden was not of the -stuff of which martyrs are made. After his release, we find him among -the lawyers of the Inns of Court arranging for the masque which was -performed before the Court, at Whitehall in February 1634, as a token -of the detestation in which they held Prynne’s innuendo concerning the -queen in his _Histriomastix_.[659] Towards the end of the same year, in -a humble petition to the king (“prostrating myself at the feet of your -sacred Majesty”), he begged that the royal displeasure might be removed -and the bail discharged, assuring Charles of his readiness to serve him -with gladness and affection. In February 1635 the king forwarded to -the Judges of the Court of King’s Bench a mandate, the draft of which -had been prepared by Selden himself, instructing them to discharge him -of their recognisances;[660] in August we find the Dutch ambassador -writing to The Hague that the book was being printed;[661] and in -December of that year it was given to the world.[662] There is little -doubt that Selden’s petition to the king and its favourable reception -covered the negotiations concerning the completion and publication of -_Mare Clausum_, which were carried on under the auspices of certain -eminent personages at Court, and probably of Laud.[663] He tells us -that the early work was very imperfect, and required to be completely -reconstructed, and that he was able to devote some months of leisure to -the task. But even Selden’s extraordinary erudition and great industry -could not have produced such a book without prolonged labour; and it -may be guessed that, observing the trend of the king’s policy and -becoming desirous of royal favour, he began to reconstruct his treatise -very soon after leaving prison. - -The political significance of Selden’s work was instantly recognised -both at home and abroad. It appeared at the time when the pretensions -of Charles to the dominion of the sea were astonishing Europe. While -the printers were still busy with it, the Earl of Lindsey’s fleet was -scouring the Channel to force the elusive squadrons of France to strike -to the king’s flag. The longing to compel homage to the flag burned -like a fever in the breasts of naval officers; and despatches poured in -from them announcing that Dutch, Danish, and even occasionally French, -ships had been forced to strike, sometimes in their own waters. The -supposed policy of the Plantagenets had been expounded in high-sounding -despatches to foreign Courts, and formulated in Admiralty instructions. -The Dutch fisheries had been threatened; and it was known everywhere -that the King of England was preparing a formidable fleet to sweep the -seas in the following year. - -Charles did what he could to emphasise the importance of the book. -When a pirated edition appeared within a few months at Amsterdam, -bearing the name of the king’s printers and the word London in -imitation of the original edition, and with a print of the great -Burgundy treaty, the Intercursus Magnus, and a tract appended by way -of antidote, he complained to the Dutch ambassador, and issued a -proclamation declaring that _Mare Clausum_ had been published by his -express commands, denouncing those who had produced the pirated copy, -and banning it from the realm.[664] On 26th March, as the following -record shows, he brought it before the Privy Council with high eulogy, -and for a definite purpose: “His Majesty this day in Council took -into consideration a book lately published by John Selden, Esquire, -intituled _Mare Clausum, seu de Dominio Maris_, written by the king’s -command, which he had done with great industry, learning and judgment, -and hath asserted the right of the Crown of England to the Dominion of -the British seas. The King requires one of the said books to be kept in -the Council-Chest, another in the Court of Exchequer, and a third in -the Court of Admiralty, as faithful and strong evidence of the Dominion -of the British seas.”[665] - -There was good reason for the king’s eulogy of Selden’s treatise. From -the point of view of his policy nothing that the pen can do could have -been better done. It is an elaborate and masterly exposition of the -case for the sovereignty of the crown of England in the British seas, -which throws into the shade all the other numerous works which were -written on that side of the question. One of the most eminent lawyers -of his time, a scholar, an antiquary, an historian, the author brought -to his task a keen intellect, an immense erudition, and the ability -of disposing his material and arguments to the best advantage. In -learning at least he far surpassed Grotius, and he was not inferior to -his illustrious contemporary in ingenuity of reasoning. It was Selden’s -misfortune that the cause he championed was moribund, and opposed -to the growing spirit of freedom throughout the world. At the same -time it must be said that, apart from its extreme doctrines as to the -sovereignty of England in the seas, it more correctly represented what -are now the admitted principles as to the appropriation of the adjacent -sea than did most of the works written on the other side, not excepting -even those of Grotius. - -But in relation to the cause for which it was written, the merit of -_Mare Clausum_ lay not merely in the enunciation of the theoretical and -legal aspects of the claim to maritime sovereignty, but also in the -imposing array of historical facts and arguments by which the right -of England was sought to be established. The defects of the work are -scarcely less apparent. There is no ground to suppose that Selden was -guilty of the offence attributed to him by some of his foreign critics, -of inventing part of the evidence he cites. But the interpretation he -placed upon much of it was strained or erroneous. Great conclusions -were drawn from things which had in reality no connection with his -case; laws and events which referred solely to English subjects were -improperly extended to include foreigners; the bearing of many records -was misrepresented, others were passed over in silence, or, as with -the “Burgundy” treaties, referred to in such a way as to distort their -plain meaning. - -In the first book the author endeavours to prove that the sea is not -everywhere common, but is capable of appropriation, and has been in -fact in numerous cases appropriated. The objections to that opinion -are classified in three groups: first, that it is contrary to the -law of nature and the law of nations to forbid free commerce and -navigation; second, that the physical nature of the sea, its fluidity -and fluxion, renders it incapable of occupation; third, the opinions -of certain learned men. He argued that the ancient law as to the -community of things had become modified in certain particulars, and -that the received practice and custom of many nations, ancient and -modern, showed that the sea was capable of private dominion, and that -such dominion or appropriation was therefore not contrary either to -the law of nature or the law of nations. In support of his argument -Selden drew freely upon the vast stores of his erudition. He began, -like Welwood, by quoting Scriptures to show that the divine law (_jus -divinum_) allowed private dominion in the sea, and that according to -the opinion of those learned in the Jewish law, a great part of the -sea washing the west coast of the Holy Land had been annexed to the -land of Israel by the appointment of God. Among almost all the nations -of antiquity, he said, it was the custom to admit private dominion in -the sea, and many of them exercised maritime sovereignty.[666] Among -modern nations, sovereignty was exercised by the Venetians in the -Adriatic, by the Genoese in the Ligurian Sea, by the Tuscans and Pisans -in the Tyrrhenian Sea, and by the Pope over a part of the sea called -_Mare Ecclesiæ_. Then the sovereignty claimed by the Spaniards and -Portuguese, and the maritime dominion of the Danes and Norwegians, were -notorious. Even the Poles and the Turks possessed sovereignty in the -Baltic and the Black Sea respectively. - -How then could it be denied, with all these examples, ancient and -modern, that the sea could not be appropriated? Selden indeed agreed -with Grotius in repudiating the sovereignty claimed by Spain and -Portugal in the great oceans,--not, however, because it was opposed -to reason and nature, but because it was founded on no legitimate -title, and these nations had not a sufficient naval force to assert and -maintain it.[667] - -As to the free use of the sea, Selden admits that to prohibit innocent -navigation would be contrary to the dictates of humanity;[668] but he -held that the permitting of such innocent navigation does not derogate -from the dominion of the sea--it is comparable to the free passage -on a road across another’s land--and it cannot always be claimed as a -right. With respect to the argument that the sea cannot be appropriated -because of its physical properties, he points to the example of -rivers and springs, which even by Roman law may be appropriated, as -well as of lakes. It is not true that the sea has no banks or limits: -it is clearly bounded by the shores; some seas, as the Caspian, are -completely enclosed, and the Mediterranean is so everywhere except -at the Straits of Gibraltar. Elsewhere there are islands, rocks, -promontories, by which boundaries may be determined; and limits may be -set in the open sea by nautical science, as in the fixing of latitude -and longitude; and that was shown by the Bull of Pope Alexander VI., -and the hundred-mile limit of the Italians. Selden denies that the -sea is inexhaustible from promiscuous use. On the contrary he says a -sea may be made worse for him that owns it by reason of other men’s -fishing, navigation, and commerce, and less profit accrue from it, as -where pearls, corals, and other things of that kind are produced. In -such cases the abundance may be diminished by promiscuous use just as -readily as in the case of metals and suchlike on land; and the same -argument applies to all kinds of fishing.[669] - -It was, however, the second book of _Mare Clausum_ which gave it its -chief political importance. It was appropriate and necessary that -the claims of Charles should be justified in the domain of law and -custom; it was still more necessary that they should be supported by -weighty precedents existing in the history of England--that some of -his predecessors had been styled Lords of the Sea, and had exercised -sovereign jurisdiction over foreigners even on their own coasts. After -partially defining the British seas (see p. 19), Selden, as mentioned -in a former chapter, labours to show that maritime sovereignty had -been continuously exercised within them by the ancient Britons, the -Romans, and the Anglo-Saxons in succession, and then by the Norman -and later kings. He strove to prove by a multitude of citations from -records that the kings of England had perpetually enjoyed exclusive -dominion and jurisdiction in the surrounding seas as part of their -territory, and were hence styled Lords of the Sea; that they had always -preserved the right to forbid fishing and even navigation by foreigners -within the British seas, or to exact tribute for that liberty; that -the rights of the crown in the seas, asserted both by kings and -Parliaments, were in conformity with the common law of England, and -had been in several important respects acknowledged by other nations. -A great deal of the evidence adduced is, as has been said, irrelevant. -The long recital of facts connected with the guarding of the sea, the -disposition of fleets, the office and jurisdiction of the admirals, -the raising of special taxes--as the Danegeld--for defensive purposes -or the equipment of ships of war, might have been paralleled in the -records of other maritime states, as France or Flanders. - -The maritime sovereignty claimed by Selden for the kings of England -was of the most absolute kind. Speaking particularly of the eastern -and southern parts of the English sea, lying between England and -the shores of France and Germany,--in which Charles was especially -interested,--he declared that the powers exercised by the kings of -England from the time of the Norman Conquest were as follows: (1) -the custody, government, and admiralty, as if it were a territory or -province of the king; (2) leave of passage granted to foreigners at -their request; (3) liberty of fishing in them conceded to foreigners, -and protection afforded to their fishermen; (4) the prescribing of -laws and limits to foreigners in hostility with one another as to the -taking of prizes.[670] It is to be noted that Selden in expounding his -case expressly rejected the principle of the mid-line, the limits laid -down by the Italian writers, and those prescribed by King James in -defining the King’s Chambers; and he disclaimed the arguments used by -the English commissioners at the Bremen Conference in 1602, as to the -freedom of the seas, as being contrary to English rights. He concludes -his famous book in the following words: “It is certainly true, -according to the mass of evidence set forth above, that the very shores -or ports of the neighbouring sovereigns on the other side of the sea -are the bounds of the maritime dominion of Britain, to the southwards -and eastwards; but in the open and vast ocean to the north and west -they are to be placed at the farthest extent of the most spacious seas -which are possessed by the English, Scots, and Irish.” - -It may be added that _Mare Clausum_ became in a sense a law-book, an -authoritative work to which eminent lawyers, as Lord Chief-Justice Hale -and Hargrave, appealed as proving the existence and the legality of the -rights of the crown of England to the dominion of the British seas. -Even as late as the year 1830 this doctrine held its place in certain -recognised treatises on the law of England, together with Selden’s -definition of the extent of those seas. (See p. 580.) - -As was natural, the appearance of Selden’s book created anxiety -in Holland. Its very title was a challenge to the much-cherished -principles in _Mare Liberum_, and the circumstances connected with its -birth heightened its political importance. It was felt to be almost -equivalent to a declaration of the king himself. The simultaneous -measures for the formation of an English fleet of unexampled strength -made the Dutch fear for even more than their herring fishery. Their -interest in the book was shown by the fact that within a year of -its publication no less than three editions were brought out in -Holland.[671] It was promptly brought before the States of Holland, on -11th December 1635, and remitted to one Professor Petrus Cunæus for -examination and report.[672] His report was read on 31st March 1636, -and the States of Holland, after hearing it, resolved to look upon -_Mare Clausum_ merely as the work of a private person, which did not -require any special procedure on their part.[673] The States-General, -however, took another view of the book, and decided that it should -be formally refuted, since they had learned that King Charles would -attempt to establish his pretended rights over the so-called four seas -by arguments borrowed from _Mare Clausum_. No doubt at this juncture -the thoughts of men in Holland were turned towards Grotius, the one -above all others most worthy of the task of refuting Selden. But -Grotius was then the Swedish ambassador in France, and did not wish to -offend his royal mistress by publicly opposing claims not dissimilar -to those she herself made in the Baltic.[674] If we can trust Sir -Kenelm Digby, Grotius was even pleased to see his works refuted. In a -letter from Paris about Selden’s book, which was “much esteemed” there, -Digby said Selden was not to expect a reply from Grotius, “who wrote, -he says, as a Hollander, and is exceeding glad to see the contrary -proved.”[675] - -The official refutation of _Mare Clausum_ was, by a resolution of the -States-General on 28th April 1636, entrusted to a lawyer of Delft, -called Dirck Graswinckel, who does not appear to have been very well -fitted for so onerous a duty. His treatise in reply to Selden was not -submitted to the States-General until 13th April in the following -year, and by that time much had happened to alter the political -complexion of affairs. The States-General had then reason to believe -that the campaign which Charles had been carrying on against the Dutch -herring-busses would be suspended (p. 315), and probably never resumed; -and after remitting Graswinckel’s work to a committee, it was finally -set aside and was never published, while the author was soothed by the -substantial pension of 500 gulden a-year for his pains.[676] - -But another Dutchman in this year assumed the task which Graswinckel -had fruitlessly essayed. This was Pontanus, Professor of Philosophy and -History in the College of Harderwyck in Guelderland, who also occupied -the office of Historiographer to the King of Denmark. He had thus, -like Grotius, to be cautious in his refutation of Selden’s general -arguments upon the appropriation and dominion of seas, because the -claims of Denmark to such property and dominion were notorious. But he -was free to contest the particular rights of England, which he did with -zest. He subjected Selden’s chapters, almost _seriatim_, to a rigorous -criticism, beginning with the Romans and the Anglo-Saxons. He made the -most of the declarations of Elizabeth as to the freedom of the seas for -navigation and fishing, and of her State Paper of 1602 (see p. 110); -and he dealt specially with the sovereignty over the northern seas--the -_Mare Caledonium_ and those flowing between the Scandinavian countries -and Iceland and Greenland--which he asserted were not, and never had -been, under the dominion of England, but always appertained to the -Scandinavian nations. Pontanus entered very fully into the negotiations -which had taken place between England and Scotland on the one hand, and -Norway and Denmark on the other, concerning those seas and the rights -of navigating and fishing at Iceland and Greenland--subjects on which, -from his official position, he had special knowledge.[677] In the same -year another author, and he a Frenchman, entered the field in defence -of the appropriation and dominion of seas,[678] while a somewhat -virulent controversy broke out between Poland and Denmark as to the -sovereignty of the Baltic Sea, which was claimed by each, as it had -been shortly before by Sweden, and formed, indeed, one of the causes of -the war by Gustavus Adolphus against Germany.[679] - -The juridical controversies respecting the appropriation and dominion -of the seas continued throughout the whole of the seventeenth century -and well on into the next, and so far as this country was concerned, -they were particularly vehement during the first and the third Dutch -wars. - - - - -CHAPTER X. - -THE PARLIAMENT, THE COMMONWEALTH, AND THE PROTECTORATE. - -THE FIRST DUTCH WAR. - - -On the 3rd November 1640 the Long Parliament commenced its sittings -at Westminster, and within two years thereafter--on 22nd August -1642--Charles raised the royal standard at Nottingham, and initiated -the great Civil War. During the period of strife little was heard -of the claim to the sovereignty of the sea, although the Parliament -continued to issue the usual instructions to the naval commanders to -compel homage to the flag. But under the Commonwealth and Protectorate -the English pretensions were carried to as high a pitch as ever they -were under the Stuarts. The stern men who then guided the destinies -of England were as jealous of the symbols of the nation’s greatness -as had been the vacillating king they destroyed. In particular, the -salutation of the flag was enforced with great vigour. A dispute on the -point between Tromp and Blake occasioned the first Dutch war, and the -result proved to the world that after all England possessed the actual -dominion of the sea by reason of her naval power. In the negotiations -with the Dutch which preceded the treaty of peace, we shall find that -Cromwell put in the forefront of his conditions the recognition of -England’s right to the herring fishery, and to the striking of the flag -within the British seas. - -At first, as might have been expected from the actions of the king -with regard to the ship-money collections, little sympathy was shown -by the Parliament for the claim to the sovereignty of the sea. The -necessity of maintaining that sovereignty had always been put forward -as a principal argument for levying the money, and on that ground it -was objectionable to many of those opposed to the king. In a work said -to have been presented to the Parliament at its first meeting, forcible -opinions were expressed against the pretension. It was doubtful, it -was said, whether the sea really belonged to the crown, as the king -claimed. Even if it did, it was not apparent that the fate of the -land depended upon the dominion of the sea. That dominion might be -considered as a right, an honour, or a profit. As a right it was a -theme “fitter for scholars to fret their wits upon than for Christians -to fight and spill blood about”; as an honour, by making others strike -sails to our ships as they passed, it was “a glory fitter for women -and children to wonder at than for statesmen to contend about”; as a -matter of profit, to fence and enclose the sea, it was of moment, but -not more to us than to other nations: by too insolent contentions about -it we might provoke God and dishonour ourselves, and rather incense our -friends than quell our enemies.[680] If such sentiments reflected the -feeling of the Parliament at the beginning of their labours, they were -not of long duration. Within a few years a change was wrought, which -was probably in large measure due to the part taken by the fleet in the -struggle with the king, as well as to the abiding spirit of the people -for predominant power on the sea. - -From an early stage in the conflict the control of the fleet passed -into the hands of the Parliament. In the summer of 1642, when the Earl -of Northumberland, the Lord High Admiral, was laid aside by illness, -the Parliament succeeded, with his connivance and assistance, in -placing the Earl of Warwick in actual command; Sir John Pennington, the -nominee of Charles, having to stand aside.[681] Under the management -of its new masters the navy rapidly became a powerful and efficient -instrument for the defence of the realm, as was shown at the opening -of the Dutch war. The general instructions given by the Parliament -to its naval officers respecting the honour of the flag and the -sovereignty of the sea were almost identical with those which had been -issued to the Earls of Lindsey and Northumberland, but the phraseology -was sometimes a little varied. On 5th April 1643 the Parliament, in -view of the attempt organised by Queen Henrietta Maria to smuggle into -England military supplies from the Netherlands for the use of the -royalists, ordered the Earl of Warwick, if he met with “any foreign -forces, ships, or vessels, as Spaniards, French, Danes, Dunkirkers, or -any other whatsoever, making towards the coasts of England, Ireland, or -any other of his Majesty’s dominions,” to command them, “according to -the usual manner, to strike their flags or top-sails,” and cause them -to be examined and searched for soldiers or munitions of war. If they -refused to strike, he was “to compel them thereunto by force of arms -and surprise, and to take all such ships and vessels, or otherwise to -burn, sink, or destroy them.”[682] In the following year the Committee -for the Admiralty instructed Vice-Admiral Batten, who was in command of -the fleet, “upon all occasions, as you shall be able, to maintain _the -Kingdom’s_ sovereignty and regality in the seas.”[683] - -In the spring of 1647, the Committee of the Admiralty, for some reason -or other, appears to have devoted special attention to the question of -the flag and the sovereignty of the sea. Collections were made from the -Admiralty archives of precedents showing that all ships refusing to -strike in English waters were to be reputed enemies, and were liable -to forfeiture,--the examples beginning with the Ordinance of King -John and ending with the instructions issued by Charles.[684] These -collections were probably made in connection with the instructions -which the Committee drew up at this time for the guidance of the -captains and officers of the navy, and which were essentially similar -to those given by Charles to his ship-money fleets. “It must be your -principal care,” they ran, “to preserve the honour of this kingdom, and -the coasts, jurisdictions, territories, and subjects thereof, being in -amity with the Parliament, and within the extent of your employment, -as much as in you lieth; that no nation or people whatsoever intrude -thereon or injure any of them. And if you chance to meet in any of the -seas that are under the jurisdiction of England, Scotland, and Ireland, -with any ships or fleets belonging to any foreign prince or state, you -must expect that they, in acknowledgment of this kingdom’s sovereignty -there, shall perform their duty and homage in passing by, in striking -their top-sails and taking in their flags.” If they refused they were -to be forced to do so in the usual way. It will be noticed that the -region within which foreigners were to be compelled to strike was -greatly extended by the Parliament. Up to and including the reign of -James the “acknowledgment” was confined to the narrow seas, in which -it had been exacted for centuries; Charles in 1635 ordered Lindsey to -compel it “in his Majesty’s seas,” and now the Parliament extended -it specifically to all the seas under the jurisdiction of England, -Scotland, and Ireland. From a clause in the instructions it is clear -that the seas over which the Parliament claimed sovereignty reached -to the coasts of the Continent; but a territorial limit was excepted -on foreign coasts. The clause in question enjoined the naval officers -“to be very careful not to meddle with any ships within the harbours, -or ports, or under the command of any of the castles of any foreign -prince or state, or within any buoys (Buoyes) or rivers, that they may -have no just cause of offence.” Another feature of these instructions -is of interest. The clause which was inserted in the instructions to -Lindsey and Northumberland in 1635, 1636, and 1637, commanding them -to prevent all hostilities between men-of-war or merchant vessels in -the presence of the king’s ships, was repeated.[685] The Parliament -clearly intended to abate no jot of the pretensions which had been put -forward by the king. - -An opportunity soon came for putting the instructions regarding the -flag into force. In May of the same year a Swedish fleet of fifteen -sail, consisting of ten merchantmen bound for the Mediterranean and -five ships of war convoying them, was met by Captain Owen in the -_Henrietta Maria_ off the Isle of Wight. On being called upon to -strike, the Swedes refused, declaring that they had been commanded by -the Queen of Sweden “not to strike to any whatsoever.” Owen, reinforced -by Batten, thereupon attacked them, the fight continuing till night. -The Swedes suffered much loss; the colours of their vice-admiral -and rear-admiral were shot away, a “great breach” was made in the -vice-admiral’s ship, and their vessels were captured and taken into -Portsmouth. They were afterwards released, but the Admiralty Committee -expressed the opinion that the proceedings of their officers “in -order to the maintenance of the kingdom’s sovereignty at sea” were -to be commended, and this resolution was reported to both Houses of -Parliament.[686] The question of the salute between ships of war of -different nations had been brought to the front in most other maritime -countries by the forcible measures taken by Charles in 1633 and later. -Two years before the encounter with the Swedes in the Channel, Denmark -and Sweden had regulated the ceremony, as affecting their own ships of -war, in the treaty of peace then concluded between them.[687] - -From this time until shortly before the war with the Dutch there -is little to record about the claims to the dominion of the sea. -In 1649, the instructions issued to Popham, Blake, and Dean, the -commanders of the fleet, included the guarding of the North Sea and -the mackerel-fishing, as well as the maintenance “of the sovereignty -of the Commonwealth in the sea,” all in the prescribed form.[688] In -the following year the Council of State issued express commands to -Blake on the subject when he was ordered to proceed against Prince -Rupert and the revolted ships at Lisbon. The dominion of “these seas,” -they said, had anciently and time out of mind belonged to the English -nation, and the ships of all other nations in acknowledgment of that -dominion had been accustomed to take down their flags “upon sight” of -the Admiral of England, and not to bear them in his presence. Blake was -therefore, to the best of his powers, and “as he found himself and the -fleet of strength and ability,” to do his utmost endeavours to preserve -the dominion of the sea, and to cause the ships of all other nations -to strike their flags and keep them in in his presence, and to compel -such as were refractory, by seizing their ships and sending them into -port, to be punished according to the “laws of the sea,” unless they, -submitted and made such reparation as he required. At the same time, -although the dominion of the sea was so ancient and indubitable, and it -concerned the honour and reputation of the nation to uphold it, Blake -was not to imperil his fleet over it in the expedition on which he was -employed. If he was opposed in the question of the flag by a force so -considerable as to prove dangerous, he was not to press it, but to note -who they were that refused, so that they might be forced to strike at -some better opportunity.[689] - -Such were the instructions of the Government to the English naval -commanders, and they were soon to bear bitter fruit. At this period -the Dutch men-of-war apparently did not show unwillingness to salute -the English flag, even sometimes in distant seas. Penn notes in his -journal, on 13th September 1651, that on meeting with the Dutch Admiral -with his vice- and rear-admirals between Cape Trafalgar and Cape Sprat, -they struck their flags to him and saluted; but they then hoisted -them, which would have been contrary to the custom in the narrow sea, -and Penn thereupon called his captains together for advice, but they -said the Dutch “had done enough.” A little later he records that young -Tromp, convoying thirteen merchantmen, came into Gibraltar Road, where -Penn was lying, with his flag in the main-top. The English Admiral, -however, did nothing, since Tromp was in a port of the King of Spain. -Shortly afterwards in the same place eight sail of Hollanders, four of -which were men-of-war, all struck their flags and saluted the English -fleet.[690] - -The claims of England to the sovereignty of the seas were now about -to enter on a new phase, which culminated in the first Dutch war. So -long as the ambitious and energetic Prince William II. of Orange was -alive, the relations between the United Provinces and the Parliament -were strained and menacing. The States-General, under Orange influence, -refused to enter into diplomatic communication with the English -Government, or to admit their ambassador, Strickland, to audience. The -execution of Charles I. had raised strong feelings of reprobation and -horror in the Netherlands, even amongst the Hollanders and Zealanders, -who sympathised with the Puritans; and it was believed in England -that the Prince of Orange was contemplating war against them for the -restoration of his brother-in-law, Charles II., to the throne. The -death of the Prince, on 27th October 1650, produced a great change. It -was followed by a political revolution in the United Provinces, the -chief outcome of which was the predominance of the States of Holland -and of the party opposed to the Orange faction, and most favourably -inclined to maintain good relations with the English Commonwealth.[691] -It was therefore agreed at The Hague to send back Joachimi, who had -been dismissed by the Parliament in the previous year, with credentials -as ambassador from the States-General to the Parliament. - -In London the accession to power of the republican party in the -Netherlands had been watched with keen interest. The time, it was -believed, was come for a close alliance between the two great -Protestant Republics for safeguarding their religious and political -liberties; perhaps, it was thought by some, for even a closer union -than was implied in the strictest alliance known to diplomacy. The -Parliament accordingly lost no time in opening negotiations with the -States-General. On 17th March, 1651, Lord Chief-Justice St John and -Walter Strickland entered The Hague with great pomp and splendour as -ambassadors from the Commonwealth, attended by an imposing retinue -of 246 persons. They were greeted in the street with insulting cries -from Orange partisans and royalist refugees. On the following days -their suite only ventured abroad in parties, and with their rapiers in -their hands. The ambassadors themselves were openly jeered at, and -threatened by Prince Edward, son of Elizabeth, Queen of Bohemia; and -though the States-General received them with ostentatious courtesy, and -prompt measures were taken to suppress the disorders and insults, the -conditions of their surroundings produced irritation and impatience in -their minds, with important results in the sequel.[692] The principal -object of the Parliament was to make use of the Dutch Republic to help -them to maintain the Commonwealth, and to resist any attempt to place -Charles II. on the throne. In return they were willing to aid the -Republic against the House of Orange or any other inclined to disturb -it. - -St John had with him two series of propositions,--one relating to -a strict alliance and union; the other, private and never fully -disclosed, included a novel scheme for the coalescence and fusion of -the two states and peoples, on the lines propounded by the Council -of State in the following year. He brought out his propositions one -by one, requiring categorical acceptance of each before dealing with -the next, the design being to lead step by step to the proposals for -coalescence and fusion. His first proposition was in substance for -“a more strict and intimate alliance and union” than any before, by -which there might be “a more intrinsical and mutual interest of each -in other” for the good of both.[693] After some fencing and much -hesitation and delay--the Dutch proferring a qualified acceptance, -which the ambassadors rejected--a guarded assent was given. St John, -though not satisfied, thinking the “manner of penning the answer was -dark and doubtful,” “determined to proceed into some further thing -which might come nearer to make a discovery of their temper and -inclination in point of their neutrality, than stay any longer upon -general terms,” and he accordingly at the same meeting submitted -another proposition requiring the confederation of the two states -for the defence and preservation of the freedom and liberty of the -people of each against all that might attempt to disturb them, or that -were declared to be enemies to the freedom and liberty of the people -living under either Government.[694] The Dutch commissioners, however, -declared that this was a general proposition, and they insisted on -a request they had made from the first, to be furnished with the -“particulars”--they wanted the particulars, _simul et semel_, that were -intended to be insisted upon. - -The negotiations had been protracted. By this time a month had elapsed -since the ambassadors arrived, and St John, now conscious that his -mission for coalescence would fail, and irritated by the indignities -to which he had been subjected, obtained an order from the Parliament -for his recall. At the urgent entreaty of the States of Holland -the Parliament allowed their ambassadors to stay for other forty -days, and also gave them authority to treat on the basis of the old -Intercursus Magnus of 1496, which the Dutch had suddenly proposed. The -States, in truth, had totally different aims from the Commonwealth. -They were thinking about their commerce, their navigation, and their -fisheries, rather than about the repression of “rebels”; and they -desired that their alliance with England should confirm and extend the -benefits conferred upon them in these respects by the old treaty. The -Intercursus Magnus had for generations been the sheet-anchor of Dutch -policy towards England. It gave them the utmost freedom of commercial -intercourse, and complete liberty of fishing on the English coasts. -But it contained other clauses appropriate in spirit to the political -conditions of 1651. The treaty had been concluded by Henry VII. in -the year in which apprehensions were entertained that Perkin Warbeck -would effect a landing in England; it provided for mutual military aid -against the enemies of either country, and the expulsion of rebels -and fugitives from the territories of the other. St John naturally -took the clauses embodying these stipulations as the basis of his -new draft articles, which he submitted to the Dutch commissioners -on 10th May. They were seven in number. The first required that the -proposition made on 17th April for mutual defence of the freedom and -liberty of each people should be an article of the treaty. The second -provided that neither party should afford any aid or favour to any -one whomsoever to the injury or prejudice of the other, but should -expressly oppose “and really hinder all whomsoever,” abiding in either -commonwealth or under its power, that should do or attempt anything -against the other; and the remaining articles were of similar tenour, -relating to “rebels” and enemies. They were, in short, political -articles of the most comprehensive scope, aimed against the royalists; -so comprehensive and thorough that the English Commonwealth might, by -declaring the Prince of Orange himself its enemy, demand his expulsion -from the Provinces.[695] St John’s articles were by no means to the -liking of the Dutch; and though he pointed out that they were “but a -translation of the old treaty, only enlarged for the better assurance -of performance,”--the treaty which they themselves had proposed as -the basis for the new one,--they insisted on sending the articles to -the various Provinces for their opinion. For a full month the English -ambassadors waited without an answer to their articles--a delay which -they believed was meant “to spin out the treaty until the Scotch mist -was over” and the result of the struggle in Scotland apparent. But the -Dutch, though slow, had not been idle. On 14th June, when only four of -the forty days allotted by the Parliament remained, the Dutch produced -counter-proposals in the form of draft articles, thirty-six in number, -which were paraphrased from the Intercursus Magnus, the treaty with -King James VI. of Scotland in 1594, the treaty of Southampton with -Charles in 1625, and the marine treaty with Spain in 1650. - -These articles had been submitted by Holland to the convocation of the -States-General on 15th May, and were under the consideration of the -provincial states for nearly a month. They provided for a “perpetual -friendship, unity, correspondence, and a further and nearer alliance, -confederation, and union” against all who should attempt anything -derogatory to the liberties of the two peoples, their commerce, and -common interests; mutual defence and mutual assistance with men and -ships against “notorious or known” enemies of the other, and the -prohibition of assisting rebels. But there was no article under which -the royalists could be expelled from the United Provinces, or which -prevented the House of Orange from aiding or harbouring declared -rebels of England; and it was expressly stipulated that the States -should in no way be drawn into the disputes and war between Scotland -and the Parliament. Having thus whittled down the proposals of the -Parliament for a close alliance directed against the royalists, the -Dutch propounded a whole series of articles providing for the freest -commercial intercourse between the two countries, for freedom of -navigation and of fishing. The trade to Virginia and the Caribbean -Islands, which had been closed by the Parliament, was to be thrown -open to both nations; ships were to be free to anchor without seizure -of goods; the subjects of one state were not to be taxed higher in -the territories of the other than the natives, and they were to be -free to carry on their business or profession with the same liberty. -A number of articles dealt with questions relative to the sovereignty -of the seas, in such a way as to show clearly that the design of the -Dutch was to render harmless a pretension which had caused them so much -trouble. They had not forgotten the declarations of Charles sixteen -years before, or the forceful operations of Northumberland against -their herring-busses. With regard to fishing, they wished the subjects -of either state to be at liberty to go to any part of the sea to fish -for herrings and all other kinds of fish, great or small, without any -license or pass being required. If the fishermen were forced by storms, -pirates, enemies, or any other cause, to go to land, they desired that -they should be courteously received and well treated in the ports of -either country, and permitted to depart with their ships and cargoes, -and if they had not broken their cargoes, without paying any customs -or dues.[696] These stipulations paraphrased corresponding provisions -in the Intercursus Magnus, and rather more favourably to the Dutch. If -they had been accepted, they would have destroyed the English policy -which had been pursued, though fitfully, from 1609 to the outbreak of -the Civil War, of requiring foreigners to pay tribute and take out -licenses for fishing on the British coasts. - -Some of the other articles proposed by the Dutch were directed against -the claims put forward in Selden’s _Mare Clausum_, and by Charles -himself, to a special dominion and jurisdiction of England in the -surrounding seas. If the freedom of commerce and navigation was to -be assured, it would be necessary, it was said, for both countries -to equip fleets to secure the safety and liberty of the subjects of -both, to purge the sea of pirates and sea-rovers, and to preserve -the security of commerce and of fishing. The proposition was that -each state should set forth a fleet yearly, its strength to be fixed -by mutual agreement, and the ocean as well as the North Sea and the -Mediterranean, with their straits and channels, were to be patrolled -by the two fleets, each under its own admiral and flag. This was in -effect asking the Commonwealth not only for equality of sovereignty on -the sea, but for the assistance of England in protecting the immense -commerce and shipping of the United Provinces. They desired that each -nation should shield and defend the merchant vessels of the other, and -help to recover them if taken by an enemy. - -Among other proposals were that men-of-war, but only in small -numbers, should be allowed freely into the ports and havens of the -other, and were not to be subjected to visitation and search, the -showing of the commission to be sufficient; and that no sea-rovers -were to be tolerated in harbours, and no ships with letters of -marque allowed to leave without first providing security that they -would not exceed their commissions. One of the provisions went much -further, and seems to smack of Dutch humour, when we think of the -action of James and Charles. For the sake of liberty, both peoples -were to use their fleets, not only against pirates, but against all -and sundry, whomsoever they might be, who should attempt to molest, -hinder, or--“against the right of all peoples”--impose exactions on -their commerce, navigation, or their fishery. In such an event, if -amicable remonstrances failed, the whole sea forces of each nation were -to attack the depredators and wage war against them until complete -satisfaction had been obtained.[697] - -So resolved were the Dutch to have a general clearing-up with England -on all points concerning the sovereignty of the sea, that they at -first proposed to insert among their draft articles one relating to -the striking of the flag and similar ceremonies, which frequently gave -rise to differences. The States-General, however, considered the matter -“too delicate” to be raised at that time, and the article was not -inserted.[698] Two or three months before this, as elsewhere mentioned -(p. 398), the question of striking the flag to the English had been -raised and debated in the States-General in connection with Tromp’s -expedition to the Scilly Islands. - -With the foregoing proposals before him, it is not to be wondered at -that St John was dissatisfied, and longed more than ever to get away -from The Hague. The Commonwealth had asked for a strict and close -alliance at the very least, for the security of religious and political -liberty and the common interests of both Republics, but in reality -and above all for aid against the royalists. The Dutch also desired -security for liberty, but it was chiefly for the liberty of commerce, -navigation, and fishing; and they were anxious, if they could, to get -rid of the troublesome English pretension to a sovereignty of the sea. -The proposals of the two sides were incompatible, and St John left -The Hague a few days later with the unuttered plan for the fusion -of the nations in his pocket and with bitterness in his heart. His -disappointment was to cost the Dutch dear. Within a few months of his -return the Navigation Act was passed, mainly by his impulse, and it -dealt a serious blow to the commerce of the United Provinces.[699] It -was the retort of the English Commonwealth to the rebuff of the States. -If the Dutch put their commerce and fisheries above everything else, -the Parliament would show them how they could injure them and at the -same time foster English shipping and fisheries. - -But much more than the Navigation Act, some other proceedings of the -Parliament increased the tension between the two countries. In November -they renewed certain letters of reprisal against the Dutch, under -which a few of their vessels were captured. More serious were the -actions of English men-of-war and of some privateers who held letters -of reprisal against the French. An informal maritime war with France -began in 1649 and continued till 1655, and though there was nominally -peace, the English captured French vessels, and _vice versâ_. They then -began to seize Dutch ships, suspected of having French goods on board, -and brought them into English ports for trial in the Admiralty Court. -This was an interference with freedom of commerce which the States -could not tolerate, and an embassy to England, which had been decided -upon after St John left The Hague, was despatched thither.[700] The -three ambassadors, Cats, Schaep, and van de Perre, arrived in London -on 15th December 1651. They were instructed to renew negotiations -for a treaty on the basis of the thirty-six articles, to endeavour to -get the Navigation Act repealed, the captured vessels released, and -the letters of reprisal withdrawn, with compensation for the losses -suffered by reason of them. The question of adding another article to -their instructions, about the striking of the flag, which had been -omitted from the thirty-six articles, had again been considered. But, -for the same reason as before, it was withheld. “The carrying or -striking of the flags by the one side or the other” was judged to be -“very delicate”; and it was decided (on 10th November 1651) that the -States-General should deliberate further on the matter, and send later -to the ambassadors such instructions “as should be found suitable for -the removal of misunderstandings and hostilities.”[701] We thus see -that in 1651 the Government of the United Provinces was fully alive to -the risks and difficulties about the flag. But from their proceedings -at this time it would seem that they were unwilling to acknowledge -unreservedly the claim of the Commonwealth to the salute, which was -looked upon as a symbol of England’s sovereignty of the sea. The -question was only rendered “delicate” because of certain qualifications -and conditions of reciprocity which they desired to attach to it, and -for which they struggled hard with Cromwell during the subsequent -negotiations for peace. - -The ambassadors had an audience with the Parliament on 19th -December,--Cats treating the members to a long and flowery oration -in Latin,--and with the Council of State on 1st January 1652; but it -was not until the 16th that commissioners were appointed to deal with -them. The English commissioners[702] showed no anxiety to facilitate -the negotiations. The spirit with which they were animated was evident -from their eagerness to bring forward all imaginable reasons for -dispute,--the interest taken by the Dutch in the fate of Charles I.; -the partiality of some of their ambassadors at foreign Courts; their -refusal to receive Strickland; and so forth. In the end, the Dutch -ambassadors failed to get what they wanted. The English refused to -cancel or modify the Navigation Act, to release the captured ships -before the cases had been tried in the Admiralty Court, or to make -reparation. They suspended the letters of direct reprisal against the -Dutch, but not those against the French, which were by far the more -important. - -It was felt in Holland that such interference with their trade could -not be endured. There were loud complaints about the seizure of the -ships, and the opinion was growing in the Netherlands that it was -the intention of the Commonwealth to force a war upon them. As a -precautionary measure the States-General decided on 22nd February to -add 150 ships to the existing fleet, “for the security of the sea and -the preservation of the shipping and commerce of the United Provinces”; -and the ambassadors were requested to inform the English Council of -their intention, which was done on 5th March, with the explanation that -it was not with the object of doing the slightest harm to any nation, -and least of all to England, that the increase in the fleet was to be -made, but only to preserve their freedom of navigation.[703] As this -extraordinary addition to the navy of the Dutch Republic would raise -it to the formidable number of 226 ships, it is not surprising that -the proceeding was viewed in England as a preparation for war. The -Council, on their part, put forward a series of more or less provoking -claims. They demanded reparation for wrongs and losses suffered by the -English at the hands of the Dutch at “Greenland” in 1618, in the East -Indies since 1619, and at Brazil; and they complained of various other -wrongs and affronts they had suffered. But pending an answer from the -States-General to their complaints and requests, they agreed, on 3rd -May, to discuss with the ambassadors the thirty-six articles. - -These articles had been previously considered by the Council of State, -which had prepared a commentary on them; and now both documents were -taken up together. On the proposals concerning the sovereignty of the -sea many differences arose. With regard to the right of the English -to visit and search vessels, men-of-war as well as merchantmen, the -ambassadors referred to the edicts of the States forbidding warships to -take merchandise on board, and to the certificates of their Admiralty -to the same effect; but it was argued on the other side that these -measures had not stopped the abuse, and that the visitation was -not prejudicial; and no agreement on this clause was reached. The -commentary of the Council on the fishery article (see p. 388) was -that, saving and asserting the right of the Commonwealth, they would -be willing to proceed to such an agreement as should be found fit -and reasonable; while the Dutch took their stand on the provision in -the Intercursus Magnus, and urged that it would be unjust to deviate -from an agreement which had endured for a century and a half. It was -admitted by the English commissioners that the treaty gave liberty of -fishing, but they asserted that long before the time of Henry VII. -the right to the fisheries and to the sovereignty of the sea belonged -to England. It had, moreover, been impeached by succeeding kings and -especially by James, to whom, as King of Scotland, the right to the -fishery pertained; while after the union of the crowns he pursued the -same policy as King of England, and now that Scotland had been brought -under the dominion of the English Republic, it was thought that the -best course was to make a new treaty about the fisheries.[704] The -ambassadors could obtain no definite information as to the nature -of the treaty proposed, but it would not be difficult for them to -comprehend its general tenour, for they had to listen to the recital -of the “evidences” that England had constantly made use of her rights -in the fishery, and of the care she had always exercised as to the -sovereignty of the sea. The Dutch endeavoured to avoid mixing up these -two questions, pleading that the fishery concerned the lives of a -multitude of poor fishermen; but the commissioners retorted that it was -a very valuable industry, the right to which belonged to England, and -this, they said, had been acknowledged by neighbouring nations paying -taxes for liberty to fish in their seas, adding that all peoples had -been accustomed to recognise in them the masters of the sea by striking -the flag to them, and that the Dutch themselves had earlier instructed -their naval officers to salute English ships “_cum debita reverentia_,” -and it was also expressly ordered in the commissions issued by Prince -William and Maurice. From the language of the English commissioners, -it appears probable that they were acquainted with the proceedings of -the States-General as to the proposed article on the striking of the -flag, and with the debates in the previous year concerning Tromp’s -instructions (see p. 398). The negotiations on the fishery question -were not carried further at this stage. - -With regard to the article relating to the equipment of a fleet by each -nation for the protection of commerce, the commentary of the Council -of State was that “the Commonwealth of England shall take such care -for the guard of their seas and defence of the freedom of trade and -commerce therein as shall be fit”; and with respect to the next, which -stipulated that both countries should protect commerce and fisheries -from molestation or impositions, the reply was equally uncompromising. -“If any person,” it was said, “shall, within those seas, trouble, -hinder, or unlawfully burthen any in the exercise of that freedom of -trade which belongs of right unto them, this Commonwealth will use all -means just and honourable to restore and preserve freedom to all lawful -commerce in those seas as aforesaid.”[705] The meaning of this language -was unmistakable. The Commonwealth intended to adhere to the old claim -to the dominion of the seas, which had been revived by Charles. And -this exclusive sovereign jurisdiction, it was explained, would be of -advantage to the Dutch, since they would bear no part of the cost; they -must be content with freedom of navigation and commerce, and leave -to the English the duty of maintaining the security of “their seas.” -On inquiring what means the Commonwealth proposed to take for this -purpose, the ambassadors were told that the intention of the Council -was “to defend the sea in their own right,” and that any further -explanation would be given by the Council if they applied to it. - -At this stage of the proceedings William Nieuport, a member of the -States-General, came to London with fresh instructions for the -ambassadors. That body had been considering the English demands for -reparation, above alluded to, and also the commentary of the Council -on the thirty-six articles; but the refusal to liberate the captured -ships, or to stop the operations of privateers against Dutch vessels, -made them obdurate. The ambassadors were now told to insist on the -articles relating to visitation and search as an essential part of -the treaty. No Dutch vessel was to be visited, whether it was on the -sea, in harbour, or in a roadstead. The principle of “free ship, free -goods,” was to be strictly enforced, and no investigation of the cargo -of a merchant vessel was to be permitted; still less should they agree -to the visitation of a man-of-war. The ambassadors were specially -requested to avoid discussion as to any claim on the part of England -to exclusive right in any portion of the sea; in any case, they were -not to admit that such right existed, but were to treat only about the -liberty and security of the fishery on both sides.[706] If the English -protested that they would not allow themselves to be prejudiced in any -of their “pretended rights,” the ambassadors were then to make a formal -declaration that they, on their part, could not allow the freedom of -navigation and of fishery, or the free use of the sea, to be called -in question, nor could they recognise the special claims of any one -over the sea which might prejudice those rights. In order to avoid, if -possible, directly raising the question of the dominion of the sea, -they were requested when dealing with the crucial articles to speak -only of commerce and fishery, and not of the “purging” of the sea of -pirates; and they were also to abandon the proposal for a division of -the sea into districts.[707] - -So passed, peacefully enough, the early weeks of May at the conferences -in London. The States’ ambassadors, on the one hand, demanding freedom -of navigation and fishery; above all, that the visitation and seizure -of their vessels should cease. The English commissioners, on their -part, putting forward incompatible claims to the sovereignty of the -British seas: the right of exclusive jurisdiction, of guardianship, -the right to the fishery. Whether the negotiations would have reached -a happy conclusion, as the ambassadors, and apparently also the -States-General, believed they would, may only be conjectured. For an -event of momentous importance now occurred which swept their labours -away and embroiled the two nations in war. On the 19th May, at the very -moment when the Dutch ambassadors were conveying their new instructions -to the English commissioners, Tromp and Blake were engaged in furious -battle in the Straits of Dover about that very matter which the -States-General had found to be “so delicate”--the striking of the flag. -The long-impending struggle engendered by years of mutual jealousy and -commercial rivalry had now come suddenly. The claim of England to the -sovereignty of the sea was to be decided, in the words of Sir Philip -Meadows, by a longer weapon than a pen. - -Tromp had put to sea early in May, 1652, with a fleet of forty-two -sail, and bearing instructions to prevent the searching of Dutch -merchantmen, to protect them against any who interfered with them, and -to free them, by force if necessary, if they were captured. He was -further told to refrain as far as possible from going on the English -coast.[708] On one important point his instructions were defective. -He received no definite orders as to how he should act if the fleet -of the Commonwealth called upon him to strike his flag. The subject -of the salute had been much discussed in the Netherlands, and an -opinion was widely held that while their ships would suffer no loss -of dignity in striking to a fleet belonging to a crowned head, it was -doubtful whether the same homage should be rendered to the ships of a -republic like themselves. The question had been definitely raised and -fully discussed early in the previous year in connection with Tromp’s -expedition to the Scilly Isles, in view of the likelihood of his -falling in with the English fleet,--its consideration, indeed, delayed -his departure,--but the Government hesitated in coming to a decision, -and a general wish was expressed to hear Tromp’s own opinion first. He -accordingly prepared a memorandum describing what the States’ ships -had done in the past. He said that whenever their men-of-war met at -sea a ship of the King of England carrying the flag of an admiral, -vice-admiral, or rear-admiral, they struck their admiral’s flag, -lowered top-sails, and fired nine, seven, or five guns, the English -answering with a like number, and the States’ flag remained struck -until the ships separated, when three or one adieu-shots were fired, -and the flag was then hoisted. On meeting a single king’s ship, he -said, they did not strike their flag, but only exchanged guns; but -it sometimes happened that an English ship of little power tried to -compel them to strike, out of pride (“uyt hooghmoet”), but when they -fired back and showed their teeth, and the English ship found it had -not power to force them, it went on its way with derision; in such -cases striking was a matter of discretion. When they entered a harbour -or came before a castle they fired a salute, which was returned; the -flag was taken in and a pennant run up in its place, and kept flying so -long as they were there, particularly if a king’s ship, carrying the -king’s flag, was present. If no king’s ship was present, the governor -sometimes gave his permission, out of courtesy, for the admiral to wear -his flag until his departure, when it was again struck and a salute -exchanged.[709] - -The substance of Tromp’s report was communicated to the States of -Holland by De Witt on 1st/11th March 1651, stress apparently being laid -on the point that it had been the custom in earlier times for the -States’ ships, “particularly when they were weakest,”[710] to salute -with guns and strike their flag on meeting the English fleet.[711] The -Government, however, thought that the conditions had changed; but they -failed to give the admiral definite directions one way or the other -as to how he should act if he met the fleet of the Parliament. He was -merely told in general terms that he must so manage matters, if he met -with the English fleet, that the state should suffer no affront (“geen -cleynicheyt”),--a decision which left everything to his own discretion. -There was the more risk in this course as the English at this time were -said to be jealous of Tromp, owing to his reluctance to strike his flag -to them.[712] - -Later in the same year, the question was again raised by Vice-Admiral -Jan Evertsen, who was placed in command of a squadron to cruise -between Cape Ortegal, the Scillies, and Ushant. Before his departure -he endeavoured to obtain precise orders as to how he should comport -himself if called upon to strike, so that no “inconvenience” might -be caused. The States thereupon merely renewed the instructions they -had given to Tromp in March, and they ordered that copies of Tromp’s -memorandum should be distributed to the other commanders.[713] - -No further directions on the matter were given to Tromp when he took -command of the fleet in 1652, though it ought to have been evident -to the States that in the delicate position of affairs with England, -and from the nature of the duties they had laid upon their admiral, -the risk of misunderstanding and collision with the English fleet was -great and imminent. They hesitated to give decided orders to strike, -apparently lest such action might be construed into an acknowledgment -of the inferiority of the Dutch Republic to the English Commonwealth, -especially at a time when they believed themselves to be superior to it -in naval power;[714] and though alive to the importance of the matter, -they were very reluctant to have it discussed in the negotiations in -London. But if the Dutch had no clear idea as to what they were to do -about the flag on meeting the English fleet, the English commanders -had no doubt about their own line of action. Their instructions were -explicit. They were, by force if necessary, to compel the ships of all -nations to this acknowledgment of England’s sovereignty of the sea. - -Tromp proceeded to his cruising station off the coast of Flanders, -between Dunkirk and Nieuport, and while riding at anchor there a -strong north-east gale set in, which damaged some of his vessels, and -on the evening of the 18th May he crossed over to the English coast -for shelter and repairs. At this time Bourne was lying in the Downs -with eight Parliamentary ships, and Tromp sent two of his captains -to him to explain the accidental cause of his coming, the ships -conveying them saluting Bourne’s flag. One of the officers, according -to Bourne’s account, said that Tromp himself would have gone into the -Downs “but that he was not willing to breed any difference about his -flag, forasmuch as he had not orders to take it down”; to which Bourne -replied that he “presumed there would be no new thing required of them, -and neither more nor less would be expected from them but what they -knew to be the ancient right of this nation”; and he added that the -reality of the explanation given for their presence “would best appear -by their speedy drawing off from this place.”[715] According to Tromp’s -account of the interview, Bourne merely thanked him courteously for the -message.[716] - -At all events, the Dutch fleet passed along the English coast in all -its bravery, the admiral’s ship with his flag on the main-top-mast -head, the rest with “jacks and ancients” flying, and about seven in the -evening they cast anchor off Dover, within little more than gunshot of -the castle. Here they remained till the following afternoon with all -their flags displayed, and without saluting. Three times a gun was -fired from Dover Castle, according to the usual practice, warning the -Dutch admiral to strike his flag; but Tromp--strictly within his right -if beyond gunshot--took no heed. He had probably purposely selected -an anchorage beyond the range of cannon in order to avoid striking to -the English flag. Not only did he not strike, but he exercised his -raw musketeers in discharging volleys of small-shot for many hours -together, in a way that must have been provoking to the English. On -the afternoon of the 19th, Blake, who had been lying at anchor in Rye -Bay a little to the westward, and who had received intimation from -Bourne of the presence of the Dutch fleet, came upon the scene with -fifteen ships. As he approached Tromp weighed anchor and stood off -to sea towards Calais,--a movement which Blake thought to be due to -a desire to avoid “the dispute of the flag.”[717] So far Tromp had -carried out his instructions. He had indeed, through stress of weather, -gone upon the English coast, which he had been requested to avoid as -far as possible. But he had preserved the States from suffering any -“indignity” about the flag. Obviously there was great tension between -the fleets as to the question of striking. Not unnaturally, Tromp’s -proceedings were regarded by the English as an attempt to brave them -upon their own coast; and the English admirals, who were vigilantly -watching, would not be slow to challenge any infraction of the custom -of the narrow seas. They too had to take care that their country -suffered no dishonour, as they understood it. - -When Tromp was on his way to Calais, and about half seas over, a -small Dutch vessel fired a gun and came up to him, and communicated -the intelligence that a week earlier a Dutch convoy had been attacked -by the English for not striking their flags; and, above all, that -the seven homeward-bound merchant vessels which had been under their -charge, with valuable cargoes on board, were at that moment lying at -anchor off the English coast, and, it was believed, in danger from the -English fleet.[718] The occurrence referred to took place on 12th May. -Captain Young, in the _President_, while off the Start, accompanied -by two other English men-of-war, fell in with seven Dutch merchantmen -from Genoa and Leghorn, convoyed by three men-of-war, with their -flags displayed. Young sent a boat to their admiral to request him to -strike his flag “before any blood was shed in the controversy,” which -he did. But the vice-admiral, contrary to the custom in the narrow -sea, came to the windward of Young, and refused to strike, telling -him to come on board and strike the flag himself. The _President_ -then poured a broadside into the Dutch ship, together with a volley -of small-shot, and several broadsides were exchanged before the -vice-admiral struck, and then the rear-admiral did the same. On Young -demanding the vice-admiral or his ship to carry into port to make good -the damage done, he was told by the admiral that he himself had not -interfered so long as it was only a question of striking the flag, but -if he attempted to seize the ship he would resist him; and the matter -was carried no further. “I do believe,” said Young, “I gave him his -bellyful of it, for he sent me word he had order from the State that if -he struck he should lose his head.”[719] It is probable that the Dutch -vessels encountered the north-east gale that forced Tromp from his -anchorage; at all events, they were brought by their convoyers along -the English coast to Fairlight,[720] between Hastings and Winchelsea, -where they cast anchor; then the Dutch captain who had been attacked, -Joris van der Saen, went in search of Tromp to tell him of their plight. - -On hearing his story, Tromp instantly turned about and made straight -for the English coast, which he had left only a few hours before. -In this case, at all events, his instructions were explicit. He had -been ordered to prevent Dutch vessels from being visited or searched, -and to recover them if captured. Blake, on seeing the Dutch fleet -returning, stood off to meet it. He did not know the real reason that -had made Tromp alter his course: he had passed the merchant-ships a few -days after their meeting with Young, and had done nothing to them. He -believed that Tromp was seeking an occasion of quarrel, and watching -for an advantage to brave them on their own coast. The Dutch admiral -came on with his flag at the main-top, and when he was well within -range, Blake fired a gun across his bows to make him strike, and after -an interval a second, and yet again a third at his flag; the ball going -through the main-sail and killing a man on deck. Tromp then, still -with the States’ colours aloft, fired a single gun at Blake’s flag, -ran up a red flag,--the prearranged signal for battle,--and poured a -broadside into Blake’s ship, and the two fleets entered into a fierce -encounter.[721] The fight lasted from four or five o’clock until nine, -Blake being assisted by Bourne, who came from the Downs with his small -squadron and assailed Tromp in the rear. The Dutch fleet, with the loss -of two ships, gradually drew off towards the French coast, and Blake -kept his position all night and anchored some leagues off Dungeness. - -This was the first great fight over the striking of the flag, and it -occasioned immediate war between the two countries. Encounters on a -small scale had been not infrequent before, but no foreign fleet had -hitherto ventured to challenge an English fleet in this way off the -English coast. Tromp himself, thirteen years before, when he possessed -an overwhelming force, readily struck his flag to Pennington’s small -squadron in the Downs. After the battle attempts were made to justify -Tromp’s action, but not at all on the ground that the demand for him -to strike his flag to the English admiral was unjust or contrary to -custom. Blake was accused of having precipitated the battle. Tromp, it -was said, had men aloft ready to strike the top-sails, or had already -done so; he had sent a man up to strike his flag; he was preparing to -send his boat to Blake after the second gun was fired to ask him the -reason of his firing, and so forth. But the Dutch admiral well knew the -custom of the narrow sea, and had no need to ask Blake the reason of -his firing across his bows.[722] When the nature of his instructions -with reference to saluting is considered, along with his memorandum -and the discussions connected with it, his action before Dover Castle -on the day before, and the variation in his own subsequent accounts of -his intentions and proceedings, the inference is strong that he had -resolved not to strike to the weaker fleet of the Commonwealth. - -In London the news of the battle aroused intense indignation. It was -everywhere believed that Tromp had deliberately attacked the English -fleet,--an opinion confirmed by the commissioners, of whom Cromwell was -one, sent to Dover to inquire into the facts. The meeting of Joris van -der Saen with Tromp, which had been seen from the English fleet, was -viewed in a sinister light. The little Dutch ship was thought to have -carried instructions from the States for Tromp to make the attack. The -Parliament thought so also: “They found too much cause,” they said, -“to believe that the Lords the States-General of the United Provinces -have an intention by force to usurp the known rights of England in -the seas, to destroy the fleets that are, under God, their walls and -bulwarks, and thereby expose this Commonwealth to invasion at their -pleasure.”[723] It was in vain that the States disowned responsibility -for Tromp’s action and sent over a copy of their instructions to -him, showing that he had been commanded to avoid the English coast. -The ambassadors appealed to the Council to hold their hand until the -States-General had made an inquiry. Tromp was cautioned to use the -greatest circumspection, so that while preserving the reputation -of his country, nothing further should be done to widen the breach -with England. And now, when too late, the Dutch Government came to a -definite decision as to the striking of the flag. Tromp was expressly -ordered to strike his flag on meeting the English fleet, according to -the manner that had been customary when England was under its kings; -and not to attack them, but only to defend himself if assailed.[724] - -The States also sent over a special ambassador, Adrian Pauw, the Grand -Pensionary of Holland, and the most venerable and influential personage -in the Republic, to assure the Parliament of their pacific intentions, -and to strive to maintain peace. He urged that the encounter of the -fleets should be looked upon as an “accident,” and that a joint inquiry -should be made and the admiral found to have been in fault duly -punished. He proposed, further, that regulations should be drawn up for -the fleets, so that in future such disputes might be avoided,--not, -he said, that it was the wish of the States to dispute the honour and -the dignity of the English Republic, which they esteemed the first -and greatest in Europe.[725] But the Parliament insisted that the -States should first pay them the costs and compensate them for the -injuries they had sustained by the Dutch naval preparations and Tromp’s -attack, and give security for an alliance between the two countries. -Meanwhile, the Parliament had been seizing Dutch vessels and preparing -for war, while in the United Provinces feeling was rising steadily and -angrily against England. The ambassadors were recalled and the naval -preparations on both sides pushed on with energy. - -It was well understood that the most vulnerable part of the States lay -in their shipping and fishery. A day or two after the news of Blake’s -encounter with Tromp reached London, the Council issued instructions -to Major-General Dean, who commanded the troops in Scotland, that in -view of the fishery carried on every year by the Dutch about Orkney and -Shetland, the forces there should be increased.[726] A month later, -on 26th June, before the ambassadors had left London, Blake himself -sailed northwards with a fleet of about sixty ships, with a double -object of putting a stop to the Dutch herring fishery and intercepting -their homeward-bound East-Indiamen, which were expected to return to -Holland by way of the Shetlands.[727] On 12th July he sent forward in -advance eight frigates to discover the Dutch convoying men-of-war, -which they soon fell in with, guarding the herring-busses, to the -north of Buchan Ness. They were twelve in number, and after a stubborn -fight of over three hours’ duration, towards the end of which the -English frigates were reinforced by other five, they were all taken, -before the main fleet came up. The English wounded were sent in three -of the captured ships to Inverness; other three ships were so much -shattered that they were sunk. While the fight went on, most of the -herring-busses escaped and made their way homewards with all speed, -but about thirty were taken by the English. Blake dealt with them very -leniently. He took from them “a taste and toll” of herrings, and then -sent them home with this “lesson,” that they “fish no more in those -seas without leave from the Republick of England.”[728] For this humane -action Blake was subsequently blamed, on the ground that the busses -might have been made use of in establishing a native fishery, while the -detention of their crews would have helped to cripple the resources of -the Dutch in manning their fleets.[729] The same generous spirit was -shown towards the French boats that fished in the Channel, which were -excepted from the general seizure of French shipping, unless they acted -improperly.[730] In the course of the war, however, it became the rule -for both the Dutch and the English vessels to bring into port all the -fishing-boats captured from the enemy. - -After Blake dispersed the Dutch busses, the States of Holland at -first thought of calling home the rest of the herring fleet (only -about 600 or 700 had returned), and for that year to put a stop to -the fishing, which had just begun; but it was finally decided to -continue it with twenty-four armed busses and six men-of-war as a -guard,--a conclusion, no doubt, helped by the gentle way in which the -English admiral had dealt with the busses that fell into his hands. -When English herring-boats were seized and taken to the Netherlands, -Holland, which had the greatest stake in the fishery, tried to induce -the States-General to release them, and to issue orders that British -fishermen were not to be molested, in the hope that such forbearance -would be imitated in England. But the policy failed, and orders were -given to do the English fishermen all harm possible. In the following -year the States-General forbade the whaling-ships sailing for -Greenland, but they did not prohibit the herring fishery, though the -greater number of the busses were kept at home by the prudence of their -owners. Many were captured by English cruisers. More than fifty were -taken by the English fleet on the Dutch coast in May 1653, most of them -being brought into Aberdeen and there sold. Some of those seized in -the course of the war were handed over by the Council of State to the -London Corporation for the Poor, to be used in fishing on the English -coast. On the other hand, the English fishermen suffered greatly. The -Iceland and North Sea fishing came almost to a stop, and men-of-war had -to guard the herring and mackerel boats. In September 1653 the Council -sent a force of men and three “fit and nimble” ships to the Shetlands -to ply about the islands, to intercept the enemy’s trade of fishing, -with what results do not appear.[731] - -But the operations against the enemy’s fisheries played only a -small part in the war. The struggle for the command of the sea was -concentrated in many fierce battles between the contending fleets in -1652 and 1653. The exploits of Blake, Dean, Monk, and Penn on the one -side, and of Tromp, De Ruyter, Evertsen, and De With on the other, -are famous in the naval history of the two countries; and although -victory finally rested with England, there were times when the actual -control of the British seas was in the hands of the Dutch. It was on -one of those occasions that the Dutch admiral was said to have hoisted -a broom at his mainmast-top as a sign that he would sweep the seas of -all Englishmen. Tromp unexpectedly appeared in force in the Channel -in the winter of 1652, and on 30th November he defeated Blake off -Dungeness. From that date till the end of February in the following -year no English fleet was able to oppose him. The Dutch were “lords -and masters” of the sea, and English commerce suffered severely. But -the popular story about the broom seems to have uncertain foundation. -It was first set afloat in two English newspapers, published on 9th -March 1653, after the decisive “three days’ battle.” In one it was said -that Tromp had set forth “a flag (or standard) of Broom; and being -demanded what he meant by it, reply’d, That he was once more going to -sweep the Narrow Seas of all Englishmen.” The other paper gave a letter -from the _Nonsuch_ frigate at Portsmouth, stating that the Hollanders -had probably gone home after the battle, and that “their gallant Mr -Trump when he was in France (we understand) wore a flagg of Broom, -and being demanded what he meant by it, replied that he was going to -sweep the narrow seas of all English men.” The story is not mentioned -by Dutch authorities, and is now generally discredited, but in an -earlier century the broom had been used in this way by a Dutch admiral -to signalise a victory in the Baltic;[732] and it is said that after -the two days’ battle in the following summer, when the Dutch had been -driven from the sea, the English fleet rode triumphant off the Texel -with a broom displayed at their mast-heads, perhaps in ironical parody -of Tromp. - -While the fleets were contending for actual dominion over the sea, the -Parliament took care to keep alive the historic claims to maritime -sovereignty and to place them well before the people. As early as 25th -June 1652--the day before Blake sailed away to the north in quest of -the herring-busses--they passed a resolution: “That it be referred to -the Council of State to prepare a declaration to assert the right of -this Commonwealth to the Sovereignty of the Seas, and to the fishery; -to be made use of when the Parliament shall see cause.”[733] No time -was lost, for on the same day the Council remitted the instruction -of the Parliament to the Committee for Law and Examinations, with -the request that they should bring the declaration to the Council -with all speed, and Bradshaw was desired to see that this was -done.[734] Apparently, for the use of the Committee in drawing up this -declaration, Mr William Ryley, the Keeper of the Records in the Tower, -made transcripts of several of the records in his charge referring to -the sovereignty of the sea, as the ordinance of King John, Edgar’s -charter, the mandate of Edward I. to the Bailiffs of Yarmouth, the -rolls of the same king concerning Grimbald, and of Edward III. on the -laws of the sea, and some others.[735] - -It was soon apparent to the Council that the task of again attempting -formally to vindicate the claims of England to the sovereignty of the -seas, while Selden’s _Mare Clausum_ was at their disposal, would be -like painting the lily. They therefore instructed the Committee for -Foreign Affairs “to take order for printing the book called _Mare -Clausum_ and Mr Dugard to print it.”[736] But simply to reprint -Selden’s work, with its fulsome dedication to Charles II., and in the -Latin tongue, would not have served the purpose in view, and it was -then resolved to translate it. This task was assigned to Marchamont -Needham, who had deserted the royalist cause and placed his pen at the -service of the Commonwealth, writing the _Mercurius Politicus_, in -which he had latterly the assistance of Milton.[737] The translation -was rapidly made, and the work was published later in the year.[738] -And just as the original had been dedicated to the king, so now the -translation was dedicated to “the Supreme Authority of the Nation, -the Parliament of the Commonwealth of England”; and so pleased were -the Council of State with it that they, on 8th November, ordered -two hundred copies for their own use, and paid Needham £200 for his -labours, as the book, they said, “learnedly asserted the rights and -interests of the Commonwealth in the adjacent seas, and would be of -good use for these and future times.”[739] - -The “additional evidences” brought forward by Needham comprised the -proclamation of James in 1609, and of Charles in 1636, forbidding -unlicensed fishing; some of the letters that passed between the English -Government and their ambassadors at The Hague; extracts from Sir John -Boroughs’ _Sovereignty of the British Seas_, which was first published -in the previous year; and a few other papers of little importance. The -purpose of the book was better served by Needham’s bitter if rather -frothy invective against the Dutch, and by his ranting appeals to -English patriotism to conquer the foe and establish our interests on -the sea beyond the possibility of future question.[740] - -Selden was still alive, and the translation was doubtless made with -his concurrence, whatever he may have thought of it. He was himself -soon drawn into the controversy which the book evoked. Graswinckel, -the Dutch lawyer who had been chosen by the States-General in 1636 to -reply to Selden’s _Mare Clausum_, and whose neglected treatise had -ever since being lying in the secret archives at The Hague, again -entered the lists. His shaft was ostensibly directed against a certain -Italian writer, P. B. Burgus, who had published a work eleven years -before in support of the right of Genoa to the dominion of the Ligurian -Sea.[741] There was no apparent reason why the Dutch lawyer should -be at the pains to attempt to refute a claim so remote and after so -long an interval; but Burgus quoted largely from _Mare Clausum_, and -Graswinckel seized upon the opportunity to attack Selden, and to -gratify his feelings by making use of his early abortive treatise, -under the guise of replying to the Italian author. And his attack -on Selden was very bitter.[742] On the main question, the familiar -arguments were adduced against the appropriation of seas, with the -usual seasoning of Scriptural and classical quotations; the historical -claims of England to the sovereignty of the sea were treated in a -sarcastic and bantering spirit, and the authenticity of some of the -records cited by Selden was questioned; while he said that in many -respects the Hollanders were the real lords of the British seas. But -he made a personal attack on Selden, accusing him of having written -_Mare Clausum_ in order to get out of prison.[743] Selden made a strong -reply, explaining the circumstances under which his treatise was -written, and entering into a minute description of the documents which -Graswinckel suggested he had invented; but on the controversy as to the -dominion of the seas he contributed nothing new.[744] - -Stimulated by the war and the dispute which had precipitated it, a -number of works were now published in Holland in defence of the freedom -of the seas and the liberty of fishing, and opposing the claims of -England to any special maritime jurisdiction. Among them was another -dissertation by Graswinckel, published before he was aware of Selden’s -reply to his attack, and apparently containing further extracts from -his stillborn treatise. This time the earlier Scottish lawyer, Welwood, -was assailed, and his book, _De Dominio Maris_, was republished -in Holland in order to serve, apparently, as a theme and target. -Graswinckel was especially severe against any claim to interfere with -the herring fishery or to impose tribute on the fishermen.[745] The -controversy continued to rage on both sides of the North Sea, but -in England it fell for the most part into the incompetent hands of -ignorant pamphleteers, who vilified the Dutch in pious but intemperate -language without shedding much light upon the question. - -But if there was a dearth of competent pens in England able to carry -on a juridical controversy about the sovereignty of the sea, it was -not for lack of belief in the importance of the matter. At no previous -time in English history had popular feeling been more aroused or was -the general resolution stronger to maintain the rights of the country -in the seas. The traditional sentiment of the nation, which Charles had -in large measure alienated by his ship-money exactions and his bungling -and fruitless attempts to maintain those rights, was revived in full -force, and it was greatly strengthened by other considerations relating -to commerce and trade. Though English commerce and shipping had greatly -developed since the earlier part of the century, by far the larger part -of oversea traffic was still in the hands of the Dutch. It was against -this predominance that the Navigation Act was aimed. The pre-eminence -of the Dutch excited the emulation of the nation to outvie and outdo -them, and success in this policy was believed to be closely bound -up with the assertion of the sovereignty of the sea. Before the war -began, the authors of works on commerce and navigation had urged the -Parliament to enforce these claims, even in the Mediterranean against -France, and for the same reasons that were formerly used by Sir Walter -Raleigh.[746] To the national sentiment and commercial ambitions was -added the zeal of religious fanaticism. The godly Barebones Parliament -of 1653, who looked askance at the Dutch as carnal and worldly -politicians, held it necessary that the seas should be secured and -preserved as peaceable as the land, in order to prepare for the coming -of Christ and the personal reign.[747] - - - - -CHAPTER XI. - -THE PARLIAMENT, THE COMMONWEALTH, AND THE PROTECTORATE--_continued_. - -THE PEACE NEGOTIATIONS. - - -The importance of the questions connected with the claim to the -sovereignty of the sea was revealed in the long negotiations with the -Dutch which preceded the conclusion of peace. These were begun at a -very early stage of the contest. From the first the war had been as -distasteful to Cromwell as it was to John de Witt and the leading -men in the States of Holland, and so soon as the beginning of August -1652, within three months of Tromp’s encounter with Blake, clandestine -negotiations were set on foot, with the approval of Cromwell, Vane, -Whitelock, and other leaders in England, with the object of bringing -about peace; and though nothing came of them at the time, they -were resumed early in 1653. The Speaker informed the Parliament on -22nd March that he had received a formal letter from the States of -Holland desiring that the negotiations might be resumed, and on 1st -April the Parliament replied favourably, offering to take up the -negotiations at the point at which they had been broken off when the -special ambassador, Pauw, quitted London in the previous year.[748] -This implied payment to the Parliament of the expense incurred in -consequence of the Dutch naval preparations and of Tromp’s fight with -Blake, and “security” for a close alliance,--conditions unacceptable by -the ruling oligarchy at The Hague. - -In order to find some more satisfactory basis for the negotiations, the -States-General in June 1653, immediately after the two days’ battle, -and when the English fleet was blockading the Dutch ports, sent four -deputies to London. One of them, Hieronymus van Beverning, a trusty -friend of De Witt’s and a representative of the States of Holland, came -on in advance, reaching London on June 17; the others, Nieuport, van -de Perre, and Jongestal, following a few days later.[749] The deputies -arrived at a time when Cromwell, having dissolved the Long Parliament -and the old Council of State, was dictator, and the new Council was -composed of his own nominees; and Cromwell, as is well known, had -been against the war and was favourable to peace.[750] Nevertheless, -a stiff attitude was adopted towards the envoys. To their request -that negotiations might be resumed on the basis of the thirty-six -articles the Council turned a deaf ear, putting forward the demands for -reparation and security, and refusing to proceed with the negotiations -until they had received a satisfactory answer.[751] Cromwell, however, -sent a private message to Nieuport, on 30th June, that the Council -would not insist on satisfaction and security. He suggested that -Tromp should be suspended for a few months; that a binding treaty -and alliance should be concluded; and that for security two or three -Englishmen should sit in the States-General or Council of State in the -Netherlands, and the same number of Dutchmen in the English Council. If -these conditions were agreed to, little difficulty would be made about -the thirty-six articles, the Dutch would be allowed to carry on their -herring fishery in the British seas, and a truce probably granted.[752] -But by the next day Cromwell, after discussion with the Council, had -changed his mind, and the debate went on about reparation and security. -The deputies were told that the Council did not ask for a great sum, -but that the “security” meant “uniting both states together in such -manner as they may become one people and Commonwealth, for the good of -both,”[753]--a scheme apparently much the same as St John had taken -with him to The Hague. - -This extraordinary proposal for a union, closer even than that which -existed among the seven United Provinces themselves, astonished the -envoys of the many-headed Government. They pretended at first not to -understand it, and went on talking of “alliance” and the Intercursus -Magnus; but the Council pointedly declared that what they meant was -not the mere “establishing of a league and union between two sovereign -states and neighbours, but the making of two sovereign states one,” -under a joint Government, all the subjects to possess equal privileges -and freedom in either country “in respect of habitations, possessions, -trade, ports, fishing, and all other advantages whatsoever.”[754] The -deputies considered such a scheme “absurd,”--nothing of the kind had -ever been heard of in history; it was opposed to the constitution of -the United Provinces and was impossible; and they hinted that if the -proposal was pressed they would have to return home. They thought it -was far better to take as a basis for the negotiations the treaty of -1496, which was a perfect, true, and sincere alliance, league, and -confederation by land and sea. To this the Council replied that they -had desired a coalescence of the two countries as the best security -for the future of both, and especially of the United Provinces; and -that the deputies offered nothing more than they did at first, by which -they demanded free trade to the English colonies and the suspension of -the Navigation Act; “nay,” the Council continued, “they do in effect -demand to share with this state in the sovereignty of the narrow seas, -and in their right of fishing,” whereas these advantages could only be -obtained by such a coalescence as had been proposed.[755] - -The negotiations had now come to such a pass that the Dutch -commissioners judged it to be necessary to report verbally to the -States, and Nieuport and Jongestal left for home with this object on -3rd August. They did not return until the end of October; and while the -official conferences with the Council were suspended in the interval, -the two deputies who remained in London carried on important private -negotiations with Cromwell, mostly through an intermediary. At first -Cromwell descanted on the advantages to the United Provinces of the -proposed coalescence, including the complete liberty they would have of -fishing on the British coasts. Later he put forward the extraordinary -schemes which remind one of the dreams of Napoleon--a confederation -of the Protestant states of Europe for the propagation of the Gospel; -the partition of the rest of the world, Asia to fall to the share of -the Dutch and America to England; a war of conquest against Spain and -Portugal, and then there would be complete freedom of commerce and of -fishery in all seas, without molestation or disturbance.[756] A less -extravagant alternative offered was an alliance of the Protestant -states, without the partition of the globe or the war of conquest; -but this smaller scheme was not to carry with it either freedom of -commerce or liberty of fishing. And now, for the first time since the -negotiations began, a formal stipulation was asked that all ships of -war of the Dutch Republic, on meeting “on the sea” with the ships of -war of the Commonwealth, should show them the same respect and do them -the same honour as had been practised in any former time.[757] - -The two deputies in London could do nothing with these proposals until -the States-General had decided about the original project of coalition, -with reference to which Nieuport and Jongestal had gone to The Hague. -But they expressed their own opinion on the twelve articles which had -been submitted to them; and with regard to the striking of the flag, -they thought the word “respect” conveyed the impression of too great -a sovereignty on one side and of submission on the other, but they -agreed that another word might be chosen and a “good regulation” made. -The objection was curious, because during the negotiations of 1673 -the envoys of the States--and the same able Beverning was the chief -of them--themselves proposed that the striking of the flag should be -done “by way of respect”; and when that word, respect, was inserted in -the treaty of 1674, it was said in England that the Dutch had scored a -great diplomatic victory, since to show respect was not to acknowledge -sovereignty. - -When the two absent deputies returned to London they brought back with -them the old instructions for a “close alliance and strict union,” -nothing being said about the proposal to fuse the two nations into one. -Their memorandum was submitted to the new Council of State, on which -Cromwell had a working majority; the only coalition suggested was a -“coalition of interests,” and a “brotherhood” of the peoples. Cromwell -at once called it a mutilated coalition, and some of the Council are -said to have expressed strong opinions as to the “contumelious” tactics -of the Dutch. If they refused real coalition, it was our duty, they -said, to make them and keep them our inferiors, so that they might -never attempt this nation again; they must pay for liberty to fish -on our coasts; render the usual submission at sea; give up their own -wafters and pay us for convoys, since we were the proper guardians -of the British sea; they must not equip many great ships, without -explaining their intentions and asking leave to pass through our -seas; and they must pay the costs of the war. Such were the opinions -attributed to the Council by a well-informed author who wrote a little -later,[758] and they indicate tolerably well the demands which were -subsequently made. The Council then prepared draft articles for a -treaty on the lines the Dutch desired, and Cromwell informed them -that since they were averse to a coalition which would have made the -privileges of both countries equal, it would be necessary first of all -to define clearly their respective rights, so that disputes might be -avoided in future. And in the first place, he said, they must settle -their right and dominion in the narrow sea and the question of the -fishery, remarking that if these points were adjusted the work in hand -would be much facilitated.[759] - -In putting the question of the sovereignty of the sea and the fishery -in the foreground of the negotiations, Cromwell placed the envoys -in a difficulty. In conformity with their traditional policy on -like occasions, the States-General had expressly instructed their -representatives to avoid discussion on these thorny subjects,--a -circumstance no doubt well known to Cromwell. They therefore fenced -with them. With regard to the “honour of the sea,” they had never -desired to dispute with the Parliament of the Republic of England any -honour or dignity which had been rendered to former Governments, and -they declared their willingness to pay the same “honour and respect” -to the English flag as had been previously shown to it. They thought -it would be better to defer consideration of the fishery question -until the articles of a “strict union” had been adjusted, when the -whole business of commerce, fishery, and the immunities on both sides -might be dealt with. But Cromwell was not to be turned from his -purpose. On the following day, after a long and remarkable speech on -the advantages of coalition--which the Dutch once more put aside,--he -again declared that the matter of the sea and the fishery must be -first of all settled; and he ended the discussion by handing to the -deputies the draft articles which the Council had prepared.[760] The -articles were twenty-seven in number. Some of them provided for a -defensive alliance and arranged details of peace. Freedom of trade was -to be allowed, provided the laws in force--the Navigation Act--were -observed; the rebels of the one were not to be assisted by the other, -and so forth. But the Dutch were to pay a sum to be agreed upon, by -way of reparation, and there were several articles dealing with the -sovereignty of the sea and the fisheries. - -The article[761] on the fishery was framed on the model of the -proclamations of James and Charles relating to unlicensed fishing. -It was as follows: “The people and inhabitants of the said United -Provinces, of what condition or quality soever they be, shall with -their busses and other vessels fitted to that purpose, have liberty -from time to time, for the term of one and twenty years, next coming, -to sail and fish as well for herrings, as all other sort of fish, great -and small, upon any of the coasts or seas of Great Britain and Ireland -and the rest of the Isles adjacent, where and in such manner as they -have been formerly permitted to fish. In consideration whereof, the -States-General of the United Provinces shall during that term pay into -the public treasury of this Commonwealth at the City of London the sum -of ... at two equal payments upon every 24 day of June and 24 day of -December; the first payment to begin on the 24 day of June next.” When -it is remembered that the Dutch in the reign of James, and again in the -reign of Charles, were prepared to go to war with England rather than -surrender their liberty of fishing, the objectionable nature of this -article is apparent. No glimpse is obtained throughout the negotiations -of the sum that was to be asked for the liberty of fishing, possibly -because it was never definitely fixed by the Council. It is, however, -stated by Stubbe, who had special sources of information, that it was -the intention of the Council to demand £100,000, as well as payment -for constant wafters or convoys,[762]--a statement which is credible -only on the supposition that it was desired utterly to ruin the Dutch -herring fishery. - -Some of the other articles were equally or even more objectionable. -That concerning the striking of the flag,[763] though not feasible in -its original form, was capable of adjustment. It provided “that the -ships and vessels of the said United Provinces, as well men-of-war as -others, be they single ships or in fleets, meeting at sea with any of -the ships of war of the State of England, or in their service, and -wearing their flag, shall strike their flag and lower their top-sail, -until they be passed by, and shall likewise submit themselves to -be visited, if thereto required, and perform all other respects -due to the said Commonwealth of England, to whom the dominion and -sovereignty of the British sea belong.” By this article the whole -of the Dutch fleet would be bound to strike to a single ship in the -English service anywhere on the sea, and, what was a far more serious -matter, to submit to be visited and searched. A stipulation of that -kind was unacceptable. Tromp’s fleet had been fitted out before the war -expressly to prevent the visitation and search of merchant vessels; -if no conflict had occurred with Blake about the flag, it would -almost certainly have happened on this other point.[764] And now the -States were asked to confirm in a formal treaty the right claimed by -England; and above all to make it applicable to their ships of war. -Another article with reference to the measures to be taken against -pirates embodied the old doctrine attributed to the Plantagenets. The -Commonwealth of England, it stated, had declared their resolution -“to put upon these seas a convenient number of armed ships, for the -defence and safeguard thereof, and to maintain and preserve all -lawful navigation, trade, and commerce therein, against pirates and -sea-rovers.”[765] Another article which raised the strongest objections -provided that the Dutch fleet passing through the British seas should -be limited to a certain number, to be agreed upon in the treaty, and -that if the States had occasion for a larger number to pass than that -agreed to, they should first give the Commonwealth three months’ notice -and obtain their consent. The article also provided that Dutch merchant -vessels should be allowed freely to navigate the British seas, as if -the right of permitting or forbidding navigation there belonged to -England.[766] - -Such conditions could only have been imposed on a nation hopelessly -vanquished. They were conditions, the ambassadors declared, which would -not be demanded from rebels or slaves. On the English side there was a -strong feeling that since coalition had been rejected, the “security” -for the future ought to be rigorous and complete. It was still firmly -believed by the mass of men, and doubtless by many in the Council, that -Tromp had attacked Blake in overwhelming force in order to destroy the -English fleet; and that too by the implicit or express orders of the -States. There was doubtless also a desire to cripple Dutch commerce -and power as far as was possible. Commercial jealousy had long been -simmering, and now that the English thought they had the power they -were resolved to use it to their own advantage.[767] - -The Dutch deputies were astonished and indignant at the English -demands, which, as they sarcastically noted in their journal, they -could scarcely reconcile with the professions of friendship and -the pious words of Cromwell. Had they communicated them to the -States-General all thoughts of peace would have been at an end, for it -had required the most adroit diplomacy of John de Witt to induce that -body to allow the negotiations to be set agoing. They therefore sent -home only an imperfect official account of them, pleading that Cromwell -had tied them down to the utmost secrecy,[768] and then proceeded -to consider the articles themselves. Those dealing with reparation, -the Prince of Orange, the visitation of ships, and the fishery, they -decided absolutely to reject as inadmissible, for reasons to be given -later. The one which proposed to limit their naval power in the -adjacent seas they resolved indignantly to refuse, and to break off -the negotiations rather than to agree even to discuss it, believing -that it was a matter in which all Christian princes in Europe were -also interested, who would condemn the English Government for their -extravagant claims to special maritime rights and to the fishery. -Their conclusions were embodied in a paper which was submitted to the -Council of State on 22nd November. In this they said that the visiting -and searching of merchant vessels and ships of war was contrary to the -practice of the United Provinces, was subject to innumerable disorders -and disputes, and was injurious in point of sovereignty, since it was -not reciprocal. As to the fishery, they declared that they had been in -immemorial possession of complete liberty of fishing. They denounced -the article concerning the limitation of the number of their ships of -war, which they said they could hardly persuade themselves had been put -forward seriously, since it struck at the root of their existence as an -independent sovereign state, and they declined to discuss it.[769] - -Cromwell throughout the whole negotiations, until he became Lord -Protector, acted as spokesman for the Council at the conferences; and -he now stated that the visitation of Dutch ships was an undoubted right -of sovereignty possessed by the English Commonwealth. The limitation -of their ships of war passing through the British seas was also a -consequence of the same right of dominion; and the English had now -more than ever reason to maintain it, both on account of their ancient -prerogative and the recent injuries committed by the Dutch. The right -to the fishery was of the same nature. No other nation in Europe had -attempted to carry it on without the consent of England; the Dutch -were the only people, he said, who sought a separate interest in it--a -statement which was quite inaccurate. But the deputies took their stand -on the obnoxious article which proposed to clip their naval power and -interfere with their liberty of navigation, and threatened to return -home unless it was withdrawn. After standing firm for a time Cromwell -withdrew the article, asserting at the same time that England had -jurisdiction on both sides of the sea, and that it was perilous to -allow a fleet of sixty or eighty men-of-war to come into our rivers -or ports without our knowledge or consent,--a reference, no doubt, to -Tromp’s action before the war. - -This concession facilitated the negotiations. Frequent conferences were -held in the following week, Cromwell and his Council strongly asserting -the right of the Commonwealth to the fisheries and the dominion of the -sea. At this period there were four subjects chiefly in dispute--the -arrangements relating to the striking of the flag, the visitation of -ships of war, the preliminary part of the sixteenth article as to the -guarding of the seas, and the fishery. On none of these was Cromwell -inclined as yet to give way. The deputies repeated their offer as to -the flag, and requested that a joint commission of old and experienced -naval officers should be appointed to draw up regulations for the -guidance of both sides in future. To this Cromwell replied that such -a commission was unnecessary, their rights and the custom being well -understood and clearly expressed in the article. There was, however, -uncertainty as to the places where the right could be claimed, and -the Dutch deputies said they wished to make it clear in what seas -and on what coasts the flag ought to be struck, urging that it was -better to be guided by a regulation than to compel it by force. But -Cromwell was inflexible. To yield would be to admit that the claim -was doubtful in point of right or mode, and it would stultify their -whole action; he may also have thought it would open a door for some -form of reciprocity. The article was therefore postponed, as was also -the sixteenth article, the deputies insisting on the deletion of the -introductory sentence as to a fleet to be put forth to guard the sea, -which Cromwell refused to do.[770] - -The keenest dispute at this time was about the herring fishery. There -were two principles in the article, Cromwell said, which required -attention: first, the recognition of England’s right to the fishery; -secondly, compensation for allowing the use of it. Unable to avoid -the discussion, the envoys pleaded their immemorial possession and -their treaties, and said that their liberty of fishing had never -been disputed; besides, they asked, was it a friendly thing to make -a proposal of the kind when they were about to conclude a strict and -close alliance between the two countries? Cromwell, who had obviously -been well posted up in the arguments in _Mare Clausum_, then entered -upon a lengthy disquisition on the subject. He said the English could -prove by authentic documents that they had had possession of the -fishery from all time, and that other nations sought their permission -to fish; that the clause in the treaty of 1496 (the Intercursus Magnus) -upon which the Dutch relied, was omitted in later treaties; and that -the treaties had expired owing to the subsequent wars between Queen -Elizabeth and Spain, and had never been since renewed; they were not -the same people with whom the treaties had been made, since they were -now alienated from the House of Burgundy. And they could not establish -their right by prescription, for by the civil law it required a hundred -years for a just prescription, and the States had not existed so long -as an independent nation. Moreover, long before the treaty of 1496, -licenses for fishing had been sought and granted. Even King Philip II. -in Queen Mary’s time had asked permission to fish for twenty-one years, -and had paid £1000 a-year for the privilege. King James, too, had -issued a proclamation in 1610 (_sic_) forbidding unlicensed fishing, -while King Charles had demanded and received through the Earl of -Northumberland an acknowledgment from their herring-busses. - -To this long argument the deputies replied with arguments as long. With -respect to the treaties, they said that the treaty of 1496 was not -between prince and prince, but between states and towns, as specified -in it; and that the article which provided for mutual liberty of -fishing had been confirmed in later treaties, notably in the treaty -of Binche, in 1541, between the Emperor Charles and the King of -Scotland; in that of 1550 with Queen Mary of Scotland; and in that -between the United Provinces and King James of Scotland in 1594.[771] -Moreover, in the treaty between England and Spain in 1630, there were -certain words which confirmed the ancient treaties of intercourse and -commerce.[772] They expressed the opinion that Cromwell had not been -well informed in saying that licenses for fishing had been granted -before the Intercursus Magnus was concluded, because it was doubtful -if the invention of the salting and casking of herrings was much -before that date.[773] As to the alleged lease of the fishings by King -Philip, there was nothing to compel him to take such a lease, and -they saw no reason why he should have done so; while the proclamation -of James, so far from being an argument against them, was entirely -in their favour, because, as they could prove from papers in their -hands, it was never put into execution, but was suspended on the -representations of the States. The action of the Earl of Northumberland -they described as simple extortion, since he had compelled a few -defenceless fishermen, without the knowledge of the States, to pay -him some money. The deputies concluded their arguments by saying they -had no further instructions on the matter, and that if the Council -pressed the article, they would require to return and report to their -Government: there was, they said, a high and mighty Lord in heaven who -knew the hearts and rights of all, and He would judge. Cromwell assured -them that the article had not been inserted in the draft treaty with -the object of breaking off the negotiations, but only that they might -maintain their just rights. Why, he asked, should the States object to -acknowledge the right of the Commonwealth to the fisheries, when other -Powers like France and Sweden, who had as much claim to liberty as -they, had not scrupled to acknowledge it?[774] - -As Cromwell was immovable, and the deputies equally obdurate, the -negotiations came to a stop, and the latter on 5th December formally -requested their passports to return to The Hague. In the interval -they asked the French ambassador if France had requested permission -from England to fish in the sea, as Cromwell averred. He told them -nothing had been said to him on the matter since he came to England, -but that his papers showed that the Duke of Guise had formerly asked -that certain fishermen of Treport should not be molested in their -fishing.[775] They also learned that the Swedish ambassador had sought -to obtain from England free commerce in general, free fishery, and -freedom of trading to the Barbadoes. It was indeed the case that -Sweden had made such proposals. In the negotiations for a treaty with -the Commonwealth, the queen expressed her desire to obtain liberty -for her subjects to fish for herrings in the British seas,[776] and -in the preceding August the Council of State, at the request of her -ambassador, had actually issued a license to four Swedish vessels to -fish in the narrow seas and upon the British coasts.[777] In a treaty -concluded in 1656 between the King of Sweden and the Lord Protector, -the privilege, it may be said, was carried much further. The treaty -provided that Swedish subjects should be free to fish for herrings -and other fish in the seas and on the coasts under the dominion of -the Republic, provided the number of ships so employed did not exceed -a thousand; and no charges (such as the assize-herring) were to be -demanded of the Swedish fishermen, who were to be treated courteously -and amicably, allowed to dry their nets on the shore, and to purchase -necessaries at a fair price.[778] - -It may be noted as remarkable that, throughout the long discussions -with Cromwell about the fishery, the Dutch deputies never made use -of the argument, so frequently employed by their predecessors at the -Court of James, that the English claims were opposed to the law of -nations. They probably shrank from using an argument of that kind to -the great dictator who had ruthlessly trampled on the laws of England; -perhaps they were deterred by the abrupt intimation made earlier, -that the Council had not come to listen to scholastic subtleties, -but to consider the real legal rights of England. The obstinacy of -Cromwell in refusing at this stage to modify the fishery article is -also noteworthy. No doubt he was moved by a sincere desire to benefit -England. The belief was still prevalent that the herring fishery which -the Dutch carried on along the British coasts was the foundation -of their commerce, wealth, and naval power. It, moreover, provided -them with a great “seminary of seamen” to recruit their fleets--a -consideration which must have had a special force at a time when we -had only the ships in the coal trade between Newcastle and London to -draw upon for ours, and when the most rigorous system of pressing -failed to provide sufficient men for the navy.[779] But Cromwell had -other reasons for insisting on the English claims, even to the point -of rupture of the negotiations. It was by this time obvious that the -Barebones or nominated Parliament had only a short life before it, and -it was desirable that its dissolution should be free from violence -and as far as possible voluntary. The majority of the members were -strongly opposed to the Dutch, and to the conclusion of peace except -on humiliating terms to the enemy; and it is probable that Cromwell’s -insistence was partly due to his desire to conciliate them. He was now -about to put on the mantle of the Lord Protector of the Commonwealth of -England. - -When the Dutch envoys wrote to the Council for their passports, they -received no answer. On repeating their request two days later, they got -a hint of what was impending,--that the Parliament which was against -them would soon be dissolved, and the management of affairs placed in -the hands of a council of ten or twelve.[780] Then on the 9th December -they were asked by Viscount Lisle, in the name of the Council, to delay -their departure, as commissioners would soon be appointed to treat -with them and conclude the treaty. Cromwell took the oath as Lord -Protector on the 16th; the new Council of State met on the 19th; and -the conferences on the treaty were resumed four days later.[781] - -Cromwell did not now attend the conferences, the negotiations being -entrusted to four members of the Council--Viscount Lisle, Sir Charles -Wolseley, Sir Anthony Ashley Cooper, and Walter Strickland, who had -accompanied St John to The Hague in 1651. The discussions on the -questions affecting the claim to the sovereignty of the sea were -continued: the striking of the flag, the visitation of ships, and the -declaration that the dominion of the sea belonged to England. The -former arguments on both sides were repeated, and the Dutch proposed -the following article with reference to the flag: “That the ships and -vessels of the United Provinces, as well men-of-war as others, meeting -with any of the ships of war of the State of England shall honour and -dignify them with the striking of the flag and lowering the top-sail, -in such a manner as ever under any form of government in times past -they have been honoured and dignified; and to prevent all quarrels for -the future the particulars thereof shall be regulated by the advice of -the generals and commanders.”[782] The English commissioners reiterated -the objections previously made, but now stated that they had been -referring only to the narrow seas;[783] and it was agreed to refer the -points in dispute to the Lord Protector. - -Another difficulty arose on the third article, which fixed the dates -on which the peace should take effect on the sea, after which dates -the capture of prizes would be illegal. The part was as follows: -“Excepting such depredations as shall be committed in the British Seas -(_Maria Britannica_) after the space of twelve days, and betwixt the -British Seas and the Line after the space of ten weeks,” &c. At the -first, the phrase “British Seas” had caught the eye of the envoys; but, -thinking it was merely an ordinary appellation such as might appear on -a chart, and that no deep design lurked beneath it, they decided that -it would not be desirable to raise “the business of the sea” on such a -point.[784] They now took exception to these words, and suggested that -it would be better to begin, “in the narrow sea, which was called the -British Sea” after twelve days, from there to Cape St Vincent after -six weeks, &c. This matter also was referred to the Protector. - -Cromwell, who was now settled in his new dignity, gave close attention -to the peace negotiations. On 26th December the deputies were handed -a paper in his name, in which he gave up the demand for a money -payment in reparation for the war; agreed to the stipulation about -the exclusion of the Prince of Orange--which was the corner-stone -of the treaty--being put in a secret article; agreed to some new -articles which the Dutch had proposed, after slight modifications; -and at the same time introduced a new element of trouble and debate -by formulating three additional articles requiring justice to be done -for the “murder” of the English at Amboyna in 1623, and concerning -the settlement of disputes and wrongs committed in the East Indies, -Brazil, and Greenland. Important concessions were at the same time -made on the maritime question. The article respecting the fishery was -dropped. “Concerning the fishing,” wrote the Protector, “the Lords -Deputies having by their former papers desired that freedom of fishing -in these seas might be declared in this treaty, the 17 article was -thereupon propounded, whereby license is granted to the people of the -United Provinces to fish freely in these seas upon the terms therein -expressed, notwithstanding as in their Lordships’ power either to -accept or refuse, but it cannot be admitted that anything should be -inserted in this treaty that may prejudice the right of this state in -their fishery.”[785] The Dutch thus again scored a diplomatic victory -and preserved their liberty of fishing on the British coasts, just as -they had done in the reigns of James and Charles. They did not succeed -in getting the clause in the Intercursus Magnus inserted or confirmed, -as they desired, but it still remained in force. Later writers -accused Cromwell of having surrendered the rights to the fishery, -and much else, as a _quid pro quo_ for the stipulation regarding the -exclusion of the Orange family in the Netherlands, which was his main -object;[786] but there is no doubt at all that the States-General -would never have agreed to the English proposal. - -Concessions were also made as to the striking of the flag. “The 15 -article,” said Cromwell, “to be as following: that the ships and -vessels of the United Provinces, as well men-of-war as others, meeting -at sea with any of the ships of war of the State of England, shall -strike their flag and lower their top-sail, and perform the other -respects due to this State until they be passed by”; but the request -that a naval commission should draw up a “regulation” on the subject -was not acceded to. On the other hand, the clauses which stipulated -for a right of visitation of Dutch ships at sea, and the declaration -that the dominion and sovereignty of the sea belonged to England, -were entirely withdrawn; but the Protector would not yet part with -the clause which provided for an English fleet to guard the seas and -protect commerce. Surely, he said in effect, since the article limiting -the number of warships has been withdrawn, you will not contest our -dominion of the sea in this?--and at this stage it was retained, with -the remark, “this article is insisted on.” One of the new clauses -provided that not more than eight men-of-war at a time were to enter -any port of the other Power, unless constrained by force of tempest, -without having obtained consent to do so; and when compelled to enter -by danger of the sea, they were immediately to signify to the chief -magistrate the cause of their coming, and to leave when he required -them to depart.[787] - -On the subject of striking the flag, the deputies were not yet -satisfied. They still continued to urge that a “regulation” should be -prepared; and they now raised a new point. Cromwell had always used -the words “at sea,” which might mean any sea or any part of the sea. -They now desired that the ceremony should be restricted to the narrow -seas, “which,” they said, “are called the British seas.”[788] To this -proposal Cromwell assented in so far that the words “in the British -seas” were inserted later. It is curious to notice how the meaning of -the term “British Sea” thus became confused even within the compass -of a single treaty. In reference to this article, the Protector made -the important admission that the narrow seas and the British seas -were synonymous.[789] In the third article, as we have seen, the same -term was used, and it was natural for the Dutch to suppose that it -there had the same significance and meant the narrow seas or Channel. -Since the clause dealt with a matter of great practical importance, -namely, the restitution of vessels that might be captured after a -specified date, and the term “British seas” appeared to be restricted -to the Channel, they wished specifically to include in it the North -Sea and the East Sea (or Baltic), both regions of great traffic. The -envoys were accordingly instructed later by the States-General to have -these words added, so that the clause would read, “excepting such -depredations as shall be committed in the British Sea, the East Sea, -and the North Sea.”[790] By this addition, moreover, the objectionable -phrase “the British seas” would be formally restricted to the narrow -seas or Channel, with the consent of England. The proposed change was -instantly rejected. When Beverning brought it forward, Thurloe resisted -it with great warmth,[791] and the qualifying words confining the term -British seas to the narrow seas, which the Dutch had inserted, were -also deleted.[792] When it was verbally agreed that the striking of -the flag should be restricted to the narrow sea,[793] the deputies -made a new proposal. It was to the effect that Dutch ships, without -any distinction, not only in the narrow seas but throughout the whole -world, on meeting English men-of-war should give them the first salute -by striking the flag and top-sails and firing guns, provided that the -English ships immediately returned the salute in precisely the same -manner. This, doubtless, was the proposition which lurked behind the -reiterated suggestion for a “regulation”; but the English commissioners -would not agree to any form of reciprocity. The Dutch again raised -objections to the part of the sixteenth clause concerning pirates, -on the ground that it contained an implication of the claim to the -dominion of the seas, which they had constantly opposed, and they -cited the treaties with Elizabeth in 1585, and with Charles in 1625, -as having assigned to them the protection of the sea off the Flemish -coast and neighbouring coasts. They declared they would prefer it to be -dropped altogether unless it was amended or made reciprocal.[794] - -The differences as to the sovereignty of the sea or the phraseology of -the maritime articles were now, however, of little actual importance. -The progress of the negotiations, secret and otherwise, had narrowed -the real ground of contention to two crucial points--the exclusion -of the Prince of Orange from office, and the inclusion of Denmark in -the treaty. The former had been secretly agreed upon by Cromwell and -Beverning, the latter acting in conjunction with De Witt;[795] but the -Protector was obdurate as to the inclusion of Denmark, and the deputies -decided to return home to report the state of the negotiations. They -left London on 3rd (13th) January, and though a message from Cromwell -overtook them at Gravesend conceding the point in dispute as to -Denmark, they thought it better to continue their homeward journey. The -treaty, so far as it had been officially arranged and made known, was -received with approbation in Holland, the vital stipulation respecting -the exclusion of the Prince of Orange being concealed. Beverning -came back to London on 25th January, but was refused audience by the -Protector until he had obtained proper credentials recognising the new -Government. He was joined by Nieuport and Jongestal a month later, but -it was not till 15th March that the conferences were resumed.[796] - -By this time the Protector had in substance conceded almost everything -concerning the dominion of the seas that the Dutch had asked for, and -the ambassadors--they had returned with the title of extraordinary -ambassadors--were anxious to avoid any more discussion about it. -For this reason Beverning disapproved of the resolution of the -States-General, above referred to, for the amendment of the third -article by specifying the North Sea and Baltic, and after his first -interview with Cromwell he wrote to them expressing his opinion that -it would occasion new disputes about the fisheries and the sovereignty -of the sea. We have seen how it was received by Thurloe; and from -what followed it would appear that Cromwell had either heard of the -rumours going about that he had sacrificed the rights of England to the -sovereignty of the seas in order to gain the exclusion of the Orange -family, or that he was determined to keep the matter open until the -secret arrangement for that exclusion had been officially accepted in -the United Provinces--a task in which De Witt was struggling against -enormous difficulties. At all events, after the treaty had been -signed by the negotiators and ratified by the States-General, and -when Cromwell was on the point of ratifying it, he suddenly reopened -the question as to the extent of the British seas. Thurloe began by -asking the ambassadors what was meant by the distinction drawn in -the third article between the British seas and Cape St Vincent. Such -a distinction seemed to prejudice the limits of the British seas, -and might besides give rise to disputes later as to the seizure of -vessels. He then treated the ambassadors to a discourse on the extent -of the British seas, the particulars of which are, unfortunately, not -recorded. They were, however, told that they extended to and along the -coast of France, “Xaintonge” (Saintonge, an old French province) and -round about there. It had not been thought, he said, to limit or define -any seas in stating the districts, and he asked them for a declaration -on the subject. They suspected that the design was to extract from -them an explicit statement as to the southward limit of the British -seas, and they said they had now no power either to alter the article -or even to interpret it. The treaty had been signed on both sides and -ratified by the States-General, and their instructions and commission -were at an end. The proposal to alter it, they now alleged, came from -themselves alone, without instructions from the States-General, and -they had willingly and immediately withdrawn it when objection was -made. Cromwell then asked if it had ever been their intention to define -in any way the limits of the seas by that article. They replied that -they believed not, and added that they had never thought of yielding -anything with regard to right or jurisdiction or limits of the seas; -and they failed to see what prejudice his Highness could suffer from -the extension of the article, unless it was to be maintained that -the whole of the French and Portuguese coasts to Cape St Vincent -were within the narrow seas, as they had defined in the fourteenth -article, which was withdrawn.[797] Cromwell then angrily told them that -he would not exchange the ratification of the treaty unless he got -the explanation and interpretation requested.[798] It was only, the -ambassadors reported home, by their earnest insistence to the Protector -that the articles had been signed with perfect knowledge on both sides -of their contents, that he passed from the point. Whatever the object -may have been in thus raising a discussion at the last moment as to the -extent of the British seas, there is little doubt that the circumstance -would prove useful to De Witt in his difficult and manifold manœuvres -to get the Act of exclusion of the House of Orange adopted. - -The treaty of peace, which had been signed by the plenipotentiaries on -5th April, was ratified by the Protector on 19th April, and proclaimed -with due solemnity on the 26th May. It was received with rejoicing both -in this country and the Netherlands.[799] - -Comparison of the treaty as completed[800] with the original draft -shows how thoroughly the Dutch plenipotentiaries had eviscerated the -parts dealing with the sovereignty of the sea, and stripped it of -almost all the phraseology which might imply such sovereignty. The -articles imposing tribute for the liberty of fishing; stipulating for -the visitation and search of vessels; restricting the number of their -men-of-war in the British seas; the Plantagenet claim for the guarding -of the sea; the declaration that the dominion of the British seas -belonged to England,--all had been wiped out. Cromwell indeed succeeded -in retaining the term “British seas” in its original ambiguity; but -both he and his commissioners admitted (verbally) that it meant, in -reference to the salute, only the narrow sea--a statement which was in -contradiction to the instructions issued to the naval officers, and to -the practice both before and afterwards. The clause providing for the -striking of the flag was saved, but only in a mutilated form. It ran -as follows: “That the ships and vessels of the said United Provinces, -as well those of war as others which shall meet any of the men-of-war -of this Commonwealth in the British Seas, shall strike their flag and -lower the top-sail, in such manner as the same has ever been observed -at any time heretofore under any other form of government.”[801] - -This, as the States-General took care to point out to their -fellow-countrymen, was no more than they had voluntarily agreed to do, -and had instructed Tromp to perform, previous to the declaration of -war. It was, however, the first time the custom had been recognised in -a treaty. - -After the conclusion of peace, the English naval commanders took -pleasure in vigorously enforcing their right to the “honour of the -flag,” and, as above stated, notwithstanding the verbal limitation made -by Cromwell and Thurloe, they did not confine the demand to the narrow -sea. Within a few weeks of the proclamation of the treaty, and before -its details were known to the fleet, Vice-Admiral Lawson encountered -the “bellicose” De With off the north coast of Scotland. The Dutch -admiral with three men-of-war was convoying seventy sail bound for -Greenland, and he at once struck his flag and fired a salute, which the -English returned. He also “submitted to a search,” though stating that -it was not customary for men-of-war to do so. “De With,” wrote Lawson, -“begins to know his duty, being very submissive, acknowledging the -sovereignty of England in the seas, and yielding as much as could have -been required of any merchant ships.”[802] - -In the south the Dutch were not always so compliant, and disputes with -the English officers sometimes arose as to whether the place where the -striking of the flag was demanded was or was not within the British -seas. Thus, Captain Cockraine, in the _Old Warwick_, met a fleet of -Holland merchantmen under convoy of a man-of-war between the Lizard and -Ushant. The merchant vessels struck their top-sails, but the man-of-war -refused to strike, on the ground that he was not in the British but -in the Spanish seas. Cockraine refrained from firing, as the ship was -surrounded by others and there was “much wind.” Instead, he wrote to -the Admiralty. “I want to know,” he said, “how far is intended by the -British Seas, and how far our power reaches, so that we may make no -unnecessary broils.” There is nothing to show what answer he got; but a -week later he encountered twenty-six Dutch merchant vessels bound for -the Mediterranean, who refused to strike, and he had to fire thirty -guns among them before they submitted.[803] About the same time, a -States’ man-of-war convoying a fleet of Hollander merchantmen met -Captain Heaton, in the _Sapphire_, and did not strike until a shot was -fired. Heaton sent a message to the commander saying that he had not -fulfilled the articles of peace, and that the keeping of his flag and -top-sail aloft when within shot of one of the ships of the State of -England was a great abuse, and a gross affront by the States of Holland -to the Commonwealth. To which the Dutch captain replied that if he -had shot back at the _Sapphire_ he would have been quite justified, -as, being on his own coast, he was not bound to strike, and had done -so not out of duty, but from “brotherly love,” and he then re-hoisted -his top-sails and flag. Heaton deliberated whether or not he should -fight the Dutchman for doing this, but refrained. He, too, wrote to the -Admiralty asking how he should act in similar cases in future.[804] - -The authorities at the Admiralty were always sparing in advice on such -matters. They showed the same reticence as the Government in defining -the extent of the British seas, and for the same reason--that they did -not know themselves. This reluctance was shown, and a partial glimpse -afforded, in a letter to General Montague (afterwards Earl of Sandwich) -which Richard, Cromwell’s son, wrote during his brief tenure of the -Protectorate. Telling him to demand “the flag” of such foreign ships -of war as he might encounter in the British seas, he remarked that -there had been “some doubt” as to how far the British seas extend. Not -unnaturally, “Tumble-down Dick” shrank from plunging into a matter -which had puzzled the great Oliver and every one else. “Not being -willing,” he said, “to determine that in our instructions, we rather -put in general terms the ‘British Seas’ only. We judge there is no -question of all the sea on this side the Shagenriffe;[805] on the other -side [the Baltic] you have need be tender, and to avoid all disputes -of this nature, if it be possible, because war and peace depend on -it.”[806] - -Disputes about the flag were not the only differences that arose on -the sea. At the end of September 1654 complaints came from Yarmouth -that the English fishermen were being molested by the Dutch in the -herring fishery there. They had come, it was alleged, with a multitude -of busses, “far above a thousand sail,” and, contrary to the custom -before the war, “and against the laws of this nation,” shot their nets -so close to the sands that the English were crowded out and hindered -in their usual fishing. The Dutch busses occupied a space of more than -forty miles adjacent to the coast, and the English fishermen were -afraid to use their nets lest they lost them. When they remonstrated -with the foreigners for coming so near the shore, they were vilified, -and muskets and “great guns” were shot at them.[807] By the direction -of Cromwell and the Council, the complaints were transmitted to -the ambassadors, who were still in London, and they requested the -States-General and the commanders of the ships guarding the busses to -make every effort to avoid giving cause for complaint. In the inquiry -which followed, the Dutch fishermen denied the charges against them, -and in turn accused some of the Englishmen of shooting at them, cutting -their ropes, and calling them dogs, rogues, and devils. They stated -that they had carried on the fishing in the old accustomed way, the -English usually fishing peacefully along with them.[808] - -Under the Commonwealth and Protectorate very little was heard of -schemes for establishing fishery societies, such as appeared and -disappeared so frequently in the preceding reigns and afterwards. -That the Puritan spirit was not antagonistic to projects of the kind -was shown by proposals made in 1649. One of these contemplated the -employment of Dutchmen to establish “a fishing trade” in England. It -was referred by the Council of State to Sir Henry Vane and Alderman -Wilson, with what result does not appear. Another, briefly described, -was to set up a fishing trade for the English nation;[809] and about -this time the attention of some writers on commercial matters was -directed to the same end. The only thing apparently effected was the -gift to the Corporation of the Poor in London of some of the Dutch -busses captured in the war, to be used in fishing on the English coast. -During this period of our history the Government had other things to -think about than the launching of fishery schemes. Cromwell, however, -at the conclusion of the war, renewed the licenses to the fishermen of -Dieppe and Calais to fish in the seas between England and France, at -the usual times and places.[810] - - - - -CHAPTER XII. - -CHARLES II. - -THE SECOND DUTCH WAR. - - -The Restoration, in 1660, made no change either in the national -sentiment or the national policy of England concerning the sovereignty -of the sea. Charles II. encouraged the pretension with as much zeal -as had been shown by his father, or by the Commonwealth and the Lord -Protector; and he was more astute than any of his predecessors in -taking advantage of the national feeling with regard to it in order to -carry out his own selfish policy. Under the pretence of maintaining -the dominion of the sea, a base and treacherous war was waged against -the United Provinces in circumstances which will for ever sully the -reputation of the king. The measures at first taken were, however, of -a peaceful kind. Commercial jealousy of the Dutch was still a strong -factor in England. As firmly as ever the opinion was held that the -primary source of their great trade, shipping, and wealth lay in their -fisheries, which also formed a great “nursery” of seamen for the navy. - -As in the reign of Charles I., it was therefore towards the development -of British fisheries that efforts were first directed. The means taken -with this view were twofold: the taxation of imported fish which -had been caught by foreigners, and the creation of great fishery -associations like those which had been established earlier in the -century. The Navigation Act, which was passed a few months after the -Restoration, while more oppressive to Dutch commerce and shipping than -the Act of 1651, was less stringent in this particular. The measure -of the Rump Parliament prohibited the importation or exportation of -fish, or its carriage coastways, unless such fish had been caught -by subjects. This prohibition was ineffective,[811] and it was now -replaced by the imposition of double customs on all kinds of dried -or salted fish imported, if caught or brought by vessels other than -English.[812] Three years later, the importation of fresh herrings, -cod, haddocks, and coal-fish was absolutely prohibited unless they -had been taken and imported in vessels certified to be English.[813] -With the view of still further promoting the fisheries, the same -prohibition was afterwards extended to cured fish and certain other -fresh fish,[814] which practically restored the provision of the first -Act of 1651. To a large extent these variations were due to the trade -rivalries that existed in England, the party which was uppermost at the -time forcing the measures that were most in its interest. - -Besides protective duties and monopolies, more direct means of -encouraging the fisheries were tried. The always attractive idea was -revived of establishing a great national fishery society, which, on -the one hand, would enrich those who supported it with their purse, -and on the other hand would increase the prosperity and the power of -the country. Simon Smith, who had been the agent of the Royal Fishery -Society in the reign of Charles I., lost no time in presenting to the -king his two books on the subject, along with a petition in which he -dwelt upon the advantages that would accrue to the nation from the -labours of such an association.[815] Smith recommended that all the -corporations and county towns in the kingdom should conjointly raise -a stock to buy hemp and other materials to equip busses, which were -to be built at the seaports nearest to them and sent to the fishing -at Shetland; and he calculated, after the usual fashion, that each -buss would maintain twenty families in work, “breed country youths to -be mariners,” and cause many ships to be employed in exporting the -herrings and bringing back commodities. - -Charles was apparently impressed by Smith’s arguments. Within two -months of the Restoration he caused a letter to be written to the Lord -Mayor of London, referring to the good done by the Society formed in -1632, “as by the book called the Royal Herring Busse Fishing (_sic_) -presented to him, plainly appeared”; requesting particulars to be -obtained of all the poor inhabitants within each ward who were in want -of employment; requesting that the Lord Mayor and Aldermen should -raise a stock by a free subscription to fit out a buss or fishing -vessel for each ward; and that storehouses should be built in suitable -places about the river Thames, provided with nets, casks, salt, and -all things in readiness. The busses were to attend the fishing at -Shetland, according to the “prescribed orders in the aforesaid book,” -and the king declared he would recommend the same course to all the -cities and towns throughout the kingdom, so as to make it a national -employment.[816] - -The assistance of Parliament was also called in. On 8th November 1660 -the House of Commons remitted “the consideration of the fisheries” to -the Committee for Trade and Navigation, who were asked to inform the -House “what they thought necessary for the regulation and advancement -of that trade.”[817] The Committee’s report does not appear to have -been preserved, but on 8th December a “Bill for Encouraging the -Fisheries of this Kingdom” was introduced. It was remitted to a large -committee, including the members for the seaport towns, and being -read a third time on 27th December, was sent up to the Lords.[818] It -was, to a large extent, directed against fishing by foreigners on the -British coasts and the use of destructive methods of fishing. One of -its clauses prohibited trawling, whether by subjects or foreigners, -within eight miles of certain parts of the coast. The fate of this -important measure was unfortunate. The Parliament was dissolved two -days after it reached the Lords, and nothing further was heard of -it.[819] - -In the following year a measure dealing with the fisheries was passed -by the Scottish Parliament.[820] The preamble contained the common -declarations as to the value of the fisheries to shipping and commerce, -to the navy, in the employment of the poor, and as furnishing the -materials for a great native export. The Act provided for the formation -of societies and companies of free-born Scotsmen, each member to supply -at least 500 merks Scots as stock, and they were to receive various -privileges and immunities, including power to erect houses for the -fishing trade wherever it was most convenient, a “limited allowance” -to be paid for the ground. An absolute monopoly of the export of -fish, fresh or cured, was granted to the companies; foreigners were -prohibited from curing herrings or white fish on land, or erecting -booths for the purpose,--a provision aimed against the German merchants -at Shetland,--but encouragement was given to foreign fishermen -to settle and become naturalised in Scotland, and even to become -burgesses, and they were to be exempt from taxation for seven years. -The importation of everything required for the fishery, including -“Holland nets,” was to be free of custom dues; the exports were to be -similarly exempted, and the “teind” and “assize” herrings were to be -remitted for nine years. - -The provisions of this Act differed essentially from the scheme -proposed by Charles I. in 1630, which aroused so much opposition, -inasmuch as the companies were to be composed solely of Scotsmen. The -question of the territorial or “reserved” waters belonging to Scotland -was thus avoided. It appears, indeed, that the Act was due to the -representations of the Royal Burghs, for in the preceding autumn they -expressed a desire for the “erection of the fishing trade in Scotland,” -and resolved to bring the subject before the next Parliament.[821] -Little was done in Scotland under this Act. A company was formed, -which, however, seemed more desirous of misusing its privileges than -of fostering the fisheries, if we may judge from a petition of the -burghs to the Lords of the Exchequer, praying that the company might -be restricted to import nothing but what was necessary for the fishing -trade. The town of Musselburgh also was empowered to equip busses, and -various towns in Fife applied for and received permission to fish in -the northern seas. The Scottish society became an incubus, and in 1690, -when its function seems to have shrunk to the mechanical exaction of a -tax of £6 Scots per last of herrings exported from Scotland, the Act -under which it had been formed was repealed.[822] - -In England the efforts to establish a fishery association met with -but little more success, although the king showed an active interest -in its promotion. On 22nd August he issued a commission under the -great seal, appointing his brother, the Duke of York, and twenty-nine -noblemen, including all the great officers of the Court, with six -others, as the “Council of the Royal Fishery of Great Britain and -Ireland,” to which he assigned various privileges and monopolies. To -encourage the building of busses, the king “requested” that wharfs, -docks, and storehouses should be built on the Thames and in all the -ports of the kingdom for their accommodation and use; all the “returns” -or commodities brought back from foreign lands for the fish exported -were exempted from customs for seven years; all victuallers, inns, -alehouses, taverns, coffee-houses, and the like, were to be bound to -take from one to four, or more, barrels of herrings from the society -yearly at thirty shillings a-barrel, “until foreign vent be attained to -perfection”; each barrel of pickled herrings or cod-fish brought into -the realm by the Flemings, or others, was to be taxed half-a-crown, -the tax to be paid into the coffers of the society, and the protection -of the State was to be given to their fishing vessels and the vessels -employed in exporting fish. It was further provided that the money -necessary for the scheme should be obtained by a lottery, to be set up -for three years, and by a collection in every parish in the kingdom. - -A few days later, Charles issued letters-patent saying that he had -requested a bountiful subscription from London to fit out fishing -vessels, which should belong to the wards, and recommending the -same to the whole country, as the Hollanders had so engrossed the -fisheries that the fishing towns were greatly decayed; the local -officers were to see to the collections being made, the monies to be -paid to the high-sheriff and by him remitted to the Earl of Pembroke, -who was appointed treasurer. Those who subscribed to the stock were -to pay their money in three instalments to Mr Thomas King, a London -merchant and member of Parliament, who became the moving spirit in the -project; and the adventurers were to have the option of withdrawing -after three years, on giving six months’ notice.[823] Literary puffs -were not neglected. A highly-coloured account of the value of the -Dutch fisheries (founded mainly on the Raleigh tract) and of the -rosy prospects of the society was published “by command.” The cost -of a buss, equipped and provisioned for four months, was set down -at £835; the herrings caught in that time were calculated to fetch -a round £1000, giving an immediate profit of £165 after meeting all -expenses.[824] - -Notwithstanding the active support of the Court and the energy of -many agents, subscriptions to the fishery society filtered in but -slowly. The sum collected for it in the London churches in the year -1661 amounted to the paltry total of £818, 6s. 4½d.--scarcely enough -to set forth one buss,--and in the autumn of 1664 it was reported that -the amount collected throughout England and Ireland was only £1076. -The lottery, too, from which a great deal was hoped, gave rise to much -corruption, confusion, and dispute, without notably enriching the -society.[825] In these depressing circumstances recourse was again -had to Parliament. On 5th March 1662 a “Bill to confirm his Majesty’s -letters patent concerning the fishing trade” was introduced into the -House of Commons and remitted to a committee; but it ultimately became -transformed into a mere local Act dealing with pilchard-fishing.[826] -The king was not yet discouraged. The Masters of the Trinity House -were consulted in July as to the cost of ten busses he had resolved -to build, and the amount required--£9000--was actually handed over to -Mr Thomas King. Charles further offered to pay £200 to every person -who had a new English-built fishing-buss ready for the fishing before -the middle of the following year.[827] To facilitate the success of -the society on the foreign markets, an Act was passed in 1663, after -considerable discussion, to make the use of the Dutch system of curing -and packing herrings compulsory, so as to avoid abuses, and bring the -English-cured herrings into repute.[828] - -At a meeting of the Privy Council a few months later, Sir William -Batten, Sir Richard Chaterton, and Sir William Ryder were appointed to -formulate proposals for the organisation of the Royal Herring Fishery, -and, after consultation with Simon Smith and Mr Thomas King, it was -resolved to adopt the Dutch system and regulations and to go on with -the scheme.[829] The next step was the issue by the king in the spring -of 1664 of another commission under the great seal, by which the Duke -of York and thirty-six assistants were incorporated as Governors -and Company of the Royal Fishery of Great Britain and Ireland; the -Lord Mayor and the Chamberlain of the City of London were appointed -treasurers.[830] - -In spite of all efforts, such as they were, extremely little was -done by the society before the outbreak of the second Dutch war. The -slovenly way in which the business was managed and the corruption in -regard to the finances were notorious. Pepys, who was a member of the -council of the society, and had grave misgivings as to the issue of -their labours, gives amusing glimpses of the proceedings in his Diary. -He examined the accounts, and declared that “the loose and base manner -that monies so collected are disposed of in, would make a man never -part with a penny in that manner.” The Duke of York and the members did -not even meet to read the king’s commission until July, and the later -meetings were often futile from the want of a quorum. “A sad thing it -is to see,” says Pepys, “so great a work so ill followed, for at this -pace it can come to nothing but disgrace to us all.”[831] - -The failure of the attempt to establish a great national fishery to -expel the foreigner from the British seas, after five years’ endeavour, -was very agreeable to the Dutch, who had watched the proceedings with -close attention, and had tried, openly and secretly, to hinder success -whenever they had an opportunity. Immediately after the Restoration, -the States-General, anxious to come to a good understanding with -Charles, sent special ambassadors to London to arrange a treaty -of friendship and alliance, and to renew previous treaties.[832] -The negotiations which ensued dealt, among other things, with the -fisheries, the flag, and the sovereignty of the sea. The object of De -Witt, the great Dutch Minister, was the usual one of his countrymen on -similar occasions--viz., to secure as far as possible the commercial -and other privileges which had been granted by the Intercursus Magnus. -Charles, on the other hand, wished at the very least to retain all the -concessions that Cromwell had secured by the treaty of 1654.[833] - -When the Dutch ambassadors arrived, or at all events when they began -negotiations in London, the House of Commons had already taken up the -question of the fisheries. Action of this kind always occasioned the -Dutch anxiety. They knew it was directed against their predominance -in a vital industry, and that it was usually followed by troublesome -claims to the sovereignty of the sea and to an exclusive fishing on the -British coasts. Here were all those questions raised in threatening -fashion in the Bill passed by the Commons and sent up to the Lords. -Moreover, English privateers, sailing under Swedish colours, had lately -been seizing Dutch herring-busses, and though protests were made by the -ambassadors, no redress was obtained.[834] The debates and proceedings -in the House of Commons attracted immediate attention in Holland.[835] -De Witt at once took up a firm attitude. He declared that the new -pretension of England to the dominion of the seas and for the ruin of -the Great Fishery would meet with the most determined resistance of the -Republic; and, while consoling himself with the thought that reason -had always prevailed against it in the past, he urged the ambassadors -to use every means in their power with the Peers and the king in order -to frustrate it. The Marquis of Ormonde, who was an intimate friend -of Beverwaert’s and one of Charles’s Ministers, was bribed to use his -influence to the same end. This nobleman informed the ambassador that -when he was asked to favour the fishery project, he had answered that -while he desired the advantage of the nation as much as any man, it -would be first necessary to prepare for war, as it was in reality an -affair of state; and he took credit with his Dutch friend for having -induced many members of Parliament to oppose the Bill.[836] Whether -these intrigues had any influence in causing the fishery question to be -so frequently “laid aside” in Parliament can only be surmised. - -So much concerned were the States-General about the provisions of the -Bill, that they despatched a special letter to be presented to the -king, in the hope, as De Witt said, that the resolution of the Commons -might be suspended and its execution prevented.[837] But when it became -known in Holland that the Bill had been shelved by the dissolution of -Parliament, and that Charles was unlikely to summon another Parliament -for a long time, the ambassadors were told to withhold it, but at -the same time to make its substance known to the Ministers, so that -the king might learn of it indirectly. They were also warned to say -nothing, in the negotiations for the treaty on which they were engaged, -that might allow it to be supposed that the right of the Dutch to fish -in the seas around the coast of England was derived from any treaty -or compact, or from any concession on the part of England. On the -contrary, it arose _jure proprio_ from the law of nature and the law of -nations, the stipulation in the treaty of 1495 merely expressing this -mutual right of free fishery with the view of preventing violence on -either side. - -The negotiations dragged on slowly. The English commissioners showed -no anxiety to discuss the questions of the fishery, commerce, or -navigation, about which the Dutch were most concerned. Taking their -stand on the Navigation Act, which Parliament had recently passed, they -declined to listen to any proposal for free fishing on the English -coast. The Dutch ambassadors grew hopeless of being able to conclude a -treaty satisfactory to the States, and this feeling was strengthened -by the jealousy and resentment which the English began to manifest -concerning the simultaneous negotiations that were going on between -Paris and The Hague.[838] Foreseeing the difficulties likely to arise -with England over the fishery question, De Witt had made a dexterous -move. In the negotiations with France for a treaty between the two -countries, he proposed that an article should be inserted reciprocally -guaranteeing the right of free fishing in the sea to the subjects of -each nation against any that might endeavour to interfere with it. A -similar proposal had been made to France in 1653, but was rejected -owing to the desire of the French Government to avoid irritating -Cromwell.[839] Even now, when international conditions were more -favourable for its acceptance, the French looked askance at it, and -asked the States to define precisely their position as to the right of -fishery. They said in reply that they claimed the right of fishing in -the open sea by the law of nations; that it was a right independent of -any treaties, which merely illustrated and explained it, and was like -the liberty of commerce and navigation--free and open to all. The two -countries should therefore, it was urged, agree mutually to support -one another in the free exercise of this common right. In substance -this was clearly a demand that France should combine with them to -resist the English pretension to the sovereignty of the sea, on the -point in which it chiefly affected the United Provinces--namely, the -fishery. The French met it by suggesting that, as a _quid pro quo_, the -States should guarantee them in the same way against the claim of the -English to make French ships lower their flag to them in the narrow -seas. France, as we have seen, was not troubled by England about the -fishery, although many French vessels fished off the English coast. -On the other hand, the Dutch had formally agreed to strike to English -ships by the treaty of 1654,--a ceremony that France declined to -render, and avoided as far as possible. De Witt saw that if the States -gave the guarantee desired, it would place in the hands of the French -the power to compel them to take up arms against England at any time -they chose, and he instructed the Dutch ambassadors, if they could not -evade the proposal altogether, to request a declaration, in writing, -of the precise claims concerning the striking of the flag which the -King of France put forward as against the King of England. He said the -obligation of the States to strike was indisputable; but it was not -a recognition of England’s pretended dominion of the sea, but merely -a formal deference that republics had always shown to monarchies. De -Witt privately expressed the opinion that the French would hesitate to -formulate in writing any claim of that kind, and the result proved his -foresight. The French ambassador in London made certain overtures to -Charles without receiving a satisfactory reply, and the French proposal -for a guarantee about the flag was dropped. - -A diplomatic tussle then took place as to whether the word “fishery” -should appear in the treaty. The French were anxious to keep it out, -and the Dutch as desirous that it should be expressly included. Later, -De Witt seemed disposed to concede the point, provided other words -could be found which would “clearly stipulate, in express terms, that -if their subjects were molested in their fishery the French would carry -out against those who molested them the guarantee promised.” At this -stage, however,--March 1662,--the Dutch towns insisted on the fishery -guarantee being absolutely explicit. The states most concerned--Holland -and West Friesland--unanimously passed a resolution that if France -refused to agree to the word “fishery” being inserted, the negotiations -should be broken off and the ambassadors recalled. Louis XIV. then gave -way. “I must admit,” he wrote to his ambassador in London, “that I have -the same interest in this guarantee as the Dutch, since the right of -fishing may just as well be refused by England to my subjects as to -those of the States-General.”[840] The treaty was signed on 27th April -1662, and in the fourth article the two contracting Powers mutually -agreed to assist one another in protecting their fishermen from those -who might molest them.[841] - -The stipulation in the treaty with France was a notable triumph for -De Witt. For the first time in their history the Dutch had succeeded -in formally binding another Power to help them in resisting the -English claims to the sovereignty of the sea, so far as concerned the -liberty of fishing. Should Charles II. wish to emulate the exploits -of his father by sending a fleet to force licenses on the Dutch -herring-busses, he would now have to reckon on the combined opposition -of France and the United Provinces. The triumph was, however, a barren -one, and the treaty had no practical effect. Within a few years the -Dutch Republic was in the throes of war, first with England, and then -with England and France, and other treaties took its place. It had, -however, an immediate influence upon the policy of Charles, who feared -an alliance of the two Continental Powers against England. When he -heard of the negotiations about the fishery guarantee he tried, both -at Paris and at The Hague, to prevent an agreement being reached, and -the obstacles which he interposed delayed the conclusion of the treaty. -Sir George Downing, the English ambassador in Holland, who had taken -a prominent part in the debates in the Commons on the Fishery Bill, -and whose hostile sentiments to the Dutch were notorious, took up an -unusual attitude. He assured De Witt that since the United Provinces -were a republic and did not seek to encroach on England, they might -freely continue their fishery without fearing the least trouble; but -England could never allow that France, a monarchy, and a bold and -enterprising nation, should have unrestricted liberty of fishing -on the English coasts. It was feared, he said, that by its fishery -the abundance of mariners and the increase in shipping which would -follow would make it formidable to England, and this the English, in -accordance with their political maxims, would prevent. The French had -frequently requested and received licenses for a limited number of -vessels to fish in English waters, sometimes for the king’s table. If, -therefore, he continued, the proposed guarantee were agreed to, the -Republic as well as France would be _de facto_ at war with England, -because England would never leave the French fishermen at peace. -The same language was used by Downing to many of the deputies of -the States-General, in the hope of frightening them, but it made no -impression. “I have declared to Downing,” wrote De Witt, “that sooner -than acknowledge this imaginary sovereignty over the seas, or even -receive from the English, as a concession, that freedom of navigation -and fishing which belongs to us by natural right and the law of -nations, we would shed our last drop of blood.”[842] - -The inflexible attitude of De Witt, and the actual conclusion of the -treaty with France, extinguished for a time the hope of compelling the -Dutch to acknowledge the right of England to the exclusive fishing -along her coasts, and the proposal was not pressed upon the ambassadors -in London during the dilatory negotiations for the Anglo-Dutch -treaty. With regard to the striking of the flag, Charles received -more satisfaction. The tenth article of the treaty, which was signed -at Whitehall on 4/14 September 1662, stipulated that Dutch ships, -whether men-of-war or others, should strike their flag and lower their -top-sails on meeting an English man-of-war on the British seas. It was -indeed precisely the same clause as that contained in Cromwell’s treaty -of 1654, except that certain verbal alterations were made in accordance -with the change in the form of the English government.[843] - -In the earlier years of the reign of Charles II., comparatively little -was heard of disputes about the flag, which afterwards became so -frequent and important. One instance occurred in 1662, when a Dutch -vessel that was in Yarmouth Roads without a commission was taken to the -Downs for refusing to lower her sails to a king’s ship.[844] A case -of much greater interest happened in the previous year, when Captain -R. Holmes, in command of the _Royal Charles_, allowed the ship of the -Swedish ambassador to pass him on the Thames without compelling it to -strike. As the English Admiralty were always punctilious in enforcing -the salute on state occasions, as when a foreign ambassador was -concerned, Holmes for his remissness was deprived of his command.[845] -The case of Holmes had some interesting consequences. It revealed -once more the want of precise knowledge at the Admiralty as to the -rules which should be followed in making foreign ships strike their -flag. The Duke of York, who was the Lord High Admiral, was himself -ignorant on the point, and he asked the principal officials about -it--Sir George Carteret, the treasurer; Coventry, his own secretary; -Sir William Batten and Sir William Penn, commissioners of the navy and -experienced naval officers; and lastly Mr Pepys, who was the clerk to -the navy. It appears, however, that though they all “did do as much as -they could,” the information they possessed was of the scantiest kind. -Pepys tells us that he knew nothing about it himself, and was forced -“to study a lie” by fathering an improbable story on Selden, on the -spur of the moment; but on the same evening the genial diarist bought -a copy of Selden’s _Mare Clausum_ and sat up at nights diligently -studying it, with the view of writing a treatise “about the business -of striking sail” to present to the Duke. After nearly six weeks’ -inquiry and cogitation the Admiralty officials “agreed upon some things -to answer to the Duke about the practice of striking of the flags,” -which encouraged Pepys to persevere with his treatise, but it was never -completed.[846] - -A case of greater international importance occurred in the -Mediterranean in the following year. Vice-Admiral Sir John Lawson was -co-operating with De Ruyter against the Algerine pirates, and when the -fleets met, the Dutch admiral saluted the English flag with guns and by -lowering his own flag. Lawson returned the guns, but he did not strike -his flag, as was the custom in distant seas, and De Ruyter, indignant -at the slight, resolved not to strike his flag in future either, on -the ground that he was not in British waters, and that he had verbal -orders which authorised him in refusing. When De Witt heard of his -intentions, he immediately sent instructions in the name of the States -of Holland strictly to observe the treaty, and declaring that the -lowering of the flag must not be confined to British waters, since that -might be interpreted into subjection to English dominion of the seas. -If the English admiral again declined to lower his flag in return, De -Ruyter was merely to report the fact to the States.[847] The action of -De Witt was not designed simply to avoid a quarrel. As will be seen -later, it expressed his settled conviction and the fixed policy of the -Republic on this thorny subject. - -All such questions as to the flag and the fisheries were soon submerged -in the second Dutch war. The causes which brought it about were at -root the same as those which had led up to the first. Commercial -jealousy was always a smouldering flame, ready to burst into a great -conflagration. The English believed that the Dutch had juggled them out -of their trade and trading rights in several quarters of the globe, and -with some reason. But probably the real motive was succinctly stated -by Monk, now Duke of Albemarle, when he said that the essential cause -of the quarrels between the two nations was that the English wanted a -larger share of the trade of the Dutch. Charles himself, like his great -Minister, the Chancellor Clarendon, seems to have been disinclined to -the war, which, however, was advocated strongly by the Duke of York, -who supported the contention of the merchants that it would benefit -English commerce. Accusations were levelled against the Dutch of having -by fraud and stratagem driven English trade almost entirely from the -East and West Indies, and greatly reduced it in the Mediterranean and -in Africa. These complaints were echoed in Parliament, and in April -1664 a resolution was passed by the two Houses declaring that the -wrongs and outrages committed by the Dutch on our merchants in India, -Africa, and elsewhere were “the greatest obstruction of our foreign -trade,” and that the king should be asked to “take some speedy course -for redress.” John de Witt fruitlessly endeavoured by all honourable -means to avert hostilities. The warlike and marauding expedition of -Holmes (now restored to favour) against the Dutch settlements on the -west coast of Africa and in America was followed, as it was bound to -be, by the retaliatory expedition of De Ruyter, which gave the English -the pretext for declaring war in the spring of 1665.[848] - -The war was exceedingly popular in England, and large sums were -willingly voted by the House of Commons. Pepys tells us that the Court -were “mad” for it, and another contemporary writer says it was the -universal wish of the people.[849] Thus no appeal to the national -passion of Englishmen about the sovereignty of the sea was required -on this occasion, and such references as were made to the subject -were of a formal kind. One of the accusations which the Parliament -flung at the Dutch was that they had “proclaimed themselves Lords of -the South Sea; and, in contempt, shot at and use other indignities -to our royall flag, thereby affronting his Majesty and this nation.” -Then, in the preamble of the Act granting money for the equipment of -a fleet, it was declared to be “for the preservation of his Majesty’s -ancient and undoubted sovereignty and dominion in the seas”;[850] and -in his instructions to the Duke of York as Lord High Admiral, the king -said the great fleet he had prepared was “to assert his right to the -dominion of the Narrow Seas,” and for the mastery of the sea and the -security of navigation.[851] But these phrases were to be expected. For -the same reason, popular literature on England’s dominion of the seas -was on this occasion scanty, though some attempts were made to excite -national animosity by the familiar arguments.[852] - -The general course of the war, in which France, and then Denmark, -combined with the United Provinces against England, does not concern -us here.[853] It did not add fresh laurels to the brow of Charles -II. as Sovereign of the Sea. Three great sea-fights took place--off -Lowestoft, on 13th June 1665; in the Straits of Dover, from 11th to -14th June 1666 (the Four Days’ Battle); and off the North Foreland, -on 4th August in the same year. In the first and last the English -were successful; in the Four Days’ Battle the advantage lay with the -Dutch; but the war ended in naval disaster and national humiliation for -England. In June 1667, when the plenipotentiaries were quietly sitting -at Breda leisurely engaged in arranging terms of peace, De Ruyter, -with Cornelius the brother of John de Witt, suddenly appeared in the -mouth of the Thames, and sent up a squadron which seized Sheerness -and Chatham, and might have gone to London Bridge for all the king -could have done to prevent it. They burned the best ships of the great -fleet which was to have “asserted England’s dominion of the sea”; -London was paralysed with consternation and amazement,--Pepys locked -his father and wife in a bedroom to save them from the perils of a -sack,--and while Monk, the one stout heart among them, posted down to -Gravesend “in his shirt,” the libertine monarch was engaged with his -mistresses in pursuing “a poor moth” about the supper-room! For many -weeks afterwards, until the peace of Breda, De Ruyter rode triumphant -in the narrow seas, and England was in terror of a French invasion, not -knowing of the ignoble intrigue in which Louis and Charles were now -engaged. - -Passing from these notorious blots on English history, and before -considering the relevant business in the negotiations for peace, a -word or two must be said of some of the minor events and consequences -of the war. During its continuance the fisheries of England, and still -more those of the United Provinces, suffered severely. In January 1665, -before war was declared, but when it was obvious it might break out -at any moment, the States-General laid an embargo on the fisheries -and on all shipping,--a measure which, it was reported in England, -furnished them with 30,000 men for their navy. The stoppage of the -fishing was a heavy blow to those dependent on it, and advantage was -taken of the fact by the English, who tempted the Dutch fishermen by -offering licenses, for a nominal payment, which would enable them -to fish notwithstanding the war. The States of Holland, however, -forbade the acceptance of the obnoxious licenses, “considering that -it might be of very dangerous consequence, as making the inhabitants -of these countries indirectly tributary to the King of England”; and -the treasurer of the herring fishery at Maassluis, who had purchased -some of them, was severely censured and forbidden to make use of them. -Notwithstanding this patriotic resolution, it appears that private -cupidity in some cases prevailed, and a few licenses were accepted -in the following year. One of these, dated 21st November 1666, was -granted on the petition of one, Gisbert Petersen, of “Scheveling” -(Scheveningen), the captain of the “sailing waggons” of the Prince of -Orange, who “wafted” the king on board his fleet at the Restoration. -It gave him authority, in his vessel, the _Young Prince of Orange_, -“to fish in any part of our seas, not being within ... leagues of -land,” and to carry the fish which were caught to Holland; and in -certain circumstances he was to have the freedom of English ports. The -Scandinavian name of the recipient, and the circumstances recited, -throw doubt on the genuineness of the case. The license was renewed on -7th June 1667.[854] - -A much more interesting concession for fishing in all parts of the -British seas, irrespective of distance from shore, was granted by -Charles in the same year, though not to subjects of the United -Provinces. The citizens of Bruges, in Flanders, where the king had -received friendly treatment when in exile, petitioned him to allow -all the sworn burgers and citizens of that city to fish “freely and -frankly” at all times, to the number of fifty busses or other vessels -fit for fishing, on the seas and coasts of his kingdoms; to enter the -ports and rivers to buy necessaries, for shelter, and to dry their -nets, and to depart without molestation, on giving security not to -sell fish to his enemies.[855] Charles granted them a charter under -the great seals of England and Scotland, giving them liberty to fish -with fifty vessels at a time for herrings or any kind of fish in the -British seas, up to the coasts or shores, with the privilege of drying -their nets on land, and using English or Scottish ports in security. -The Duke of Lennox and Richmond, the High Admiral of Scotland, and -others concerned were commanded to treat the vessels of Bruges with -friendship, “in whatever part of the sea, whether near the shores, in -rivers, or ports” they might be.[856] The fishermen of Bruges continued -to fish near our shores, in terms of this charter, and even from our -harbours, until 1850, and the charter was regarded by the English -authorities as spurious.[857] - -By granting this charter, it is not unlikely that Charles also hoped -to strike a blow at the fisheries of the Dutch Republic. While -refusing to allow their subjects to accept any compromising English -license or concession for fishing, the States-General tried to bring -about a mutual and equitable arrangement. Early in 1665 they issued -instructions that English fishermen should not be attacked till further -orders; and in October of the same year--that is, when, in peaceful -times, Dutch fishermen would have been taking part in the profitable -fishing at Yarmouth--one of their naval officers delivered an official -letter to the Bailiffs of that town, intimating that orders had been -given to all their admirals, commanders, and captains at sea that no -English fisherman was to be molested, and expressing a hope that a -similar Christian forbearance (_medelijdentheyt_) might be shown to -Dutch fishermen on the part of England. No answer was returned, but -an emphatic response was made a week or two later when the _Sapphire_ -seized several Dutch fishing vessels and brought them into port,--a -circumstance which also shows that the embargo had not been strictly -observed.[858] In the following year the embargo was officially -continued, the “small” or fresh-herring fishery carried on along the -coast being excepted;[859] but after the defeat of the English fleet -in the beginning of June, the deep-sea fishing appears to have been -partially resumed. Early in August reports reached London from Yarmouth -and Whitby that the Holland busses and doggers were fishing off the -land, and had been seen by our fishermen. They were said to number 400 -and to be guarded by eight convoyers, and it was rumoured the English -fleet had gone in pursuit and sunk eighty busses; and a few doggers -were in reality brought in. It was again reported later that a fleet -of busses was fishing off the coast of Suffolk, attended by seventeen -ships of war.[860] If the retaliation of the Dutch was less effective, -it was because the English fishermen carried on their industry close -to their own ports; to which, moreover, they were often confined by -fear of the Dutch privateers, which boldly hovered about the coast, and -the sight of a sail was enough to frighten them back.[861] After Van -Ghent had burned the English ships in the Thames and the Dutch were -supreme at sea, the States of Holland withdrew the embargo on the Great -Fishery, and when peace was proclaimed the _schuyts_ again took part in -the autumn fishing at Yarmouth.[862] - -It has been already mentioned that France, which had bound itself by -the recent treaty to aid the United Provinces, declared war against -England in January 1666, but Louis showed great reluctance to begin -actual hostilities; and one of the diplomatic obstacles which served -to delay the junction of the French and Dutch fleets referred to -the striking of the flag. A French squadron of thirty sail had been -equipped under the Duke de Beaufort, and Louis required that the Dutch -admiral should salute not only the Admiral of France, but the vice- -and rear-admirals; and further, that the French admiral should not be -required to lower his flag in returning the salute of the Dutch. The -States-General were willing that their admiral should strike to De -Beaufort first, but they demanded that the latter should return the -salute in a similar manner. The French, who were apparently anxious -to be placed in the same position as England with respect to this -ceremony, argued that the English did not re-salute the Dutch fleet by -striking the flag, but only returned the guns, citing the treaty of -1662 and the actual practice; and they proudly boasted that the flag -of the Admiral of France had never at any time been lowered to that -of any nation. To this De Witt replied that they were willing to give -the same respect to the French as they did to the English; that the -re-salute was not expressly mentioned in the treaty because it was a -well-understood custom on their own coast; and that in point of fact -the English did return the salute, as had been done by Admiral Montague -(the Earl of Sandwich) in 1661 and by Vice-Admiral Lawson on meeting -De Ruyter. If on some occasions it was omitted by the English, it was -on the seas they called “British,” and was to be attributed to the -claim they pretended to the dominion of the seas--a claim which France -and the Republic had solemnly agreed by treaty to resist. If a similar -claim was now advanced by France, it would argue a like pretension to -maritime sovereignty by a nation which had engaged itself to preserve -the liberty of the sea. Moreover, the salute at sea between the fleets -of two sovereign states was not an act of submission of an inferior -to a superior, but one of civility, honour, and respect, and should -therefore be mutual and equal. They, as a republic, offered to strike -first, and to keep their flag lowered until the French admiral had -struck and re-hoisted his flag. This discussion about the re-salute was -prolonged, extending from June 1666 to July 1667, for De Witt was not a -man lightly to agree to diminish the dignity of his country; and after -the peace conference met at Breda, and De Ruyter was master of the sea, -the Dutch roundly declared they would not strike to the French admiral -at all, unless he agreed to return the salute by dipping his flag, but -would only salute him with guns.[863] - -At the conferences at Breda Charles had little right to expect that he -would gain much, in view of the inglorious events at the end of the -war. He retained New Amsterdam (re-named New York), which Holmes had -taken in 1664, but he lost Poleroon and Surinam, and relinquished the -claims which had been put forward to justify the war. An important -concession was made to the Dutch by a modification of the Navigation -Act, for a repeal of which they pressed, by a stipulation, in separate -articles, that they might import into England in Dutch vessels all -commodities produced or manufactured in Germany or Flanders, for which, -it was claimed, the United Provinces were the natural outlet to the -sea; and all the essential articles of the commercial treaty of 1662 -were confirmed.[864] All pretensions to exclusive fishing off the -British coasts were withdrawn; the old stipulations of the Burgundy -treaties were not, however, renewed. - -With regard to the “honour of the flag,” De Witt, in the preliminary -negotiations, strove to come to an arrangement with France and Denmark, -who were also parties to the treaty, to compel England to relinquish -her claim to pre-eminence in this matter, especially by insisting -that English vessels should return the salute by lowering their -flag.[865] Charles was saved from this humiliation by the good offices -of Louis, and the article in the treaty of 1662 was simply repeated in -precisely the same words.[866] Another of the maritime articles gave -less contentment in England. We have already seen how persistently -the Dutch had struggled in deliberating on the terms of the treaty -of 1654 to restrict the application of the term “British Sea” to the -Channel. What they were then unable to accomplish was now conceded to -them. In the usual article about the cessation of hostilities on the -sea, it was specified that restitution of prizes should not be made -if they were taken “in the Channel or British Sea within the space of -twelve days, and the same in the North Sea; and within the space of six -weeks from the mouth of the Channel unto the Cape of St Vincent.”[867] -In the treaty with France, signed at Breda on the same day, the -French plenipotentiaries took care that the terms English Channel or -British Sea in the corresponding clause were omitted, the neutral if -indefinite phrase “the neighbouring seas” (_maria proxima_) being -substituted.[868] In the similar treaty with Denmark, the phraseology -was even less tender to English susceptibilities--namely, “in the -Northern Ocean and in the Baltic Sea and the Channel, &c.”[869] -However trifling such points may appear to us now, they had a real -importance in the seventeenth century, and the phraseology cited caused -some heart-burning in England as being derogatory to our rights to the -dominion of the British seas.[870] - -For some years after the conclusion of peace at Breda, and indeed up -to the opening of the third Dutch war, the question of the salute was -a frequent subject of international discussion. Dutch statesmen had -always wished to come to a definite arrangement with England about it, -for they saw that to leave it in ambiguity while the English looked -upon it as touching their national honour, was fraught with danger. A -whole series of points was in doubt, any one of which might furnish -occasion for war unless clearly defined and mutually understood. Was -a whole fleet or squadron of the States to strike to a single English -ship of war? Were they to strike to a frigate, or to a still smaller -ship, such as a ketch, or only to ships carrying the flag of an -admiral, vice-admiral, or rear-admiral? Was the salute to be returned -by the English in the same way, by dipping the flag and lowering the -top-sails as well as by guns? Within what parts of the sea was the -salute to be enforced, or differentiated, or the re-salute given? -English statesmen purposely left many of these points undefined, in -order to gain as wide a recognition of the ceremony as was possible, -and when disputes did arise with other Powers, to enable them to avoid -war or to make war as circumstances and policy might determine. They -held that England, and England alone, was the rightful interpreter of -what was due to her flag by ancient custom. On the other hand, the -Dutch Republic looked upon the whole business as a troublesome affair; -and as the greatest commercial nation of the time, whose chief interest -was peace, they naturally desired that the dubious points about the -salute should be permanently settled. - -Immediately after the conclusion of the Triple Alliance against France, -at the beginning of 1668,[871] De Witt, taking advantage of the good -feeling existing between England and the Netherlands, and especially -of the presence of Sir William Temple as English ambassador at The -Hague, proposed that a formal settlement should be made of the doubtful -points concerning the striking of the flag. Temple, who was a staunch -friend of the Dutch and was on intimate terms with De Witt, shared -this opinion. He thought that by a slight concession, or by a definite -agreement, England might count with some confidence on the support of -the States-General in any future quarrel with other nations about the -flag. The subject was formally raised by De Witt on a proposal for -a union of the Dutch and English fleets, in certain contingencies, -against France. He offered to give the same honour to the king’s ships -at sea as their ambassadors gave to his Majesty’s person, “to uncover -first and cover last”; but stipulated that any agreement about the -flag must not be regarded as an acknowledgment of England’s pretension -to the sovereignty of the sea, which the Dutch would “die rather than -do.” Knowing that it was a “delicate” subject to broach with the -King of England, he thought the negotiations might be opened by the -States-General sending a polite letter to Charles, laying stress on the -good relations between the two nations, and intimating that in order to -prevent sinister encounters which any new sourness might occasion, they -had issued orders to all their naval officers to strike their flag with -every mark of civility on meeting with the royal flag of England. The -king was then (according to the scheme) to inform the States-General -that he had received this mark of deference to his royal dignity with -singular satisfaction, and that he on his part would order his admirals -and commanders to re-salute the States’ flag. Temple thought the matter -was so “ticklish,” that it ought to be first broached verbally at a -fitting opportunity; and De Witt, in advising the Dutch ambassadors in -London to this effect, reminded them that the salute was merely a mark -of honour and respect, and that if anything was put into writing this -should be expressed. He added that he had never been able to understand -how it could be conceived that the free element of the sea, or dominion -over it, could belong to England or to any nation, and that in Holland -the common right of sovereignty of all nations over it was held to be -incontestable. - -When, about a month afterwards, the ambassadors spoke to the king, he -said he did not see how the question could be ambiguous, since it was -provided for in the treaty. They pointed out that the re-salute was -not mentioned, and then used the arguments which De Witt had put into -their mouths about its being a ceremony of respect which it would be -only reasonable and courteous to return, just as his Majesty would -do, sitting on his throne, in response to the salutations of the -ambassadors of the Republic; and they adduced one or two instances in -which the English ships had returned the salute. Charles told them they -were possibly thinking of the custom in the Mediterranean, which was -different from all the other seas (meaning the British seas), and said -he claimed nothing but the old practice; but he promised to look into -the matter. The ambassadors did not press the subject further, and the -important declaration they had been charged to make, that in future the -States’ ships would refuse to strike unless the salute was returned in -the same way, remained unspoken. Shortly afterwards, when the States -were asked to send some of their warships to strengthen the squadron -of Sir Thomas Allin, who was ordered to enforce the restitution of -some English vessels seized by the French, they refused, unless the -difficulties about the flag were first settled, and the discussion -continued throughout the summer. - -It is interesting to note, in view of the antecedents of the next war, -that the ambassadors were instructed to say that the States’ fleet -would not strike, even in the Channel, to a frigate or ketch, which -did not customarily carry the royal flag in the main-top, but only to -an admiral’s ship, or one carrying the royal flag. This contention -was promptly set aside by the Duke of York and Lord Arlington (the -Secretary for State); but De Witt, still clinging to the hope that a -“regulation” might be arranged, asked the ambassadors to find out the -instructions which were actually issued to the English captains serving -in the Downs, the Channel, the North Sea, the Mediterranean, and the -Ocean, as it was generally believed in Holland that outside the Channel -neither side should strike the flag or lower the sails to the other, -but that the States’ ships should first salute with guns alone, and the -English answer with guns also. In any case, if the principal fleets of -the two countries were combined for any purpose, or jointly brought -into action, it was to be first arranged that they should salute one -another with guns only, or at all events in an equal and reciprocal -manner, the Dutch always giving the salute first; and the ambassadors -were to insist earnestly and finally for a settlement. - -The ambassadors informed De Witt that, as was shown in the copy of -the instructions found on board the _Charity_, an English man-of-war -taken by the Dutch in the battle of Lowestoft, in 1665, and which -was published by Aitzema, the commander of an English man-of-war was -to compel every foreign ship, or ships, to strike their flag in the -British seas, and that in these seas no English king’s ship was to -strike to any foreign ship. In all other seas the English ship was -never to strike to a foreigner unless the latter struck first or at the -same time. According to this, they said, a single English man-of-war -could compel a whole fleet to strike their flags and lower their -top-sails in the so-called British seas, and it was forbidden for it -to strike in return. In all other seas, if the foreign ship did not -strike, the English would not strike, and no salute would be exchanged. -They said this was well known to be the regular formula in England, -and no distinction was drawn between the Channel and other “pretended -English seas.” The “British seas,” they said, according to the -Admiralty instructions, extended to Cape Finisterre, in Galicia, and -westwards, according to Selden, to America. It would be an excellent -thing, they thought, if they could succeed in drawing a distinction -between the Channel and the other seas, since their fisheries, the main -object of solicitude, were carried on, not in the Channel, but in the -North Sea. But as the whole subject was very delicate, they advised -De Witt to pass from it for the time and to allow things to remain -on their old footing; and to show the spirit in which the matter was -regarded in England, they sent him specimens of the coin issued by -Charles a few years before, which bore the king’s effigy on one side -with the inscription _Carolus a Carolo_, and on the obverse the figure -of Britannia, with the proud words, _Quatuor Maria Vindico_.[872] De -Witt, who had just arranged with Temple that the matter should be -brought to the notice of the king, acquiesced, but with reluctance. -He expressed satisfaction that they now at least knew more about the -English pretension, so that fresh hostility and war could be avoided on -that point; but that an English frigate or ketch should claim to compel -a whole fleet to strike was, he said, intolerable. And it was this very -thing that Charles selected to force war upon the United Provinces a -few years later.[873] - -It was not only with the Dutch that discussions arose at this time as -to the rights of the English to demand the salute. The astute Dutch -statesman, as was his wont, began to pull diplomatic wires at other -Courts in order to have the subject raised by them. The King of Denmark -in the following year proposed to Charles that new regulations should -be arranged with respect to the “salutes and civilities” at sea between -the men-of-war of the two nations. Charles declined the invitation. -He did not think it fit, he said, to make any new regulation on the -salutes at sea, “since there has never been any question made of the -constant practice in that matter, which we shall always observe.”[874] - -A renewed attempt to convince the French that it was to their interest -to curtail the English claim to the sovereignty of the sea had -consequences little dreamt of by De Witt. The Dutch Minister, clinging -to his principle, urged at Paris that Charles, who wished to be the -supreme ruler of the sea, ought to be forced to modify his pretension -and to give the salute in return. It had indeed been rumoured in London -that the French king had decided to forbid his naval commanders to -strike to the English, and even to compel both English and Dutch to -strike to his own flag.[875] Louis certainly raised the question at the -Court of St James’s, but in a different way. Colbert, his ambassador -there, secretly revealed to Charles the confidential negotiations which -the States-General had opened at Paris, in the hope that this mark of -confidence would make more easy his policy of detaching the King of -England from the Triple Alliance.[876] By this time Charles and Louis -were drawing closer together, and in order to prevent chance disputes -about the flag, a verbal arrangement was made through Colbert, in the -summer of 1669, that no salutes should be exchanged between English -and French men-of-war in the Mediterranean, nor should the ship of one -be expected to go to leeward of the other. Instructions of this tenour -were given to Sir Thomas Allin, who was on the point of leaving with a -squadron to chastise the Barbary pirates.[877] - -About this time the Duke of York and the officials of the navy began -to devote close attention to the rules regulating the salute and -the striking of the flag, and a number of memoranda were prepared -which described recent precedents, and dealt with other points. With -reference to recent practice, it was stated that the Earl of Sandwich -had struck in return to De Ruyter in 1661 or 1662; that Sir John Lawson -declared he would strike to none, and kept his flag aloft in Toulon -harbour; while Sir William Berkeley, serving under Lawson, refused even -to fire a gun on meeting De Beaufort, the Admiral of France, until he -was assured that the report attributed to him that he would force the -English to strike was unfounded. A statement was compiled of the number -of guns fired in salute to English vessels arriving in various foreign -ports, and rules were formulated with respect to the salutation of -forts and on other points. The general custom was that “the sea should -salute the land”--that is, the vessel first saluted the forts, except -on extraordinary occasions, as when a prince or an important foreign -embassy arrived. No foreign man-of-war was to be allowed to pass above -the ports at Gravesend and Sheerness, or at any other harbour, without -special permission from the Lord High Admiral or the governor of the -fort; all vessels were to keep in their flag as long as they were -in sight of the fort, and if they refused they were to be forced to -comply; salutes of foreign flagships were to be answered gun for gun, -and of other foreign ships with two guns less. As for the striking of -the flag, the Earl of Sandwich and other naval authorities who were -consulted intimated that the matter was too important for them to -decide upon, and should be left to the king--a plain acknowledgment -of its political character. The Duke of York, however, the Lord High -Admiral, stated that the rule was that English ships were everywhere to -be saluted first, and were not to strike in return, but only to answer -with guns; but if a single English ship met a foreign fleet out of the -British seas, it was to salute first with guns, but neither was to -strike the flag.[878] - -This activity at the English Admiralty may not have been wholly -unconnected with the circumstances which ushered in the next war, but -it was more probably due to the general revival of punctiliousness -regarding the salute and similar naval ceremonies which took place at -this time throughout Europe. Even the petty states in the Mediterranean -became infected with the spirit of their powerful neighbours, and -followed their example. At Genoa and Leghorn frequent disputes, and -sometimes sanguinary encounters, occurred between the authorities and -Dutch and English men-of-war as to the number of guns that should -be fired, or the striking of the flag. French and Dutch men-of-war -lying in the Tagus were only prevented by the governor of the castle -from putting to the arbitrament of force the question whether the -latter should strike to the former. At Civita Vecchia, at Glückstadt, -at Dover, at Dieppe, at Kronberg, similar incidents took place. The -Earl of Essex, going on a special embassy to the King of Denmark, -and on board the king’s yacht, had a sharp dispute with the Governor -of Kronberg, in the Sound, as to lowering his flag, which the Danish -officer requested him to do. But Essex was well primed with precedents -before he left England, and was able to maintain his refusal.[879] -Though Dutch men-of-war engaged with spirit in such quarrels about -the salute in foreign ports, their action was not countenanced by the -policy of the States-General. On 16th May 1670 they instructed that -the fort of Kronberg should be saluted by Dutch vessels in such manner -as the King of Denmark might require; and on 3rd February next year -the States of Holland issued a general order that their men-of-war -should salute those of other sovereigns on their coasts, within the -reach of the guns of batteries or forts, in the precise manner that -the Government of the country might demand, leaving it entirely to the -discretion of that Government to return the salute or not, just as they -pleased. Every foreign Government, they added, was sovereign within its -own jurisdiction, and every foreigner was a subject there.[880] - - - - -CHAPTER XIII. - - -CHARLES II.--_continued_. - -THE THIRD DUTCH WAR. - - -The “honour of the flag” and the sovereignty of the sea were now -about to gain a shameful notoriety in connection with the third Dutch -war, which Charles, from the basest personal motives and in the most -treacherous manner, suddenly sprang upon the Republic. At that time, -and for long afterwards, European policy turned upon the ambitious -designs of Louis XIV. Laying claim to the Spanish dominions, he overran -the Low Countries in 1667 with an army of 40,000 men. The rapidity of -the conquest and the display of formidable military power filled Europe -with alarm; and the United Provinces, which lay nearest the scene -of danger, were thrown into apprehension as to their own safety. In -England popular feeling was very hostile to France, and Charles, after -some hesitation, despatched Sir William Temple to The Hague to conclude -an alliance against France, which he succeeded in accomplishing in -a few days--in January 1668,--and it was adhered to by Sweden. The -Triple Alliance thus formed was hailed with enthusiasm in England, -and it abruptly and effectually checked Louis in the execution of his -plans. Deeply mortified, the French king bent his energies and talents -to detach Charles from the League, in order to wreak his vengeance on -the Dutch Republic, and he succeeded even better than he expected. -Charles was deeply in debt, and the expenses of his Court were heavy. -His relations with the Parliament were becoming strained and difficult. -Mistrust was growing up between him and his subjects, and, mindful of -the fate of his father, he thought it prudent to secure in secret a -wealthy and powerful ally lest rebellion again broke out in England. -Within a year of the signing of the Triple Alliance Charles was gained -over by France, and the compact was sealed in the disgraceful secret -treaty of Dover in May 1670. Under the treaty Charles was to receive a -large yearly pension from Louis, and aid in case of insurrection; he -was to avow and re-establish the Roman Catholic religion in England -when it could be done with safety; and he was to begin hostilities -against the Dutch Republic when Louis required him by furnishing 4000 -men and fifty ships of war, for which he was to receive a subsidy of -£120,000, and to gain as his share of the spoils of conquest Walcheren, -Sluys, and Cadsand. Louis crowned the dishonourable compact with the -appropriate gift of a new mistress to his royal ally--Mademoiselle de -Kerouaille, afterwards the Duchess of Portsmouth, who well served the -interests of France.[881] - -In order to carry out his part of the iniquitous bargain, it was -necessary for Charles, as the vassal of France, to deceive his subjects -and his Parliament as well as his public ally, the Dutch Republic. He -had first to get money for the armaments, for which the subsidy from -France was insufficient, and he had then to discover some pretext -for the war which would make it least objectionable to the English -people. For the former purpose he resorted to a bold subterfuge. The -sentiment of both the Parliament and the people was hostile to France, -and advantage was taken of this circumstance to obtain a subsidy under -false pretences. When Parliament met in October 1670 the Lord Keeper, -by the king’s commands, made a speech on the state of public affairs, -in which he enlarged on the king’s need of supply; pointed to the -great strengthening of the French navy and the decay of our own; urged -the necessity of fitting out in the ensuing year a fleet of fifty -sail; and dwelt upon the obligations placed upon the king by several -treaties to exert himself for the good of Christendom, mentioning among -others the Triple Alliance and the League with the United Provinces. -The trick succeeded. Parliament, uneasy at the recent journey of -Louis to Flanders and the naval preparations in France, voted a sum of -£800,000.[882] - -It was also indispensable to foment ill-feeling against the Dutch, -and to devise disputes with them so as to prepare the way for a -rupture. Some time before this, at Genoa, a Dutch commander, Captain -Braeckel, who had led the attack on the English ships at Chatham in -1667, had hoisted under the Dutch colours some English flags which he -had taken on that occasion, in derision of the English in the port. -Charles demanded reparation and the punishment of Braeckel; and the -States-General ultimately ordered the trophies to be given up, and sent -them to London.[883] Later, the king complained that the States-General -had allowed him and the English people to be insulted by lampoons, -medals, &c., commemorating the exploits of the Dutch fleet in the -Thames in 1667, the king suing for peace at Breda, and so forth. The -States-General, when the king continued to press these complaints, -seized all copies of certain lampoons and destroyed the dies of several -of the medals. Charles then boldly accused the Grand Pensionary De Witt -of having carried on a confidential correspondence with France with -the object of inducing that Power to take up arms against England. -The accusation was meant to prejudice the Dutch in the eyes of the -Parliament; and the States, to prove their sincerity, sent fresh -proposals for an alliance, to which Charles replied that they should -first have offered him subsidies. The apprehension of the States that -the king was inclined to force a quarrel on them was not lessened by -intelligence they received that he had abandoned the Triple Alliance, -and especially by the recall of Sir William Temple from The Hague in -1670,--a step that followed the seizure of Lorraine by Louis. - -Affairs were ripening to the wished-for crisis, and Charles now -sought for a decisive pretext, which, while making war inevitable, -would lessen its unpopularity in England. Such a pretext was to be -found in the “honour of the flag.” No cry was more likely to rouse -resentment in the people than that the flag had been insulted and the -sovereignty of the sea threatened. To insult the flag was to insult -the nation. The king was well aware from the repeated declarations -of the States-General that they would never willingly acknowledge -England’s sovereignty of the sea: they had said they would “rather die -first.” He was also doubtless fully acquainted with the fixed opinion -of the Grand Pensionary that to claim that the whole Dutch fleet should -strike to a single frigate or a ketch was “intolerable.” He contrived -his measures accordingly, and decided to send one of his yachts to pass -through the States’ fleet, on their own coast, and to fire upon them if -they did not strike their flags in the accustomed manner. The matter -was deliberately considered. The clause in the treaty of Breda was not -very clear as to whether a yacht, or even a man-of-war, could compel -the whole Dutch fleet to strike, and on the Dutch coast. Just about -the time Temple returned from The Hague, Sir Leoline Jenkins, Judge of -the High Court of Admiralty, wrote a confidential letter to Sir Thomas -Allin, the commander of the Blue, asking him to find out secretly, -“as if for his own satisfaction,” whether there were any “ancient -seamen” at Trinity House or elsewhere who were on board the _Happy -Entrance_ when it carried the Earl of Arundel to Holland in 1636, and -if so, whether they remembered that on entering the road of Goeree, -in Holland, Admiral Tromp, who was at anchor there, struck his flag -to it; and similar information was asked in regard to other cases of -like import in 1637 and later. The question was also put to Sir Thomas, -“How far the British Sea, or British Ocean, does in common reputation -extend itself; and whether all that which washes the coasts of the Low -Countries, as well as that which runs upon the French coast, has been -anciently deemed and reputed to be British Sea?” Jenkins explained that -he had been desired by the king to obtain proof of the striking of the -flag as secretly as possible; and the two chief points were, (1) “Had -not the French and the Dutch always struck to the king’s flag even on -their own coasts? and (2) that a single ship of ours, if commissioned -for war, though never so inconsiderable in its strength, did make -whole squadrons and fleets of the neighbouring nations to strike, -and particularly the Spaniards near the Spanish Netherlands and the -subjects of the United Provinces near their coasts?”[884] - -The reference to the French and Spaniards was no doubt meant to conceal -the real significance of the inquiry. The reply of the admiral seems -not to have been preserved, but a later memorandum of Jenkins answers -the questions as to the striking of the flag at Goeree, and in the -other cases, in the affirmative. The Trinity House, whose opinion was -also asked, said that it had been commonly received by them from their -predecessors that the British seas “extend to Cape Finisterre, or the -North Cape” (_sic_), and that the sea which washes the coast of the Low -Countries and France had been always reputed part of the British seas. -“To know how far it does extend northwards,” they ingenuously added, -“we desire you will please to consult those authors who have treated -on that subject, it not being known to a certain by us.”[885] They had -been unable to meet with any persons who knew about the alleged cases -of striking, so that Jenkins must have obtained the information about -them from other sources. - -There can be no doubt that Charles was advised by the authorities he -consulted on the ambiguous points in the article of Breda that (1) any -king’s ship, however small, commissioned for war, was a “man-of-war” -in the sense of the treaty, and could call upon the whole Dutch fleet -to strike; (2) that the British seas included those washing the coasts -of the United Provinces; and (3) with respect to the previous custom -referred to in the treaty, that the Dutch had struck on their own -coasts. - -Thus fortified in law and precedent, the way was clear for Charles to -pick a quarrel with the States about the striking of the flag, and -he despatched, not a man-of-war, nor even a frigate, but his yacht, -the _Merlin_, for the purpose. Ostensibly it was sent to bring over -Lady Temple, who had, by his wish, remained in Holland since her -husband’s departure, but with orders to pass through the Dutch fleet -then cruising in the Channel, and to fire at them until they struck -their flags or fired back at the _Merlin_. As the French ambassador, -who was in the secret, tersely put it to his Court, “the captain is -to use all his powder, so as to give good cause for a quarrel.” The -_Merlin_ on her way to Holland passed through the Dutch fleet, but -owing to a heavy gale she could not get near enough to execute the -king’s commands. She appears, however, to have met two Dutch men-of-war -convoying the herring-busses, who exchanged guns with her but did -not strike their flag.[886] But in returning, early in August, with -Lady Temple on board, the _Merlin_, with the royal standard flying, -came upon the States’ fleet lying at anchor beyond the Goodwins, six -leagues from the coast of Zealand and sixteen leagues from England. The -little yacht, while still at a distance, began to fire at the Dutch -flagship. De Ruyter did not reply at once, but the Lieutenant-Admiral, -Van Ghent, thinking that it was merely a question of the salute, -returned the guns in the usual manner, and was not a little surprised -to receive for his pains a discharge of cannon-balls. He sent an -officer on board the yacht for an explanation, and Captain Crow, the -commander of the _Merlin_, informed him that he had been sent to bring -the English ambassadress with her family from Holland, and had orders -to make the Dutch fleet lower their colours wherever he met with it. -On hearing this, Van Ghent, on the pretext of paying a compliment to -Lady Temple, whom he had frequently met at The Hague, went himself on -board the _Merlin_. He told Captain Crow that the point he had raised -was one on which he had received no orders from the States, and that -he could not concede the claim without express commands. He declared -his willingness to pay due respect to the English flag according to the -former practice, but he thought it could scarcely be contended that -the admiral and the whole fleet should strike on their own coast to a -single vessel, and that vessel a yacht, which was only a pleasure-boat, -or at least served only for a passage, and could not pass for a -man-of-war. It was at all events, he said, a question which should -first be submitted to inquiry by the two Governments. - -Captain Crow was puzzled and perplexed, and on Van Ghent’s departure he -appealed to Lady Temple as to what he should do. She, seeing he did not -relish his job and would be glad to get out of it by her help, shrewdly -told him that he knew his orders best and what he ought to do, and -begged him not to mind her or her children. After firing another gun, -the _Merlin_ continued her voyage to England, leaving the Dutch fleet -with their flags displayed, and without having fired a single angry -shot in reply. Very naturally, Charles was irritated at the miscarriage -of his plan. He had hoped for a sharp and unequal contest about the -flag, the news of which would have rung from end to end of England and -enabled him to drag the country into war to resent the affront. Crow -was thrown into the Tower, “for refusing to do his duty towards the -Dutch men-of-war who refused to strike to the king’s flag.” The Privy -Council debated whether a frigate, the other class of vessel to whose -status De Witt had objected, should not be hastily despatched to the -Dutch fleet to draw the spark which the _Merlin_ had failed to elicit, -by firing on every ship that refused to take in her flag. Probably -the device was deemed to be too transparent; but it was rumoured that -the captain of the _Reserve_, which left Deal a few days later for -Portsmouth, had received instructions to fight the Dutch fleet if he -met them and they did not strike,--a rumour which, it was reported, -“deads the hearts of people lest we should have war with Holland.” - -Meanwhile, Sir Leoline Jenkins was requested to inquire into the -case of the _Merlin_, presumably to see what could be made of it. He -examined Lady Temple and others, and drew up a memorandum embodying -the information he had received as to the extent of the British -seas and the precedents of striking to the English flag off foreign -coasts.[887] After citing the precedents at Goeree and elsewhere, he -expressed an opinion against calling witnesses in such cases “for fear -of chicane,” declaring that we had “a constant uninterrupted possession -of the prerogative, with the highest notoriety that public immemorial -reputation can give, in the British seas, and that the onus of making -proof as to the non-use and enjoyment of it in some certain places or -rencounters, as for instance the Dutch coast, or when a small sail of -ours met a fleet of theirs, was cast by the law and by reason upon -our opposers.”[888] The English Government did not make any immediate -protest to the States-General about Van Ghent’s refusal to strike to -the yacht, possibly lest they might proffer satisfaction and dispose -of the episode; but Charles boldly told the Dutch ambassadors that he -thought the conduct of their admiral had been premeditated. - -Up to this time the Dutch had failed to discern the danger which was -approaching. After the _Merlin_ incident indeed, as Temple tells us, -the Dutch ambassadors in London, “with as ill noses as they have, -began to smell the powder after the Captain’s shooting.” But relying -on the well-known animosity of the English people and Parliament to -France, and their aversion to a rupture of the Triple Alliance, they -fondly clung to the belief that the incident was one of the temporary -misunderstandings about the flag which would be readily cleared up. The -States-General were equally undiscerning, and perhaps a little more -obtuse. They adopted a course which, however proper it might have been -under other circumstances, now served only to play into the hands of -Charles. A manifesto was prepared declaring that by the terms of the -treaties with England the salute was to be regulated according to the -custom in the past; that it could not be claimed except in British -waters, where--as their High Mightinesses thought it well to remind the -king--it was offered only as a mark of courtesy, and not in recognition -of England’s pretension to the sovereignty of the sea. And in order -that their intention might be perfectly clear, they instructed De -Ruyter to draw up a set of rules prescribing the salute to be given -in future by the Dutch fleet to English or French men-of-war on the -Dutch coast, which was to be confined to the exchange of guns without -striking the flag at all. - -Thus, by their own maladroitness as it happened, the States were drawn -into precisely the dispute that Charles had been longing for--a dispute -about the flag and the sovereignty of the sea. He replied by sending -Downing to The Hague, in December 1671, as ambassador extraordinary, -with a sheaf of peremptory and intolerable demands. The choice of the -ambassador was in itself significant of much, for Downing was known to -be repugnant to the States-General, partly from his overbearing and -quarrelsome disposition, still more because of his unconcealed enmity -to the Dutch people. He was to demand free trade for the English in -the Dutch plantations in the Indies; redress and satisfaction for -the pamphlets and medals insulting to the king; above all, he was to -present to the States-General a memorial requiring that they should -“solemnly and clearly acknowledge, in writing, the king’s right to the -dominion of these seas, and that they neither do nor will dispute it, -but expressly engage themselves that all ships or fleets of theirs, -however numerous, shall, upon warning given by any ship or ships of -war, carrying English colours, of what rate or bigness soever, strike -their top-sails and lower their flags, as has been ever practised.” -As a pendicle to this, he was to demand that Van Ghent should be -“exemplarily punished for the insolent affront done by him to a small -English man-of-war [the _Merlin_] in refusing to strike.” If within a -fortnight no answer was received to this “memorial,” Downing was to -present a sharp and peremptory note demanding an immediate reply, and -if he did not get it within another week, he was instantly to quit The -Hague, without giving any notice of his intention to go. - -While Downing was away on his explosive mission, Boreel, the Dutch -ambassador in London, was beguiled with smooth words in order to lull -the States-General into a feeling of security. On the eve of his -departure, Downing told him he was going to The Hague with the object -of strengthening the good understanding between the two countries, and -Charles treated the ambassador with the most friendly courtesy. The -ease with which the Dutch were being hoodwinked caused much amusement -in Paris. But Charles was not yet quite ready. He needed a great deal -more money than what was left of the £800,000 which the House of -Commons had voted. Afraid to summon Parliament again, or to levy taxes -under the prerogative as Charles I. had levied the ship-money, he had -recourse to the daring expedient of closing the Exchequer, by which -he robbed the public creditors of some £1,200,000, causing widespread -ruin and commercial panic. A little later, on 21st January 1672, the -first quarterly instalment of the subsidy of three million livres from -Louis was landed at Rye, and escorted to the Tower by forty men of the -Guards and a trumpeter. Now in possession of ample supplies, Charles -hastened to throw aside the mask. Downing played his arrogant part -at The Hague, refusing to allow any debate as to the justice of his -demands. When he suddenly called for his passports, the States-General -began to awaken to a truer sense of their position, menaced as they -also were by imminent peril from France. Adopting the advice of the -deluded Boreel, that by yielding on the question of the flag they would -remove any inclination the English people had for war with them, since -England really cherished enmity against France, the States-General -agreed to comply with the claims of Charles respecting the salute. The -concession was still joined with the offensive proviso that they gave -it only as a mark of respect to a powerful monarch: it was, moreover, -to be conditional on the maintenance of the Triple Alliance. Downing -told them the offer came too late, and slunk away home, reaching London -on 6th February, where the king, displeased with his management of the -affair, sent him to the Tower “for not having obeyed the orders sent -him.” - -The flight of Downing threw the States-General into consternation. -Meerman, previously their ambassador at the English Court, was -despatched in haste to London to renew the offer about the flag, to -agree to the dismissal of Van Ghent, and to tender large subsidies -for the king’s privy purse. At the audience with Meerman and Boreel, -Charles skilfully evaded their proposals and expressed surprise that -they had not submitted a formal signed paper. This they made haste to -do, and they were then informed that it was ambiguous and obscure, -but in what particulars they could not learn. They next submitted a -draft to Arlington and Lauderdale, the English commissioners appointed -to treat with them, with the request that they might amend it as -they thought fit, but they were haughtily told that it was none of -their business to draw up papers for the Dutch. Finally, they signed -a written engagement to give satisfaction about the flag, but at the -conference appointed for its reception the English refused to consider -it, saying the time for negotiations was now past.[889] - -The time was now obviously ripe for a declaration of war; but Charles -before taking this step had resolved on an audacious and treacherous -stroke, by which he hoped to gain much plunder for himself while -diminishing the resources of the Dutch. In spite of the solemn -obligations of treaties for the temporary security of their shipping -even if war broke out, it was decided to attack and capture Dutch -merchant vessels in time of peace. Here also a ready excuse might -be found by contriving disputes about the striking of the flag. As -early as 26th January, Sir Robert Holmes sent an express to Arlington -recommending the seizure of a Dutch fleet laden with salt and wine, -which lay wind-bound at the Isle of Wight, under the convoy of three -or four States’ men-of-war. He said that in Holland there was a great -scarcity of salt, and that without it they could not carry on their -fishery or provide for their garrisons; the capture of the salt fleet -would thus overwhelm them in ruin even greater than would the loss of -their East Indian fleet. But ships were apparently not ready for this -venture--and, besides, it was not salt that Charles wanted. On 18th -February orders were sent to the Mediterranean to take and sell, or to -destroy, all Dutch shipping. On 5th March Charles wrote to the Duke -of York commanding that, as he had received many indignities from the -States-General, and his demand for reparation against one of their -subjects who refused to strike his flag remained unanswered, such -men-of-war as were ready at Portsmouth should immediately put to sea -and seize and bring into port, with their cargoes intact, any Dutch -vessels they met with, and destroy those that resisted. Another royal -command on the following day included Hamburg vessels in the piratical -order, since Dutch ships often sailed under that flag; and in this -missive, as a sort of moral salve, the king announced that he had -resolved to make war on the States-General. - -The first capture was made on 8th March, and when Boreel demanded -restitution, he was told, boldly but incautiously, that the Dutch ships -would be seized everywhere. The Cadiz fleet returning to the United -Provinces had a very narrow escape, having passed up Channel on the day -Holmes received his instructions. On the next day, 13th March, off the -Isle of Wight, he fell in with the Smyrna fleet of fifty-six merchant -vessels returning home from the Mediterranean with rich cargoes of -silks, plate, cochineal, gums, &c., estimated to be worth over a -million pounds. It was upon this fleet that Charles had been counting. -Eleven States’ men-of-war acted as convoy to the merchantmen, many of -which were also heavily armed as fighting ships. To deal with this -formidable force Holmes at first had only five ships, having failed to -effect a junction with Spragge’s squadron, from the selfish design, -it was alleged, of keeping the prize-money among as few as possible. -The Dutch fleet, which had been warned of their danger by Boreel, were -on the alert. On the approach of the English the armed vessels moved -into line to protect the defenceless merchantmen. Lord Ossory, in the -_Resolution_, bore up to the Dutch vice-admiral and gave him a “warning -piece” to strike his flag, and as he took no notice of it, Ossory -gave him another and “placed it in him.” Sir Robert Holmes, in the _St -Michael_, treated Captain Adrian de Haas, who commanded the convoy, in -the same way, and when the latter sent his lieutenant on board the _St -Michael_ to ascertain the cause of shooting, he was promptly clapped -into the hold, “having, it seems,” as the English official account -says, “given some saucy language to Sir Robert.”[890] The _St Michael_ -then poured in a broadside and the fight began. It continued until -night, and was resumed on the following day, when Holmes was reinforced -by three other ships, and on the day after that, as the Dutch fleet -made its way up the Channel, defending itself with the greatest valour. -The English were hopelessly outnumbered. They sank one Dutch man-of-war -and captured another, with four or five of the merchant vessels, but -all the others safely reached port. The English ships which were beaten -off were so terribly battered and cut up that they could scarcely make -their way back to the Downs. On the _St Michael_ alone thirty-four men -were killed and fifty-six wounded, as well as “a great many” missing. - -Charles was deeply disappointed at losing the booty on which he -had calculated. He was further annoyed when he found he could not -confiscate the whole of the cargoes actually taken, and which Holmes -with vainglorious exaggeration boasted “would give him credit for -£200,000 at least.” When the question came to be decided whether the -captured ships were lawfully good prize, Holmes and his officers -showed the greatest reluctance to be examined. Included in the cargoes -were goods belonging to Spaniards and subjects of other nations, but -notwithstanding this the Council wished to confiscate everything. -Sir Leoline Jenkins, Judge of the High Court of Admiralty, opposed -this design with great energy. The confiscation of Dutch ships and -property in time of peace might be colourably made under the pretence -that the owners refused to strike their flag and were the aggressors. -But to condemn neutral goods on board as lawful prize would be, Sir -Leoline said, to introduce “a new law of war, not so honourable for -us to endure from others when his Majesty shall be at peace and his -neighbours at war.” He declared that no hostile act of the Dutch, -supposing them the aggressors, could involve a stranger not party to -it, before a public declaration of war; and as he threatened to resign -his office if the course was persisted in, the Council gave way, and -restitution was made of the property of neutrals.[891] - -The iniquity of this shameful and deliberate attack on Dutch shipping -in time of peace was not extenuated or obscured by the plea of the -English Ministry that it had been caused by the obstinacy of the Dutch -in refusing to strike the flag. The opinion of Europe was expressed in -the remark of a French diplomatist at one of the German Courts, that -“when the king, his master, made war on the States-General, he would -not do so like a pirate.” An immediate result of the onslaught on the -Smyrna fleet was to convince not only the States-General, but the -French Court, that Charles was in earnest, and the formal declaration -of war could not be longer delayed. On 17th March 1672, the day after -Churchill brought the tidings to London, an Order in Council was issued -to print and publish the declaration of war against the States-General. -In this long, verbose, and rhetorical document of eight pages Charles -tried hard to justify his flagrant violation of treaties. The real -reason of the war could not be avowed, but every complaint that had -at any time been levelled against the Dutch was now dragged forth, -accusation being piled on accusation. The accumulated charges connected -with the East Indies, the West Indies, and Surinam were revived and -aggravated; the safety of trade, upon which the wealth and prosperity -of the English people depended, was in danger; the king and nation were -declared to have been insulted by lampoons and caricatures. But, as -was to be expected from the antecedents, a principal ground of rupture -was found in the flouting by the Dutch of the right of England to the -honour of the flag and the sovereignty of the sea. “The right of the -flag,” the king declared, “is so ancient that it was one of the first -prerogatives of our royal predecessors, and ought to be the last from -which this kingdom should ever depart. It was never questioned, and -it was expressly acknowledged in the treaty of Breda; and yet this -last summer it was not only violated by their commanders at sea, and -that violation afterwards justified at The Hague, but it was also -represented by them in most Courts of Christendom as ridiculous for us -to demand. An ungrateful insolence! That they should contend with us -about the dominion of these seas, who, even in the reign of our royal -father, thought it an obligation to be permitted to fish in them, -by taking of licenses and for a tribute.” Notwithstanding all these -provocations, the king continued, he had patiently waited expecting -satisfaction. To the memorials sent to them they had at last replied to -this effect: “That in this conjuncture they would condescend to strike -to us, if we would assist them against the French; but upon condition -that it should never be taken for a precedent hereafter to their -prejudice.” The concluding negotiations were mendaciously summarised by -saying that after the return of Downing the States-General sent over an -extraordinary ambassador, who declared he could give no satisfaction -till he had consulted his masters. “Wherefore,” said the king, -“despairing now of any good effect of further treaty, we are compelled -to take up arms in defence of an ancient prerogative of our crown, and -the glory and safety of our kingdoms.” - -Louis’ declaration of war, of fewer words and greater dignity, -followed; arrangements were completed for the union of the English and -French fleets, and no difficulty was made about the salute. Charles, -while taking so high and imperial a tone in the declaration of war -about the ancient and sacred rights of the English flag, immediately -relinquished them to his royal ally and paymaster. For the first time -in history the French fleet was put on an equality with the English -in the British seas. Orders were issued that if an English squadron -under a vice-admiral was sent to the Mediterranean to be commanded by a -French admiral, the latter was to be saluted in the same manner as he -was saluted by French vice-admirals. When an English frigate was sent -to Brest with a despatch for the Comte d’Estrées, the Vice-Admiral of -France, it was ordered if it met the French squadron appointed to join -the English fleet to salute them as if they were English ships, and -to treat the French Vice-Admiral as if he were English. Charles sent -similar commands to the Governors of Portsmouth, Dartmouth, Dover, -and other places--that the French ships were to be saluted as if they -were English. Thus not only in the Mediterranean, but in the Channel -and in English ports, the English flag was to be lowered to that of -France--a proposition that might have made the old sea-dogs turn in -their graves.[892] - -The junction of the allied fleets was followed, on 28th May, by the -fierce and sanguinary battle of Solebay. The victory was indecisive, -but the advantage lay rather with the Dutch. De Ruyter withdrew to his -own coast, and the English were too much crippled to follow.[893] No -other great sea-fight took place in 1672, but in September Sir Edward -Spragge employed his squadron against the Dutch fishermen. Just before -the declaration of war the States-General laid an embargo on their -fishing vessels; but they removed it in September,[894] and towards the -end of the month it was reported that a hundred Dutch busses, convoyed -by twenty frigates, were fishing off the Norfolk coast. On the 22nd -Spragge’s squadron, showing no colours, appeared off Yarmouth, and -greatly frightened the English herring fishermen, who thought the Dutch -fleet was upon them. By noon on the 24th he had captured eleven Dutch -doggers and 117 prisoners; two of the doggers had licenses from the -English Government, and were released later. By the end of the month -the prizes numbered about thirty doggers, one buss, and a privateer, -with over 300 prisoners,--not a very large haul,--while about 200 -others had been chased home, and many nets, which the fishermen had -cut and left in the water, were destroyed. Spragge having thus, as he -reported, “cleared these seas of fishermen except our own,” returned to -the Thames.[895] - -While the Dutch maintained the contest at sea with honour and success, -they were overwhelmed on land. A great French army, under Turenne, -Condé, and other celebrated generals of the age, poured into the -Provinces. Town after town, fortress after fortress, surrendered to -the invaders, and the Prince of Orange, with the remnant of his small -army, retired into Holland. It seemed inevitable that the Republic, -contending with the two most powerful states in Europe and bereft of -allies,--for Sweden as well as England had been detached from the -triple league,--would soon be subjugated. The States-General, in -despair, sued for peace. Two ambassadors were sent to Louis and two -to Charles. Louis offered them impossible terms, and allowed ten days -for acceptance or rejection. Charles refused to see them at all, but -sent them to Hampton Court along with Boreel, who had not yet left -England; and there they remained for some weeks carrying on a sort of -backstairs negotiation. Then the king, fearing they might intrigue -with his own subjects, who were in sympathy with them, dismissed them -early in August. But becoming apprehensive at the unexpected rapidity -of the French conquests, he despatched the Duke of Buckingham and -Lord Arlington, and soon also Viscount Halifax, to negotiate anew -with Louis, and to inform him of the overtures for peace from the -States-General. On their way they passed through Holland, where they -had several interviews with the Dutch Government and the Prince of -Orange. After renewing the league with Louis at Utrecht, and agreeing -that neither king should conclude peace except with the consent of -the other, the conditions on which Charles was willing to make peace -were formulated. The States were asked to undertake, on demand, to -banish perpetually any person guilty of treason against the king, or of -writing seditious libels; to pay £1,000,000 sterling towards the cost -of the war; to invest the Prince of Orange with the sovereignty of the -United Provinces, or at least to confer upon him the highest offices; -and to surrender as security to the king Walcheren, the city and castle -of Sluys, as well as the isles of Cadsand, Goeree, and Voorne. With -regard to the sovereignty of the sea, they were to yield the honour -of the flag without the least reserve or hesitation, so that whole -fleets were to lower their top-sails and strike their flags to a single -English ship carrying the king’s flag, in any part of the British sea -up to the coasts of the United Provinces. The States-General were, -moreover, to agree to pay to the King of England, for ever, the sum of -£10,000 a-year for permission which the king would grant them to fish -for herrings on the coasts of England, Scotland, and Ireland.[896] - -The demands of Louis were even more oppressive to the Dutch, and -threatened them in what they held most dear--their religious liberty, -for the sake of which they had formerly fought so long and so -heroically against the tyranny of Spain. - -In this crisis of their history despair and fury seized upon the -people. The Ministers were blamed for the misfortunes of the country; -a popular tumult burst forth in favour of the Prince of Orange; and -John de Witt, the clear-eyed statesman who had so long held the helm -and steered the Republic through so many dangers and difficulties, was -foully murdered in circumstances of great brutality--a fate which his -brother shared. The young Prince infused his own invincible spirit into -the people. The terms of peace were rejected, and a supreme effort was -made to save the country by the method which had been adopted against -Alva and Requesens just a century before: the dykes were opened and the -land laid under water, causing the enemy to retreat. The steadfast -courage of the Prince of Orange and the growing alarm at the designs of -France at last brought allies to the States. Spain and both branches -of the house of Austria espoused their cause, and German troops came -marching to the Rhine. - -But the ally on which the Dutch most relied was the Parliament of -England. It had now been prorogued for nearly two years, and Charles -was at last forced to summon it by his need of money to carry on the -war. When it met, the members were told by the king that he had been -forced into a war which was just and necessary both for the honour and -the interest of the nation, and he referred them to his declaration, -in which the reasons were given. He also defended the Declaration of -Indulgence to dissenters, which had been designed to favour the Roman -Catholics, and about which the country was greatly agitated. The Earl -of Shaftesbury, as Chancellor, enlarged on the same themes. Against the -Dutch he levelled such charges as were contained in the declaration -of war. They had broken treaties about the East Indies and Surinam, -“and at last,” he exclaimed, “they came to that height of insolence, -as to deny the honour and right of the flag, though an undoubted jewel -of this crown, never to be parted with; and by them particularly -owned in the late treaty of Breda and never contested in any age.” He -accused them of disputing the king’s title to it in all the Courts of -Christendom, and of having made great offers to the King of France if -he would stand by them against England. They were branded as the common -enemy to all monarchies, and especially to that of England, “their only -competitor for trade and power at sea,” who alone stood in their way to -a universal empire as great as Rome. They had, he said, slighted all -negotiations and refused all cessation of hostilities; and the king, -he claimed, in entering on the war had only carried out the maxims of -the Parliament which had advised the last war, and had then judged it -necessary to extirpate the Dutch, laying it down as an eternal maxim, -“_delenda est Carthago_, that government is to be brought down.” The -Parliament was then asked to vote further supplies. - -At first, while avoiding the least approbation of the war, -Parliament passed a resolution that they would grant eighteen -months’ assessments, at the rate of £70,000 a-month, for the king’s -“extraordinary occasions”; but this was designed merely to allow them -time to deal with the Declaration of Indulgence before Charles could -afford to dismiss them. The contest with the king on this question -ended in victory for the Parliament, which then passed the Test Act, -disqualifying Catholics for all offices under the crown. The king was -still resolved to pursue the war. The money voted by Parliament served -to equip a fleet; and as the Duke of York was made ineligible owing to -the Test Act, Prince Rupert took his place as admiral. In May 1673 the -combined naval forces of France and England sought out De Ruyter on his -own coast, and three battles were fought in the summer,--on 28th May, -4th June, and 11th August,--both sides claiming victory; but the Dutch -prevented the projected landing of English troops, and compelled the -allies to retire to their own coasts.[897] - -By this time, however, the king saw he could not with safety continue -to carry on the war much longer. Spain, which had already declared -war against France, threatened to do the same against England unless -peace was made, and this would destroy the lucrative English trade -with that country. The war was intensely unpopular in England, and the -seamen fought without heart. The timid conduct of the French squadrons -in the various battles excited deep and widespread resentment. It was -on all sides rumoured that Charles had sold his country in order to -carry out the selfish designs of Louis. The subsidies, moreover, were -soon exhausted, and it would be necessary to ask Parliament again for -more money. It was clear that the appeal which Charles had made to -the spirit or vanity of the nation with respect to the honour of the -flag and the sovereignty of the sea had thoroughly failed, although -inspired and mercenary pens did what they could to arouse enthusiasm. -These efforts were indeed a measure of the unpopularity of the third -Dutch war. Before it broke out certain authors had handled the theme. -The learned Prynne, who lost his ears for opposing Charles I., became -a subservient supporter of his son; and, as Keeper of the Records -in the Tower, he published an erudite, but confused, book in which -the absolute right of the King of England to the dominion of the -surrounding seas was maintained.[898] In a very different kind of book, -one Captain John Smith repeated current arguments and misstatements on -the same topic, especially with reference to the fisheries, for he had -been one of the agents of the Fishery Society of Charles I. He makes a -statement that must have caused the king, if he saw it, some surprise -at his modesty in asking only £10,000 or £12,000 from the Dutch. He -had heard, he says, that the “composition” of the Hollanders for leave -to fish on our coasts was an annual rent of £100,000 and £100,000 -“in hand”; and as none of it had been paid into the Exchequer, he -computed the arrears then to be over £2,500,000, a sum which, he very -truly remarked,--and it is the sole truth in the statement,--“would -come very happily for the present occasions of his Majesty.” Like -many others before him and after him, he advocated the building of a -fleet of busses and the prohibition of the Hollanders from fishing in -the British seas.[899] Still other writers laid stress on the close -connection between the sovereignty of the sea and trade, commerce, and -navigation;[900] and after the war broke out more pointed attacks were -made against the Dutch. They were accused of invading our fisheries -without license from the king, refusing to strike sail, disputing our -dominion of the seas, and by artifice supplanting us in trade and -commerce.[901] - -None of those works was of much account, and the Ministry felt the need -of obtaining the services of an able writer to stimulate ill-feeling -against the Dutch, and in particular to answer a well-reasoned pamphlet -which the Dutch had widely circulated in refutation of the reasons for -the war given in the king’s declaration. The States-General did not -reply to that document, but Wicquefort did so in the pamphlet referred -to, which was entitled “Considerations on the Present State of the -United Netherlands.” The tone of his reply was extremely temperate. -The writer insisted on the difference between the striking of the flag -and the sovereignty of the sea; the former was merely a ceremony of -respect which all republics paid to monarchies, and not in the least -a sign of subjection or an acknowledgment of sovereignty, and as such -it had been regulated in the treaty of Breda. The States had always -resisted the claim that a whole fleet of theirs should strike to a -single English ship. In 1654 Cromwell had abandoned a similar claim -on their objecting; and as the article in the treaty of Breda was the -same as the one agreed to in 1654, it was unjust to construe it now in -the sense of the article which Cromwell had withdrawn. On that ground -alone, therefore, it could not be maintained that Van Ghent and the -whole Dutch fleet were bound to strike to the king’s yacht. Moreover, -the article applied only to the British seas, and the writer argued -that that meant the Channel and not the North Sea, citing the seventh -article of the treaty of Breda as to the cessation of hostilities. -Since the Dutch fleet were lying at anchor off their own coast when -the king’s yacht passed, they were not obliged to strike, because -they were in the North Sea, and not in the British seas at all. The -conclusion was drawn, and as we have seen justly, that the king had -sent his yacht for the deliberate purpose of getting a ground of -quarrel. As for the sovereignty of the sea, the States attributed to -God alone such dominion as the king usurped to himself. They therefore -refused Downing’s demands, which had been put forward to give the king -a pretext for war. To admit them would ruin the United Provinces, which -lived by commerce and the liberty of the sea. As for the fisheries, -they had never asked for permission to fish from the King of England; -and though in 1636 licenses were forced upon some of their defenceless -fishermen by English men-of-war, that was an act of violence from which -no right or title could be derived, and the attempt was relinquished at -the demand of the States-General, and had not been repeated. - -The cogent arguments of the Dutch writer were well fitted to -confirm the general opinion in England as to the cause of the war, -and the Court promptly secured the services of Henry Stubbe, a -clever, versatile, and prolific writer, to refute them. His answer -to Wicquefort was considered by the private committee on 15th -May 1672,[902] and it was published anonymously in the following -month.[903] The spirit in which Stubbe entered into his task is -revealed in a letter he wrote to Secretary Williamson. “The rule I go -by,” he said, “is this: that no nation is more zealous for their honour -than the English; that if they are put into a great passion they forget -their particular interests and animosities.”[904] He therefore tried as -much as he could to inflame the public mind. - -The _Justification_, though rabid in tone, is in many respects an able -book. It differs from many of the controversial works of the day in -that the author, however oblique may be his inferences from them, does -not, so far as we have observed, pervert and misquote the documents -he cites. It is unnecessary to particularise his arguments on the -sovereignty of the sea. They were drawn mainly from Selden, Welwood, -and other authors, and partly from certain State Papers which the -Ministry placed at his disposal. The striking of the flag by foreigners -was, of course, declared to be a regality, and “paramount to all -treaties”; it was a “fundamental of the crown and dignity of the King -of England.” The attack on the Smyrna fleet, which Wicquefort denounced -and made the most of, was justified by their refusal to strike their -flags, the instructions issued to the admirals of England for four -hundred years compelling them to seize all ships which refused. The -universal dominion which the king possessed over the British seas was -thus formulated: (1) the regality of fishing for pearl, coral, amber -(!), &c., and the “direction and disposal” of all fishes “as they -shall seem to deserve the regards of the public”--a somewhat cryptic -claim; (2) the prescribing of the laws of navigation to foreigners as -well as to the king’s own subjects; (3) the power of imposing customs -and taxes upon those navigating or fishing in them; (4) jurisdiction -in regard to maritime delinquencies; (5) the duty of foreign ships to -strike their flags and lower their top-sails to the king’s “floating -castles,” the ships of war, by which “submission they are put in -remembrance that they have come into a territory wherein they are -to own a sovereign power and jurisdiction, and receive protection -from it.” It was admitted that the sea was free for commerce and -innocent passage; but both might be refused if there was suspicion of -danger, and that the imposition of tribute for fishing, convoy, or -the maintenance of lights and beacons did not infringe the liberty of -commerce. - -The work appears to have pleased his employers, for immediately after -its publication Stubbe began the composition of another on the same -lines--to vindicate the “honour” of his Majesty and the kingdom. In -this he wished very much to deal with the lampoons and “scandalous -pictures” circulated in Holland, “thereby to raise a due passion and -resentment in the English,” especially one which represented the -English ambassadors at Breda kneeling in supplication to their High -Mightinesses the States-General; and Sir Joseph Williamson, who was -then in Holland with Buckingham and Arlington, was asked to bring over -specimens of these. He told Williamson that in his new work, which he -proposed to entitle “An Apology for the King’s Majesty’s Declaration, -By an Old Commonwealth Man,” he would represent to the English people -his Majesty’s “generous concern for his subjects’ welfare and trade,” -and his admirable prudence in the noble conduct of affairs; he would -excuse his stop of the Exchequer and the Declaration of Indulgence, -and descant upon the growth of the Dutch by contumelies to the king -and nation. Stubbe was also anxious to obtain, besides the pictures -and medals, a manuscript book which he had seen, containing an account -of the transactions between the Dutch and the Commonwealth. This was -in the possession of Thurloe, who had been Secretary under Cromwell, -and he refused to produce it, until a warrant issued by Lord Clifford -compelled him to give it up.[905] - -The second work was published in 1673, and Stubbe did all that -he promised to do, copiously illustrating it with figures of the -objectionable medals and pictures, and greatly abusing the Dutch.[906] - -But all such efforts to stir up animosity against the Dutch and -to convince the public and Parliament of the justness of the war -completely failed, and Charles was forced to enter into negotiations -for peace. Immediately after the battle of the Texel, in August -1673, a congress of the Powers which had assembled at Cologne began -its deliberations to arrange terms of peace, under the mediation of -Sweden. The English plenipotentiaries were Sir Leoline Jenkins and -Sir Joseph Williamson, and the instructions given to them by Charles -included the following:--“The principal points we shall insist upon,” -said the king, “beyond the particular ones relating to general amity, -commerce, &c., are these following: _First_, To have the honour for -the future paid to the flagg of England, which hath been practised and -acknowledged by them in all former times. _Secondly_, A million of -pounds sterling to reimburse us in some part the expenses we have been -at in making the war. _Thirdly_, Ten thousand pounds per annum as an -honorary acknowledgment for the great benefit that Republic reaps for -the fishing on our coasts, and two thousand pounds more for the like -liberty they enjoy upon the coast of our kingdom of Scotland.”[907] - -The terms of peace now offered, it will be observed, were much less -exacting than those demanded in the previous year, and the request for -an express acknowledgment of the king’s sovereignty of the sea was -dropped. The Dutch plenipotentiaries at the outset of the proceedings -said little difficulty would be raised about the question of the -flag, but they demurred to the demand to pay tribute for liberty of -fishing.[908] This thorny subject was threshed out on either side -with all the old arguments which were used in the times of James and -Cromwell. The Dutch pled possession, prescription, treaties; the -English replied that the treaties had expired in subsequent wars, and -were abrogated by the separation of the Provinces from the House of -Burgundy, with whom the treaties were made. A new point was raised to -show that no right could now be claimed under the Burgundy treaties. -If they were still in force, why had the citizens of Bruges in the -Spanish Netherlands, subjects of the King of Spain, who was the -successor and descendant of the Dukes of Burgundy, and the very people -in whose favour the Magnus Intercursus was made, petitioned the King of -England as lately as 1666 for a license to fish in the British seas, -a privilege which had been granted to them?[909] To this the Dutch -replied that the right to the fishery did not spring from the treaty -of 1495, which had been made merely to avoid contests that previously -occurred. As the result of conferences with the Dutch representatives, -the Swedish mediators informed Jenkins and Williamson that the -States-General would not consent to an annual payment for the right -of fishery, but they suggested, as the Prince of Orange had done once -before, that the matter might be compromised by the payment of a lump -sum. Charles declined this proposal, but he reduced the amount of the -yearly payment he asked by half--to £5000 for the English fishery and -£1000 for the Scottish. The conference was at the same time informed -that it was then, and always would be, the “passion” both of king and -subject in England to assert and preserve the great royalty of the -fishery. - -Since the Dutch would not agree to the payment of an annual tribute for -the liberty to fish, and Charles would not agree to a lump sum, the -mediator suggested that the Dutch might be asked for a small yearly -payment for the privilege of drying their nets on shore. This ingenious -device roused the suspicions of the English delegates, who feared the -tabling of a clause which would represent the tribute as for the use -of the land and not for the liberty of fishing. Charles agreed with -them in refusing the compromise, telling them that the article about -the fishing was “to be barely and solely for the liberty of fishing on -his Majesty’s coasts,” and was not to be mixed up with any question of -drying nets. They were also told to make it clear that his license was -to be a “successive permission” only, from his Majesty to the Dutch, -for liberty to fish, and to take care, not to part wholly with his -right in the fishery to them. By an arrangement of this nature Charles -and his successors would have been free to follow the example of the -kings of Denmark in dealing with the dues at the Sound--that is, in -gradually raising the amount.[910] - -Passing from this subject to the question of the flag, it was soon -apparent that the Dutch had been too sanguine in thinking there would -be little difficulty in dealing with it. The mediators, in drawing up -a protocol of the English demands, had modified the article put in -concerning the flag. The English had confined themselves to the bare -words “the right of the flag” (“le droit du pavillon”), to which the -Swedes added, “in the manner your Excellencies (the Dutch ambassadors) -projected.” The Dutch, in short, had expanded the meaning of the -nineteenth article of the treaty of Breda so as to omit the troublesome -and objectionable words “the British seas,” their proposed article -being “that ships of the United Provinces meeting British ships _at -sea_ should lower the top-sail and the flag, in such manner as the same -had ever been previously observed.” Jenkins and Williamson strongly -opposed the omission of the phrase “the British seas.” They declared -that the King of England had a special right and immemorial prerogative -in those particular seas, but if he grasped at the same honour in -all places, not only the Dutch but all the world besides would have -reason to dispute it with him. They said further that the king wished -that yachts, by name, and all vessels whatsoever in his service and -carrying his colours, flag, or jack, should have the same honour paid -to them. They also objected to the clause “in such manner as,” &c., as -being vague and open to misunderstanding, and insisted that it should -be set down clearly what the Dutch were to do and how they were to -do it in the future. They wished, in short, to bind the Dutch by an -express stipulation to the view that the meaning of the clause in the -previous treaties was that whole fleets should strike to any single -vessel in the king’s service in the British seas, while leaving “the -British seas” undetermined; and they tabled an article to that effect. -Both the Dutch and the mediators objected to this clause as asserting -positively that to have been the custom in former times, and saying -that to admit it would be to condemn themselves in what they had done -in regard to the _Merlin_. They were quite willing, they said, to do -the thing for the future, but it was unreasonable to ask them to avow -so openly that they had been in the wrong in not doing it hitherto. To -this the English replied that it was most certainly and notoriously an -ancient right of the crown of England, of which they had proofs in all -ages, and that to omit the words would be to accept of the ceremony as -a courtesy and not as a right. - -At this stage, however, the king sent them a new article about the -flag, defining in part the limits within which the Dutch were to be -asked to strike, and these were from Cape Finisterre to the North Cape -in Norway. These surprising boundaries had been suggested a year or two -before as the limits of the British seas by the Masters of the Trinity -House (p. 478), and no doubt Charles meant them to be so considered. -They were derived primarily from Selden’s _Mare Clausum_, and the -southern limit, Cape Finisterre, had been for some time incorporated -in the Admiralty instructions.[911] The Dutch were thus to be asked to -strike to English ships along almost the whole extent of the western -coasts of Europe, a distance exceeding two thousand miles. - -The English plenipotentiaries did not like this article. They informed -Lord Arlington that when they were preparing the one they had already -submitted, they had wished there had been means to ascertain the bounds -of our seas as well as there was for clearing up the point regarding -whole fleets striking to a single ship; but they had concluded that -the king and the Lords of the Committee (for foreign affairs) looked -upon it as a thing so invidious and difficult as not to be attempted -at that juncture. They explained that they would receive no assistance -from the French ambassador or the mediators, all of whom, they clearly -perceived, had difficulty in containing themselves from disputing -the right of striking at all. As long as they confined the claim to -the British seas they were not afraid of opposition, since they had -overwhelming evidence as to the usage. But if they insisted on the -limits of Cape Finisterre and the North Cape, and supported their -contention with arguments from geography or tradition, or if they were -asked to produce proofs or instances as to “the matter of fact” near -those limits, they foresaw that objections would be raised which they -were not sufficiently instructed to answer. No doubt, they continued, -it might be advantageous to fix some limits in order to lessen the -chance of disputes, but even if mathematical lines could be laid down -and agreed upon, it would not remove all ground of quarrel. Besides, to -fix definite bounds would place upon themselves a burden which properly -lay upon their adversaries; for when the king’s right of the flag was -established as incontrovertible within the British seas, if any one who -was called upon to strike declared he was not in the British seas, he -would have to prove it. This long disquisition failed to convince the -king. He insisted that the previous article, in which the term “British -seas” alone occurred, should be withdrawn and the new article with the -specified limits substituted.[912] - -The influence of certain important changes in political affairs which -had taken place since the congress met now made itself strongly felt -at the deliberations. The position and the prospects of the United -Provinces had greatly improved. The States-General had succeeded in -entering into alliances with the Emperor, the King of Spain, and -the Dukes of Brandenburg and Lunenburg. In the field the movements -of the Prince of Orange and his allies caused Louis to abandon his -conquests with even greater rapidity than he had made them. The English -Parliament, too, from which the Dutch had reason to hope for much, -was about to assemble. It was thus natural that the Dutch ambassadors -and the representatives of their allies at the congress should take a -higher tone in dealing with the peace proposals. Some of the conditions -which had been put forward by France and England were now declared -to mean “utter ruin” to the Dutch, or their “eternal servitude”; and -among them was the demand of Charles for a payment for liberty of -fishing, which it was asserted would make them tributary to England. -The English plenipotentiaries employed all the arguments they could -discover in Selden’s _Mare Clausum_ and other similar works, and in -the volume of State Papers with which they were provided, to convince -the congress that fisheries might be “appropriated” on the high seas -as well as in rivers and lakes, and that the King of England had the -exclusive right to the fisheries off his own coasts. They cited the -example of Genoa with the tunny fishery, the treaties between England -and Denmark concerning the fisheries on the Norwegian coast and at -Iceland, the licenses of the kings of Denmark, the English licenses -to French fishermen and the grant to Bruges, the Act of Richard II., -and the licenses forced by the Earl of Northumberland on the Hollander -busses in 1636. They even displayed the original documents showing -King James’s expostulations with the Dutch in 1618, and the charter -granted to Bruges. It was all in vain. The times had changed. The -Dutch ambassadors could now afford to pass the matter off with a -raillery. They told Jenkins and Williamson that they “would bait the -herrings, as men do carps, to come and feed upon their coasts, and -then they would be in possession of a liberty to fish”; adding that -they would then allow the English to fish upon the Dutch coast without -fear of molestation. More seriously, they said that since no similar -stipulation had been allowed in any previous treaty, the States-General -trusted to the goodness of the king to pass over the article on that -occasion; and Beverning, who was one of the Dutch representatives, -recalled how he had discussed the whole matter with Cromwell in 1653, -who had withdrawn the claim to the fishery. - -No one, neither the mediators nor even the French, the allies of -Charles, gave the English ambassadors any encouragement to insist on -the fishery article; and finally De Groot informed them, in language -more forcible than elegant, that his countrymen would rather “burst” -than submit to any acknowledgment in that matter, and that he believed -the States would sooner forbid their subjects to fish at all than to -ask leave to do so of the crown of England. - -The English ambassadors were forced to tell the king that they had no -hope of obtaining consent to the article about the fishery, unless -indeed the Parliament (which had by this time strongly and boldly -shown its sympathy with Holland) “should happen to stand vigorously -by his Majesty in this demand which he is pleased to make.” They -suggested--almost, one may think, with a touch of irony--that the Dutch -might be offered, as an alternative, “a Bill,” like the proclamation -of James in 1609, or the Act of 2 Richard II. that laid an impost of -sixpence a ton on our own fishing vessels, “wherein,” they added, “if -strangers be not intended (as we humbly conceive they are), they may be -more expressly taken in.”[913] - -Although it was on the fishery article that the negotiations stuck -most, difficulties also continued to arise about the one on the flag. -The Dutch said they were willing to do anything that had been done in -former times by way of respect to the crown of England; they could not -do it as a right, nor could they do anything that might be construed -to be an acknowledgment of the king’s claim to the dominion of the -British seas. They were unable to admit, without proof, that it was -the former practice for a whole fleet of theirs to strike to a single -English ship; and while again affirming their willingness for this -to be done in future, they declined to make any express recognition -of it as a right in the treaty, saying that it would be “abundant -courtesy” if they admitted the words _Maria Britannica_, as in all -their other treaties; it was a term, moreover, which the French could -not be brought to admit into their treaty of Breda, insisting on the -term _maria proxima_ instead. The English representatives would not -condescend to adduce proofs as to the past usage. The king, they -said, would not allow an observance so ancient and notorious to be -questioned as a matter of fact, any more than that England was an -ancient monarchy; and they did not ask for a fuller stipulation than -in the article proposed by Cromwell. On the other side, it was pointed -out that Cromwell had given up all the points raised, especially the -striking of a whole fleet; and, moreover, they could not allow that -all the tract of sea between the North Cape and Cape Finisterre was -the British Ocean, and they hinted they were willing to strike all the -world over without any limitation of places. The English ambassadors -wrote to Arlington that although they had not been instructed to claim -as British the sea between the limits named, yet, if these limits were -adhered to, the Dutch would not fail to alarm the Dane and the Swede, -the French and the Spaniard. They were justly suspicious of the too -generous offer of the Dutch to strike in all seas. They saw in it the -design to make the special right possessed in the British seas, in -virtue of the king’s sovereignty there, less certain and evident in -future ages, and to transform it into a mere mark of civility. Charles -gave way to a slight degree. In February 1674 he sent on another -article, in which the northern limit was brought down from the North -Cape to the middle point of the Land-van-Staten in Norway.[914] - -By this time, however, negotiations for a separate peace between -England and the United Provinces had been begun in London, and the -sluggish congress at Cologne, slowly evolving a general peace, broke up -and dispersed. Charles was driven to negotiate separately by the action -of the Parliament, which financial necessities had forced him to summon -in October, and which lost little time in showing its ill-humour with -his policy. In his opening speech he stated that he had hoped to be -able to announce the conclusion of an honourable peace, but the Dutch, -he said, had treated his ambassadors at Cologne “with the contempt -of conquerors,” and had other thoughts than peace; and he asked for -supplies. Shaftesbury, as usual, filled in the picture. The king, he -said, had expected to meet them with the olive-branch of peace, but -the obstinacy of the Dutch had foiled the negotiations, although his -Majesty’s concessions had been so great. “He could not,” he continued, -“be King of Great Britain without securing the dominion and property -of his own seas: the first, by an article clear, and not elusory, of -the flag; the other, by an article that preserved the right of the -fishing, but gave the Dutch permission, as tenants, under a small -rent, to enjoy and continue that gainful trade upon his coasts.” But -the Dutch, he said, would not agree to any article on the flag that -was clear or plain, and they refused any article about the fishery -except such a one as might convey to them the right of inheritance for -an inconsiderable sum of money, “though it be a Royalty so inherent -in the crown of England, that I may say (with his Majesty’s pardon -for the expression) he cannot sell it.” “There is not,” continued the -Chancellor, “so lawful or commendable a jealousy in the world, as an -Englishman’s of the growing greatness of any Prince at sea. If you -permit the sea, our British wife, to be ravished, an eternal mark of -infamy will stick upon us.” It was therefore the duty of Parliament to -provide the king with more money.[915] - -Parliament was not to be cozened by fair words or beguiled by the -oratorical tropes of Shaftesbury. The Commons boldly affirmed they -would vote no more money unless it appeared that the Dutch were so -obstinate as to refuse all reasonable conditions of peace; and with -regard to other matters they showed a bellicose spirit. The king -resolved to prorogue them suddenly, and went unexpectedly to the House -of Peers and sent for the Commons. When Black Rod approached to summon -them the door was hastily closed, the Speaker was hurried into the -chair, and the following motions were instantly put: that the alliance -with France was a grievance; that the evil counsellors about the king -were a grievance; that the Duke of Lauderdale was a grievance and not -fit to be trusted or employed. Before the motions could be passed, -Black Rod, knocking loudly in the king’s name, was admitted, and the -House rose in confusion. A scene so reminiscent of the days of his -father could hardly be lost on Charles. It was clear that it would be -impossible to continue the Dutch war if its continuance depended on -Parliament voting money for it. - -Shortly afterwards the king found it necessary to summon Parliament -again, and, changing his attitude, he condescended to submit to -them, for their opinion, certain propositions for peace which the -States-General had communicated through the Spanish ambassador. At the -same time he sent privately for John Evelyn, who had been for some -time engaged on a history of the second Dutch war, and asked him to -write something “against the Hollanders about the duty of the flag and -fishery,” no doubt with the intention and object of influencing the -opinion of Parliament.[916] Parliament acted with promptitude. They -passed a resolution, on 27th January 1674, recommending the king to -make a speedy peace. Louis, who saw how things were tending with the -Parliament, having advised the same course, Sir William Temple was -summoned from his orchards a few days later and requested to proceed -to The Hague to conclude the treaty. On the eve of his departure, -the Marquis de Frezno, the Spanish ambassador, announced that he had -received full powers from the States to treat and conclude a peace. The -negotiations were thereupon conducted in London between Sir William -Temple and the Marquis, and they went on so smoothly and speedily that -the treaty was signed at Westminster on 9th February. The two points -that caused the greatest difficulty were the flag and the recalling of -the English troops from the French service: the claim for tribute for -liberty to fish was dropped altogether.[917] - -The article relating to the flag differed from the corresponding -articles in the previous treaties. It was as follows:-- - -“The said States-General of the United Provinces, duly acknowledging, -on their part, the right of the above-mentioned most serene prince, -the King of Great Britain, to have honour paid to his flag in the seas -to be hereafter named, will and do declare and agree, that all and -singular the ships and vessels belonging to the said United Provinces, -whether ships of war or others, whether single ships or in squadrons, -which shall meet with any ships or vessels whatsoever belonging to the -most serene prince, the King of Great Britain, whether one or more, -carrying his Britannic Majesty’s ensign, or flag called the _Jack_, -in any of the seas from the Cape called _Finisterre_, to the middle -point of the land called _van Staten_, in Norway, the foresaid ships or -vessels of the United Provinces shall strike their flag and lower their -topsail, in the same manner and with the like testimony of respect, as -hath been customary in any time or place heretofore, by any ships of -the States-General or their predecessors to any ships of his Britannic -Majesty or his predecessors.”[918] - - * * * * * - -Most writers who have dealt with the subject have followed Temple in -thinking that this article was a great triumph for English diplomacy. -“The point of the flag,” said Temple, “was carried to all the height -his Majesty could wish; and thereby a claim of the crown, the -acknowledgment of its dominion in the narrow seas, allowed by treaty -from the most powerful of our neighbours at sea, which had never yet -been yielded to by the weakest of them, that I can remember, in the -whole course of our pretence; and had served hitherto but for an -occasion of quarrel, whenever we or they had a mind to it, upon other -reasons or conjectures.”[919] - -Temple’s eulogy of his own diplomacy was hardly justified. The Dutch -had offered a similar article at Cologne; the striking of the flag had -been provided for in previous treaties, and it was not in the least, -as Temple should have known well (for De Witt often told him), and as -the wording of the article shows, an acknowledgment of the dominion -of England in the narrow seas. There is nothing in the article of the -Westminster treaty that the Dutch were not perfectly willing to concede -at Cologne. It was an improvement on the arrangement in previous -treaties, inasmuch as the northern and southern limits of the seas in -which the Dutch were to strike were defined, and it was made clear that -the Dutch were to strike to a single English ship. - -But in truth the real diplomatic victory lay with the Dutch. The -striking of the flag is expressly described in the article as a -ceremony of “honour” and a “testimony of respect,”-- a qualification -and attenuation not to be found in the previous treaties. By the -introduction of these words the Dutch gained a point they had long -contended for. Equally pertinent was the omission of the term “British -seas,” which is found in all the earlier treaties,--an omission for -which Charles was in part responsible. The ceremony “of respect” -was to be paid “in any of the seas” between Cape Finisterre and Van -Staten; and while the Dutch refused to consider those seas British, the -English plenipotentiaries at Cologne were unable to contend that they -were British. The limits fixed were therefore, as Sir Philip Meadows -observed, “too wide for dominion and too narrow for respect”;[920] for -we never claimed dominion in the Sea of Norway or the Bay of Biscay, -and the Dutch offered to strike to the king’s flag all over the world. -There is little doubt that the part of the article in which Charles -was most interested was that relating to the striking of a squadron to -a single ship of his, as it furnished a sort of justification for the -action of the _Merlin_ before the war. Temple himself was most anxious -that the “former custom” referred to in all the previous treaties -should be clearly defined; and Charles was entirely satisfied with the -article.[921] - -Notwithstanding Temple’s satisfaction as to the article on the flag, -it did not end disputes on the subject. In the year in which the -treaty was concluded, and in the year following, several episodes -occurred. One of them concerned personages no less eminent than the -English ambassadors who had been at Cologne, and it formed a practical -commentary on the fruitless negotiations in which they had been -engaged. Sir Leoline Jenkins and Sir Joseph Williamson did not return -until after the conclusion of peace, and when the king’s yacht, the -_Cleveland_, which had been sent to bring them over, was lying at -anchor off the Briel, with Sir Leoline on board, a yacht of the States -passed between it and the shore without striking its flag or firing any -guns. When a message was sent from the _Cleveland_ to the commander of -the yacht, who was ashore, telling him he should have struck his flag, -he only shrugged his shoulders and said he had the States’ ambassadors -bound for England aboard. The _Cleveland_ then weighed anchor and went -about a league seawards, where the Dutch yacht and a man-of-war were -lying. Again no flag was lowered to the king’s yacht, and the English -captain asked Jenkins what he should do. Jenkins adduced the case of -Tromp’s striking to the Earl of Arundel in Goeree Road, and also of -Prince Maurice’s yacht, which a few days before had struck “to the -kitchen-yacht in the canal of Delf-Haven, between the houses.” The -captain then remembered that the Dutch had struck to him in that very -place as he passed up to Rotterdam, and he proceeded to take vigorous -measures to compel the “duty.” A shot was fired “under the forefoot” -of the States’ man-of-war, and after a “convenient” interval another -over his poop, and then a third between his masts. This brought a boat -from the man-of-war to say that the States’ ambassadors were “much -astonished” at the shots being fired, and that they would not strike, -as they were within their own ports. But when Sir Leoline Jenkins -sent a formal request to Van Beuningen, one of the Dutch ambassadors, -the man-of-war took in its flag, and the incident ended.[922] In the -following year Sir Leoline Jenkins was again a passenger on board one -of the royal yachts, the _Charles_; on reaching the Maes a Holland -man-of-war saluted with five guns, but kept its pennant flying, and -only took it in and repeated the guns after two shots had been fired -at it by the _Charles_; the men-of-war at the Briel also saluted with -their pennants struck.[923] - -In the spring of the same year Captain Herbert in the _Cambridge_ -encountered six French ships off Dungeness which refused to strike, and -returned the fire, their admiral saying it was the King of France’s -ship, and did not strike. They outsailed the _Cambridge_, said Herbert, -which was no match for them. A few weeks later a French privateer in -the same locality refused to strike to the _Garland_; and the tables -were turned on the English by a Dutch privateer, which fired on a -Whitby merchant vessel for not striking quick enough, and fined the -master six shillings and eightpence for each shot expended, as well as -beating and abusing him.[924] A case of quite a different kind, unique -indeed, as it appears, occurred at the end of 1675. On the return of -the _Quaker_ ketch to England the officers charged the commander, -Captain Joseph Harris, with having lowered his top-sails to a Spanish -man-of-war, supposed to be an Ostend privateer, in the Bay of Biscay, -to the great dishonour of the king. He was tried by a court-martial, -found guilty, and condemned to be shot to death at such time and place -as the Lords Commissioners of the Admiralty should appoint.[925] He -was, however, reprieved and then pardoned.[926] - -Difficulties not infrequently occurred with merchant vessels, and even -with fishing-boats, over this matter of the flag. We find Pepys writing -to Captain Binning of the _Swan_, at Yarmouth, telling him that while -he should take care that the Dutch “do their parts of civility towards -his Majesty’s flag,” he ought not to impose upon them any “innovation,” -the reference being to the taking of twelve barrels of herrings from -each of the offenders in lieu of carrying them into port.[927] Foreign -merchant vessels, especially Spanish and French, were sometimes -brought into port and their masters tried before the High Court of -Admiralty for refusing to strike to English men-of-war. By the strict -law of the Admiralty such vessels might have been forfeited, but -this extreme course was apparently rarely or never taken, the usual -punishment inflicted being fine and imprisonment. Cases of this kind -were naturally apt to raise unpleasant questions with foreign Powers, -and they had to be dealt with cautiously. In 1675, when two Frenchmen -were brought before the court for this offence, the judge, Sir Thomas -Exton, appealed for advice to Sir Leoline Jenkins, then at the Congress -of Nimeguen, and was warned by him to be very careful how he dealt -with the case. He advised him to meddle as little as possible with the -French edicts of 1555 and 1584 (see p. 117), under which the French -Admiralty claimed similar rights, and to “stick to the terms of the -indictment of the Spanish Captain at the Old Bailey,” adding that -although much might be said plausibly on the subject of striking, that -indictment had never been attacked; and he argued against the seizure -and forfeiture of the ship.[928] - -After the third Dutch war several works appeared in which the claims -of England to the salute and to the sovereignty of the sea were -maintained. It has been already mentioned that at the beginning of -1674, when the Dutch offers of peace were received in London, the -king asked Evelyn to write something against the Dutch about the -flag and fishery. As the occasion was pressing, Evelyn extracted the -introductory part of his work on the second Dutch war (a work which -was never completed), and after submitting it to the king, published -it under a rather misleading title.[929] Notwithstanding the haste -shown, the book appeared too late. Peace had been concluded, and the -Dutch ambassador complained about it to the king. Charles ordered it to -be recalled, but with characteristic artifice he instructed that the -copies which were seized publicly to pacify the ambassador should be -immediately restored to the printer, by which means the sales at least -were much increased.[930] About the book itself little need be said. It -is an ill-digested and unveracious account of England’s claim to the -sovereignty of the sea and the fishery, founded on Selden, Boroughs, -and less reputable writers. The author computed the arrears of “rent” -due by the Dutch, and which he said they had engaged to pay for -liberty of fishing, at over £500,000; and he falsified the amount of -“license-money” received by Northumberland in 1636, although the Earl’s -journals, and many other documents, were placed at his disposal. The -most severe criticism of the work was made by the author himself, in a -long and remarkable letter which he sent to Pepys a few years later, in -which he repudiated, _seriatim_, all the “evidences” he had adduced in -favour of the English pretension.[931] - -Another book of more influence than Evelyn’s, because it was for a long -time considered the standard work on the maritime law of England, and -went through many editions, was published by Molloy two years later; -and in it the English pretension received perhaps its most arrogant -expression.[932] Notwithstanding the terms of the treaty of 1674, the -author declared that the striking of the flag was not a mere ceremony -of respect, but an absolute acknowledgment of England’s sovereignty -of the seas, the king granting foreigners a general license to pass -through his seas, “paying that obeisance and duty, like the services -when Lords grant out estates, reserving a rose or peppercorn, the value -of which is not regarded, but the remembrance and acknowledging their -benefactor’s right and dominion.” Molloy held that by the treaty of -1674 the dominion of the British seas was “ascertained” to extend from -Cape Finisterre to Van Staten, in Norway, and similar opinions on this -and on the subject generally were expressed by other writers on naval -matters, as by Godolphin[933] and Zouch,[934] and by most writers on -Admiralty affairs during the remainder of the century and well into the -next. - -With respect to the fisheries, the failure of the previous attempt -to establish a great fishery society did not deter others from being -proposed. Efforts were indeed made throughout nearly the whole of the -reign of Charles to keep the subject alive. An elaborate report was -prepared by Dr Benjamin Worsley, who was Secretary to the Council for -Trade and Plantations, on the Dutch fisheries and the best means by -which a fishery could be established in this country with good hope of -success. He stated that the least valuation generally placed on the -Dutch herring fishery was £3,000,000, and that it was said to employ -1600 busses. Detailed reasons were given for the belief that success -would not attend any attempt to establish a great fishery in England, -unless it received the active support of the king and Parliament, and -unless we were able to undersell the Dutch in the markets, which he -thought by a change of methods we might be able to do. - -Various efforts were made, openly and surreptitiously, to induce -Dutchmen to settle at Yarmouth and Dover; the king even issued a -declaration to encourage this in June 1672. But the schemes failed, -and Sir Arnold Braems suggested that £3000 of the amount expected to -be paid by the Dutch for the liberty of fishing should be devoted to -bringing over busses and men.[935] Early in 1675 a detailed scheme -was laid before Charles for the setting up of a fishery company with -forty busses and a capital of £40,000, the estimated profit in the -first year being placed at £31,463.[936] Among the objections urged to -the setting up of the fishery by the king were the want of seamen and -experienced curers; the acquaintance of the Dutch with the markets and -their spare living, which would enable them to undersell us; and the -laziness of English seamen. These objections were apparently answered -satisfactorily,[937] and in 1677 Charles issued a commission to the -Duke of York, the Earl of Danby, and others for a new society, to -be called “The Company of the Royal Fishery of England,” granting a -number of privileges and £20 per annum from the customs of the port -of London for each buss or dogger. Stock was subscribed to the amount -of about £12,500, which was spent in purchasing busses; but as they -were Dutch-built and manned by Dutchmen, the French, then at war with -the United Provinces, seized six of the seven belonging to the company -and brought the work to a stop. Although the company was reconstructed -later, and an attempt to raise £60,000 to carry it on made with some -success, the death of the king and the troubles which followed caused -the enterprise to be suspended. Thus the endeavours of Charles II. to -create a great national fishery in England were no more successful than -those of Charles I. - - - - -CHAPTER XIV. - -JAMES II. AND AFTER. - - -In the short and troubled reign of James II. little was heard of the -claims of England to the sovereignty of the sea. Bad king as James -was, he rescued the navy from the deplorable condition into which it -had sunk in the later years of Charles,--of which Pepys has left so -graphic a picture,[938]--and the naval officers continued to enforce -the routine duty of the flag; but the domestic troubles with which -he was surrounded prevented him from turning it to account against -any of his neighbours, even if he had been so inclined. And with the -Revolution of 1688 the whole aspect of the question was changed. The -English pretension, as we have seen, had been specially directed -against the United Provinces, but when the Prince of Orange was called -to the English throne as William III., and was thus the ruler in both -countries, it was not to be expected that he would show much zeal in -continuing the policy of the Stuarts against his own countrymen. - -It is true that in the treaty which was concluded between England and -the Dutch Republic in 1689, the article on the flag in the treaty -of Westminster was repeated and confirmed. This, however, was very -much a matter of routine and formality, though it must be said the -Dutch ambassadors in London complained that William was as obstinate -and punctilious about the question of the flag as any purely English -sovereign could have been.[939] But from this time until well on in the -next century England and the United Provinces were united as allies -in the great wars with France. There was thus little room for serious -disputes with them about the flag, the right to the herring fishery, -or the sovereignty of the sea, even if the desire had existed. Against -France, however, William made use of the customary language as to the -English sovereignty of the sea. In the spring of 1689, after William -had been proclaimed King of England, Louis XIV. foresaw the formidable -coalition that would be formed against him, and he boldly issued what -was virtually a challenge to England on the subject. He published an -ordinance on 15th April in which he not only prohibited his officers -from giving the first salute to ships of other nations carrying flags -of equal rank to their own, but ordered them to demand the salute from -foreign vessels on whatever seas or coasts they might encounter them, -and to compel them by force if they refused.[940] That this challenge -of Louis to dispute the sovereignty of the sea was not too presumptuous -was shown in the following year, when the combined fleets of England -and Holland were defeated by the French off Beachy Head. In the -declaration of war against France, in May 1689, the ordinance of Louis -was made one of the reasons for hostilities. “The right of the flag,” -said William, “inherent in the crown of England, has been disputed by -his orders, in violation of our sovereignty of the Narrow Seas, which -in all ages has been asserted by our predecessors, and which we are -resolved to maintain, for the honour of our crown and of the English -nation.”[941] They were strange words to come from the mouth of one who -was Prince of Orange as well as King of England, but the times were -changing and such phrases were soon to become merely empty forms. - -With respect to this ceremony of the flag, which the English professed -to regard as an acknowledgment of their sovereignty on the sea, it -may be said that from this time on it ceased to have much importance -in international affairs. The instructions issued by the Admiralty to -the naval officers continued to be explicit enough, and they indeed -suffered but little change for another century. The commander of one -of his Majesty’s ships, on meeting with any ship or ships belonging -to any foreign prince or state within his Majesty’s seas (which, it -was explained, extended to Cape Finisterre, Van Staten not being -mentioned), was to “expect” such ship or ships to strike their top-sail -and take in their flag, “in acknowledgment of his Majesty’s sovereignty -of those seas,” and if they refused or offered to resist, they were -to be compelled to do so. Within his Majesty’s seas his Majesty’s -ships were in no wise to strike to any; and in other parts only if the -foreign ship struck first or at the same time, except in a foreign -harbour or in a road within gunshot of a fort or castle, in which -case a salute with guns was to be given if the commander of the fort -agreed to answer gun for gun. If any British ship was so far forgetful -of its duty as not to salute the king’s ship by striking the top-sail -as it passed by, when it might be done without loss of the voyage, -they were to be “brought to the Flag” to answer their contempt, or -reported to the Admiralty for proceedings to be taken.[942] Similar -instructions were issued in succeeding reigns, the injunction to compel -by force those who refused to strike being limited to flag officers and -commanders.[943] - -Disputes as to striking appear to have been much less common in the -latter part of the seventeenth and in the eighteenth century than they -were previously, but they sometimes occurred; and the ceremony seems -to have been enforced on Dutch ships, though they were allied with the -English fleet at the time. At all events, the Lords of the Admiralty -in 1694 wrote to the Duke of Shrewsbury saying that the instructions -required the respect of the flag from all nations whatsoever, without -any distinction, and that Sir Cloudesley Shovel had been advised to -that effect.[944] At this period, as indeed always, the Danes were -very punctilious as to Kronberg Castle on the Sound being saluted with -proper respect by foreign ships, and in 1694 Shrewsbury advised the -Admiralty that the king had signified his pleasure that all ships of -war sent to the Sound should salute Kronberg with three guns only, upon -assurance that their salute would be returned by the castle with a like -number of guns.[945] - -Early in the reign of Anne, in 1704, a sanguinary encounter took place -with reference to the striking of the flag that equalled if it did not -surpass in brutality any case that happened under Charles. An English -squadron under the command of Admiral Whestone fell in with a Swedish -man-of-war convoying some merchant vessels. The Swedish commander -refused to strike to the English admiral, on the ground that he had -received strict injunctions not to do so to any flag whatever, even -in the Channel, and thereupon the English proceeded to compel him by -force. After about 150 Swedes had been killed or wounded, as well as -many English, the unlucky man-of-war, with all the merchantmen, was -brought into Yarmouth Roads.[946] Another case of a different kind -happened in 1728, early in the reign of George II. A French man-of-war, -the _Gironde_, under the command of Mons. de Joyeux, on going into -Plymouth Sound on 23rd November, was hailed by an English frigate, -which demanded that he should salute the fortress and the frigate. -The Frenchman replied that the bad weather had prevented his sending -an officer to the governor to agree about a salute, but that he owed -none to the frigate, which carried a pennant only, it being usual to -salute none but flags; and he passed quickly into the port, where the -captain of another frigate sent to ask him if he would not salute -the commodore, who carried a bare pendant, and he returned the same -answer. On coming out again on the 29th the frigate called upon him to -strike his pennant, and on his refusal threatened to fire upon him. M. -de Joyeux, feeling that it was by no means proper to hazard his ship -under the cannon of the castle and the batteries, then complied, and -also saluted the fort with eleven guns, as previously arranged. This -“insult” was made the subject of complaint by France, and when all the -papers had been submitted to the king he instructed that the officer -responsible, Lieutenant Thomas Smith of the _Gosport_, should be -forthwith dismissed the service as having in this particular exceeded -his instructions.[947] - -In the writings of the naval historians of last century one may find -expressed the views which were then prevalent in naval circles as to -the striking of the flag and the sovereignty of the sea generally. They -claimed for the crown of England an exclusive propriety and dominion -in the British seas, both as to the right of passage and the right -of fishing, and the widest limits were assigned to those seas. Thus -Burchett, who was Secretary to the Admiralty, defined them as follows -in 1720: On the east they extended to the shores of Norway, Denmark, -Germany, and the Netherlands, so as to include the North Sea; on the -south they were bounded by the shores of France and Spain to Cape -Finisterre, and by a line from that Cape westwards to meet the western -boundary, thus comprising the Channel, the Bay of Biscay, and part of -the Atlantic Ocean; on the west they extended to an imaginary line in -the Atlantic in longitude 23 degrees west from London, passing from -the southern boundary to latitude 63 degrees north; and on the north -they were bounded by this parallel to the middle point of Van Staten. -These were declared to be the British seas proper, in which the crown -had the most absolute dominion and the right to the honour of the flag -from all other nations; but in addition, it was stated that on the -north and west as far as America and Greenland the crown had also “most -ample rights” in virtue of first discovery and occupation.[948] - -No doubt much of the claim put forward by these writers on behalf of -the maritime dominion of England was stereotyped, and had more form -than substance. Entick, indeed, in 1757, although asserting the right -of Great Britain to an absolute sovereignty of the sea, and to the -striking of the flag as an acknowledgment of it, himself described -this duty as “but an indifferent honorary ceremony.” The changed -point of view in which the matter was regarded was shown also in the -declaration of war by Great Britain against the United Provinces in -1780, because they had joined the Armed Neutrality. It contained -nothing referring either to the flag or to the sovereignty of the sea; -and it was doubtless as a mere matter of form and precedent that a -brief article relating to the striking of the flag was inserted among -the preliminary articles of peace, drawn up at Paris in 1783, and in -the definitive treaty of peace concluded with the United Provinces in -the next year.[949] The time was approaching when this ceremony was -to pass away altogether as a symbol of our maritime sovereignty, even -in the eyes of Englishmen. There was little need of claiming it as -an acknowledgment of our actual naval supremacy during the greater -part of the eighteenth century, for it was obvious to all the world -that British sea-power was supreme. From the reign of Anne onwards the -naval force of Great Britain was overwhelming, and formed a determining -factor in the history of Europe. This country was undisputed mistress -of the seas,--or tyrant of the seas, as our enemies preferred to put -it,--and our old rival, the Netherlands, was left far behind in the -race for naval power as well as in commerce.[950] Nor was it longer -necessary to insist on the honour of the flag in order to stimulate the -valour of our seamen, to keep alive the spirit of maritime glory in -the nation, or to evoke the reverence of foreign peoples. The forcing -of all foreign ships to strike in the British seas became a political -encumbrance unsuited to the times. It was allowed to fall into disuse -when its inconvenience had long outgrown any utility it had possessed, -and the battle of Trafalgar, in 1805, gave the opportunity of departing -from the ancient claim. The naval power of France and Spain having been -humbled, it was thought a convenient time spontaneously to abandon a -pretension which “could not probably have been maintained much longer -except at the cannon’s mouth.”[951] The Admiralty, with the approbation -of the Government, accordingly omitted the arbitrary article from their -instructions for the fleet.[952] - -In the closing years of the seventeenth century and the earlier part of -the next there were many signs that the era of claiming an exclusive -sovereignty over extensive regions of the sea was passing away; and -that, on the other hand, the policy of fixing exact boundaries for -special purposes, either by international treaties or national laws, -was taking its place. Such signs may be observed in the writings of -public men, as in the letter of recantation which Evelyn indited -to Pepys in 1682 (see p. 514), which included a long reasoned -argument against the English pretensions. Still more to the point was -the appearance of an extremely able work by Sir Philip Meadows in -1689, immediately after the Revolution, in which these pretensions -were subjected to the most destructive criticism.[953] Meadows had -considerable experience of public affairs. As Latin Secretary to -Cromwell’s Council--an office to which he was appointed in 1653 in -order to relieve the poet Milton, whose blindness interfered with his -duties--he was conversant with the negotiations then proceeding with -the Dutch; and later, as ambassador to Denmark and then to Sweden, he -had opportunities of acquainting himself with the claims to maritime -sovereignty put forward by those countries. The keynote of Meadows’ -work was, that as the dominion of the seas was apt to become a specious -pretence to a war between England and Holland, while the real causes -of such a war were hidden and remote, nothing would conduce more -effectually to preserve a lasting peace than a true knowledge and right -understanding of the matter. If the claim of England as expounded by -Selden was to be considered the proper standard of right and wrong -between us and other nations, “if what was well written must be fought -for too, not being to be gained but by a longer tool than a pen,” -then the King of England would be cast upon this hard dilemma--either -of being involved in endless and dangerous quarrels with all his -neighbours abroad, or of having his honour and reputation prostituted -at home, as tamely suffering “the best jewel of his crown to be -ravished from it.” The English pretension, he pointed out, differed -from that of Venice, inasmuch as it related not to a bay or gulf, but -to a sea open on both sides which formed the passage of communication -for the northern and southern nations of Europe. Persistence in the -pretension would therefore result in war between the island and the -Continent, as to whether the island should have the sea to herself, or -whether the Continent should have a share of it with her. No nation -had ever acknowledged the claim of England, which, moreover, was not -enforced, because if one foreigner did violence to another, outside -the King’s Chambers, but in the Channel or any part of the so-called -British sea, he did not come under the jurisdiction of the King of -England but under that of his own state. - -While strenuously opposing the pretensions to the sovereignty of the -sea, Meadows agreed with all other authors in holding that every -country had an exclusive right to certain parts of the sea adjoining -its coasts: the difficulty was to fix the bounds. “If there is no -certain standard in nature,” he says, “whereby to ascertain the precise -boundaries of that peculiar Marine Territory I am now speaking to, -which belongs to every prince in right of his land, yet, by treaty and -agreement, they may easily be reduced to certainty. For, as to the -judgment and opinion of private persons, we cannot fetch from thence -any true measure; for though they all agree unanimously that there is -something due of right, yet they vary in the _quantum_, or how much. -Therefore the surest way is to prescribe the limits of fishing betwixt -neighbouring nations by contract, and not by the less certain measure -of territory. For, if no bounds be fixed, how many inconveniencies, -and what a licentious extravagance, may such a liberty run into?” -The Dutch, he said, unless boundaries were fixed, might dredge for -oysters on the coast of Essex, as they did formerly; or fish within -the mouth of the Thames, or in our creeks, havens, and rivers; and -it was unreasonable not to draw a distinction as to fishing between -natives and aliens. Meadows therefore, foreshadowing modern practice, -urged that the boundaries of exclusive fishing should be determined by -treaty, and he prepared a draft article for the consideration of those -concerned.[954] In a later unpublished treatise he advocated much -the same method of mutual agreement with France, with respect to the -striking of the flag, as had been formerly proposed by Richelieu--that -in our half of the Channel they should strike to us, and that in the -half next France we should strike to them.[955] - -Whether or not the writings of Meadows had any influence upon the -practice, or, what is more likely, merely reflected the change in -opinion that had begun, it is from about this time that we find -instances of definite boundaries being fixed, usually in connection -with the rights of fishery, instead of the vague claims that commonly -prevailed. The first case of the kind happened indeed a few years -earlier. In a treaty between James II. and Louis XIV., which was -concluded in 1686, concerning the rights of trading and fishing in -the British and French possessions in America, it was agreed that -the subjects of each were to abstain from fishing or trading “in the -havens, bays, creeks, roads, shoals or places” belonging to the other, -and the liberty of innocent navigation was not to be disturbed.[956] -Though no definite limit was laid down in this treaty, the meaning of -the terms used was well understood; they were practically the same -as those used in the proclamations as to neutral waters in 1668 and -1683. They are interesting as being the first definitions of the kind -which apply to the coasts of America, and they do not materially differ -from the terms used in the treaty of 1818, the interpretation of which -has given rise to so much dispute. Another example for a different -purpose is to be found in a convention between France and Algeria in -1689, which established a limit of ten leagues along the Mediterranean -coasts of France in connection with the operations of the Barbary -corsairs.[957] - -In the treaty above referred to, between Great Britain and France, the -rights of trading and fishing went together. This was a very common -thing in those times, particularly in remote seas, where the two -pursuits were often combined, and it was especially the case in the -northern seas which were supposed to be under the sway of the King of -Denmark. The disputes which occurred between Denmark and the United -Provinces of the Netherlands are of interest in this regard, since -they reveal the methods and the stages by which a defined boundary -was eventually substituted for a general claim to maritime dominion. -They show, moreover, that at the end of the disputes Great Britain -stood by the side of Holland in opposing the Danish pretension to -_mare clausum_, and was altogether in favour of the free sea. It was -apparently the assertion of James I. to a monopoly of the whale-fishing -at Spitzbergen (see p. 181) that induced Denmark to put forward a -similar pretension with regard to Greenland. As early as 1615 a Danish -man-of-war demanded a contribution from Dutch whalers for liberty to -fish there, and the King of Denmark complained to the States-General -that their subjects were carrying on the fishery without his license -and contrary to his rights. The Dutch opposed this claim and sent armed -ships to the scene, which kept the Danes from active interference. A -little later, in 1623, Denmark raised fresh complaints in connection -with the fishing at Jan Mayen, an island discovered by the Dutch, and -which, therefore, according to the charter of the Dutch Arctic Company, -belonged to them. In 1639 Danish men-of-war again interfered with Dutch -whalers, this time at Spitzbergen, in virtue of a decree prohibiting -fishing without a license from the King of Denmark; but the firm -attitude of the States-General, whose fleets were then all-powerful, -cooled the ardour of the Danes. Denmark also raised difficulties -in connection with the cod-fishing in the northern seas. In 1616 -foreigners were prohibited from fishing either at Færöe, Iceland, -or on the coast of Norway, an injunction renewed in 1636 and 1639, -and various limits were assigned with respect to the cod-fishing at -Iceland. In 1636 the Norwegian Government declared that the exclusive -right of fishing pertained to subjects within a distance of four to six -Scandinavian leagues from the coast, which is equal to from sixteen to -twenty-four geographical miles. The Danish claim to _mare clausum_ also -included a monopoly of trade in those remote regions, and the Hanseatic -towns as well as the Dutch were forbidden to carry on traffic with the -natives. But the efforts of Denmark to preserve a monopoly of fishing -and trading in the Arctic seas were intermittent and ineffectual. The -great Dutch Arctic Company (_Noordsche Compagnie_), by their charter -granted in 1614, were entitled not only to the exclusive right, so far -as concerned Dutchmen, “to trade and fish from the United Provinces on -or to the coasts of the lands between Nova Zembla and Davis’ Strait,” -including Spitzbergen, Barent’s Island, and Greenland, but also to the -possession and fishery of any islands they might discover in those -seas. The rights granted to this powerful company were thus directly -opposed to the Danish claim to _mare clausum_, and owing to the -preponderating naval force of the United Provinces, which was behind -them, they eventually prevailed. In February 1691, after the defeat -by the French of the allied British and Dutch fleets off Beachy Head -and the suspension of the Dutch whale-fishing by reason of the war, -King Christian V. issued another decree prohibiting whale-fishing at -Greenland to all but Danish subjects; and in the following year Hamburg -was forced to conclude a treaty with Denmark to enable her citizens to -carry on fishing and navigation in Davis’ Strait. - -It was at this time, nevertheless, that Denmark substituted a fixed -limit at other parts of her dominions for her previous vague and -general claim to maritime sovereignty. By a decree of 26th June -1691, the sea between the south coast of Norway and the coast of -Jutland, within a straight line drawn from Cape Lindesnæs to Harboore -in Rinkjobing, a distance of over a hundred geographical miles, was -declared to belong to Denmark; and it was further ordained that in -places where the king possessed only one of the coasts, the sea was -under his dominion up to the distance at which the land was lost sight -of--_i.e._, within the range of vision. At the end of the following -year (3rd December 1692) another edict was issued declaring that no -one without royal authority would be allowed to carry on whale-fishing -within ten Norwegian leagues, or forty geographical miles, of the -coast.[958] This tendency of Denmark to formulate defined boundaries in -the seas along her coasts was carried further, as we shall see, in the -eighteenth century. - -Within the areas above mentioned, Denmark enforced her authority with -considerable vigour. In 1698 a Dutch ship was seized and confiscated -for fishing at the Færöes; and in the period 1738-1740 great energy was -displayed in repressing violations of the Danish decrees. Several Dutch -ships were fired on by Danish men-of-war for trading at Greenland; -the crews were turned adrift in open boats, and the vessels taken to -Copenhagen, where they were condemned as prize in the Admiralty Court. -In retaliation, a Danish ship was seized at Amsterdam, and then Danish -men-of-war fell upon the Dutch doggers fishing around Iceland, about a -hundred in number, captured four, and dispersed the others without, it -was alleged, offering to molest the British and French smacks fishing -along with them. While bringing the captured doggers to Denmark, one of -them managed to escape, and carried off to Holland the prize crew on -board, consisting of a Danish midshipman and three seamen--an episode -that recalls John Brown’s experience in 1617. These occurrences were -naturally followed by diplomatic controversies. Denmark at first based -her action in seizing the doggers on a decree of 1733, reserving to her -own subjects the exclusive right of fishing and navigating within four -leagues of the coast of all Danish possessions in the Arctic seas; and -the Dutch were accused of carrying on an extensive illicit trade at -Iceland, under cover of fishing. The States-General used the familiar -arguments about the freedom of the seas for fishing and navigation, -urged long-continued possession, and cited an old treaty of 1447 which -gave the Dutch the right to navigate “usque ad Boreæ oras.” Then -Denmark placed her case on its ancient basis, declaring that the kings -of Denmark and Norway had enjoyed from time immemorial the dominion of -the northern seas, and were therefore entitled, even according to the -teaching of Grotius, to the exclusive fishing. They denied that the -Dutch had ever possessed the right of fishery in these seas, alleging -that clandestine acts, punished as soon as discovered, could not be -construed into possession. This revival of _dominium maris_ called -forth an energetic protest from the States-General, and affairs took a -bellicose turn. Denmark sent a squadron north to maintain her claims, -and Holland provided an armed convoy for her whalers and Iceland -cod-smacks, “to defend themselves against the pretensions of the -Danes.” Hostilities were averted by the intercession of Sweden, and of -the British and French Ministers at Copenhagen, in favour of the Dutch -Republic and the freedom of the seas. - -Occasional disputes of the same kind occurred between Denmark and -the United Provinces later in the century. In 1757 a Dutch ship was -arrested--it was said in the open sea--on the ground that it had been -trading in Davis’ Strait, and the matter was adjusted a few years later -by an undertaking that the Dutch vessels would refrain from trading -within the precincts of the Danish possessions. The States-General in -1762 issued a placard to this effect, and they also sent a ship of war -to enforce it. In 1776 an English brigantine and two Dutch vessels -were seized for trading at Greenland, and condemned by the Danish -Admiralty Court, and although on the protests of the British and Dutch -Governments the vessels were released, compensation for detention was -refused.[959] - -Other and later examples of the tendency alluded to, of fixing definite -limits for the rights of the state in the seas washing its territories, -may be found in the international treaties, which were concluded during -the eighteenth century, concerning the rights of fishery on the coasts -and islands of the British possessions in North America, a region of -the world which has furnished numerous examples of agreements of the -kind. One of these, in 1686, has been already mentioned. By the great -treaty of Utrecht in 1713, following Marlborough’s successful campaigns -on the Continent, France ceded Newfoundland and Nova Scotia to Great -Britain; but certain concessions were made to French fishermen, who, -of course, previously enjoyed the right of fishing there, which -subsequently for a long period formed a fertile source of trouble and -dispute. In addition to certain privileges as to landing and drying -fish, French subjects were to be free to fish in the seas, bays, and -other places to thirty leagues from the south-east coast of Nova -Scotia.[960] Half a century later, by the treaty of Paris in 1763, -at the conclusion of the seven years’ war, Canada was ceded to Great -Britain, and the concessions to French fishermen at Newfoundland were -confirmed, with some modifications. Liberty of fishing was also granted -to them in the Gulf of St Lawrence, subject to the condition that they -did “not exercise the said fishery, except at a distance of three -leagues from all the coasts belonging to Great Britain, as well those -of the continent as those of the islands situated in the said Gulf of -St Lawrence.” On the coasts of the island of Cape Breton, outwith the -Gulf, they were not to fish within fifteen leagues of the shore.[961] -These provisions concerning the fishery in the Gulf of St Lawrence and -at Cape Breton were confirmed twenty years later by the treaty of -Versailles in 1783, the article regarding Newfoundland being at the -same time modified.[962] - -In these various treaties the fisheries were dealt with in a special -and exceptional manner, in connection with the cession of the adjacent -territories by France to Great Britain. The French fishermen had always -enjoyed the right of fishing in these seas in virtue of the ownership -of the land; and though full sovereignty over the latter was acquired -by Great Britain, the liberty of fishing, under certain restrictions, -was continued notwithstanding the transference of territory. The -fisheries of Newfoundland and Canada were of great importance. They -were highly valued by France as forming nurseries of seamen for her -navy, and for this reason the preliminary treaty of 1762 was severely -criticised by the Opposition in the British Parliament, and especially -by Pitt, who perceived that the concessions with respect to the -fisheries would enable France to revive her naval power.[963] - -A concession still more extensive, on the same principle, was granted -by Great Britain to the newly-established United States of America -in the treaty of 1783, by which their independence was recognised. -The question of the rights of fishery was very fully discussed in the -negotiations which preceded the treaty; and though Great Britain did -not deny the right of American citizens to fish on the Great Banks -of Newfoundland, or in the Gulf of St Lawrence, or elsewhere in the -open sea, she denied their right to fish in British waters, or to -land on British territory for the purpose of drying or curing their -fish. A compromise was arrived at, and the treaty provided that the -people of the United States should continue to enjoy, unmolested, the -right to take fish of all kinds on the Newfoundland Banks, in the -Gulf of St Lawrence, and at “all other places in the sea where the -inhabitants of both countries used at any time heretofore to fish”; -also on such parts of the coast of Newfoundland as British fishermen -should use, and “on the coasts, bays, and creeks” of all other parts -of the British-American dominions. They were further permitted to dry -and cure their fish on unsettled parts of the coast of Nova Scotia, -the Magdalen Islands, and Labrador, so long as these parts remained -unsettled.[964] It will be observed that by this treaty the liberty of -fishing in the territorial waters of the British possessions in America -was conceded to the citizens of the United States, who had exercised -the fishery before their independence was declared. They continued to -enjoy the right which they had had as British subjects after they had -ceased to be British subjects, and they did so until the war of 1812. - -With regard to the fisheries at home, in whose interest James I. had -originally raised the question of the sovereignty of the sea, the -clamour against the Dutch gradually died out, or was only heard at -intervals and received but scant attention. Pamphleteers continued to -denounce the liberty allowed to foreigners to fish along the British -coasts, and drew the usual picture of the great national advantage that -would flow from the creation of native fisheries to rival those of the -Dutch.[965] Under James II., William, Anne, and the Georges, the policy -of fostering the fisheries by protective legislation and by means of -organised societies or associations was continued, with but little -good result. The most serious attempt was made in the middle of the -eighteenth century, when an Act was passed[966] for the incorporation -of “The Society of the Free British Fishery,” giving power to raise -a stock of £500,000, and guaranteeing 3 per cent interest on the sum -raised within eighteen months,--which amounted to £104,509,--as well -as conferring various privileges and immunities, including a tonnage -bounty to encourage the equipment of busses. This society, which -was incorporated in the autumn of 1750, with the Prince of Wales as -Governor, had a chequered career. Its headquarters were pitched at -Southwold, Suffolk, where docks were built and buildings erected. In -1756 it possessed thirty busses and six “yagers” to carry the pickled -herrings to Hamburg and Bremen, the masters of the busses being Dutch -or Danish, and the crews chiefly from Orkney, the fishing being carried -on at the Shetlands and down the coast to Yarmouth. Financial and -other difficulties were encountered, some of the vessels being taken -by French privateers, and all the remaining busses and effects were -sold in 1772 for £6391. Half a century later, the relics of some of the -discarded busses were dug out of the mud at Southwold. - -The Act above referred to was the parent of many others designed to -encourage the fisheries, chiefly by providing bounties; but probably -more effective than such measures in stimulating the native industry -was the decay which overtook the fisheries of the Dutch. This decay -was no doubt due to several causes, but among the chief must be -reckoned the frequent maritime wars of the eighteenth century in which -the United Provinces were engaged. Their herring-busses were often -captured or destroyed, sometimes in large numbers at a time, as in -1703, when a French squadron fell upon them at Shetland and burned many -of them--variously stated at from 150 to 400.[967] Not infrequently -their herring fishery was entirely suspended, it might be for a series -of years, owing to the inability of the States-General to protect the -fishing vessels from the French or the British cruisers; and such -interruptions told seriously upon a business which depended so largely -on the export trade of the cured herrings. From these repeated blows -the Dutch fisheries never recovered, and the fleets of busses gradually -dwindled. In 1703, 500 of them fished at the Shetlands and southwards -along the coast; half a century afterwards there were but little over -200; and in the later years of the century the number sank as low as -120, which scarcely exceeded the vessels from Denmark, Prussia (Emden), -and Belgium. Thus the part of the pretension to the sovereignty of -the sea which related to the fisheries along the British coasts was -gradually solved, the British fisheries, now the greatest in the world, -rising on the ruins of the Dutch. - - - - -SECTION II. - -THE TERRITORIAL WATERS - - - - -CHAPTER I. - -THE HISTORICAL EVOLUTION OF THE TERRITORIAL SEA. - - -From what has been said in previous chapters, it is apparent that -the extensive claims which were formerly made to the dominion of the -English or British seas were practically abandoned in the eighteenth -century, and the pretensions of other states to a similar and more -effective dominion in particular seas long ago shared the same fate. -It is now settled as indisputable, both by the usage of nations and -the principles of international law, that the open ocean cannot be -appropriated by any one Power. But it is also as firmly established -that all states possess sovereign rights in those parts of the sea -which wash their shores, although there is not, and has never been, -universal agreement as to the precise nature of those rights, or as to -the extent of the sea that may be thus appropriated. While the general -movement of opinion and practice in modern times has thus been from -the _mare clausum_ to the _mare liberum_--from the sea held to be -appropriated by particular nations to the sea under no sovereignty, but -free and open to all for all purposes,--there has been another movement -in the opposite direction, by which the exclusive rights of maritime -states in the waters immediately adjoining their coasts have come to be -more clearly recognised and definitely incorporated in international -law. To this extent all maritime countries now possess a sovereignty of -the sea. - -It is desirable to trace the evolution of this limited sovereignty over -what is now known as the territorial waters or territorial sea (also -named the neighbouring, proximal, adjacent, or littoral sea--_mare -proximum_, _mare vicinum_, _mer territoriale_, _nächstangrenzendes -Meer_), and to consider in particular the two main aspects it -presents,--first, the actual practice of nations on the one hand, and, -second, the opinions of the accredited writers on international law. - -The sovereignty over the so-called territorial sea has sometimes been -regarded as the direct remnant of a sovereignty which was previously -asserted by particular nations over whole seas or large parts of -them.[968] This is true in a general sense, but in tracing the -historical evolution of the territorial waters it is found that the -steps by which the transference was effected varied in different cases. -The pretensions of Denmark, for example, to a wide dominion over the -Norwegian Sea and the North Atlantic, were slowly curtailed by gradual -concessions to the opposition of other Powers, so that the extensive -territorial waters at present pertaining to Norway may be looked -upon as the residuum of the ancient claim. The exclusive rights have -persisted, while the area over which they are exercised has dwindled. -In like manner, the equally extensive territorial waters of Sweden -may be regarded as an abridgment of her old claims in the Baltic. The -same process may have operated in the case of Spain and Portugal, both -of which Powers now claim maritime sovereignty to a distance of six -miles from their coasts; but here the successive stages of contraction -are not obvious. The territorial sea now held to pertain to Great -Britain, so far as it has been defined, did not originate in this way, -by direct descent from the old claim to the dominion of the British -seas. That claim simply died out and vanished in the lapse of time, -without apparently leaving a single juridical or international right -behind it. The British territorial waters, as usually defined, are of -modern origin, and were derived from the international jurisprudence of -the Continent, and especially from the doctrine of Bynkershoek, to be -referred to later. - -Even during the time when some nations were asserting a wide maritime -dominion, and other nations were opposing such pretensions, there -was a general recognition that every maritime state was entitled to -exercise jurisdiction over some extent of the neighbouring sea. This -was admitted by the most thoroughgoing advocates of the _mare liberum_, -as by Grotius himself, and it was acknowledged by the common usage of -nations. The rights exercised by the crown of England, for instance, -in the so-called King’s Chambers in the seventeenth century were -apparently not challenged by foreign Powers. But while the sovereign -rights of a state over a part of the adjacent sea were recognised by -the usage of nations and the opinions of publicists, there was no -agreement as to the extent which might be appropriated, and various -limits or boundaries have from time to time been proposed or adopted, -by which the sea pertaining to a state might be divided off from that -which was open and free to all. From an early date attempts were made -by jurists to discover some general principle or to lay down rules -which might be applied in all such cases. Some of these rules were of -such a nature as to assign to states an extent of sea almost as great -as any comprised under the widest claims to maritime sovereignty, and -none of them received a general assent. The early English lawyers of -the twelfth and thirteenth centuries, Glanville, Bracton, Britton, and -“Fleta,” merely followed the Roman law with regard to the sea--that is -to say, they held that it is by its nature common, like the air, and -they did not suggest any limit within which the prince of the adjoining -state had exclusive jurisdiction or dominion (see p. 66). - -It is in the writings of the early Italian jurists, who lived after -the time when Venice by force of arms had established her sovereignty -over the Adriatic, that we first meet with proposals to assign legal -limits to the maritime jurisdiction of the neighbouring state. Bartolus -of Saxo-Ferrato, a great Perugian jurist who died in 1357, and whose -authority in the middle ages was very great, declared the law to be -that jurisdiction extended to a distance of one hundred miles from the -coast, or less than two days’ journey from it. Within this space the -ruler had power to apprehend and punish delinquents just as he had on -land.[969] Baldus Ubaldus, another eminent Italian jurist, who was a -pupil of Bartolus and died in 1400, also allotted a wide limit to -the maritime rights of the prince of the adjoining territory; but he -reduced the space from one hundred to sixty miles, a distance which -was supposed to be equal to one day’s journey from the coast.[970] The -boundaries assigned by these jurists, or sometimes the equivalent of -one or two days’ voyage from the coast, were very generally accepted -by civilians later, although frequently with qualification, more -particularly as to the nature of the rights to be exercised.[971] -Bartolus confined the rights of the prince to jurisdiction and the -appropriation of islands, and since the distance prescribed included -the space within which navigation in those times was almost entirely -restricted, it is probable that the primary idea was the maintenance of -order and the suppression of piracy. The underlying principle was the -range of navigation from the coast or from a port, just as later it was -the range of guns. - -Baldus seems to have gone a step further than Bartolus by including -sovereignty (_potestas_) as well as jurisdiction (_jurisdictio_) -among the rights of the neighbouring prince, and he declared that -the proximal sea pertained to the territory of the adjoining state, -which, as in the case of Venice, had power to impose taxes for the use -of it.[972] Much the same opinion was expressed by Bodin, a French -lawyer who wrote about the middle of the sixteenth century. When -speaking of the taxes or tolls that might be imposed by a state, he -said that though the sea was incapable of appropriation, it was in a -measure accepted that for a distance of sixty miles from the shore -the prince of the adjoining country could impose law on those who -approached the coast, and that it had been so adjudged in the case of -the Duke of Savoy.[973] Gentilis, writing at the beginning of the next -century, stated that it was laid down by the civilians that not only -jurisdiction, but dominion, pertained to the neighbouring state as -far as one hundred miles from the coast, and even further unless the -proximity of another state interfered.[974] - -It is thus clear that long before the beginning of the seventeenth -century, the original simplicity of the Roman law regarding the -appropriation of the sea had undergone a change at the hands of its -commentators, and that the doctrine of sovereignty or dominion over a -very considerable maritime zone was widely held by jurists. But there -is no evidence that either of the boundaries prescribed by Bartolus -or Baldus was sanctioned by the general usage of nations. They do not -appear ever to have been adopted by any state of northern or western -Europe as the limits of its territorial sea or maritime sovereignty; -although they were occasionally used in arguments in State Papers, -as when the Earl of Salisbury justified to the Spanish Court King -James’s proclamation of 1609 against unlicensed fishing, on the ground -that maritime jurisdiction was “generally received to be about one -hundred miles at the least into the seas.” The actual application of -these large boundaries appears to have been confined to parts of the -Mediterranean, where the doctrine took its rise, and where it survived -till the eighteenth century.[975] A more recent and a curious survival -of the old boundary of Bartolus is to be found in the abortive Russian -Ukase of 1821, by which foreigners were prohibited from navigating in -Behring Sea within one hundred Italian miles of the coast, a claim -which was revived by the United States as late as 1891.[976] - -Another general principle for the demarcation of the seas belonging -to a state had even wider currency than the above. It consisted in -the transference to the sea of the principle of the mid-channel, or -_thalweg_, as applied to rivers in apportioning the waters pertaining -to either bank,--a doctrine laid down in Roman law and in vogue among -the Anglo-Saxons as early at least as the seventh century.[977] The -_thalweg_ or mid-channel was not infrequently a boundary between -contiguous states, and it was not a great step to transfer its -application in theory from wide rivers and estuaries to intervening -seas. In this way the mid-line in the sea lying between the coasts of -two states was held to be the boundary of their respective maritime -jurisdiction or sovereignty. The whole extent of a sea stretching -between territories belonging to the same state, however far apart -these territories might be, was looked upon as being under the -sovereignty of that state. This principle, therefore, covered most -extensive claims to maritime dominion, since it left hardly any part -of the sea unappropriated. The mid-line as an international boundary -was in the case of narrow seas logically derived from the tenets of -the Italian lawyers, but there are grounds for believing that it may -have been much older. An ancient example of its use in a limited way -is to be found in King Cnut’s charter, in 1023, granting the port of -Sandwich, in Kent, to the Church at Canterbury, by which certain rights -of wreck up to the middle of the sea were conferred on the monks. After -mentioning “the great sea without the port,” it provided that half of -whatever was found “on this side of the middle of the sea,” and brought -to Sandwich, should belong to the monks and half to the finder.[978] -Cnut’s charter cannot be taken as expressing any direct claim to -jurisdiction to the middle line, but as wreck was a prerogative of the -crown--and this is the first grant of it--the limit assigned seems to -imply a differentiation of authority. More pertinent is the statement -in the _Mirror of Justice_, a law-book written about the end of the -thirteenth century, and attributed to Andrew Horn, who was Chamberlain -of London in the reign of Edward II., that the king’s sovereign -jurisdiction extended as far as the middle line of the sea surrounding -the land.[979] Plowden, the Elizabethan lawyer, believed that this -work contained the law as it existed before the Norman Conquest, but it -is now declared to contain much that is spurious. Whether that be so or -not, there is no doubt that this principle of maritime delimitation was -adopted by many of the lawyers and scholars of Elizabeth’s time, as Dee -and Plowden.[980] Even well on in the next century no less a personage -than Lord Chief-Justice Hale, in an early unpublished treatise on the -law of the customs and seaports, maintained that the king had “right of -jurisdiction or dominion of so much at lest of the sea as adjoines to -the British coast nearer then to any forren coast.”[981] From internal -evidence this tract appears to have been written about 1636, and the -influence of Selden’s _Mare Clausum_, which was published at this -time, and in which the mid-line was repudiated as a boundary of the -British seas, was shown in Hale’s later treatise. In it the mid-line -was abandoned, and the “narrow sea, adjoining to the coast of England,” -was declared to be “part of the waste and demesnes and dominions of -the King of England,” who had in it the double right of jurisdiction -and property or ownership, “Master Selden” being referred to as -authority.[982] - -There is no evidence that the principle of the mid-channel as applied -to the sea was ever homologated by an English sovereign or Government. -Notwithstanding its currency in the reign of Elizabeth, we know -that it was explicitly disavowed by the queen herself in diplomatic -controversy with the King of Denmark, who, in virtue of it, claimed -the whole of the sea between Norway and Iceland. Still earlier the -English Parliament vainly petitioned the victorious Henry V., fresh -from his conquests in France, to impose tribute on vessels passing -through the Channel, on the ground that he possessed both shores, and -therefore had a legal title to the intervening sea.[983] But although -the mid-line appears never to have been clearly adopted, there are -two circumstances, both referring like Cnut’s charter to the Channel, -which may point to its ancient usage there. One is that an important -fishing-bank, the Zowe or Sow, extending about one-third across the -Channel between Rye and Dieppe, was recognised by France as within the -English jurisdiction, and French fishermen for a very long period were -in the habit of procuring licenses from the Warden of the Cinque Ports -for permission to fish there (see p. 65). The other is that when the -question was raised as to how far the jurisdiction of the Cinque Ports -extended into the sea--in connection apparently with complaints against -French fishermen towards the end of the reign of Charles II.--the -Trinity House, while avowing their own ignorance, stated that the -Sergeant of the Admiralty within the Cinque Ports claimed to exercise -his authority “half seas over or further.”[984] - -The methods of delimitation hitherto mentioned consisted in drawing -imaginary lines in the sea, usually at a considerable distance from the -coast. Another principle, which probably originated among seafaring -men and was capable of being made use of in a rough-and-ready fashion, -depended on the range of vision on a fair day, seawards from the -shore, or usually from the sea to the land. The space of sea between -the coast and the horizon, or _vice versâ_, was regarded as belonging -to the adjoining state. This was the principle adopted in Scotland, -but it was not confined to that country. It was employed in olden -times in England to determine whether a bay or arm of the sea was -within the body of a county, _inter fauces terræ_, and therefore -under common law, or part of the high sea and under the jurisdiction -of the Admiral.[985] An early instance of its adoption as a boundary -of international jurisdiction is to be found in the nautical laws -prescribed for the Netherlands in 1563 by Philip II. of Spain, by which -it was forbidden, on pain of death, for any violence to be done by -reason of war, or for any other cause, to his subjects or allies, or -to foreigners, on the sea within sight of the land.[986] Grotius also -referred to the range of vision as a boundary, when he said that the -controversy respecting the freedom of the sea was not about bays or -straits, or “so much of the sea as might be seen from the shore.”[987] -We have already seen that in Scotland the fisheries within sight of -the coast, or a “land-kenning,” were claimed as belonging exclusively -to the Scottish people. In this case the range of vision was from the -sea to the land, and it was to be determined from the main-top of the -fishing smack.[988] The extent of a land-kenning was stated to be -fourteen miles, and this was the distance expressed in the Draft Treaty -of Union in 1604, and pressed upon the Dutch by King James in 1618; -but sometimes twenty-eight miles, or two land-kennings, was claimed; -and it is to be noted that in the case of bays and firths the distance -was measured from a base-line drawn between headland and headland. -The range of vision, or land-kenning, as the boundary of the reserved -fishing waters, was embodied in Scottish law as well as claimed against -other nations by the Privy Council, the Parliament, and the king.[989] - -It was also conceded to Denmark, for in 1618 the Privy Council -prohibited Scottish fishermen from fishing within sight of land at -the Færöe Isles. The King of Denmark, indeed, assigned the same limit -in a decree of 1691 with regard to places where he did not possess -the opposite coasts.[990] Although the principle was not formally -acknowledged by the Dutch in determining their fishing on the British -coasts, they agreed to adhere to it (see p. 193); and there is evidence -to show that the British cruisers caused them to respect this limit, at -all events in connection with the herring-fishing at Yarmouth.[991] A -later example of the adoption of this limit is to be found in a treaty -concluded in 1740 between the Porte and the King of Naples, by which it -was stipulated that neither party would permit vessels to be pursued or -molested on their coasts within a distance at which ships could discern -the land.[992] - -The method of determining the extent of the territorial sea by the -range of vision was vague and open to obvious objections, even though -it was ascertained only on a fair day. The distance, as Bynkershoek -pointed out, would vary according to the position of the observer, the -keenness of his vision, the climate, and many other circumstances, -and it was inapplicable to narrow seas, such as the Channel, where -the opposite coasts belonged to different states. It is, however, -questionable whether, under proper rules, it would have furnished a -zone much less definite than that of the range of guns. It has been -proposed by some modern publicists, as Rayneval, Azuni, Heffter, -and Godey, as a boundary of territorial waters; and if it had been -generally adopted as a principle of delimitation, there is no doubt -that the equivalent distance of fourteen miles as used in Scotland -would have proved more satisfactory in several respects than the -ordinary limit of three miles, which was supposed to represent the -range of guns. - -Still less definite was another principle, if such it can be called, -which was proposed as a guide in allotting the space of sea within -which exclusive rights of fishing should belong to the adjacent state. -Welwood, Selden, and many others, held, in opposition to Grotius and -his school, that the fisheries along a coast might be exhausted or -injured by promiscuous fishing, and that the inhabitants of the coast -had a primary right to the _fructus_ of the adjacent sea, as against -the intrusion of foreigners--a principle which lay at the root of the -Scottish claims to the “reserved waters.” Sarpi, an Italian author of -the early part of the seventeenth century, in a work defending the -claims of Venice, formulated the opinion that the extent of territorial -sea should not be fixed everywhere in an absolute manner, but should -be made proportionate to the requirements of the adjoining state, -without violating the just rights of other peoples. Thus a country -or city which possessed large and fertile territories that provided -adequate subsistence for the inhabitants, would have little need of the -fisheries in the neighbouring sea, while one with small territories -that drew a large part of its subsistence from the sea ought to have a -much greater extent of sea for its exclusive use.[993] This doctrine, -though obviously difficult of application internationally, has much -to recommend it on grounds of reason and justice. It is one of the -fundamental principles on which Norway claims at the present day an -unusually large extent of territorial sea. - -With regard to bays, straits, and arms of the sea, the general usage -from the earliest times has included them within the jurisdiction of -the neighbouring state. They have been always regarded as differing -from the sea on an open coast, the only disputes about them referring -to the size of such areas that might justly be looked upon as -territorial. By the old common law of England, which Hale dates as far -back at least as the reign of Edward II. (1307-1327), bays, gulfs, or -estuaries, of which one shore could be “reasonably discerned” from the -other shore, were regarded as _inter fauces terræ_, and within the body -of the adjacent county or counties, so that offences committed there -were triable at common law. But along the coast, on the open sea, the -jurisdiction of the common law extended no farther than to low-water -mark; beyond that it was high sea, or _altum mare_, and under the -jurisdiction of the Admiral.[994] Here we see a sharp distinction -drawn between bays and the open coast, the former being included -within the realm as part of the territory. It seems reasonable on many -grounds that the waters lying in view between two parts of the same -continuous territory should have been regarded as pertaining to that -territory, and it may be noted that in early times the navigation of a -vessel along a coast was conducted from headland to headland, and thus -a distinction was likely to arise between the open sea lying outside a -line joining the headlands, as a waterway common to all, and the sea -inside the headlands as an access to the territory. The distinction was -maintained from an early period with regard to international relations. -Reference has already been made to the treaty arranged by Cardinal -Wolsey in 1521, in which it was stipulated that English harbours, -bays, rivers, and roads should be exempt from hostilities between -belligerents, and to the proclamations of King James in 1604, and of -succeeding sovereigns, defining the extent of the King’s Chambers, or -bays, according to ancient custom, for purposes of neutrality.[995] -It is interesting to note that the rights exercised within the King’s -Chambers, or bays, on the coasts of England referred only to neutrality -and had nothing to do with fishing, while in Scotland it was exactly -the opposite. The large bays and firths on the Scottish coast were -reserved for fishing, without any specific reference to the rights -or obligations of neutrals. The differentiation of bays and arms -of the sea from the territorial belt on open coasts has persisted -to the present day, both in the writings of publicists and in the -practice of nations, although the introduction of another principle -of delimitation has tended to keep the claims to bays within moderate -bounds. - -The various methods of determining the territorial waters of a state -referred to above were more or less arbitrary, and did not rest upon a -natural basis capable of universal application. During the seventeenth -and eighteenth centuries another principle was gradually evolved, and -was ultimately accepted as furnishing such a natural basis, so that it -may now be regarded as an established part of international law. It -was, that the maritime dominion of a state ended where its power of -asserting continuous possession ended. The belt of sea along the coast -which could be commanded and controlled by artillery on shore thus -came to be regarded as the territorial sea belonging to the contiguous -state. Beyond the range of guns on shore the sea was common. - -This principle was of slow growth. It did not even receive definite -expression among jurists until the beginning of the eighteenth -century; but as previously stated (see p. 156), the Dutch ambassadors -who came to London in 1610, to endeavour to induce King James to -withdraw his proclamation against unlicensed fishing, made use of it -in their conferences with the English Ministers, not improbably at the -instigation of Grotius. But whether or not Grotius was the person who -enunciated the principle in 1610, it is in his writings that we first -meet with it, although in a veiled form. It is not mentioned in _Mare -Liberum_, but in his greater work, the Law of War and Peace, which -was published in 1625, he said that a state might acquire sovereignty -over parts of the sea, in regard to persons by an armed fleet, and “in -regard to territory, as when those who sail on the coasts of a country -may be compelled from the land, just as if they were on the land.”[996] -The principle of compulsion from the land is clearly enough expressed, -and though Grotius did not define the nature of the compulsion to be -exercised, modern writers have generally held that what he meant was -compulsion by artillery. If Grotius was the author of the dictum of -1610, he must have had reasons for expressing it in a less definite -form in 1625,--perhaps owing to his employment at that time by the -Queen of Sweden, to whom the naked doctrine would have been no more -attractive than to James. - -For a long time, however, the doctrine was equally neglected by -publicists and statesmen. This may have been partly due to the somewhat -obscure and incidental way in which it was advanced, but probably -mainly to the fact that the time was not ripe for its acceptance. It -represented much too stringent a limitation of the territorial sea to -receive general assent. Selden does not refer to it, and it was passed -over by the authors, such as Pontanus,[997] Burgus,[998] Shookius,[999] -Conringius,[1000] and Strauchius,[1001] who favoured more or less -extensive claims to maritime dominion, while even writers who opposed -such claims, as Stypmannus[1002] and Graswinckel,[1003] do not adopt it. - -The opinions of Grotius with respect to the appropriation of the sea -had, indeed, comparatively little influence among jurists in the -seventeenth century. The views which prevailed in the latter part of -the period are rather represented in the works of two of the writers -whose reputation was greatest, Loccenius and Puffendorf. Loccenius, a -Swedish author who wrote about the middle of the century and is still -quoted as an authority, declared that while a nation could not acquire -a universal dominion over the sea, it might possess sovereignty in a -particular sea as far as it was under its power or dominion, subject to -the rights of innocent passage and navigation by others; and he cited -as examples Sweden and Denmark, which exercised sovereignty in the -Baltic.[1004] As a general rule, however, Loccenius held that states -had jurisdiction only in the waters adjacent to their coasts, for the -preservation of peaceful navigation; but no attempt is made by him to -lay down any fixed rule or limit as to the extent of such jurisdiction. -He merely contrasts the opinions of those, as Baldus and Bodin, who -contended for a wide limit of sixty miles, or two days’ journey, with -those who argue for a narrow but undefined space in the neighbouring -sea. - -The celebrated Puffendorf, whose authority later was only second -to that of Grotius, dealt with the question in his great work on -the Law of Nature and Nations, and with even less precision than -Loccenius.[1005] On the general question of the appropriation of the -sea he discarded the objection that its fluidity rendered it incapable -of possession, but held that it would be morally impossible for one -nation to possess the ocean. He also set aside the moral objection in -the absolute form in which it was put forward by Grotius, that the use -of the sea was inexhaustible. On the contrary, he held with Selden and -Welwood that fisheries in the sea might be exhausted by promiscuous -use. “If all nations,” he said, “should desire such a right and liberty -(of fishing) near the coasts of any particular country, that country -must be very much prejudiced in this respect; especially since it is -very usual that some particular kind of fish, or perhaps some more -precious commodity, as pearls, coral, amber, or the like, are to be -found only in one part of the sea, and that of no considerable extent. -In this case there is no reason why the bordering people should not -rather challenge to themselves this happiness of a wealthy shore or -sea, than those who are situated at a distance from it.”[1006] On this -ground, the right of exclusive fishing, and also for the security and -defence of the state, a nation was justified in claiming dominion in -the neighbouring sea. The extent of this territorial sea, he says, -cannot in general be accurately determined; but it is clear that he -thought it might be very considerable. We had the power to abridge -others of the use of the sea by forts on shore, in narrow creeks -and straits, or by armed fleets; but it would, he thought, show -unreasonable jealousy to claim “some hundreds of leagues.” The true -bounds could only be discovered either from “the right of possession” -of a state, or from its treaties with its neighbours. Gulfs, channels, -or arms of the sea, on the other hand, were “according to the regular -course” supposed to belong to the state which had possession of the -shores. If the shores belonged to several peoples, the sovereignty was -distributed to the middle line, unless treaties directed otherwise, -or one people had obtained the exclusive sovereignty by convention, -conquest, or prescription. - -We thus perceive that the opinion of jurists at the end of the -seventeenth century with regard to the appropriation of the sea was -very much what it was at the beginning. With the exception of the -clear and terse declaration of the Dutch ambassadors in 1610, and the -somewhat dubious dictum of Grotius in 1625, the principle that the -maritime sovereignty of a state was limited by the range of guns from -the shore does not appear to have been advanced throughout the century. - -Nor does an examination of the usage of nations during the period -show that the opinions of publicists were at variance with the -actual practice. All maritime countries enforced an unquestionable -jurisdiction, more or less extensive, in the neighbouring seas, -and several of them exercised dominion over particular regions. -The extravagant pretensions of Spain and Portugal had long since -vanished; but Venice, while sadly fallen from her former greatness, -still asserted her sovereignty over the Adriatic. Sweden and Denmark -possessed a joint sway over the Baltic; and Denmark maintained her -claim to the northern seas between Iceland, Greenland, and the coast of -Europe. Moreover, the pretensions of England to the sovereignty of the -so-called British seas, although in abeyance, had not been withdrawn. -The striking of the flag was still enforced by English men-of-war, and -there was nothing to prove that the other phases of the pretension -might not be revived at any time. - -With regard to the extent of neutral waters, it would appear that -the boundaries were as a rule vague, and that general considerations -determined jurisdiction in particular cases. In connection with the -declaration of war by the United Provinces against France in 1689, -a placard was issued by the States-General in which both Dutch and -foreign vessels were exhorted to keep out on the high seas; and it -was declared that any vessels suspected of having contraband goods -on board and found “on the coast of France, or of other countries, -islands, and places under the dominion of the King of France, and -particularly in the bays and gulfs on the coast of the said kingdom,” -would be seized and brought to trial.[1007] On the English coast the -limits of jurisdiction were better defined, but still, in many cases, -without precision. Within the King’s Chambers, as specified by James -I. in 1604, “or other places of our dominion, or so near to any of our -said ports, or havens, as may be reasonably construed to be within -that title, limit, or precinct,” the hostile acts of belligerents, -captures of the enemy’s vessels, and the hovering of foreign ships of -war were forbidden. The injunction with respect to the neutral waters -was renewed in 1633, 1668, and 1683, and it was in no case confined -strictly to the “chambers.” In the proclamations of 1668 and 1683, -which were drawn up by Sir Leoline Jenkins, the definition was merely -“within our ports, havens, roads, and creeks, as also in every other -place or tract at sea that may be reasonably construed to be within -any of these denominations, limits, or precincts.”[1008] These limits -were upheld by the decisions of the High Court of Admiralty during the -greater part of the century. Sir Leoline Jenkins, it may be noted, -although in questions of international policy advocating the most -extreme pretensions of the English crown to the sovereignty of the -seas, was careful in his judicial decisions to restrict jurisdiction -within the terms of the royal proclamations. If a capture was made in -one of the chambers or beyond them by a foreign privateer which had -issued from an English port and had been hovering in the neighbourhood, -the vessel was ordered to be restored. So also if the prize was -taken, in any case, outside a chamber, but near enough the coast to -be “reasonably construed” to be within the king’s jurisdiction. This -usually happened on the east coast, where the chambers were small. In -one such case the vessel was taken between half a league and one league -off Orfordness (the headland of a chamber); in another instance the -vessel was seized eight leagues at sea off Harwich, and presumably four -leagues from the boundary of the nearest chamber.[1009] - -At the end of the seventeenth century, while the old pretensions of -various nations to the appropriation of particular seas had not been -withdrawn, they had in many cases become by the force of circumstances -to a large extent nominal or were in abeyance. There was moreover a -tendency, as we have seen (p. 526), to substitute fixed boundaries -in place of a wide and vague sovereignty, and to arrange by treaty -defined limits for special purposes. In the historical retrospect we -can now perceive the main influences which led to the modification of -the claims and practice in the century that followed. The juridical -controversies on the subject between the writers of various nations -were doubtless not without effect. The repeated decisions of the High -Court of Admiralty in this country, going counter to the English -pretension even in the Channel, and fixing limits for neutrality, -must also have had an important influence. But the chief causes were -probably twofold. One was the moral and material victory of the Dutch -Republic in its long and persistent struggle against the exorbitant -claims to maritime dominion, first, of Spain and Portugal, and then of -England and Denmark. The other was the great extension of commerce and -navigation, in which England secured an ever-increasing share, so that -in the next century we find her taking the part of Holland in opposing -the Danish claims to _mare clausum_. As maritime commerce extended -and the security of the sea became established, it was felt more and -more that claims to a hampering sovereignty and jurisdiction were -incompatible with the general welfare of nations; and as the states -interested in this commerce had the greatest power, the assertion of a -wide dominion was gradually abandoned, surviving only in remote regions -or in enclosed seas, like the Baltic. - -At the beginning of the eighteenth century the question of the -appropriation of the sea was placed on another footing. The principle -of delimiting the territorial sea which is now generally accepted was -first expounded in 1703 by a distinguished publicist, Cornelius van -Bynkershoek, who, like Grotius, was a Dutchman, and held the office -of Judge in the Supreme Court of Appeal of Holland, Zealand, and West -Friesland. In his early work on the dominion of the sea,[1010] and in a -later treatise published in 1737,[1011] he dealt with the subject with -much acumen. With respect to the general question as to the capability -of appropriation, he agreed with Puffendorf rather than with Grotius. -While holding that the open ocean could not be wholly brought under -dominion, he admitted, with Selden, not only that large parts of the -sea are susceptible of appropriation, but that various nations had at -different times enjoyed such dominion: the fluidity of the sea was not -a bar to its occupation, and by taking possession of it the same right -was acquired as by taking possession of the land. But he declared there -was no instance at the time he wrote of any ruler possessing maritime -dominion of that kind, unless when the surrounding territory belonged -to him, and that the general freedom of the seas for navigation had -been established both by usage and by various treaties. He denied that -England had the dominion of the so-called British seas, mainly on the -ground of the want of uninterrupted possession, pointing out that all -the neighbouring nations freely navigated them without paying any -tribute or requiring any permission. - -It was, however, with regard to the delimitation of the territorial sea -immediately adjacent to the coast that Bynkershoek’s teaching had its -chief results. He showed how uncertain and unsatisfactory were the -limits previously proposed, and, following Grotius, he laid down the -principle that the dominion of a state extended over the neighbouring -sea as far, and only as far, as it was able to command and control it -from the land. But he went further and showed how the principle was -to be carried into practice. The dominion of the territory extended -as far as projectiles could be thrown from the shore by artillery, so -that exclusive possession might be taken of the part so commanded: “the -dominion of the land ends where the power of arms terminates.”[1012] -Thus Bynkershoek assigned the dominion of the adjacent sea (_mare -proximum_) to the neighbouring state, within the range of a cannon-shot -from the shore. Besides the general reasoning on which the limit was -based, he cited in support of it an Act of state. He was apparently -unaware of the clear declaration made by the Dutch ambassadors a -century earlier; but he referred to an edict of the States-General in -1671, which enjoined that the commanders of their ships should give the -salute on the coasts of a foreign Power when they were within the range -of the guns of a town or fort, in such manner as the Government of the -country should require, leaving to its discretion the return of the -salute, and adding that every Government was sovereign within its own -jurisdiction and every foreigner a subject there.[1013] - -This decree could not, of course, as Bynkershoek admitted, bind other -Powers to the same opinion. Nevertheless it may be said that the -almost universal practice which had grown up, regulating the salute -of a vessel coming within range of a battery on a foreign coast, -had prepared the way for the acceptance of the doctrine. It was a -recognition that the vessel had passed within the sphere of territorial -authority of the particular state. It was the rule, in England at -least, that “the sea should salute the land,” and the range of guns -determined the limit within which the salute ought to be rendered. -Beyond the reach of cannon no salute was expected; within it usage, -international courtesy, or the law, required it. No foreign ship with -its flag aloft could come within range of an English fort or castle -without exposing itself to the risk of a shot. It is indeed a curious -circumstance, that it was largely through the action of England with -regard to the salute that the acceptance of the cannon-range limit -was facilitated. The relation of the ceremony to the sovereignty of -a state was forced by her prominently into international politics. -Before the time of Selden and Charles I. jurists paid little attention -to the matter, but afterwards they dealt with it as a department of -international law: Loccenius and Bynkershoek, for example, each devotes -a chapter to it. Even when the English were most actively asserting -“the honour of the flag,” they recognised the rights of foreign states -within the actual range of guns on their shore. In 1636 the Earl of -Northumberland was instructed by the Admiralty not to enforce the -salute within the command of the guns of forts on foreign coasts,--an -order which was repeated by the Parliament in 1647,[1014] and became -the rule in the service. Molloy, a vehement supporter of the most -extreme claims of England to the sovereignty of the seas, stated in -1676 that English men-of-war entering a foreign harbour, or “the road -within shot of cannon of some fort or castle,” were to pay such respect -as was usually there expected.[1015] - -The gunshot limit had been long established in connection with -another international relationship--namely, the right of visitation -of neutral vessels in the open sea. Many treaties had been made which -stipulated that the visiting ship was not to approach nearer than -within cannon-shot, and was then to send one of its boats with a few -men to conduct the examination necessary. It is, moreover, extremely -probable that with respect to what was in those times the principal -attribute of the territorial waters--viz., the rights and obligations -of neutrals--the gunshot limit, at the least, was recognised where guns -were actually in position. In view of the general practice, as shown -for instance in the decisions of the English Admiralty Court, and the -usage in connection with the salute, it can scarcely be supposed that -a capture made under the guns of a neutral fortress would be held as -good prize; at all events, it was not so held in the Admiralty Court in -1760. But the merit of Bynkershoek’s doctrine was, that it transferred -in theory to all parts of a coast this decisive property of compulsion -and dominion which, strictly speaking, only existed where forts or -batteries were placed. The doctrine, justly enough, has been called -fictitious, because there are various coasts and districts where it -would be impracticable to maintain dominion over the territorial sea -by means of artillery on shore; and because in point of fact such -dominion, unless in the neighbourhood of forts, is actually maintained -by other means, as by coastguards and naval vessels. Nevertheless the -principle, though resting largely on hypothesis, had much to recommend -it, and it gradually became incorporated into international law as the -rule for fixing the boundary of the territorial waters. Apart from its -intrinsic merits, its acceptance was perhaps not a little facilitated -by the felicity with which it was expressed. Bynkershoek gave it the -form almost of an aphorism, and the phrase, _terræ dominium finitur ubi -finitur armorum vis_, has been quoted by almost all later writers. - -But although the doctrine of Bynkershoek was attractive, and was -eventually accepted almost everywhere, it did not command immediate -assent. The publicists who came after Bynkershoek in the eighteenth -century, while usually referring to the cannon-range limit, or adopting -it with respect to questions of prize, did not as a rule adhere to it -as the sole principle for delimiting the territorial belt. The earliest -notice of it after the _Quæstiones_ appeared seems to have been by -Casaregi, an Italian writer of authority, who was judge in the Court -of the Grand Duke of Tuscany, in a work which appeared in 1740, and -referred more especially to the practice in the Mediterranean.[1016] -Foreign ships, he said, were under the protection of the prince -whose seas they sail through, when they are in his ports, or in the -sea so near as to be within the range of guns on shore; if seized -by the enemy there, they require to be restored.[1017] This was -the ordinary rule in regard to neutrality; but with regard to the -question of sovereignty in the neighbouring sea, Casaregi followed -preceding Italian jurists in assigning a space of one hundred miles -from the coast for civil and criminal jurisdiction, with the power of -levying tolls and dues from passing ships, and even of prohibiting or -permitting navigation. - -A little later a Spanish writer, Abreu y Bertodano, in a work on the -law of maritime prize,[1018] held that it was unlawful for cruisers -to attack the enemy’s vessels in the seas adjacent to the coast of a -neutral within a distance of two leagues from the shore, or within -the reach of a cannon-shot from it. He stated that no European Power -had asserted the dominion of the sea with more heat and boldness than -Great Britain, and yet by Act of Parliament the visitation of ships -by the coastguard was restricted to two leagues from the coast, which -was as much as could reasonably be claimed.[1019] But this author also -followed the Italian rule that jurisdiction, including the levying -of tolls, &c., was not limited to the coast waters, but extended for -at least a hundred miles from the shore, and said that this was in -agreement with the teaching of the lawyers of all nations.[1020] - -Wolff, who wrote on the law of nations about the same time, appears -rather to have followed the opinions of Puffendorf. He argued that the -use of the sea next the shore, for fishing and the collection of things -that grow on it, was not inexhaustible, nor its use for navigation -always innocuous; and since it served as a protection for the adjoining -state, it was reasonable that it should be under the dominion of that -state. The inhabitants of the shores had therefore the right to occupy -it “so far as they can maintain their dominion over it”; and the same -was true of straits and bays.[1021] - -Some ten years later Vattel, the pupil and follower of Wolff, published -a work on the law of nations, which is still of authority, and in -which much the same opinions as those of Puffendorf and Wolff are -expressed.[1022] On the general question of the appropriation of the -sea the usual statement was made; but Vattel held that a nation might -acquire exclusive rights of navigation and fishery in the open sea by -treaties, but not by prescription, unless in virtue of the consent -or tacit agreement of other nations. Thus “when a nation that is in -possession of the navigation and fishery in certain tracts of the sea -claims an exclusive right of them, and forbids all participation on -the part of other nations, if the others obey that prohibition with -sufficient marks of acquiescence, they tacitly renounce their own -right in favour of that nation, and establish for her a new right, -which she may afterwards lawfully maintain against them, especially -when it is confirmed by long use.” On the other hand, Vattel states -that the uses of the sea near the coast render it very susceptible of -appropriation: it supplies fish, shells, pearls, and other things, and -with respect to all these its use is not inexhaustible. A maritime -people may therefore appropriate and convert to their own profit “an -advantage which nature has placed within their reach as to enable -them conveniently to take possession of it, in the same manner as -they possessed themselves of the dominion of the land they inhabit.” -Vattel does not state his opinion as to the distance from the coast -within which the fisheries may be appropriated, but from the examples -he cites it is evident that the space might extend considerably beyond -the range of guns. “Who can doubt,” he asks, “that the pearl fisheries -of Bahrem and Ceylon may lawfully become property?” And the same -principle may be applied to floating fish, which appear less liable to -be exhausted. If a people, he says, have on their coast a particular -and profitable fishery of which they can become masters, shall they -not be permitted to appropriate that bounteous gift of nature as an -appendage to the country they possess, and to reserve to themselves -the great advantages which their commerce may thence derive, if there -is sufficient abundance of fish to furnish neighbouring nations? Thus, -Vattel states, the herring fishery on the British coasts might have -been appropriated by the English if they had originally taken exclusive -possession of it, instead of allowing other nations to take part in -it. Another reason for the extension of territorial dominion over the -adjoining sea, “as far as a nation is able to protect its right,” is -the security and welfare of the state; but the author says it is not -easy to fix upon any precise distance. Between nation and nation, “all -that can reasonably be said is that, in general, the dominion of the -state over the neighbouring sea extends as far as her safety renders it -necessary and her power is able to assert it.” At the time he wrote, -“the whole extent of the sea which is within cannon-shot of the coast -is considered as forming part of the territory; and for that reason a -vessel taken under the cannon of a neutral fortress is not a lawful -prize.” The principle that applied to the adjacent sea applied with -much greater force to roads, bays, and straits, since they were more -capable of being possessed, and were of greater importance to the -safety of the country. But such areas must be “of small extent,” and -not great tracts of sea--as Hudson’s Bay and the Straits of Magellan: a -bay “whose entrance can be defended” might clearly be appropriated. - -The opinions of Vattel do not, therefore, materially differ from those -of Puffendorf in the previous century, though the tendency of the -earlier writer to allow a wide dominion is modified. Bynkershoek’s -principle of cannon range is adopted in a somewhat cautious manner, -and shown to apply especially to captures under the guns of a neutral -fortress. But the general argument in regard to fisheries, the security -of the state, and the exercise of territorial jurisdiction--as in the -King’s Chambers on the English coast, which Vattel cites as an example -of the practice--implies that a nation might lawfully extend its -sovereignty much beyond the range of guns. - -In the writings of other international jurists later in the century, -the tendency to narrow the extent of the territorial sea in accordance -with Bynkershoek’s teaching becomes more manifest, particularly in -those which treat specially of the rights of neutrals. Hübner, who was -assessor in the Consistorial Court at Copenhagen, treating of this -subject, said with reference to Bynkershoek’s doctrine that it was -evident the parts of the adjacent sea belonged to the master of the -country, as accessory to the land,--first, “because it is in his power -to take possession and to maintain it by means of forts and batteries -which he is able to erect on the shore”; and, secondly, because the -waters serve as a rampart to the land.[1023] - -Valin, a French writer of authority, introduced another principle in -combination with that of the range of guns. In his commentary on the -marine ordinance of Louis XIV., first published in 1760, he stated -that the rule that the adjacent sea within the reach of guns from the -coast is under the dominion of the neighbouring state was universally -recognised, the alternative distance which he gave being two -leagues--the same as given by Abreu. But he thought that the depth of -the water ought also to be taken into account, and that the sea up to -the point at which the bottom ceased to be reached by a sounding-line -pertained to the adjoining coast--an idea vague and impracticable.[1024] - -In 1778, Moser, a councillor of state in Denmark, adopted Bynkershoek’s -doctrine, declaring that the sea adjacent to the coast of a country -was, according to the law of nations, indisputably under the -sovereignty of the neighbouring territory, as far as a cannon-ball -could reach.[1025] On the other hand, Lampredi, Professor of Public Law -in the University of Pisa, writing at the same time, while allowing to -a state the right of property in the adjacent sea, makes the limit of -its dominion depend, not on cannon range, but upon considerations of -general convenience.[1026] Another contemporary Italian, Galiani, who -was Sicilian Secretary of Legation at Paris, and was employed by his -master, the King of the Two Sicilies, to write a book in defence of his -adhesion to the Russian League of Armed Neutrality, expressed somewhat -varying opinions as to the limits of the territorial sea.[1027] -Admitting as a received doctrine that the belt of sea washing the -coasts of a country belonged to it as a part of its territory, he at -first seems to extend it, in accordance with the Italian principles, -as far as the authorities can cause their jurisdiction to be enforced. -Later, he advances the gunshot limit for certain purposes, as the -imposition of tolls and the regulation of navigation; and finally, with -regard to the observance of neutrality he considers the boundary should -be two leagues, or twice the distance of cannon range, and he appears -to have been the first to fix upon three miles as equivalent to the -range of guns.[1028] - -G. F. von Martens, one of the greatest authorities on international -law, writing a little later, more definitely adopted the principle -of the range of guns; but he gave the equivalent distance as “three -leagues,” and moreover admitted that a nation might acquire maritime -dominion beyond that limit.[1029] The principle of appropriation, -he says, which applies to lakes and rivers also applies to straits, -which are in general not wider than great rivers and lakes, so that -the middle may be reached by a cannon-ball fired from the shore; and -those parts of the sea which border the land may also be regarded as -the property and under the dominion of the nation possessing the coast. -By a custom generally acknowledged, he continues, the authority of the -possessor of the coast extends as far as the range of guns from the -shore--that is to say, to a distance of three leagues;[1030] and he -adds that this distance is the least that a nation ought to claim as -the extent of its dominion in the sea. But he also says that a nation -may occupy and extend its dominion beyond that distance, and maintain -it, if the security of the nation require it, by a fleet of armed -vessels; and, further, that its sovereignty may extend as far as it -has been acknowledged to reach by the consent of other nations, and -beyond the boundary of its property--Von Martens, like many others, -drawing a distinction between property in the sea and sovereignty -over it. As examples of such cases, he definitely states, as well -established at the time he wrote, that St George’s Channel was under -the sovereignty of Great Britain and the Gulf of Bothnia under that of -Sweden, while the straits between Sweden and Denmark were considered to -be the property of Denmark. On the other hand, the Bay of Biscay, the -Mediterranean, the Straits of Gibraltar, the White Sea, and the North -Sea were acknowledged to be free. - -Towards the close of the century, an Italian author, Azuni, who was -judge in the commercial court at Nice, published a work on maritime -law, in which he dealt with the territorial sea; and adopting the -range of guns as the principle of delimitation, he declared that the -equivalent distance ought to be fixed at three miles, which, he said, -was “without doubt” the farthest a cannon-shot could ever be made to -reach.[1031] In this Azuni followed Galiani, making the statement -more definite, and thus we see the three-mile limit put forward by -publicists, as the alternative to the range of guns, before the century -closed. In point of fact, however, it had actually been applied in the -United States a year or two before Azuni wrote;[1032] and it is clear -from what he says that no general agreement then existed as to the -extent of the territorial sea, for he complained that the limit was -still undecided,--a statement repeated in his enlarged work, published -in 1805,--and he contended that it ought to be fixed by a solemn -treaty between the maritime Powers, as Meadows had suggested a century -before.[1033] Although Azuni adopted the principle of cannon range, -and, like Galiani, declared that three miles was the farthest that a -ball or bomb could be thrown,[1034] he was of opinion that for purposes -of neutrality, as an asylum against hostilities, the territorial waters -should be extended to two leagues from either shore in the case of bays -and gulfs, which, he says, even when their centre was at a greater -distance than three miles from either shore, were admitted to be -territorial. He even strongly recommended the adoption of the range of -vision as the boundary of neutral waters in time of war. - -From the above review of the opinions of publicists in the latter half -of the eighteenth century, it is evident that there was a general -agreement that the sea, at least as far as the range of guns from the -coast, was accessory to the land: no one doubted that this space at -all events was included within the territorial sea of the neighbouring -country. Almost all the writers went further, and held that the -sovereignty of a state was not confined to gunshot range, but could be -extended to a greater distance from the coast, either for the security -of the state or for jurisdiction, but there was not agreement as to -how far this could be carried. We see, moreover, the growing tendency -to assign a fixed distance as an alternative to cannon range or as a -boundary to neutral waters. Abreu, Valin, and Galiani placed it at two -leagues from the coast, and the same distance is given by the writer of -the article “Mer” in a great French work published in 1777[1035]--that -is, twice the distance of cannon range, which was said to be one marine -league, or three miles. - -Turning from the opinions of international jurists in the eighteenth -century to the practice and usage of nations in the same period, we -may note certain features of prominence: (1) the continued decadence -of claims to sovereignty over extensive areas; (2) the growing custom -of fixing definite boundaries for special purposes by international -treaties or by municipal laws; (3) legal decisions by which the limit -of cannon range was recognised in certain cases. In the eighteenth -century claims to the sovereignty of seas became greatly restricted -and lost their previous importance. The feebleness of Venice prevented -her from asserting in practice the rights which were hers by law and -ancient prescription. Both Vattel and Azuni, while admitting that -she possessed a limited sovereignty, questioned whether any other -Power would recognise her claim to the whole of the Adriatic. “Such -pretensions to empire,” says the former author, “are respected so -long as the nation that makes them is able to assert them by force, -but they vanish, of course, on the decline of her power.” In 1779, -indeed, before Azuni wrote, the Republic issued a decree respecting -her neutrality, in which the limit of cannon range was fixed as the -boundary of her waters for that purpose.[1036] Her ancient dominion -over the Adriatic was soon finally extinguished. When Napoleon -conquered Venice in 1795 and transferred her like a chattel to Austria, -her maritime sovereignty came to an end, and the picturesque and -symbolic ceremony of “espousing” the Adriatic, which had been performed -by the Doge every year for many centuries, terminated with it.[1037] - -The similar pretension of England to sovereignty of the sea, as -previously mentioned, did not survive till this century, except on -the point of the flag; and this ceremony fell into desuetude, and -was abandoned finally in 1805. Great Britain now appeared rather as -a champion of the freedom of the sea than as an advocate of _mare -clausum_. This was particularly shown in connection with the rights -claimed by Denmark in the northern sea, especially at Iceland and the -Danish portion of Greenland. As already stated, Denmark tried in the -preceding century to keep alive her ancient rights to the fisheries -and trade in these remote regions, and having failed in her efforts, -introduced a fixed limit of forty geographical miles from the coast, -within which whale-fishing by foreigners was forbidden (see p. 529). - -While Denmark was unsuccessfully endeavouring to assert exclusive -rights to the fisheries within a wide extent of water in the northern -seas, she was at the same time claiming a much less extensive space -along her coasts for purposes of neutrality. Moreover, it may be added -that just as in most European countries the cannon-range limit and -then the three-mile belt--which likewise originated in connection with -neutral rights--came to be applied as the boundary of the territorial -seas for all purposes, so the Danish limit for neutral waters, which -was a different one, was also adopted later as the general boundary of -the territorial seas by the Scandinavian states. The decree in regard -to neutrality was issued in 1745 by the King of Denmark and Norway, -and communicated to the foreign consuls, and it forbade all foreign -privateers to capture any vessel of the enemy within a distance of -one league, of fifteen to a degree of latitude, from the coast or its -outlying banks or rocks.[1038] This ordinance in regard to neutral -waters was renewed in 1756, 1759, and 1779,--that of 1759 expressly -declaring that the league was the marine league of fifteen to a -degree.[1039] It may be added here that early in the next century, in -view of the war with Great Britain, decrees were published prohibiting -either Danish or Norwegian privateers from capturing the enemy’s -vessels within the territorial sea of any foreign state which was -friendly or neutral; and such sea, it was said, was usually supposed to -extend for one marine league from the coast.[1040] The same distance -of four geographical miles was assigned by Sweden, in a decree of 12th -April 1808, which prohibited the seizure of vessels nearer the coast of -neutrals than the limit named.[1041] - -The various ordinances cited referred solely to the limit of the -territorial sea in relation to neutrality. But as early as 1747 the -same boundary was applied to a limited part of the Norwegian coast -in connection with fisheries. In that year a royal decree prohibited -Russian fishermen at Finmarken from fishing within one league of the -land,--a measure which was not opposed by the Russian Government, -and which was renewed by a Norwegian law in 1830.[1042] In 1812, as -we shall see (p. 653), the territorial waters of Denmark and Norway -were declared to extend to four miles from the coast or its outlying -isles,--that is to say, the limit which was adopted for neutrality was -applied in regard to fisheries and other purposes. - -Another example of the decadence of wide claims to maritime -sovereignty is to be found in the case of Spain, which, like the -Scandinavian countries, adopted a fixed limit in the eighteenth century -as the boundary of her territorial waters, and, as with them also, -it was placed at a greater distance than the range of guns from the -coast. An eminent Spanish publicist, Abreu, as we have seen, declared -in 1746 that the boundary of neutral waters should be at least two -leagues from the coast, and by a royal decree of 17th December 1760 -this distance was assigned, the territorial sea of Spain being declared -to extend to six miles from the land. This boundary was again given in -1775 and in 1830, and it is still retained by Spain--and also, until -last year, by Portugal--as the maritime frontier for customs, fishery, -neutrality, and jurisdiction.[1043] At various times Spain has entered -into treaties with her neighbours, France and Portugal, concerning -the rights of fishery within the six-mile zone, either for reciprocal -liberty to fish in the whole extent of the territorial sea, or in the -outer belt of three miles. A treaty of this kind was concluded with -France in 1768.[1044] - -The uprising in America in 1775, which resulted in the independence -of the United States, brought in its train a widespread maritime war, -Great Britain having to meet the naval forces of France, Holland, and -Spain, and at this time and throughout the remainder of the century we -meet with numerous decrees and treaties bearing upon the delimitation -of territorial waters, particularly in connection with the rights of -neutrals. One of the first of these was a circular which the American -Commissioners at the Court of Paris addressed to the commanders of -American armed vessels in 1777, instructing them to abstain from -capturing the enemy’s vessels, or vessels of neutrals, when they were -“under the protection of a port, river, or coast of a neutral country.” -To do so, it was said, would be contrary to the usage and customs of -nations; and the proclamation issued by the American Government in -the following year on the same subject is couched in equally general -terms.[1045] - -We find the same want of definition in an edict of the King of the Two -Sicilies in the same year, which speaks only of the accustomed rules -being observed in his “ports, coasts, and adjacent seas.”[1046] But -in corresponding proclamations issued at the same time by the Grand -Duke of Tuscany, the Republic of Genoa, the Republic of Venice, and -the Pope, the range of guns is expressly mentioned as determining the -boundary of their territorial waters in respect to neutrality. The -Grand Duke prohibited all acts of hostility in the ports or coasts of -Leghorn, within certain places specified, and in the seas adjacent -to all his other ports, castles, or coasts within gunshot of the -shore.[1047] With respect to Civita Vecchia, Ancona, and his other -territories, the Pope prohibited, “according to the common usage of -nations,” all acts of hostility or superiority between belligerents -there or in the adjacent seas, “or generally within the range of guns -from the shore”;[1048] while the Genoese edict forbade all acts of -hostility between belligerents “in the ports, gulfs, and coasts, within -range of guns,”[1049] and contained particular rules for carrying the -prohibition into effect. Thus, if such an act of hostility should -be committed within range of cannon, a shot was first to be fired -into the air, or to a distance from the vessel or vessels violating -the neutrality, unless there was risk of damage to other vessels, in -which case a blank shot was to be fired. If this did not put a stop -to the transgression, the offenders were to be assailed with shot and -musketry. In places where cannon were not available, the same course -was to be followed with muskets, and, it was said, the rules had to be -carried out precisely as they had been ordained in a decree of 1756, -when, no doubt, the gunshot limit was equally in force. The Venetian -decree is couched in similar terms, and the size of the cannon whose -range was to determine the limit is mentioned. All acts of force or -authority between belligerents were prohibited “in the ports, roads, -and coasts of our dominion, and in all the adjacent sea, at least to -the distance within range of a large cannon of battery.”[1050] In -several of the edicts, as in the two last referred to, the range of -vision was also used as a limit within which no belligerent vessel -was to be allowed to station itself, or cruise about waiting for the -enemy’s vessels: such action was prohibited within view of the ports or -roads. - -It will be noticed that all these edicts regarding neutral waters in -which the limit of cannon range was prescribed, emanated from the -small Mediterranean states; but in many of the international treaties -which followed the Armed Neutrality of 1780 the gunshot limit for -neutral waters was also adopted. This league, which was directed -against Great Britain, had its source in a declaration by the Empress -Catherine II. of Russia regarding the rights of neutrals; especially -that neutral vessels should be free to carry on trade on the coasts -of belligerents, and that the property of belligerents in neutral -vessels, except arms, equipment, and munitions of war, should be free -from capture. The seizure of enemy’s goods in neutral ships by English -cruisers bore hardly on the commerce of neutral countries; and for -this reason, and, according to English views, because it was perceived -by the other Powers that they could not directly contend against the -naval force of Great Britain, a new code of international law was -introduced which would have the effect of sapping it.[1051] In some of -the treaties referred to, the limits of neutral waters were defined -in vague or general terms, as in that of 1782 between the United -States and the United Provinces.[1052] The gunshot limit, however, was -specified in a treaty between the United States and Morocco in 1785, -which stipulated that if a vessel of either state was engaged with -that of another Christian Power within the range of guns of a castle -of the other state, it was to be protected and defended;[1053] in a -treaty of navigation and commerce between Great Britain and France in -1786;[1054] and in a treaty between France and Russia in 1787. In the -latter it was stipulated that in agreement with the principles laid -down in the Russian declaration regarding the navigation of neutrals, -either Power, if at war, should abstain from attacking the enemy’s -vessels within cannon range of the coasts of the other Power, or in the -ports, harbours, gulfs, and “other waters comprised under the name of -closed waters.”[1055] Russian activity in the direction indicated was -shown by the conclusion of a similar treaty in the same terms with the -Two Sicilies a few days later.[1056] A little later, in 1803, the range -of guns was adopted by Austria as determining the extent of neutral -waters, as in the treaties above referred to.[1057] - -In contrast to the gunshot limit in connection with neutrality, was -another which Spain incorporated in a treaty with Tripoli in 1784, -by which it was agreed that Tripolitan vessels of war or privateers -should not capture ships of their enemy within ten leagues of the -coasts of the Spanish dominions[1058]--that is to say, within the -same extent of sea as was expressed in the treaty between France and -Algeria a century earlier.[1059] A few years later the same limit of -ten leagues was agreed to in a treaty between Great Britain and Spain -concerning fisheries and navigation in certain parts of the Pacific. -Disputes had arisen with Spain concerning proceedings at Nootka Sound, -Vancouver; and in a convention between the two Powers, signed in 1790, -it was agreed, _inter alia_, that British subjects should not navigate -or carry on their fishery within a distance of ten sea leagues from -any part of the coast already occupied by Spain, the object being to -prevent illegal trading with the Spanish settlements.[1060] - -We thus perceive that towards the end of the eighteenth century various -maritime boundaries were assigned in particular places for particular -purposes, and that many states looked upon the limit of gunshot from -an open coast as fixing the extent of their neutral waters. But -hitherto, with the exception of the league limit prescribed by Denmark -and Norway, which had no avowed reference to the range of guns, and -was in reality equivalent to much more than three miles, no Power had -yet adopted one marine league as the equivalent of gunshot from the -shore. It appears that this step was first taken by the United States -of America, and it is of interest to note that the three-mile limit was -put forward tentatively, and, in a manner, as a temporary expedient. -When the war between Great Britain and France broke out in 1793, the -United States found it necessary to define the extent of the line of -territorial protection which they claimed on their coast, in order to -give effect to their neutral rights and duties. Washington, who was -then President, instructed the executive officers to consider the line -restrained, for the time being, to the distance of one sea league, or -three geographical miles, from the shores, a distance which was said to -be not more extensive than was claimed by any other Power. This limit -was adopted tentatively, since the Government “did not propose, at -that time, and without amicable communication with the foreign Powers -interested in the navigation of the coast, to fix on the distance to -which they might ultimately insist on the right of protection.” It was -stated that the greatest distance to which any “respectable assent” -among nations had ever been given was the range of vision, which was -estimated at upwards of twenty miles, and the smallest distance claimed -by any nation was “the utmost range of a cannon-ball, usually stated at -one sea league.”[1061] Besides the extent of sea referred to, the bays -and rivers were held by usage and the law of nations to be territorial, -with immunity from belligerent operations. This was well shown in the -same year, when the United States claimed that the whole of Delaware -Bay and New Jersey, an arm of the sea about fifty English miles in -length and a little over eleven miles wide at the entrance, was under -their territorial jurisdiction, and ordered the restitution of a -British vessel, the _Grange_, which had been captured there by a French -frigate, _L’Ambuscade_; and this was done notwithstanding the protest -of the French Minister that Delaware Bay was open sea and not under the -exclusive jurisdiction of the United States. The American Government -rested its action on the law of nations, and declared that they were -entitled to attach to their coasts an extent of sea beyond the reach -of cannon-shot--a claim which showed that the three-mile limit had not -been adopted as an inflexible rule.[1062] - -Next year the United States Congress passed a law authorising the -district courts to take cognisance of all captures made within one -marine league of the American shores;[1063] but in the treaty concluded -between Great Britain and the United States in the same year, it is -interesting to observe that the less precise limit of gunshot was -adopted, in the same words as in the treaty of 1786 between Great -Britain and France. The twenty-fifth article of this treaty provided -that neither Government should permit the ships or goods belonging to -the citizens or subjects of the other “to be taken within cannon-shot -of the coast, nor in any of the bays, ports, or rivers of their -territories, by ships of war, or others, having commissions from any -prince, republic, or state whatever.”[1064] - -It may be mentioned here that the claims which have been put forward -by the United States as to the extent of their territorial or -jurisdictional waters have varied greatly on different occasions. -The above declaration to M. Genet was, for instance, repudiated by -President Jefferson as establishing a fixed limit; and it was claimed -that the limit of neutrality should extend “to the Gulf Stream, which -was a natural boundary (!), and within which we ought not to suffer any -hostility to be committed.”[1065] On another occasion, in a controversy -about the right of jurisdiction, they claimed that the extent of -neutral immunity off the American coast ought at least to correspond -with the claims maintained by Great Britain around her own territory, -and that no belligerent rights should be exercised within “the chambers -formed by headlands, or anywhere at sea within the distance of four -leagues, or from a right line from one headland to another.”[1066] The -American Government endeavoured to obtain from England in the same year -the recognition of a territorial belt six miles in breadth, and in the -draft treaty proposed in 1807 a distance of five miles was in reality -specified.[1067] - - - - -CHAPTER II. - -GENERAL ADOPTION OF THE THREE-MILE LIMIT. - - -It is evident from the foregoing that, notwithstanding the variation -in the extent of water claimed in certain cases, the principle of -determining the general boundary of the territorial sea by the range -of guns from the coast had become tolerably firmly established in the -practice of nations before the end of the eighteenth century, with -reference in particular to the rights of neutrals. Shortly before -the century closed, moreover, we have seen that one of the important -maritime Powers, the United States of America, had adopted a fixed -distance of three miles or one marine league as equivalent to the -utmost range of the cannon of those days. The range of guns naturally -varied according to their size and power, and though it was specified -in some of the Continental ordinances that the distance was to be -determined by a large gun of battery, there was no certainty that it -would be everywhere the same. It was thus clearly an advantage to have -a fixed distance, which could be marked on charts, substituted for the -less definite cannon range, so long as it really represented it. By -the progress of the military art, however, most notably perhaps after -about the middle of last century, the range of guns became enormously -increased, so that long ago the three-mile limit ceased to represent it. - -The new boundary of one marine league, as equivalent to the range of -guns, was soon introduced into English law and practice, in the first -place through the decisions of the High Court of Admiralty in questions -affecting the extent of neutral waters. It is noteworthy that nothing -was heard at this period about the principle of the King’s Chambers -in such cases. It is very doubtful whether, as the American Government -implied in 1806, the boundaries of the King’s Chambers had retained -their validity at the beginning of last century. There seems to be no -evidence that they were enforced during the eighteenth century, or even -in the closing years of the seventeenth, possibly because occasions to -test the point had become rare. But it is perhaps more probable that -the claim to the King’s Chambers was allowed gradually to die out, and -that the deliberate omission of any reference to them in the later -proclamations of Charles II. (see p. 554) foreshadowed this change in -practice. It is clear at all events that long before the end of the -eighteenth century it was well established that a vessel captured by -one belligerent from another belligerent in a port of a neutral state -or within the actual reach of cannon was not good prize.[1068] The next -step was to give effect to the same principle, whether the place was -actually within the range of a fort or not. - -The decisions which introduced the three-mile limit into English -jurisprudence were those of Sir William Scott (afterwards Lord Stowell) -at the beginning of last century. In 1800 and 1801 this great authority -adopted both the gunshot limit and the distance of three miles as -its equivalent for the boundary of neutral waters, in deciding the -well-known cases of the _Twee Gebroeders_. It was these decisions of -Lord Stowell’s which introduced the three-mile limit into English -jurisprudence. The cases arose from the capture of certain vessels in -1799, by the boats of a British man-of-war, in the Groningen-Watt, -between East Friesland and the island of Borkum, in the belief that -they were bound from Hamburg to Amsterdam, which was then blockaded -by the British; and it was claimed by the King of Prussia that the -capture was made within the territory of that state. In deciding the -first case,[1069] Lord Stowell found that the _capturing_ vessel was -“lying within the limits to which neutral immunity is usually conceded. -She was lying in the eastern branch of the Eems, within what may, I -think, be considered as a distance of three miles, at most, from East -Friesland. An exact measurement cannot easily be obtained; but in a -case of this nature, in which the Court would not willingly act with an -unfavourable minuteness towards a neutral state, it will be disposed -to calculate the distance very liberally; and more especially, as the -spot in question is a sand covered with water only on the flow of the -tide, but immediately connected with the land of East Friesland, and -when dry, may be considered as making part of it. I am of opinion, that -the ship was lying within those limits in which all direct hostile -operations are by the law of nations forbidden to be exercised.”[1070] -In this decision the three-mile limit is assumed to be, “by the law of -nations,” the boundary of the neutral waters. It is also to be observed -that the distance was reckoned, not from low-water mark, but apparently -from the land; while according to the rule apparently governing such -cases now, the sand-bank itself would be a part of the territory, and -the distance of three miles would be measured from its outer margin at -low water (see fig. 19, p. 635). - -[Illustration: Fig. 14.--_Facsimile of part of the chart, showing where -the “Twee Gebroeders” were taken._ From Robinson, Admiralty Reports.] - -In deciding the second case, in which the circumstances were much the -same, Lord Stowell said that “in the sea, out of the reach of cannon -shot universal use is presumed”; but he made no reference to three -miles as an equivalent distance.[1071] A few years later, in 1805, in -deciding the case of the _Anna_, which was captured at the mouth of -the Mississippi by a British privateer, and in which the question of -the violation of American waters had to be considered, the same judge, -quoting Bynkershoek, said: “We all know that the rule of law on this -subject is _terræ dominium finitur, ubi finitur armorum vis_; and -since the introduction of fire-arms, that distance has usually been -recognised to be about three miles from shore.”[1072] - -It is, as above stated, in these decisions of the High Court of -Admiralty that the three-mile limit originated in England. They -furnished the legal precedents which regulated subsequent practice. The -gunshot limit was a doctrine borrowed from Continental publicists, and -three miles as its equivalent from recent American practice. Both were -previously unknown to English law.[1073] - -Moreover, although, as we shall see, the writers on international -law had in only a few instances accepted the three-mile limit as an -alternative to the range of guns from the shore, and scarcely any of -the Continental publicists of repute, the actual practice of Great -Britain and the United States, together with the legal decisions in -the British and American courts, and the dicta of the judges, tended -steadily to bring about its adoption. At first the boundary of one -marine league as equivalent to the range of cannon had reference solely -to questions of neutrality, as the capture of prizes, in the maritime -wars that prevailed. But very soon it was applied to other purposes, -and first of all by the British Government in connection with the -rights of fishery. During the peace negotiations with the United States -at Ghent, after the war of 1812-14, the British Government intimated -that they did not intend to grant to the United States gratuitously -the privileges formerly given by the treaty of 1783 “of fishing within -the limits of British territory, or of using the shores of the British -territories for purposes connected with the fisheries.” The treaty of -Ghent contained no stipulation on the subject, but shortly afterwards -the British Government expressed its intention to exclude, and gave -instructions to exclude, fishing vessels of the United States from -fishing within the harbours, bays, rivers, and creeks, and within one -marine league of the shores of the British territories in America, and -from drying and curing their fish on shore. Several American vessels -were seized for trespassing within British waters, and the prolonged -diplomatic discussion which followed resulted in the convention of -1818, by which the fishermen of the United States were allowed the -same rights as British fishermen on certain parts of the coast, but at -all other parts they were forbidden to fish within a distance of three -miles of the “coasts, bays, creeks, or harbours.”[1074] This was the -first of the treaties in which the three-mile limit was specified, and -it naturally formed a precedent for those which followed. - -That the principle of adopting the distance in question as the proper -boundary of the territorial sea had not yet become firmly incorporated -in British policy in all cases was, however, shown a few years later -in the negotiations with Russia concerning Behring Sea. In 1821 the -Emperor of Russia issued a ukase or decree, in which he declared -that the pursuit of commerce, whaling, and fishery, and of all other -industry, on all islands, ports, and gulfs, including the whole of -the north-west coast of America, beginning from Behring Straits to -the 51st of northern latitude, and in other parts specified, had been -exclusively granted to Russian subjects; and therefore prohibiting -“all foreign vessels not only to land on the coasts and islands -belonging to Russia, as stated above, but also to approach them -within less than 100 Italian miles,” the penalty for doing so being -the confiscation of the transgressing vessel and the cargo.[1075] The -Russian Government claimed that the extent of sea of which the Russian -possessions formed the limits “comprehended all the conditions which -are ordinarily attached to closed seas (_mers fermées_), and it might -consequently judge itself authorised to exercise upon this sea the -right of sovereignty, and especially that of entirely interdicting the -entrance of foreigners; but it preferred only asserting its essential -rights without taking any advantage of localities.” This, it will be -perceived, was a revival in the nineteenth century of pretensions -similar to those which Denmark had advanced in the seventeenth and -eighteenth; and the claim was opposed by Great Britain and the United -States, whose interests were threatened by it. The British Government -declared that it was contrary to the law of nations, and that it could -not admit the right of any Power possessing the sovereignty of a -country to exclude the vessels of others from the seas on its coasts to -a distance of 100 Italian miles. In its justification Russia cited, not -the Italian publicists or the earlier practice in the Mediterranean, -but an article in the treaty of Utrecht, which assigned thirty leagues -as the distance of prohibition (see p. 531),--an argument which was -sufficiently answered by the statement that the distance mentioned -was a particular stipulation in a treaty to which the other party had -given its deliberate consent. At an early period in the discussion the -Russian Government suspended the execution of the ukase, and instructed -the commanders of their ships of war to confine their surveillance as -nearly as possible “to the mainland, _i.e._, over an extent of sea -within the range of cannon-shot from the shore.” - -An article in the draft convention subsequently arranged between Great -Britain and Russia provided for an exclusive fishery, not within three -miles, but within two leagues or six miles, from the coasts of their -respective possessions in the regions referred to; but when the British -Government discovered that in the corresponding convention concluded -a little earlier between Russia and the United States no limit at all -had been specified, they withdrew this article. Mr George Canning, in -a despatch to Mr Stratford Canning, the British plenipotentiary at St -Petersburg, withdrawing the article, said that its omission was, in -truth, immaterial, since “the law of nations assigns the exclusive -sovereignty of one league to each Power on its own coasts, without any -specific stipulation.” The Russian Government raised no objection to -the new article, and the distance from the coast at which the fishing -was to be exercised in common passed without specification, “and -consequently,” added Stratford Canning, “it rests on the law of nations -as generally received.” A little later, before the convention was -ratified, the British plenipotentiary, thinking it might be desirable -to have the law of nations declared therein, jointly with the Court -of Russia, in some ostensible shape, broached the subject anew and -suggested that notes should be exchanged in London “declaratory of the -law as fixing the distance at one marine league from the shore.” The -Russian Minister, however, expressed disinclination to do anything -that might retard the immediate ratification of the convention; and -he assured Canning that the Russian Government would be content in -executing the convention to abide by the recognised law of nations, and -that if any question should afterwards be raised upon the subject, he -would not refuse to join in making the suggested declaration, “on being -satisfied that the general rule under the law of nations was such as -the English Government supposed.”[1076] - -It is evident from these despatches that the British Government at -that time held the opinion that the territorial waters of a state on -an open coast extended, “by the law of nations,” for one marine league -from the shore. But it would not have been easy for them to adduce -convincing testimony in support of that opinion from the accredited -writers on the law of nations whose works were then available, or from -the general usage of nations apart from Anglo-American practice. The -Russian Government were obviously not satisfied on the point, and their -instruction to their naval commanders to enforce the limit of cannon -range, though that was a less definite boundary, was more in consonance -with the law of nations as generally understood. It was natural that -the British Government should give weight to the decisions of Lord -Stowell in the Admiralty Court. - -The Government of the United States, in discussing the Russian -pretension, did not apparently lay the same stress on the principle of -the three-mile limit as they did on some other occasions. The claim -that the Northern Pacific might strictly be regarded as a closed -sea was met by the simple statement that the opposite coasts on the -parallel of 51 degrees were 4000 miles apart. The right of American -subjects to navigate and fish within the prescribed distance of 100 -miles from the coast was rested on continuous exercise from the -earliest times. Universal usage, it was declared, which had obtained -the force of law, had established for all coasts “an accessory limit -of a _moderate distance_” which was sufficient for the security of the -country and for the convenience of its inhabitants, but which laid no -restraint upon the universal right of nations, nor upon the freedom of -commerce and of navigation.[1077] - -In the conventions which followed, it was provided that the subjects -of the contracting Powers should not be molested either in navigating -or in fishing in any part of the Pacific Ocean, and they were to be -at liberty for ten years to frequent without hindrance all the inland -seas, gulfs, havens, and creeks, on the coasts mentioned, for the -purpose of fishing and of trading with the natives, subject to certain -conditions to prevent illicit commerce.[1078] - -It may be here stated that some years later, when American and British -whalers had greatly increased in numbers in Behring Sea, the Russian -officials on several occasions urged their Government to preserve the -sea as a _mare clausum_,[1079] or to prohibit foreign whalers from -approaching the coast within a distance of forty Italian miles.[1080] -The Russian Government pointed out in reply that to fix such a limit -would be contrary to the conventions, and might lead to protests from -other Powers, “since no clear and uniform agreement has yet been -arrived at among nations in regard to the limit of jurisdiction at -sea.” In 1847 the Government repeated the objections, and expressed -the opinion that “the limit of a cannon-shot, that is, about three -Italian miles, would alone give rise to no dispute”; and they further -observed that no Power had yet succeeded in limiting the freedom of -fishing in open seas, other Powers never recognising such pretensions. -Subsequently, in 1853, in consequence of continued complaints as to -foreigners fishing in the sea of Okhotsk, the Russian Government were -pressed by the influential Russian-American Company either to close -that great stretch of waters, as an inland sea, or to prohibit whalers -from approaching close to the shores and whaling in the bays and among -the islands. Instructions were thereupon issued to the commanders of -the Russian cruisers to prevent foreign whalers from entering bays or -gulfs, or from coming “within three Italian miles of the shores” of -Russian America (north of 54° 41´ lat.), the peninsula of Kamtchatka, -Siberia, the Kadjak Archipelago, the Aleutin Islands, the Pribyloff and -Commander Islands, and the others in Behring Sea, as well as Sakhalin -and others; and at the same time it was declared that while the Sea -of Okhotsk, from its geographical position, was a Russian inland sea, -foreigners were to be allowed to take whales there.[1081] Thus the -Russian Government adopted at first the principle of the range of guns, -then spoke of this or three Italian miles, and eventually accepted -and enforced, on the great extent of coast referred to above, the -three-mile limit. - -Reference must now be made to some decisions in the courts of law and -to certain provisions in particular Acts of Parliament which bear upon -the question of the extent of the territorial waters. Owing to the -long-continued peace on the sea since the decisions of Lord Stowell at -the beginning of last century, few occasions have occurred for the -question of the boundary of neutral waters to be raised. In a number of -civil cases tried in our courts the three-mile limit has, however, been -referred to, either as a ground for the decision, or more usually as a -dictum of the judges, as the proper boundary of the territorial sea; -but this has been frequently coupled with the qualification that it is -the assumed distance of the range of guns, or the smallest extent that -has been claimed by publicists or states.[1082] Some of these cases -dealt with the vexed question of bays.[1083] One of the most important -was tried in 1859, and it referred to the Bristol Channel. An offence -was committed on an American vessel within one mile of the coast in -Penarth Roads, but where the width from shore to shore is less than -ten miles, and Chief Justice Cockburn, in delivering judgment, said, -“We are of opinion that, looking at the local situation of this sea, -it must be taken to belong to the counties respectively by the shores -of which it is bounded; and the fact of the Holms,[1084] between which -and the shore of the county of Glamorgan, the place in question, is -situated, having always been treated as part of the parish of Cardiff, -and as part of the county of Glamorgan, is a strong illustration of -the principle on which we proceed, namely, that the whole of this -inland sea, between the counties of Somerset and Glamorgan, is to be -considered as within the counties by the shores of which its several -parts are respectively bounded.” A good deal of discussion has taken -place as to the precise meaning of these words. It is to be noted that -much farther seawards than the place in question the width of the -Channel is less than ten geographical miles. On the usual rule for bays -(as laid down in the fishery conventions), the ten-mile base-line would -pass between Nash Point in Glamorgan and Hurtstone Point, the headland -east of Porlock in Somerset, and the closing line would be three -miles west of this, or about twenty geographical miles from Penarth -Roads. The six-mile limit, from land to land, is, however, about -twenty-seven miles farther east, between the coast near Goldcliff, -in Monmouth, and that near Walton Castle, Somerset. But about midway -between these two limits (and seawards of Penarth Roads) there is a -part where the three-mile zone around the island, Steepholm, joins -that of the coast on either side, and though eastwards of this there -are small areas beyond the distance of three miles from shore, the -fact that the territorial waters are continuous from side to side at -this place probably confers territoriality on all the waters inside, -though that is a point which has not apparently been decided. A line -drawn from the western boundary of Somerset (and in that case not -from a headland) to Worms Head, the most western part of Glamorgan, -measures about thirty geographical miles, and it is a markedly oblique -line. What is true of one county ought to be true of another, and a -much more natural line would be one of about twenty-three geographical -miles between Morte Point in Devon and Worms Head in Glamorgan; or one -still farther seawards between Hartland Point in Devon and St Goven’s -Head in Pembroke, which are about thirty-eight geographical miles -apart; but under common law the range of vision has to be taken into -account. It may be added that the whole of the Bristol Channel within a -line from Land’s End to Milford was one of the “King’s Chambers” (see -p. 122), the closing line being nearly one hundred miles long; and -that Continental publicists have referred to it, probably from this -circumstance, as being within British jurisdiction.[1085] - -[Illustration: Fig. 15.--_The Bristol Channel._] - -Another case of the kind decided in a British court concerned -Conception Bay in Newfoundland, which is rather more than twenty miles -wide between the headlands and from forty to fifty miles in length. -It was decided by the Judicial Committee of the Privy Council in -1877 that it was a British bay and part of the territorial waters of -Newfoundland. The decision was based partly on the configuration of the -bay, but mainly on the evidence that the British Government had for a -long time exercised dominion over it, which had been acquiesced in by -other nations, and the Legislature had by Acts of Parliament declared -it to be British territory.[1086] Lord Blackburn, in delivering -judgment, said that there was a universal agreement among writers -on international jurisprudence that harbours, estuaries, and bays, -landlocked, belong to the territory of the nation which possesses the -shores round them, but no agreement existed as to what is the rule -to determine what is a “bay” for this purpose. “It seems generally -agreed,” he continued, “that where the configuration and dimensions of -the bay are such as to show that the nation occupying the adjoining -coasts also occupies the bay, it is part of the territory,” most of -the writers referring to defensibility from the shore as the test of -occupation. But the judgment was founded on the principle above stated. - -With regard to jurisdiction over foreigners in the waters along our -coasts, it is surprising that until quite recently there was no -statutory enactment or international agreement defining the extent of -that jurisdiction. Even in certain statutes in which the territorial -waters are specially mentioned their boundaries are not defined, -Thus, the provisions of the Foreign Enlistment Act of 1870,[1087] -which was passed for purposes of neutrality in the war between France -and Germany, were declared by the second section to extend “to all -the dominions of Her Majesty, including the adjacent territorial -waters”; and the fourteenth section provided that any ship captured -during the war between other nations when Great Britain was neutral, -“within the territorial jurisdiction of Her Majesty, in violation of -the neutrality of this realm,” &c., would be illegal; yet, in the -interpretation clause no definition is given of the meaning or extent -of “the adjacent territorial waters.” A similar reluctance apparently -to fix a definite boundary to the territorial seas for all purposes has -been shown by the British Government on several occasions in recent -years--as, for example, in the Territorial Waters Jurisdiction Act, -and in the negotiations preceding the North Sea fishery convention of -1882.[1088] - -The statute just referred to was the outcome of a very important case -which was decided in the English courts in 1876, and raised indirectly -the whole question of the extent of the territorial sea (apart from -bays) and the nature of the jurisdiction over it. A German ship, the -_Franconia_, bound from Hamburg to the West Indies, ran into a British -ship, the _Strathclyde_, off Dover and within two and a half miles -from the English coast, whereby the _Strathclyde_ was sunk and a -passenger drowned. The master, a German named Keyn, was convicted of -manslaughter in the Central Criminal Court, according to English law, -and the case was carried to the Criminal Court of Appeal. The defence -was that as the defendant was a foreigner, in a foreign vessel, on a -foreign voyage, sailing upon the high seas, he was not subject to the -jurisdiction of any court in this country, while it was contended for -the crown that inasmuch as at the time of the collision he was within -three miles of the English shore, the offence was committed within the -realm of England and was triable by the English court.[1089] It was -held by seven of the thirteen judges that in the absence of statutory -enactment the Central Criminal Court had no power to try such an -offence, inasmuch as the original jurisdiction of the admiral, which -had been transferred to that court, did not enable him to try offences -by foreigners on board foreign ships; the other six judges held the -opposite, on the ground that the sea within three miles of the coast of -England is part of the territory of England; that the English criminal -law extends over those limits; and the admiral formerly had, and the -Central Criminal Court now has, jurisdiction to try offences there -committed although on board foreign ships. In referring to the limits -of the territorial waters under the law of nations, the three-mile -distance or the range of guns from the shore was very generally -quoted, and not infrequently the two were confused and spoken of as -if they were one and the same thing. This was particularly the case -with Sir Alexander Cockburn, who referred to various treaties and -edicts (see p. 570) in which the range of guns alone was mentioned, -as having fixed a three-mile limit for purposes of neutrality. He -even gives Bynkershoek the credit of having propounded the three-mile -theory.[1090] His conclusion was cautiously expressed as follows: -“Possibly, after these precedents and all that has been written on this -subject, it may not be too much to say that, independently of treaties, -the three-mile belt of sea might at this day be taken as belonging, for -these purposes [in connection with fisheries and neutrality], to the -local State.” - -It was, as we have said, in sequence to the above case of the -_Franconia_ that the important statute, the Territorial Waters -Jurisdiction Act, was passed by the British Parliament in 1878.[1091] -This Act is sometimes loosely referred to as having settled the extent -of the territorial waters at three miles from the shore. This is far -from being the case. In the preamble it is stated that “whereas the -rightful jurisdiction of Her Majesty, her heirs and successors, extends -and has always extended over the _open seas_ adjacent to the coasts of -the United Kingdom and of all other parts of Her Majesty’s dominions to -such a distance as is necessary for the defence and security of such -dominions. And whereas it is expedient that all offences committed -on the _open sea_ within a certain distance of the coasts of the -United Kingdom and of all other parts of Her Majesty’s dominions, by -whomsoever committed, should be dealt with according to law,” it was -enacted that an offence committed by a person, whether or not a British -subject, within the territorial waters of Her Majesty’s dominions was -an offence within the jurisdiction of the admiral, although committed -on board, or by means of, a foreign ship, and the person who committed -the offence might be arrested, tried, and punished accordingly. The -legal advisers of the Government were, however, careful to guard -against the limitation of the general rights of the crown in the -adjacent seas to the distance to which criminal jurisdiction was -declared to extend. In the interpretation clause it is stated: “‘The -territorial waters of Her Majesty’s dominions,’ in reference to the -sea, means such part of the sea adjacent to the coast of the United -Kingdom, or the coast of some other part of Her Majesty’s dominions, as -is deemed by international law to be within the territorial sovereignty -of Her Majesty: and for the purpose of any offence declared by this -Act to be within the jurisdiction of the admiral, any part of the open -sea within one marine league of the coast measured from low-water -mark shall be deemed to be _open sea_ within the territorial waters -of Her Majesty’s dominions.” The reservation is made explicit in the -fifth section, which says that “nothing in this Act contained shall -be construed to be in derogation of any rightful jurisdiction of Her -Majesty, her heirs or successors, under the law of nations, or to -affect or prejudice any jurisdiction conferred by Act of Parliament -or now by law existing in relation to foreign ships or in relation to -persons on board such ships.” - -In the debate that took place in the House of Lords in 1895 in -connection with the Sea Fisheries Regulation (Scotland) Act,[1092] -by which power was conferred on the Fishery Board for Scotland of -regulating trawling, under certain conditions, up to thirteen miles -from the coast (see p. 720), it was stated by Lord Halsbury, who had -charge of the Territorial Waters Jurisdiction Act in 1878, that “in -that Act they took care specially to avoid any measurements. The -distance was left at such limit as was necessary for the defence of -the Realm; then the exact limit was given for the particular purpose -in view.” Equally clear was the statement of the late Lord Salisbury -in the same debate, that “Great care had been taken not to name three -miles as the territorial limit. The limit depended on the distance to -which a cannon-shot could go.”[1093] - -It is evident from the foregoing that the territorial sea that may be -claimed as belonging to this country is not restricted to a distance -of three miles from the shore on an open coast, though a certain -jurisdiction and certain rights may be confined to that distance by -municipal law or international agreement. The determination of the -extent is left to the law of nations, and there is but little doubt -that by the law of nations the true principle of delimitation is the -actual range of guns from the coast, where the coast is washed by the -open sea. It is to be noted that in the Territorial Waters Jurisdiction -Act nothing is said about bays: criminal jurisdiction is confined to -“the open sea” within one marine league of the coast. Offences such as -come under the Act may obviously be committed as well in territorial -bays and arms of the sea as within the three-mile limit on the open -coast; and the omission to include bays was no doubt deliberate, bays -in England being left under the common law on the principle previously -explained, the range of vision, and in Scotland presumably under Scots -law--_i.e._, “within land” (see pp. 545, 547). - -Other Acts of Parliament which fix limits of jurisdiction beyond three -miles from the shore include those relating to smuggling, the public -health, and slave-ships. In 1736, and later, statutes were made by -Parliament, known as the Hovering Acts, by which vessels with certain -cargoes on board, destined for British ports, might be seized within -four leagues of the British coast; and foreign vessels so taken have -been brought for adjudication before British courts and forfeited for -illicit trade.[1094] By later Acts concerning the customs, differential -limits were fixed with respect to jurisdiction over vessels having -dutiable goods on board. Those belonging wholly or in part to British -subjects, or having half the persons on board British subjects, found -or discovered to have been within four leagues of the coast between -the North Foreland and Beachy Head, or within eight leagues of any -other part of the coast; or any foreign ship with one or more British -subjects on board, found or discovered to have been within three -leagues of the coast, or any foreign ship irrespective of British -subjects within one league, might under certain specified conditions be -forfeited; and power was conferred on the commander of a ship of the -royal navy to fire on such vessel if it refused to bring to after a -warning gun had been given.[1095] - -Other nations have also assigned boundaries for customs jurisdiction, -which in nearly all cases exceed the ordinary limits of territorial -waters. The United States in 1799 extended its jurisdiction for such -purposes to four leagues from the coast, and in 1807, in an Act -against the importation of slaves, the seizure of vessels laden with -certain cargoes within that distance was also authorised.[1096] In -Spain the customs limit is six miles, and therefore corresponds to -the territorial zone which is claimed;[1097] in Sweden it is also six -miles, but measured on the Scandinavian system from the outermost -rocks; in Norway it is four miles, measured on the same principle, but -a treaty between Norway and Mexico, concluded in 1886, places it as -between these countries at three leagues from low-water mark.[1098] -In Italy the boundary is ten kilometres; in France two myriametres, -or about four leagues; in Austria it is also four leagues; while in -Canada it is three leagues.[1099] Wide limits for jurisdiction have -also been fixed by certain quarantine Acts. By the British Act of 1753, -all vessels coming from places whence the plague might be brought were -required to make signals on meeting other ships within four leagues -of the coast, a distance which was reduced to two leagues by a later -Act.[1100] - -Such extension of jurisdiction as is indicated for customs or -quarantine purposes over foreign ships approaching the ports of a -country, has only been sanctioned in a few cases by international -treaties. It is now generally held to rest upon another basis than the -absolute rights possessed by a state in its territorial waters proper; -although it is quite in agreement with the principles laid down by -the older publicists, as Puffendorf, Vattel, and Von Martens, and by -several recent writers, as Latour,[1101] that a nation is justified in -exercising jurisdiction in the sea as far as its security or interests -render it necessary. The current opinion is that such rights can only -be enforced against foreigners under the comity of nations or by their -tacit assent, as a matter of mutual convenience, and in practice -they are acquiesced in by other Powers.[1102] But it is important to -observe that, as will be more apparent when we come to deal with the -exclusive right of fishing, maritime nations find it necessary for the -protection of their just interests to extend their jurisdiction beyond -the somewhat narrow boundary at present ordinarily assigned. - -The statement made above, that the true principle for determining the -extent of the territorial sea on an open coast is the range of guns -from the shore, is borne out by an examination of the writings of the -accredited authorities on the law of nations. A review of the opinions -of the leading publicists of the earlier part of last century shows -that while the majority accepted Bynkershoek’s principle of cannon -range, comparatively few restricted it to the distance of three miles, -and many logically insisted that the extent must necessarily vary with -the improvements in artillery. Works of a purely polemical nature may -be passed over, such as those of the worthless Barrère[1103] and of -Champagne.[1104] They were inspired by hatred of Great Britain and the -desire of flattering Napoleon rather than by love of the truth, and -were written in order to show that the British were the tyrants of -the sea. Another contemporary French author, of much superior merit, -who dealt with the question was Rayneval, although his views were -also somewhat coloured by national prejudice. In 1803 he published a -treatise on international law,[1105] and in 1811 another on the liberty -of the sea.[1106] The latter for the most part consists, like the work -of Champagne, of an examination of the writings of Grotius and Selden -regarding the _mare liberum_ and the _mare clausum_, and also of the -trenchant little book of Jenkinson (Lord Liverpool) on the conduct of -the British Government in relation to neutrals. But in the earlier -treatise, which is still cited as an authority, Rayneval expounded the -law of nations respecting the territorial sea with marked impartiality. -On the general question of the freedom of the sea and the appropriation -of straits and bays the usual opinions were expressed. He held that the -sea bathing the coasts of a country makes part of it; that the security -and tranquillity of the state require that it should be held as a -rampart against hostile surprise or violence and illicit trading; and -that the fisheries form a natural appendage to this zone. With regard -to the extent of sea that may be appropriated, Rayneval stated that it -had not been determined by any uniform rule. Some, he said, carried it -to a hundred miles, or to sixty miles, from the coast, others only to -three miles, and others placed it at the distance of gunshot from the -shore. On the southern coast of France it had been fixed by agreement -at ten leagues with respect to the Barbary privateers. Like Meadows and -several preceding writers, he held it to be desirable in the interests -of the peace of nations that a general rule, or at least particular -rules clearly determined, should be adopted on a matter so important -and exposed to such uncertainties and disputes. Authors, he said, had -usually fixed the distance at the range of cannon, but their opinion -was not founded on a general regulation nor on uniform practice; and -the most equitable limit according to some was the range of vision from -the coast or the apparent horizon. Rayneval was of opinion that within -the territorial seas the neighbouring state had the right to forbid -navigation, except in cases of stress and necessity--a claim generally -discarded, though still made by Norway. Any liberty to foreigners to -fish along the coasts or in the bays of a country, he thought, was a -matter of tolerance, founded principally on the supposed abundance of -fish; and he held the opinion, which is at variance with that of most -other writers,--unless when confined to the territorial zone,--that a -state does not lose the right to forbid foreigners from fishing in the -waters along its coasts because it at one time allowed them to do so. - -Much more definite and restricted was the opinion of a contemporary -English lawyer, Chitty, who published a work on the law of nations -in 1812.[1107] Quoting Vattel, that the whole extent of the sea -within cannon-shot of the coast is considered as making part of the -territory, and that a vessel taken under the guns of a neutral fortress -is not lawful prize, he says that the same doctrine is enforced by -Von Martens; and he refers to the decisions in the English Court of -Admiralty in the cases of the _Twee Gebroeders_ and the _Anna_, which -established the principle in English law. Chitty, however, makes no -allusion to the three-mile limit as an alternative to the range of guns. - -Bynkershoek’s principle, and also a fixed distance in place of it, -were likewise accepted by Schmalz, Professor of Law in the University -of Berlin. Writing in 1817,[1108] he declared that the adjacent sea -pertained to the neighbouring land as far as it could be defended by -cannon from the shore; that this principle had been systematically -adopted; and that the distance had been fixed arbitrarily at three -marine leagues,[1109]--an erroneous statement, no doubt derived from -G. F. von Martens, which has been previously referred to,[1110] and -was copied from one book into another. Two years later another and a -greater German authority, Klüber, also adopted the principle of the -range of guns, without, however, proposing an equivalent distance -in miles.[1111] He allowed to the state the waters susceptible of -exclusive possession, over which it had acquired, by occupation or -convention, and maintained, its sovereignty. Among the parts so -comprised are (1) the sea adjoining the continental territory of a -state--at all events, “according to the generally received opinion,” to -the extent to which it can be reached by cannon-shot from the shore; -(2) parts extending into the land, as bays and gulfs, which can be -commanded by guns on shore; (3) straits which are equally commanded by -guns; (4) gulfs, straits, and seas adjoining the continental territory -of a state, which, though not entirely under the range of guns on -shore, are recognised by other Powers as closed seas--that is, under -one dominion, and inaccessible to foreign vessels without permission. - -Wheaton, an eminent American jurist, whose first work was published -about this time, likewise accepted the principle of cannon range, or, -as an alternative, a distance of three miles from the shore.[1112] -The territorial jurisdiction of a neutral Power, he says, “extends to -the ports, harbours, bays, and chambers formed by headlands of the -neutral Power. The usual addition allowed to this is a distance of -three English miles, or a marine league, or as far as a cannon-shot -will carry from the coasts or shore.” His statement is based on the -decisions in the English Admiralty Court, and on the writings of -Vattel, Bynkershoek, Von Martens, and Azuni. In his great treatise on -the law of nations, first published in 1836,[1113] the same views are -expressed, it being stated that the general usage of nations superadds -“to bays, ports, &c., a distance of a marine league, or as far as -a cannon shot will reach, along all the coasts of the state”; and, -incorporating into his text Lord Stowell’s observation, he says, “The -rule of law on this subject is _terræ dominium finitur, ubi finitur -armorum vis_, and since the introduction of fire-arms, that distance -has usually been recognised to be about three miles from the shore.” -Wheaton also states that the exclusive territorial jurisdiction of -the British crown over the enclosed parts of the sea along the coasts -of Great Britain has immemorially extended to those bays called the -“King’s Chambers,”[1114] and that a similar jurisdiction is also -asserted by the United States over Delaware Bay, and other bays and -estuaries forming portions of their territory, and that a state had the -exclusive right of fishing within its territorial waters. - -Chancellor Kent, who was another high American authority, expressed -somewhat different opinions from those of Wheaton, in a treatise -published in 1826, and seemed inclined to extend territorial -jurisdiction much farther into the sea than the latter writer.[1115] -The extent of such jurisdiction over the neighbouring sea is, he -says, often a question of difficulty and of dubious right, but as far -as a nation can conveniently occupy, and that occupancy is acquired -by prior possession or treaty, the jurisdiction is exclusive. It -is difficult, he states elsewhere, to draw any precise conclusion, -amidst the variety of opinion, as to the distance to which a state -may lawfully extend its exclusive dominion over the sea adjoining its -territories, and beyond harbours, gulfs, bays, and estuaries, where -its jurisdiction unquestionably extends. “All that can reasonably be -asserted is, that the dominion of the sovereign of the shore over -the contiguous sea extends as far as is requisite for his safety, -and for some lawful end. A more extended dominion must rest entirely -upon force and maritime supremacy. According to the current of modern -authority,” he continues, “the general territorial jurisdiction extends -into the sea as far as cannon-shot will reach, and no farther; and -this is generally calculated to be a marine league.” These opinions -do not differ materially from those of Puffendorf and Vattel, and the -tendency of this writer to allow an extended maritime jurisdiction -is shown by his statement regarding bays. He holds that the American -Government have the right to claim for fiscal and defensive regulations -an extensive jurisdiction, and that it would not be unreasonable to -assume, “for domestic purposes connected with our safety and welfare,” -the control of the waters within lines stretching from quite distant -headlands, as from Cape Ann to Cape Cod, and from Nantucket to Montauk -Point, and from that point to the capes of the Delaware, and from the -south cape of Florida to the Mississippi; that is to say, within areas -in comparison with which the “King’s Chambers” are insignificant, -since a straight line from the south cape of Florida to the Mississippi -measures about 500 miles, and encloses a tract of sea as much as 180 -miles in breath. Kent adds that the Government of the United States -would certainly view with uneasiness, in the case of war between other -maritime Powers, the use of the waters of the American coast, far -beyond the reach of cannon-shot, as cruising ground for belligerent -purposes. - -Manning, an English publicist, writing a little later,[1116] adopts the -usual opinion, stating that the distance to which the special right -of jurisdiction or the qualified dominion of a state extends on the -adjacent sea has been variously measured, the most prevalent distances -being those of a cannon-shot or of a marine league from the shore. -Heffter, a publicist of high authority, asserting as incontestable -the right of all maritime nations, both for defence and for the -protection of their commercial and revenue interests, to establish an -active surveillance on the neighbouring sea, declares that for these -purposes a state has the power of fixing, according to the particular -conditions of its coasts and waters, the distance to which its rights -shall extend. A common usage, he says, has established the limit at -the range of guns, a principle sanctioned by the laws and regulations -of many nations. But he maintains with Vattel that the dominion of -the state in the adjacent sea extends as far as it is necessary for -its security, and it can enforce it,--qualifying this declaration, -however, by adopting Rayneval’s suggestion that the horizon should be -the extreme boundary of the territorial sea. In his opinion the range -of guns, although the principle commonly adopted, affords no invariable -basis, and the distance may be fixed, at all events provisionally, by -the laws of each state: formerly, he adds, it included two leagues, and -now usually three marine miles.[1117] - -A much more restricted view of the extent of the territorial sea was -taken by Reddie, an English writer whose work appeared in the same -year.[1118] He adopted Bynkershoek’s doctrine of the range of guns, -but makes no mention of the three-mile limit or any other alternative -distance. A certain breadth of the adjacent open sea is, he says, -necessary for defence and security, and it is that portion within reach -of cannon-shot, capable of being protected and commanded by artillery -from the land, and thus susceptible of exclusive and permanent -dominion, if not of appropriation. Beyond the range of artillery -the sea is common; within that range each nation has the right of -sovereignty, legislative, judicial, and executive, and the exclusive -fishery. This part of the sea cannot be used by nations generally, -without diminishing the use or enjoyment of others, and its produce is -by no means inexhaustible. - -Ortolan, a French publicist of eminence, writing about the same -time, not only adopted the principle of Bynkershoek, but affirmed -in a positive manner that the extent of the territorial sea should -correspond to the actual range of artillery at the time.[1119] Although -the gunshot limit was the one recognised, there was nothing, he says, -to hinder two or more states from fixing between themselves, by treaty, -another limit, but such would be binding only on those who were parties -to the agreement. Bays and arms of the sea whose shores belong to the -same state are also territorial, provided that their width does not -exceed twice the actual range of guns, or that the entrance can be -commanded by artillery, or is naturally protected by islands, banks, -or rocks. Within the territorial sea as thus defined the state has the -power of making laws and regulations for its safety, prosperity, and -interests, but it has not the right of property,--Ortolan, like so many -other writers, drawing a distinction between property and jurisdiction. -The opinion that the real range of guns is the true principle for the -determination of the extent of the territorial sea was also affirmed -by Hautefeuille, another French writer of authority.[1120] According -to him, it extends to the distance a ball can be actually thrown from -the shore and no farther. Within the space thus commanded the rights of -the state are absolute, both in regard to jurisdiction and property, -and even to the prohibition of navigation. The right of fishery is -exclusive, since the products of the sea are not inexhaustible, and -the pursuit of them requires to be kept under proper regulation. On -this view, therefore, the fisheries of right belong to the neighbouring -state up to the limit of gunshot from the coast. - -Other French writers of authority have maintained the same opinion -as to the principle for the delimitation of the territorial waters. -Thus, Pistoye and Duverdy[1121] state that each Power is able, in a -given zone, measured by the range of cannon, to impose its laws and -enforce obedience to them. It cannot take bodily possession of the -waves, but it can maintain over them direct and constant domination. -While there has been much discussion, they say, as to the extent of -the territorial sea, the principle upon which its appropriation rests -serves also to determine its bounds, “and it must be acknowledged -that the range of cannon from the shore is the only real and true -boundary of the sea in question.”[1122] No measure, they add, has been -generally agreed upon between different nations as to the distance -which the range of guns may be supposed to cover; but they think the -eyes of experienced officers on the coast may be trusted to judge how -far a given spot is within the distance. Still another French author -of repute expressed the same view as to the extent of the territorial -sea. Massé, in his elaborate work on commercial law in relation to the -law of nations,[1123] pointed to the fact that the arbitrary opinions -of the older writers had been rejected, and stated that the real basis -of delimitation was the range of guns--a distance which he places at -“about three miles”; but he says that this rule is not always followed -in practice. Bays and gulfs are declared to be undoubtedly part of -the territorial sea, even when they are not capable of being defended -from the shore. The reasons for this opinion are the same as those -advanced by Hubner--namely, that such areas form natural harbours and -anchorages, sheltering vessels from tempests: the vessels are thus -under the protection of the coasts, and consequently of the sovereign -of the coasts. The true boundary in such cases Massé regards as the -line joining the headlands, or passing between the islands that may lie -off the mouth, even if the distance be greater than the range of guns, -or than what has been fixed by convention for an open coast. - -It is obvious from the above review of the opinions of publicists in -the first half of last century that no complete agreement had been -reached in theory or principle respecting the extent of the territorial -sea. Many of the writers held to the opinions expressed by Puffendorf, -Wolff, and Vattel, which allowed a more or less wide and vague -jurisdiction in the neighbouring sea for the security of the state; -and most of them refer to the cannon-range limit as the one usually -adopted. Few, however, accept the three-mile boundary as an alternative -to the range of guns: most of the authors indeed do not even mention -it, and those who do, appear to have been guided in the main by Lord -Stowell’s decisions. On the other hand, the later of the French writers -affirm that the boundary of the territorial waters is determined by -the actual range of artillery from the shore at the time, which is a -virtual repudiation of the three-mile limitation. Their view is summed -up by Pistoye and Duverdy when they say that the principle on which the -appropriation of the bordering sea rests serves also to determine its -bounds--_i.e._, control and command from the shore. - - - - -CHAPTER III. - -THE FISHERY CONVENTIONS. - - -Compared with the eighteenth century and the earlier part of the -nineteenth, the period which has elapsed since the close of the -Napoleonic wars has been singularly free from occurrences raising -the question of the extent of the territorial sea in connection with -the rights of belligerents and neutrals. There has been no great -maritime war in Europe since the enormous advance in the power of -artillery rendered the three-mile limit untenable for the security -of a neutral state against the operations of belligerents in the sea -off its coasts, though some questions involving the inadequacy of -that limit came to the front during the civil war in America. The -chief questions affecting the boundary of the territorial waters were -concerned with sea fisheries, and several conventions were made between -European nations in which limits were fixed for exclusive fishing. -They originated in the perennial disputes between British and foreign -fishermen. - -In previous chapters it has been shown that the intermittent efforts of -the British Government to establish an exclusive right to the fisheries -along the coasts of this country were without definite result, except -that it came to be tacitly understood by the Dutch fishermen that -they should keep out of sight of the shore. At various times during -the eighteenth century complaints were made to the Government of the -encroachments of Dutch, French, and Danish fishermen along our coasts -and in the Channel, and representations were in several instances made -to the foreign Government concerned. An examination of these complaints -shows that in many cases the foreigners were alleged to fish within -the bays and close to the shore, destroying the spawn and brood of -fish. In other cases they were accused of fishing in British waters -when they were between three and four, or even between six and seven, -miles from the coast,--the real ground of complaint being that they -occupied the localities where the fish were most abundant, and where -the native fishermen mostly carried on their industry.[1124] From -causes previously described, the number of Dutch fishermen frequenting -the British coasts diminished very much during the eighteenth century, -while at the same time French fishermen, and on the coast of Scotland -also Danes and Prussians, as well as fishermen from the Austrian -Netherlands, came in increasing numbers. During the war with France -and Holland the fishermen of these nations were unable to pursue their -fishing on the British coasts. But shortly after the restoration of -peace they returned, and complaints of their encroachments, especially -on the coast of Scotland and the south coast of England, soon became -prevalent. In 1819 the Board of British White Herring Fishery -received numerous complaints of foreign, and more particularly Dutch, -herring-busses shooting their nets too near the coasts, and committing -depredations on the lines and nets of the native fishermen. The Board -were urged to prevent foreigners from fishing “within a certain -distance” of the shore; but they considered they had no power to do so, -and forwarded copies of the petitions to the Lords of the Treasury. The -clamour continued, and in 1821, and again in 1822, the Board strongly -recommended the Government to take action. In the latter year the -Government made representations on the subject to the Government of the -Netherlands; and as a result a royal decree was issued in 1824 by the -King of the Netherlands prohibiting Dutch fishermen from fishing on the -main coast of Scotland, or even, in the absence of urgent necessity, -from approaching it within a distance of two leagues, twenty making a -degree, or twice the limit of three miles.[1125] In 1827--and thus -only twelve years before the Anglo-French convention fixed a three-mile -limit--this Dutch ordinance was renewed, and from that time few -complaints were made of the encroachments of Dutch herring-busses on -the Scottish coast. They continued to conduct their herring fishery, -for the most part, at distances ranging from twelve or fourteen to -forty or fifty miles, as they still do at the present day. - -As the disputes with the Dutch fishermen were thus amicably arranged -by the recognition of a six-mile zone of reserved water, similar -contentions sprang up, and continued for a long period, with fishermen -from France. In 1824, some years after the peace, they began to -frequent the coast of Scotland, and they came in great numbers in -each succeeding year, fishing at the Shetlands, Orkneys, and along -the north and east coasts from Cape Wrath to Berwick, and down the -English coast as far as Flamborough Head.[1126] Several circumstances -connected with the French fishery tended to provoke disputes. While the -Dutch fished from their busses at a distance from the coast, where the -largest and best herrings were caught, and were forbidden under heavy -penalties from buying or selling herrings while at sea, or even from -entering any foreign port except by reason of urgent necessity, the -French fished, as a rule, near the shore from small boats, which they -even hired for the season, not uncommonly from Scotch fishermen. They -frequented the Scottish ports; they bought herrings in large quantities -surreptitiously from native boats engaged to local fish-curers, for -money, brandy, tobacco, biscuits, and other articles; and they were -allowed to dry their nets, and even sometimes to salt their herrings, -on shore for a small payment.[1127] They were thus intimately -associated with the native fishermen along the coast, and they carried -on their fishery near the shore in the waters which were mostly used by -the natives. - -In the English Channel disputes between British and French fishermen -were still more frequent and acrimonious. British naval supremacy -during the long war had given a monopoly of the fisheries to the people -of the English coast, but after peace was concluded French fishermen -swarmed in the Channel, and began to fish along the English shores. -Complaints became rife of the decadence of the English fisheries, owing -to the alleged encroachments of the French and a general diminution -in the abundance of fish. In 1833 a Select Committee of the House of -Commons was appointed to inquire into the state of the British Channel -fisheries and the laws affecting the fishing trade of England, with a -view to their amendment. After taking evidence, the Committee reported -that they found those fisheries, and the interests connected with -them, to be in a very depressed and declining state; that the decline -had begun with the peace in 1815; that the number of fishermen and -boats had diminished; and that the fishermen and their families were -indigent.[1128] - -The principal causes of the depression were found to be the extensive -interference and aggressions of the French fishermen on the coasts of -Kent and Sussex, the large quantity of foreign-caught fish illegally -imported, and the great decrease and comparative scarcity of fish -in the Channel. Large fleets of French fishing vessels from Calais, -Boulogne, Dieppe, and other ports were in the habit of fishing along -the English coasts, frequently within half a league of the shore, and -occasionally nearer, as well as in the bays and shallow waters, “in -which,” said the Committee, “it is particularly necessary for the -preservation of the brood of fish, that such as frequent those waters -during the breeding season should not be disturbed, or their young -destroyed before they have attained maturity.” The French fishing -vessels were more numerous and larger than the English boats,--between -two and three hundred coming from Boulogne alone,--and they had caused -great injury to the nets and gear of the English fishermen, especially -in the herring and mackerel seasons. At other times of the year it was -proved that they were in the habit of coming in great numbers every -morning into English bays, and dragging there for bait in the shallow -waters close upon the shore, taking and destroying an immense quantity -of young and unsizeable fish, at periods when they were prevented by -French laws from conducting similar operations in their own bays.[1129] -These laws, the Committee reported, were understood to be enforced also -against English fishermen within three leagues of the coast of France; -on approaching nearer they were warned off by French cruisers, and told -that they would not be allowed to fish within that distance. - -The Committee considered it to be proved that the scarcity of fish in -the Channel (with the exception of herrings and mackerel) had been -occasioned by the great destruction of the spawn and brood of fish in -the shallow waters. They recommended as remedies for the evil “that -foreign fishermen should be prevented at all seasons of the year from -fishing within one league, or such other distance of the English coast, -as by the law or usage of nations is considered to belong exclusively -to this country,” and that they should also be required to observe, -during the spawning or breeding season of fish, all such laws or -regulations as might be imposed upon English fishermen for the better -preservation of the spawn and brood of fish in the bays and shallow -waters on the coast.[1130] In order to accomplish these objects, they -recommended that customs and revenue officers and the commanders -of cruisers should be instructed to prevent foreign fishermen from -fishing “within such prohibited distance of the shore,” to enforce the -observance by foreigners as well as by subjects of our fishery laws and -regulations, and to protect the English fishermen from aggression at -sea. - -The Committee had considerable difficulty in arriving at their -conclusion respecting the limit which should be fixed for exclusive -fishing on the English coast. They were influenced partly by what they -understood to be the usage, that the sea for one marine league from -the shore was considered to be the territory of the adjoining country, -partly by the practice of the Customs’ authorities in connection with -the prevention of smuggling, and partly by considerations affecting -the preservation of the fry and brood of fish. Under the Customs’ -regulations, vessels and boats of certain descriptions, including -fishing-boats, required a license, and the Commissioners of Customs -had discretionary power[1131] to prescribe within what distance of the -English coast they might be employed. In some cases fishing-boats were -restricted to a distance of four leagues, in other instances they were -allowed to fish to within one league of a foreign coast, one league -of sea being regarded by the Customs’ authorities as belonging to the -territory of the adjacent country. With regard to the right of fishing, -however, it was generally understood among the English fishermen that -the limit on the French coast reserved for French fishermen was three -leagues; and they desired that the same limit should be applied on -the English coast. The Committee laid great stress on the fixing of a -limit of exclusive fishing in order to preserve the spawn and brood of -fish. It was universally believed, and stated by all the witnesses, -including Mr James Cornish, an ichthyologist of repute, that the fish -spawned in the shallow water near the shore,--an erroneous opinion -that has prevailed almost to the present day, but which was shown -to be incorrect by the observations made by the Fishery Board for -Scotland[1132] and others. - -It was deemed to be of great importance that the breeding fish, and -the eggs which they were supposed to deposit near the shore, should be -protected from alleged injurious modes of fishing; and the Committee -recommended statutory enactments to establish close-times, and to -prohibit the use of trawl or drag nets within a league from the shore -or in water less than ten fathoms in depth. They inquired carefully -as to the limit which would be sufficient for this purpose. Most of -the fishermen were of opinion that the distance of one league would -be sufficient to include the “breeding-grounds,” and bring them under -the protection of the law; but they held that the distance should be -measured not from the shore, following its sinuosities, but from a -straight line drawn from one headland to another,--an opinion with -which the Committee concurred. - -No immediate action was taken by the Government to establish a -definite boundary for exclusive fishing, and petitions and memorials -continued to pour in from various parts of the coast complaining of -the depredations of French fishermen. They were accused of interfering -with British fishermen engaged in dredging for oysters fifteen miles -from the shores of France; of fishing for herrings and mackerel within -less than a mile of the British coasts, compelling the native fishermen -to shoot their nets to the seawards of them; of maliciously destroying -fishing gear, and of recklessly extirpating the spawn and brood of fish -in the shallow waters along the English coast. The Government were -urged to give effect to the recommendations of the Committee of 1833, -and they were asked by the Commissioners for the Herring Fishery to -issue instructions to the naval superintendent in Scotland to prevent -the encroachments complained of.[1133] - -From a perusal of these petitions it is evident that much doubt -existed at the time, not only in the minds of fishermen but among many -in authority, as to what was the precise limit of exclusive fishery -that might be claimed or enforced. As a general rule, it was believed -to extend much farther than a league from the shore. Many fishermen -maintained that the boundary was three leagues, an opinion strongly -held in Scotland as late as 1862. The fishermen of Eyemouth, probably -influenced by traditions of the extent of the “reserved waters” in -earlier times, asked that foreigners should be “kept without the -limits prescribed by law, and that limits (_sic_) be seven leagues,” -declaring that they went that distance themselves, and were annoyed and -endangered by foreign vessels taking up the ground. - -On the part of French fishermen there were also numerous complaints -against the English, the most bitter referring to the dredging for -oysters off the French coast. In 1837 a mixed commission was appointed -by the British and French Governments in connection with these -complaints, and especially to ascertain and define the limits within -which the subjects of the two countries respectively should be at -liberty to fish for oysters between Jersey and the neighbouring coast -of France. The opportunity was taken at the same time “to define and -regulate the limits within which the general right of fishery on all -parts of the coasts of the two countries shall be exclusively reserved -to the subjects of Great Britain and of France respectively,” and a -convention was concluded at Paris in 1839 defining these rights.[1134] -By its articles a very considerable stretch of water containing -oyster-beds, in the Bay of Granville on the French coast, between -Cape Carteret and Point Meinga, south-east of Jersey, and extending -far beyond the three-mile limit, was reserved exclusively for French -fishermen, the boundaries being minutely defined and laid down on a -chart annexed to the convention; and British fishermen were prohibited -from carrying on any kind of fishing, even for floating fish, within -this area. The bay thus appropriated is over seventeen miles in -breadth, and the closing line passes in some places about fourteen -miles from the shore.[1135] This concession to France was a recognition -of the principle that fisheries of this nature--that is, for objects -which are attached to or stationary on the bottom--require special -treatment. - -The article defining the general fishery limit on the coasts of the two -countries was as follows:-- - -“ARTICLE IX. The subjects of Her Britannic Majesty shall enjoy the -exclusive right of fishery within the distance of three miles from -low-water mark, along the whole extent of the coasts of the British -Islands; and the subjects of the King of the French shall enjoy the -exclusive right of fishery within the distance of three miles from -low-water mark, along the whole extent of the coasts of France; it -being understood that upon that part of the coast of France which lies -between Cape Carteret and Point Meinga, French subjects shall enjoy the -exclusive right of all kinds of fishery within the limits assigned in -Article I. of this Convention, for the French oyster fishery. - -[Illustration: Fig. 16.--_Showing the Limits reserved for French -Fishermen in Granville Bay._] - -It is equally agreed, that the distance of three miles fixed as the -general limit for the exclusive right of fishery upon the coasts of the -two countries shall, with respect to bays, the mouths of which do not -exceed ten miles in width, be measured from a straight line drawn from -headland to headland.” - - * * * * * - -The next article defined the miles to be geographical miles, of which -sixty make a degree of latitude; and it was also provided that with a -view to prevent the collisions which from time to time took place “on -the seas lying between the coasts of Great Britain and of France,” -between the trawlers and the line and long-net fishermen of the two -countries, a mixed commission should be appointed to prepare a set -of regulations for the guidance of the fishermen in the seas above -mentioned. The code of regulations so arranged was confirmed by the -respective Governments in June 1843, and was in this country embodied -in an Act of Parliament. They embraced a large number of subjects, -many of them beyond what was contemplated in the convention. Besides -what may be termed police regulations, such as the numbering and -lettering of fishing-boats, there were others defining and restricting -the fishing apparatus to be employed;[1136] and all this machinery of -regulation was to be applied to British and French fishermen pursuing -their industry in the extra-territorial waters. - -This convention was the first to establish by an international -agreement the three-mile limit as the boundary of exclusive fishing -on the British coasts, so far as French fishermen were concerned. -In view of the numerous conflicts and disputes, it was clearly of -importance that some limit should be precisely fixed, but the -selection of so narrow a strip of the adjacent sea was in some respects -unfortunate, and has probably acted injuriously on the interests of -the sea fisheries. It was imposed, no doubt, partly because it was -the limit already recognised in England and America as bounding the -territorial seas for the purposes of neutrality, and because it was -deemed sufficient to afford protection to the breeding fishes and -fish-spawn, one of the objects the Parliamentary Committee had in view -in recommending it. - -The disputes between the fishermen of the two nations were not set at -rest by the convention. Numerous infringements of the new boundary of -exclusive fishing occurred, and the difficulty of causing it to be -respected was for many years considerable.[1137] As many as twenty-one -French vessels were seized and taken into Berwick at one time for -transgressing the limit, and the convention was naturally not looked -upon with favour in certain French seaports.[1138] Nor was it generally -regarded among the fishery classes in this country as a triumph of -diplomacy. In Scotland it was thought that the British Government had -made a very bad bargain in parting with the exclusive right to fish for -herrings beyond a limit of only three miles instead of three leagues, -the boundary maintained to be the “legal” and just distance, for the -sake of obtaining, as it was supposed, some fancied advantage for the -English oyster fishermen.[1139] - -The convention, moreover, was binding only on French and British -subjects. It left unsettled the limit in relation to other nations, -and the inconvenience of this was shown by the action of Belgian -fishermen. While the French were excluded from the three-mile zone, the -Belgians not only fished within it, but in many cases they anchored -their vessels in the Scottish harbours and bays and fished in the -neighbouring waters from their small boats. In 1848 the commissioners -for the British fisheries brought the question before the Board of -Trade, and they were advised to enforce the boundary laid down in the -Anglo-French convention with respect to Belgian and all other foreign -boats also.[1140] Against this procedure strong remonstrances were made -by the Belgian fishermen, and these were followed by representations -from the Belgian Government. The Fishery Commissioners, who were -anxious that the law in regard to foreigners fishing on our coasts -should be made clear, continued to press the matter. The Belgian -fishermen then produced to the naval superintendent a copy of the -charter that had been granted by King Charles II., in 1666, to the -citizens of Bruges,[1141] under which they claimed equal privileges -with British subjects. That charter appears to have been generally -regarded as fictitious; but, acting on the advice of the Queen’s -Advocate, the Board of Trade directed that for the ensuing season of -1851 Belgians should be allowed to fish on the same system as before, -but that afterwards this liberty should cease, except in the case of -such as had been able to prove special privileges under the asserted -charter in the English courts of law. The dispute was settled by -a convention between Great Britain and Belgium in 1852, in which, -without mention of any specified limit, it was stipulated that Belgian -fishermen should enjoy the same rights of fishing on the coasts of -the United Kingdom as the most favoured foreign nation, and, in like -manner, that British subjects should enjoy corresponding rights on -the coast of Belgium.[1142] This convention was more beneficial to -Belgium than to us, as the Fishery Commissioners pointed out, owing to -the extent of the respective coasts conceded for fishing, but it was -thought to be satisfactory, inasmuch as defined rights were substituted -for vague and disputed privileges. Nevertheless, as the Belgian -Minister remonstrated that sufficient time had not been afforded for -trying in the British courts the validity of the charter “alleged” to -have been granted to the fishing vessels of Bruges, the vessels of that -port were allowed for one season more (namely, 1852) the privilege of -using the Scottish harbours for their fishing vessels and of fishing -from them with small boats.[1143] When the authorities attempted in -1852 to enforce the convention against Belgian vessels other than those -of Bruges, by excluding them from our harbours, so much dissatisfaction -was caused that the Belgian Minister again appealed to the British -Government, and the restriction was relaxed for another year for all -Belgian boats, so that the enforcement of the three-mile limit against -them did not come into operation till 1853. - -The violations of the boundary by French vessels, above referred to, -continued for many years, and the disputes were sometimes so frequent -and serious as to occasion the employment of seven or eight gunboats -on the east coast of Scotland to maintain the law. Yet the three-mile -limit, as the Commissioners declared, was but “a slender privilege” -to retain for the native fishermen. “The extent of it,” they truly -said, “when looked at from the sea appears small indeed, seeming but -a narrow slip lying close under the high cliffs of the land, and when -it is taken into account that the whole sea outside is free to every -comer, whether British or foreign, the slight boundary within shore -ought to be strictly kept.” Sometimes, however, the French were accused -of infringing the limit from a common misconception on the part of our -fishermen that the boundary was the traditional one of three leagues -or nine miles, instead of only three miles. Upon explanation, they -admitted their misapprehension, “but,” said the Commissioners, “with a -significant expression of their wish that it had been leagues instead -of miles.” - -The French herring vessels swarmed chiefly about Berwick and the coast -of Northumberland, and in 1853 a question of the limit at the Farne -Isles was raised by the French commodore. He interpreted the words of -the convention (which did not specify islands) as meaning that the -three miles was to be measured from low-water mark on the mainland, -which would have allowed the French to fish close to the islands. The -British naval superintendent, on the other hand, held that the limit -extended to three miles from low-water mark on the islands as well, -but, pending a legal opinion, he released two French vessels he had -seized for fishing within that distance from them. The Queen’s Advocate -decided in favour of the latter interpretation, and the point does -not appear to have been again raised.[1144] The infringement of the -boundary by the French gradually became less frequent, and in 1867 it -was reported that they had begun to fish at a greater distance from the -coast than formerly, and even out of sight of land. - -At this time it was found to be desirable to conclude another fishery -convention with France. Nearly all the elaborate regulations under the -convention of 1839 had turned out to be unworkable or were disregarded, -and much difference of opinion existed as to what actually were “the -seas lying between the British Islands and France” to which they -applied.[1145] In this second convention, in 1867, the exclusive -fishery limits of the two countries were defined as in the convention -of 1839, and the boundaries of the large area in the Bay of Granville -or Cancale, reserved for French fishermen, were precisely the same as -before.[1146] The international “extra-territorial” regulations under -this convention were much less detailed than in the previous one. -Fishing beyond the reserved limits was to be entirely free, with the -exception that a close-time for oysters was established for the English -Channel. The police regulations were to apply to “the seas surrounding -and adjoining Great Britain and Ireland,” and adjoining the Atlantic -coast of France, between the frontiers of Belgium and Spain. The -conditions under which the fishing-boats of one nation might enter the -exclusive fishery limits of the other, such as by stress of weather, -were carefully specified; and each boat while there was to hoist a blue -flag, and was again to leave as soon as the exceptional circumstances -had ceased. The convention was to continue in force for ten years, and -afterwards from year to year, terminable on twelve months’ notice. But, -although confirmed by an Act of the British Parliament, in 1868,[1147] -it was not ratified by France, and its provisions never came into -practical operation, except with regard to the close-time for oysters, -owing to certain objections raised by the French Government.[1148] -Certain of its provisions, including, amongst others, the article in -the convention defining the exclusive fishery limits, were repealed by -the Sea Fisheries Act, 1883.[1149] - -Both conventions, as we have seen, dealt with oyster fisheries in a -special manner, and on the coast of France a large area, extending -much beyond the three-mile limit, was reserved to French fishermen on -account of the valuable oyster-grounds it contained. An interesting -point was raised by the Irish authorities. It happened that Ireland -also possessed productive and extensive oyster-beds on the coast of -Wexford, stretching for many miles beyond the exclusive fishery limits -laid down in the convention, and the Irish authorities claimed the -right of control over the whole of them. They had enforced regulations -there before the first convention with France, in 1889, had been -entered into, and at that time they protested against its application -to Ireland. Accordingly, in the Act of 1843 giving effect to the -convention, a clause was inserted empowering the Board of Trade, with -the sanction of the Privy Council, to suspend the operation of the -convention in Ireland or any part thereof, so long as the fisheries -there should be carried on exclusively by British subjects, and also to -make bye-laws for enforcing the Act as soon as French boats frequented -Irish waters for the purpose of fishing.[1150] On the day following the -passing of the Act an Order in Council was issued directing “that the -said Act and articles of regulation shall be suspended with respect to -the fisheries of the whole coasts of Ireland, so long as such fisheries -shall be carried on exclusively by the subjects of Her Majesty.” - -The matter was again raised in connection with the convention of 1867, -and it was associated with a recent act of jurisdiction by the Irish -authorities beyond the three-mile limit. Some Welsh boats which had -been dredging for oysters on the coast of Wexford, at a distance, it -was said, of four or five miles from the shore, were arrested, taken to -Wexford, the fishermen fined, and the oysters forfeited. The Board of -Trade thereupon asked the Irish Department, with reference to an Act -that had been passed in 1842 to regulate the Irish fisheries,[1151] to -state what were “the limits of the Act to regulate Irish fisheries” in -pursuance of the provisions of which they presumed they had acted, and -“whether the oysters in question were captured within those limits.” -The reply was that the oysters were taken two and a half miles from -the shore, but that the most extensive and valuable oyster-beds on -the east coast of Ireland lay at a distance of from five to ten miles -from and parallel to the shore, and so far as they, or any other beds, -were “within the reach of ordinary shore boats, and were habitually -frequented by and afforded the means of living to a shore population, -the Commissioners conceive they are justly entitled to be considered -Irish beds, and to come within their control.”[1152] - -The Irish Members of Parliament strenuously supported this contention, -and they succeeded in getting a clause inserted in the Convention -Act of 1868 enabling the Irish Commissioners, with the approval of -the Queen in Council, to regulate the dredging for oysters on any -oyster-beds situated within the distance of twenty miles seawards from -a straight line between Lambay Island and Carnsore Point--an area -of nearly 1300 square (geographical) miles, outside the three-mile -limit, including the Arklow and Wexford banks, and stretching from -twelve and a half to nineteen miles beyond the ordinary limit. All -such regulations were to “apply equally to all boats and persons on -whom they might be binding,” and they were binding “on all British -sea-fishing boats, and on any other sea-fishing boats in that behalf -specified in the Order, and on the crews of such boats.”[1153] By an -Order in Council, dated 29th April 1869, regulations were made under -this section of the Act appointing a close-time; but no other boats -than British boats were therein specified.[1154] - -In the interval between the two conventions with France, referred to -above, there were some other treaties that dealt with territorial -waters to which allusion may be made. The provisions of the treaty -of 1818 with the United States respecting the fishery rights on the -coasts of the British dominions in America (see p. 581) had given rise -to disputes, and in particular the words “within three marine miles of -any of the coasts, bays, creeks, or harbours.” This was interpreted by -the British and Colonial Governments as meaning that the boundary of -three miles was to be drawn, not everywhere along the coast following -all its sinuosities, but, where bays or creeks existed, from a straight -line passing from one headland to another across their mouth or -entrance--that is, according to the principle now known as the headland -doctrine. The United States, on the other hand, generally contended -that the words meant that the three-mile limit was to be measured -everywhere along the coast from the line of the shore, following it in -all its curves and indents, thus eliminating altogether any special -treatment for inlets or bays, and dealing with all parts of the coast -as if it were an open coast. There is little doubt that the British -interpretation was the correct one. This is evident from the previous -usage with regard to bays as shown by the rules relating to the King’s -Chambers and the practice of the Admiralty Court in England, and the -reserved firths in Scotland, and by the claim advanced by the United -States with respect to neutral rights in 1806. It is also evident from -the language of previous treaties. That of 1686 between France and -Great Britain referred to “havens, bays, creeks, roads, shoals, or -places”; in that of 1783 between Great Britain and the United States, -“coasts, bays, and creeks” are spoken of; and in that between the same -Powers in 1794, with respect to neutral rights, it was agreed that -ships should not be taken “within cannon-shot of the coast, nor in -any of the bays, ports, or rivers of their territories.” It is clear -that a distinction was drawn between coasts and bays--a distinction -which is now and always has been recognised in international law, -which is made in the North Sea and other fishery conventions of recent -times, and is claimed by the United States with regard to their own -coasts.[1155] If no such distinction between coast and bays was meant -in the clause of the treaty of 1818, then the words “bays, creeks, and -harbours” are without meaning and superfluous, a construction which -is contrary to the rule which requires that effect be given to every -word in a contract or treaty. That the British construction was correct -was virtually admitted by Mr Webster, the American Secretary of State, -when he said in a State paper, 6th July 1852, that “it was undoubtedly -an oversight in the convention of 1818 to make so large a concession -to England, since the United States had usually considered that those -vast inlets, or recesses of the ocean, ought to be open to American -fishermen as freely as the sea itself, to within three miles of the -shore.” He admitted, moreover, that the word bay applied equally to -small and large tracts of water situated between capes or headlands. - -[Illustration: Fig. 17.--_Bay of Fundy._ A, _United States territory_.] - -In 1824, and again in 1838 and 1839, British cruisers seized American -vessels for fishing within the Bay of Fundy, the Bay of Chaleurs, and -elsewhere in contravention of the treaty of 1818; and in 1843 the -schooner _Washington_ was arrested for fishing in the Bay of Fundy at a -distance of ten miles from shore, taken to Yarmouth, Nova Scotia, and -sold. In the diplomatic correspondence which followed these seizures, -the two Governments took up the position as to the interpretation of -the treaty which is referred to above; but eventually, in March 1845, -Lord Aberdeen intimated that the British Government, while adhering -to their interpretation, would as a matter of courtesy relax the -rule with regard to the Bay of Fundy, and allow “the United States -fishermen to pursue their avocations in any part of it, provided they -should not approach, except in cases specified in the treaty of 1818, -within three miles of the entrance of any bay on the coast of Nova -Scotia or New Brunswick.” The Bay of Fundy (fig. 17) is a very large -but typically landlocked inlet of the sea, passing between Nova Scotia -and New Brunswick for a distance of about 140 miles from its mouth. -As with many other bays, there is more than one cape or projection of -land that might be taken as its headlands, but one of them is clearly -in the United States; and the distance from it to the opposite coast is -from forty to fifty-five nautical miles, while the bay itself at sixty -or seventy miles from the entrance is over twenty-five miles in width. -Chaleur Bay, between New Brunswick and Quebec, is a little over sixteen -miles in width and over sixty miles long (fig. 18). - -The United States declined to receive the above-mentioned privilege -as a favour, and the colonists made a strong representation to London -as to the injurious results that would ensue if the proposed policy -were adopted; and in 1849 the British law officers of the Crown gave -their opinion on the provisions of the treaty, “that the prescribed -distance of three miles is to be measured from the headlands or extreme -points of land next the sea of the coasts, or of the entrance of the -bays, and not from the interior of such bays or inlets of the coast; -and consequently that no right exists on the part of American citizens -to enter the bays of Nova Scotia, there to take fish, although the -fishing, being within the bay, may be at a greater distance than three -miles from the shore of the bay.” - -In terms of the convention of February 8, 1853, the case of the -_Washington_, above described, came before referees in London, and -on their disagreement it was decided by the umpire, Mr Joshua Bates, -in favour of the United States. His conclusion was that the Bay of -Fundy was not a British bay, nor a bay within the meaning of the word -as used in the treaties of 1783 and 1818, but belonged rather to the -class which comprised such bays as the Bay of Bengal and the Bay of -Biscay, over which no nation can have the right to assume sovereignty. -He also pointed out that one of its headlands was in the United States; -and he thought that the doctrine of the headlands had “received a -proper limit” in the Anglo-French convention of 1839, where a ten-mile -base-line was adopted. - -[Illustration: Fig. 18.--_Bay des Chaleurs._] - -A few years before this, negotiations had been opened between the -Governments with the view of establishing reciprocal free-trade between -Canada and the United States, and in June 1854 a treaty was signed at -Washington, commonly known as the Reciprocity Treaty, by which certain -articles of produce of the British colonies and of the United States -were admitted to each country respectively free of duty, and reciprocal -rights of fishery were granted. The subjects of either state were to be -free to fish along the coasts and in the bays, harbours, and creeks -of the other, without any restriction as to distance from the shore, -in Canada, New Brunswick, Nova Scotia, and Prince Edward’s Island, and -on the eastern coast of the United States north of the 36th degree -of north latitude. On each side salmon and shad fisheries, and the -fisheries in rivers and the mouths of rivers, were reserved.[1156] -This treaty was to endure for ten years, and it was terminated by -the United States and came to an end on 17th March 1866, when, in -consequence, the provisions of the treaty of 1818 again came into -force. The British Government, however, being very desirous to prevent, -as far as possible, the loss to the citizens of the United States by a -sudden withdrawal of the privileges which they had enjoyed for twelve -years, decided to allow American fishermen to continue to fish in all -provincial waters upon the payment of a small fee.[1157] From the -neglect of American fishermen to obtain the licenses, the fee for which -had been raised from fifty cents to two dollars per ton, the system -was discontinued in 1870, and orders were given to British cruisers -to exclude American vessels from fishing in territorial waters, and -several of them were seized and forfeited. The Canadian Minister of -Marine and Fisheries issued instructions, in May 1870, for the same -limits as are contained in the Anglo-French convention of 1839 to be -put in force against American fishermen; but, on representations from -London, these were withdrawn and other instructions issued to the -commanders of the cruisers, in which bays of six miles or less in width -at the mouth were alone reserved.[1158] - -Further negotiations between the Governments ended in the treaty -of Washington in 1871, in which reciprocal rights of fishing were -re-established in much the same way as in the treaty of 1854, but -the liberty to British subjects to fish on the coast of the United -States was restricted to the part north of the 39th degree of north -latitude.[1159] Under this treaty it was agreed to appoint joint -commissioners to determine the amount of compensation, if any, which -should be paid by the United States for the greater privileges granted -to American citizens by the treaty; and this commission met at Halifax -in 1877, the sum of 5,500,000 dollars being so awarded. The award was -not received with favour in the United States, and notice was given at -the end of the stipulated ten years for the abrogation of the treaty, -and the articles referring to the fisheries were so terminated on July -1, 1885, the provisions of the convention of 1818 again, for the third -time, coming into force. Further troubles and disputes occurred, not so -much in relation to fishing within territorial waters, as to American -vessels frequenting colonial ports for the purchase of bait, salt, &c., -a liberty which was not granted by the treaty of 1818, and several -of them having been seized, retaliatory measures were threatened by -the United States. After negotiations between the two Governments -another treaty was signed at Washington, on February 15, 1888, the -principal British plenipotentiary being Mr Joseph Chamberlain. This -treaty provided for the appointment of a mixed commission to delimit -“the British waters, bays, creeks, and harbours of the coasts of Canada -and of Newfoundland, as to which the United States, by Article I. of -the Convention of 20th October 1818, between Great Britain and the -United States, renounced for ever any liberty to take, dry, or cure -fish.” The delimitation was to be marked upon charts by a series of -lines regularly numbered and described, the three marine miles being -measured from low-water mark, “but at every bay, creek, or harbour, -not otherwise specially provided for in this treaty, such three marine -miles shall be measured seaward from a straight line drawn across the -bay, creek, or harbour, in the part nearest the entrance at the first -point where the width does not exceed ten marine miles.” A large number -of bays were specially dealt with by lines specified, that of Chaleurs -being closed, or by other special lines from which the three miles -was to be measured; and other articles in the treaty regulated the -entry of American fishing vessels into colonial ports. It was further -provided that whenever the United States removed the duties on fish and -fish-oils from Canada and Newfoundland, United States’ vessels would -be licensed, free of charge, to enter the colonial ports and harbours -to purchase provisions, bait, ice, seines, and all other supplies and -outfits, to tranship their catch, or for the shipping of crews. - -But, inasmuch as the above treaty could not possibly be ratified -before the commencement of the next fishing season, the British -plenipotentiaries, in order to avoid a recrudescence of the usual -friction and irritation, and to afford evidence of their anxious desire -to promote good feeling, agreed, in a protocol of the same date, to a -“temporary arrangement for a period not exceeding two years, in order -to afford a _modus vivendi_ pending the ratification of the Treaty.” -This arrangement granted the privilege to American fishing vessels of -entering the bays and harbours, on payment for an annual license of a -fee at the rate of one and a half dollars per ton, in order to purchase -bait, ice, and all other supplies and outfits, to tranship their catch -and ship crews, and gave them some other privileges, declaring also -that forfeiture was to be exacted only for the offence of fishing or -preparing to fish in territorial waters.[1160] - -Unfortunately, this treaty failed to pass the Senate of the United -States and was never ratified, and the system temporarily adopted as -a _modus vivendi_ has been regularly renewed since, and is still in -force.[1161] - -It is to be noted that the arrangement in the treaty, both as to -drawing lines on charts to separate the common from the exclusive -fishing waters and for the adoption of a ten-mile base-line for bays, -was proposed, not by the British Government, but by that of the United -States. The British Government, indeed, strongly objected to a ten-mile -line as involving “a surrender of fishing rights” and making “common -fishing-grounds of the territorial waters which, by the law of nations, -have been invariably regarded, both in Great Britain and the United -States, as belonging to the adjacent country,” and they cited the Bay -of Chaleurs as an example. They argued that in the convention with -France in 1839, and in other similar conventions, the boundary-lines -selected were due to special configuration of the coast, and could not -be well settled “by reference to the law of nations”; and attention was -called to the claims of the United States to Delaware Bay and other -bays on their coasts. In reply to these observations of the British -Government, the United States said they had proposed the width of ten -miles not only because it had been adopted in fishery conventions, -but also because it was deemed reasonable and just in the case in -question; “while they might have claimed a width of six miles as a -basis of settlement, fishing within bays and harbours only slightly -wider would be confined to areas so narrow as to render it practically -valueless, and almost certainly expose the fishermen to constant danger -of carrying their operations into forbidden waters; a width of more -than ten miles[1162] would give room for safe fishing more than three -miles from either shore, and thus prevent the constant disputes which -this Government’s proposal, following the conventions above noticed, -was designed to avert.”[1163] - -Nevertheless, notwithstanding this proposal by the United States’ -Government, the limit now enforced for bays on the coasts of British -North America is that of six miles, with the exception of the Bay of -Chaleurs.[1164] It was apparently found that the attitude adopted -by the British Government in 1870, then stated to be temporary and -exceptional, of allowing the United States’ fishermen to fish “except -within three miles of land, or in bays which are less than six miles -broad at the mouth,” ought to be adhered to, during the existence of -the _modus vivendi_ and pending the ratification of the treaty of 1888. -If a recent statement of the Under-Secretary for Foreign Affairs, made -in the House of Lords, represents the policy of the British Government -at the present day, this six-mile limit for bays is to be regarded as -established not alone for British North America, but for every part of -the British dominions unless specially provided for otherwise. (See p. -730.) - -From the foregoing summary of the disputes, negotiations, and treaties, -concerning the rights of Americans to fish on the coasts of the British -possessions in North America, it is evident that the British Government -has gradually given way to the pressure exerted by the United States. -In allowing a six-mile line for bays they have, indeed, as just shown, -gone further than was demanded, and have departed from the terms of the -fishery conventions which they have concluded with European Powers. -The basis of the delimitation adopted in the treaty of 1888 was, as Mr -Chamberlain intimated to Lord Salisbury, derived from the North Sea -Convention of 1882, to which important treaty we must now turn our -attention. - -It has been already said that the fishery convention with France in -1867 was not ratified by that country, and never came into operation -in the general police regulation of the fisheries in extra-territorial -waters. The desirability of international regulations to preserve -the peace between the fishermen of various countries frequenting -the neighbouring seas, and particularly the North Sea, soon became -apparent. Complaints of malicious interference with one another -increased in number. The Belgians and French were accused of cutting -and stealing the lines of Scottish fishermen, and the Dutch of taking -their derelict nets, and the Fishery Board for Scotland accordingly -pressed upon the Government, as early as 1876, the advantage of -negotiating a fishery convention with Holland.[1165] A little later -the free use by foreign trawlers of a destructive implement known as -“the devil,” or “the Belgian devil,” aroused a strong feeling among -British drift-net fishermen. The instrument consisted of a shank and -sharpened flukes, which was hung overboard and was designed for the -sole purpose of cutting fishing-nets in the sea which might impede -the movement of the boat making use of it. It was a product of the -disputes and difficulties that occurred in carrying on trawling and -drift-net fishing in the same localities at the same time. The British -Government in January 1880 appointed Mr W. H. Higgin, Q.C., to make -an inquiry on the subject. His report[1166] showed that the state of -things with regard to fishing operations in the North Sea by British, -Belgian, French, and Dutch boats was unsatisfactory. He found that -grievous injury and damage had been done to the drift-nets and tackle -of English fishermen in the North Sea by trawlers belonging to France, -Belgium, and Holland;[1167] that there was no international law or -convention between England and France, England and Belgium, or England -and Holland, affecting the fisheries in the North Sea,--the convention -with France in 1867 never having been ratified, while that of 1839 -was, he said, confined to the English Channel and referred only to -French fishermen; and he stated that some international law of the -kind was urgently required, as it would be impossible otherwise to put -a stop to the outrages described. In consequence of this report the -Government invited the co-operation of France, Belgium, Holland, Sweden -and Norway, and Denmark in devising a remedy, suggesting that separate -agreements might be made for the purpose. At the instance of Holland, -it was agreed to have one joint convention, and a conference of the -North Sea Powers was convened at The Hague, in 1881, to negotiate it, -Germany, at her own request, being included.[1168] - -In the proceedings at the conference the question that caused -the greatest difficulty and discussion was the definition of the -territorial waters or exclusive fishery limits. The British Government, -in curious contrast to their action earlier in the century, desired -to avoid any definition at all. The memorandum prepared by them as -the basis of the deliberations, stipulated that the convention should -“apply to the high seas generally outside the fishery limits of the -countries joining in the convention.” This somewhat vague, not to -say illogical, phraseology did not meet with the approval of the -other Governments. It was objected to by France in particular. That -Power had accepted the invitation to the conference on condition -that the regulation to be agreed upon should be restricted to police -rules intended to prevent conflicts between fishermen of different -nationalities, “and to secure to them the free practice of their -calling in the common waters of the North Sea.” In making a special -convention dealing with the open sea which was common to all, it seemed -to it impossible to do otherwise than begin by defining the limits -within which it was intended to operate.[1169] The French delegates at -the conference therefore proposed that the extent of the territorial -waters should, for fishery purposes, be defined in precise terms, -and they endeavoured further to get the limit made as contracted as -possible. They urged that the boundary should be fixed everywhere at -three geographical miles from low-water mark, whatever might be the -configuration of the coast. As to fixing a larger measurement for bays, -as in the Anglo-French convention of 1867, they argued that the rules -laid down on this subject in the convention in question ought not to -apply to the North Sea; in many instances these rules had reference -only to the interests of oyster fisheries, which, they said, did not -exist in the North Sea. The French contention regarding bays was thus -similar to that of the United States in the negotiations concerning the -treaty of 1818; and it was of course to the interest of France, whose -own coast would be but little affected, and whose fisheries along the -British coast in the North Sea were of great importance, to have the -exclusive fishery limit made as narrow as possible. - -The proposal that the territorial waters for fishery purposes ought to -be precisely defined, and that the limit on the open coast should be -fixed at three geographical miles from low-water mark, was generally -accepted, Belgium alone supporting the British view that it was better -not to define them in the convention. But as regards bays, objection -was taken to the French scheme on the part of Germany, with special -reference to the mouth of the Elbe, which was declared to be a part of -the sea belonging exclusively to Germany; and on the part of Norway, -on the ground that that country could not agree to fix the limit at -three miles, particularly with respect to bays. The rights which -particular states might have acquired, it was urged, ought not to be -prejudiced, and “bays should continue to belong to the State to which -they at present belonged.” The French delegates then formulated their -proposition in the following terms: “In the North Sea the limit of -the part known as territorial waters (_mer territoriale_) is fixed, -whatever may be the configuration of the country, at three miles from -low-water mark, along the whole length of the shores of ... It is, -however, understood that this shall not be taken to modify in any way -the rights acquired on certain parts of their coasts by the different -Powers to whom the shore belongs;” or else, “It is, however, understood -that the present convention shall not be taken to modify in any way the -rights which any Government may possess outside the three-mile limit in -bays.” - -As the British and French delegates could not agree on this subject, -further discussion was postponed until the former had consulted their -Government. When this was done, they announced that their instructions -did not permit them to adopt the French proposals; and they continued -to press the draft article for acceptance, declaring that the question -of defining the limits of the maritime jurisdiction of the various -countries did not fall within the province of the convention. The -other delegates, however, did not share this view, and when a complete -definition was insisted on, the British representatives ultimately -agreed to accept the terms employed in the first article of the -Anglo-French convention of 1867, and they submitted the following -article: “The fishermen of each country shall enjoy the exclusive right -of fishery within the distance of three miles from low-water mark -along the whole extent of the coasts of their respective countries. As -regards bays, the entrances of which do not exceed ten miles in width, -the distance of three miles shall be measured from a straight line -drawn from headland to headland.” The counter-proposal on the part of -France did not materially differ from this, except by the inclusion of -islands, by the better definition regarding bays, and by the insertion -of a clause providing for the right of free navigation and anchorage -in territorial waters.[1170] The German delegate, anxious about the -waters at the mouths of German rivers, urged that flats or banks -uncovered at low water should also be included, as well as islands. -This proposal had been agreed to by the British Government in 1868, -after correspondence between the Foreign Office and the German Embassy -in London, and though apparently not now desired by Great Britain, it -was formally adopted.[1171] - -The article as finally agreed upon was as follows: “The fishermen -of each country shall enjoy the exclusive right of fishery within -the distance of three miles from low-water mark along the whole -extent of the coasts of their respective countries, as well as of the -dependent islands and banks. As regards bays, the distance of three -miles shall be measured from a straight line drawn across the bay, -in the part nearest the entrance, at the first point where the width -does not exceed ten miles. The present Article shall not in any way -prejudice the freedom of navigation and anchorage in territorial waters -accorded to fishing-boats, provided they conform to the special police -regulations enacted by the Powers to whom the shore belongs.” - -[Illustration: Fig. 19.--_Showing the Sandbanks at the mouth of the -Ems._] - -It is interesting to note that, at the instance of the Dutch president, -the conference agreed that the provisions of the convention would -not be applicable to the Zuiderzee; and that in deliberating on the -boundaries of the North Sea within which they would apply, it was -agreed to exclude the Skagerrack, the fisheries of which, it was -stated by the president, were not international, but were “essentially -within the jurisdiction of the States to which the shores belong.” The -greater part of the Zuiderzee, however, would have been excluded by -the definition of bays in the convention, and the rest of it by the -inclusion of “banks”; but the Skagerrack, on the other hand, is nowhere -less than sixty geographical miles from shore to shore. Neither Norway -nor Denmark has asserted since the convention exclusive jurisdiction in -its moiety of these waters, where, in point of fact, both English and -German vessels now carry on an extensive fishing.[1172] - -Some other points of interest were raised during the deliberations of -this important conference. It was asked by the president: What would -be the fate of the convention during war, in which one or two of the -Governments joining in it should be belligerents? Would the fishery -cruisers of the Powers concerned merely retire from the North Sea -and leave fishermen of their nationality without protection or help? -He recommended that the conference should adopt the principle that -fishing-boats, _bonâ fide_ engaged in fishing, should be declared -neutral. This was to revive a subject that had earlier, especially -during the time of Napoleon I., caused much discussion, and which was -remote from the object of the convention; and the proposal, though -sympathetically received by the French delegates, was not supported -by any of the Governments. A proposal of another kind was made by -the German delegate. He thought it was necessary that restrictive -measures should be enforced to prevent the destruction of the fry of -fish and the taking of small fish; for example, by forbidding trawling -within a certain distance of the shore, so as to provide a shelter for -the free development of fish, and by regulating the construction of -trawl-nets. The British and French delegates were opposed to any system -of restriction, relying on the results of the inquiry which had been -then recently made by Messrs Buckland and Walpole,[1173] and on the -part of France the following draft clause was formulated for insertion -in the convention: “In the extra-territorial part of the North Sea, -fishery shall be free at all seasons, and with all kinds of implements, -without any sort of distinction.” The clause was not adopted, and it -was generally agreed that the question was not ripe for decision by -that conference, which was moreover concerned with the police of the -fisheries, and not with the reproduction of fish, in the North Sea. - -The North Sea Convention was concluded in 1882, the signatory Powers -being Great Britain, Germany, France, Belgium, Denmark, and the -Netherlands.[1174] Although the delegates of the United Kingdom of -Sweden and Norway signed the protocol and were present at the final -deliberations, those Powers did not join in the convention, objections -being raised as to the definition of the territorial waters and on some -other points.[1175] An additional article was inserted providing that -the King of Sweden and Norway might adhere later, for both or either -country; but this has not been done, though the coast of Norway forms -a not inconsiderable part of the boundary of the North Sea as defined -in the convention. The reasons which induced these countries to abstain -from joining in a friendly agreement with the neighbouring Powers of -western Europe, after having accepted the invitation to the conference -and taken part in its deliberations, must have appeared to them strong; -and from the delay that occurred in coming to a decision it is evident -that the matter received full consideration. They believed, however, -that to agree to so restricted a boundary for their territorial waters -in respect to fishery would be disadvantageous to them: it is probable, -moreover, that the raising of the question was not foreseen, since the -object of the conference was to consider the police of the fisheries in -extra-territorial waters in the North Sea. It is curious, indeed, that -the limits for exclusive fishery, both in the convention with France in -1839 and with the other North Sea Powers in 1882, were fixed as it were -incidentally. - -The duration of the convention was to be for five years from the -date at which it came into operation, unless one year’s notice to -terminate it were given by any of the contracting Powers; and it was -to continue in force from year to year subject to similar notice. That -none of the signatory Powers have withdrawn from the convention is the -best proof of its general utility. From the number and influential -position of these states, and from the character of the sea to which -it applies,--one of the most productive in the world,--this convention -is an international document of high importance to the sea fisheries, -and deserves careful consideration. The first article declares that the -provisions shall apply to the subjects of the high-contracting parties, -the object being “to regulate the police of the fisheries in the North -Sea outside territorial waters”; and the limits of the North Sea were -carefully defined.[1176] The provisions of the convention relate to -the registration, lettering, and numbering of boats, the operations -of fishermen pursuing different methods of fishing at the same place -at the same time, the malicious use of instruments for cutting nets, -the salvage of derelict fishing-gear, and the superintendence by -cruisers. It was put in force in this country in 1883 by an Act of -Parliament,[1177] which also extended its application, so far as -British sea-fishing boats were concerned, to the whole of the seas -around the British Islands, whether within or without the exclusive -fishery limits. In this Act the stipulation in the second article -of the convention, as to the freedom of navigation and anchorage in -territorial waters on the part of foreign fishing-boats, received -a limiting definition. The clause in question was inserted in the -convention at the instance of France, and was accepted with some -reluctance by the British delegates, who agreed to it in general terms -only, without the recognition of a right.[1178] By the Act foreign -fishing-boats were prohibited from entering the exclusive fishery -limits of the British Islands except for purposes recognised by -international law, or by any treaty or arrangement in force between -this country and any foreign state, or for any lawful purpose. If a -foreign boat did enter, it was to return outside the limits as soon -as the purpose for which it entered had been answered, and fishing or -attempting to fish within the limits was, of course, forbidden under -penalties. - -The definition of the exclusive fishery limits in the North Sea -Convention differed in two respects from that contained in the previous -conventions with France. The rule for the measurement of bays was -modified, and the dependent islands and banks were expressly included -as part of the coast from which the limit should be measured. In the -Anglo-French conventions of 1839 and 1867 bays which did not exceed -ten miles in width at the mouths were comprised in the reserved -waters, and the three-mile limit was measured from the line joining -the “headlands.” Thus some bays whose width at the mouth, or between -their headlands, exceeded ten miles were deprived of the benefit of -the principle applied to bays and came under the three-mile rule, -even although at a small distance within the entrance the width might -not exceed ten miles. Since all bays have not headlands, the French -proposal at The Hague conference to substitute “the two extreme points -of the bay” for that term was an improvement. Still better was the -definition finally adopted, to place the base-line at the first point -nearest the entrance where the width did not exceed ten miles. The -specific inclusion of islands removed such difficulties as were raised -in 1853 by a French commodore at the Farne Islands (see p. 618), though -it had long been established in connection with the rights of neutrals -that islands carried with them, no less than the mainland, the belt -of territorial sea. The inclusion of banks was, however, novel, and -was not received with favour by the British Government. It was feared -that it would lead to difficulties and complications in future if such -banks as the Goodwin Sands, which were situated beyond the three-mile -limit, and the similar banks on the German and Dutch coasts, were -held to be territorial dependencies of the coast; and so strong was -the objection of the British Government to their inclusion, that they -instructed their ambassadors abroad, if an objection was raised by any -Power, to have this definition reconsidered.[1179] The objection is -theoretically well founded. Sand-banks of this character may be not -permanent, and usually vary in extent, configuration, and position -with lapse of time and even after a single tempest; and the extent of -sea appendent will vary likewise. It would thus be difficult to fix a -precise and permanent limit in connection with them. Moreover, since -the banks may be covered by the sea except at low-water without losing -their territorial value, it would sometimes require more than ordinary -care on the part of foreign fishing-boats to avoid infringing the -limit around them. On the other hand, for the purpose of regulations -designed to protect fish life, such as are referred to in the sequel, -banks of this nature are of especial value; and, in point of fact, -few difficulties in practice appear to have arisen on this score in -carrying out the convention.[1180] - -On one or two points, however, the definitions in the convention -might have been improved. Nothing is said as to the tides at which -low-water mark is to be taken for measurements, though on certain -coasts the extent of territorial water will vary much according to -whether it is a neap or a high spring tide; and the question whether -certain banks are or are not territorial and entitled to the limit -may vary in the same way. It is to be presumed that the tide is an -ordinary neap tide, as in English law. More important is the fact -that “rocks” are not included along with islands. Quite recently the -omission has given rise to difficulties in regard to three places on -our coast--viz., the Eddystone, the Bell Rock, and the Seven Stones -Rocks, off the Scilly Islands. The Seven Stones Rocks are a reef near -the south-west extremity of Cornwall, about seven miles from Land’s -End, and about a mile in length, and with a lightship at it; but it -does not appear that any portion is above the sea-level at low-water -of neap tides. Complaints were made to the Government by the Cornwall -Sea Fisheries Committee that French fishing-boats fished within three -miles from the rocks, and close to them; but it was stated by the -Admiralty, and also by the Foreign Office, that these rocks could -not be claimed as being within British territorial waters.[1181] In -this case, presumably, the decision might rest on the fact that the -rocks do not appear at low-water of ordinary tides. The Eddystone is -somewhat different. The rock or reef on which the lighthouse is placed -lies about fourteen miles south-west of Plymouth, and while covered -by the sea at high tide, is exposed to the extent of an area of about -500 yards at low-water of neaps. French fishermen also fish around -it and close to it, a practice which caused the Devon Sea Fisheries -Committee to complain. The gunboat _Circe_, in August 1905, seized -and took into Plymouth two French “crabbers” for fishing within three -miles from the Eddystone, but after communicating with the Board of -Trade, instructions were sent to release the boats; and the Board -of Agriculture and Fisheries, while saying that they were not in a -position to express an authoritative opinion on the matter, called -attention to the decision in 1902 regarding the somewhat similar case -at the Seven Stones. Here, no doubt, the decision rested on the absence -of the specific inclusion of “rocks,” as distinguished from islands, in -the conventions, and one can understand the expression of surprise by -the Devon Sea Fisheries Committee that a rock which was recognised as -British, and was inhabited by lighthouse-keepers, was not considered as -within the territorial limit for fishing purposes. - -Similar complaints have been made concerning the Bell Rock, which lies -about ten miles east-south-east of Arbroath, Forfarshire, and has a -lighthouse upon it. It is entirely covered at high-water; at the ebb -of spring tides it is uncovered to a depth of four feet, while at -low-water of neap tides the top of the rock is just visible, and would -then probably acquire validity for the measurement of three miles -from it and around it, if rocks had been included in the conventions, -as they are now included in the recent convention between this country -and Denmark concerning Iceland and the Faroës (p. 647). The case -of the Seven Stones and the Eddystone is, however, on a different -footing; for while the limit of exclusive fishery along the coasts of -the North Sea, with the exception of the part formed by Norway, was -settled by the convention of 1882 (so far as concerns the fishermen -of the signatory Powers), there appears to be some obscurity as to -how far the three-mile limit operates on the coasts that lie outwith -the boundaries of the North Sea,--such, for example, as the west -coasts of England and Scotland and the coasts of Ireland. The second -article of the convention declares, without qualification, that the -three-mile limit shall apply “along the _whole extent_ of the coasts” -of the respective countries,--it does not say merely to the North Sea -coasts,--and the view that this stipulation operates on all the coasts -appears to be widely prevalent, and is expressed, for example, in the -Belgian law which put the convention in force in that country.[1182] -It is, however, held by legal authorities that since the special -object of the convention was “for the purpose of regulating the police -of the fisheries in the North Sea outside territorial waters,” and -as the boundaries of the North Sea are defined “for the purpose of -applying the provisions of the present Convention,” the definition of -the exclusive fishery limits applies only within the area specified, -and not to the other coasts of the signatory Powers.[1183] In the -Convention Act, as in the Territorial Waters Jurisdiction Act, we -accordingly find a distinction drawn between the exclusive fishery -limits under international law and those under specific treaties or -conventions. In the definition clause, the expression “British Islands” -is explained to mean the United Kingdom of Great Britain and Ireland, -the Isle of Man, the Channel Islands, and their dependencies, and it is -declared that “the expression ‘exclusive fishery limits of the British -Islands’ means that portion of the seas surrounding the British Islands -within which Her Majesty’s subjects have, by international law, the -exclusive right of fishing, and where such portion is defined by the -terms of any convention, treaty, or arrangement for the time being in -force between Her Majesty and any Foreign State, includes, as regards -the sea-fishing boats and officers and subjects of that State, the -portion so defined.”[1184] - -From all this it would appear that, notwithstanding the ambiguity -introduced by the unqualified phrase “the whole extent of the coasts of -their respective countries,” the definition of the exclusive fishery -limits in the convention of 1882 applies only to the coasts of the -North Sea. In the convention of 1839 with France, on the other hand, -there seems no reason to doubt that the three-mile limit was applied -to all parts of the coasts of Great Britain and France respectively. -By Article ix. it was declared that the exclusive right of fishing was -reserved for subjects within that distance “along the whole extent of -the coasts” of each country; and the British Act of Parliament to carry -into effect this convention, and the international regulations agreed -upon under it, so far from expressing any qualification or reservation -as in the Act of 1883, made it clear that the limit applied generally. -In the preamble it is stated that “Whereas a Convention was concluded -between Her Majesty and the King of the French ... defining the limits -of the oyster fishery between the island of Jersey and the neighbouring -coast of France, and also defining the limits of the exclusive right -of fishery on all other parts of the coasts of the British Islands -and France”; and Article 85 of the regulations enacted that the -fishing-boats of the one country, except under certain circumstances, -“shall not approach nearer to any part of the coasts of the other -country than the limit of three miles specified in Article ix. of the -convention.”[1185] - -In the convention of 1852 between Great Britain and Belgium, which -was simply entitled “relative to fishery,” without any particular -purpose, seas, or regions being specified, it was stipulated that -“Belgian subjects shall enjoy, in regard to fishery along the coast -of the United Kingdom of Great Britain and Ireland, the treatment of -the most favoured foreign nation.” The most favoured foreign nation at -that time was France, and although no distance was fixed in the Belgian -treaty, there is no doubt the three-mile limit applied, and was indeed, -as stated above, enforced, on the east coast of Scotland against the -Belgians as well as against the French. - -In the convention of 1867 the same limit was assigned “along the whole -extent of the coasts” of the two countries; and the provisions of the -convention were expressly stated to apply beyond the exclusive fishery -limits, in the one case “to the seas surrounding and adjoining Great -Britain and Ireland,” and in the case of France to the seas adjoining -the coast of that country between the frontiers of Belgium and Spain; -and the object of the convention was “relative to fisheries in the seas -between Great Britain and France.” As already stated, this treaty, with -an unimportant exception, did not come into effect, and the convention -of 1839 remained in force.[1186] - -As no other treaties exist defining the exclusive fishery limits -along our coasts than those referred to, the position in relation -to conventional law appears to be as follows. With respect to France -and Belgium, the three-mile limit, with the ten-mile line for bays, -seems to be in force along the whole extent of the British and Irish -coasts. With respect to the other Powers which were parties to the -North Sea Convention of 1882,--namely, Germany, Denmark, and the -Netherlands,--this limit is in force only on the eastern, or North -Sea, coasts of England and Scotland. On the north and west coasts of -Scotland, the south and west coasts of England, and the whole of the -coast of Ireland, the limits of exclusive fishery as regards these -countries, and as regards all countries except France and Belgium, -fall to be determined by the principles of international law. With -respect to all other nations, as, for example, the Norwegians, Swedes, -and Spaniards, the limits on all parts of our coasts also fall to be -determined under international law. The principles of international -law, as expounded by the accredited writers, do not, as will be shown -later, and as is implied in the quotations from the Acts above cited, -support the view that the right of exclusive fishing, apart from -treaty, must necessarily be restricted to the three-mile limit. The -preponderance of opinion is that the boundary of the territorial sea, -including, therefore, the exclusive right of fishery, coincides with -the range of guns from the shore; and it is evident that as against -such nations as claim for themselves a greater extent than three miles -on their own coasts--viz., Norway, Sweden, and Spain--a larger limit -than that contained in the conventions could be rightfully enforced on -the British coasts. - -There are many things to show that the unsatisfactory state of -affairs, not to say confusion, with respect to the limits of exclusive -fishing to which we are entitled on various parts of our coast, has -been brought about partly by a widespread belief that the boundary -under international law is three miles, partly also by what must be -characterised as a want of knowledge and care on the part of those -dealing with the question. Mr T. H. Farrer, the permanent Secretary -of the Board of Trade, told a Committee of the House of Commons in -1876 that the convention and regulations with France were “hastily -and recklessly” made,[1187] and the record of the proceedings at the -conference at The Hague in 1881 shows that it would not have been a -difficult matter to clear up some of the obscurity that exists. One -point of importance is that, notwithstanding the absence of any treaty -or agreement defining the extent of the limits of exclusive fishery -with certain nations, the three-mile limit alone has been enforced -against the vessels of such nations fishing on our coasts. This has -been the case, except for a brief period, with respect to Norwegian and -Swedish trawlers in the Moray Firth in Scotland, which is “closed” to -British trawlers, and the vessels of these two nations are thus put on -the same footing as those of other countries with which a convention -has been made. It is also the case on the west coast of Scotland, -where the limit of three miles is enforced against foreign trawlers, -apparently irrespective of nationality, and certainly against Dutch and -German vessels as well as against Belgians in the Clyde, from which -British trawlers are excluded.[1188] How far this undoubted usage may -modify the position under international law it would be of importance -to determine. - -A more recent convention must be referred to, which, however, does -not relate to the coasts of this country, but to those of the Danish -islands, the Faröes, and Iceland, where British trawling vessels carry -on extensive operations. The Icelanders, who depend so much upon their -fisheries, were desirous of having a considerable extent of the waters -around their coasts reserved to themselves, and wished to have a limit -of seven miles to protect the grounds from the action of foreign -fishing-boats.[1189] As a result of negotiations, however, with Great -Britain, Denmark agreed to the usual limit of three miles. The treaty -was signed at London on 24th June 1901, and after ratification was -brought into force on 31st March 1903 by an Order in Council of the -12th of that month. Its main object, apparently, was to regulate the -fisheries of the subjects of the two countries outside territorial -waters in a large part of the ocean surrounding the Faröe Isles and -Iceland, in a small part of which extensive fisheries are now carried -on by foreigners, especially by English and German trawlers; but its -immediate effect was to impose the three-mile limit on the coasts in -question. The article defining the territorial waters is the same as in -the North Sea Convention, except that islets and rocks are included, -which thus gets rid of some possible difficulties in interpretation, -such as have arisen in connection with the Eddystone and Bell -Rock.[1190] - -[Illustration: Fig. 20.--_Showing the Limits for the Anglo-Danish -Fishery Convention of 1901._] - - - - -CHAPTER IV. - -THE MODERN PRACTICE OF STATES AND THE OPINIONS OF RECENT PUBLICISTS. - - -We may now pass to the consideration of the modern practice of states -with respect to the extent of territorial sea which is claimed or -allowed by them, and of the opinions of the later writers on the -law of nations as to the extent that may be rightfully conceded -or appropriated. It will be found that there is apparently a very -considerable discrepancy between the one and the other. For while -the opinions of publicists have on the whole become more decided -and definite as to Bynkershoek’s principle being the true principle -for the delimitation of territorial waters, and the inadequacy of -the three-mile limit has been formally declared, the general usage -of states is indicated by the common adoption of the latter limit -for several purposes. As elsewhere stated, this general use of the -one marine league is in large measure owing to the example, or the -pressure, of Great Britain and the United States of America, and -perhaps chiefly, if indirectly, to the influence of the latter. -Although the United States more than any other Power has varied her -principles and claims as to the extent of territorial waters, according -to her policy at the time--now claiming the vague and wandering -“boundary” of the Gulf Stream or the whole of Behring Sea, and now the -liberty to fish right up to the shores of the Falkland Islands,--she -has been consistent in this, that she has steadily and constantly -pressed for the narrowest limit she could get in favour of her own -fishermen on the coasts of the British North American Colonies. The -unhappy heritage of the British Foreign Office that came from the -abnegation of territorial dominion over large parts of the waters -in question by Great Britain in former times, has been as fruitful -of trouble as Lear’s renunciation of his sovereignty. The numerous -negotiations as to the rights of fishing on the coasts of British North -America have always resulted in concessions to the United States, and -appear to have been conducted, as they were almost bound to be, rather -in the light of the general political relationship of the two Powers -than on the intrinsic merits of the particular question at issue; and -thus in Canada and Newfoundland British diplomacy on this subject -has often been criticised. Obviously, when British policy takes this -course in regard to North America, one must expect for the sake of -consistency, if on no other ground, that it will tend to take the same -course elsewhere. An example of this was quite recently shown, when -a concession of the kind referred to, as to the rule for bays, which -was granted during a _modus vivendi_ as a temporary act of grace, -was spoken of as if it were now definitely incorporated in British -international policy (see p. 730). - -The discrepancy alluded to between the authorities on the law of -nations and the common usage is perhaps more apparent than real. The -international treaties and municipal laws in which a limit is fixed -refer to a few subjects, and in particular to fisheries, and they -relate to times of peace. The most vital attributes of the territorial -sea relate to the security, the obligations, and the rights of neutral -states in time of war; and there has happily been no great maritime war -in Europe for a long time to put the principles to the test. But when -such a war does come, there is little doubt that during hostilities the -three-mile limit will be set aside by the neutral states concerned, and -another and greater limit fixed for security, in closer correspondence -with the actual range of guns. It is to be further noted, that -notwithstanding the numerous municipal enactments and the international -conventions in which the three-mile limit is fixed for certain -purposes, no state seems to have formally and deliberately defined the -absolute extent of the neighbouring sea which it claims as pertaining -to it under all circumstances. Many states--and Great Britain is one of -them--have taken pains to make it clear that in adopting a three-mile -limit for particular purposes they do not abrogate their right to the -farther extent of sea that may be necessary for other purposes. - -Though Germany has not defined the extent of her territorial waters -by municipal law,[1191] she has entered into agreements with various -Powers respecting the limits of exclusive fishery. The first of these -was made with Great Britain in 1868, and the rules for the guidance -of British fishermen, issued by the Board of Trade in accordance with -it, stated that,--“The exclusive fishery limits of North Germany are -designated by the North German Government as follows: that tract of the -sea which extends to a distance of three sea-miles from the extremest -limit which the ebb leaves dry of the German North Sea coast, of the -German Islands or Flats lying before it, as well as those bays and -incurvations of the coast which are ten sea-miles or less in breadth, -reckoned from the extremest points of the land and the flats, must be -considered as under the territorial sovereignty of the North German -Confederation;” and it is further said that the exclusive rights of -fishery in the above spaces are reserved to Germans, and English -fishermen are not at liberty to enter these limits except under -certain specified circumstances, as of wind and weather.[1192] These -limits were again formally recognised by Great Britain in July 1880, -and, according to Perels, were further confirmed by the North Sea -Convention of 1882. It is obvious that “the extremest limit which the -ebb leaves dry,” both for the open coast and for bays, will differ -considerably on such a coast as that of Germany from the low-water mark -of ordinary tides, and that the space included in the measurement will -be correspondingly enlarged. Germany also agreed with Denmark, in 1880, -to the three-mile limit for the adjacent coasts of the two countries -in the Baltic, with a ten-mile base-line for bays, the mid-line or -_thalweg_ applying where the waters between the respective coasts were -less than six miles in width. More recently, an agreement has been -concluded precisely defining on charts the exclusive fishing waters of -the two countries in the Little Belt.[1193] - -Denmark is one of the Scandinavian countries which, as previously -mentioned, claimed a wide extent of territorial sea. In 1812 the -limits, both for Norway and Denmark, were defined as follows in a -royal ordinance: “We will that it be established as a rule in all -cases where it is a question of determining the maritime boundary of -our territory, that that territory shall be reckoned to the ordinary -distance of one marine league from the outermost islands or islets -which are not overflowed by the sea.”[1194] The league in these -Scandinavian ordinances, as previously mentioned, is one-fifteenth of -a degree, or four geographical miles, and therefore one mile more than -the ordinary three-mile limit. But, in point of fact, owing to the -method of measurement adopted, the space of sea included as territorial -is much greater. Instead of computing the four miles from low-water -mark on the shore, which is the base usually taken, it is measured -from an imaginary straight line connecting the outermost points of the -permanently visible isles or rocks lying farthest from the coast. In -some places the extent of water thus cut off as territorial is very -considerable. Though the other Scandinavian countries, Norway and -Sweden, have maintained this limit to the present day, it has been -in practice abandoned by Denmark, which has adopted the three-mile -limit in certain agreements with Germany, in the North Sea Convention -of 1882, and in the recent treaty with Great Britain with respect to -Iceland and the Faröes. In the Skagerrack and Cattegat she concedes the -three-mile limit to German and British fishermen, and no doubt also -to the fishermen of the other nations which were parties to the North -Sea Convention; and it is of interest to note, with reference to the -discussion on a former page as to the extent of coast really comprised -in the North Sea Convention, that it is in virtue of this convention -that the old boundary of four miles has been abandoned there.[1195] But -while Denmark has taken up this attitude with reference to English -and German fishermen, it is claimed on her behalf by an eminent -Danish authority that it is within her right still to maintain the -old geographical league as the boundary of her territorial sea,[1196] -and this has indeed been recently done in a fishery convention with -Sweden, which claims the same limit with regard to the fisheries in the -Cattegat, the Sound, the Baltic along the Swedish coast from Falsterbo -to Simbrishamn, and around the islands Bornholm and Kristiansö.[1197] - -[Illustration: Fig. 21.--_Showing the two Limits in Danish Waters; the -dotted line shows the Scandinavian Limit._ From ‘Dansk-Fiskeritidende.’] - -It is to be noted that the terms used in this treaty in defining the -limit differ from those in the ordinance of 1812. The ordinance speaks -of islands and islets which are not submerged or overflowed by the sea, -while the treaty mentions the outermost islets or rocks which are not -_constantly_ submerged or overflowed by the sea,--a distinction which -might make a very considerable difference in the extent of the waters -reserved. - -We thus see that Denmark enforces two limits in connection with -fishery--one of four miles, measured according to the Scandinavian -method, in the Baltic, &c., as against Sweden (and doubtless also -against Norway); and the ordinary one of three miles in the Baltic, -&c., as against Great Britain and Germany at least, and also in the -North Sea and at the Faröes and Iceland. The various limits are shown -in the accompanying figure, which is a reproduction of the official -chart. It also shows how complicated the three-mile limit is among the -islands. - -[Illustration: Fig. 22.--_The White Sea, showing the line between Cape -Kanin and Cape Sviatoi._] - -The views of Russia with respect to the limits of territorial waters, -as expressed during the negotiations with Great Britain in the -earlier part of last century, have been referred to (p. 581), and -it appears from the Russian Code of Prize Law, 1869 (Art. 21), that -the jurisdictional waters, the extent of which had been fixed in her -treaties at the end of the eighteenth century at the range of guns, -are limited to three miles (about 5647 metres) from the shore. The -same distance was assigned for customs purposes; and as no general -boundary has been prescribed for the exclusive right of fishing, it -may be presumed that that right is restricted to the same space.[1198] -It appears that Russia also claims the White Sea as a _mare clausum_, -or _mer fermée_, within a line between Cape Kanin (Kanin Nos) and Cape -Sviatoi (Sviatoi Nos), where it is about eighty geographical miles in -width.[1199] If this claim is now made by Russia, it would probably be -difficult for her to make it good before an international tribunal, did -such exist. For not only is the mouth of the width stated, but the area -included is nearly 30,000 square geographical miles, only about twenty -per cent of which is within the ordinary three-mile limit. Until lately -the only foreigners who fished in the neighbourhood of the White Sea -were Norwegians, but in each summer since 1905 both English and German -steam-trawlers have carried on an important fishery in the vicinity of -Cape Kanin, but not within the White Sea itself, where the rocky nature -of the bottom is said to prevent this method of fishing.[1200] - -In France, fishing in the sea beyond three miles from low-water mark -was declared by a decree of 10th May 1862 to be free all the year -round, except for oysters; but certain fisheries were allowed to be -temporarily suspended beyond the three-mile limit, if it was found -necessary for the preservation of the bed of the sea, or of a fishery -composed of migratory fishes.[1201] The first Article of the law of 1st -March 1888, which originated in the North Sea Convention, states that -“fishing by foreign vessels is prohibited in the territorial waters of -France and Algeria within a limit which is fixed at three marine miles -seawards from low-water mark,” with the same arrangement for bays as -in the North Sea Convention. The distance stated does not, however, -necessarily represent the bounds of the territorial sea, properly -so called, the extent of which has never been precisely defined by -France.[1202] No doubt France, like other countries, reserves her right -to a wider limit should occasion arise to make that necessary. - -It appears that as early as 1832 the three-mile limit was declared by -Belgium to be the boundary of her territorial waters,[1203] and by a -law promulgated in 1891, and based upon the North Sea Convention, “all -foreign boats” were prohibited from fishing within three miles of the -Belgian coast.[1204] - -In the Netherlands also, in connection with the North Sea Convention, -the boundary of exclusive fishing has been declared to be at the -distance of three miles from low-water mark, and this applies to all -foreign fishermen. No distinction has been formally made between the -fishery limit and the limit of the territorial sea for political -purposes.[1205] - -In Austria-Hungary, whose coast is confined to the eastern shore of the -Adriatic, the three-mile limit has been adopted, subject to certain -qualifications respecting the right of fishery under treaties with -Italy. The regulations concerning foreign vessels of war authorise a -shot to be fired from the nearest battery at any such vessel which -does not show its flag on coming within range of the guns, and within -the same distance of a fortified port they are prohibited from taking -soundings, practising with firearms, &c.; other regulations forbid -vessels laden with goods which form the object of a monopoly of the -state from approaching within gunshot. By a decree of 23rd August -1846, and a circular of 28th April 1849, it was declared that the -expression “range of guns” in these ordinances was equivalent to three -marine miles of sixty to a degree. The customs regulations operate -within the same limit, but the manifest can be demanded within a -farther distance of four marine miles.[1206] With respect to the right -of fishing, the regulations are somewhat complex. The boundary of -exclusive fishing is fixed at three miles,[1207] but inasmuch as the -fisheries in the Adriatic are carried on almost only by Austrian and -Italian subjects, it was found convenient to arrange by treaty for the -fishermen of either country to fish within the territorial waters of -the other, except within a distance of one marine mile from the shore, -and subject to certain restrictions regarding the fisheries for corals -and sponges, and the observance of the local regulations.[1208] This -mutual arrangement with regard to the right of fishery was renewed and -continued in a later treaty of 11th February 1906. - -The fishings within one marine mile of the shore are reserved to -the inhabitants of the commune to which the coast appertains; but -in certain specified circumstances fishermen from other places may -be allowed to fish within this communal zone. The use of drag-nets -and trawl-nets is prohibited in all places where the depth is under -eight metres; within the first maritime or communal zone at certain -seasons, irrespective of depth, and altogether within five miles of the -coast when employed from steamers. Owing to the absence of tides, the -shoreward limit is not measured from a low-water mark, but from a line, -fixed by local authorities, where the water ceases to be constantly -brackish.[1209] - -It is doubtful how far the three-mile limit has been adopted in Italy. -In a Bill of 1872 a distinction was proposed between the territorial -waters and the exclusive fishing waters, but this distinction was not -made in the law of 1877.[1210] The question was taken up later by the -Commission for Fisheries, and the opinions elicited from the local -authorities at various parts of the coast, who were consulted, varied, -the recommendations for the boundary of the territorial waters (_mare -territoriale_) ranging from one and a half miles to ten kilometres, -and very commonly the limit suggested was four geographical miles. -The boundary recommended for the exclusive fishing waters (_mare -pescatorio_) also varied, but in this case the depth of the water -rather than the distance from shore was held to be the more important -factor in deciding on a limit, an opinion with which the Commission -agreed so far as concerned steam trawling. In view of the fishery -conventions of the western Powers, the Commission recommended a limit -of three miles and ten miles for bays, as in those conventions,[1211] -but the proposal was not accepted by the Italian Government. The -subject was again considered by the Commission in 1904 and 1906, -with particular reference to steam trawling and dredging, but no -proposition to determine the boundary of the territorial waters for -fishing purposes was adopted. A decree of 4th September 1908, however, -introduced a limit of three miles, but only with reference to the use -of dredges in some districts of the Tyrrhenian Sea. - -With respect to the extent of the territorial sea for political -purposes, no definition has been given in Italian laws; it depends -therefore upon the general principles of international jurisprudence. -It is interesting to note that in some comparatively recent decrees the -boundary is stated to depend on the range of guns. Thus, instructions -issued by the Minister of Marine in June 1866 commanded the officers of -the navy to refrain from all hostile acts in the ports and territorial -waters of neutral Powers, and reminded them that the limit of the -territorial waters was the range of cannon from the shore; and in a -circular from the same Ministry in March 1862 it was stated that the -extent of the territorial sea varied in different countries and in -the opinion of different publicists, but that the general opinion was -that the range of guns was the sole rule on the matter.[1212] It may be -added that by the customs law of 1896, the manifest of vessels may be -demanded within ten kilometres of the coast.[1213] - -In Greece, another of the Mediterranean states, the three-mile limit -was adopted in 1869, when a circular of the Minister of Marine -prohibited foreigners from fishing within that distance of the shore. -Previously, in virtue of a royal decree issued in 1834, foreign boats -were allowed to fish for sardines in the Gulf of Corinth, but this -concession was withdrawn.[1214] - -As already mentioned, the three-mile limit is the one in force in -all the British colonies, in Japan,[1215] in the United States of -America, and in some at least of the South American states. The Chilian -Government, for example, has defined the extent of the territorial -sea belonging to it as one marine league from low-water mark, within -which distance the right of fishing is reserved to Chilian citizens -or domiciled foreigners. At the same time it is stated that “police -administration for the purposes of the security of the State or the -carrying out of fiscal regulations extends to a distance of four marine -leagues, measured in the same manner.”[1216] - -Quite lately, however, one of the chief states of South America has -advanced a claim to a very wide extent of sea along its coasts--so far, -at least, as the right of fishery is concerned. In September 1907 the -Minister of Agriculture for the Argentine Republic issued a series of -ordinances for the regulation of the fisheries,[1217] in which it is -declared that, with respect to the fisheries, a zone of water up to -a distance of ten miles (18,520 metres, or about 10¼ nautical miles) -from high-water mark on the land is under the control of the state. -The great gulfs and bays are, moreover, included, such as the Gulf of -San Matias, the Gulf of St George, and the Gulf of Nuevo, the closing -line in some cases considerably exceeding one hundred nautical miles -from point to point, and extending for more than seventy miles beyond -a three-mile limit. All living animals in the sea are considered as -objects of sea-fishing, with the exception of those which reproduce -on the land, as birds, seals (_lobos_), and fish-otters. Within the -declared limits the exercise of sea-fishing is free, provided that the -regulations are adhered to. The one referring to trawling prohibits -that method of fishing by sailing-boats within three miles of the -shore, but allows such boats to trawl outside that distance if the -meshes of the nets have an aperture not less than 16 centimetres (6¼ -inches); steam trawling, on the other hand, is prohibited within five -miles of the shore. Commercial fishing is forbidden within the great -extent of water referred to unless by vessels entered on the official -list (_matricula nacional_), and foreigners are thus excluded. A -novel feature, but one in complete harmony with the results of modern -fishery investigations, is the reservation of the right to close -any area within the limit claimed, so that such area or areas may -act as reserves to replenish neighbouring grounds and increase the -multiplication of the fish. The right to establish close-times is also -reserved, and the sale of undersized fish is prohibited unless for -certain specified purposes. - -Special regulations are made for sealing. Concessions for this purpose -will be granted for a term of five years on various parts of the coast -under certain conditions, and it is enacted that for a distance of -twenty miles from the coast in such places the right of taking seals is -confined to those who have obtained the concession. Penalties for the -infraction of the laws are provided, fines varying from five to five -hundred pesetas, and offenders may be imprisoned for a period of from -one to sixty days. - -Later regulations issued by the Minister of Agriculture, applying -to that part of the coast between the Rio de la Plata and the Rio -Negro, provide that all those engaged or who desire to engage in sea -fishing there, must first receive official permission to do so. Within -a zone of twelve miles from low-water mark, trawling by steamers is -prohibited, but trawling by sailing-boats, and fishing with various -kinds of lines and with drift-nets, are allowed; and all vessels -employed must fly the national flag, and have their crews partly -national, in accordance with the laws.[1218] It may be noted that -these regulations are declared to be for the purpose of preventing the -extermination of certain species of fish, and that the grantees must, -when requested, allow officials to be on board for scientific study. - -The adjoining state of Uruguay also lays claim to jurisdiction, with -regard to fisheries at least, beyond the ordinary three-mile limit -in the extensive inlet of the Rio de la Plata, which lies between -Uruguay and Argentina, and is nearly sixty miles wide at its mouth, -with an estimated area of about 5000 square miles. In 1905 a Canadian -sealer, the _Agnes G. Donohoe_, was arrested for the contravention -of a presidential decree which prohibits sealing within these -Uruguayan waters, but it was subsequently released. The British -Government formally protested against this claim to jurisdiction -outside the three-mile boundary, which, however, is strongly supported -by the Argentine Government, which is equally concerned in its -maintenance.[1219] - -It is evident from the foregoing that most maritime states, and all the -great ones, either by treaty or in their municipal laws and decrees, -have adopted the three-mile limit, at least for fishery purposes. It -is quite appropriate, therefore, to refer to it as the “ordinary” -limit, as was done by the Tribunal of Arbitration on the rights of -seal-fishing in the Behring Sea, though the tribunal did not affirm, -and could not affirm, that it found the three-mile limit to be, as -a matter of fact, universally accepted.[1220] But though it is the -ordinary limit, it is not the only one enforced, and it is erroneous -to declare, as some of the less instructed writers on international -law have stated, that territorial jurisdiction cannot be carried -further.[1221] - -In point of fact, no fewer than four of the maritime states of Europe -reject the three-mile limit, while a fifth has in part deviated from -it. Norway, Sweden, Spain, and Portugal, all claim to enforce a wider -boundary, and Denmark has adopted the old Scandinavian limit in her -recent treaty with Sweden (see p. 655). Thus, along nearly 4000 -miles of the coasts of Europe, or for about one-third of their whole -extent, the three-mile limit is not accepted by the bordering state. -The right claimed by these countries to a wider extent of territorial -sea has been embodied in treaties between some of them, and has been -successfully maintained in specific instances against the opposition -of other Powers. It is to be noted, moreover, as is shown later, that -their claims to the wider space have been quite lately fully justified -and homologated by the most authoritative exponents of international -law, the French Institute and the British Association on the Law of -Nations, as well as by various international congresses of fishery -experts dealing with the subject from a fishery point of view. - -We have already stated that Spain in the eighteenth century declared -that her territorial sea extended to a distance of six miles from the -coast (see p. 569). At that time such a limit must have been regarded -as moderate, but during last century, after the principle of cannon -range had been commonly translated into one marine league, the right -to a zone of double that extent was called in question both by the -United States and Great Britain. During the civil war in America the -question came to the front, more particularly with reference to the -waters around Cuba. In 1862 the American Government intimated that they -were not prepared to admit that Spain, without a formal concurrence of -other nations, could exercise exclusive sovereignty upon the open sea -beyond a line of three miles from the coast; while Spain, relying on -the legal principle governing the extent of the territorial sea, argued -that the improvement of modern artillery made the three-mile limit -ineffective. Two years later a discussion on the subject took place -between the British and American Governments, the former desiring that -during the existence of hostilities the limit of neutral waters should -be greatly extended, so that shots from belligerents might be prevented -from falling, not only on land, but within the neutral waters, and -limits of ten, eight, and five miles were mentioned.[1222] In 1874 the -British Government had itself occasion to object to the claim of Spain; -and on communication with the Government of the United States, they -were informed that that Government had always protested against it, -and on the same grounds, that by the law of nations jurisdiction could -only extend to one marine league from the coast.[1223] Notwithstanding -the opposition of the two chief maritime Powers, Spain did not abandon -its claim, for by a royal order of 16th May 1881, passed with special -reference to the jurisdiction over American vessels in Cuban waters, -it was declared that full jurisdiction extended to a distance of six -miles from the coast. This limit was also fixed for customs purposes in -Spanish waters by royal decrees in 1830 and 1852, and in the general -ordinances of the customs in 1884, the six miles being stated to be -equivalent to eleven kilometres.[1224] - -With regard to fisheries, Spain has entered into various treaties -with Portugal as to the right of fishing along their respective -coasts. By a convention in 1878, reciprocity was established in the -territorial waters of the two countries, subject to the observance of -local regulations and certain specified conditions, as the prohibition -of the use of drag or trawl nets (“_artes de Bou ou parelhas, chalut, -muletas_”) within twelve miles from the coast.[1225] In another treaty -concluded between these Powers on 2nd October 1885, and slightly -amended in 1888, two fishery zones were established, the first -extending to three miles from the coast, which was exclusively reserved -for nationals, and the second, from three to six miles, in which the -fishermen of both countries were at liberty to fish. In a later treaty -of commerce and navigation, which came into force in October 1893, -the zone of exclusive fishing was extended to six geographical miles -from the coast of either country--that is, to the extreme boundary -of the jurisdictional waters, measured from low-water mark of spring -tides (“de la línea de bajamar de las mayores mareas”), and a ten-mile -base-line for bays was adopted. Within this space the fishery and its -regulation were reserved by each state; but in the frontier rivers, the -Miño and Guadiana, the fishery was specially dealt with, as in previous -treaties. Each Government also agreed to prohibit certain injurious -modes of fishing (_parejas_, _muletas_, &c.) within twelve miles of -their coasts, and a series of regulations, like those of the North Sea -Convention of 1882, were included with respect to the entry of the -fishing-boats of one of the countries within the territorial waters of -the other, and the police supervision of the fishing-boats of either -country beyond the six-mile limit.[1226] In Spain the reservation -of six miles was regarded as unjust, since the water off the coast -of Portugal was much deeper than off the Spanish coast, and in the -following year the Portuguese Government allowed Spanish fishermen to -fish, under certain conditions, to within three miles of the coast of -Algarbe.[1227] - -While it is evident that Spain and Portugal claim jurisdiction to -the extent of six miles from the coast, it appears that an exclusive -fishery to that distance is not enforced against all other nations. -It seems that on the Mediterranean coast, the three-mile, and not the -six-mile, limit is applied against French fishermen,[1228] and the -British Government, in the interests of British trawlers, recently -intimated that they did not recognise any claims of the Spanish or -Portuguese Governments to exercise jurisdiction over British vessels -beyond the three-mile limit; and, in point of fact, British and German -trawlers now fish off the Portuguese and Spanish coasts up to three -miles from the shore.[1229] They have developed an important and -extensive trawl-fishery there during the last few years; and although -the local fishermen strongly object to their presence within waters -where they are themselves prohibited to trawl, and it is stated that -negotiations on the matter have taken place between the London and -Lisbon Governments, they have not been ordered out of them, and still -continue their trawling. Both in Spain and Portugal meetings have been -held with reference to the territorial waters, at which resolutions -were passed calling for an international arrangement for the extension -of the limits to ten or twelve miles; and some unpleasant encounters -have occurred between the local and foreign fishermen. On these coasts, -however, a limit so extensive would largely prevent foreigners from -fishing, owing to the great depth of the water at such distances from -the shore. On the other hand, it is argued that as the available -fishing-ground is so narrow and small, there is all the more reason -why it should be protected from the destructive methods of fishing -pursued by the foreign vessels, and preserved as far as possible for -the inhabitants of the coast.[1230] Quite recently, it appears, the -Portuguese Government have regularised their position with regard to -foreign trawlers and foreign fishermen generally, by passing a law -forbidding them to fish, under severe penalties, within a zone of three -sea miles from the shore. They have thus accepted the inevitable, in -view of the pressure applied by at least one of the great maritime -Powers. With regard to bays, however, the limit specified in the -fishery conventions is not adopted. The zone of three miles in respect -to bays has to be reckoned according to the principles of international -law.[1231] - -Spain, it may be added, after the victorious campaign of 1859-60, -concluded a treaty with Morocco, by which Spanish subjects are allowed -to fish on the coast of that country up to the shores, for corals, -sponges, and other marine products, as well as for fish.[1232] - -The extent of the territorial waters claimed by Norway and Sweden is -even greater than that claimed by Spain and Portugal, owing to the -method of measurement, the distance of four geographical miles being -measured either from the coast or from the outermost part of the -outermost isle or rock which is not submerged by the sea at high tide. -Such isles and rocks are numerous on the Scandinavian coasts, so that -the fishermen distinguish the waters “within the rocks” (_inom skärs_) -from those “without the rocks” (_utom skärs_) or at sea, and in many -places the extent of water reserved by the rule is very considerable. -There appears, however, to be a difference in Sweden and Norway as -to the precise method of measurement. In Norway such isles and rocks -are appropriate for the base-line, if they are not farther from the -mainland than eight geographical miles of sixty to a degree; and it -seems to follow from the rule that the measurement from the coast or -shore must be made at high-water, but this is not expressly said.[1233] -In Sweden the isle or rock is spoken of as within one geographical -league of the coast, and it may be such as is not _continuously_ -submerged, but is periodically uncovered, which implies a base of -low-water.[1234] On some parts of the Norwegian coast the territorial -sea may thus extend to twelve miles from the mainland. Bays and fjords -are, moreover, included in the territorial waters irrespective of -whether their width at the mouth is or is not greater than ten miles; -and in including these, as much importance is attached to the islands -which may lie at their entrance as to the distance between headlands. -With regard to large open ways or stretches of sea partly enclosed, no -fixed rule has been laid down, but Norway reserves the right in certain -cases to exceed the limit derived from the general principle as above -explained. On some parts of the coast special laws regulate the extent -of the sea in which the exclusive right of fishing is reserved to -subjects. The rich cod-banks on the coast of Söndmöre, Romsdal, and -Nordmöre are thus included within the territorial waters, the base-line -being drawn between various islands, in the manner described above. -The first of these was a royal decree of 16th October 1869, which -prescribed that a straight line drawn at a distance of one geographical -mile (of fifteen to a degree) from and parallel to a straight line -drawn between Storholmen and Svinö, shall be taken as the boundary of -the waters off the coast of the Söndmöre district, in which the fishing -is entirely reserved for the inhabitants of the country. Another -royal decree of 9th September 1889 continued this boundary farther to -the north-east. It ordained that a line drawn at a distance of one -geographical mile from and parallel to a line from Storholmen through -Skraapen (outside of Harö), Gravskjær (outside of Ona), and Kalven -(the last of the Orskjærens), to the last of the Jevleholme, outside -of Grip, was the boundary of the waters off the coast of the Romsdal -district, in which fishing is entirely reserved for the inhabitants of -the country.[1235] - -[Illustration: Fig. 23.--_Showing the Limit at Romsdal Amt, Norway._ - -A, The base-line; B, the line of closure; C, the three-mile limit.] - -This special line from Svinö (which lies about eight miles north of -Stadtland, or Van Staten) to Jevleholm stretches for about eighty-five -geographical miles along the coast,[1236] the distance between the -islets through which the base-line passes being respectively 28, 14½, -7, 23½, and 12 geographical miles, and some of them are over seven -miles distant from the mainland or the nearest large island. The extent -of water reserved is thus large, the area between the base-line and -the boundary-line being alone about 340 square miles; but the extent -of sea included which would be outside the ordinary three-mile limit -is much less than might be expected, owing to the great number of -isles and islets along the coast. In the accompanying figure (fig. -23),the part of the coast embraced by the law of 1889 is represented, -the base-line, the boundary of the reserved waters, and the ordinary -three-mile limit being shown. The area of water between the latter -and the Norwegian limit amounts, approximately, to 140 square miles. -The figure also shows how complicated a three-mile boundary based on -the provisions of the North Sea Convention would be on such a coast. -It is to be noted further, that within the limits prescribed by the -royal decrees a series of stringent regulations have been made for the -orderly prosecution of the fishery.[1237] - -Of much greater international importance is the claim made by the -Norwegians to the exclusive right of fishing in the Vestfjord, an arm -of the sea which extends between the coast of Nordland and the Lofoten -Islands, where from time immemorial the greatest cod-fishing in Europe -has been carried on.[1238] It is, strictly speaking, a strait, as -indicated in the accompanying figure (fig. 24), bounded on one side -by a chain of islands and on the other by the mainland, opening to -the northwards by several narrow channels, and to the south by a wide -mouth about forty-five geographical miles in breadth. The waters of -the Vestfjord have for centuries been considered as territorial, and -the fisheries within them as reserved for the Norwegian people; but -no decree or law has as yet been promulgated respecting the boundary -between the reserved waters and the open sea.[1239] Locally, however, -as at Bodö, it is supposed that the line of closure runs from -Moskenæs on the west to Stot on the east, which are about forty-five -miles apart, and the length of the fjord from this line is about -sixty-five miles. As stated below, however, it appears from a letter -of the Minister of Foreign Affairs, in 1868, that the line may be -drawn from the southern part of Röst, a group of isles situated nearly -fifty miles from the mainland and about 110 miles from the extreme -head of the fjord. The total area within a line drawn from the south -end of Moskenæsö (Lofoten Point) to Möst Fjord is over 2000 square -(geographical) miles, about 900 square miles of this lying outside the -ordinary three-mile limit. Within a line from Röst to Kunna the total -area is nearly 3900 miles, about half being beyond the ordinary limit. - -[Illustration: Fig. 24.--_The Vestfjord, Lofoten Islands._] - -Another large expanse of sea, the Varangerfjord, in East Finmarken -(fig. 25), has been closed, with special regard to whaling, for a -distance up to one geographical mile (of fifteen to a degree) outside -a line drawn from Kibergnæs on the north to Jacobs River on the south; -and it is stated by the Norwegian Minister for Foreign Affairs that -the boundary mentioned has always been considered as indicating the -true limit of the territorial waters in the Varangerfjord. This arm -of the sea, claimed as territorial, is thirty-two miles wide at the -entrance and about fifty miles in length. The total area of the fjord -is about 630 square (geographical) miles, of which approximately 225 -square miles are beyond the ordinary three-mile limit. Various laws -have been made by the Norwegian Government affecting whaling in this -quarter.[1240] - -A Swedish decree of 5th May 1871 concerning the fisheries, defined the -extent of the territorial waters from the Norwegian frontier along the -coast to Kullen, at the entrance to the Sound, as one Swedish league -(equal to four geographical miles of 60 to a degree), reckoned from -the coast, or the farthest out island or rock which is not constantly -overflowed by the sea;[1241] and by the treaty with Denmark in 1899, -already referred to, the same limit is carried on from Kullen to -Falsterbo and up to Simrishamn in Christianstad. There does not appear -to be any corresponding decree for the eastern coast of Sweden. - -[Illustration: Fig. 25.--_The Varanger fjord._] - -Within the territorial waters as described above, Norway claims the -exclusive right to the fisheries and all the sovereign rights that -are usually exercised in territorial seas, as well as one that is not -as a rule included--namely, the right to control all navigation. All -vessels within the territorial waters are likewise subject to the -control of the customs authorities, while in Sweden the Customs Law of -1877 extends jurisdiction to a distance of one Swedish league from the -base-line. The Government does not rest its claim to so large an extent -of the bordering sea merely on the principle which is usually held to -determine its bounds--the range of cannon fire,--though it is pointed -out that the Norwegian boundary is in reality more in conformity with -the range of modern artillery than is the three-mile limit. They argue, -very truly, that the zone of one marine league, although adopted in -conventions between several Powers, has not been definitely established -in international law, and they have themselves always refused to agree -to a limit so narrow. But the principal reasons advanced are those of -necessity and utility. The Norwegian coast is peculiarly irregular. -It is engirdled by a multitude of islands, reefs, and rocks, and is -broken up by numerous fjords which penetrate deeply into the land. -A three-mile limit applied to such a coast on the principle adopted -in the North Sea Convention would be intricate, confusing, and -impracticable. The boundary would be exceedingly irregular, and patches -and strips of extra-territorial water of the most diverse size and form -would be intermingled with the territorial water; and in practice it -would be extremely difficult or impossible for foreign fishermen to -observe the complicated boundary, or for the authorities to enforce it. -Constant disputes would result. - -Another reason put forward is a moral one. The country is comparatively -sterile; the climate is rigorous; the people are poor, and the -fisheries are of the utmost importance for their maintenance. A large -proportion of the population derive, and have always derived, their -livelihood from the sea, “with which they wage a desperate war in -the darkness and tempests of winter and spring to gain their daily -bread.”[1242] It is therefore only just that this natural source of -food along their coasts should be conserved as much as possible, so -long as the manifest rights of other nations are not violated, and that -the poor native fishermen, pursuing a hard and laborious calling, which -necessity has imposed on them, should be protected from the intrusion -of foreign vessels, better equipped and with more capital at their -disposal. It is further urged that the Norwegian fishermen have enjoyed -the wider area for many centuries. From immemorial times the right of -fishing has been regarded as pertaining to the land. This principle -was enunciated in the old provincial laws (_landskapslagar_) of Sweden -in the middle ages, and was continued in the laws of the kingdom since -the fourteenth and fifteenth centuries.[1243] It is also declared that -a smaller extent of territorial sea would interfere with the efficacy -of the regulations enforced for the preservation of the fisheries. -A lesser boundary would intersect the more important fishing-banks, -“making it impossible,” to quote the words of the Minister of the -Interior, “for the state to regulate the fisheries on the whole -bank, and it would be fatal to those fisheries which are necessary -for the subsistence of the coast population.” This consideration, -it is pointed out, is likely to have still more weight in future, -owing to the increase of the population and the impoverishment of the -fishing-grounds along the coast. - -The claim of Norway to the wider extent of territorial sea has been -as a rule respected by foreigners, probably owing in the main to the -fact that its coasts are but little visited by foreign fishermen, -but it has not remained without challenge. The French Government on -one occasion complained that a French vessel had been prevented from -fishing in the Vestfjord; but the prohibition was justified by Norway -on the grounds that by the law of nations the Lofoten fisheries, and -especially those in the Vestfjord, which was “part of the territorial -sea,” belonged exclusively to the inhabitants, and that for centuries -no foreign vessels had attempted to take part in them.[1244] In -communicating the decision to the French Government, the Minister for -Foreign Affairs declared that the prohibition applied equally to -the adjacent sea and to the entrance to the fjord up to the distance -of a marine league (of four miles), measured from the most southerly -point of the isles called “Röst”--a group which lies about twenty-six -geographical miles west and south of Moskenæs, and about sixty -geographical miles from the mainland.[1245] In 1870 another foreign -Government raised objection to the limits defined off Romsdal by the -royal decree of 16th October 1869, on the ground that the base-line -drawn between the islands Svinö and Storholmen exceeded eight ordinary -marine miles in length, which was the maximum distance according to -the Norwegian principle, already referred to, for the inclusion of the -“outermost” island. The Norwegian Government, however, declared that -by the law of nations it was competent to include a bay or a gulf of -“not too large an extent” by drawing the line from one advanced point -to another, and that it was necessary to consider local circumstances -and what was natural, convenient, and just. The line that had been -drawn, they said, coincided with a natural depression in the bottom of -the sea which separated the inshore from the offshore fishing-banks, -and it formed a natural boundary which could be readily ascertained -by the use of a sounding-lead. To adhere strictly to the four-mile -line in this case would make the limit intricate and impossible to -be observed, and it would pass across the inshore banks. It was also -argued that till lately foreign fishermen had never attempted to fish -in the neighbourhood, even within a space far more extensive than that -comprised in the decree.[1246] - -Since the period referred to, the limit claimed by Norway is said to -have been respected by foreign states and by foreign fishermen; and the -Scandinavian Government has officially declared on several occasions, -and notably in December 1874 to the British Government, that it would -never adhere to any international convention which established a -maritime zone of less than four marine miles. It declined to become a -party to the North Sea Convention of 1882 for this reason, and because -the line for the closure of bays was in its opinion much too small. The -only treaties with foreign countries in which a limit has been fixed -are the one between Sweden and Denmark, previously mentioned, in which -the Scandinavian boundary is maintained, and one with Mexico, in 1886, -for customs purposes, which stipulates for three marine leagues from -low-water mark.[1247] - -It is evident that Sweden and Norway, besides claiming a greater extent -of territorial water than other countries, also claim in particular -cases to depart from the principles which in general govern their own -system of delimitation, in order to include other waters lying off -their coasts, when they deem it necessary to reserve the fisheries -there for their own subjects. In such cases it is said to be impossible -to be guided by geographical rules of an absolute kind, and it is -urged that any general international rules on the question should be -sufficiently elastic to allow of similar exceptions elsewhere.[1248] -There is little doubt that the wider area claimed by the Scandinavian -states is, from the point of view of sea fisheries, preferable to the -narrower zone adopted in the North Sea Convention. It will appear -later, that both the authorities on sea fisheries in various countries -and the authorities on international law agree as to the inadequacy of -the three-mile limit for fishery purposes: and it is hardly probable -that the Government of any other country will now seriously contest -the right of Sweden and Norway to the larger area they claim, unless -under exceptional circumstances. Norway has been fortunate in this -respect, that her coasts are rarely visited by foreign fishing vessels; -but this immunity is not likely to continue. During the last few years -the great feature of the sea fisheries both in Great Britain and also -on the Continent has been the enormous development of steam-fishing, -particularly trawling (see p. 698). Confined for a time to the North -Sea and the neighbourhood of their own coasts, steam fishing-vessels -now regularly visit distant quarters in large numbers, and trawlers -from England and Germany make the long voyage to the grounds off the -White Sea, traversing the whole coast of Norway, in quest of fish. The -absence of foreign competition in the fisheries of the Norwegian coast -is due largely to the generally rough and rocky nature of the bottom -and the great depth of the water, which make trawling difficult or -impossible; but there are, no doubt, within the territorial limits, -more or less restricted areas where trawling could be carried on with -success, and if these be discovered by foreign vessels, and they are -outside the ordinary three-mile boundary to which they are accustomed, -there is little doubt the question of the Norwegian claim will be -raised again. Line-fishing by steamers is now, moreover, greatly -developed, and this method of fishing can be pursued, and is now -pursued by the Norwegians, in deeper water and on rocky bottom, as -in the Vestfjord and off Romsdal. In the summer of 1907, indeed, one -or two British trawlers were seized by the Norwegian authorities for -fishing within their territorial waters at Finmarken, but were released -later.[1249] - -From the account which has been given above of the recent practice of -civilised states it is apparent that the majority of them have adopted -the three-mile limit, with a ten-mile base-line for bays, for fishery -purposes. There is a tendency, moreover, for this process to be -continued and extended, as is shown by the recent treaty between Great -Britain and Denmark concerning the ocean around Iceland and the Faröes, -and the action of the British Government respecting the six-mile limit -on the coasts of Spain and Portugal. It is possible, and indeed likely, -that the Spanish and Portuguese Governments have protested against the -infringement of what they regard as their just rights; but if they are -unable or unwilling to maintain them, and the three-mile limit comes -to be the only one observed on their coasts, the usage will settle -the matter in the course of time. Up to the present, however, Norway -and Sweden have very justly resisted all attempts to impose on them -the ordinary limit and bring them into line with other Powers, and -they have successfully caused their wider bounds to be respected. The -diversity in practice between the Iberian and Scandinavian states and -the other states of Europe may be traced to the modes by which the -limits were evolved. In the former case, the boundaries were fixed in -the middle of the eighteenth century, without special reference to the -range of the guns of the time. The three-mile zone, on the other hand, -was developed early in last century from the doctrine of Bynkershoek, -three miles being then looked upon as approximately the range of cannon. - -The general adoption of this limit, as previously said, was due in -great measure to the preponderating influence of Great Britain and -America in maritime affairs, the lesser states following their example, -willingly or with reluctance. It is not too much to say, indeed, -that the three-mile boundary in its origin and development is an -Anglo-American doctrine, its authors being Washington and Lord Stowell. -It is thus of interest to consider the opinions of modern writers on -international law on the question, and to see how far they agree with -or differ from their predecessors, whose opinions have been previously -passed under review. It will be found that, considering the extent to -which the three-mile limit has been actually applied in practice, the -writers who accept it as the established rule in international law -are singularly few, and are for the most part English or American. It -will be also noticed how extremely loose some writers, even of high -authority, are in their use of the terms “three miles _or_ the range -of guns,” as if they were now synonymous, which they are not. Such -looseness of phrase is not absent from some judicial decisions on the -question, as in that of Lord Cockburn in the case of Regina _v._ Keyn, -previously referred to (p. 591). - -Another statement that one not uncommonly finds in the text-books, -and to which currency was given by Lord Stowell, is that _since_ the -invention of firearms the distance at which the power of the state, -and therefore the territorial waters, terminated, has usually been -recognised as about three miles from the shore. Calvo, a writer of much -authority, also makes this statement, affirming at the same time the -doctrine of Bynkershoek as the principle of delimitation.[1250] In view -of the range of modern artillery, he, however, considers this space too -small, and is of opinion that it ought justly, on grounds of logic and -reason, to be extended; but until this extension has been sanctioned -by a majority of states he looks upon the three-mile limit as the -established rule of international law. Much the same view is expressed -by Bluntschli.[1251] He defines the territorial sea according to the -range of guns, and says that international treaties or the laws of -states may fix more precise limits, such as one marine league from the -coast at low-water; but, considering the increased range of artillery, -he is disposed to think the three-mile limit insufficient. Phillimore, -one of the greatest English authorities, agrees with Calvo.[1252] He -states that the rule of law may now be considered as fairly established -that absolute property and jurisdiction in the adjacent open sea “does -not extend, unless by the specific provisions of a treaty, or an -unquestioned usage, beyond a marine league (being three miles) or the -distance of a cannon-shot from the shore at low tide.” The limit, he -says, was fixed at a marine league because that was supposed to be the -utmost distance to which a cannon-shot from the shore could reach; -and he adds that the great improvements recently effected in artillery -seem to make it desirable that this distance should be increased, but -he holds that this can be done only by the general consent of nations, -or by specific treaty with particular states. Phillimore, like most -of the other writers, was apparently ignorant of the fact that the -Scandinavian and the Iberian Powers claimed a limit much farther than -three miles. - -Halleck follows Wheaton in saying that the general usage of nations -superadds to bays, &c., an exclusive territorial jurisdiction over -the sea for the distance of one marine league, or the range of a -cannon-shot, along all the shores or coasts of the state, and that the -maxim of law on the subject is _terræ dominium finitur ubi finitur -armorum vis_, “which is generally recognised to be about three miles -from the shore.”[1253] On the other hand, Lawrence, in his edition -of Wheaton (p. 321), says very definitely that all the space through -which projectiles thrown from the shore pass, being protected and -defended by these warlike instruments, is territorial and subject to -the dominion of the Power that controls the shore: “The greatest reach -of a ball fired from a cannon on the land is, then, really the limit of -the territorial sea.” Bishop, also accepting Bynkershoek’s principle, -says that a cannon-shot is estimated for the purpose of delimiting -the territorial seas at a marine league, but, like so many others, he -argues from the improvement of artillery that, “in reason, the distance -would now seem to require extension.”[1254] Woolsey, likewise adopting -the three-mile limit “or” cannon range, is of opinion that, “as the -range of cannon is increasing, and their aim becoming more perfect, it -might be thought that the sea-line of territory ought to be wider,” -though this author does not think the point likely to become of great -importance.[1255] Dana expresses the usual vague opinion of the English -and American writers in regarding it as “settled that the limit of the -territorial waters is, in the absence of treaty, the marine league, -_or_ the cannon-shot.”[1256] Sir Travers Twiss also speaks of the -range of guns, which, he says, with the common lack of information -respecting some other countries, “by consent is now taken to be a -maritime league seawards along the coasts of a nation.”[1257] - -Rather different opinions are expressed by Fiore, an Italian writer -of eminence. While pointing out that publicists are not agreed as to -the extent of the territorial sea, he thinks it should be determined -by the necessity of the case and the nature of the particular rights -claimed, as fishing, dues connected with navigation, and defence: for -the latter purpose he is of opinion that the zone should increase with -the improvement of artillery. With regard to the rights to certain -fisheries, he says that the fishing for coral,--an important industry -in Italy,--for example, belongs to the people of the neighbouring coast -where it is found.[1258] Pradier-Fodéré holds strongly to the doctrine -of cannon range. The extent of the territorial sea, he says, depends -upon the power of artillery from shore; the farthest distance a shot -can be thrown, according to the progress of military art, is the limit -of the territorial sea, and he adds that this is the principle almost -universally adopted, although, “since the invention of firearms,” this -distance has usually been considered as three miles.[1259] Perels, a -German writer of eminence, accepts the doctrine of Bynkershoek that the -sovereign jurisdiction of a state extends in the sea to the distance -of a cannon-shot from the coast, and he says the extension of the -boundary-line depends upon the range of cannon-shot at the particular -period, but is the same at any period for all coasts. British and -American publicists, he adds, have generally adopted three miles as -an equivalent, but this has not usually been done by Continental -authorities.[1260] Another writer, Ferguson, gives a novel explanation -of the reason why three miles is generally adopted in practice. He -says the distance referred to is presumed to be the range of the coast -defences, but on the maxim that _terræ dominium finitur ubi finitur -armorum vis_, it should be stated to extend to any point on the sea -to which the cannon of actual coast defences on shore can carry a -projectile. Since, however, the carrying power of any given cannon is -such a vague measure, the three-mile radius is generally adopted.[1261] - -In the opinion of Desjardins, the expression territorial sea must be -taken in the precise sense given to it by international law. Maritime -territory, he says, is only made effectively inviolable at the real -range of cannon from the coast, and the laws of police or customs -usually applied in time of peace cannot prevail against a principle -founded on the nature of things. In his opinion a prize taken beyond -three miles from the coast, but within the range of guns, would be -illegitimate, while it would be legitimate within the particular limits -fixed by a neutral state if beyond the range of guns.[1262] Latour, -another recent French writer, also argues that the three-mile limit is -not necessarily the true one, but that it depends on the actual range -of guns from the shore.[1263] On the other hand, Professor Kleen, in -his work on the laws of neutrality, considers the Scandinavian method -of delimiting the territorial sea the proper one, since the extent -depends not only on the mainland but on the “adjacent isles.” Admitting -that the distance from the coast at which the external limit is fixed -is, according to the positive international law of to-day determined -by the range of cannon, he thinks this measure is so susceptible of -change and controversy that it is desirable to replace it by a fixed -one, which ought not to be less than four marine miles. The range of -guns is much greater than four miles; and there are some coasts where -the geographical configuration requires that a larger area should be -subject to the territorial state, in order to avoid collision with -foreigners as well as encroachments on the natural rights of the -inhabitants. He is of opinion that Bynkershoek’s doctrine was wrong in -certain respects: it reposed on a basis of brute force; the range of -guns differs in different countries and at different times; and the -range of the most powerful modern gun is too much to allow a state -the exclusive possession of the sea up to that distance from the -shore. The range of guns, he says, is admissible in respect of war and -neutrality, but in all other respects the distance ought to be fixed -and mathematically determined independent of military force, and -should be the same everywhere.[1264] - -Another Scandinavian publicist, Professor Aschehoug, also argues for a -wide extent of territorial sea under international law, according to -the principles previously described. He thinks that it is impossible -to exclude from the territorial sea of a people that space which is -commanded by their guns on shore; and _vice versa_, this space is -necessary to preserve the shores from the projectiles of belligerents. -The state has all the rights of sovereignty in this area, as those -connected with neutrality, police, inspection, jurisdiction, and the -exclusive right of fishery and other usufructs, except the right of -forbidding navigation.[1265] - -The eminent Russian authority, Professor de Martens, expresses a -strong opinion that the three-mile limit is now quite inadequate, -and that a state has the power to extend it. The only true boundary -of the territorial sea is, he says, the range of guns from the -coast, Bynkershoek’s aphorism--_terræ dominium finitur ubi finitur -armorum vis_--forming the only legal and rational foundation for the -delimitation. Within the zone so determined the bordering state has -exclusive sovereignty and dominion, and the exclusive right of fishing. -The limit of the territorial waters ought therefore to change with the -modifications in the range of cannon. If at one time the reach of guns -was three miles, then the extent of the territorial sea at that time -was only three miles. If at the present day, he says, cannon carry -to twelve, or even fifteen, miles, the territorial waters extend to -the same distance. De Martens, however, thinks that an international -agreement with regard to such limits is necessary to ensure the success -of the measures of protection established in the open sea for the -preservation of the legitimate interests of each nation, especially -with regard to fisheries. But he holds that until such an international -arrangement has been accomplished, each state has the incontestable -right to declare as its territorial sea the waters which are dominated -by batteries on its coasts. In view of the necessity of precisely -defining the range of cannon, and the exigencies of international -commerce, the bordering state, he says, may limit this distance to a -number of miles fixed by law; and he himself advocates a limit of ten -miles, instead of three miles, as being more in conformity with the -actual range of guns, and better fitted to protect the interests of the -coast population who subsist by sea fisheries.[1266] - -The latest English writer of authority on international law, Mr -W. E. Hall, who has given a lucid and philosophical account of -the territorial sea, is also of opinion that the three-mile limit -is inadequate. The boundary, he says, is generally fixed at three -miles, but this distance was defined by the supposed range of guns -of position, and the effect of the recent increase in the power -of artillery has not yet been taken into consideration, either as -supplying a new measure of the space over which control may be -efficiently exercised, or as enlarging that within which acts of -violence may be dangerous to persons and property on shore. “It may be -doubted,” he continues, “in view of the very diverse opinions which -have been held until lately as to the extent to which marginal seas -may be appropriated, of the lateness of the time at which much more -extensive claims have been fully abandoned, and of the absence of -cases in which the breadth of the territorial waters has come into -international questions, whether the three-mile limit has ever been -unequivocally settled; but in any case, as it has been determined, -if determined at all, upon an assumption which has ceased to hold -good, it would be pedantry to adhere to the rule in its present form; -and perhaps it may be said without impropriety that a state has the -right to extend its territorial waters from time to time at its will -with the increased range of guns; though it would undoubtedly be more -satisfactory that an arrangement upon the subject should be come to -by common agreement.” In a later edition of his work, which appeared -after the results of the international conferences of publicists, to -be presently referred to, were known, he says that it is felt and -growingly felt, not only that the width of three miles is insufficient -for the safety of the territory, but that it is desirable for a state -to have control over a larger space of water for the purpose of -regulating and preserving the fishery in it, the productiveness of sea -fisheries being seriously threatened by the destructive methods of -fishing which are commonly employed, and in many places by the greatly -increased number of fishing vessels frequenting the grounds.[1267] -A still later writer, Oppenheim, has apparently much the same -opinion, for he says that although many states in municipal laws and -international treaties still adhere to a breadth of one marine league, -the time will come when by common agreement of the states concerned -such breadth will be very much extended.[1268] - -While there is thus some diversity of opinion among modern writers on -the law of nations, both as to the actual extent of territorial sea -belonging to a state and in respect to the principles which should -govern its delimitation in certain cases, there is all but universal -acceptance of the rule that in general the limit is determined by the -range of guns. Practically all authorities are agreed that this is the -historical basis of the demarcation, and the majority of publicists, as -Schmalz, Klüber, Reddie, Ortolan, Hautefeuille, Pistoye and Duverdy, -Massé, Bluntschli, Pradier-Fodéré, Lawrence, Perels, Desjardins, De -Martens, and Aschehoug, adhere to it as the only true principle. -This adherence to Bynkershoek’s doctrine logically implies that the -range of artillery at any particular period governs the extent of the -territorial sea at that period, and several authorities, as Ortolan, -Lawrence, Perels, Desjardins, and De Martens, accept this view in its -bare and absolute form, while others, though willing to agree to it as -proper and reasonable, think that a mutual arrangement on the subject -is first of all desirable or necessary, or that it applies specially to -questions of neutrality. There are very few writers, on the other hand, -who are of opinion that the three-mile limit has become established -in international jurisprudence as the legal limit, notwithstanding -that it is the limit commonly adopted. Calvo and Phillimore are the -most important authorities who take this view, but both think the -extent is too small and ought logically to be increased owing to the -greater range of artillery,--an opinion which is shared by Bishop, -Woolsey, Fiore, and Hall. Nearly all those who mention three miles -as the boundary of the territorial seas--and they are almost wholly -English or American--couple with it the alternative, “_or_ the range of -cannon,” as Wheaton, Manning, Halleck, Phillimore, Bishop, Dana, Twiss, -Ferguson, and Woolsey. In this they merely adopt the language used by -Lord Stowell at the beginning of last century, and which was quite -appropriate at the time. But for more than half a century the range -of guns has exceeded three miles, and to use the terms now as if they -were synonymous tends only to confusion. Some modern publicists, it may -be added, as Kent, Heffter, and Fiore, follow Wolff and Vattel in the -opinion that the limit of territorial waters may be extended in certain -cases beyond the range of guns. - -Moreover, quite lately the subject of the territorial sea has been -jointly and exhaustively inquired into by the leading publicists of -Europe, and with important results. In 1887 the International Law -Association appointed a committee to consider the definition and -_régime_ of the territorial waters, and two years afterwards the -Institut de Droit International followed the same course.[1269] A -long series of questions was circulated among the members to elicit -their opinions on the various points connected with the subject; -the whole matter was discussed and considered at various subsequent -annual meetings; and the rules as finally adopted and approved by -the Institute and the Association may therefore be fairly taken as -representing the latest views of European publicists. - -With regard to the question of the limits of the territorial sea. it -was very generally held that a distinction should be drawn between -various sovereign rights, as the right of fishery and the rights of -neutrals during war. The two limits commonly recognised--namely, cannon -range and three miles from low-water mark--were no longer identical. -Three miles was now too small a distance for safeguarding the coasts -of a neutral from the projectiles of belligerents, and the range of -modern artillery fluctuated, and was besides considered to be too great -a distance for the exercise of exclusive rights of sovereignty. Sir -Thomas Barclay’s proposal was therefore to reaffirm the limit of cannon -range as the public law of Europe, but to confine its application -to the right of the neutral as founded in reason, and to establish -another and a lesser boundary for the exercise of the exclusive -sovereign rights of the neighbouring state. The former limit was a -“zone of respect”; the latter bounded the true territorial sea. There -was general agreement that the neutral line or zone of respect should -coincide with the actual range of guns; but some were of opinion that -the range should be considered not from the coast, on the principle of -Bynkershoek, but from the sea, and others that the neutral zone should -be measured from the boundary of the true territorial sea, in order to -prevent violation of the latter by the bullets of belligerents. Since -the range of guns, however, is uncertain and variable, and the line -of respect must necessarily vary with it, it was decided finally not -to adopt a fixed distance, but to recommend that in case of war the -neutral state, taking the range of guns as the basis, should itself fix -and declare the extent of its neutral waters beyond the limit of the -territorial sea. - -There was not the same agreement as to the limit which should be -recommended as the boundary of the territorial sea, within which the -rights of the state are much more complex, and of which the extent -should be precisely fixed. The historical principle of demarcation--the -range of cannon--having been transferred to the line of respect, the -only other limit in common use was the three-mile limit, and this was -the distance at first proposed by Sir Thomas Barclay in the draft -rules, mainly because it was the one which was usually recognised by -international usage. But the preponderating opinion of Continental -publicists favoured a more extended boundary, in view more particularly -of the right of fishery, the distances proposed varying from five -to ten miles from low-water mark;[1270] and Professor Auber, of -Christiania, advocated the extension of jurisdiction with respect to -fisheries beyond the limit fixed for the territorial sea, to apply -equally to subjects and foreigners, each state assigning boundaries -for such jurisdiction, either itself or by convention between the -Powers interested, and a similar proposal was made by the Canadian -representative, who suggested that the jurisdictional zone should -extend to nine miles. Owing to these opinions, and also to the report -of the Sea Fisheries Committee of the House of Commons in 1893, -presided over by Mr Marjoribanks (the late Lord Tweedmouth), which -proposed an extension of the territorial waters in the interests of the -fisheries,[1271] the three-mile limit was abandoned, and one of six -miles from low-water mark recommended instead. This particular distance -was selected in order to secure a limit which would correspond to that -of Spain and the Scandinavian Powers, and thus make the practice in all -European countries more uniform. - -With regard to bays, the draft proposal was at first to adopt a -base-line of six miles from headland to headland, and afterwards one of -ten miles, as in the fishery conventions, was proposed. The Institut -finally adopted a base-line of twelve miles--_i.e._, double the width -of the territorial zone,--but the International Law Association -preferred the old limit of ten miles. The Scandinavian publicists were -of opinion that these limits were too small, and that instead of having -a fixed and rigid rule for the delimitation of bays, each state should -be permitted to fix the boundaries according to the local configuration -of the coast and the local requirements. While this suggestion was -not accepted, it was admitted that certain bays whose width exceeded -ten miles were necessarily, by their situation, placed under the -sovereignty of the neighbouring state, as the Bay of Cancale, the Bay -of Chaleur, and the Scottish Firths.[1272] - -The various rules concerning sovereignty and jurisdiction were applied -to straits whose width does not exceed twelve miles, with the following -modifications: (1) straits of which the coasts belong to different -states form part of the territorial sea of the bordering states, which -exercise their sovereignty there up to the middle line; (2) straits -whose coasts belong to the same state, and which are indispensable -for maritime communication between two or several states other than -the bordering state, always form part of the territorial sea of the -bordering state, and they cannot be closed; (3) in straits whose -coasts belong to the same state, the sea is territorial even though -the distance between the coasts is greater than twelve miles, if at -each entrance of the strait this distance is not exceeded; (4) straits -which serve as a passage from one free sea to another free sea can -never be closed. The rules were adopted by the Institut in 1894, and -by the International Law Association, with slight amendments, in the -following year, when Sir Richard Webster (now Lord Alverstone, the Lord -Chief Justice of England) was in the chair.[1273] The rules as finally -adopted in London are given in Appendix O. - - - - -CHAPTER V. - -THE INADEQUACY OF THE THREE-MILE LIMIT FOR FISHERY REGULATIONS. - - -The recommendation of the International Law Association and of the -French Institute that the territorial waters should be extended to -six miles from the shore, or double the width usually enforced, was -avowedly made, as we have seen, chiefly in the interests of the sea -fisheries; and it may be presumed from the opinions of the majority -of accredited writers on the law of nations, as reviewed in these -pages, that it is open to any Power so to extend its territorial sea, -except in so far as such extension may be opposed to the provisions -of treaties with any other Power or Powers. It is undoubtedly the -case that in by far the greater number of instances in which the -limits of territorial waters, or the rights of the bordering state in -the adjacent sea, have been disputed, or have come under discussion, -between one nation and another, it was the right of fishery that was at -issue. From the reign of James I. this has been the case, and it has -been exhibited on all coasts, and in almost all countries. How replete -our history is with such disputes may be gathered from foregoing -chapters, while nearly all recent international treaties in which -limits in the neighbouring sea are dealt with have been concerned with -fishery questions. The numerous treaties and agreements with the United -States and France respecting the vexed rights of fishing on the coasts -of British North America, the North Sea conventions in Europe, and the -various other agreements between European Powers, as between Spain and -Portugal, Austria and Italy, Denmark and Sweden, Denmark and Germany, -Great Britain and France, Belgium and Germany, and with Denmark -concerning Iceland, are instances in point. The fishery interest is -thus the determining interest, and the one which has made these various -conventions desirable. - -There appears to be little doubt that, in many cases at least, the -three-mile boundary which has been commonly fixed in the fishery -conventions is inadequate from the point of view of the fisheries, -and this is the opinion of most of the experts and authorities, as is -explained below. It must not be forgotten that the three-mile limit -was selected, not on any grounds special to fisheries, but because it -had been already recognised and put into force in connection with the -rights of neutrals and belligerents in time of war, as representing -the approximate range of guns at the time. It is in reality a product -of the maritime wars in the latter part of the eighteenth and the -beginning of the nineteenth century, and its application to the -right of fishing is accidental and arbitrary. The boundaries which -were formerly proposed as limiting the right to exclusive fishery, -independently of any question of the rights of neutrals or the range -of cannon, were invariably greater than three miles. The range of -vision was employed in Scotland and on the English coast later; its -equivalent of fourteen miles was embodied in the Draft Treaty of Union -between England and Scotland in 1604, and was proposed again in 1618; -and Sir Philip Meadows, the most able opponent of extravagant claims to -maritime sovereignty, favoured a similar distance in 1689. Limits of -eight miles and ten miles to be enforced against foreigners were fixed -in the Fishery Bill passed by the House of Commons in 1660, while as -late as 1824 and 1827 the Dutch Government decreed a limit of six miles -for their fishermen on the British coasts. We have seen, too, that the -wider extent of sea in which rights of exclusive fishery are claimed -by the Scandinavian and Iberian states exists in great measure because -those Powers established their limit without reference to Bynkershoek’s -doctrine, and before indeed it became prevalent. - -The same need of a wider limit is shown in the municipal legislation -of many countries, which was specially designed with the object -of preserving sea fisheries, as well as in certain international -agreements. There are two classes of sea fisheries which have received -special treatment beyond the ordinary limits of territorial waters, -and both on the same principle--viz., that the action of man, if -unrestrained, would lead to their destruction and economic extinction. -They are those for marine mammals, as seals and cetaceans, and for -certain shell-fishes and coral. A considerable number of countries have -legislated for the preservation of seals, and some of the enactments -at least apply beyond the ordinary limits. Examples may be found in -the Canadian statute of 1886,[1274] which refers also to whales and -porpoises; the Russian law dealing with the sealing industry in the -White Sea; the Norwegian law fixing a close-time for whales in the -Varangerfjord; and the concurrent international legislation of Great -Britain, Sweden, Norway, Russia, Germany, and Holland concerning the -Jan Mayen seal fishery in the Atlantic east of Greenland.[1275] A -recent instance is afforded by the regulations which were prescribed -for British and American citizens and subjects by the Tribunal of -Arbitration for the purpose of protecting and preserving the fur-seal -in Behring Sea. By these regulations the killing, capture, or pursuit -of this animal was forbidden within a zone of sixty geographical miles -around the Pribilov Islands, comprising about 15,000 square miles of -sea; a close-time was fixed between 1st May and 31st July on the high -sea within an immense area--viz., north of 35 degrees North latitude -and eastwards of 180 degrees West longitude; only specially licensed -sailing vessels, with canoes or undecked boats propelled by paddles, -oars, or sails, were at liberty to carry on fur-sealing operations -where and when the fishing was allowed; the use of nets, firearms, and -explosives was forbidden, except shot-guns outside of Behring Sea, and -some minor conditions were laid down.[1276] - -Another instance is the agreements entered into between Russia on the -one hand and Great Britain and the United States on the other, by -which a zone of ten marine miles on all the Russian coasts of Behring -Sea and the North Pacific Ocean, and a zone of thirty marine miles -round the Commander Islands and Robben Island, were closed to sealing -for the fur-seal.[1277] - -The other class of fisheries referred to, for sedentary animals -connected with the bottom, such as oysters, pearl-oysters, and coral, -which are found in shallow water, as a rule, and usually near the -coast, have always been considered as on a different footing from -fisheries for floating fish. They may be very valuable, are generally -restricted in extent, and are admittedly capable of being exhausted or -destroyed; and they are looked upon rather as belonging to the soil or -bed of the sea than to the sea itself. This is recognised in municipal -law, and international law also recognises in certain cases a claim to -such fisheries when they extend along the soil under the sea beyond -the ordinary territorial limit. Cases in point are the pearl-fisheries -on the banks in the Gulf of Manar, Ceylon, which extend from six to -twenty-one miles from the coast, and are subject to a colonial Act of -1811, which authorises the seizure and condemnation of any boat found -within the limits of the pearl-banks, or hovering near them: boats -or vessels navigating the inner passage are prohibited from hovering -or anchoring in water deeper than four fathoms, and those navigating -the outer passage from hovering or anchoring within twelve fathoms. -These pearl-fisheries are very valuable, and have been treated from -time immemorial by the successive rulers of the island as subjects -of property and jurisdiction; and the laws referred to apply also -to foreigners. Another case is the pearl-fisheries in Australia. In -Western Australia certain Acts are applied far beyond the three-mile -limit, though apparently only against British subjects,[1278] and a -similar Act, of 1888, applied in Queensland to extra-territorial waters -west of Torres Strait. The pearl-fisheries of Mexico and Columbia -are also subject to regulation beyond the ordinary three-mile limit. -Examples of extra-territorial jurisdiction over beds of the common -edible oyster are to be found in the British conventions with France -in 1839 and 1867, by which the Bay of Granville was reserved to France -(see p. 612), and in the last of these conventions (Article ix.) a -close-time was provided in the English Channel; and likewise in the -proceedings concerning the Arklow and Wexford banks, off the Irish -coast (see p. 621). Coral-beds in the Mediterranean, off the coasts -of Algeria, Sardinia, and Sicily, are in a similar way regulated by -Italian and French laws beyond the ordinary three-mile limit. - -Even in regard to the class of fisheries for what is termed “floating” -fish--that is to say, the ordinary fisheries for sea fishes, carried on -usually by nets and lines--there are a number of enactments conferring -jurisdiction, or which have conferred jurisdiction, beyond the distance -of three miles from shore. Old English and British Acts, previously -referred to (p. 608), fixed limits of four-and-a-half and five miles -from the coast, within which distance the use of certain apparatus, -as drag-nets and trawls, was prohibited. In the Herring Fishery Act -of 1808, which provided for the appointment of commissioners for the -herring fishery, and for the regulation of the fishery and the curing -of herrings, jurisdiction was extended over “all persons” engaged in -catching, curing, and dealing in fish in all the lochs, bays, and arms -of the sea, and also within ten miles of the coasts.[1279] At the Isle -of Man an Act of Tynwald prohibited herring-fishing at a certain season -within nine miles of the shore,[1280] and other instances might be -given where municipal Acts extended jurisdiction beyond the ordinary -three-mile limit for similar purposes. - -It is, however, in connection with the great development of -trawl-fishing from steamers in recent years, that the question of the -inadequacy of the ordinary three-mile limit for the preservation and -regulation of fisheries has been brought to the front, and it is around -this method of fishing that most of the controversies affecting the -territorial waters, at least in Europe, have gathered.[1281] It is -therefore necessary to understand something about it, and how it is -that it has given rise to demands for the extension of the ordinary -limits and for the closure of large areas beyond these limits. It is -the most effective and at the same time the most destructive method of -fishing ever made use of. It differs from hook-and-line fishing, in -which only a few kinds of fish are taken at the same time, according -to the size of the hook and the kind of bait, and from gill-net or -drift-net fishing, which is adapted, according to the dimensions of the -mesh, to capture a particular fish, as herring or mackerel. Trawling -consists essentially in dragging along the bottom of the sea a great -bag of netting, which captures a large variety of fishes, big and -little; and it may involve, at certain places and in certain seasons, -the destruction of immense quantities of edible fishes too small to be -marketable, and which are thrown back, dead, into the sea.[1282] It -is a very old method, but until about a century ago it was confined -on the British coast to the mouth of the Thames and neighbourhood and -to certain localities in the Channel, its headquarters being Barking -and Brixham. Trawling was then restricted to shallow water; the boats -were small and the trawls were such as a man could carry on his -shoulders. At the close of the French war, Brixham trawlers began to -migrate eastwards, prospecting for new grounds, fixing their temporary -headquarters first at Dover, then at Ramsgate in 1818, and at Harwich -in 1828. Continuing their explorations, the Dutch coast was visited -about 1830 and the southern part of the Dogger Bank a few years later, -and in 1837 a great impetus was given to trawling by the discovery of -enormous quantities of soles in the Great Silver Pit, south of the -Dogger. Trawlers flocked thither from all quarters; the Brixham men -fixed upon Hull, first as their temporary, and then as their permanent -home, and from this time North Sea trawling was firmly established. It -was not until 1858, little more than half a century ago, that trawlers -began to be employed from Grimsby, which is now by far the greatest -fishing-port in the world. Gradually the enlarging fleets of trawlers -pushed northwards and eastwards as new grounds were discovered. By 1860 -the whole of the Dutch coast and the coast of Schleswig was frequented; -ten years later the Danish coast was included, and, for the first time, -the whole of the Dogger Bank, as well as large areas north and west of -it, off the coast of England and Scotland. About 1875 the Great Fisher -Bank, which lies about 200 miles east of the Scottish coast, began -to be visited, and in 1891 the English trawlers boldly pushed on to -Iceland, where enormous catches of fish were obtained. - -During this period, while the fishing-grounds were being vastly -extended, great improvements were made in the means of catching the -fish and bringing them to market. The trawling vessels gradually -increased in numbers, size, speed, and storage capacity; the trawl-net -grew larger and more efficient; the use of ice for the preservation -of the fish enabled distant grounds to be visited, and the deeper -waters of the north necessitated the substitution of steam-power for -hand-labour in hauling the nets on board; the “fleeting” system, by -which steam-carriers collected the fish each morning and brought them -rapidly to market, allowed the fleets of sailing smacks to remain on -the grounds constantly fishing for many weeks at a time. Then the -industry was revolutionised by the substitution of steam vessels for -the sailing smacks, a change which began about 1878; and trawling, -which was at first a summer occupation owing to the frailty of the -boats, and then a winter pursuit, as plenty of wind was required to -drag the heavier nets, became independent of the season, and almost -of the weather. A further improvement was the introduction in 1895 of -the otter-trawl instead of the unwieldy beam-trawl, the mouth of the -net being kept open by the divergence of two boards, one at each side, -on the principle of the kite. This allowed the net to be made very -much larger, and also to be used in much deeper water, and commercial -trawling is now carried on in depths down to about 200 fathoms. - -There has thus occurred during the last generation or so an enormous -development in the extent and efficiency of trawl-fishing. The -British fleet since about 1885 has grown from some 200 small vessels, -of twenty to twenty-four tons, and using trawls of from twenty to -thirty feet beam, to an aggregate of 3170 vessels in 1907, of which -1609 were steamers and 918 deep-sea sailing smacks.[1283] These -figures, however, convey but little impression of the real increase -in the catching power. It has been computed, both by practical men -and by scientific experts, that the modern steam otter-trawler is -approximately eight times more effective in catching fish than was -one of the large sailing smacks of a generation ago,[1284] and thus -the British deep-sea trawling fleet in 1907 was equal to about 13,790 -of the older sailing smacks. But in addition to these there are the -foreign steam-trawlers which fish on the same grounds, for many other -countries have followed the English example in developing deep-sea -trawling. The aggregate number of such vessels at the end of 1907 was -about 634, of which 224 were French, 239 German, and 81 Dutch;[1285] -and they would represent 5072 sailing smacks, so that the total -trawling fleet of Western Europe was then equal to about 18,862 of the -sailing trawlers of twenty or thirty years ago, the sailing trawlers in -use on the Continent being left out of account. It has been calculated -that the area of the sea-bottom which is swept each day by the nets of -this great fleet is equal to about 2000 square miles. - -Now, this extraordinary extension of trawl-fishing in recent times -bears upon the question of territorial waters in two ways. One relates -to the impoverishment of the older fishing-grounds near the coast and -in the North Sea. The other relates to the incursion of steam-trawlers -on foreign coasts as affecting the fishing of the inhabitants of such -coasts. - -With regard to the first, there have been many inquiries made by -Royal Commissions and Parliamentary Committees, as well as by fishery -departments and experts, which show that the excessive fishing has -depleted the older banks. In the first of these inquiries, which began -in 1863, when there were only from 650 to 700 smacks trawling in the -North Sea (and then only in a part of it), the reporters expressed -their belief that this method of fishing “in the open sea” was not -wastefully destructive, and required no legislative interference, -for if any ground were over-fished, the fishing there would become -unprofitable, and the trawlers would go elsewhere.[1286] The next -Commission, in 1878, by which time trawling had greatly developed, came -to much the same general conclusions; but they found that a decrease -of soles had occurred, and also a decrease of plaice and flounders in -some localities, and they recommended that power should be given to the -Secretary of State to forbid trawling “in any of the territorial seas,” -which power was conferred in 1881.[1287] This inquiry was noteworthy -as first revealing complaints by the trawlers themselves of the -diminution of certain fish and the impoverishment of inshore grounds, -and for the advocacy by Grimsby smack-owners of the prohibition of -trawling at localities where small fish abound, as the inlets on the -Dutch and German coast, the Wash, and off Yarmouth, and even within -a nine-mile limit all round the shores of the North Sea. At the next -Commission of inquiry, in 1883, the complaints of the trawlers were -stronger, and the remedies they proposed more drastic. Those of Hull -and Grimsby stated that the numbers of flat fishes, particularly soles, -had much diminished; that the nearer grounds were impoverished, and -that they had to go much greater distances for their supplies of fish. -They expressed the belief that most damage was being done by trawling -along the coasts, especially on the Continental side of the North -Sea, and that the most effectual remedy would be to prohibit trawling -within a ten-mile limit around the whole of the North Sea coasts. The -conclusions reached by the Commission were that soles had decreased, -and also flat fishes and haddocks in many parts of the territorial -waters between Grimsby and the Moray Firth, and they recommended that -the Scottish Fishery Board should receive powers to regulate or suspend -trawling within territorial waters.[1288] - -[Illustration: Fig. 26.--_Showing the three-mile limit and a -thirteen-mile limit in the North Sea._] - -From this time onwards the demand of the trawlers for some legislative -restrictions on trawl-fishing increased to a clamour. At a conference -of practical fishermen held in 1883, in connection with the -International Fisheries Exhibition at London, statements were made by -trawlers as to the enormous destruction of under-sized fish and the -depletion of the grounds, and a resolution was passed calling upon the -Government to bring about an international conference to consider the -desirability of recommending legislation.[1289] At another conference, -in 1888, they declared that a large and distressing diminution of -flat-fishes had occurred in the North Sea; that they viewed the future -with alarm unless some steps were immediately taken to protect immature -fishes; and they called upon the Government to try to arrange for an -international law for the purpose.[1290] As no result followed from the -representations to the Government, the trawl-owners on the East Coast -took independent action in 1890, and formally agreed, as a preliminary -step, to prevent their trawlers from fishing in the summer within a -very large area of extra-territorial water off the German and Danish -coasts, where immature fish were generally caught in great abundance. -The line of closure of this area extended along the coast for 130 -miles, passing, to the west of Heligoland, at a distance varying from -twenty to over fifty miles from the shore, and embracing no less -than about 3600 square (geographical) miles of water lying outside the -three-mile limit as defined by the North Sea Convention. The Conference -also pressed for legislation of a national and international character -to prevent the sale and purchase of immature fish, and they defined -what they meant by that term.[1291] For some time at least the vessels -of the great trawling companies abstained from fishing within the large -area above referred to, but the voluntary arrangement fell through -owing to the action of independent “single-boaters,” and the grounds -were never effectually closed. The Government went so far to meet -the wishes of the trawlers as to issue, through the Foreign Office, -invitations from the National Sea Fisheries Protection Association -to various Continental Governments to send delegates to a conference -in 1890, and representatives from Belgium, France, Denmark, Germany, -the Netherlands, and Spain attended a meeting at Fishmongers’ Hall in -that year, but no representative of this country was present in an -official capacity. Statements of the usual kind were made as to the -impoverishment of the fishing-grounds and the necessity of remedial -measures in order to keep up the fish supply, and it was resolved, in -view of an official international conference being called, to circulate -a set of questions regarding the scientific and statistical aspect of -the subject.[1292] - -[Illustration: Fig. 27.--_Showing the area of the Small-fish Grounds, -which the English trawlers desired to have closed for the preservation -of immature fish._] - -The complaints continuing as to the deterioration of the fisheries, the -Government in 1893 appointed a Select Committee of the House of Commons -to inquire into their condition and to report as to what remedies -might be required. The trawlers again gave strong evidence as to the -impoverishment of the grounds in the North Sea from over-fishing, -the banks having been “fished out” in succession as they were -discovered, so that they were compelled to go to distant regions, as -Iceland and the Bay of Biscay, to keep up the supplies. Some of them -still pressed for an extension beyond the three-mile limit and the -prohibition of trawling within ten miles from the shore, especially -on the foreign coasts on the eastern side of the North Sea, and in -particular that large areas in the extra-territorial waters should -be closed by international agreement. The prohibition of the sale of -immature flat fishes was also strongly advocated as an indirect means -of closing these grounds. The Committee reported that the evidence of -all classes of witnesses, “whether trawlers or linesmen, smack-owners -or fishermen, scientific experts or statisticians,” showed that a -considerable diminution had occurred among the more valuable classes -of flat-fishes in the North Sea, which was to be attributed to -over-fishing by trawlers in certain localities; and they recommended -that the sale of undersized flat-fishes should be forbidden, and that -the three-mile limit should be extended for fishery purposes alone, -provided it could be effected on an international basis.[1293] - -It does not appear that any action was taken by the British Government -in consequence of this report; and as the trawlers had failed to get -the large area of the German and Danish coasts closed to them directly, -they got a Bill introduced into Parliament to prohibit the sale of -undersized flat-fishes, in the belief that an enactment of that kind -would result in closing the grounds indirectly. The reasoning on -which they proceeded was this. Trawling, to be remunerative, depends -upon the capture of a variety of fishes, and it is not possible by an -enlargement of the mesh of the net to allow of undersized flat-fishes -escaping, without also and at the same time permitting the escape of -numerous large marketable round-fishes, as haddocks, as well as of -many marketable soles, and fishing under such conditions would be -unprofitable. It was also known that it would be futile to return to -the sea the undersized fishes after they had been brought on board, -because in commercial trawling they are dead or moribund, and might as -well be taken ashore as thrown back into the water. It was admitted -that the only effective way to protect the immature fish was to -prevent the trawl from being used on the grounds; and if this could -not be done by direct closure of the area, it might be accomplished -by prohibiting the sale of undersized flat-fishes generally; for on -these particular “small fish” grounds, or “nurseries,” large fishes are -so scarce that trawling is remunerative only by reason of the great -quantity of small fishes taken. If the sale of these were forbidden, -then trawling in such localities would cease. For an enactment of this -kind to succeed, it was obviously necessary that it should apply to -the whole kingdom, and it was opposed by fishermen on other parts of -the coast; and as it was felt to be extremely problematical whether -it would secure the cessation of trawling on the small-fish grounds -without at the same time injuriously affecting the fisheries on our own -coast and raising the price of fish, the Bill was abandoned. Several -subsequent Bills of the same kind shared the same fate, usually after -a more or less exhaustive inquiry by a Parliamentary Committee. One -of those Committees, consisting of thirteen members of the House -of Commons, took evidence in 1900 from the representatives of the -trawlers and others, of the character previously described, advocates -of the Bill admitting that in their view it was a tentative measure, -and that the direct closure of the grounds would be preferable. The -Committee thought that it was proved beyond all doubt that there was a -serious diminution of flat-fishes, particularly in the North Sea; that -the ancient fishing-grounds were much depleted; that the evil was a -growing one, and that in default of a remedy the consequences would be -disastrous to the industry.[1294] One of the causes of the diminution -was found to be the vast destruction of immature fish, the direct -remedy for which, the Committee said, was either the prohibition of the -taking and killing of such fish, or the prohibition of fishing within -areas where small fish abound. They were of opinion that the former -was practically impossible without prohibiting trawling altogether, -while the areas where the small fish congregate could only be closed -by a joint international arrangement. The indirect remedy was that -proposed by the Bill, and, for reasons such as are stated above, they -felt it would not be expedient to pass the Bill into law without -further inquiry and investigation. The Committee were of opinion that -the subject of the diminution of the fish supply was a very pressing -one, and that the situation was going from bad to worse, and they -recommended that no effort should be spared, first, to arrange for -international treatment of the subject generally, and especially for -regulation of the North Sea area; and second, to provide for the -adequate equipment of the Government Departments in charge of the -subject.[1295] - -The trawlers still pressed for legislation to deal with the wasteful -destruction of undersized fish, and continued to pass resolutions -on the subject;[1296] and another and somewhat modified Bill was -introduced into the House of Lords in 1904 by the Department of -Agriculture and Fisheries, and remitted to a Select Committee of -that House. The Committee, after taking much evidence of the usual -kind, stated their opinion that the ideal manner of protecting the -fishing-grounds in the North Sea where young fish abound would be by -an international agreement between all the Powers concerned, and they -expressed the hope that the Government would not relax its efforts -to secure such a convention. It was thought that, as the first step -towards attaining this result, the Bill ought to be passed into law; -but the opposition to it was too strong, and it shared the fate of its -numerous predecessors.[1297] - -The statements of the trawlers that the older fishing-grounds are -impoverished, particularly those in the North Sea, are borne out by -the results of statistical and scientific inquiries. It was calculated -by Professor W. Garstang that the average catch of bottom fishes, per -fishing unit, decreased in the North Sea in the ten years 1889 to -1898 from 60·6 to 32·3; or, in other words, that while the average -take of each trawling smack in 1889 was sixty tons, it was only about -thirty-two tons in 1898.[1298] The official statistics published -annually by the Board of Agriculture and Fisheries show that the -quantity of bottom fishes taken from the North Sea is declining, while -on the other hand the quantity landed in this country from distant -waters is greatly increasing.[1299] - -This brings us to the second point, in which the immense development -of trawling touches upon the question of territorial waters--namely, -the flocking of the trawlers to new grounds on foreign coasts. As the -North Sea became, comparatively speaking, more and more exhausted, -the vessels were compelled to go farther and farther away in order to -maintain the supply.[1300] The grounds at Iceland, now so important -not only to the British trawlers but to the Germans and the French, -were first visited in 1891, and those in the neighbourhood of the Faröe -Islands a little later. The operations of the trawlers were at first -limited to the south-east coast, but the catches were so enormous, -and the enterprise so profitable, that large and seaworthy vessels -were specially built for this fishing, which became one of the most -important for the English markets.[1301] Then the grounds in the Bay -of Biscay and those on the coasts of Spain and Portugal began to be -frequented, mostly from about the year 1902; and in the next year the -operations of the trawlers were extended farther south to the coast -of Morocco, as far at least as Agadir (20 deg. N. latitude), and even -in some cases to the coast of Mauritania in French West Africa. The -vessels fishing in these southern regions, many of them being fitted -with refrigerating rooms, land a considerable proportion of their -fish in Portugal and elsewhere. A year or two later, in 1905, the -enterprising English trawlers opened up new grounds far away to the -north-east in Barents Sea, at the very borders of the perpetual ice -of the Arctic regions, and increasing numbers make the long double -voyage of some 3500 miles thither every summer, and bring back from the -neighbourhood of Cape Kanin great quantities of plaice for the English -markets. - -Thus the great enterprise and energy of British trawlers, supported -by large capital, have enabled them to exploit the available grounds -from far beyond the Arctic circle almost to the tropics, and it is -from those distant regions that an increasing proportion of the fish -supply is being drawn.[1302] The influx of alien vessels, the most -powerful and efficient fishing machines in existence, along these -foreign coasts is not, as was naturally to be expected, viewed with -satisfaction by the native fishermen. They see the fishing-grounds -which they had so long been accustomed to consider as their own--in -many cases lying within the territorial waters preserved to them by -the laws of their own country, though possibly outside “the ordinary -three-mile limit”--invaded and exploited by foreigners, and their own -livelihood threatened. They fear that what has occurred in the North -Sea will happen along their own coasts; that the fishing-grounds, often -of limited extent, will be impoverished and exhausted for the sole -benefit of the foreigners, and their efforts to maintain themselves -and their families rendered difficult or impossible. They observe from -their boats the immense hauls of fish made by the huge trawl-nets, -and the great waste that is often involved.[1303] One cannot be -surprised that the fishermen, and those who sympathise with them, -feel indignation at the invasion of their waters by foreign trawlers, -and that great meetings have been held, as in Spain and Portugal, to -demand redress, and that at least the same limit as applies to natives -pursuing similar methods should be enforced on the foreigners, or an -international conference called to arrange for an equitable limit, or -equitable treatment, which would have regard for the rights of all -concerned.[1304] - -From the foregoing description of the problems associated with the -modern development of trawling, it will not be difficult to understand -the scope and nature of the legislation which has been devised in -various countries to preserve the native fisheries for the inhabitants -of the coast. It may be said that in practically all of them, -trawl-fishing is either entirely prohibited within territorial waters -or is subjected to various regulations, for the most part with the -view of allowing minor forms of trawling, as that for shrimps, to be -carried on. In those countries which have a zone of territorial water -extending beyond the ordinary three-mile limit, it is prohibited within -that zone, as in Norway, Spain, and Portugal, and even up to twelve -miles from the shore; while in some others in which three miles is in -use as the ordinary limit for exclusive fishing, trawling is forbidden -at distances beyond that limit. In Italy and Austria steam-trawling is -not allowed within five miles of the coast. In Scotland and Ireland it -is prohibited in certain specified waters, which extend much beyond a -three-mile boundary. As recent legislation, or byelaws made with the -authority of Parliament, bearing upon these prohibitions have given -rise to much controversy, it is desirable to consider them with a -little care. - -In England, where the administration of the local fisheries around the -coast is in the hands of various Sea Fisheries District Committees, -numerous byelaws have been made and are in force, with the sanction -of the Board of Agriculture and Fisheries, prohibiting or regulating -trawling of one kind or another in the waters under the control of the -Committees. None of the byelaws appear to apply to parts of the sea -beyond the ordinary three-mile zone, though it is open to question -whether the wording of the Act, by which the Committees were created, -does not give power in that direction.[1305] - -The Irish Fishery Department have made a very large number of byelaws, -at various times and under various Acts, for the regulation or -prohibition of trawling. Of these some forty-four are at present in -force, twenty-two applying to all trawling and twenty-two to steam -trawling alone, and one or two of them date from the years 1842 and -1851.[1306] Under these byelaws trawling in one form or another is -prohibited entirely or under certain conditions at most parts of the -coast of Ireland; and on certain parts of the coast not inconsiderable -stretches of the sea, beyond the three-mile limit and the limit for -bays as defined in the fishery conventions, are closed against this -method of fishing. The lines around the coast within which trawling is -prohibited, in many instances pass between headlands which may be as -much as twenty-six, and even forty-three, miles apart; not infrequently -they are drawn, not between headlands, but from one light-ship to -another, and these light-ships may be four or five miles from land and -twenty miles apart. Sometimes the closing line is placed three miles to -the seawards of such base-lines; and they may pass from about two to -seven or eight miles outside the limit as defined in the conventions, -and in some instances up to ten or eleven miles from low-water mark on -the shore. - -It is obvious that the principle upon which these lines have been drawn -has been one of convenience. They differ entirely from the lines of -closure in the two Scottish Firths referred to below, which are _inter -fauces terræ_ with the lines passing from headland to headland. But all -the lines on the Irish coast are well within the range of guns from -the shore, and are thus, according to the Law of Nations, within the -territorial sea. The aggregate area beyond the ordinary limits of the -conventions amounts to a little over 400 square (geographical) miles. - -It does not appear that foreign trawlers have been found contravening -the Irish byelaws to any great extent. Between June 1904 and September -1905 seven steam-trawlers and one sailing-trawler were captured fishing -within the limits, one of the former being registered in a foreign -country, and, with regard to it, the official report says “it was -found impossible to enforce the order made by the magistrates against -the owner and skipper.” It is added that “it is thought, however, -that means have been found within the existing law of compelling -foreign trawlers to observe the byelaws affecting Irish territorial -waters.”[1307] - -It is, however, with reference to the legislation for Scotland, -under which certain areas are closed against trawling, that the main -controversies have been raised. Several statutes gave power to the -Fishery Board for Scotland to regulate trawling. The first was an -Act of 1881,[1308] which empowered the Board of Trade to restrict or -prohibit this method of fishing “in any area being part of the sea -adjoining the United Kingdom, and within the territorial waters of -Her Majesty’s dominions, within the meaning of the Territorial Waters -Jurisdiction Act, 1878” (see p. 591); which power was transferred to -the Scottish Board by subsequent Acts.[1309] Then the Sea Fisheries -(Scotland) Amendment Act, of 1885,[1310] empowered the Board to make -byelaws for restricting or prohibiting, either entirely or subject to -such regulations as might be provided, any method of fishing “in any -part of the sea adjoining Scotland, and within the exclusive fishery -limits of the British Islands,” when they were satisfied that such -mode of fishing was injurious to any kind of sea fishing within that -part, or in order to make experiments and observations to ascertain -this, or for fish-culture: and such byelaw was not to be valid until -it had been confirmed by the Secretary for Scotland. Several byelaws -under this Act were made, prohibiting trawling within certain areas on -the coast of Scotland within the ordinary limits.[1311] It may well be -questioned, in view of the definition of the “territorial waters of -Her Majesty’s dominions” in the Territorial Waters Jurisdiction Act, -and of the “exclusive fishery limits of the British Islands” in the -Sea Fisheries Act, 1883,[1312] whether these powers were restricted to -the three-mile limit and to bays whose width was not greater than ten -miles; but it is noteworthy that a byelaw with reference to the Firth -of Clyde was not confirmed by the Secretary for Scotland, presumably -because it was considered at the time to be _ultra vires_.[1313] - -In 1889, however, an Act was passed which directly prohibited trawling -“within three miles of low-water mark of any part of the coast of -Scotland” (except the Solway and Pentland Firths), and within the -waters specified in a schedule annexed, except in such parts as might -from time to time be permitted by byelaws of the Fishery Board; and the -Board was further empowered to forbid trawling within any area or areas -in the Moray Firth between Duncansby Head and Rattray Point, which -may be regarded as its headlands.[1314] The waters specified in the -schedule included the areas closed under the then existing byelaws, as -well as a number of bays, lochs, and areas, the most important of which -was “the waters inside a line drawn from Corsewall Point, in the County -of Wigton, to the Mull of Cantyre, in the County of Argyll”--that -is to say, the Firth of Clyde. In this Act, it will be noted, nothing -is said about bays, save in this schedule, and an examination of the -charts shows that the waters specified in the schedule, twenty-five -in number, would all, with a single exception, be included in the -limits of exclusive fishing as defined in the North Sea Convention. -Presumably the bays on the coast of Scotland which are not mentioned -in the schedule do not come under the provisions of this Act beyond -the distance of three miles from low-water mark on their shores. The -exception referred to is the Firth of Clyde (fig. 29), where the line -of closure is about twenty-eight miles in length, within which trawling -was directly prohibited by the Act. The area of water outside the -ordinary limits of the conventions which is thus embraced amounts to -about 380 square (geographical) miles. - -[Illustration: Fig. 29.--_The Firth of Clyde, showing the line of -closure and the ordinary three-mile limit._] - -Under the section referring to the Moray Firth, a byelaw was passed -in 1890 giving effect to its provisions within a straight line drawn -from the Ord of Caithness to Craighead near Buckie, the extent of -water enclosed, beyond the ordinary limits, being about 310 square -miles. This was replaced by another byelaw in 1892, in which the -line of closure to trawling was from Duncansby Head to Rattray Head, -a distance of about 73 geographical miles, the area of sea enclosed -between it and the ordinary limits amounting to approximately 1480 -square (geographical) miles (fig. 30). It is this byelaw that has of -late given rise to discussion in relation to the operations of foreign -trawlers within the Moray Firth, as is explained below. - -In 1895 another Bill was introduced into the House of Lords by the Lord -Privy Seal (Lord Tweedmouth), with the object, among other things, of -extending a similar jurisdiction over the waters washing the east coast -of Scotland. The line at first chosen in this case was a very long one, -running along the open coast from Rattray Head to the Farne Islands, -a distance of about 120 miles, and passing a little over thirty miles -east of Fife Ness.[1315] It was proposed later to give power to -prohibit trawling in any area or areas within eighteen miles of the -coast.[1316] In the Act as passed the distance was reduced to thirteen -miles from the coast in areas under the jurisdiction of the Crown, and -no area was to be so regarded unless the powers conferred had been -accepted as binding upon their own subjects with respect to such area -by all the states who were parties to the North Sea Convention.[1317] -This section of the Act has remained inoperative, and no byelaws have -been made under it; and there appears to be no evidence as to whether -the views of other Powers have been obtained. - -In the Moray Firth, closed to trawling by the byelaw above referred -to, foreign trawlers began to make their appearance first of all in -1895, when a Danish vessel came. Two years later it returned, and a -German trawler also, which was prevented from landing its fish at -Aberdeen,--an act of the Crown, which was tested by a case in the Court -of Session and upheld by it. In 1898 foreign trawlers appeared in the -Firth in considerable numbers, and, it was reported, carried on their -operations in such a reckless manner as to involve a great deal of -damage to the gear of the net and line fishermen.[1318] These vessels -appear to have been mainly Danish, but there were a few Belgian, Dutch, -and German, and they came for the most part intermittently and for -brief periods, some of them appearing only once or twice in a year. -Soon, however, the Firth was invaded by a fleet of trawlers flying the -Norwegian flag, although it was known that Norway possessed no steam -trawlers,[1319] and these vessels fished regularly in the Moray Firth, -carrying their fish to Grimsby, where they were landed and sold. It -was soon discovered, and admitted, that these trawlers were in reality -English, so far as capital, management, and crew were concerned, but -they were registered in Norway in order to evade the British statute, -and they soon obtained a practical monopoly of trawling in the Moray -Firth. In 1901 there were fourteen or fifteen of them, but by 1905 they -had increased to twenty-nine or thirty; while the visits of trawlers of -other nationalities had diminished to nine in 1903, to six in 1904, and -to two in each of the three following years. In 1903 and 1904 thirteen -convictions were recorded against foreign trawlers, eight in connection -with the Moray Firth and five in connection with the Clyde; in 1905 -the number rose to fifteen for the Moray Firth and six for the Clyde. -In all these cases the charge was for trawling within the ordinary -three-mile limit. In 1905 a case was brought against Martin Olsen, the -Norwegian “flag-master” of one of the trawlers registered in Norway, -the _Catalonia_, for trawling within the Dornoch Firth in contravention -of the Act of 1889, and byelaw No. 2, made under the Act of 1885. The -place where the offence was committed was beyond the distance of three -miles from the shore, but it was within three miles of the ten-mile -base-line across the Dornoch Firth, and therefore within the exclusive -fishery limit as defined in the conventions, and within one of the -areas scheduled in the Act of 1889. The Sheriff-Substitute at Dornoch -sustained Olsen’s plea of no jurisdiction, on the ground that the -_Catalonia_ was registered in Norway, and Norway was not one of the -Powers signatory to the North Sea Convention. On appeal to the High -Court of Justiciary the decision was reversed, the judges holding that -the prohibition in the Act of 1889, being quite general in terms, was -applicable to foreigners as well as to British subjects, and that -it was not for them to draw a distinction which had not been made by -Parliament.[1320] - -[Illustration: Fig. 30.--_The Moray Firth, showing the line of -closure._] - -This decision was the means of raising the question whether the byelaw -did not apply to foreigners equally with British subjects in the -whole extent of the Firth, and a series of cases were brought before -the Sheriff to test the point. Three prosecutions were instituted, -one against Emmanuel Mortensen, a Dane, master of the _Niobe_, of -Sandefjord, Norway, for trawling at a point about five miles off -Lossiemouth; another against Thomas Robinson, a British subject, master -of the _Verbena_ of Stavanger, Norway, for trawling at a point five -miles S.S.E. of Garty Point, Sutherlandshire; and the third against -Arthur Lambert, a British subject, fishing-master of the _Pinewold_, -registered at Sandefjord, Norway, for trawling at a distance of seven -miles from Tarbetness. Convictions were obtained in all cases in the -Sheriff Court of Dornoch, mainly on the same ground as in the above -case, that the statute was general and applied to all persons, but -Sheriff (now Lord) Guthrie also held that the Moray Firth was within -the territorial waters of Scotland.[1321] - -The case in regard to Mortensen was appealed and was heard by the -full bench of twelve judges of the High Court of Justiciary, who -unanimously upheld the conviction and dismissed the appeal. The -leading opinion was delivered by the Lord Justice-General (Lord -Dunedin), who treated the question as one of construction, and of -construction only, since the court had nothing to do with whether -an Act of the Legislature was _ultra vires_ or in contravention of -international law; they had only to give effect to it. The terms of -the Act, applying to “every person” committing the offence within an -area which was precisely defined, made the inference strong that it -was meant to apply to all persons whatsoever; and this inference was -further strengthened by the consideration that the clear object of -the Act was to stop trawling, and that object would be defeated or -rendered less effective if the prohibition applied only to British -subjects, while leaving those of other nations free. With regard to -the territorial or non-territorial character of the place where the -_Niobe_ had been trawling, Lord Dunedin said that while it might be -assumed that within the three-mile limit the territorial sovereignty -would be sufficient to cover such legislation, that was not a proof of -the counter proposition, that outside the three miles no such result -could be looked for. There were at least three points which went far -to show that the _locus_ was _intra fauces terræ_: (1) the dicta of -the Scottish Institutional Writers, as Stair and Bell;[1322] (2) the -fact that the same statute puts forward claims to analogous places, as, -_e.g._, the Firth of Clyde; (3) there were many instances in decided -cases where the right of a nation to legislate for waters more or less -landlocked, though beyond the three-mile limit, had been admitted. -“It seems to me, therefore,” continued Lord Dunedin, “without laying -down the proposition that the Moray Firth is for every purpose within -the territorial sovereignty, it can at least be clearly said that the -appellant cannot make out his proposition that it is inconceivable -that the British Legislature should attempt for fishery regulation to -legislate against all and sundry in such a place. And if that is so, -then I revert to the considerations already stated, which, as a matter -of construction, make me think that it did so legislate.” He did not -think any argument could be drawn from the definition of “exclusive -fishery limit” in the North Sea Convention, inasmuch as the Convention, -as a whole, did not deal with what was here in question--viz., mode -of fishing; and the Act treated subjects and foreigners alike in the -matter. - -Lord Kyllachy also held that, on the point of construction, the -intention of the Act was that in no part of the area should trawling be -practised by anybody; the terms were definite and applied to a quite -definite area; it would be easier to suppose that the Legislature -had reached even an erroneous conclusion as to the extent of its -jurisdiction, than that it had resolved deliberately to impose a -futile restriction upon its own countrymen and at the same time to -create a hurtful monopoly in favour of foreigners. With regard to -the territorial or non-territorial character of the Moray Firth, it -seemed vain to suggest that according to international law there was -any part of it which was simply an area of the open sea, and thus in -the same position as if it were situated, say, in the middle of the -German Ocean. The whole Firth was _prima facie_ a “bay,” with two -well-marked headlands, and stretching inwards for many miles into the -heart of the country. All that could be said against this was that at -its outer end the Firth was very wide, and of a size, if not also of -a configuration, somewhat beyond what is usually characteristic of -bays and estuaries; but that might or might not be so, and the cases -of the Bristol Channel, the Firth of Clyde, and the Firth of Forth -would have to be considered before the proposition could be affirmed. -There was no established rule on the subject in international law, and -in particular no rule “so arbitrary and artificial as that of the -ten-mile limit measure,” for which the appellant contended. Perhaps the -most interesting part of Lord Kyllachy’s opinion concerned the bearing -of the North Sea Convention on the case. If the question had been one -of _exclusive fishing privileges_, the bearing of the Convention might -have been important. “But exclusive fishing privileges--or, at all -events, exclusive fishing privileges as defined by convention--are -one thing; territorial jurisdiction, proprietary or protective, is -a different thing.... There is certainly nothing in the Convention, -at least nothing was brought under our notice, which in the least -conflicts with the right of the several contracting nations to -impose each of them within its territorial limits (whatever these -are) restrictions universally applicable against injurious practices -or modes of fishing such as are by this statute and byelaw imposed -here. In other words, there is nothing in the statute and byelaw in -question which at all interferes with the exclusive fishing privileges -of the several nations.” He could not consent to the argument that -the Convention had introduced a new chapter into international law -establishing, with respect to the definition of bays and estuaries, new -and artificial rules. The other judges who gave their reasoned opinions -expressed similar views, both as to the construction of the Act, the -possibility or probability that the Moray Firth was a territorial bay -by the law of nations, and as to the distinction between the limits of -exclusive fishing as defined in the Convention and the right of the -bordering state to regulate the fishery beyond that limit and within -its territorial waters, provided the regulations applied equally to -all.[1323] - -It is to be noted that although the question was strictly one of the -construction of the Act, the judges had necessarily, in reaching -its true meaning, to consider certain aspects of international law -in relation to the territorial sea. From the above summary of their -opinions, it is evident that the most eminent Scottish lawyers are in -agreement with the modern publicists whose views have been referred -to in a previous chapter, both in rejecting the three-mile limit -as the farthest boundary of territorial sovereignty and as to the -ten-mile rule (to say nothing of the six-mile theory) for bays. It -may, however, be questioned as to how far the doctrine of independent -territorial regulation of fisheries beyond the limit of exclusive -fishing, as defined in the Conventions, will be accepted as applied -to the signatories of the Conventions. It is not expressly stated in -the Conventions that the waters outside the exclusive fishery limits -shall be free and common to all; but that is implied even in the title -of the last of them,[1324] and the Convention, in point of fact, lays -down such regulations for the conduct of the fishery, outside the -exclusive fishery limits, as appeared to the signatories at the time -sufficient for the equitable enjoyment of the common right. It would -be easy to conceive of general regulations being applied independently -at particular places by one state, which would have the effect of -abridging the common right of the other states, without affecting the -interests of its own subjects--on the principle of the invitations -which the fox and the stork issued to one another in the fable. That -the intention was to leave the fisheries outside the limits mentioned -free, except in so far as the regulations agreed upon affected them, is -clear from the proceedings at the conference at The Hague. As regards -other states, however, such as Norway, which were not signatories of -the Conventions, it is equally clear that, up to the utmost bounds of -the territorial waters, regulations may not only be imposed on their -subjects, but they may be excluded from the fisheries altogether. - -The effect of the decision of the High Court of Justiciary was -apparently to keep the foreign trawlers out of the Moray Firth for -a short time. But very soon a number of them came back again from -Grimsby, with express instructions from the owners to fish in the Moray -Firth. On 31st January 1907 six masters, all foreigners, of trawlers -registered in Norway, were charged at Elgin Sheriff Court with thirteen -separate contraventions of the byelaw, committed between 23rd November -and 22nd December 1906, at various distances from about five to twelve -miles from the coast; on conviction, penalties of £100 or sixty days’ -imprisonment were imposed, and five of the men went to prison. On 4th -February other two masters of foreign trawlers were convicted of a -corresponding offence at Wick Sheriff Court. At the trial at Elgin, the -Norwegian Vice-Consul at Aberdeen read a protest, at the instance of -the Foreign Minister of Norway, against the conviction of the masters -of three of the Norwegian vessels which he named, provided the trawling -with which they were charged had taken place “outside the territorial -limits.”[1325] - -Representations were also made to the British Foreign Secretary by -the Norwegian Minister in London (Dr F. Nansen), and the men were -released on 9th February,[1326] the decision of the Scottish High -Court being thus in effect set aside. It was subsequently explained -that in taking this action Norway was merely making a formal stand -for the rights of her flag, since the trawlers had been registered -in Norway in a legal way, Norwegian subjects were concerned, and no -claim had been put forward on behalf of the British Government to the -Moray Firth as being territorial in character. In point of fact, the -Norwegian Government was in full sympathy with the policy of keeping -the pseudo-Norwegian vessels out of the Moray Firth,[1327] and they -immediately, after the formal protest referred to, issued orders -warning all owners of Norwegian trawlers fishing in the Moray Firth to -cease from doing so, and not to expect the support of their Government -in case of proceedings being taken against them in Scotland.[1328] -It does not appear that any advantage was taken of this proceeding -for further prosecutions of Norwegians contravening the law; but it -was decided to proceed against British subjects who might be found on -the foreign vessels which were violating it, and who were undoubtedly -under the jurisdiction of British courts. On March 20th twelve cases -were brought before the Elgin Sheriff Court, the men charged being -the “fishing-masters” of the foreign trawlers,[1329] and the only one -who appeared was fined fifty pounds for each of three offences, or -fifteen days’ imprisonment. A little later, on 17th April, fifteen -fishing-masters of foreign trawlers, one of which was Swedish, all -British subjects belonging to Grimsby, were charged in the same court -for trawling within the Moray Firth outside the ordinary limits, and -on conviction small fines were imposed. Similar cases were brought -against eleven men in July, who were charged with twenty-eight offences -committed between 2nd March and 24th June, and still smaller penalties -were imposed.[1330] - -Considerable discussion was evoked by the various occurrences above -referred to. Resolutions were passed at various meetings of fishermen -in Scotland in favour of the byelaw being strictly enforced, and asking -that an international arrangement should be come to if necessary to -enable that to be done. At meetings of trawl-owners, on the other -hand, held at Grimsby and elsewhere, resolutions to the opposite -effect were agreed to, and the Government were requested to maintain -the “three-mile international territorial limits as now defined.” -In the Houses of Parliament also numerous questions were put to -Ministers on the subject, and there were several debates of a more or -less formal kind. It appears that the Foreign Office had come to the -conclusion that the Act of Parliament as interpreted by the High Court -of Justiciary was in conflict with international law;[1331] and that -view having been taken, it was obvious that it would be necessary, -if the statute was to have equal effect on foreigners, that some -international arrangement, such as had been previously recommended -by the Select Committees of the House of Commons and the House of -Lords,[1332] should be reached. It appears that there would have been -no difficulty in arranging such an agreement with Norway, which was -desirous of entering into negotiations for the purpose; but it was -felt by the Foreign Office that, while an arrangement of the kind -would not bind other Powers, questions of reciprocity might be raised, -and British trawlers might be excluded from similar areas on foreign -coasts. They therefore declined to enter upon negotiations with foreign -Powers until the whole policy had been carefully considered.[1333] -One point of view which was taken was indicated in a speech of the -Under-Secretary for Foreign Affairs (Lord Fitzmaurice) in the course -of a debate in February 1907, which had been initiated by Lord Balfour -of Burleigh. He stated that according to the views hitherto accepted -by the chief departments of the Government--the Foreign Office, the -Admiralty, the Colonial Office, the Board of Trade, and the Board of -Agriculture and Fisheries--and apart from the provisions of special -treaties, territorial waters were: “First, the waters which extend -from the coast-line of any part of the territory of a State to -three miles from the low-water mark of such coast-line; secondly, -the waters of bays the entrance to which is not more than six miles -in width, and of which the entire land boundary forms part of the -territory of a State. By custom, however, and by treaty and in special -convention, the six-mile limit has frequently been extended to more -than six miles.”[1334] The Lord Chancellor, it may be said, was absent -through illness; and the declaration quoted, though it represents -what has been the general, but by no means the invariable, attitude -of the British Foreign Office in dealing with territorial waters, -is not in accordance with the law of nations, as is shown in the -foregoing chapters. Nor does it agree with the opinions expressed in -a former debate by the late Lord Salisbury, so long the distinguished -Foreign Minister of this country, by Lord Halsbury, the former Lord -Chancellor, and by Lord Herschell, the then Lord Chancellor (see p. -592), in which Lord Salisbury said “great care had been taken not to -name three miles as the territorial limit.” Nor is it in agreement -with the carefully considered and most explicit reservations made in -the Territorial Waters Jurisdiction Act, both in regard to the extent -of the territorial waters and the rightful jurisdiction of the Crown -beyond three miles from the shore under the law of nations, conferred -by Act of Parliament, or by law existing, and the similar reservations -in certain other Acts previously referred to. Even more singular is the -novel statement as to what constitutes a territorial bay. A six-mile -limit of the kind will obviously confer in the great majority of cases -no greater extent of sea than the three-mile limit on an open coast, -and it is thus opposed to one of the best-recognised principles of -international law relating to the subject. The only part of the world -where it appears to be in force is in British North America, with -reference to subjects of the United States. The history of how it came -to be applied at all is told in a previous chapter, in which it is also -shown that the British Government as late as 1887 rejected even the -ten-mile limit for bays, as involving a surrender of fishing rights, -and as being contrary to the law of nations (p. 629), and they have -made declarations equally emphatic on other occasions.[1335] - -But in a subsequent debate Lord Fitzmaurice appears to have qualified -his statement, and quoted the observation of Lord Salisbury that where -the coast was “folded and doubled,” as where bays exist, it was an -unsettled question in international law how far territorial waters -extend in such cases.[1336] - -Rather a different view was taken by the Lord Chancellor, a few weeks -later, in the course of another debate about the Moray Firth. Lord -Loreburn confined himself to saying that the obvious contention of -other nations, and one very difficult to encounter, if we tried to -make byelaws under our own law in regard to waters within a line -from headland to headland eighty-five miles apart, would be that -we might be trying to legislate for the high seas.[1337] And in a -debate in July 1908, the Secretary for Foreign Affairs (Sir Edward -Grey) put the matter in an exceedingly lucid manner. Parliament had -recognised the contention, he said, that there ought to be special -regulations, especially in regard to the Moray Firth, going far beyond -the three-mile limit; and, like other members of the Government, he -condemned the action of British subjects who, knowing perfectly well -the law, made use of a foreign flag to evade the regulations of the -Moray Firth, which it was obviously the desire of Parliament should -be enforced. But when they came to the question of enforcing the law -on foreign subjects, they were placed in a very difficult position. -The national policy of this country hitherto “had been to uphold the -three-mile limit, but to protest against and to resist by every means -in our power the pretension of any foreign country to enforce its own -jurisdiction on the sea beyond the three-mile limit.” We had contended -before international tribunals, as in the Behring Sea Arbitration, that -the three-mile limit is the only one we can recognise as the limit of -foreign jurisdiction over British vessels; and suppose we attempted to -enforce a doctrine going far beyond the three-mile limit on foreign -ships, how could we contend before an international tribunal for a -doctrine precisely the reverse of that which we have always upheld on -previous occasions? It followed from this that “if there was to be -a modification of the rules relating to trawling in the North Sea, -it must be by agreement with foreign Powers”--that was really the -practical point upon which the matter turned. But in an important -question affecting the interests of the country at large, it was -impossible for the Foreign Office to approach other Powers with the -view of reaching an agreement until it was quite clear that it was in -the interest of a policy which had been adopted, affirmed, and declared -by the Government to be a policy which was in the general national -interest of the United Kingdom. Judging from the very great force with -which the case in such regions as the Moray Firth had been presented, -and the strong feeling that existed and which was not confined to the -Moray Firth, it had always seemed to him that there was a case for -grave consideration as to whether any new regulations were required for -the preservation of the fishing industry in the North Sea at large. -Trawling was a perfectly legitimate industry in which large capital was -invested, and if further restrictions were to be imposed on it, it must -be because a really important national interest required it; it would -not be right to adopt in the interests of particular localities any -special restrictions which might result in diminishing the supply and -raising the price of fish. But, having laid down these two principles, -Sir Edward Grey thought it was equally true that if the supply of fish -from the North Sea is being affected by want of further regulations, -then the interests of any particular industry must be subordinated -to the general interest, which in the long-run was also the interest -of the industry itself. “If it be the case,” he proceeded, “that in -areas like the Moray Firth, which are important breeding-grounds, the -supply of fish is being seriously interfered with by the prosecution -of trawling in narrow waters, then it becomes a matter of national -interest that we should, as soon as possible, come to some agreement -with foreign Powers under which we should be able to make the -arrangements which prove to be necessary in the national interest at -large.” The subject was one requiring the deliberate investigation of -the Government, and the investigation was proceeding; and they should -know in the course of a reasonable time whether or not the Government -thought they had a case for approaching other Powers, and if so what -were the grounds and propositions they should ask those Powers to agree -to. With regard to bays, the Foreign Secretary said it had generally -been understood that the qualification of the three-mile limit applied -to bays ten miles wide, and they must be very careful as to how far -they pressed the doctrine as to the width of a bay, or laid down an -international doctrine on any particular bay. They must think of what -the application of it might be in other parts of the world.[1338] - -In this statesmanlike speech the case was put temperately and fairly. -Whether the Moray Firth is or is not a territorial bay, it has been the -general practice of the British Government to contend for the ordinary -three-mile limit, at least on open coasts, in relation to fishery -questions. If there are clear reasons for the extension of this limit -at any part of the coast, or in the North Sea generally, in the common -interests of the fisheries, as recommended by the Select Committee -of the House of Commons in 1893; or for the prohibition of trawling -within a great area on the Continental coast, as urged by the English -trawlers, and recommended by the Parliamentary Committees of 1900 and -1904; or if it is believed to be necessary to regulate the fisheries in -any way beyond the ordinary limit, then obviously the best method is to -endeavour to come to an arrangement with the other Powers concerned. -There are precedents for this course in British policy. By treaties -with France, the British Government agreed to bind British subjects not -to fish for oysters or any kind of fish within Granville Bay in waters -beyond the ordinary limit. In the interests of the preservation of the -fur-seal, in which the United States was mainly concerned, they agreed -to prohibit British subjects from taking them within a limit of sixty -miles around the Pribilov Islands, and to compel them to observe a -close-time on the high seas, and to use only the primitive spear. They -have also by treaty agreed to respect various other limits beyond the -ordinary three miles in the interest of the preservation of other kinds -of seals. The case of the North Sea, or of that inlet of it known as -the Moray Firth, is on the same footing as these. The question is not -one of the extension of territorial sea _qua_ territorial sea, but of -special regulations independent of it, and exclusively relating to the -fisheries. - -From what has been said in foregoing pages as to the impoverishment of -the fishing-grounds in the North Sea, and the various remedies that -have been at one time or another proposed by the English trawlers and -by Parliamentary Committees with the view of maintaining the fish -supply, it might appear that a very good case already existed for -approaching foreign Powers with the object of arranging for general -regulations beyond the ordinary limit, and one far weightier than that -which brought about the conference at The Hague and the North Sea -Convention in 1882 (see p. 631). - -Two probable reasons may be advanced for the delay in giving effect -to the recommendations of the various Committees of Parliament. The -first is that a very important international investigation of the North -Sea and adjacent waters has been in progress for a number of years -and is still going on. On the invitation of the Swedish Government, -representatives of Great Britain, Germany, Russia, the Netherlands, -Denmark, Sweden, and Norway met at Stockholm in June 1899, and again -at Christiania in May 1901, to discuss and arrange an organisation -and a programme for an international scientific investigation of the -North Sea, the Norwegian Sea, and the Baltic, in the interests of -the fisheries; and in July 1902, the first meeting of the body so -constituted, the International Council for the Exploration of the -Sea, was held at Copenhagen. Since then all the maritime countries of -Western Europe, with the exception of France, have engaged in these -researches.[1339] This country entered into the arrangement with -special reference to the fisheries in the North Sea, and with a very -practical end in view--namely, to secure a careful inquiry into the -effect of the methods of fishing in the North Sea, and to promote a -scheme for determining whether protection against overfishing was -required; and, if so, where, when, and how such protection should be -given.[1340] Much strong criticism has been passed as to the origin, -the methods, and the programme of these investigations,[1341] and while -they have naturally resulted in large additions to our knowledge of the -physical and biological conditions of the sea, of the life-history of -fishes, and of certain fishery questions, no report has yet appeared -dealing with the fundamental problem as to overfishing and any remedies -which may be required to safeguard the fish-supply; and it is doubtless -such information that is referred to by the Foreign Secretary as -essential before Foreign Powers can be approached. An opinion was, -however, early expressed as to the particular question of the Moray -Firth. The Conference held at Christiania in 1901, at which all the -Powers signatory to the North Sea Convention (with the exception of -France) were represented, passed a resolution to the effect that “in -distinct areas of the sea, as for example the Moray Firth, in which -any Government has undertaken scientific experiments in the interest -of the fisheries, and in which the success of the experiments is being -hindered by the operations of trawlers, it is to be desired that -measures be adopted for the removal of such hindrances.”[1342] - -The second probable reason that nothing has yet been done to arrive at -an international understanding appears to be that the representatives -of the great trawling industry have changed their minds within -the last few years. Since foreign coasts have been exploited with -immediate financial success to the trawling companies, their interest -in the North Sea has diminished. They fear that if the question of -fishery regulations beyond the ordinary three-mile limit is opened -up with foreign Powers in the interest of the North Sea fisheries, -proposals may be made, as a _quid pro quo_, by some of the other -Powers for similar regulations on their coasts; and it is evident -from the statements made in Parliament that this view has hitherto -prevailed.[1343] One would have thought that a _quid pro quo_ which -closed to trawling the great area off the Continental coast, which -English trawlers for more than fifteen years have been vainly asking to -be closed by international arrangement, would be satisfactory to them. -Or that a fishery limit of nine or ten miles on the other side of the -North Sea, or all around it, which they thought some years ago to be -the best remedy for the depletion of the fishing-banks, would meet -with their approval. These areas, compared with the whole of the North -Sea, are comparatively of small extent (see fig. 26). The area of the -North Sea between the three-mile line and a nine-mile limit amounts to -about 12,000 square miles, or 7·4 per cent of the whole area beyond -three miles from the shore; and the area between the three-mile line -and a thirteen-mile limit amounts to about 20,000 square miles, or 12·3 -per cent. - -Meanwhile, the condition of the fishing-grounds in the North Sea is -described as serious by those who ought to know most about it--the -trawlers who are daily working there; and if no remedy is timeously -applied, the measures which will eventually be necessary will transcend -those which are now proposed.[1344] - -But if it be imprudent to postpone indefinitely the seeking of an -international remedy for the depleted fisheries of the North Sea, -because the trawling industry fears that retaliatory measures may be -proposed against British trawlers on some foreign coasts, it may be -questioned, on the other hand, whether the action taken to obviate -such measures has always been well-judged or in accordance with the -true comity of nations. On strictly selfish grounds, and for immediate -profit, it is doubtless justifiable to make every fishing-bank, -wherever it is situated, available for the enterprise of British -capital, irrespective of the interests of the inhabitants of the -adjoining coast, if that can be managed. If, indeed, the resources of -the sea were inexhaustible,--if it was impossible for the operations -of man to diminish the abundance of fish,--then no limit of exclusive -fishing would be necessary: only such regulations would be required -as would enable fishing operations to be conducted in an orderly -manner. But the condition of the North Sea alone proves the opposite. -It shows also, what is well enough understood, that unrestrained -trawling on any banks will, in course of time, materially reduce -their productiveness; and the rapidity of the impoverishment will -very largely depend upon the intensity of the fishing and the extent -of the grounds. That being so, it may well be said that a measure of -protection on the banks which are still productive along foreign coasts -would be in the permanent interest of the English trawling industry -itself, as well as in the interest of the coast population.[1345] - -On some of those coasts the local population are dependent on the fish -they catch on the neighbouring grounds, which are often of limited -extent, and it is reasonable and just that they should endeavour to -preserve this supply for their own use and advantage. At Iceland, for -example, the area of the possible fishing-grounds between the ordinary -three-mile limit and a depth of 200 metres (or 109 fathoms), including -places where trawling is not practicable, amounts to about 36,600 -square miles, compared with nearly 312,000 square miles between the -same limits off the British Isles.[1346] It was recently stated in the -House of Lords, by Lord Heneage, that the Icelanders, with the view of -preserving their fishing-grounds, a few years ago brought forward a law -in the _Althing_, or local Parliament, to extend the limit of exclusive -fishing to seven miles around their coast. It was also said that in -1901 they passed laws for enclosing extra-territorial waters. As soon -as these proceedings came to the knowledge of the English trawl-owners, -the National Sea Fisheries Protection Association made a representation -on the subject to the Foreign Office, and in consequence of this the -Danish Government took action, and the law was prevented from coming -into operation.[1347] And any such action in the future was effectually -prevented by the immediate negotiation of an international convention -in which a three-mile limit was fixed for Iceland and Faröe (see p. -647) so far as concerned British fishermen. Then with respect to the -coasts of Spain and Portugal, where the available grounds are narrow, -amounting altogether between the three-mile limit and the 200-metre -line to 15,460 square miles (see fig. 28), intimation has been made -by the British Foreign Office, at the instance of the National Sea -Fisheries Protection Association, that jurisdiction will not be -recognised over British vessels beyond three miles from the shore, -and the national regulations in regard to trawling are thus rendered -comparatively ineffective. With regard to Norway, moreover, where the -area between the three-mile limit and the 200-metre line exceeds 30,000 -square miles, it appears that soon after her separation from Sweden, -in 1905, the British Foreign Office made the proposal that she should -join in the North Sea Convention (which, along with Sweden, she refused -to do in 1882), so that the ordinary three-mile limit might be imposed -along the Norwegian coast; but the proposal was rejected.[1348] - -In view of the evidence that has been adduced, the recommendations -of the various Committees of Parliament that have inquired into the -subject, and the statements made in the House of Commons, it may be -assumed that an international conference of the Powers bordering the -North Sea will be convened, to consider how fishery regulations may be -made more effective, whether by extension of the limits of exclusive -fishery or otherwise, as soon as the results of the international -fishery investigations justify that course. - - - - -APPENDIX A. - -(P. 45.) - -THE LIBEL REGARDING REYNER GRIMBALD. - -DE SUPERIORITATE MARIS ANGLIÆ ET JURE OFFICII ADMIRALLATUS IN EODEM. - -(Chancery Rolls, Miscellaneous. Treaties and Diplomatic. Bundle 14, No. -15, Mem. 12.) - - -A vous Seignurs Auditours Deputez par les Roys Dengleterre et de -Fraunce a redresser les damages faitz as gentz de lour Roialmes et -des autres terres subgiz a lour seignuries par meer et par terre en -temps de pees et de Trewes monstrent les Procureurs[1349] des Prelatz -et Nobles et del Admiral de la meer Dengleterre et des Comunaltes -des Citees et des Villes et des Marchanz Mariners Messagers et -Pillerins et de tous autres[1350] du dit Roialme Dengleterre et -des autres terres subgies a la seignurie du dit Roy Dengleterre et -daillours sicome de la Marine de Genne Cateloigne Espaigne Alemaigne -Selaunde Heylande Frese Denemarch et Norweye et de pluseurs autres -leux del empyre qe come les Roys Dengleterre par raisoun du dit -Roialme du temps dount il na[1351] memoyre du contraire eussent -este[1352] en paisible possession de la souereigne seignurie de la -meer Dengleterre et des Isles esteans en ycele[1353] par ordinance et -establicement des lois estatuz et deffenses darmes et des vesseaux -autrement garniz qe vesseaux de Marchandise et de seurte prendre -et sauuegarde doner en tous cas qe mestier serra et par ordinance -de tous autres faitz necessaires a la garde des pees droiture et -equite entre toute[1354] manere des genz taunt dautri seignurie -come leur propre[1355] par illeqes passanz et[1356] par souereigne -garde et[1357] tote manere de conisance et Justice haute et basse -sur les dites loys estatuz ordinances et deffenses et par tous -autres faitz queux a le gouernement[1358] de souereigne seignurie -appartenir purront es leux auantdiz. Et A. de B. Admiral de la dite -meer deputez par le Roy[1359] Dengleterre et tous les autres Admirals -par meisme celui Roy Dengleterre[1360] et ses Ancestres iadiz Roys -Dengleterre eussent este[1361] en paisible possession de la dite -souereigne garde[1362] oue la conisance et Justice et tous les autres -appurtenances auantdites horspris[1363] en cas dappel et de querele -faite de eux a lour souereignes Roys Dengleterre de deffalte de droit -ou de mauueis iuggement et especialment par empeschement mettre et -Justice faire[1364] seurte prendre de la pees de tote manere des genz -vsanz armes en la dite meer ou menanz Nefs autrement apparaillees ou -garnies qe nappartenoit au[1365] Neef Marchande et en tous autres -pointz en queux homme poet auoir resonable cause de suspecion vers -eux de roberie ou des autres mesfaitz.[1366] Et come les Meistres des -Neefs du dit Roialme Dengleterre en absence des diz Admirals eussent -este en paisible possession de conustre et juggier de tous faitz en la -dite meer entre tote manere des gentz solonc les loys estatus et les -deffenses franchises et Coustumes.[1367] Et come en le primer article -de lalliaunce nadguers faite entre les diz Roys en les traitiz sur la -darraine pees de Paris soient comprises les paroles qe sensuient en -vne cedule anexe ayceste.[1368] Primerement il est traite et acorde -entre nous et les messages et les procureurs desurdiz en nonn des diz -Roys qe yceux Roys serrount lun a lautre desores en auant bons verays -et loiaux amys et eydanz countre tout homme sauue lesglise de Rome en -tiele manere que si ascun ou pluseurs quicunques ils fuissent voloient -deponticer [_sic_] empescher ou troubler les diz Roys es franchises es -libertez priuileges es droiz es droitures ou es custumes de eux et de -lour Roialmes qils serront bons et loiaux amys et aydanz countre tout -homme qi puisse viure et morir a defendre gardir et mainterer[1369] -les franchises les libertez les priuileges les droiz les droitures et -les coustumes desusdites Excepte[1370] le dit Roy Dengleterre Monsieur -Johan Duc de Braban en Brabant et ses heirs dessenduz de lui et de la -fille le Roy[1371] Dengleterre et excepte pur le dit nostre seigneur -le Roy de Fraunce excellent Prince Monsieur Aubert Roy Dalemaigne -[et] ses heirs Roys Dalemaigne et Monsieur Johan Counte de Henau en -Henau. Et que lun ne serra en consail ne en ayde ou lautre perde vie -membre estat ne honur temporel [Mem. 12_d_] Monsieur Reymer Grymbaltz -Meistre de la Nauie du dit Roy de Fraunce qi se dit estre Admiral de -la dite Meer deputez per soun seignur auantdit pur sa guerre countre -les Flamaings apres la dite alliaunce faite et affirmee et[1372] contre -la fourme et la fource de meisme lalliance et lentencion de ceux qi -la firent loffice deladmiralte en la dite Meer Dengleterre[1373] par -commission du Roy[1374] de France torsenousement enprist et usa un an -et plus en parnant les gentz et[1375] marchantz du Roialme Dengleterre -et daillours par la dite meer passanz euesque leur biens[1376] et -les gentz ansi prises liuera a la prison de soun dit Seignur le Roy -de Fraunce et lour biens et[1377] Marchandises a les Receiuours par -meisme celui Roy de Fraunce[1378] a ce[1379] deputez en les Portz de -soun dit Roialme come a lui forfaites et acquises fist amener par -soun iuggement et agard[1380] et la prise et detenue des dites gentz -oue[1381] lour diz biens et marchandises et soun dit iuggement et -agard sur la forfaiture de eaux et acqueste[1382] ait Justice deuant -vous Seignurs Auditours en escript par my lautorite de la[1383] dite -commission sur ladmiralte auantdite par lui ansi vsurpee et par my -vne deffense communement faite par le Roy[1384] Dengleterre par my -soun poer solonc la forme du[1385] tiers article de lalliaunce auant -dite qi contient les paroles desouzescriptes en requerant que de ce -il en fuisse quitz et assouz en grant damage et preiudice du dit Roy -Dengleterre et des Prelatz et Nobles et autres desusnomez par quoy -les diz procureurs en les nouns de lour diz Seignurs[1386] Auditours -auantdiz prient que deliuerance dewe et hastiue des dites gentz ouesqe -leur biens et marchandises ansi prises et detenues facez estre faite -al Admiral du dit Roy Dengleterre a qi la conisance de ce appartient -de droit sicome desus est dit ansi qe[1387] sans destorbance de vous -et dautri[1388] puisse de ce conustre et faire ce qe appartient a -soun office auant dit et qe le dit Monsieur Reyner soit condampne et -destreint affaire dewe satisfaction a tous les diz damagez si auant -come etc.[1389] Item vous requirent les diz procureurs que come solone -les anxnienes[1390] loys franchises et coustumes du Roialme Dengleterre -a la garde des queles vostre dit seignur le Roy et ses auncestres Roys -Dengleterre soloient estre liez par lour sermentz Lour Admirals de la -Meer Dengleterre oue[1391] les Maistres et Mariners nefs[1392] des -Portz de la Marine Dengleterre esteans en les[1393] armees des diz -Admirals ne deuoient[1394] respondre deuant nuls Justices des Roys -auantdiz[1395] sur fais en la Meer susdite durans lours[1396] guerres -countre lour enemis et le dit Admiral vostre dit seignur le Roy et -plusours des Maistres et Mariners des Portz auantdiz ore esteans en sa -Armee countre les[1397] enemis Descoce et lour aydans et alliez par -expres mandement de vostre dit seignur le Roy soiient accusez deuant -vous par gentz de Normandie et de Bretaigne et daillours sur ascuns -faitz en la dite Meer en temps de trewes et puis la pees afferme entre -les diz Roys Dengleterre et de Fraunce et auant la guerre comencee -entre eaux a ce qest dit. Vous plaise surseer es proces countre eux ia -comencee et deporter de comencer nouel durant la guerre susdite ansi -qils naient mestier de se[1398] complaindre a vostre dit seignur et as -Prelatz et Nobles de soun dit Roialme par leur serment liez a les dites -loys franchises et coustumes garder et maintenir. - - - - -APPENDIX B. - -(P. 49.) - - PROCEEDINGS BEFORE THE AUDITORS DEPUTED BY THE KINGS OF ENGLAND AND - FRANCE FOR THE REDRESS OF THE GRIEVANCES BETWEEN THE SUBJECTS OF THE - TWO COUNTRIES. 27-33, Edw. I. - -(Abstract of Chancery Miscellaneous Roll. Bdle. 5, No. 6.) - - -RICHARD BUSH _against_ REYNER GR MAUS. - -LIBEL (_Libellus_). - -Richard Bush of London complains that a ship called “la Blacog̃” of -London, going from Winchelsea to Dieppe in August 1301, containing -goods to the value of £157, was attacked by Michel de Navere and -others of Calais, and his said goods taken thither and there disposed -of by said Michel and Henry de Ganewe. Said Richard demands restoration -of goods and £20 damages. - - -DENIAL (_Contestatio negativa_). - -The said “Cheual̃” asserts that he was not in that country at the time -specified, nor for nearly a year afterwards. - - -REJOINDER (_Repplicatio_). - -To the answer of the “chevalier” that he was not admiral till some time -after the events specified, the attorneys of said Richard reply that -they will advise with their master as to the truth. - -William Bush of London loaded a ship called “la Mariote de Seland” at -Antwerp for London with goods to the value of £175, 17s. 8d. Michel de -Nauere and others of Calais came with three galleys to the foreland of -Thanet at the mouth of the Thames in May 1298; took said ship to Calais -and there disposed of the goods by the aid of Henri de Ganewe. Said -William demands restoration and £20 damages. - -To the demand of William Bush the said John[1399] replies “en la -maniere q̃ il fait a la demande Cecile,”[1400] that it does not concern -him, but “mos̃ Henri et Michel de Nauare.” - -Said William further complains that he loaded a ship called “la Blithe” -of London in Brabant for London with goods, value £40. John Pederogh -seized them at the mouth of the Thames in July 1303, took them to -Calais, and there disposed of them by the aid of Edward de Mabusshon. -William demands restoration and £8 damages.[1401] - -Said John replies that at the time specified he was not on the sea at -all but in Paris or on the road to Calais. - - -THOMAS CROS _against_ JOHN PAYDRO. - - -LIBEL. - -Thomas Cros of London, executor of the will of Thos. Cros his father, -who was executor of Henry Box of London, complains that said Henry -loaded the ships William le fiz Henri, Godefroi de Duffle, Michel de -Middelborgh, Johan Athelard, Johan le Chaundeler in London, to go to -Brabant (which ships were of Brabant) with goods value £672; Michel de -Nauuere and others of Calais with three galleys seized said ships off -the foreland of Thanet in May 1298, took the goods aforesaid from said -ships and in their galleys to Calais, and there disposed of them by the -aid of Henry de Genewe. Said Thomas Cros demands restoration and £100 -damages. - - -EXCEPTION REQUIRING DELAY (_Excepc̃o dilatoria_). - -The said John says it is not for him to reply, as the complaint -concerns not him but mos̃ Henri de Genes and Michel de Nauare, who are -abroad where they cannot be had. - -“Watier le Hert de Mallins” and Rose de Salisbery of London loaded at -London a ship called the Johan Azelard de Mallins with goods value -£28, 19s. 2d. Michel de Nauare and others of Calais with three galleys -seized said goods out of said ship, then anchored off the foreland of -Thanet (May 1298), took them in their galleys to Calais, and disposed -of them by the aid of mons̃. Henri de Genewe. Said Watier and Rose -demand restoration and £6 damages. - -Cecile atte More of London loaded at London for Brabant the ships -William Petersone of Seland, William Henriessone of Seland, Johan le -Chandeler, with goods value £158, 19s. Michel de Nauere and others of -Calais in May 1298 seized said goods out of said ships (then anchored -off Thanet) and disposed of them at Calais by the aid of Henri de -Genewe. Cecile claims restoration and £20 damages. - -Cecile atte More complains that in July 1303 Johan Pederogh and others -seized goods of the said Cecile at the mouth of the Thames out of a -ship called “la Blithe de Londres” coming from Brabant, and disposed -of them at Calais by the aid of mos̃ Edward de Mabusshon: value £10. -Cecile prays restoration and 40s. damages. - -Said John replies that at the date specified he was at Paris or on the -road to Calais, and not on the sea at all. - -Thomas atte Hurst of London loaded at Berwick the “Distaf de Haneford” -for London, with goods to the value of £11, 18s. 8d. They were seized -by men from Calais off Blakeney on the Tuesday after Saint Bartholomew -1303,[1402] and disposed of at Calais. Thomas prays restoration and -damages. - -The said John [_sic_] says that the above demand concerns “mi sire -Reniers de Grimaus” only, for he was then admiral, and said John was on -shore at the date specified. Said John was only in the company of said -Reniers “en Sellande et en Horlande.” - -To the demand of Thos. atte Hurst touching goods seized from the -“Distaf de Haneforde” by Johan Peidroge, Clay Clinkhamer, Piers Hues, -and others in 1302 [_sic_], the said “Oudart” [_sic_] replies as he did -to the claim of Alayn de Thorndon. [_See below._] - -Aleyn de Thornden, burgess of “Lenn,” loaded a ship in Scotland -belonging to Nichol de Caith̃ with goods value £133 for Brabant,--mons̃ -Odard de Maubusshon, Johan Peidrgroge, Johan de la B..ge.lour, “soen -frere Lani yacop” Gusse Odin, Johan le parker, vaaseur le Mariner, -Hirnolet le Man and Petre le Puttere, in August 1304 seized the ship -off Kirkele, killed the crew, and disposed of ship and goods at Calais. -Aleyn demands restoration and damages, value in all £143. - -The said John replies that he and others named in above plaint at the -date specified were in Holland and Zeeland. “Car le iour de la Seint -Laurence[1403] il se combatieront en Selande as Flamens as Baion̄ois et -as Engleis qi estoient en lour aide.” - -William Quineberge, burgess of Lynn, loaded his own ship, the -“Nicholas,” at Lynn for Scotland with goods, value £35, 15s. 8d.--Odard -de Maubusshon, Johan Perdroge, Johan Huard, Gusse Odin, Simond Danyn, -Johan Allestein, Clay Clinchamer, Vaaseur le Mariner, Johan Paye, and -Petre le Pottere in August 1303 plundered the ship off Scarborough, -killed a mariner, and disposed of the goods at Calais. William demands -restoration and £10 damages. - -Adam Honson of Gloucester loaded the ship of “Williame de Douere” at -Antwerp for England with goods, value £220. Odard de Maubusshon and -Johan Peidroge of Calais, in September 1303, plundered said ship in -sight of Dover, “et illoeques la Nief deliuereront al auant dit William -de Douere” [_sic_]. Adam demands restoration and £60 damages. - -Johan de Hetheye, William le Scherman, Rich. le Goldsmith, Johan le -Blunt, Will. de Nesse, Johan Gode, and Wauter Top loaded the ship of -William Gare called “Michele de Arwe” in London with goods, value £556, -3s. 8d., for Brabant. - -Sire Reyner Grimbaud, admiral, on the high seas, the Sunday after -Michaelmas 1303,[1404] seized said ship and goods and took them “a Roem -en Normandie”; sent the crew to Calais, where some were put in prison, -and one still remains. Plaintiffs demand restoration and £100 damages. - -To the complaint touching “la Michele de Arwe,” seized on the Sunday -after Michaelmas 1304 [_sic_], the “chiualer” confesses he took such a -ship in that year but not of the value named: “ains fu prise la dite -Nief a la Suyne a la pointe du Jour oue poer des enemys as Ancres.” -He seized it rightfully, the said ship consorting with the enemies of -France. The crew were taken, without force, and letters were found in -the ship to those of Bruges concerning money to be received in that -town; those put in prison all escaped except Johan de Masworth, who is -still there. The “chiualer” deems both persons and goods forfeit to the -King of France. - -To the demand of John de Masworth for restoration of goods and liberty, -the “chiualer” says he is in prison as a malefactor against the King of -France, and that the commission of the deputies does not extend to such -cases. - - -ADAM DE FULHAM _against_ JOHN PAYDROGE. - - -LIBEL. - -Adam de Fulham of London complains that in the year 1302 men of Calais -attacked the “Margarete de Jernemuth” off Orfordenessh going to London, -killed the crew, and took the ship and goods to the value of £20 to -Calais and there disposed of them. Demands restoration and damages. - -DENIAL. - -To the demand made by Adam de Fulham against said John and others -touching violence done to him between “le Seint Martin et le -Chaundeler” in 1302, said John replies as he did to Johan de Chelchethe. - - -EXEMPTION REQUIRING DELAY. - -To another demand of said Adam, said John replies as he did to William -Seruat. - - -JOHN DE CHELCHETE _against_ REYNER DE GRYMAUS. - - -LIBEL. - -John de Chelchethe of London complains that in 1302 John Padrogh -and others of Calais attacked the “Margarete de Jernemuth” off -Orfordenessh, killed the crew, and took ship and goods to Calais. -Demands restoration and damages, value in all £39, 5s. 8d. - -EXEMPTION REQUIRING DELAY. - -Said John Padrogh replies as he did to William Seruat. - - -EDMUND LAMBY ... _against_ JOHN PAYDROGE. - -LIBEL. - -Said Edmund complains as others have done concerning the “Margaret of -Yarmouth.” His goods therein were of the value of £12. - - -GILBERT DE ASSHENDON _against_ JOHN PAYDROGE. - - -LIBEL. - -Said Gilbert de Asshendon of London complains that the “Distaf de -Haneford” loaded at Berwick for London was taken off Blakeney in 1303 -(Tuesday after St Bartholomew). Demands restoration and damages, value -in all £8, 10s. 4d. - - -DENIAL. - -Said John replies that at the date specified he was on dry land at -Calais. - -To this demand against Johan Peidroge, Clay Clinkhanner, Piers Hues, -Stace Swares, and Johan Huares, Oudart replies as he did to Alein de -Thornden. - - - - -APPENDIX C. - -(P. 65.) - -LICENSE FOR FISHING AT THE “ZOWE” BANK IN THE CHANNEL. - -(State Papers, Domestic. James I., Vol. 81, No. 3. 1615.) - - -Robert, Baron of Brancepeth, Viscount Rochester, Earle of Somersett, -Lord Chamberlaine of his Ma^{te} householde, knyght of the most noble -order of the Garter, and one of his Ma^{te} most honorable privie -Counsell, provisionally deputed for the government of the Cinque -Portes. To all to whom theis presentes shall come, Greeting, Knowe -ye that I, according to the auntient ordinances and rules hertofore -established and lately revived for the preservacon of the fishing -betwixt the subiectes of the Easterne coast of the kingdome of great -Britayne and the frenche Fishermen accoastinge those partes, Haue by -theis presentes licensed and authorised Reynold Howgatt of the Towne -of Treporte, Fisherman, M^r of one Fisherboate called the Don de Dieu -of about fourteen tonnes, with all her Company and servants of the -same Boate, To Fishe at the place called the Sowe upon the English -coast and elsewhere upon that coast, in the same sorte as any one of -those five boates heertofore tollerated and privileged out of respect -for the service of the Frenche king his excellent Ma^{tie}, for all -sortes of Fishe without restrainte of season, soe the same be done and -performed with nettes and engines lawfull and accustomed by the English -subiectes of that coast. Requiring you and every of you whom it shall -concerne not onely to permit and suffer him and his sayd servantes soe -to doe without any your unnecessary lett or impeachement. But alsoe to -yeilde him and his company all lawfull favor and assistance therein as -they shall have occasion, bearinge themselves orderly and peaceably -and observing the rules and ordinances sett downe and established for -that coast fishing as aforesaid under the penalties therein expressed -and conteyned. This license is to endure but untill the first daie of -August w^{ch} shalbe in the yeare of our Lord God 1616. - -Geven under the Seale of Office at Douer Castle the sixt daie of July -in the thirteenth yeare of the reigne of our Souereigne Lord, James, -by the grace of God of Great Britaine, Frannce, and Ireland, king, -Defender of the fayth, &c. - - (Sd.) R. SOMERSET. - - A la nominac̃on du Mouns^r Villares Houden gouern^r du Chatiau et - ville de Diep et suit du Roy de Fraunce. - - - - -APPENDIX D. - -(P. 119.) - -PROCLAMATION FOR REUOCATION OF MARINERS FROM FORREINE SERUICES. - - (A Booke of Proclamations, published since the beginning of his - Majesties most happy Reigne ouer England, &c., Vntill this present - Moneth of Febr. 3, Anno Dom. 1609 [1602-1612].) - - -Whereas within this short time since the Peace concluded betweene vs -and the King of Spaine and the Archdukes our good brothers, it hath -appeared unto vs that many Mariners and Seafearing men of this Realme -hauing gotten a custome and habite in the time of the Warre to make -profite by Spoile, doe leaue their ordinary and honest vocation and -Trading in Merchantly Voyages, whereby they might both reape conuenient -maintenance, and be seruiceable to their Countrey, And doe betake -themselues to the seruice of diuers forreine States, vnder the title of -men of Warre, to haue thereby occasion to continue their vnlawful and -vngodly course of liuing by spoile vsing the seruice of those Princes -but for colour and pretext, but in effect making themselues commonly no -better then Pirats to robbe both our owne Subiects their Countreymen, -and the subiects of other Princes our neighbours, going in their honest -Trade of Merchandize: By which courses they doe impeach the quiet -traffique of Nations one with other, leaue our Realme vnfurnished of -men of their sort, if we should haue cause to vse them, and inure -themselues to an impious disposition of liuing by rapine and euill -meanes, although by reason of the Uniuersall peace wherein wee are at -this present with all Christian Princes and States, they may haue a -more plentifull employment in an orderly and lawfull Nauigation, then -at any time of late yeeres they could haue had: We haue thought it -necessary in time to preuent the spreading of such a corruption amongst -our Subiects of that sort and calling, whereby our Nation will be so -much slandered, and our Realme so greatly disaduantaged. Wherefore -we doe will and command all Masters of ships, Pilots, Mariners, and -all other sort of Seafearing men, who now are in the Martiall seruice -of any forreine States, that they doe presently returne home into -their owne Countrey, and leaue all such forreine Seruices, and betake -themselues to their vocation in the lawfull course of Merchandize, -and other orderly Nauigation, upon such paines and punishments as by -the Lawes of our Realme may be inflicted upon them, if after this -declaration of our pleasure, they shall not obey. And we doe also vpon -the same paines straitly charge and command al our Subiects of that -profession, that none of them shall from hencefoorth take Letters of -Marke or Reprisall, nor serue vnder any that hath such Letters of -Marke or Reprisall from any forreine Prince or State whatsoeuer, Nor -otherwise employ themselues in any warlike Seruices of any forraine -State vpon the Sea, without speciall License obtained from our selfe, -or from our high Admirall, as they will answer the contrary at their -perils. - -And forasmuch as although we are in Peace with all Christian Princes -and States, yet during the continuance of the Warre betweene the King -of Spain and the Archdukes on the one side, and the vnited Prouinces -of the Low-Countreys on the other side, many chances may happen, as -some already haue happened, of difficult interpretation to our Officers -and Subiects how to behaue themselues in such cases, vnlesse they be -explained vnto them: We haue thought it conuenient to make an open -declaration how our said Officers and Subiects shall demeane themselues -towards the Subiects aswell of the King of Spaine and Archdukes, as -also of the States vnited in the cases following. - -First our pleasure is, That within our Portes, Hauens, Rodes, Creekes, -or other places of our Dominion, or so neere to any of our sayd Ports -or Hauens, as may be reasonably construed to bee within that Title, -Limit, or Precinct, there shall be no force, violence, surprise, or -offence suffered to be done either from Man of warre to Man of warre, -or Man of warre to Merchant, or Merchant to Merchant of either party, -but that all of what Nation soeuer, so long as they shall bee within -those our Ports and places of our Jurisdiction, or where our Officers -may prohibite violence, shall bee vnderstood to be under our protection -to bee ordered by course of Justice, and be at peace each with other. - -And whereas some of the Men of warre of ech side haue vsed of late, -and it is like will vse in time to come, though not to come within -our Ports, because there they know wee can restraine violence, yet to -houer and hang about the skirts of our Ports, somewhat to Seaboard, but -yet so neere our coastes and the entrie of our Harbours, as in reason -is to be construed to be within the extent of the same, and there to -await the Merchant of the aduerse part, and doe seaze and take them at -their going out of our Ports, which is all one in a manner, as if they -tooke them within our Port, and will bee no lesse hinderance to the -trade of Merchants: Our pleasure therefore and commaundement is to all -our Officers and Subiects by Sea and Land, That they shall prohibite, -as much as in them lyeth, all such houering of Men of warre of either -side, so neere the entrie of any of our Hauens or our Coastes, And that -they shall rescue and succour all Merchants, and others that shall fall -within the danger of any such as shall await our Coastes in so neere -places to the hinderance of Trade and Traffique outward and homeward -from and to our Kingdomes. And for the better instructions of our -Officers in the execution of these two Articles, Wee haue caused to be -sent to them plats of those Limits, within which we are resolued that -these Orders shalbe obserued. - -And where it hath happened, and is like to doe often, that a Ship of -warre of the one side may come into some of our Ports, where there -shall bee a Merchant of the other side: In such case, for the benefit -and preseruation of the lawfull Trade of Merchants, Our pleasure is, -That all Merchants Ships, if they will require it, shall bee suffered -to depart out of the sayd Port, two or three tydes before the Man of -warre, to the intent that the Merchant may bee free from the pursuite -of his aduersary. And if it so happen, that any Ship or Ships of warre -of the one side, doe finde any Ship or Ships of warre of the other side -in any our Ports or Roades aforesayd; Like as our pleasure is that -during their abode there, all violence be forborne: So doe wee likewise -commaunde our sayd Officers and Subiects both on Sea and Land, That the -Ship of warre which came in first, bee suffered to depart a Tyde or two -before the other which came in last, And that for so long time they -shall stay and detaine any Ship of warre, that would offer to pursue -another out of any our Ports immediately. - -And where [_sic_] wee are infourmed, that notwithstanding the seueritie -of our Lawes against receiuers of Pirats goods, many of our Officers -of our Ports and other inhabitants within and neere vnto them, doe -receiue dayly Goods brought in from Sea by such as are indeed Pirats, -if they, and the getting of their Goods were well examined: We doe -hereby admonish them all, to auoyd the receiuing or buying of any Goods -from Sea, coming not into the Realme by lawfull course of Merchandise, -for that they shall finde, wee are resolued so to preuent all occasion -and encouragement of Pirats to bee vsed by any our Subiects as wee will -cause our Lawes to bee fully executed according to their true meaning, -both against the Pirats, and all Receuiers and Abetters of them, and -their Goods. - - Giuen at Thetford the first day of March, in the - second yeere of our Reigne of Great Britaine, - France and Ireland. - - Anno Dom. 1604. - - - - -APPENDIX E. - -(P. 120.) - -DECLARATION OF JURY OF THE TRINITY HOUSE AS TO THE LIMITS OF THE KING’S -CHAMBERS. - -(State Papers, Domestic. James I., Vol. 13, No. 11. 1605.) - - A note of y^e Headlandes of England as they beare one from another - agreeing with the plott of y^e Description of y^e Countrye as - followeth. - - -From Holy Iland to the Sowter is South South east. From the Sowter to -Whitby is Southeast. From Whitby to Flamborough head is Southeast, -and half a point Southerly. From Flamborough head to the Sporne is -Southeast easterlie. From the Sporne to Cromar is Southeast, and by -East. From Cromar to Wynterton nes is Southeast and by South. From -Wynterton nes to Caster nes is South South east. From Casternes to -Layestof is South. From Layestof to East nes is South, and half a point -to the Westward. From Eastness to Orforthnes is South and by West. -From Orforth nes to the North foreland is South, and one third of a -point to the Westward. From the Northforland to the Southforeland is -South. From the Southforeland to Dungnes is Southwest and one fourth -part of a point to y^e Southwards. From Dungnes to Beache is West -Southwest, and one fourth part of a poynt to the Southwards. From -Beache to Dune noze is West Southwest, and three quarters of a point -to the Westwards. From Dune noze to Portland is West and by South -Southerly. From Portland to the Start is West Southwest and one fifth -part of a point to the Westwards. From the Start to the Ramme is West, -and one fourth part of a point to the Northwards. From the Ramme to -the Dudman is West Southwest, and one sixt part of a point to the -Westwards. From the Dudman to the Lizard is West Southwest, and one -third part of a point to the Southwards. From the Lizard to Lands end -is West Northwest Northerly. From Lands end to Milford is North and -two third parts of a point to the Eastwards. From Milford to S. Dauids -head is North and half a point to the Westwards. From S. Dauids head to -Beardsie, is North and by East, and one eight part of a point to the -Eastwards. From Beardsie to Holly head is North, and one sixt part of a -poynt to the Westwards. From Holly head to the Ile of Man is North and -by East, and one fifth part of a point to the Northwards. - - * * * * * - -Wee whose names are heerevnder written being called before the right -worshipfull Sir Julius Cesar, Knight, Judge of the Kings Majesties -Highe Court of Admiraltie, and there impanelled, and sworne vpon -a Jurie to sett downe the bounds, and lymits, howfarre the Kings -Chambers, Hauens, or Ports on the Sea coasts doe extend; Do heereby -certifie, and sett downe (according to our best knowledge, and -vnderstanding) that his Highnes said chambers, Hauens, or Ports are all -the Seacoasts within a straight lyne drawne from one head land to the -next head land throughout this realme of England. And for the better -vnderstanding thereof haue made a plott of the same, and haue therevnto -prefixed this our Schedule, shewing how euerie head-land doth beare -vpon a right lyne the one from the other according to the said Plott. -Dated the 4. of March A^o. D^i. 1604 [1604/5] And in the second yeare -of the reigne of our Souueraigne Lord King James, &c. - - (Signed) Thomas Milton. - William Bygate. - John Burrell. - William Jones. - Peter Hilles. - Michael Edmondes. - James Woodcolt. - Thomas Beast. - William Juye. - John Skynner. - John Wyldes. - Henry Hauken. - William Cace. - - - - -APPENDIX F. - -(P. 148.) - -PROCLAMATION OF JAMES I. FOR THE RESTRAINT OF FOREIGNERS FISHING ON THE -BRITISH COASTS. - -(A Booke of Proclamations, &c. 1609 [1602-1612].) - - -James by the Grace of God King of Great Britaine, France and Ireland, -Defender of the Faith, &c. To all and singular persons to whom it -may appertaine, Greeting. Although we doe sufficiently know by our -experience in the Office of Regall dignitie (in which by the fauour -of Almighty God, we haue bene placed and exercised these many yeres) -as also by the obseruation which wee haue made of other Christian -Princes exemplary Actions, how farre the absolutenesse of Soueraigne -power extendeth it selfe, And that in regard thereof we need not yeeld -accompt to any person under God, for any action of ours, which is -lawfully grounded upon that iust prerogatiue: Yet such hath euer bene, -and shalbe our care and desire to give satisfaction to our neighbour -Princes, and friends, in any Action which may haue the least relation -to their Subiects and Estates, as we haue thought good (by way of -friendly premonition) to declare unto them all, and to whom soeuer it -may appertaine, as followeth. - -Whereas wee haue bene contented since our comming to the Crowne, to -tolerate an indifferent and promiscuous kinde of libertie to all our -friends whatsoeuer, to fish within our streames, and vpon any of our -coasts of Great Britaine, Ireland, and other adiacent Islands, so -farre foorth as the permission or vse thereof might not redound to the -empeachment of our Prerogatiue Royall, nor to the hurt and damage of -our louing Subiects, whose preseruation and flourishing estate we hold -our selfe principally bound to aduance before all worldly respects: -So finding that our conniuence therein, hath not onely giuen occasion -of ouer great encrochments vpon our Regalities, or rather questioning -for our Right, but hath bene a meanes of much dayly wrongs to our owne -people that exercise the trade of Fishing as (either by the multitude -of Strangers, which doe preoccupy those places, or by the iniuries -which they receiue most cõmonly at their hands) our Subiects are -constrained to abandon their Fishing, or at the least are become so -discouraged in the same, as they hold it better for them, to betake -themselues to some other course of liuing, whereby not onely diuers of -our Coast-townes are much decayed, but the number of Mariners dayly -diminished, which is a matter of great consequence to our Estate, -considering how much the strength thereof consisteth in the power -of Shipping, and vse of Nauigation: We haue thought it now both iust -and necessary (in respect that wee are now by Gods fauour lineally -and lawfully possessed, aswell of the Island of Great Britaine, as -of Ireland, and the rest of the Isles adiacent) to bethinke our -selues of good lawfull meanes to preuent those inconueniences, and -many others depending vpon the same. In the consideration whereof, -as we are desirous that the world may take notice, that we haue no -intention to deny our neighbors and Allies, those fruits and benefits -of Peace and friendship, which may be iustly expected at our hands -in honour and reason, or are affoorded by other Princes mutually in -the point of Commerce, and exchange of those things which may not -prooue preiudiciall to them: So because some such conuenient order may -be taken in this matter, as may sufficiently prouide for all these -important considerations which doe depend thereupon; Wee haue resolued -first to give notice to all the world, That our expresse pleasure -is, that from the beginning of the Moneth of August next comming, no -person of what Nation or qualitie soeuer, being not our naturall borne -Subiect, be permitted to fish vpon any of our Coasts and Seas of Great -Britaine, Ireland, and the rest of the Isles adiacent, where most -usually heretofore any fishing hath bene, untill they haue orderly -demanded and obtained licenses from vs, or such our Commissioners, as -we haue authorised in that behalfe, viz. at London for our Realmes of -England and Ireland, and at Edenborough for our Realme of Scotland: -Which Licenses, our intention is, shall be yeerely demanded, for so -many Vessels and ships, and the Tonnage thereof, as shall intend to -fish for that whole yeere, or any part thereof, vpon any of our Coastes -and Seas as aforesaid, vpon paine of such chastisement, as shalbe fit -to bee inflicted vpon such wilfull offendors. - - Giuen at our Palace of Westminster, the 6. day - of May, in the 7. Yeere of our Reigne of - Great Britaine, &c. - - Anno Dom. 1609. - - - - -APPENDIX G. - -(Pp. 169, 196.) - - INSTRUCTIONS BY THE PRIVY COUNCIL OF SCOTLAND FOR THE LEVYING OF THE - “ASSIZE-HERRINGS” FROM FOREIGN FISHERMEN. - -(Register of the Privy Council of Scotland, vol. xi. p. 592.) - - -Instructionis givin be the Lordis of Secreit Counsall to Mr Johnne -Fentoun, his Majesteis commissionar, who is directit to demand his -Majesteis rent of assyse and teynd frome these of Holland, Zeland, -Hambruch, Ambden, Rustock, and all utheris strangeris haunting the -trade of fisching in his Majesteis seas during this present yeir. - -In the first, yow sall prepair your selff and mak you reddie in goode -and comelie ordour and equippage and with all possibill haist to go -in his Majesteis schip callit _The Charles_, quhairof David Murray -is capitane and commander, towardis the North Seas of this Kingdome, -quhair the Hollanderis and utheris strangeris hes thair fisching: And -at your arryveall thair yow salbe cairfull to inquyre and informe -yourselff of the names of the admirallis and vice-admirallis attending -the flott, and of the names of thair schippis, of quhat townes and -provinceis they ar, and quhat nomber of wauchteris and buscheis is sent -oute be every towne, province and estate to attend thair fischeing. - -Yow sall be vertew of your commissioun, and attending to the tennour -thairof, demand frome the saidis admirallis, and, incaice of thair -absence, frome the vice-admirallis, and frome tua or thrie of the -waughteris and busches of every estate, his Majesteis rent of assyse -and teynd specifeit and contenit in your commissioun for the haill -fischeis tane and slayne be thame in his Majesteis watteris and seas -this yeir. And yow sall use this requisitoun and demand in fair and -gentill termes and with modestie and discretioun. - -Yf thay contravert with yow anent the quantitie of this dewytie, yow -sall not dispute that poynt with thame, bot, if they mak offer of -ane smaller dewytie, althoght it wer bot ane angell for every busche -overhead, yow sall accept of thair offer. - -Yf thay sall mak offer of the fische outher for the teynd or assyse, -yow sall accept of thame, and, gif yow find ony countrey vessellis or -boittis thair, yow sall send for thame and putt the fische in thame. - -Yf they gif unto yow a delaying answer and crave tyme and laiser to -send to thair superiouris to be advyseit with thame, yow sall accompt -of thair delay as ane refuisall, and accordinglie accept sua of it. - -Yf it be objectit unto yow that all the busches ar not of a lyke -burdeyne, and that consequentlie they aucht not to pay a lyke dewytie -for assise and teynd, yow sall in this caise gif defalcatioun to the -smaller busches according to your discretioun and be the aduyse of the -admirallis, gif thay will concur with yow in that erand; provydeing -alwayes that the smallest dewytie to be taine be yow for every busche -be not within ane angell. - -Yf the admirallis or vice-admirallis for every toun, estate, or -province will aggrie with yow for the haill busches under thair charge, -yow sall aggrie with thame and gif unto them acquittanceis in name of -the haill that thay tak burdeyne for; bot, yf thay remitt yow to deale -with every busche apairt, yow sall do the same and gif acquettanceis -accordinglie. - -Yf refuisall salbe maid unto yow of his Majesties rent and dewytie, -yow sall tak instrumentis upoun the said refuisall without forder -contestatioun; and, gif obedience be givin and payment accordinglie -maid, yow sall lykwayse take instrumentis thairupoun. - -Yow sall informe the saidis admirallis, and, incaice of thair absence, -the saidis vice-admirallis, of the complaint maid to his Majesteis -Counsall be his Majesteis subjectis of Zetland anent the greit -oppressioun committit upoun thame be divers personis of the floitt who -comes aschoir upoun thair illis of Halff Grunay, Wedderholme, South -Grunay, and Lungya, and upoun divers utheris pairtis of the countrey, -quhair thay not only enter in kirkis, dimolischeis and brekis doun the -daskis and seattis within the same and schamefullie abuses the same, -to the offence and dishonour of God, bot with that thay spoyle the -countrey people of thair scheip, geis, hennis, eggs, and suche uther -commoditeyis as they find upoun the ground, and sumtymes invaidis and -persewis thame of thair lyveis; and thairfoir yow sall crave redres and -reparatioun to be made for thir wrangis and that the lyke be forborne -in all tyme coming. - - - - -APPENDIX H. - -(P. 251.) - -REGLEMENT FOR PREVENTING ABUSES IN AND ABOUT THE NARROW SEAS AND PORTS. - -(State Papers, Domestic. “James I., Vol. 11, No. 40. 1604.” Charles I., -Vol. 279, No. 18. 1634.) - - -His most Excellent Ma^{ty} taking into his Royall Consideration, upon -the frequent Complaints, as well of his own Subjects, as the Subjects -of other Princes and States in Peace and Amitie with his Ma^{ty}. That -his Seas (commonly called the four English Seas) are more infested now -a days then heretofore, by men of Warre and such others, who living by -spoile haunt those Seas, with ships and vessels of strength warlikely -appointed to gett prey and booties, whereby not only his Ma^{tye’s} -own Subjects and the Subjects of his friends suffer manifold losses, -violences and Injuryes in their persons, ships and goods, but also -divers strange Insolencyes indignityes and contempts are committed, -tending indirectly and by consequence to the denyall and impeachment -of that Soveraignety and especiall and peculiar Interest and property, -w^{ch} his Ma^{ty} and his Predecessors time out of mind have had and -enjoyed in the said Seas, and soe approved not only by the fundamentall -Lawes of this his Kingdome, but by the acknowledgement and assent of -the bordering Princes and Nations, as appeareth by undoubted Records. -His Ma^{ty} out of his Princely wisedome and providence (with the -Advice of his Privy Councell) hath thought it most necessary, as well -for vindicating his own honour and right in the said Seas, as in point -of Justice for securing the passage of his Subjects and friends to -and frõ his harbours and Ports, and all other Ports [? parts] of his -Dominions, to make this open declaration ensuing. - -1. That notwithstanding the continuance of y^e war between the K. of -Spaine on the one side, and the United Provinces of the Low Countryes -on the other side, his Ma^{ty} doth streightly prohibite any force, -violence, surprize, or offense to be done or attempted either frõ Man -of Warre to man of Warre, or man of Warre to Merchant, or Merchant to -Merchant of either Party within the limits w^{ch} his Ma^{ty} will -cause to be described in a Plott for that purpose, but that all of -what Nation soever soe long as they shall be upon those places or Seas -aforesaid, especially within such limits, shall be understood to be -under his Ma^{tyes} Protection, and obliged to be at Peace each with -other. - -2. Because it appeareth that an especiall occasion of the mutuall -spoiles and acts of hostility executed by the said men of Warre each -upon other and sometimes upon his Ma^{tyes} own Subjects, or the -Subjects of other Nations w^{ch} are in Amity with the Soveraignes -of the Spoilers, ariseth from the opportunity w^{ch} the said Men -of Warre have by continuing and abiding in havens, Sea-shoares or -Sea-Roades and other harbours of his Ma^{tyes} Kingdomes, whence they -gett intelligence of ships and vessels outward and hitherward bound, -and accordingly assayle them, where it is most for their advantage, to -the great hindrance and interruption of free Commerce and Entercourse, -His Ma^{tyes} Will and Pleasure is, That, for the reasons aforesaid, -noe shipps of Warre, belonging either to the K. of Spaine, or any his -Subjects, or to the said United Provinces, or any of their Subjects -shall be permitted or allowed to come, enter, repaire, or arrive in or -to any of his Ma^{tyes} Towns, Citties, Sea-Shores, Havens, Harbours, -or Sea roades, whatsoever, or there to abide and continue, except they -happen to be constrained either by force of Tempest, or buying of -Victualls, or other things, or for repairing of shipping, so that they -doe no hostile act in the said Places, but demeane themselves honestly -and quietly as it becometh Confederates and friends, and so as they -stay and remaine not in and about the said Ports any longer then shall -be needfull for reparation, and Provision of necessaryes. - -3. Albeit his Ma^{ty} doth justly challenge Soveraignety and property -in all those his Seas farre beyond the limits hereafter to be described -and might with like Justice require from all persons using those his -seas a forbearance frõ Injuryes and all hostile actions, yet (in and -through all the same) sodenly to tye the hands of his friends and -Allyes in open hostility each with other is not for some reasons held -convenient at this time. And therefore to avoyde all difficultyes and -Colour of Controversies that may be stirred concerning the bounds and -extent wherein his Ma^{ty} now professeth to yeild Peace and Security -to his friends and neighbours, desiring the same, his Ma^{ty} purposeth -to send Plotts of those limits to be affixed in the most publique -places of his chiefest Sea-Towns and harbours. - -4. Because it is very like, that during the continuance of the Warre -betweene the K. of Spaine, and the United Provinces as is aforesaid, -each Party may gaine and acquire frõ other in places out of the -aforesaid Limitts, ships, and goods, His Ma^{ty} doth declare, That -as he will afford to the conquering Partyes, free passage through his -Seas for themselves, their ships and prizes, and like free accesse and -repaire to all his Ports and harbours, and safe aboad and continuance -in the same during their occasions, so his Ma^{ty} shall not understand -it to be any breach of his Peace, or violation of that Security w^{ch} -he intendeth to mainteine, if the enemyes of the conquering Party -shall reconquer or regaine the said Prizes, before the conquering -Party shall have brought his said Prizes within any of his Ma^{tyes} -harbours, or when after they shall have departed with the said Prizes -homewards, or elsewhere from the said harbours, the right of Warre and -Law of Nations giving like allowance to either of the said hostile -actions, Provided always, that his Ma^{ty} doth not mean hereby to -derogate from the Jurisdiction of his Court of Admiralty, but if -any action (in forme of Law) shall be lawfully instituted and duly -presented in the Admirall Court ag^t the said Prizes and the Takers -thereof, his Ma^{ty} will cause Justice to be administred in that -behalfe with all possible expedition. - -5. Whereas mention is often made in the premisses of his Ma^{tyes} -Protection within the aforesaid bounds and limits, his Ma^{ty} is now -pleased further to expresse his Intention and meaning to that effect, -viz. That he shall readyly give his Letters of Safe Conduct under the -Great Seale of his Admiralty to any the Subjects of the Princes or -States in league and Amity with his Ma^{ty} desiring the same from the -Lords Commiss^{rs} of the Admiralty, to whom his Ma^{ty} will referre -the Consideration and allowance of such Petitions, the said Letters of -Safe Conduct to be conceived in the best forme. And if any man of Warre -or other Person whatsoever shall assault or use any violence to any -ship or vessell, or the persons therein, within the limits aforesaid -his Ma^{ty} will hold such offender being lawfully convicted thereof -for a Pirate, and will cause his Officers to inflict such punishment -thereupon, as in Cases of Piracy is usuall, if the said offenders can -be apprehended within any his Ma^{tyes} Countrey or Dominions, or -any other, or any other ships or goods belonging to them, To w^{ch} -purpose his Ma^{ty} will cause notice to be given from the Court of his -Admiralty to all his Officers in Ports and Vice-Admiralls and Captaines -of his Forts and ships, But if all this notwithstanding, the said -offenders cannot be attached or apprehended, then the Party wronged, -upon sufficient testimonyes to be recorded in the Court of Admiralty -may take out of the said Court Processe, conteining a Monition for the -said pretended offenders, to appeare in the Court of Admiralty within -4 moneths next after the date of the said Processe, there to answer -for the pretended wrong or violence, the said Processes to be affixed -openly in some eminent place of the Royall Exchange, London. And if -the said offenders shall not render their bodyes to Justice, then upon -faith made, that the said Processe was duly taken out, and the next -day after the date thereof was publiquely affixed as is aforesaid, his -Ma^{ty} will by his Letters of Request under his Privy Seale to the -Soveraignes of the said offenders, or otherwise, pursue such further -proceedings ag^t the said offenders, as is agreeable to the Custome -amongst Sovereigne States and Princes and the Law of Nations in like -Cases. - - - - -APPENDIX I. - -(P. 289.) - - REPORT OF THE ADMIRALTY TO CHARLES I. AS TO THE EMPLOYMENT OF THE - SHIP-MONEY FLEET IN WAFTING AND SECURING FOREIGN MERCHANTS PASSING - THROUGH HIS MAJESTY’S SEAS, AND IN PROTECTING FOREIGN FISHERMEN WHO - ACCEPT THE KING’S LICENSE. - -(State Papers, Domestic. Charles I., Vol. 313, No. 24.) - - - It may Please your Ma^{ty}, - -According to your Majesty’s commandment, wee, your Commissioners for -ye Admiralty have mett and consulted on those two pointes which you -were pleased to recommend to our consideration, touching the imploying -of your fleete for yo^r Honor and Proffit. The one for the wafting and -securing of Merchants that pass through yo^r Majesty’s seas. The other -for protecting all such fishermen in generall as shall exercise that -trade by your Majesty’s license upon yo^r seas and coastes. - -The first of these that fell into debate was that concerning the -fishing, and by S^r Henry Martin it was made evident vnto vs that y^r -Ma^{ts} father of blessed memory in ... yeere of his Raigne, was, -vpon long and mature deliberacion, satisfied and resolved, that the -fishing in his Seas, and upon the coasts of his Dominions, did justly -appertain unto him as a right incident to his Crownes, and that in -pursuance thereof, he did then sett out his Royall Proclamation, -thereby declaring his title, as allso his pleasure, that no stranger of -what quality soever should presume to fish there without his expresse -license, and so was graciously pleased in the said Proclamation to -appoint, that for the Coastes of England and Ireland licenses should be -given in London, and for those of Scotland in Edenborough. - -And howsoever S^r Henry Martin did allso make it appear unto us that -the States of the Vnited Provinces did at that time sende Commissioners -into England who presented to his Majesty a paper contayning -allegations by w^{ch} they did entend to prove continued custom and a -present possession of that fishing, mentioning w^{t}all som treaties -that had bene heretofore betwene the Kinges of Englande and the Dukes -of Burgundy in fauor of that their fishing, yet upon the whole matter, -and after due deliberation, wee were all of opinion and are so still, -that the Right and Royallty of that fishing upon yo^r Ma^{ts} Coastes -doth undoubtedly belong unto yo^r Majesty by inheritance, so you may -iustly prohibit or license all strangers at yo^r Royall will and -pleasure. - -This being laid for the ground, wee proceeded (according to your -Majesty’s directions) to the consideration of what was now fitting -to be advised unto yo^r Majesty vpon this present occasion of yo^r -strength at sea, and are all of opinion, that this season is most -propper again not only to set on foote, but to putt in execucion that -yo^r Majesty’s so iust clayme, so as then there only remayned our -consultation _de modo_. - -In this wee are now much guided by that which yo^r Majesty yo^r selfe -was pleased to declare unto us concerning the protecting of all such -fishers as shall take yo^r license. For it is most certain that the -Hollanders will by no meanes be so much induced (be the right what -it will) as by consideracions of their owne proffitt and safety. Wee -therefore thought itt (and do most humbly offer it to yo^r Majesty as -our opinion) that vnto the Minister or Ministers of the States residing -here, it may be intimated and declared, that yo^r Majesty doth no way -relinquish that iust right and clayme of inheritance to the Royall -fishings, so divolved unto you from yo^r Royall Predecessors, but are -resolved to defende it as the hereditary right and possession of any -other yo^r Dominions. Yet least they should think you do now challenge -it in a tyme that they have most neede of yo^r favor and grace, it may -be tolde them, that it is farr otherwise, for whereas yo^r Majesty’s -father did barely offer them licenses, you do now offer them safety and -protection w^{t}all, and that w^{ch} further moved you to do it, in -this season, is, that by a third Prince, they are of late interrupted -and beaten from that fishing even in sight of yo^r Majesty’s harbours; -wherein yo^r Majesty is prejudiced in honor and Interest, and they in -Proffit. - -That it is not vnknown to the States how much their enemies are -resolved to interrupt that their fishing, as holding it a most certain -way and meanes both to weaken and impoverish them. - -That by taking licenses from yo^r Majesty you may justify the drawing -yo^r sword in their defence, and likewise for the maintenance of -the said licenses against any notwithstanding any league or treaty -whatsoever, w^{ch} without that obligation might seeme a breach of that -neutrality w^{ch} hitherto yo^r Ma^{ty} hath preserved in yo^r selfe. - -And lastly wee tooke into consideration that in case the Hollanders -shall willfully refuse to take those licenses upon so gracious and -fauorable conditions from yo^r Majesty then we were all cleere of -opinion, that yo^r M. should renew and publish the like proclamation -to that of the King yo^r father, and prosecute the settling of that -yo^r right as a thing so highly concerning you in honor, dominion and -profit. And so we do humbly conclude this point, with advice, that all -such licenses as shalbe granted, be rated according to the tonne or -burden of the vessells, so to be licensed. - -Touching that of the Wafting of Merchants strangers shippes that shall -passe through yo^r Majesty’s seas, we are cleere of opinion that yo^r -M. ought to have a profit by it, seeing that they are thereby preserved -from oppression and ruine. But we are not of opinion that this profit -should arise by way of a generall Imposition vpon all that passe: for -that wold, doubtlesse, draw a iust complaint and clamor from yo^r -neighbour Princes and their subjects. But that it should be taken of -such as shall desire waftage, w^{ch} yo^r M. may direct not to be -denyed to any of what Christian nacion soever that shall demande it, -not being men-of-warre. - -And because it wilbe a difficult matter to expresse in any Commission -or Instructions a certain somme or duety to be taken of every ship so -wafted, for that som shippes are rich, others of lesse value; som will -require a short waftage, others a longer. Therefore we are of opinion, -that for the value, much is to be left to the discretion of yo^r -Majesty’s Generall and commanders, and that som honest hable men may -be employed to keepe bookes, and to receave the moneyes of all those -waftings w^{ch} shall occurr, and be accomptable and answerable for the -same. [5 Feb. 1635/1636 Copy by Windebank.] - - - - -APPENDIX K. - -(P. 389.) - -ABSTRACT OF THE THIRTY-SIX ARTICLES PROPOSED BY: THE DUTCH TO ST JOHN -AT THE HAGUE, 1651. - -State Papers. Foreign. Treaty Papers (Holland), No. 46. 1651. - - A Briefe Narrative of the Treatie at the Hague betweene the hono^{ble} - Oliver S^t John, Lord Chiefe Justice of the Court of Com̃on Pleas, and - Walter Strickland Esq. Embassado^{rs} extraordinary of the Parliament - of the Com̃onwealth of England, to the great Assembly of the States - Generall of the United Provinces begun upon the 20th of March 1650 - [1651] and continued vntill the 20th of June 1651 and then broke of re - infecta. - - -A Drafte of the Treatie which is to be made and entred into with the -extraordinary Ambassado^{rs} of the Republique of England. - - -2. - -[Sidenote: Confederated ffr^{ds} for defence &c. & against -Dystourb^{rs} &c.] - -That they shalbe, and remayne confederated friends, vnited, and allyed -for the defence, and preservation of the Libertye and freedomes of each -others people, and mutuall Com̃erce Navigacion,and Com̃on Interests -against all those that shall endeavour to disturbe either of the States -in the same by water or land in manner as is herevnder declared and -expressed. - - -17. - -[Sidenote: Libertie to dwell in each oth^{rs} lands & to enjoy equall -p^{r}ivil^{ges} w^{th} the Natiues &c.] - -The subiects, and Inhabitants on both sydes may com̃e, and dwell in -each others lands reciprocallye, and take their setled residence there, -have their owne houses there to dwell in, and their Warehouses for to -bring their goods, wares, and Merchandizes thither, and also vse their -trade, and com̃erce there in all securitye, and without hinderance of -any one as well at sea, other waters, as at land, enioyeing there, and -every where else, the same, privilidges, Libertie, and freedome, as -the Inhabitants, and each others subiects doe respectively enioy there -in their own Country, and in case any hinderances happen they shall -really, and speedilye be removed. - - -18. - -[Sidenote: Free libertie of Fishing &c.] - -The subiects, and Inhabitants of either, of what qualitie, or condition -soever they be, may sayle, and fish every where at sea freely, -without any disturbance Licence, Patent, or Passe port, as well -herring, as all other sorte of fish, great and small, and the sayd -Fishermen being driven out of the sea by storme, Rovers, Enemyes, or -any other accident, and coming in, or to any of the other Havens, or -Jurisdictions shalbe well, and freindly receaved, and entreated, and -may depart thence againe with their ships, fish, furniture for fishing, -and other laedings, (in such case, and not haveing broak bulke there,) -freely without payeing custome, or any the least duty. - - -19. - -[Sidenote: No harboring of Pyrates &c.] - -[Sidenote: Rouers & Coceal^{rs} to be punish^d & y^e ships & goods -restored &c.] - -For to make the free Navigation, and com̃erce, on the seas, Rivers, and -every where more certeyne, the said Republicke, and Vnited Provinces, -shall not receave, nor suffer, or permitt that any Pyrats, or Searovers, -be receaved, kept, or harboured by their subiects, in their respective -Havens, Lands, Cittyes, or Townes but shall cause as well the said -cencealo^{rs}, as Rovers, to be persequuted, apprehended, and punished, -for terrou^r to others as is fitt, and the roved ships, goods, -Merchandises yet in Esse, and in being, yea though they were there -sould, shalbe restored, or made good to the right owners, or to such as -have their Assignm^{ts}, or Lett^{rs} of Attorney, who doe sue for, and -reclayme the said roved ships, and goods, vpon a iuratory affirmation -of the reclaymer till better proofe. - - -20. - -[Sidenote: Sufficient securitie by those who goe out vpon particul^r -com̃issions.] - -All perticuler persons on either syde, that goe out upon perticular -Com̄issions, shalbe bound before they may goe to sea, to put in -sufficient securitie before the Judge of the place from whence he setts -saile. - - -21. - -[Sidenote: Both to set out Fleets for scouring the Seas &c.] - -And to cleare the seas from all Pyrats, and Rovers, of what nation -soever they bee, and to defend, and free the Libertie, and freedome -of both the Nations Com̃erce, Navigation, and Freefishing as well in -the North sea, Ocean, as Mediterranean sea, and all channells, and -Streights ruñing betweene ’em; the sayd Republicke of England and the -Vnited Netherlands shall provide and añually set out to sea a strong -fleete at least of ... [_sic_] Vessells, and the like proportion -of men, munition of warr, Victualls, and all necessary furniture, -wherewith each vnder his owne Admirall, and flagg, shall crosse, and -scoure the said seas, to witt those of England from ... vntill ... and -those of the Lowe countryes from ... till ... beginning the first of -... and stayeing till the last of ... and shalbe bound to seaze on, and -master all Pyrats that they shall meete with, the ships of either of -the nations by them taken to restore to the true owners, and if it be -needfull, and requisite to helpe, and seacond each other, each to keepe -his taken bootye, or prises for himselfe, and so to cleare, and free -the said seas, and channell, or straights from all Pyrats and searovers. - - -22. - -[Sidenote: Each parties Fleetes to force to Reparacion hinders of y^e -Com̄erce navigcion Fish^g &c.] - -And for the further defence and advancem^t of the freedome, and -Libertie of both the said Nations Com̃erce, Navigation, and -freefishinge in the sayd seas, the sayd fleets and alsoe other men -of warr, and com̃ission bearers on either syde, shall not only doe -against Pyrats in manner aforesayd, but alsoe against all, and singuler -persons, whatsoever they be that shall chance to trouble, molest, hinder, -exacte, or against the Lawe of all nations burthen, or charge them, -or either of them in the sayd freedome, Com̃erce, Navigation, and -fishing. It is intended neverthelesse that the dampnifyed partie shall -first, and aforehand complayne of the same to the undampnifyed partie, -and endeavo^r together by all freindly waies, and intercession, that -they who molested them doe make reparation to content, But if it be not -so done, that then they shall seaze, take, and surprize in the said -seas, not onlie with the said Fleete, but alsoe with all the strength -of shipping which they can bring to sea the ships, and goods of the -Cittie, and of her inhabitants, who have done the said trouble and -so continewe vntill that the dampnifyed partye shall have gott full -satisfaction, and every thing be putt agayne in full Freedome, that all -dam̃age may be recovered, in case they chance to goe beyond or exceed -their com̃ission, and charge. - - -23. - -[Sidenote: Men of warr to protect y^e Merh^{ts} ships of each party or of -y^e Allies &c.] - -The men of warr of either partye meeting or overtakeing any Marchant -shipp, or ships at sea, of the other partie, or of the others subiects, -or of the Allyes (alsoe comprehended in this Treatye) and haveing both -one course, or goeing both one way shalbe bound so longe as they keepe -one course togeather to take them vnder their protection, and to defend -them against all, and everyone. - - -24. - -[Sidenote: Retaking of ships taken in one anoth^{rs} Havens.] - -In case any shipp, or ships of eithers subiects, or of a Newter chance -to be taken in the Havens, or Libertyes of the one or the other by a -third partie, being no subiects of either partie, they in or out of -whose Havens, or Libertyes the said ship, or ships shall be taken, -shalbe bound to help with the other party, to endeavo^r that the sayd -taken ship, or ships may be followed, brought back, and restored to the -Owners, but all at the charges of the said Owners, or interessed. - - -25. - -[Sidenote: Ships forced into Haven through any Misfortune may depart -againe freely w^{th}out paying any Dutie &c.] - -In case any Marchants ships of the subiects of either partye chance -to com̃e to harbour in the Land of one or the other by tempest, or -by pursuite of Searovers, or through any other necessitye, force, or -misfortune, they may sayle out agayne from thence freely at their -pleasure, without that they shall therefore be bound to goe on shoare, -vnlade, or sell their Merchandizes there, nor to paye for the same any -duties, or customes, it shall in such cases be enough if they shew -their Maritine lett^{rs} and Passe ports without being subiect to any -other search. - - -26. - -[Sidenote: None to come into each oth^{rs} Havens w^{th} men of warr to -a Number w^{ch} might cause suspition &c. w^{th}out Leaue &c.] - -They may not come to, or in, nor stay in the Havens of each others -Country with men of warr, and souldiers, to a number which might cause -apparent suspition, or ill thoughts, without consent, or leave of those -vnder whome the said Havens are, vnlesse they be driven by tempest, or -forced to doe soe through necessitye, and to avoyd any dangers of the -sea. - - -27. - -[Sidenote: Oth^r men of warre to come & goe freely &c.] - -For the men of warr of either syde, not being in soe great a number to -cause any suspition, the Havens, rivers, and roades of either party, -shall be alwayes open and free for to come in, there lye at Ancher, and -sayle out agayne without any hinderance, or trouble; the sayd men of -warr regulating themselves neverthelesse according to the lawes, and -customes of the respective places. - - -28. - -[Sidenote: Men of warre not to be searcht onely com̄ing into Hauens to -shew their Com̄iss^{ns}.] - -Provided neverthelesse that none of the men of Warr, or such as have -Com̃ission on either syde, shalbe subiect to any search, or visitation -there, or on the respective coasts, or alsoe in the full sea, further -then only to shew each others Com̄issions, com̄eing into their -respective Havens, and not otherwise. - - -29. - -[Sidenote: Like libertie touch^g Prizes &c.] - -All perticular Com̄ission bearers on either side, shall likewise enioy -the same freedome, in respect of their owne ships, as alsoe of the -prises which they shall have taken from their particular on the com̄on -Enemy, for to bring the said prises to the place where they are bound -according to their Com̄ission, which they shalbe bound to informe, or -make knowne to the Officers of the place, or to paie any dutye vnto -them, or any else there, they shalbe neverthelesse bound to shew their -respective Com̄issions to the sayd Officers. - - -30. - -[Sidenote: Goods of eith^r p^{ty} found in Enemies ships to be prize as -well as y^e ships.] - -The goods, wares, and merchandizes of the subiects, and inhabitants of -either partie, laeden, and found in Enemyes ships shalbe vnfree, and -prise as well as y^e ships. - - -31. - -[Sidenote: No Assistance to Enem^s or Rebels by Cōtrab^{da} wares &c.] - -[Sidenote: What serues for victuall or mainten^{a}nce of Life to be -free &c.] - -It is alsoe expressly agreed, that the parties Contracto^{rs} shall -not give, nor suffer that out of their respective Countries, by their -subiects, or other Newters any assistance be done to their respective -enemies, or rebells, of any Contrabanda wares, or Marchandises, as are -all manner of fyreworks, and what else belongs therevnto, as Cannon, -Musketts, Morterpieces Petards, Guns, Granadoes, Sawsiges, ..., [?,] -Rests, Bandeliers, Powder Match, Saltpeter, Bullets; all sortes of -armes, as Pykes, swordes, Headpieces, Cuirasses, Holberds, and such -lyke; as also souldiers Horses, horse furniture, Pistoll cases, -Rapiers, Belts, and all furniture, fashioned, and made for vse of warr, -with expresse meaning that vnder the name of Contraband, or forbidden -goods, there shall not be comprehended wheat, Corne, and other grayne, -Pease, Beanes, Wheat [_sic_: Meat?], Salt, Wyne, Oyle, nor generally -all that serves for food, and maintenance of lyfe, but shalbe free, -as other goods above mentioned, And any of the said Contraband goods, -being found in each others ships, they may be confiscated after -knowledge of the case before a competent Judge, without troubling any -other Wares, or goods. - - -32. - -[Sidenote: No carying of anie Portug^{ll} goods &c. vpon Penaltie of -Losse of y^e ships &c.] - -It is further bespoake, that the subiects, and inhabitants of either -side, may not transporte, or carry any Portingall goods, wares, or -Merchandises out of America, Asia, or Affrica, or into, or out of -Europe, or one parte thereof to another, nor vice versâ from Europe to -America, Asia, or Affrica, nor from one part of them to another, upon -penaltye of losse of the same ships. - - -33. - -[Sidenote: Ships cast away If claym^d w^{th}in a yeare & a Day to be -w^{th} y^e goods restored to the Own^{er}s w^{th}out suite.] - -If any ships either for warr, or marchandise, or other of either -partye by storme, or any other misfortune, chance to be stranded, or -cast away on the coast of either country, the said ships with their -Apparell, and all therein may be reclaymed, and brought back againe -within the space of a yeare, and a day, by the right owners or there -Assignes, or deputies, and shalbe restored againe to them without any -forme of suite onlye payeing for the charges done about ’em, and a -reasonable gratuitye or salvage money, and in case upon such, and the -like accidents, subiects of either side chance to fall to question, the -officers of the respective places shall be bound to doe good, and right -Justice betweene the partyes, without deteyning them by any formalitye -of processe. - - - - -APPENDIX L. - -(P. 398.) - - TROMP’S MEMORANDUM TO THE STATES OF HOLLAND AS TO THE CUSTOM OF - STRIKING THE FLAG TO THE ENGLISH. 27th FEBRUARY/9th MARCH 1651. - -(Aitzema, _Saken van Staet en Oorlogh, in, ende omtrent de Vereenigde -Nederlanden_, Vol. iii. p. 731.) - - -Wanneer deses Staets Schepen van Oorloge in Zee quamen te ontmoeten -een Engelsch Koninghs Schip, op-hebbende de Vlagge als Admirael, -Vice-Admirael ofte Schout bij nacht; dat deses Staets-Schepen hare -Admiraels Vlagge ende Mars-zeylen streecken en schoten negen, seven -of vijf Eer-schoten (daer op de Engelsche antwoordede met gelijcke -Eer-schoten) en lieten de Vlagge gestreken hangen tot sij van -malkanderen scheyden, met het schieten van drie of een Adieu-schoot; -en weynigh van den anderen zijnde, setten de Staetsche de Vlagge -wederom op. Doch voor particuliere Konings Schepen streken geen -Vlagge, alleen salueerden malkanderen met eenige Eer-schooten. Maer -is verscheyden-malen geschiet, dat particuliere Schepen van weynigh -geweldt zijnde, oock naer de Vlagge van Staetsche hebben geschoten, -uyt hooghmoet, willende hebben dat men soude strijcken: daer meesten -tijdt op is gevolgt, dat de Staetsche wederom na haer hebben geschoten -en haer tanden laten sien, en geen macht hebbende de Staetsche daer -toe te dwingen, moesten met uytlacchen haer Kours gaen; doch is bij -haer en die van desen Staet veel tijdts gesien op de meeste macht, en -dan discretie gebruyckt. Binnen haer Havenen ende Casteelen komende, -salueerden de Casteelen met Eer-schoten (die oock wederom antwoorden) -en namen de Vlagge in, en lieten in plaets een Wimpel waijen, soo lange -die van desen Staet binnen haer Havenen lagen, in sonderheydt wanneer -eenige Konings Schepen daer waren die de Konings Vlagge lieten waeijen. -Doch geen Konings Schepen zijnde, is ’t verscheyde-malen gebeurt, dat -de Gouverneurs van de Casteelen een Expressen aen boort stuyrden uyt -courtosie, en gaven consent, dat de Staetsche haer Admiraels Vlagge -souden opsetten en laten waijen: mits wederom uyt-zeylende ende de -Casteelen passerende, de Vlagge streecken en lieten hanghen, totdat men -met Eer-schooten haer hadde gesalueert, en sij gheantwoordt; dan wierde -wederom de Staetsche Vlagge op geset. - - - - -APPENDIX M. - -(P. 404.) - -CORRESPONDENCE BETWEEN TROMP AND BLAKE. - - (De Zee Betwist. Geschiedenis der Onderhandelingen over de - Zeeheerschappij tusschen de Engelsche Republiek en de Vereenigde - Provinciën vóór den eersten Zee-Oorlog. Dr M. C. Tideman.) - - - MONS^R, - - Le 19/29 du Mois passé nous entrerencontrans en mer mon invention - [_sic_: intention?] estoit de vous saluer, mais me voyant attacquée - de la sorte, et n’ayant peu scavoir la vostre puisque devant ny apres - ladite rencontre je n’ay parlé a personne des vostres ne doubtant - toutesfois nullemant (selon que m’a tesmoigné Mons^r. le Commandeur - Born, par les responses qu’il a faictes et données a celuy que je luy - envoyois pour luy communiquer mon ordre et sincere Intention) que ne - soions amis et bons alliez, fus contraint, comme un homme d’honneur, - tant seulement de me defendere, mais d’autant que aujourdhuy, estant a - lancre devant Calais on ma rapporté, qu’un de nos Navires le Capiteyne - Tuynemans de Middelbourg auroit este emmené a vostre Rade aux d’unes, - lequel je croiois estre coulé en fond, comme celuy seul qu’il nous - defailloit. C’est pourquoi je vous supplie en toute amitie que ce - soit votre plasir, que ledit navire nous soit rendu et mis en main du - porteur de ceste, en forme qu’il a este prins, et me promets, que la - bonne alliance et union entre Messeigneurs les Estats de Vostre et de - nostre Republycque, nostre Religion et mutuelle amitié fera, que ne - voudres le refuser, Sur quoy me tiendray obligé de demeurer, comme - veritablement je suis, - - Monsieur, - - Vostre Tres humble Serviteur, - (Signé) M. HARP^{TS}. TROMP. - - En notre navire _Le Brederode_ le 2^e Junij - 1652 a la Rade de Calais. - -The superscription was:-- - - A Monsieur, - - Monsieur N. N. Blake, Collonel et Admirael au Service de Messeigneurs - les Estats de la Republicque d’Angleterre, ou en son absence au - Commandant a present aux d’unes. - -Gardiner (Letters and Papers, 257) gives Blake’s reply “retranslated -from the Dutch translation.” The original, which was appended to -Tromp’s letter to the States-General, is given by Tideman, as follows, -from _Lias Admiraliteit_: Bijvoegsel bij Tromps brief aan H. Ho. Mo. -uit Ostende d. d. 10 Juni 1652. - - S^r, - - Y^r Letter of the second of June 1652 stilo novo, brought by yo^r - Messenger, was read by mee not without much wonder that you stiling - yo^r selfe a person off honor should insert therin toe great mistakes - after yo^r seeking out the ffleet of the Parliament of the Comonwealth - of England instead of performing those usuall respects which off - right belong unto them and which yo^r selve have often done, you - were pleased to beginn acts off hostility which you call yo^r owne - defence against the commonwealth, without the least provocation on - the part of their servants thus assaulted by you, and at a time when - yo^r Superiours, and their Ambassadors with the Parlyament were in - a Treaty and desire of friendshipp with the Comonwealth of England, - but that God in whome wee trust, having defeated your purposes of our - destruction and some off yo^r ships taken, you thincke fitt to demaund - the same off us as if yo^r former accord had been as you call it but a - salutation and when that fayled, you would second yo^r high affronts - by yo^r paper to which I doe not thincke fitt to returne any other - Answere, But that I presume you will find the Parlyament sensible of - these greate Iniuries and of the Losse off the innocent bloud of their - Countrymen, And you will find likewise ready to obey their comandts, - - Yo^r humble Servant, - ROB: BLAKE. - - DOWNES, _29th May 1652_. - - - - -APPENDIX N. - -(P. 461.) - -CONCESSION TO BRUGES TO FISH IN THE BRITISH SEAS.[1405] - -(State Papers--King’s Letter Book, 1664-1670. Foreign Entry Book. Vol. -174, p. 119.) - - -Carolvs &c. Omnibus ad quos præsentes literæ pervenerint vel ullo -modo spectaverint salutem. Cum in virtutum albo longè Princeps -audiat liberalitas, quippe quæ non tantùm beneficia sed ipsam etiam -benevolentiam et humanitatem secum comites trahat, Hinc est, quod -Nobilissimæ et antiquissimæ civitatis Brugensis summis erga Nos -meritis coacti quodammodo, animique Nostri ductum secuti [sicuti], -tum maximè accepti hospitij memores, in hoc unum ferimur [feremur] -ut priorum prementes Vestigia grati in eam animi non leve argumentum -posteris quoquo modo traderemus; Et sanè affectu tam [tum] singulari -non tantùm Sacerdotum, Consulum, Senatorum, et summus ille Nobilium -ordo, sed universa passim Urbs et Nos et fratres Nostros iniquitate -rerum hospites olim factos fovit semper et propensior indies accepit, -ut animo Nostro altius infixa recens adhuc amoris tantó hæreat memoria, -eaque jure quodam hæreditario ad Successores Nostros deferenda, ne -posteris Nostris tantæ benignitatis ingrata tandem obrepat oblivio, -Regnis utique [utque] Nostris ejecti benigniori hospitio in tantum -recreari cœpimus, ut iniquam [inquam] fortunæ invidiam æquiori animo -tulisse videremur, eo saltem nomine non passuri [possum] unquam ut -ad priorem statum reduces ingratorum notâ laboremus. Vellemus quidem -eâdem alacritate quâ prædicta Civitas Brugensis (Celeberrimum quondam -Emporium tum magnificentiâ, amplitudine et fulgore præ cæteris clarum) -benevolentiæ et benignitatis fidem coluit, gratum animum testari, & -Civitati de Nobis tam bene meritæ pristinam gloriam et splendorem -illæsum prorsus, et [est] integrum præstare. Quâ de causâ à Viro -Nobis præcipuè dilecto Marco Alberto Dognati Equite [d’Ognati Equiti] -Aurato, Regisque Catholici ad renovandam Belgij Dignitatem Commissario, -rebusque Nostris singulari curâ intento à charissimo consanguineo -Nostro (et) Illustrissimo Marchione [Marchioni] de Castel-Rodrigo -Belgij et Burgundiæ Gubernatore de Commercij libertate hoc tempore -faciendâ misso [misse] tum literas, tum Monochroma Novi Opificij, -Portus, usque ad Oceanum Ductus [ductos] nuper elaborati et in capacem -Navigationis formam redacti, grato animo accepimus; Lætique benignitate -pristinâ, Regiam aliquam prærogativam quæ non [non non] ingrate -spondeat, in predictam civitatem Brugensem conferre meditamur, plenâ -potestate & authoritate Nostrâ Regiâ plenè, liberè sponte, ac motu -proprio dantes & concedentes sicuti [sicut] per præsentes pro Nobis, -Hæredibus et Successoribus Nostris damus et concedimus, ut prædicta -civitas Brugensis quocunque demum impedimento obstante Quinquaginta -Naves piscatorias in Mare Nostrum in futurum possit deducere, nec non -juxta Regnorum Nostrorum Oras et Littora liberè ac secure piscaturam -exercere, tum etiam Haleces [Halices] piscesque alios quoscunque -captare. Licebit porrò prædictæ Urbis Civibus ad Portus Nostros Littora -et flumina cum prædictis Navibus appellere, retia siccanda [seccanda] -et resarcienda in terram exponere, periculis hostium tempestatumque -sese subducere, necessaria tum ad victum tum ad alia quæcunque in -oppidis alijsque locis Regnorum Nostrorum justo pretio coemere, -nullâque aliâ ad hoc speciali facultate aut salvi [salvus] conductûs -literis habitis aut petitis inde redire liberèque [libere] recedere ita -tamen ut dictæ Civitatis Brugensis Magistratûs literis, præsentium -vigore sub sigillo ejus exhibendis, instructi veniant; caveant interim -prædictarum Navium piscatoriarum proprietarij, fide prius datâ apud -dictum Magistratum per sponsores idoneos, ne per ipsos piscatores, -Nautas, aliosvè ad pisces derehendos substitutos, ad loca Nobis et -Regnis Nostris inimica hujusmodi onus subrehi sinant [hujusmodi oras -sinant et] aut permittant. Volumus igitur et per præsentes decernimus, -ut prædicta piscandi libertas juxta numerum Navium supramemoratarum -præfatis Urbis Brugensis Civibus solva [sola] semper et integra maneat, -et in perpetuum per Nos ac Hæredes et Successores Nostros stabilita -continuetur. Nèque quisquam subditorum Nostrorum, cujuscunque statûs, -authoritatis, gradûs seu conditionis, huic [hujus] Nostræ liberæ et -spontaneæ concessioni [concessionis] gratiæ, favori et privilegio, -quoquo modo contravenito. Mandamus igitur et injungimus Fratri Nostro -Charissimo Ducé Eboracensi Magno Nostro Angliæ Admiralio [Admirallo] -Nec non omnibus et singulis Regnorum Nostrorum Thalassiarchis, -Navium Bellicarum capitaneis et Ductoribus Provinciarum, Urbium, -Arciumque maritimarum Præfectis et eorum Vicem gerentibus, Judicibus, -Officialibus, et alijs quibuscunque Ministris Nostris et juris -Administratoribus, &c., ut prædictis piscatoribus in quācunque maris -parte vel juxta littora, flumina, Portusve Nostros obviam facti, non -modo illis injuriam non inferant, sed eós etiam amicè et benevolè -excipiant, ac ubi opus fuerit, ijs opem ferant ijsdemque liberum -accessum et recessum reditumque in patriam unà cum Navibus, piscibus, -cæterisque bonis suis, nullo facto impedimento seu contradictione -quâcunque præstent et permittant. In quorum omnium majorem fidem [fidem -majorem] præsentibus hisce manu Nostrâ Regiâ signatis [signatas] Magnum -Nostrum Angliæ Sigillum appendi fecimus. Dabantur, &c., Julij 1666 -[_sic_]. - - - - -APPENDIX O. - -(P. 692.) - -TERRITORIAL WATERS. - - The articles adopted by the Institut de Droit International at Paris - in 1894, and accepted with slight modifications by the International - Law Association at London in 1895. [_Note._--The additions to and - alterations of the Rules adopted at Paris, which were made at London, - are indicated by italic type.] - - - L’INSTITUT, - - Considérant qu’il n’y a pas de raison pour confondre en une seule zône - la distance nécessaire pour l’exercice de la souveraineté et pour la - protection de la pêche littorale et celle qui l’est pour garantir la - neutralité des non-belligérants en temps de guerre; - - Que la distance la plus ordinairement adoptée de trois milles de la - laisse de basse marée a été reconnue insuffisante pour la protection - de la pêche littorale; - - Que cette distance ne correspond pas non plus à la portée réelle des - canons placés sur la côte; - - a adopté les dispositions suivantes: - - ARTICLE PREMIER.--L’État a un droit de souveraineté sur une zône de la - mer qui baigne la côte, sauf le droit de passage inoffensif réservé à - l’article 5. - - Cette zône porte le nom de mer territoriale. - - ART. 2.--La mer territoriale s’étend à six milles marins (60 au degré - de latitude) de la laisse de basse marée _ou de la ligne de laquelle - il est parlé dans l’article 3_, sur toute l’étendue des côtes. - - ART. 3.--Pour les baies, la mer territoriale suit les sinuosités de la - côte, sauf qu’elle est mesurée à partir d’une ligne droite tirée en - travers de la baie dans la partie la plus rapprochée de l’ouverture - vers la mer, où l’écart entre les deux côtes de la baie est de _dix_ - milles marins de largeur, à moins qu’un usage continu et séculaire - n’ait consacré une largeur plus grande. - - ART. 4.--En cas de guerre, l’État riverain neutre a le droit de fixer, - par la déclaration de neutralité ou par notification spéciale, sa zône - neutre au delà de six milles, jusqu’à portée du canon des côtes. - - ART. 5.--Tous les navires sans distinction ont le droit de passage - inoffensif par la mer territoriale, sauf le droit des belligérants - de réglementer et, dans un but de défense, de barrer le passage - dans ladite mer pour tout navire, et sauf le droit des neutres de - réglementer le passage dans ladite mer pour les navires de guerre - de toutes nationalités. _Il n’est pas dérogé par cet article aux - dispositions de l’article 10._ - - ART. 6.--Les crimes et délits commis à bord de navires étrangers de - passage dans la mer territoriale par des personnes qui se trouvent à - bord de ces navires, sur des personnes ou des choses à bord de ces - mêmes navires, sont, comme tels, en dehors de la juridiction de l’État - riverain, à moins qu’ils n’impliquent une violation des droits ou - des intérêts de l’État riverain, ou de ses ressortissants ne faisant - partie ni de l’équipage ni des passagers. - - ART. 7.--Les navires qui traversent les eaux territoriales se - conformeront aux règlements spéciaux édictés par l’État riverain dans - l’intérêt et pour la sécurité de la navigation et pour la police - maritime. - - ART. 8.--Les navires de toutes nationalités, par le fait seul qu’ils - se trouvent dans les eaux territoriales, à moins qu’ils n’y soient - seulement de passage, sont soumis à la juridiction de l’État riverain. - - L’État riverain a le droit de continuer sur la haute mer la poursuite - commencée dans la mer territoriale, d’arrêter et de juger le navire - qui aurait commis une infraction _pénale_ dans les limites de ses - eaux. En cas de capture sur la haute mer, le fait sera, toutefois, - notifié sans délai à l’État dont le navire porte le pavillon. La - poursuite est interrompue dès que le navire entre dans la mer - territoriale de son pays ou d’une tierce puissance. Le droit de - poursuite cesse dès que le navire sera entré dans un port de son pays - ou d’une tierce puissance. - - ART. 9.--Est réservée la situation particulière des navires de guerre - et de ceux qui leur sont assimilés. - - ART. 10.--Les dispositions des articles précédents s’appliquent - aux détroits dont l’écart n’excède pas douze milles, sauf les - modifications et distinctions suivantes:-- - - 1^o Les détroits dont les côtes appartiennent à des États différents - font partie de la mer territoriale des États riverains, qui y - exerceront leur souveraineté jusqu’à la ligne médiane. - - 2^o Les détroits dont les côtes appartiennent au même État et qui sont - indispensables aux communications maritimes entre deux ou plusieurs - États autres que l’État riverain font toujours partie de la mer - territoriale du riverain, quel que soit le rapprochement des côtes. - _Ils ne peuvent jamais être barrés._ - - 3^o _Dans les détroits dont les côtes appartiennent au même État, - la mer est territoriale bien que l’écartement des côtes dépasse - douze milles, si à chaque entrée du détroit cette distance n’est pas - dépassé._ - - 4^o Les détroits qui servent de passage d’une mer libre à une autre - mer libre ne peuvent jamais être _barrés_. - -ART. 11.--Le régime des détroits actuellement soumis à des conventions -ou usages spéciaux demeure réservé. - - - - -INDEX. - - Aberdeen, 84, 215, 227, 298, 407 - - Abreu y Bertodano on territorial sea, 559 - - Admiral, office of, 30, 31, 32, 41, 51, 52, 53, 54, 266, 329, 363, - 364 n. - - Admiralty, 18, 31, 248, 249, 260, 261, 262, 263, 266, 277, 280, 286, - 288, 293, 318, 328, 520 - - Admiralty and “striking,” 277, 278, 380-383, 438, 455, 456, 472 - - Admiralty, High Court of, 54, 120, 122, 124, 243, 244 n., 251, 285, - 358, 363, 369, 391, 465 n.; - and striking, 513; - decisions as to neutral waters, 553; - decisions as to three-mile limit, 576, 577 - - Admiralty jurisdiction, origin of, 6, 17, 30, 32 - - Admiralty, on extent of British Seas, 20, 438 - - Adriatic, 52 n.; - sovereignty of, 3, 4, 8, 16, 33, 107, 111, 339, 341, 350, 357, 361, - 371, 539; - fisheries of, 659 - - Aerssen, François van, Dutch ambassador, 200, 336 - - _Africaine_, case of, 641 n. - - Agincourt, 8, 35 - - _Agnes G. Donohoe_, case of, 663 - - Albemarle, Duke of. _See_ Monk. - - Albertsz, Jan, Captain, 171, 173, 174 - - Alderney, 103 - - Alexander, Sir William, Secretary for Scotland, 219, 220, 225 n., - 227, 232 - - Alfred, King, 26 - - Algarve, fishery treaty with, 67 - - Algeria, 527; - territorial sea, 657 - - Allin, Sir Thomas, 468, 471, 477 - - Alverstone, Lord, 692 - - Alward, G. L., 711 n., 739 n. - - Amboyna, 430 - - America, British North, fishery disputes with United States, 580; - fishery limit, 650; - ten-mile limit for bays, 626, 627, 628, 629; - six-mile limit for bays, 627, 629, 630; - fishery rights, 531, 532, 731, 731 n.; - Hague Tribunal on, 732 n.; - Mixed Commission to delimit bays, 628; - _modus vivendi_ with United States, 626, 628, 629; - treaties regarding fisheries, _See_ Treaties. - - America, fisheries claimed for crown, 235 - - Amsterdam, 73, 132, 181, 183, 282, 368 - - Amsterdam Island, 194 n. - - Ancient Britons and maritime dominion, 25, 26 - - Angelus, 351 - - Angevins, 8, 26, 29, 65, 207 - - Anglo-Saxons, 26, 27, 28, 541, 542 - - _Anna_, case of, 579, 641 n. - - _Annapolis_, case of, 586 n. - - Anne of Austria, 117 - - Anne, Queen, 161, 354, 520, 523 - - Anstruther Easter, 165, 175 n. - - Antwerp, 49, 73, 148; - treaty of, 148, 344, 350 - - Appropriation of sea. _See_ Sea. - - Aquitaine, 19, 213; - fisheries at, 67 - - Archer, Walter E., 736 n. - - Argentine Republic, claim to great bays, 661; - claim to wide limit of exclusive fishery, 661, 662 - - Argyle, Earl of, 153 n. - - Arlington, Lord, 469, 483, 490, 497, 502 - - Armed Neutrality, 522, 563, 571, 572 - - Arundel, Earl of, 227, 239 n., 241, 314, 316, 477 - - Aschehoug, on territorial sea, 686, 688 - - Assize-herring, 82, 124, 138, 144, 152-154, 163-171, 180, 194-196, - 203, 293, 346, 347, 352, 355; - proposal to levy from foreign fishermen, 124, 167; - demanded from Dutch, 180; - how to be levied from Dutch, 195, 196, 757; - paid by Dutch fishermen, 169; - value of, 195 - - Auber, on territorial sea, 691 - - Australia, pearl fisheries, 697 - - Austria-Hungary, territorial sea, 572, 658; - Customs jurisdiction, 594, 659; - reciprocal rights of fishery with Italy, 659 - - Ayrshire, fishermen of, 83 - - Azores, 106 - - Azuni, on territorial sea, 564, 565; - on range of vision, 546 - - - Bacon, Lord, 73, 163 n., 189, 223 - - Bagg, Sir James, 280 - - Baldus, on territorial limit, 351, 360, 539, 540, 541 - - Balfour of Burleigh, Lord, 730 - - Ballantrae Bank herring fishery, 238 - - Balmerino, Lord, 187 - - Baltic, 61, 409, 432, 434; - as closed sea, 572 n.; - sovereignty over, 4, 33, 108, 350, 371, 377, 550, 552, 555; - territorial limits in, 655 - - Baltimore, 247 - - Barbary, 327 - - Barclay, Sir Thomas, 689 n., 690 - - Barebones Parliament, 428; - on sovereignty of sea, 13, 413 - - Barents Sea, foreign trawlers in, 713 - - Barking, 699 - - Barneveldt, Elias van Olden, 155, 157 n. - - Barneveldt, J. van Olden, 152, 159, 162, 170, 173, 191 - - Barrère, on the freedom of the sea, 595 - - Barrett, Frank, 738 n. - - Bartolus, on territorial limit, 351, 539, 541 - - Bates, Joshua, on bay of Fundy, 625 - - Batten, Sir William, 380, 382, 448, 456 - - Battle of the Downs, 330 - - Baty, Dr Thomas, Hon. Secretary, International Law Association, 673 n. - - Bays. _See_ Territorial Sea. - - Bayonne, 52 n. - - Beaufort, de, Duke, Admiral of France, 463, 472 - - Beaufort, Henry, 56 n. - - Beaufort, Sir Thomas, 40 - - Behring Sea, fishery disputes, negotiations with Russia, 581-585; - Russian ukase fixing 100-mile limit, 541; - gunshot limit accepted by Russia, 582, 585; - three-mile limit adopted by Russia, 585; - United States on Russian claim, 584; - Tribunal of Arbitration, 663, 664, 695, 695 n., 732; - Japanese sealers in, 696 n.; - whaling in, 585 - - Belgium, complaints against fishermen of, 615, 616; - territorial sea, 658 - - Bell Rock, territoriality of, 642 - - Bengal, Bay of, 625 - - Bergen, 109 - - Berkeley, Sir William, on striking, 472 - - Berwick, 49, 60, 73, 219 - - Beukelsz, invention of herring cure, 61, 426 n. - - Beuningen, van, Dutch ambassador, 511 - - Beveren, van, Dutch ambassador, 302, 303, 304, 312, 315, 316, 317, 320 - - Beverning, Hieronymus van, Dutch ambassador, 415, 418, 433, 504 - - Beverwaert, van, Dutch ambassador, 449 n., 450 - - Binge, Raymond, 109 n. - - Binning, Captain, 513 - - Binning, Lord, 80, 178, 179 n., 186, 187 - - Birch, 28 - - Bird, Sir William, 174 n. - - Biscay, 255; - fishermen of, 67, 98; - whalers at Spitzbergen, 183 n. - - Biscay, Bay of, 19, 510, 521; - fisheries in, 707, 713; - territoriality of, 625 - - Bishop of Isles, 242 - - Bishop of Ross, 77 - - Bishop, on territorial sea, 683 - - Black Book of Admiralty, 7,16, 39-42, 52, 53, 66, 410 n. - - Blackburn, Lord, on territorial sea, 589 - - Black Sea, 371 - - Blackstone, on Sovereignty of Sea, 580 n. - - Blake, General Robert, 408, 421, 422; - instructions to, regarding sovereignty of sea, 382, 383; - encounter with Tromp, 12, 207 n., 397, 398 n., 401, 403, 404; - correspondence with Tromp, 404 n., 772; - captures Dutch herring busses, 311 n., 406, 407 - - Blakeney, 49, 90 n. - - Blockade, 209, 264, 265, 268 - - Bluntschli, on territorial sea, 682, 688 - - Blyth, 250 - - Board of Trade on fishery limit, 616; - and German territorial limits, 652 - - Bodin, on territorial limit, 540 - - Bohemia, 191, 197, 198 - - Bohemia, Queen of. _See_ Elizabeth. - - Bohuslän, herring fishery at, 62 - - Bordeaux, 28, 61, 97 - - Boreel, Dutch ambassador, 482, 483, 485, 490 - - Boroughs, Sir John, Keeper of the Records, on Sovereignty of Sea, 25, - 28, 39, 43, 64 n., 254, 364, 365, 366, 411; - discovery of rolls, 31, 213, 254; - on foreign fishermen, 132 - - Boston, 73 - - Boswell, Sir W., British ambassador at The Hague, 212, 213, 257, 258, - 259 n., 264, 317, 318, 319, 321 - - Botetourt, Sir John de, 46 n., 60 - - Bothnia, Gulf of, sovereignty over, 4, 564 - - Boulogne, 104, 274, 281 - - Bourne, Rear-Admiral, meets Tromp, 400; - assists Blake, 403 - - Bouwensz, Joost, 294 n., 298 n., 304 - - Brabant, 49, 50, 70, 71 - - Bracton, 66, 362 n., 539 - - Bradshaw, 409 - - Braeckel, Captain, 476 - - Braems, Sir Arnold, 318, 515 - - Brazil, 327, 393, 430 - - Breda, conference at, 459, 464, 476; - treaty of, 465, 492, 501 - - Brederode, W. van, 81 - - Bremen, fishermen and merchants from, 126, 129, 130, 169, 227, 235, 327; - negotiations at, 110, 373 - - Bressay Sound, 129, 131, 215 - - Briel, 43, 73, 78, 142, 278, 511, 512 - - Bristol, 96, 108 - - Bristol Channel, territoriality of, 586, 725 - - British Colonies, territorial sea, 661 - - British fisheries, foreigners at. _See_ Fisheries. - - British Seas. _See_ Sea. - - British subjects in foreign service, 260, 359 n.; - in Dutch navy, 251 n. - - Brittany, 36, 48, 54, 56, 67, 68, 69, 103, 213, 270 - - Britton, 539 - - Brixham, 699 - - Brood and spawn of fish, 213 - - Brouershaven, 77 - - Brown, James, 194 - - Brown, John, 166, 191 n., 194 n., 195, 195 n., 196; - sent to uplift the assize herrings from Dutch fishermen, 169, 170, - 171; - seized by Dutch and carried to Holland, 172, 173; - released, 173; - Dutch apologise, 173; - counsel’s opinion on seizure, 174 - - Bruce, King Robert, 76 - - Bruce, Patrick, 181 - - Bruges, 43, 52 n., 71, 73; - fishing charter from Charles II., 460, 461, 504, 616, 617, 772 - - Brussels, 71, 318, 335 - - _Bucentaur_, 4, 567 n. - - Buchan Ness, 131, 166, 227, 233, 321, 406 - - Buckingham, Duke of, 201, 266 n., 490, 497 - - Buckland, Frank, on inexhaustibility of fisheries, 636 - - Burchett, on Sovereignty of Sea, 311 n., 521 - - Burghs, Scottish, 216, 240 - - Burgundy, Duchess of, 71, 72 - - Burgundy, Duke of, 69, 70, 71, 72, 73, 158 - - Burgundy, House of, 49 - - Burgundy treaties, 69, 70, 72, 86, 112, 145, 146, 147, 158, 288, 312 - n., 356, 370, 412 n., 425, 500 - - Burgus, P. B., on dominion of Ligurian Sea, 411, 550 - - Burnham, 90 - - Bushell, William, 284 - - Bynkershoek, Cornelius van, 21, 350, 538, 579, 591, 595, 650, 685, 686; - on territorial sea, 555, 556; - on range of vision, 546 - - - Cadiz, 246 - - Cæsar, Sir Julius, 120, 146, 155, 156 n. - - Caithness, 126, 227 - - Calais, 18, 29, 34, 37 n., 45 n., 49, 50, 65, 68, 70, 71, 73, 74, 103, - 104, 204, 205, 266, 273, 274, 278, 280, 282, 327, 401, 440 - - Callis, Serjeant, on the appropriation of the sea, 54, 66, 358, 363 - - Calvo, on territorial sea, 340, 682, 688 - - Camden, 64, 142 - - Canada, fishery rights at. _See_ British North America. - - Cancale, Bay of. _See_ Granville Bay. - - Canning, George, on Behring Sea, 583 - - Cannon range limit, proposed by Dutch, 156. - _See_ Territorial Sea. - - Canterbury, 41 - - Cape Bojador, 105 - - Cape de Verde, 106 - - Cape Finisterre, 270, 469, 478, 502, 505, 510, 515, 521 - - Cape of Good Hope, 105, 340, 343, 344 - - Cape St Vincent, 270, 434, 435, 465, 466 n., 469, 478, 502, 503, - 508, 510 - - Cardinal Infant, 243, 318, 319, 335 - - Carew, Lord George, 202 - - Carleton, Sir Dudley, 128, 168, 172, 173, 174, 176, 177, 180, 185, - 190, 192, 193, 197, 212; - on Grotius, 351 - - Carlisle, Earl of, 222 n., 227 n. - - Caron, Sir Noel, Dutch ambassador, 151-154, 163, 165, 168-174, 201 - - Carrick, Earl of, 225 n. - - Carteret, Captain, 291, 327 - - Casaregi, on territorial sea, 558 - - Castile, 32, 67 - - Castro, Francis Alphonso de, on dominion of sea, 341 - - Catalonia, 45 - - Cats, Dutch ambassador, 391 - - Cattegat, territoriality of, 653 - - Cavendish, 5 - - Cecil, Secretary Sir William, 88, 90, 91, 92, 95, 105, 114, 115, 128 - n., 133, 204 - - Ceva, Cardinal de, 273 n. - - Ceylon, pearl fisheries, 560, 697 - - Chaleurs, Bay of, 623, 624, 625, 627 n., 628, 629, 630, 692 - - Chamberlain, Joseph, 628 - - Champagne, on freedom of the sea, 595, 596 - - Chancellor, 181 - - Channel, English, 9, 18, 19, 21, 29, 42, 43, 209, 247, 250, 266, - 269, 270, 276, 327, 407, 465; - extent of, 432, 465 n. 506 n.; - great avenue of commerce, 30; - importance of command of, 30; - fisheries in, 65 n., 68, 544; - licenses for fishing in, 65; - disputes with French fishermen, 607, 608; - mid-line limit, 542, 544; - sovereignty over, 6, 8, 16, 35, 36, 101, 103, 207, 208, 246, 432; - striking in, 117, 212, 469, 470 - - Channel Islands, 29, 36, 103 - - Charles the Bold, 72 - - Charles I., 17, 28, 31, 117, 119, 338; - asked to free the seas of Hollander busses, 211, 234; - opinion on importance of fisheries, 213; - initiates fishery association, 214; - plan of, 215, 216; - lays scheme before Council in Scotland, 218, 219, 220; - ill received in Scotland, 220; - opposed by Scottish Parliament, 222; - debates regarding, 224; - his great anxiety for, 225; - Scottish Commissioners appointed, 225; - his letters on, 232, 233; - Royal Fishery Society established, 239; - proceedings of, 241; - misfortunes and failure of Fishery Society, 241-243; - claim to sovereignty of sea, 10, 11, 119, 209-212, 251, 258; - proclamation regarding narrow seas and King’s Chambers, 251; - draft proclamation _re_ Sovereignty of Sea, 759; - personal policy, 253; - pretext for equipping a fleet, 253; - deceives his Council, 255; - secret agreement with Spain, 253, 255, 260, 264; - instructions to first ship-money fleet, 259; - failure of his policy, 275; - report of Admiralty as to employment of second ship-money fleet, - 288, 762; - instructions regarding license money from foreign fishermen, 295; - proclamation forbidding unlicensed fishing by foreigners, 293, 294; - licenses to fishermen, 762; - negotiations with Dutch as to unlicensed fishing, 305, 306; - tries surreptitiously to induce Dutch to accept licenses, 317, 319, - 321; - Dutch despatch a fleet to protect their fishermen, 321; - general dissatisfaction with his actions, 324; - his power on sea wanes, 328; - pretensions to sovereignty of sea flouted by Dutch, 328, 329; - battle of Downs, 335; - proceedings regarding Spanish fleet and Tromp, 331, 336 - - Charles II., his efforts to develop fisheries, 441; - Bill to encourage fisheries, 443; - directed against foreigners, 444, 444 n.; - establishes the Royal Fishery, 446-448; - failure of, 449; - Dutch embassy, negotiations concerning fishery question, 449, - 450, 451, 455; - tries to prevent Franco-Dutch treaty, 454; - treaty with the United Provinces, 455; - disputes about striking, 455; - second Dutch war, 457, 458; - very popular, 458; - course of, 459; - terms of peace, 464; - claim to exclusive fishing withdrawn, 464; - question of striking, 464, 465; - extent of British seas, 465, 466; - licenses offered to Dutch fishermen, 460; - De Witt’s proposals as to striking, 468; - verbal arrangement with Louis as to striking, 471, 471 n.; - Triple Alliance, 474; - secret treaty of Dover, 474; - obtains a subsidy, 475; - ill-feeling against Dutch fomented, 476; - accuses De Witt of secret negotiations with Louis, 476; - recall of Sir William Temple, 476; - pretext for war in the “honour of the flag,” 476; - sends his yacht _Merlin_ to pick a quarrel over the salute, - 477, 478, 479; - failure of the _Merlin_, 480; - dispute with Dutch as to striking, 482; - Dutch asked to acknowledge his dominion of the seas, 482; - the Dutch hoodwinked, 482; - rejects concessions of Dutch, 483, 484; - orders Dutch shipping to be seized, 484, 485; - failure of attack on Smyrna fleet, 486, 487; - declaration of war against States-General, 487; - declaration on the honour of the flag and sovereignty of the - sea, 487, 488; - arranges salute with Louis, 488; - terms offered the Dutch, 490; - demands payment for fishery, 491, 491 n.; - summons Parliament, 492; - subsidy granted, 493; - the war intensely unpopular, 493; - efforts to stir up animosity against Dutch, 494-498; - congress at Cologne, 498; - terms of peace offered, 498; - question of flag and striking, 498, 499, 501-503, 505, 506, 508; - question of fisheries, 498-500, 503-505, 508; - negotiations for separate peace, 504-508; - peace concluded, 508; - establishes a new fishery company, 516 - - Charles V., 74, 75, 78, 79, 81 - - Charteris, A. H., 586 n. - - Chaterton, Sir Richard, 448 - - Chatham, 459, 476 - - Chelchethe, John de, 50 - - Chelmsford, Lord, on territorial sea, 586 n. - - Chester, 96 - - Chili, territorial sea, 661 - - Chitty, on Sovereignty of Sea, 580 n. - - Chitty, on territorial sea, 597 - - Christian V. of Denmark, prohibits fishing at Greenland, 528 - - Churchill, Lieutenant, 486 n. - - Cinque Ports, 29, 32, 36, 55, 244, 247, 295, 381 n.; - complain about foreign fishermen, 144, 145; - fishermen of, 58, 90 n., 144; - jurisdiction on sea, 213, 544, 544 n.; - licenses to French fishermen, 65 - - Clarendon, Chancellor, 241, 457 - - Clee, 90 - - _Cleveland_ yacht, 511 - - Clyde, Firth of, foreign trawlers in, 647; - fisheries of, 83, 221 n., 233, 235, 239; - - Cnut, King, and the sea, 26; - charter regarding Sandwich, 542 - - Cockaine, Sir William, 202 - - Cockburn, Lord Chief-Justice, on Bristol Channel, 586, 587, 588; - on territorial sea, 591, 591 n. - - Cockraine, Captain, 437 - - Cod-fishing, 79, 131, 221 n., 672 - - Coke, Lord Chief-Justice, 17, 27, 43, 44, 44 n., 46, 66, 213; - on appropriation of sea, 363 - - Coke, Secretary, Sir John, 130 n., 227 n., 268, 269; - on the British seas, 20, 264 n.; - on the fishery scheme, 215-218, 232, 235-237, 239 n., 241, 243; - on sovereignty of sea, 20, 211, 212, 255-258, 264, 271, 302 - - Coke, Roger, 127 n. - - Colbert, French ambassador, 471, 471 n. - - Cologne, congress at, 264 n., 323 n., 347 n., 491 n., 498, 506, 510 - - Colomb, Admiral, 311 n. - - Columbus, 106, 340 - - Commerce, 53, 91, 106, 107, 134, 135, 143, 163, 210, 255, 339, 340, - 342, 390, 391, 395, 408, 413, 457; - in middle ages, 3, 5, 6, 7, 29, 30, 34 and n., 43, 44, 67, 69, 86; - monopoly of, 5, 106 - - Commercial enterprise, expansion of, 6, 339, 340, 342, 533 - - Commercial jealousy of Dutch, 10, 422, 441, 457 - - Commonwealth, instructions as to striking, 380, 381; - relations with United Provinces, 384; - negotiations for alliance, 384, 385; - St John’s mission to The Hague, 384-390; - Navigation Act, 391; - seizure of Dutch ships, 391; - letters of reprisal against the Dutch, 391, 392, 393; - renewed negotiations, 392-396; - thirty-nine articles considered, 393, 764; - differences as to sovereignty of sea, 393, 394; - question of striking, 394, 395; - question of fishery, 394, 396; - question of right of visitation and search, 396; - negotiations interrupted, 397; - indignation against States-General for attack on Blake, 404; - terms offered to Pauw, 405; - Dutch ships seized and preparations for war, 405; - declaration on sovereignty of sea, 409; - _Mare Clausum_ to be translated and printed, 410; - peace negotiations with Dutch, 414-435; - terms offered, 415; - Dutch propose the _Intercursus Magnus_ as basis, 416; - liberty of fishing offered, 417; - the twenty-seven articles proposed, 419; - proposal for fusion of English and Dutch, 416, 417, 418, 419; - question of dominion of the sea, 418, 419, 423, 433, 436; - of extent of British seas, 429, 431-436; - of fishing, 417, 418, 419, 420, 422, 423, 424, 425, 427, 430, 436; - of guarding the sea, 421-424, 431, 436; - of limitation of Dutch fleet, 421, 422, 423, 436; - of the Prince of Orange, 422, 430, 433, 435; - of striking, 417, 419, 420, 424, 429, 431, 432, 436; - Dutch propose a “regulation” for, 405, 418, 424, 429, 431, 433; - Dutch propose to strike in all seas, 432; - of visit and search, 420-424, 431, 436; - treaty signed, 435 - - Conception Bay, territoriality of, 588, 589 - - Conringius, 550 - - Conway, Viscount, 268, 269, 284 n. - - Cook, George M., 728 n. - - Cooper, Sir Anthony Ashley, 429. - _See_ also Lord Shaftesbury. - - Cope, Sir Walter, 128 n., 138 - - Corinth, Gulf of, 661 - - Cornish, James, on spawning of fish, 610 - - Cornwall, pilchards, 134, 143 - - Cornwallis, Lord, 360 - - Cottingham, Sir Francis, 227 n. - - Cottington, Lord, 253, 263 - - Courcel, Baron de, on three-mile limit, 664 n., 696 n. - - Coventry, Lord, 254, 255, 286 - - Craig, Sir Thomas, 359 n.; - on the right of fishery, 357 - - Crail, 84, 175 n., 242 - - Craudon, 54, 55, 56 - - Cromarty, 227 - - Cromer, 90, 296 - - Crompton, Sir Thomas, 146 - - Cromwell, Oliver (_see_ also Commonwealth), 13, 28, 65, 72, 337, - 378, 404, 410 n., 414, 451, 495, 505; - arguments for exclusive fishery, 425; - clandestine negotiations with Dutch, 414, 415, 417, 430 n.; - on sovereignty of sea, 419, 423, 424, 435; - renews fishing licenses for Zowe, 440 - - Cromwell, Richard, on extent of British seas, 438 - - Crow, Captain, 479, 480 - - Cuba, territorial limit, 665 - - Cunæus, Professor Petrus, 375 - - Customs limit. _See_ Territorial sea. - - Dana, on territorial sea, 683 - - Danby, Earl of, 516 - - Danegeld, 26 - - Dantzic, 216, 242 - - Dartmouth, 267 - - David I., 59 - - Davidson, Thomas, 84 - - Davis’ Straits, 184 - - Deal Castle, 279 - - Dean, Major-General, 382, 406, 408 - - Decay of English fisheries. _See_ Fisheries. - - Decay of havens and sea-coast towns, 89, 90, 98, 446 - - Dee, Dr John, 27 n., 95, 111, 125, 203, 214 n., 364 n.; - on sovereignty of sea, 99, 101 - - Delaware Bay, claimed by United States, 574, 599, 629 - - Delfshaven, 294 n., 298 n. - - Delft, 73, 397 n. - - Demetrius, Emanuel, 156 - - Denmark, 26, 45, 54, 464, 527; - claim to cod-fishing at Iceland, 528; - to whaling at Greenland, 527; - fisheries of, 92; - fishermen on British coasts, 605; - claims to sovereignty of sea, 4, 8, 16, 33, 86, 105, 112, 158, - 339, 340, 358; - opposed by Queen Elizabeth, 107, 108, 109, 110; - on striking, 470, 471, 473; - territorial sea, 528, 529, 653, 655, 664; - range of vision claimed, 529, 545; - inclusion in Cromwell’s treaty with Dutch, 433 - - Deptford, 266 - - De Ruyter, 408, 456, 457 n., 458, 459, 463, 472, 479, 481, 489, 493 - - De Seneterre, 302 - - Desjardins, on territorial sea, 685, 688 - - “De Superioritate maris” roll, 8, 31, 41, 43, 44 and n., 45, 49, 50, - 54, 363, 740, 744 - - Devonshire, Earl of, 138 - - De With, 408, 437 - - De Witt, Cornelius, 459 - - De Witt, John, 398, 414, 422, 433, 434, 449; - secret negotiations with Cromwell, 430 n., 434, 435; - secret negotiations with France regarding fishery and flag, 451-454, - 471, 476; - attitude on sovereignty of sea, 450, 451, 454, 468, 470; - on fishery claim, 450, 451-457; - on striking, 14, 452, 457, 467, 468, 470, 471; - on striking to a frigate or ketch, 470, 477, 509; - on striking to French, 463, 464; - assassinated, 491 - - Dieppe, 49, 50, 61, 65, 116, 440, 473 - - Digby, Sir Kenelm, 292, 375 - - Digges, Sir Leonard, 96 - - Digges, Thomas, on foreshore and bed of sea, 362 - - Dogger Bank, 131, 407 n., 699, 700 - - Dominion of Sea. _See_ Sovereignty of Sea. - - Dorchester, Viscount, 212. _See_ Carleton. - - Dorp, van, 273, 274, 300, 312, 313, 321 - - Dorset, Earl of, 227 n. - - Dort, 73 - - Dover, 49, 73, 103, 145 n., 204, 205, 265, 400; - straits of, 6, 8, 16, 18, 36, 104, 273, 330, 397, 401, 515 - - Downing, Sir George, English ambassador at The Hague, 454, 482, 483, 488 - - Downs, The, 120, 245, 259, 260, 265, 268, 270, 274, 290, 323, 330, 331, - 332, 334, 335, 336, 400 - - Drake, Sir F., 5, 107 - - Drechsel, C. F., Captain, 647 n., 707 n. - - Dudley, Sir Henry, 116 - - Dues levied at Scarborough Castle, 64 - - Dunbar, 59, 153 n., 166, 221 n. - - Dunedin, Lord, Lord Justice-General, on territorial sea, 724 - - Dunfermline, Earl of, 80, 179 n., 223 - - Dunkirk, 73, 125, 215, 242, 267, 278, 282, 327; - blockade of, 253, 265, 266, 268, 270, 273-275, 276, 290, 327, 330, 334 - - Dunkirk privateers, 11, 243, 247-250, 261, 263, 265, 273, 282, 289, - 291, 296, 302, 304, 318, 322, 327, 328, 330 - - Dunn, Sir Daniel, 146, 155 - - Dunwich, 90 n. - - Durham, 133 - - Dussen, E. van der, Dutch ambassador, 185 n. - - Dutch, 5, 69, 77, 79, 81, 143, 217, 243, 253, 255, 261, 263, 275, 289; - commercial jealousy of, 10, 125, 142, 413; - encouraged to settle in England, 515; - growth of fisheries and commerce, 10, 62, 87, 143; - fisheries, growth and extent of, 125, 126, 127, 128, 130, 142; - on British coasts, 62, 64, 605; - on Scottish coast, 82, 83, 187 n., 201; - statistics of, 125-132, 158, 190, 438, 439 and n., 534; - strength of fishing fleet, 98, 101, 125, 126, 127, 129, 144, 321; - value of, 125, 131, 132, 142, 292, 366, 515; - exports of fish, 87, 135; - embargo on, 460, 462, 489; - supply England with fish, 93; - herring fishery, 10, 61, 78-85, 87, 93, 95, 112, 122, 125, 131, - 134-137, 143-145, 157, 208, 214, 215, 247, 250, 273, 277, 296, - 316, 407, 415, 424, 428, 449, 450, 451, 515, 534; - description of, 131; - exports of herrings, 132, 134; - herring fleet attacked by Blake, 406, 407; - whale fishing, 194 n., 181, 183, 184, 185, 407, 528; - fishermen, frugality and industry of, 137, 141; - settled at Stornoway, 216, 221, 237; - complaints against, 144, 154, 168, 175, 177, 187, 234, 257, 292, - 301, 438; - proposal to tax, 141, 214; - assize herring, 169-171, 197, 198; - licenses to be forced on, 264, 300; - proceedings with reference to Northumberland’s fleet, 301-305, - 312, 313; - payments for licenses to fish, 309, 310, 311; - attempt to distribute licenses, 320, 321. - _See_ also Fisheries and Sovereignty of Sea. - - Dutch, first war with England, 405; - second, 457; - third, 474 - - Dutch fleet to protect fishermen, 321 - - Dutch East India Company, 185, 343, 344 - - Dutch Republic. _See_ United Provinces. - - Dyer, Sir Edward, 103 - - Dymes, Captain John, 216, 217 n. - - - East India Company, 194 - - East Indies, 105, 184, 185, 193, 194, 198, 199, 200, 257, 339, 340, - 343, 350, 393, 430, 457, 482 - - Eastland Merchants Company, 160 - - Eddystone, territoriality of, 641, 642, 643 - - Edgar, King, 26, 27, 28, 141, 158, 326, 365, 409 - - Edinburgh, 216, 228, 298, 324, 351 - - Edmonds, Sir Thomas, 243 - - Edward I., 7, 32, 40, 42, 43, 44, 49, 51, 58 n., 60, 66, 67, 213, - 214, 363, 365 - - Edward II., 52 n., 56, 67, 254 - - Edward III., 7, 33, 36, 37, 38, 41, 42, 43, 44, 51, 53, 64, 66, 67, - 211, 254, 365, 409 - - Edward IV., 63, 71, 110 - - Edward VI., 88, 89, 116 - - Elbe, 28 - - Elector Palatine, 198, 271, 303, 315, 316, 320 - - Elizabeth, Queen, 17, 65-85, 86, 87, 88, 91, 96, 102, 104, 115, 117, - 118, 124, 136, 204, 246, 361, 433; - asserts freedom of seas, 5, 108-112, 118; - opposes claims of Denmark in northern seas, 86, 108-112; - opposes Spanish and Portuguese claims, 86, 107; - opposes _mare clausum_, 105, 338; - made no claim to sovereignty of seas, 107, 108; - policy to foster fisheries, 93; - fishing declared free, 111; - fishery disputes with Denmark, 106-112; - policy regarding territorial waters, 111, 543 - - Elizabeth, Queen of Bohemia, 167 n., 198, 303, 305, 314, 315, 316, - 321, 385 - - Emden, 129, 130, 195 - - England, Sea of. _See_ Sea. - - English, new spirit of commercial enterprise in, 124, 136; - irritation against Dutch, 134; - jealous of their commerce, 413; - fisheries, yield of, 215; - condition of, 133; - decay of, 75, 112, 358; - description of, 133; - fishermen, indolence of, 91, 137, 516; - at Iceland, 108, 109, 110; - at Norway, 108; - molested by Dutch, 438 - - Enkhuisen, 139, 170, 171, 173, 298 n., 397 n., 439 n. - - Entick, on Sovereignty of Sea, 311 n., 522 - - Essex, Earl of, 128 n., 473 - - Ethelred, King, 26 - - Evelyn, John, 312 n., 508; - on Sovereignty of Sea, 514 and n. - - Eversley, Lord, 702 n. - - Evertsen, Vice-Admiral Jan, 399, 408 - - Exeter, 96 - - Exton, Sir Thomas, 513 - - - Faeröe Isles, 175, 176, 528, 529, 545, 647, 711 - - Fair Isle, 126, 131 - - Fairlea, 65 - - Fairlight, 65, 402 - - Fajardo, Don Louis, 206 n. - - Falkland Islands, 650 - - Falmouth, 276 - - Farne Isles, 618 - - Farrer, Sir T. H., 646 - - Fast-days, 58, 87 - - Fenton, John, 194, 195, 196 and n., 197, 757 - - Ferguson, on territorial sea, 684 - - Fielding, Captain, 320, 321, 322, 323, 324 - - Fife, 59, 166, 175 n., 445; - fishermen of, 61, 83, 165 - - Finmark, 108, 109, 568 - - Fiore, on territorial sea, 684 - - Fish, abuses in trade in, 112, 113 - - Fish, commerce in, 61, 82, 88, 112, 134, 141; - exports, 61, 132 n., 133, 134, 214; - imports, 67, 113, 145, 442; - prices regulated, 91 - - Fish days, 58, 87, 88, 90, 92 and n., 93, 94, 99 n., 114, 115, 136, 444 - - Fish, demand for, in early times, 58 - - Fish, destruction of spawn of, 608, 609, 610 - - Fish for victualling army and navy, 58 - - Fish, fresh, distribution of, 58 - - Fish, preservation of brood of, 213, 607, 608, 609, 610 - - Fish, protection of breeding-grounds of, 610 - - Fish, royal, 66, 362 n., 363 - - Fish, spawning of, 610 - - Fish, taxation of imported, 88, 441, 442, 446 - - Fish tithes, 59, 101, 141, 142, 203, 214, 242, 355 - - Fish, undersized, 444 n., 608, 636, 704, 706, 707, 708-710 - - Fisheries, appropriation of, 102 - - Fisheries, as nursery for navy, 87, 113, 134, 213 - - Fisheries, charter to Bruges, 461, 772 - - Fisheries, claim to wide limit by Argentina, 661, 662 - - Fisheries, claimed for crown, 57, 62, 288, 289, 292 - - Fisheries, closure of areas, 662, 720. - _See_ Territorial Sea, Extra territorial. - - Fisheries, cod-fishing at Lofoten Isles, 672 and n. - - Fisheries, Conference at Hague, 1881, 632 - - Fisheries, decay of English, 86, 87, 89, 91, 92, 115; - of Dutch, 534 - - Fisheries, disputes in North Sea, 631; - at Iceland, 110; - in North America, 621, 622-630 - - Fisheries, distant voyages, 57 - - Fisheries, Dutch, 93, 94, 96, 125-130. - _See_ Dutch. - - Fisheries, Dutch regulations on British coast, 605, 606 n. - - Fisheries, early English law as to, 66 - - Fisheries Enquiries--Anglo-French in 1837, 611; - by Royal Commissions in 1863, 701; - in 1878, 702; - in 1883, 702; - by Select Committee of House of Commons in 1817, 610 n.; - in 1833, 607-610; in 1893, 691, 707, 714 n.; - by Select Committee of House of Lords in 1904, 710, 711 n.; - by Mr Higgin as to disputes in North Sea, 1880, 631 - - Fisheries, estimated profits of, 137 - - Fisheries, exclusive limit for, 632, 633 - - Fisheries, exhaustibility of, 348, 355, 372, 546, 550, 559, 602 - - Fisheries, for coral, 659, 669, 684, 695; - sponges, 659, 669; - oysters, 612, 621, 697; - pearls, 697 - - Fisheries, for “floating” fish, 698 - - Fisheries, freedom of fishing during war, 440, 461, 462, 489, 636 - - Fisheries, herring, 29, 34 n., 43, 58, 59, 71, 73-75, 90, 97, 130, - 143, 157, 187, 190, 193, 197-200, 203, 214-218, 221 n., 238, 241, - 264, 265, 272, 273, 302, 336, 378, 462, 491, 605, 698; - importance of, 59, 61; - at Bohuslän, 62; - at Scania, 61; - in Channel, 68; - Dutch, _see_ Dutch; - French, on British coasts, 606, 607, 608, 618; - treaties granting liberty for, 67 - - Fisheries, importance of, 57; - in Scotland, 76; - for navy, 58, 86, 87, 200, 219, 428; - in relation to international territorial limits, 693 - - Fisheries, impoverishment of grounds, 701, 702, 704, 706-711, 713, - 714 n., 733, 738, 739 n. - - Fisheries, in Channel, 65, 607 - - Fisheries, in North Sea. _See_ North Sea. - - Fisheries, increase of shipping due to, 135 - - Fisheries, industries dependent on, 135 - - Fisheries, International Conference, London, 1890, 706 - - Fisheries, international investigations proposed, 707 n.; - begun, 735, 736, 740; - instructions to British delegates, 735, 736 n.; - criticism of, 736 and n. - - Fisheries, international regulations, 614, 618, 619, 630, 631, 636, - 638, 645 n., 648, 704, 729; - German proposal to protect fry and small fish, 636 - - Fisheries, liberty of fishing granted to Sweden, 427 - - Fisheries, liberty of fishing guaranteed by treaties, 8, 66-74 - - Fisheries, license for fishing at Zowe, 65, 749 - - Fisheries, old Scandinavian rights, 677 - - Fisheries, old Scots Acts regarding, 82, 83 - - Fisheries, policy of Scottish kings, 59 - - Fisheries, promoted by Charles I., 213, 214 - - Fisheries, proposals to develop English, 136, 138 - - Fisheries, protective legislation and regulation, 88, 91, 92, 93, - 94, 112, 113, 213, 442, 533, 608 n. - - Fisheries, regulations beyond three-mile limit, 614, 618, 619, 621, - 661, 662, 666, 688, 691, 697, 698, 734, 735; - of oyster beds, 621 - - Fisheries, rise of British, 534 - - Fisheries, Scottish treaties regarding, 75-82 - - Fisheries, sealing regulations, Argentina, 662; - Uruguay, 663 - - Fisheries, small-fish grounds, 705, 708 - - Fisheries, the “Belgian devil,” 631 - - Fisheries, trawling, 134; - methods, 699, 700, 701, 708, 714; - development of, 680, 698-701, 711, 713, 739 n.; - enterprise of British trawlers, 713; - by British vessels on foreign coasts, 680, 711, 712, 713, 730, 735, - 737; - in Barents Sea, 657, 713; - at Faröes, 711; - at Finmarken, 680; - French West Africa, 713; - Iceland, 647, 648, 711; - Morocco, 713; - Spain and Portugal, 667 and n., 668 n., 713; - foreign trawlers on Scottish coast, 647; - damage by foreign trawlers, 631; - destruction of undersized fish, 714 n.; - Board of Trade empowered to restrict, 717; - German proposals to restrict in North Sea, 636; - restrictive regulations, 662, 698, 714, 733; - in England, 715; - prohibited beyond ordinary limits in Adriatic, 659; - Argentina, 662; - Austria-Hungary, 715; - Italy, 71; - Ireland, 715, 716; - Norway, 680, 715; - Portugal, 666-668; - Scotland, 716-720; - Spain, 666-668; - bill to prohibit within eight miles of coast, 444 and n.; - German proposal to restrict, 636; - restrictions desired by English trawlers, 702, 704-710; - ten-mile limit desired by English trawlers, 707; - voluntary closure of Continental area, 704, 706; - international agreement necessary, 732, 734, 735, 738; - recent views as to extension of limits, 735, 737 - - Fisheries, tribute from foreigners proposed, 101, 138, 139, 295 - - Fisheries, truce for fishing during war, 74, 75 - - Fishermen, early frequent distant seas, 86 - - Fishermen, foreign-- - On British coasts, 29, 33, 57, 59-62, 65, 69, 76, 83, 91, 92, 98, - 101, 126, 129, 145-150, 227, 288, 533, 544 n., 605-608, 611, - 615, 617, 618, 631; - Belgian, 615-618; - Dutch, 60, 62, 64, 77-79, 82-85, 94, and _see_ Dutch; - Flemish, 29, 59-62, 83, 101; - French, 59-62, 65, 83, 101, 150, 544 n., 606-608, 611, 617, - 618, 631; - Portuguese, 129; - Spanish, 67, 129, 150; - cause of increase of, 61; - complaints against, 94, 95, 100, 101, 144, 604, 605, 631; - against Belgian, 615, 616; - Dutch, _see_ Dutch; - French, 29, 544 n., 606-608, 611, 617, 618, 631; - encouraged in England, 75; - prohibited to fish, 9, 33, 150, 202, 227, 293, 294; - licenses for, 62, 65, 150, 294; - tax on proposed, 101, 138, 139, 214, 295; - protection of, 63 - On Irish coasts, 33, 92, 98, 101, 150 - - Fishermen, guardians of, appointed, 63 - - Fishery Conventions, 604, 693; - Anglo-Belgian, of 1852, 61; - Anglo-French, of 1839, 612, 613, 644; - of 1867, 618, 619, 630, 633, 634, 645; - North Sea, of 1882, 634, 637-639; - Norway and Sweden decline to adhere to North Sea Convention, 636 - - Fishery, reciprocal right of, 626, 627, 658, 659, 665, 666; - old Scandinavian rights, 677 - - Fishery, right of, Boroughs on, 364; - Callis, 363; - Craig, 357; - Digges, 362; - Fiore, 684; - Graswinckel, 412; - Grotius, 346, 351, 356; - Hall, 688; - Hautefeuille, 601, 602; - Wicquefort, 495; - Malynes, 358; - Meadows, 525; - Pontanus, 376; - Puffendorf, 551; - Rayneval, 596; - Sarpi, 547; - Selden, 372, 373; - Stubbe, 497; - Vasquius, 341; - Vattel, 560, 561; - Welwood, 354, 355; - Wheaton, 599; - Wolff, 559 - - Fishery rights, British North America. _See_ America. - - Fishery Societies and Associations, 96, 97, 124, 128 n., 136-140, - 160-162, 202, 203, 211, 214, 218, 222, 225, 227, 230 n., 232, - 235-243, 266, 267, 292, 301, 328, 346, 439, 442, 444, 494, 515, - 516, 533, 534 - - Fishing boats, 33; - question of neutrality of, during war, 636 - - Fishing boats, varieties of, 63, 90, 126, 129 - - Fishing, old limit on Scottish coast, 79 - - Fishing, safe-conducts for, 62, 71, 72, 79 - - Fishing vessels, armed, 34 n., 43, 70 - - Fitton, Sir Henry, 64 - - Fitzmaurice, Lord, Under-Secretary for Foreign Affairs, on territorial - sea, 630, 730, 731 - - Flag, “honour of.” _See_ Striking. - - Flanders, 29, 30, 34, 43, 45, 52 n., 53, 55, 57, 59, 60, 61, 62, 69, - 70, 71, 72, 75, 83, 88, 92, 101, 125, 209, 253, 255, 329 - - Fleta, 539 - - Fletcher, George, 225 n., 239 n. - - Flushing, 142 - - Fogg, Captain, 322, 323 - - Foggo, Robert, 78 - - Folkestone, 33, 145 n. - - Foreign Enlistment Act, 589 - - Foreshore, ownership of, 361-363 - - Forth, Firth of, 221 n., 273 n., 298; - herring fishery, 59, 61, 77 - - Four Seas, 17, 18, 119 n., 251, 363 - - France, 8, 12, 14, 20, 29, 30, 32, 33, 35, 36, 44, 50, 57, 60, - 61, 65, 67, 69, 70, 71, 72, 83, 88, 92, 97, 101, 103, 105, - 117, 127, 129, 134, 151, 158, 189, 212, 246, 264, 265, 269, - 275, 286, 413, 426, 451, 452, 463; - Customs jurisdiction, 594; - differences with United Provinces as to striking, 452, 463; - regulation of fisheries beyond three miles, 657; - territorial sea, 657; - treaty with Dutch regarding fishery question, 451-454 - - Francis I. of France, 74, 75 - - _Franconia_, case of, 580 n., 590, 591 - - Frankland, 311 n. - - Freiras, F. S. de, on _Mare Liberum_, 350 - - French fishermen on British coasts, 101, 129, 130, 150, 605; - whalers at Spitzbergen, 182, 183 and n. - - Frezno, Marquis of, 508 - - Friesland, 28, 45, 60, 62, 75, 81, 92, 104 - - Froissart, 32 - - Fryer, C. E., 619 n. - - Fundy, Bay of, 623, 624, 625 - - Fyvie, Lord President, 223 - - - Galiani, on territorial sea, 563; - first to suggest three miles as equivalent to range of guns, 563 - - Galicia, 98, 469 - - Gama, Vasco da, 340 - - Garde, Baron de la, 116 - - Gelderland, 81 - - Genoa, 30, 45, 45 n., 402, 476, 504; - sovereignty of Ligurian Sea, 4, 158, 339, 341, 371, 411, 473; - limit of territorial sea, 570 - - Gentilis, on appropriation of sea, 122, 358, 359 - - Gentleman, Tobias, 128 and n., 129, 132, 134, 137, 358, 364 n. - - Gerbier, 318 - - German Ocean, 19, 209 - - Germany, 45, 61, 197, 198, 199, 216, 373, 377; - territorial waters of, 652, 653 - - Ghent, 71, 73; - negotiations at, 581 - - Ghent, van, 462, 479, 480, 481, 482 - - Glanville, 539 - - Glückstadt, 473 - - Goch, Johan van, 185 n. - - Godey, on range of vision, 546 - - Godolphin, 52 n., 53, 515 - - Godsdue, Richard, 162 - - Gondomar, Count of, 206, 208 - - Goodwin Sands, territoriality of, 640, 640 n. - - Gorée, 477, 478, 490, 511 - - Goring, George, 314 - - _Grange_, case of, 574 - - Granville Bay, 612, 619, 697 - - Graswinckel, Dirck, 305, 354 n., 366 n., 375, 376 n., 411, 412, 550 - - Gravelines, 68, 282, 327 - - Greece, territorial sea, 661 - - Greenland, 4, 28, 108, 181, 184, 199, 257, 376, 393, 407, 430, 437; - whale fishery at, 200, 527 - - Grey, Sir Edward, Secretary for Foreign Affairs, on territorial - sea, 732, 733 - - Grimaldi, Reyner. _See_ Grimbald. - - Grimbald, Reyner, 44 n., 45 and n., 47-51, 54, 409, 740, 744 - - Grimsby, 32, 699; - trawlers of, in Moray Firth, 722, 727-729 - - Groningen, 81 - - Groningen-Watt, 578 - - Groot, de, 504 - - Groot, Cornets de, 344 n. - - Groot, Hugo de. _See_ Grotius. - - Grotius, 5, 105, 118, 148, 157 n., 158 n., 173, 174, 185 n., 190, - 191 n., 256 n., 353, 366, 370, 530, 538, 546, 591; - appearance of, _Mare Liberum_, 338, 342; - object and genesis of, 342, 343, 344; - arguments of, 344-350; - defends a Dutch _mare clausum_, 340, 356; - ‘Rights of War and Peace,’ 347 ; - on appropriation of sea, 356; - on Portuguese and Spanish claims, 339; - on range of gun limit, 157 n., 158 n., 549; - on Selden’s _Mare Clausum_, 375; - on Welwood, 356 - - Grotius and James I., 346, 347 n., 351, 357 - - Guard for fishing fleet, 248 - - Guernsey, 36 - - Guiccardini, 125 - - Guise, Duke of, license to fish at Zowe, 65, 426 - - Gulf of Nuevo, 661 - - Gulf of St George, 661 - - Gulf of San Matias, 661 - - Guns, range of. _See_ Territorial sea. - - Guthrie, Lord, on territorial sea, 623 - - - Haas, Captain Adrian de, 486 - - Haddington, Earl of, 179 n. - - Hagaland, 110 - - Hague, The, 81, 152, 172, 176, 212, 256, 305, 314, 335, 351, 367, 384, - 414, 426, 474, 479, 482, 488; - Conference at, 1881, 632; - Tribunal N. American Fisheries Arbitration, 732 n. - - Hale, Lord Chief-Justice, 18, 66, 363, 374, 543 - - Halifax Commission, 627 - - Halifax, Viscount, 490 - - Hall, H. van, 605 n. - - Hall, on Sovereignty of Sea, 48 n., 312 n., 580 n.; - on territorial sea, 687 - - Halleck, on territorial sea, 683 - - Halsbury, Lord, on territorial sea, 522, 730 - - Halse, Sir Nicholas, 130, 132, 142, 162 n., 292 - - Hamburg, 129, 130, 140, 195, 235, 485, 528; - conference at, 336 - - Hamburgers, 117, 126, 141, 178 n., 227, 255 - - Hamilton, Marquis of, 186, 225 n. - - Hamilton, Sir Thomas, 179 n., 223 - - Hampden, 324 - - Hansards, 30, 61, 62, 73 - - Hardy, Sir T. Duffus, 41 - - Harfleur, 70 - - Hargrave, 374; - on Sovereignty of Sea, 580 n. - - Harris, Captain Joseph, condemned to death for striking to Spaniard, 512 - - Harvey, Sir William, 162 - - Harwich, 274, 699 - - Hastings, 33, 40, 41, 145 n., 544 n. - - Hatherly, Lord, on territorial sea, 586 n. - - Hautefeuille, on territorial sea, 601 - - Hawkins, Sir John, 5, 117 - - Hay, Sir George, 186 - - Hay, Sir John, 217, 218, 220 n., 221, 225 n., 227, 239 n. - - Headland doctrine, 360, 622, 624. - _See_ Bays. - - Heath, Attorney-General, 252 - - Heaton, Captain, 437 - - Hebrides, 153 n., 230, 234, 241 n., 301 - - Heemskerk, Jacob van, 5, 118, 183, 343 - - Heffter, on territorial sea, 600; - on range of vision, 546 - - Helgeland, 108 - - Heneage, Lord, 728 n., 739 - - Henrietta Maria, Queen, 380, 382 - - Henry I., 16, 29, 31, 40, 41 - - Henry II., 28 - - Henry II. of France, 117 - - Henry III., 31, 66 - - Henry III. of France, 117 - - Henry IV., 43, 56, 67, 68, 69, 70 - - Henry IV. of France, 159, 204 - - Henry V., 8, 34, 41, 42, 43, 70, 108 - - Henry VI., 38, 70, 109 - - Henry VII., 63, 72, 73, 109, 387 - - Henry VIII., 62, 73, 75, 89, 109, 116 - - Henry, Prince, of Scotland, 81, 169 - - Herbert, Captain, 512 - - Herbert, Sir John, 146 - - Hermetra, 241 n. - - Herring busses, 74 n., 162, 447 - - Herring fishery. _See_ Fisheries, herring. - - Herrings, commerce in, 61, 132, 242; - price of, 97 - - Herschell, Lord, on territorial sea, 592 n., 731 - - Hervey, Lord, 202 - - Heywood, Thomas, 326 and n. - - Higgin, W. H., inquiry on North Sea fishery disputes, 631 - - Highlanders, 216, 242 - - Hitchcock, Captain Robert, 64, 95, 105, 125, 133, 136, 138, 203, 364 n. - - Hoek, Dr P. P. C., 707 n. - - Holland, 45, 60, 62, 64, 71, 72, 74 n., 75, 77, 78, 79, 81, 84, 92, - 94, 95, 104, 125, 129, 132, 135, 139, 144, 151, 171, 172, 175, - 190, 195, 197, 215, 292, 374, 384, 407, 433, 450, 460 - - Holland, Earl of, 77 - - Holland, fishery treaty with, 71, 72 - - Holland, Prof., 359 n.; - on territorial sea, 691 n. - - Hollanders. _See_ Dutch. - - Holmes, Captain Sir Robert, 455, 456 n., 458, 484, 485, 486 - - Hoorn, Simon van, 449 n. - - Horn, Andrew, 542 - - Hovering Acts, 593 - - Howard, Lord William, 117 - - Hübner, on territorial sea, 562 - - Hull, 43, 94, 96, 108, 194 n., 699 - - Humber, 133 - - Hume, 311 n. - - Huxley, Professor, 702 n. - - Hythe, 145 n. - - - Iceland, 4, 28, 86, 88, 97, 108, 109, 112, 113, 133, 145, 247, - 248, 339, 376; - area of fishing-grounds at, 739; - English fishermen attacked by Danes, 109, 110; - English traffic with, 339; - Danish claims at, 528, 529, 567; - fisheries at, 57, 94; - English at, 87, 89, 90, 113, 408; - foreign trawlers at, 700, 707, 711, 714 n.; - fishery dispute between Denmark and United Provinces, 529; - fishery limit at, 647, 648; - seven-mile limit, 739, 740 n. - - Idle persons, 98, 115, 116 - - Impressment of ships, 32 - - Indies, 107, 135, 215, 257, 341, 360, 457 - - Insecurity of sea, 247, 248, 249, 253 - - Institut de Droit International, on territorial sea, 689-692; - articles on, 774 - - _Intercursus Magnus_, treaty, 72, 73, 80, 86, 157, 158, 256 n., 368, - 386, 388, 394, 416, 425, 430, 449, 500 - - International fishery investigations. _See_ Fisheries. - - International Law Association, on territorial sea, 689-692, 774; - Articles on, 774 - - Inveraray, 83 n. - - Ipswich, 247 - - Ireland, 29, 70, 88, 97, 98, 143, 201, 226, 257, 359; - fisheries, 92; - oyster fisheries, 697; - foreigners prohibited from fishing at, 33, 63; - restrictions on trawling beyond three-mile limit, 716; - Spanish fishings at, 67, 98; - territoriality of oyster-beds, 620, 621 - - Irgens, J., Norwegian Minister for Foreign Affairs, 673 n. - - Isabel of Portugal, 70 - - Islay, 230 - - Isle of Man, fishery regulations, 698 - - Isle of May, fishing tithes, 59, 76 - - Italian jurists, 6, 35, 101, 347, 360, 539 - - Italian Republics, 3, 6, 340 - - Italy, 358; - Customs jurisdiction, 594, 661; - reciprocal rights of fishery with Austria, 659; - territorial sea, 659 - - - James I., 9, 17, 62, 73, 75, 81, 136, 257, 346, 347 n., 351, 353, 357 - - James I., a new policy, 118; - antecedents of, 124; - proclamation forbidding hostilities in King’s Chambers, 9, 119, - 360, 750; - concludes peace with Spain, 125; - proclamation restraining foreigners from fishing on British - coasts, 9, 145-148, 150, 541, 755; - remit of Council on, 146; - deliverance of Committee on, 147; - attitude of French towards, 151; - negotiations with Dutch, 151, 155-159, 170, 178-180, 185-194, - 197, 198; - proclamation suspended, 159; - orders records to be searched, 162, 179, 187; - grants of assize herrings, 165, 166; - instructs assize herrings to be levied from foreign fishermen, - 168, 757; - indignation at capture of Brown, satisfaction demanded, 172, 174; - forbids Scottish fishermen to fish within a land-kenning at the - Faroes, 176; - requests Dutch not to fish within sight of land, 176; - requests Scottish Council to prevent the Hollanders fishing within - sight of land, 178; - again demands assize herrings from Dutch, 180; - claims seas around Spitzbergen as British, 183; - appoints commissioners to treat with Dutch envoys, 186; - Dutch ambassadors without power to treat of herring fishery, 188, 189; - indignation with Dutch ambassadors, 189; - again gives way on the herring fishery question, 192; - requests Dutch to prohibit fishing within fourteen miles, 192; - negotiations with Dutch as to whale fishery, 193; - Carleton advises fixing a limit, 193; - Dutch agree to keep out of sight of shore, 193; - orders assize herrings to be again collected, 194, 196; - Dutch embassy appointed, 198; - Dutch ambassadors without instructions to deal with fishery - question, 199; - speech to Dutch ambassadors, 199; - indignation against Dutch, 200; - Dutch ambassadors advise States-General to settle fishery - question, 200; - failure of policy of assize herring, 203 - - James II., 517 - - James III. of Scotland, 83 - - James V. of Scotland, 77, 78, 83, 218 - - James VI. of Scotland, treaty with Dutch, 80, 81 - - Jan Mayen, sealing at, 695; - whaling at, 527 - - Japan, territorial sea, 661 - - Jenkins, Sir Leoline, judge of the High Court of Admiralty, judicial - decisions regarding neutral waters, 553; - plenipotentiary at Cologne, 498; - on case of the _Merlin_, 480; - on confiscation of Smyrna fleet, 486; - on sovereignty of sea, 484 n.; - on striking, 477, 480, 481, 501-503, 511, 512, 513 - - Jenkinson. _See_ Lord Liverpool. - - Jennings, Edward, 115 - - Jersey, 36 - - Joachimi, Dutch ambassador, 155, 256, 301, 302, 304, 305, 306, 384 - - John’s ordinance, 6, 16; - on striking, 39-43, 278, 365, 409 - - Johnsen, Hans, on Moray Firth, 728 n. - - Jongestal, Dutch ambassador, 415, 417, 433 - - Jonson, Ben, 115, 196 n. - - Juridical controversies about sovereignty of sea, 338-340, 410-413 - - - Kanin, Cape, 657, 713 - - Kemble, 27, 28 - - Kennet, 311 n. - - Kent, on territorial sea, 599 - - Kerouaille, Mademoiselle de, 475 - - Ketelby, Captain, 281 - - Keymer, John, author of the “Raleigh” tract, 126, 127, 128 n., 131, 358 - - Killigrew, Sir William, 280 - - King James’s Newland, 183 - - King John’s ordinance. _See_ John. - - King, Thomas, 446, 448 - - King’s Chambers, 50, 54, 209, 260, 262, 263, 359, 360, 373, 539, 553, - 598, 622, 723 n.; - declaration of Trinity House as to limits of, 753; - description of, 120; - defined by James I., 9, 118, 120; - extent of, 122, 251; - proclamation concerning, 251, 750; - question of validity of, 576, 577; - restricted to neutrality, 122, 251, 548; - violation of, 10, 245, 247, 255, 256, 258, 259, 326, 328, 330-333, 336 - - Kirkelee, 49 - - Kishinouye, Dr, 661 n. - - Kleen, on territorial sea, 685 - - Klüber, on territorial sea, 597 - - Kronberg, striking at, 473, 520 - - Kyllachy, Lord, on territorial sea, 725 - - - Lake, Sir Thomas, 359 n. - - Lampredi, on territorial sea, 562 - - Lampreys, 244 - - “Land-fishing” in Scotland, 222, 226 - - Land-kenning in Scotland, 77, 84, 144, 154, 175, 176, 177 n., 178, - 192, 193, 211, 218, 221, 222 n., 223, 228, 235, 545, 546; - at Faroes, 175. - _See_ Territorial Sea, Range of Vision. - - Land-van-Staten, 506, 508, 510, 515 - - Larrey, 311 n. - - Latour, on territorial sea, 595, 685 - - Laud, Archbishop, 243, 306, 314, 316, 368, 376 n. - - Lauderdale, Lord, 187, 483, 507 - - Laughton, Professor, 521 n. - - Law, early English, as to fishing, 66 - - Lawrence on territorial sea, 683, 688 - - Laws of Oleron, 6, 40, 42, 44 n., 51, 52, 54, 213, 363, 365 - - Laws of the Sea, old, 30, 52 n. - - Lawson, Vice-Admiral Sir John, 437, 456, 457 n., 463, 472 - - _Leda_, case of, 586 n. - - Lediard, 167 n., 311 n. - - Lefevre, Mr Shaw. _See_ Lord Eversley. - - Leghorn, 402, 473 - - Leicester, Earl of, 96, 264 n. - - Lennox, Duke of, 130 n., 166, 168, 170, 172, 186, 195 and n., 230 n., - 353, 461; - grant of assize herrings to, 166, 168 - - Lent, 75, 87, 88, 114, 136, 214, 242, 244; - difficulties in enforcing observance of, 114, 115; - laxity of observance of, 88, 89; - measures to enforce observance of, 88, 114. - _See also_ Political Lent. - - Leon, 32 - - “L’Espagnols sur Mer,” battle of, 37, 67 - - Levant, 340 - - Levi, Leoni, on territorial sea, 664 n. - - Lewes, 216, 217, 220, 221, 224, 227, 234, 235, 237, 241, 242 - - Lewis, 216, 217 and n. - - Leybourne, Lord William de, 45 n. - - Leyden, 73, 342 - - Libelle of Englyshe Polycye, 18, 30, 37, 38 n. - - Licenses for foreign fishermen, 62, 63, 111, 141, 210, 235, 257, - 264, 288, 292, 294, 425, 426, 430, 453; - for Dutch, 272, 488, 489; - distributed to the busses, 300; - sums received for, 309, 310, 311; - offered to Dutch, 317; - to French, 440, 454; - to Swedes to fish in British seas, 427; - Danish to fish at Iceland and northern seas, 108-112 - - Liens, Joachim, Dutch Ambassador, 185 n. - - Ligurian Sea, sovereignty of, 4, 339, 341, 371, 411 - - Lindsay, Thomas, 242 - - Lindsey, Earl of, 250, 256, 257, 267, 270, 271, 275 n., 282, 284, - 286, 287, 380; - appointed Admiral of the first ship-money fleet, 259; - his instructions from the Admiralty, 260; - private instructions from Charles I., 264; - to force licenses on Dutch fishermen, 264; - punctilios of, as to flags, extent of British Seas, 264, 265, - 266, 269; - dissatisfaction of Charles with, 268; - and the Dutch herring busses, 272; - proceedings of the fleet, 259-274 - - Lisle, Viscount, 428, 429 - - Liverpool, Lord, on neutral rights, 596 - - Lizard, 103, 122, 269, 437 - - Loccenius, on territorial sea, 550 - - Loch Broom, 83 - - Loch Fyne, 83, 153 n. - - Loch Maddy, 241 n. - - Lofoten Isles, 672 - - Logan, Sir Robert, 77 n. - - London, 7, 49, 50, 61, 88, 94, 96, 114, 124, 140, 189, 198, 199, - 214, 223, 241, 266, 299 n., 330, 358, 384, 396, 404, 407, 428, - 439, 443, 446, 448, 449; - consumption of fish in, 87, 97; - fish supply of, 131, 134, 144, 241 n.; - and Fishery Society, 443; - fishmongers of, 89 - - Long Parliament, 336, 414; - attitude towards Sovereignty of Sea, 378, 379, 380, 381, 382 - - Lord Mayor, 115, 202, 214, 443, 448 - - Loreburn, Lord, on territorial sea, 732 - - “Lords of the Sea,” English kings as, 8, 28, 35, 36, 38 n., 39, 209, - 210, 211, 244, 373 - - Lothian, Firth of, 153 n., 233, 235, 239 - - Lottery for Fishery Society, 244, 446, 447 - - Louis of Nassau, 449 n. - - Louis XIV., 463, 465, 474, 476, 483, 490, 493, 503, 518, 526; - on fishery question, 453; - intrigue with Charles, 459; - reveals to Charles De Witt’s negotiations, 471; - his policy, 474; - declares war against States-General, 488; - on striking, 518 - - Low Countries, 73, 77, 94; - fisheries of, 98; - fishermen of, 94, 100, 144. - _See also_ Dutch and Netherlands. - - Lowestoft, 249, 307, 469 - - Lucas farthing, 470 n. - - Lundy, Laird of, 188 - - Lushington, Dr, on territorial sea, 586 n. - - Lynn, 49, 77 n., 90, 108, 247 - - - Mackerel fishery, 134, 150 - - MacLeod, Sir Reginald, 667 n., 673 n. - - Madrid, 150, 201, 253, 318 - - Mainwaring, Sir H., 65 n. - - Malynes, Gerard, 128 n., 130 n., 138 n., 160; - on the appropriation of the sea, 358 - - Manning, on territorial sea, 600 - - Mansel, Sir Robert, 219 n. - - _Mare Clausum_, 11, 19, 20, 251, 254, 257, 258 n., 286, 287, 288, - 289, 302, 315 n., 330, 365, 369, 375. - _See_ Selden. - - _Mare Liberum_, 255, 256 n., 257, 338, 340, 342, 374, 410. - _See_ Grotius. - - Margaret of Savoy, 73 - - Marine laws, 51, 52, 54 - - Maritime laws, 41, 42, 44 - - Marlborough, Duke of, 486 n., 531 - - Marion, Professor A. F., 667 n. - - Marten, Sir Henry, 155, 174, 244 n., 251, 263, 264, 278, 283, 288, 295 - - Martens, F., 194 n. - - Martens, G. F. von, on territorial sea, 563 - - Martens, Professor de, on territorial sea, 686, 688 - - Martin, Martin, 241 n. - - Martin, Sir Henry, 39, 119 n., 762 - - Mary, Queen, 64, 88, 91, 117, 141, 206 - - Mary, Queen, of Hungary and Bohemia, 80 and n. - - Mary Stuart, Queen, 79, 81, 83 - - Mason, Capt. John, 153 n., 167 n., 216, 219 n., 220 n., 241, 364 n.; - grant of assize herrings to, 165, 166, 167 n. - - Massé, on territorial sea, 602 - - Masson, Professor, 195 n. - - Masterman, Captain Walter S., 711 n. - - Masterman, Dr A. T., 735 n. - - Maurice, Count, 173 - - Maximilian of Austria, 72 - - Meadows, Sir Philip, on sovereignty of sea, 397, 428 n., 510, 524, 694; - proposes a convention for fishery limits, 525 - - Mechlin, 71 - - Medina Sidonia, Duke of, 142 - - Mediterranean, 28, 30, 134, 143, 340, 347, 372, 389, 437, 457, 485; - striking in, _See_ Striking. - - Meerman, Dutch ambassador, 483 - - Melrose, Earl of, 179 n. - - Mendoza, 107 - - Merchant Adventurers, 160, 292 - - Merchant Associations to secure the peace of the sea, 6, 30 - - _Mercurius Politicus_, 410 - - _Merlin_, the King’s yacht, 15, 477-482, 510; - encounter with Dutch fleet, 479; - inquiry by Sir Leoline Jenkins on, 480 - - Mervin, Sir Henry, 284, 287, 296, 297, 300, 327 - - Mexico, Customs jurisdiction, 594; - pearl fisheries, 697; - treaties with, 679 and n. - - Mid-line (_Thalweg_), 3, 101, 102, 111, 226, 361, 373, 541, 542, 652 - - Miles, Scots, 233 n. - - Milton, John, 410, 428 n., 524 - - Minch, 230 - - _Mirror of Justice_ and mid-line, 542 - - Molloy, on sovereignty of sea, 514; - on striking, 557 - - Monk, Duke of Albemarle, 408; - on Dutch commerce, 457, 459 - - Monson, Sir William, 130 n., 132, 135, 143, 202, 204, 205, 206 n., - 208, 216, 219 n., 259 - - Montague, General. _See_ Earl of Sandwich. - - Monteith, Earl of, 224, 225 n., 239 n. - - Moore, on sovereignty of sea, 580 n.; - on territorial sea, 691 n. - - Moray Firth, 233, 235, 239; - prohibition of trawling within, 718, 720; - foreign trawlers in, 647, 720-728; - Norwegian-registered trawlers in, 721, 727; - prosecution and conviction of foreign trawlers, 722, 723, 724, 727; - case of _Catalonia_, 722; - of Emmanuel Mortensen, 722, 724-727; - of Martin Olsen, 722; - of _Niobe_, 722, 724; - of _Pinewold_, 723; - of _Verbena_, 723; - High Court of Justiciary decides prohibition applies to foreigners, - 722, 724-727; - protest by Norway, 727, 728; - Norway favours a convention, 728, 730; - and warns Norwegian trawlers to cease fishing in Moray Firth, 728; - actions against British subjects on foreign trawlers, 728, 729; - views of Foreign Office, 729, 730; - proposal of International Council, 737; - territoriality of, 723-728, 729, 732, 734; - opinions of Scottish judges as to territoriality of, 724-727 - - Moray Firth, herring fishery in, 61 - - Morocco, 5, 256, 668; - trawling at, 713 - - Morton, Earl of, 225 n., 239 n. - - Moser, on territorial sea, 562 - - Muncke, Levinus, 155, 156 n. - - Mundesley, 247 - - Murray, Captain David, 172, 195 n., 196 - - Muscovy Company, 160; - whale fishery of, 181, 182, 183, 184, 194 n. - - Musselburgh, 175 n., 445 - - - Nansen, Dr Fridtjof, Norwegian Minister, 673 n., 728 - - Nantes, 97 - - Narrow seas, the, 8, 18, 19, 26, 29, 30, 34, 36, 113, 212, 213, - 214, 253, 256, 260, 261, 270, 274, 287, 324 n., 327, 328, 361, - 363, 381, 408, 430, 458, 459 n.; - description of, 18; - herring fisheries in, 67; - hostilities prohibited in, 261, 262, 263; - prizes taken in, 359 n.; - striking in, 204-206, 270, 402. - _See_ Channel. - - National Sea Fisheries Protection Association, 667 n., 706, 728 n., 740 - - Naval Salute. _See_ Striking. - - Navare, Michel de, 49 - - Navigation, freedom of, 3, 5, 6, 8, 11, 20, 33, 34, 35, 43, 67, 86, - 106, 158, 341, 346, 358, 360, 365, 421, 497, 676 - - Navigation Act of 1651, 391 and n., 392, 413, 416, 419; - of 1660, 441, 451, 464 - - Navy, 2, 5, 10, 11, 22, 26, 27, 31, 32, 34, 58, 68, 91, 92, 113, 117, - 134, 246, 251, 252, 255, 257, 286, 288, 379, 428, 475, 517, 523; - under Charles I., 246; - under Edward III., 33, 36, 38; - under Henry IV., 68; - under Henry VI., 38; - complaint of Commons on, 38 - - Navy and fisheries, 428 - - Needham, Marchamont, 410, 411 - - Netherlands, 21, 74, 76, 78, 79, 81, 82, 93 n., 94, 105, 112, 125, - 126, 127 n., 138, 144, 168, 185, 200, 203, 312, 380, 397; - prohibit their fishermen from fishing within two leagues of Scottish - coast, 605, 606; - territorial sea, 658. - _See_ Dutch. - - Neutral waters, 22, 119, 120, 359 n., 548, 586, 622, 641 n., 665, 685, - 775; - decrees regarding, 569-571; - limit of, 546; - proclamations and decisions regarding, 553, 554; - Scandinavian limit of, 568; - treaties regarding, 571, 572; - usage in seventeenth century, 552, 553, 554 - - Newcastle, 34 n., 96, 114, 248, 249, 252, 273 n., 428 - - Newfoundland, 86, 88, 92, 97, 113, 219, 589; - fishery rights at, 531, 532 - - Nicholas, Secretary of Admiralty, 44 n., 213, 262, 263, 275 n., 278, - 292, 295, 318, 322 - - Nicholl, Sir John, on territorial sea, 586 n. - - Nicolas, Sir N. H., 37, 45 n., 46 n., 53, 56 - - Nieuport, 60, 327, 400 - - Nieuport, William, Dutch ambassador, 395, 415, 417, 433 - - Nootka Sound, 573 - - Nordland, 108 - - Norfolk, 46 n., 63, 90, 94, 101, 162, 248 - - Norham, 60 - - Norman Conquest, 6, 27, 28, 29, 30, 31, 59, 372 - - Normandy, 29, 36, 43, 48, 50, 59, 62, 69, 74, 97, 103, 129, 213 - - Northampton, Earl of, 138, 353 - - North Cape, 58, 86, 478, 502, 503 - - North-east passage, 343 - - Northmen, sea power of, 26, 28 - - North Sea, 21, 22, 43, 246, 247, 382, 432, 434, 465, 466 n.; - fisheries, 43, 60, 87, 89, 130, 131, 133, 408, 470; - Conference at Hague on, 1881, 632; - Fishery Convention, 1882, 634, 637, 638, 639, 644, 721, 722, - 725, 726, 735, 737; - defects in definitions, 641; - question of limit of exclusive fishing on other coasts, 643, 644, - 645, 646; - Sweden and Norway decline to join, 636; - development of trawling in, 699, 700; - impoverishment of fishing-grounds in, 706-710, 711, 738, 739 n. - - Northumberland, Earl of, 131, 243, 264, 266 n., 278, 279, 319, 320, - 322, 323, 327, 379, 380, 388, 425, 426, 557; - appointed admiral of second ship-money fleet, 287; - instructions of Admiralty, 289, 290; - instructions from Charles, 295; - proceedings of fleet in Channel, 290, 291; - proceedings of fleet against Dutch fishermen, 295-300, 307-311; - forces licenses on Dutch fishermen, 12, 291, 296, 297, 298, 299, - 300, 301, 308; - appointed admiral of the third ship-money fleet, 319; - appointed Lord High Admiral, 329 - - Norway, 34, 45, 169 n., 339, 527; - area of fishing-grounds, 738; - Customs jurisdiction, 594; - declines three-mile limit, 633, 678; - declines to adhere to North Sea Convention, 636, 783; - disputes with England as to fisheries, 108, 110; - fisheries, 92; - fisheries in Vestfjord, 672, 677; - fishery limit early fixed, 528; - special fishery limits, 671, 672, 678, 679; - foreign trawlers seized for illegal fishing, 680; - registered trawlers in Moray Firth, 721, 727, 728; - sovereignty of sea of, 4; - territorial sea, 653, 669-681, 685; - method of computing, 653, 655, 669, 670, 676, 678, 685; - respected by foreign fishermen, 677, 678 - - Norwegian Sea, sovereignty over, 4, 16 - - Nottingham, Earl of, 206, 353 - - Nova Zembla, 184 - - - Okhotsk, Sea of, foreigners fishing in, 585 - - Oldenbarneveldt. _See_ Barneveldt. - - Oldys, 127 n. - - Oleron, Laws of. _See_ Laws. - - _Onward Ho!_ case of, 657 n. - - Oppenheim, on territorial sea, 688 - - Oquendo, Don Antonio de, 330-334 - - Orange, Prince of, 190, 197, 303, 306, 314, 315 n., 384, 387, 422, - 430, 433, 434, 460, 462, 490, 491, 492, 503, 517 - - Orfordness, 49, 277, 553 - - Orkney, 88, 108, 126, 165, 169, 180, 201, 215, 221, 227, 230, 234, 406 - - Orkney, Earl of, 169 n. - - Ormonde, Marquis of, 450 - - Ortolan, on territorial sea, 601 - - Orwell, 54 - - Ossory, Lord, 485, 486 n. - - Ostend, 43, 309 - - Ouwers, Egidio, 273 n. - - Overbury, Sir Thomas, 127 n. - - Over-Yssel, 81 - - Owen, Captain, 382 - - Oxford, 358 - - Oyster fisheries, special treatment of, 657; - question of territoriality of Irish, 620, 621; - reserved for French, 612, 619, 620 - - - Pacius, on Venetian dominion of sea, 351 - - Palatinate, 198, 199, 210, 253, 265, 271, 274, 275, 286, 302, 305, - 306, 314, 315, 316, 331 - - Papal Bulls, 5, 105, 106, 107, 339, 342, 344, 372 - - Pardessus, 41, 42 - - Parliament, 67, 77 n., 116, 211, 214, 367, 409, 414, 443, 449, 457, - 458, 475, 483, 492, 493, 503, 506, 532; - on safeguarding the sea, 34; - petitions for dues on navigation of Channel, 35; - on navy, 38 - - Parliament of Ireland, 33, 63 - - Parliament of Scotland, 82, 218, 220, 221, 222, 223, 224, 225 - - Parry, Sir Thomas, 155 - - Pauw, Adrian, Dutch ambassador, 405, 414 - - Pearl fisheries, 697; - Vattel on, 560 - - Pedrogue, John de, 45 n., 49, 50 - - Pembroke, Earl of, 227, 239 n., 240-244, 446 - - Pendennis Castle, 280 - - Penn, Sir William, 383, 408, 456 - - Pennington, Sir John, 208, 212, 244, 259, 261, 264, 274, 275 n., - 287, 290, 296, 297, 321, 322, 324, 327, 328, 379, 403; - instructions as to striking, 261-263, 276, 277; - suggestion as to neutral waters round a King’s ship, 262; - on striking, 277, 278, 279, 280, 283; - action at Battle of Downs, 329-335 - - Pepys, Samuel, 312 n., 513, 514; - on Fishery Society, 447 n., 448, 449; - on striking, 456; - on second Dutch war, 458, 459; - on state of navy, 517 - - Perels, on territorial sea, 652, 684, 688 - - Perkins, Sir Christopher, 146, 155 - - Perre, Van de, Dutch ambassador, 391, 415 - - Petersen, Gisbert, fishing license to, 460 - - Philip, Archduke of Austria, 72 - - Philip the Fair, 44 - - Philip II., 64, 81, 107, 141, 205, 425, 426, 544 - - Philip III., 350 - - Philip IV., 350 - - Phillimore, 312 n.; - on territorial sea, 682 - - Picardy, 29, 62, 74, 88, 103, 130 - - Picaroons, 273, 276 - - Pilchard, 134, 143, 227, 235, 447 - - Piracy, prevalence of, 4, 5, 7, 30, 43 - - Pirates, 68, 72 n., 78, 79, 82, 91, 247, 253, 254, 260, 269, 274, - 284 n., 291, 292, 327, 339, 390, 421, 456, 471 - - Pistoye and Duverdy, on territorial sea, 602 - - Pitt, on fishery arrangements with France, 532 - - Pittenweem, 59, 175 n. - - Plague, 299 n. - - Plancius, 183 - - Plantagenets, 8, 11, 30, 43, 75, 209, 211, 213, 258, 368, 421 - - Plegher, 80 - - Plowden, on sea of England, 102, 111, 361, 543 - - Plumleigh, Captain, 208, 277, 280 - - Plymouth, 33, 117, 267, 268, 327 - - Poland, 61; - claim to Baltic, 4, 371, 377 - - Political Lent, the, 87, 88, 89, 112, 114 - - Pontalis, on fishery question, 453 n. - - Pontanus, J. I., on Selden’s _Mare Clausum_, 376, 550 - - Pope, the, 28, 105, 106, 107, 212, 277 n., 339, 371 - - Popham, Col. Edward, 382 - - Porpoise, 88 - - Portland, 267 - - Portland Castle, 256, 279 - - Portland, Earl of, 239 n., 241, 253 - - Portsmouth, 114, 408 - - Portsmouth, Duchess of, 475 - - Portugal, 91, 268; - area of fishing-grounds, 738; - fishermen visit British coasts, 129; - and Irish coast, 98; - fishery treaty with, 67; - foreign trawlers at, 713; - claim to sovereignty of sea, 5, 86, 105-108, 112, 340, 343, 344, 350; - territorial sea, 569, 664, 668 - - Pradier-Fodéré, on territorial sea, 684, 688 - - Prerogative of crown, 236 - - Pribilov Islands, 695 - - Privateers, 462 - - Prize, law of, 359 n. - - Prussia, 34, 216; - fishermen on British coasts, 605 - - Prynne, Keeper of the Records, 17, 25, 27 n., 39, 43, 44 n., 213, - 326 n., 352 n., 367 and n.; - on the sovereignty of the sea, 493 - - Puffendorf, on territorial sea, 551 - - - Quarantine Acts, 594 - - - Rainsford, Richard, 64, 138, 141, 142, 145, 159 - - Raleigh, Sir Walter, 127 and n., 136, 204, 413 - - Raleigh tract. _See_ Keymer. - - Ramsgate, 699 - - Range of guns, Grotius on, 349; - range of modern guns, 21; - range of gun limit, 549; - range of guns and salute, 473 n.; - range of vision, 175, 193, 544; - claimed by Denmark, 529; - Grotius on, 347; - old English law, 544; - prescribed by Philip II., 544 - _See_ Land-kenning and Territorial sea. - - Rapin, 167 n., 311 n. - - Rayneval, on range of vision, 546; - on territorial sea, 596 - - Reddie, on territorial sea, 600 - - Reformation, 67; - influence of, on fisheries, 75, 87, 89, 92 - - Reprisals between Scots and Dutch, 77, 78, 79, 84; - between traders, 53, 54 - - Reserved waters. _See_ Scotland. - - Restoration, the, 14, 441 - - Revocation, Act of, 226 - - Rhé, Isle de, 246, 290 - - Richard I., 32, 40, 41, 51, 52 - - Richard II., 33, 62, 363 - - Richard III., 63, 72 n. - - Richelieu, Cardinal, 12, 210, 246, 261, 270, 271, 272, 273, 275, - 276 n., 283, 291, 314, 526 - - Right of fishery. _See_ Fishery. - - Right of search, 13, 330, 389, 393 - - Rio de la Plata, territoriality of, 663 - - Ripperda, Joachim, Dutch ambassador, 449 - - Rivalry in trade between English and Dutch, 10, 441, 457 - - Rochelle, 97, 267, 276 n., 290 - - Roe, Sir Thomas, 240, 276, 303, 306, 314, 315, 316 n., 323, 324 - - Roman law as to sea, 3, 344, 353, 356, 360, 539; - as to fishing, 66 - - Romans and sovereignty of sea, 26 - - Rool d’Oleron. _See_ Laws of Oleron. - - Rose, Richard, 324 n. - - Rosny, Sieur de, 204 - - Rostock, 195 - - Rotterdam, 79, 171, 327, 397 n., 511 - - Rouen, 61 - - Royal fishery, Pepys on, 447 n., 448 - - Roxburgh, Earl of, 225 n., 239 n. - - Rupert, Prince, 382, 493 - - Russia, 29, 61, 110, 142, 158, 358; - Behring Sea question, 581, 582; - Company, _see_ Muscovy Company; - Customs limit, 656, 657 n.; - territorial sea, 656 - - Ruyter, Captain, 298 n., 304 - - Rye, 33, 54, 65, 145 n., 483 - - Ryley, William, Keeper of the Records, 409, 410 n. - - Ryswick, 466 n. - - - Saen, Joris van der, 402, 404 - - St Andrews, 352 - - St George’s Channel, 142 - - St John, Lord Chief-Justice, 72; - proceeds to The Hague, 384; - negotiations with Dutch, 385-390; - his proposals for alliance and coalescence, 385; - _Intercursus Magnus_ taken as basis of treaty, 386, 387; - his seven articles, 387; - the Dutch thirty-six articles, 388; - abstract of, 764; - as to fishing, 388, 389; - Dutch proposals as to sovereignty of sea, 389; - for a joint fleet to police the seas, 389, 395; - Dutch withdraw proposal as to striking, 390; - failure of negotiations, 390; - leaves The Hague, 391 - - St Lo, Captain George, on fishery limit at Yarmouth, 546 n. - - Safe-conducts for fishing, 7, 33, 74 - - Salisbury, Earl, 64, 130 n., 150, 151, 155, 159, 223, 227 n., 359 n., 360; - on 100-mile limit, 541 - - Salisbury, Marquis of, on territorial sea, 592, 731 - - Salisbury, Miss E., 45 n. - - Salmon fishing, 26, 233, 234, 235 - - Salute. _See_ Striking. - - Sandwich, 73; - Knut’s grant of, 542 - - Sandwich, Earl of, 438, 463, 472 - - Saracens, 5, 339 - - Sarpi, on territorial sea, 547 - - Savage, Viscount, 239 n. - - Savoy, Duke of, 540 - - Scania, 34, 362 n.; - decline of herring fishery at, 61 - - Scarborough, 49, 89, 108, 142, 247, 250, 256, 273, 274, 322; - castle, 64 - - Scaw, three-mile limit at, varies, 640 n. - - Schaep, Dutch ambassador, 391 - - Schelde, 28 - - Scheveningen, 460 - - Schiedam, 78, 79, 318, 397 n. - - Schmalz, on territorial sea, 597 - - Scilly Isles, 269, 390, 398, 399 - - Scotland, 48, 49, 59, 88; - Draft Treaty of Union with England, 1604, 84, 192, 223, 227, 228, - 230, 232, 694; - fish exported from, 61; - fisheries of, 93; - importance of, 76; - claim to, 76, 82; - exclusive spirit as to, 76; - policy towards, 82; - treaties regarding, 75-82; - foreigners at West Coast fishings, 83, 130; - jealousy of foreign fishermen, 77, 124; - fishing in bays and lochs prohibited, 202; - attacks on Dutch fishermen, 77; - complaints against Dutch fishermen, 144, 168, 177, 201, 234, 301; - complaints against French fishermen, 606, 617; - Dutch edicts _re_ fishing, 201; - old fishery limits, 226-229; - old limit against Dutch, 83, 84; - herring fishery in, 59, 61, 76, 79, 83, 143, 221 n.; - extra-territorial jurisdiction in, 698; - instructions of Privy Council _re_ assize herrings, 757; - fishery Acts, 76; - fishery scheme, 225, 227; - fishery society, 444; - fishing in lochs claimed, 218; - “land fishing” described, 222 and n.; - land-kenning, _see_ Land-kenning; - limits of territorial sea, 226, 227, 228, 229, 230; - limit of 14 miles in Draft Treaty of Union, 223; - limit of two leagues fixed by Dutch, 605, 606; - reserved waters, 77, 84, 209, 211, 218, 220, 222, 223, 226-230, 234, - 236-238, 445, 547 - - Scotland, royal burghs, 76, 216, 217, 220, 221; - ask that the Dutch be removed within a land-kenning, 221; - and fishery society, 445; - oppose assize herrings, 166; - territoriality of firths, 692; - trawling restrictions on, 715, 716; - Fishery Board empowered to restrict, 717; - Bill to extend prohibition of, 720; - Act fixing thirteen-mile limit for, 720; - treaties with the Dutch, 188 n. - - Scotland, Sea Fisheries Regulation Act, 1895, 592 - - Scott, Thomas, 284 - - Scott, Sir William. _See_ Stowell, Lord. - - Scottish Seas, the, 226 - - Scudamore, Lord, 272 - - Sea, appropriation of, 537, 539; - in Middle Ages, 3; - reasons for, 5; - Roman law on, 539, 541; - opinions of Italian jurists, 101, 104; - opinions of modern jurists on, 552; - Bynkershoek, 555; - Callis, 363; - Lord Chief-Justice Coke on, 363; - Gentilis on, 358, 359; - Graswinckel on, 411, 412; - Loccenius, 550; - Puffendorf, 550; - Lord Salisbury on, 361; - Selden, 370-374; - Lord Stair, 545 n.; - Vattel, 560 - - Sea, exhaustibility of. _See_ Fisheries. - - Sea, “High Seas,” 50, 54 - - Sea, insecurity of, 5, 6, 30, 53, 54, 57, 70, 247-257 - - Sea, measures for guarding, 31, 32, 33, 34 - - Sea, sovereignty of. _See_ Sovereignty. - - Sea of England, 7, 8, 9, 11, 20, 31, 41, 101, 209; - extent of, 15, 16, 54, 55, 56; - seizure of ships in, by Grimbald, 49, 50; - sovereign lordship of, 43, 46, 51, 54, 55; - Callis on, 363; - Plowden on, 102; - terms applied to, 16, 17; - the “Two Seas,” 17; - the “Three Seas,” 17; - the “Four Seas,” 17, 18, 251 - - Sea, property in bed of, 362 - - Seaforth, Earl of, 216, 220, 221, 222 n. - - Sealing, 695, 696 - - Seals, 88 - - Seas, British, extent of, 15, 16, 18, 19, 20, 26, 208, 264 and n., - 381, 418, 419, 429, 431-437, 459 n., 465, 466 and n., 469, 470, - 477, 495, 505, 506 and n., 510, 515, 521; - Admiralty on, 437, 438; - reluctance of Admiralty to define, 20, 264 and n.; - boundaries intentionally left undefined, 20; - Dee on extent of, 101-103; - dispute as to extent of, 437; - Richard Cromwell on extent of, 438; - Thurloe on extent of, 434; - Trinity House on extent of, 20, 477, 478; - on striking in, 469, 470, 501-505; - claim to, gradually died out, 21 - - Sebastian, King, 107 - - Secretary for Scotland, 219, 227 n., 232 - - Seine, 26, 28 - - Seines, Bill to prohibit, within ten miles, 444 n. - - Selden, 11, 17, 20, 25, 26, 31, 32, 33, 34, 39, 41, 43, 44, 45 n., 48, - 49, 55, 56, 62, 64 n., 66, 119 n., 183, 186 n., 213, 251, 254, - 258 n., 279, 286, 305, 352 n., 353, 363, 410 n., 456, 469, 546, - 550, 551; - controversy with Graswinckel, 411, 412; - imprisonment and release of, 367; - requested by Charles to write _Mare Clausum_, 366; - on British seas, 19; - on English sovereignty of sea, 373, 374; - on exhaustibility of sea, 372; - _Mare Clausum_, 11, 20, 254, 258 n., 315 n., 330, 389, 425, 456, - 502, 504, 509 n., 543; - history of, 365, 366; - publication of, 288, 367; - political importance of, 368, 369; - importance of, in English law, 369, 374; - satisfaction of Charles with, 368, 369; - arguments of, 369-374; - anxiety in Holland about, 374, 375; - translated, 410 - - Semeyns, Meynert, 242 n. - - Servat, William, 50 - - Seven Stones Rocks, territoriality of, 642, 643 - - Shaftesbury, Earl of, 492; - on the Dutch, 506 - - Sheerness seized by Dutch, 459 - - Shetlands, 4, 76, 88, 89, 90 n., 108, 113, 126, 129, 131, 151, 165, - 169, 180, 201, 215, 221, 227, 230, 234, 238, 241, 406, 443, 534 - - Shields, 84 - - Ship-money, 324, 329, 379 - - Ship-money fleet, first, 256, 259 n.; - object of, 260, 264, 265; - proceedings of, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274; - failure of, 274, 275. - _See_ Lindsey. - Second, 286; - its object, 287, 288; - opinion of Admiralty on convoying foreign vessels, 288, 289, 762; - on protecting foreign licensed fishermen, 288, 762; - proceedings of fleet, 290, 291, 295-301, 307-311; - failure to meet with French, 290; - instructions of Charles as to foreign fishermen, 295; - licenses distributed to Dutch herring busses, 298, 300, 308; - amount received as convoy and license-money, 309, 310, 311. - _See_ Northumberland. - Third, 319, 323. - Fourth, 327. - - Ship-money writs, 36 n., 211, 253, 254, 286 - - Ships, impressment of, 32 - - Shookius, 550 - - Shovel, Sir Cloudesley, 520 - - Shrewsbury, Duke of, 520 - - Sicily, 29 - - Skagerrack, 438 and n.; - territoriality of, 636, 653 - - Sleeve, the, 260 - - Slingsby, Capt., 327 - - Sluys, battle of, 36, 37, 38 - - Smeerenburg, 194 n. - - Smith, Captain John, 312 n., 494 - - Smith, Lieut. Thomas, dismissed for forcing French to strike, 521 - - Smith, Northumberland’s Secretary, 328, 331, 332 - - Smith, Simon, 242 n., 244 n., 442, 443 n., 448 - - Smyrna fleet, 485, 486, 487 - - Society of Fishing Merchants, 138, 159 - - Solebay, battle of, 489 - - Solinus, 25 - - Somerset, Earl of, 56 n. - - Sommelsdijck, Lord of. _See_ Aerssen. - - Sound, the sovereignty over, 4, 8, 16, 108; - toll levied at the, 4, 8, 35, 91, 108, 110, 154, 190, 339, 501 - - South America, territorial sea, 661 - - Southampton, 68, 73, 94 - - Southwold, 90 n., 534 - - “Sovereign of the Seas,” the, 28, 326 - - Sovereignty of the sea, among ancients, 371 n., 373 - - Sovereignty of sea, decadence of claim to, 15, 517, 522, 523, 566 - - Sovereignty of sea, juridical controversies about, 5, 410-413; - liberty of navigation, 8, 11, 33, 34, 54. - _See_ Navigation. - - Sovereignty of the sea, meaning of, 2; - striking as a symbol of, 39 - - Sovereignty of sea, treatises on, 364 n. - - Sovereignty of the sea, Barrère on, 595; - Blackstone, 580 n.; - Boroughs, 364-366; - Champagne, 595, 596; - Chitty, 580 n.; - Secretary Coke, 272; - Cromwell, 423, 424; - Dr Dee, 99, 103; - De Witt, 454, 468, 470; - Evelyn, 514; - English writers, 493, 494, 513; - Gentilis, 359; - Hall, 580 n.; - Hargrave, 580 n.; - Italian jurists, 6; - Jenkins, 484 n.; - Loccenius, 550; - Molloy, 514; - Moore, 580 n.; - naval historians on, 521; - Selden, 370-374; - Stubbe, 496-498; - Wicquefort, 495; - Baltic, 4, 33, 552; - Bothnian Gulf, 4 - - Sovereignty of sea, Denmark, 4, 8, 16, 33, 105, 108, 158, 339, 371, - 376, 530, 552, 567; - contested by Elizabeth, 86; - England, origin of English claims, 6, 29, 30; - nature of, 8, 30; - defects of, 33; - early history of, 25; - under ancient Britons, 25, 26; - under Romans, 25, 365; - under Anglo-Saxons, 26; - under King Edgar, 27; - before Norman Conquest, 27; - after Norman Conquest, 29; - under Plantagenet Kings, 30, 40, 51, 52; - rolls concerning, 8, 43, 44, 45, 740, 744; - not claimed, by Tudors, 86, 111; - importance of claim under Stuarts, 9, 10, 118; - claimed as a prerogative of the crown, 211; - aimed against Dutch, 10, 125; - extravagant claims under Charles I., 209, 251, 264, 274; - under the Commonwealth, 378-382, 394, 395, 409, 412; - under Charles II., 441, 458, 487, 488; - decadence of claim, 15, 517, 522, 523; - of France, 287; - of Genoa, 4, 339, 341, 371; - of Norway, 4, 16, 530; - of Pisans, 371; - Poland, 4, 377; - Portugal, 5, 105-108, 112, 338, 339, 341, 371, 552; - Spain, 5, 105-108, 112, 118, 158, 330, 339, 341, 371, 552; - Sweden, 4, 350, 552; - Tuscans, 371; - Venice, 3, 4, 8, 16, 33, 338, 339, 341, 350, 351, 351 n., 371, 552, 566 - - Sowe. _See_ Zowe. - - Spain, 20, 30, 33, 45, 57, 87, 91, 95, 107, 189, 198, 199, 203, - 205, 212, 245, 247, 253, 255, 264, 266, 268, 275, 286, 304, 493; - claim to sovereignty of sea, 5, 86, 105-108, 112, 118, 188, 339; - fisheries, 92; - area of fishing-grounds, 738; - foreign trawlers at, 713; - fishermen of, on British coasts, 67, 129, 150; - peace with England, 125, 358; - war with United Provinces, 9, 119, 139, 148, 201, 243 n., 251; - territorial sea, 644-668; - limits of, 569, 664; - Customs limit, 594; - disputes with Great Britain and United States as to territorial - sea, 664, 665 - - Spaniards forced to strike, 117, 206 - - Spanish Netherlands, 266, 272, 275 - - Spanish whalers at Spitzbergen, 182, 183 n. - - Spelman, 27 - - Spitzbergen, 4; - whaling at, 112, 164, 181, 182-185, 193, 194, 194 n., 198, 199, - 200, 527. - _See also_ Greenland. - - Spragge, Sir Edward, 485, 489 - - Sprat fishery, 133 - - Stair, Lord, on territorial limit, 545 n. - - Star Chamber, 243 - - Start, the, 260 - - State merchant, 136 - - States-General of the United Provinces, 84, 178, 186, 190, 192, 258, - 292, 343, 351, 415, 481; - conclude treaty with James VI., 81; - conclude peace with Spain, 148; - consider James’s proclamation on unlicensed fishing, 148, 150; - decide to maintain freedom of fishing on British coast, 151; - send embassy to James about, 155; - arguments used, 155, 159; - proclamation suspended, 159; - apologise for the capture of Brown, 173; - send the Captain responsible to London, 174; - publish an edict forbidding their fishermen to interfere with - Scottish fishermen, 179: - negotiations with James, 189; - disputes as to whale fishing at Spitzbergen, 181-185; - send another embassy to London, 185; - no instructions as to fishery question, 188, 189; - order their fishermen to keep out of sight of shore, 193; - send another embassy to James, 199; - again without instructions as to fishery question, 199, 200; - renew their edicts and order their fishermen not to go too near - Scottish coast, 201; - proceedings regarding licenses of Charles I., 301, 302, 303, 304, - 305, 312, 313, 314, 315; - instructions to Evertsen as to striking, 399; - to Tromp, 399, 402 n., 405; - send Van Dorp to protect the busses from Northumberland, 300; - order Van Dorp to prevent acceptance of licenses, 312, 313; - send Aerssen van Sommelsdijck as ambassador, 336; - on Selden’s ‘Mare Clausum,’ 375; - resolve to increase their fleet, 393; - and question of striking, 390, 392; - attitude to the Parliament, 381; - send ambassador to London, 384; - negotiations with St John, 384-391; - another embassy to London, 391; - consider and postpone question of striking, 392, 399; - resolve to strengthen their fleet, 393; - negotiations interrupted by Tromp’s encounter with Blake, 397; - disown Tromp’s action, 405; - instruct him to strike, 405; - send the Grand Pensionary to London, 405; - recall ambassador and prepare for war, 405, 406; - send four deputies to the Parliament, 415; - negotiations for peace, 414-435; - peace concluded, 435 - - States-General and Charles II., action on fishery Bill, 449, 450, 451; - embargo on fisheries, 460, 462; - propose freedom of fishing during war, 461, 462; - differences with France as to, 463; - decision as to striking, 469, 481; - orders to their men-of-war on striking, 473; - drawn into dispute about striking, 482; - yield as to striking, 483, 484; - sue for peace, 490; - terms offered, 490; - reject terms, 491; - negotiations for peace, 498-506; - peace concluded, 508 - - States-General. _See_ Dutch, Netherlands, United Provinces. - - States of Holland, 151, 155, 190, 303, 375, 384, 398, 407, 414 - - Stebbing, 127 n. - - Stephens, Violet, 139 - - Stewart, Lord Robert, 169 n. - - Stirling, Viscount, 239 n. - - Stornoway, 216, 242 - - Stowell, Lord, decisions respecting territorial limit, 577, 578, - 641 n., 681, 682; - on three-mile limit, 641 n. - - Straddling, Captain, 207 n., 282, 327 - - Straits of Dover. _See_ Dover. - - Strange, Lady, 283 - - Stratherne, Earl of, 239 n. - - Strauchius, 550 - - Strickland, Walter, 384, 392, 429 - - Striking as an acknowledgment of maritime sovereignty, 3, 210; - origin of, 7, 42, 207; - first instance of, 43; - John’s ordinance on, 39-43; - under Tudors, 116; - under Henry VIII., 116; - opposed by French, 117; - under Elizabeth, 117, 204; - under James I., 204-208 - - Striking under Charles I., 11, 12, 210, 212; - becomes very prominent, 276; - arrogance of English officers regarding, 280, 281, 282; - under Commonwealth, 378, 380, 381; - under Charles II., 496; - James II. and after, 552; - decay of claim to, 327, 518, 519, 522; - abandoned after Trafalgar, 15, 523; - Admiralty instructions concerning, 260, 261, 277, 278, 380-383, 456, - 469, 523 n. - - Striking, rules and customs of, 206-208, 277, 278, 398, 463, 464, 466, - 469-472, 481; - not well understood, 277, 456, 466, 469, 470, 478, 479 - - Striking at foreign ports and coasts, 278, 279, 280, 281, 282, 327, - 381, 473, 477, 557; - before forts, 256, 279, 280, 472; - in British seas, 502, 503; - in Mediterranean, 327, 413, 456, 468, 473, 488; - in narrow seas, 206, 207 n., 208, 277, 402 - - Striking by merchant vessels, 206, 207, 282, 513; - British, 260, 275, 283, 284, 285, 519; - foreign, 207, 275, 513 - - Striking by Danes, 266, 282; - claim to, by Danes, 473, 520; - by Dunkirkers, 275, 282, 327 - - Striking by Dutch, 12, 13, 117, 204, 205, 208, 267, 269, 270, 276, - 277, 279, 280, 281, 300, 327, 328, 330, 334, 383, 390, 392, - 397, 398, 400-403, 437, 438, 449, 452, 455-457, 466-469, 472, - 473, 477-481, 485, 486, 490, 491 n., 495, 501, 510-513, 520; - States-General consider question, 390, 392, 397; - De Witt’s proposals regarding, 467, 468, 469, 470; - on striking to a frigate or ketch, 468-470; - question of whole fleet to single ship, 477, 478, 479, 482; - terms offered Dutch, 490, 491 n.; - offer to strike in all seas, 432, 505, 506, 510; - by Dutch to French, 276 and n.; - by English to Dutch, 512 - - Striking by French, 117, 204, 212, 267, 270 and n., 271, 272, 275, - 276, 279, 280, 283, 291, 313, 327, 332, 333, 471, 477, 488, 512, - 513, 518, 520, 521; - French demand salute from English vessels, 212; - force English merchant vessels to strike, 268, 277, 283, 327; - by Hamburgers, 117; - by Spaniards, 205, 327, 330, 477; - by English to Spaniards, 512; - by Swedes, 382, 455, 456 n., 520 - - Striking, Bynkershoek on, 556; - Jenkins on, 480, 481; - jurists on, 557; - Molloy on, 515; - Wicquefort on, 495; - Duke of York on, 469 - - Striking, treaties regarding, 382, 455, 508, 517, 522-572 n. - - Striking, arrangement between Charles and Louis, 488 - - Striking, arrangement between France and the United Provinces proposed, 452 - - Striking, differences between French and Dutch as to, 452, 463 - - Striking, French edicts on, 513 - - Striking, Richelieu’s proposals, 271, 272 - - Striking, Tromp’s memorandum on, 398, 770 - - Stuarts, the, 9, 57, 65, 118, 378 - - Stubbe, Henry, on sovereignty of sea, 496, 497, 498 - - Sturgeon, 66, 88, 363 - - Stypmannus, 550 - - Suffolk, 63, 94, 101, 248, 462 - - Suffolk, Earl of, 227 - - Sully, Duke of, 204 - - Sunderland, 249 - - Sweden, 60, 62, 142, 158, 358, 474, 490, 498; - asks for and obtains liberty of fishing in British seas, 427; - claim to sovereignty of sea, 4, 350, 377; - and striking, 208, 382; - territorial sea, 653, 664, 669, 674, 675; - method of computing, 669; - Customs limit, 594; - declines to adhere to North Sea Convention, 636 - - - _Taurus_, case of, 640 - - Taxation of foreign fishermen, 203 - - Teind fish, 195, 196 - - Temple, Lady, 478, 479, 480 - - Temple, Sir William, 470, 481; - on striking, 467, 468; - concludes Triple Alliance, 474; - recalled from The Hague, 476; - negotiates peace, 508; - on the article regarding striking, 509, 510 - - Territorial sea, agreements between Great Britain and Germany, 634, 652; - Anglo-Danish Convention concerning Iceland and Faroes, 647, 648; - boundaries begin to be fixed, 554, 573; - by treaty, 526, 565; - Gulf Stream as a boundary, 575, 650; - British Foreign Office on, 665, 667 and n., 730, 731, 732, 738; - wishes territorial waters in North Sea to remain undefined, 632, - 633, 634; - Parliamentary Committee recommend extension of, 707 and n. - - Territorial sea, bays, and gulfs, 77, 348, 544, 545, 547, 548, 552, - 574, 575, 581, 585, 589, 598, 599, 601-603, 610, 614, 619 n., - 622-630, 632-634, 639, 649, 652, 666, 668, 670, 678, 718, 723, - 725, 726, 730; - of Bengal, 625; - Biscay, 564, 625; - Bothnia, Gulf of, 564; - Cancale, _see_ Granville; - Chaleurs, 623, 624, 628, 629, 630, 692; - Conception, 588, 589; - Delaware, 574, 599, 629; - Fundy, 623-625; - Granville, 612, 619, 692; - Hudson’s, 561; - of Argentina, 661; - Norway, 670, 672, 674, 677; - Scotland, firths, 222, 223, 230, 233, 239, 545, 622, 692; - Moray Firth, 721. - _See also_ Fisheries and King’s Chambers. - - Territorial sea, British Foreign Office on, 629, 730, 731 and n., 732, 733; - delimitation of North American, 622, 627-630; - French Government on, 632; - Hague Tribunal on, 732; - Institut de Droit International on, 691, 775; - International Law Association on, 691, 775; - _inter fauces terræ_, 544, 547; - measurement of, 639; - old English law regarding, 547; - omitted in Territorial Waters Jurisdiction Act, 593; - principles regarding, 548; - six-mile line for, 627, 629, 630, 632, 730, 731; - treaty stipulation in 1521, 548; - usage regarding, 547, 548 - - Territorial sea, closed seas, 339, 564, 572, 582, 584, 585, 598, 657; - straits, 547, 561, 564, 586, 692, 776 - - Territorial sea, Dano-Swedish limit in Baltic, 655; - decisions of law courts as to extent of, 585-592; - definitions in Acts, 589, 591, 718; - in Territorial Waters Jurisdiction Act, 591, 592 - - Territorial sea, not absolutely defined by any State, 651, 652, 657, 660 - - Territorial sea, not defined by Great Britain, 593 - - Territorial sea, discussion between Spain, Great Britain, and United - States, 665 - - Territorial sea, discussion as to limit in North Sea, 632, 633, 634 - - Territorial sea, distinction between limit under international law and - in treaties, 644; - between exclusive fishery limit and territorial limit, 644, 660; - distinction between “coasts” and “bays,” 622; - meaning of “coasts,” 641 n. - - Territorial sea, historical evolution of, 537 - - Territorial sea, in peace and war, 636, 651, 665 - - Territorial sea, in relation to fisheries, 693; - for “floating” fish, 698; - for coral, 684, 695, 697; - oysters, 611, 612, 619, 620, 621, 697; - pearls, 560, 697; - seals, 662, 663, 695, 696; - whales, 674, 695, 696; - exclusive fishery limit, 639; - on British and Irish coasts, 646, 647; - outside the North Sea, 643, 644, 645, 646; - extra-territorial regulations, 657, 661, 662, 663, 695, 699, 704, - 707, 708, 716, 720, 725, 726, 727; - international regulations, 733, 734, 735; - trawling, 698, 707, 735; - jurisdiction for Customs, 593-595, 609, 665, 676, 679 n.; - for public health and slave-ships, 593-595; - under common law of England, 546; - over foreigners, 589, 590, 591; - navigation in, 78, 676 - - Territorial sea, need of distinguishing different rights in, 690; - neutral waters, decrees respecting, 569-570; - proposed limit for, 690, 775 - - Territorial sea, possession of opposite shores, 35, 43; - principle of thalweg or mid-line, 541-544 - - Territorial sea, proposals of International Law Association, 690-692, 774; - question of banks and flats, 633, 634, 635, 639, 640 and n., 641 n.; - of consistency of soil, 641 n.; - of depth, 562; - of islands, 618, 634, 639, 641 n.; - of rocks and islets, 641-643, 649; - of tide-marks, 579, 641, 652, 659, 661, 666, 669 and n.; - of true boundary of, 539; - Scottish firths, 692; - statutes referring to, 589-594 - - Territorial sea, usage in seventeenth century, 552; - in eighteenth, 566; - modern, 650 - - Territorial sea, modern usage, Algeria, 657; - Argentine Republic, wide claim by, 661, 662, 663; - in Rio de la Plata, 663; - Austria-Hungary, 572, 658; - in Behring Sea, 585, 695 and n., 696; - Belgium, 658; - Chili, 661; - Cuba, 665; - Denmark, 528, 529, 530, 538, 567, 568, 653, 655, 664; - in Cattegat, 653; - Iceland and Faroes, 647, 648; - Skagerrack, 636, 653; - France, 657; - Germany, 652; - Great Britain, origin of, 538; - in Bristol Channel, 586-588; - at Bell Rock, 642; - at Eddystone, 641, 642, 643; - at Seven Stones Rocks, 642, 643; - British colonies, 661; - British N. America, 531; - Greece, 661; - Italy, 659; - Japan, 661; - Netherlands, 658; - in Zuiderzee, 635, 636; - Norway, 457, 528, 538, 568, 653, 664, 669-681, 685; - method of measuring, 669, 670, 685; - rejects three-mile limit, 633, 636, 678, 681; - reasons for wide limit, 676, 677; - in Varangerfjord, 674; - in Vestfjord, Lofotens, 672-674, 677; - special limits in, 671, 672, 678, 679; - Portugal, 538, 569, 664, 668; - Russia, 656; - White Sea, 564, 657; - Scandinavian limit, 528, 567 and n., 653, 655; - Spain, 538, 569, 664-668; - South America, 661; - Sweden, 538, 653, 664, 669, 674, 675; - method of computing in, 669; - United States, 661; - various limits claimed by, 575; - Uruguay, 663; - Venice, 571 - - Territorial sea, opinions of publicists in first part eighteenth - century on, 565, 566; - of recent publicists, 603, 605, 681, 688, 689 - - Territorial sea, opinions of Abreu y Bertodano, 559; - Aschehoug, 686, 688; - Auber, 691; - Azuni, 564, 565; - on Bays, 565; - Bishop, 683, 689; - Bluntschli, 682, 688; - Bodin, 540; - Burgus, 550; - Bynkershoek, 555, 556; - on range of vision, 546; - Calvo, 682, 688; - Casaregi, 558; - Lord Chelmsford, 586; - Chitty, 597; - Conringius, 550; - Baron de Courcel, 664 n.; - Craig, 357; - Dana, 683, 689; - Desjardins, 685, 688; - Lord Dunedin, 724; - Ferguson, 684, 689; - Fiore, 684, 689; - Lord Fitzmaurice, 630, 730, 731; - Galiani, 563; - Gentilis, 540; - Graswinckel, 550; - Sir Edward Grey, 732; - Grotius, 549; - on range of vision, 545; - Lord Guthrie, 723; - Chief-Justice Hale, 543; - Hall, 687, 689; - Halleck, 683, 689; - Lord Halsbury, 592; - Lord Hatherly, 586 n.; - Hautefeuille, 601, 688; - Heffter, 600, 689; - Lord Herschell, 692 n.; - Holland, 691; - Hübner, 562; - Kent, 599, 689; - Kleen, 685; - Klüber, 597, 688; - Lord Kyllachy, 725; - Lampredi, 563; - Latour, 595, 685; - Lawrence, 683, 688; - Leoni Levi, 664 n.; - Loccenius, 550; - Lord Loreburn, 732; - Lushington, 586 n.; - Manning, 600, 689; - Massé, 602, 688; - de Martens, 686, 688; - G. F. von Martens, 563; - on bays, 564; - on straits, 564; - Moore, 691 n.; - Moser, 562; - Sir John Nicholl, 586; - Oppenheim, 688; - Ortolan, 600, 688; - Perels, 684, 688; - Phillimore, 682, 688, 689; - Pistoye and Duverdy, 602, 688; - Pontanus, 550; - Pradier-Fodéré, 684, 688; - Puffendorf, 550; - on bays and gulfs, 551; - Rayneval, 596; - Reddie, 600; - Lord Salisbury, 592; - Sarpi, 547; - Schmalz, 597, 688; - Shookius, 550; - Lord Stowell, 641 n.; - Strauchius, 550; - Sir Travers Twiss, 683, 689, 691 n.; - Valin, 562; - Vattel, 560, 689; - on bays, 561; - on straits, 561; - Lord Wensleydale, 586 n.; - Westlake, 691 n.; - Wheaton, 598, 689; - Wolff, 559, 689; - Woolsey, 683, 689; - opinions of early English lawyers, 539; - of early Italian jurists, 539; - of Institut de Droit International, 689-692, 774; - of International Law Association, 689-692, 774; - of judges in _Franconia_ case, 590 - - Territorial Sea. Various limits proposed or adopted for different purposes: - _Three-mile limit_, proposed by Galiani, 563; - by Azuni, 565; - introduced for neutrality by United States, 573, 574; - introduced into English jurisprudence, 576, 577; - originated in neutral rights, 694; - applied to fisheries, 581; - confusion of, with range of guns, 591 and n., 598, 682, 683, 689; - not equivalent to range of guns, 21, 576; - discussion on, 650-652; - generally adopted through influence of the United States and Great - Britain, 21, 681; - an Anglo-American doctrine, 681, 684; - not generally accepted by publicists, 580, 680, 681, 688, 775; - common adoption of, 21, 650; - in some international fishery conventions, 581, 612, 614, 617, 619, - 621, 634, 635, 647, 649, 652; - generally for fisheries, 616, 647, 663, 680; - inadequacy of, 21, 604, 615, 617, 651, 679, 682, 683, 686, 687, - 690, 693, 694, 707 and n.; - in relation to next great maritime war, 22; - British Government on, 730, 732; - refuses to recognise jurisdiction beyond three miles, 663, 667 and - n., 738; - wishes three-mile limit extended in war, 665; - rejected by four European States, 664; - refused by Norway, 633, 636, 678, 681; - complex on Norwegian coast, 672, 676 - _Four-mile limit_, 653; - _five miles_, 575, 665, 691, 698, 715; - _six miles_, 559, 563, 565, 566, 575, 582, 605, 606, 664, 665, 690, - 691, 694, 775; - adopted by International Law Association for Fisheries, 690, 775; - limit for Dutch on Scottish coast, 605, 606; - _eight miles_, 665, 694; - _nine miles_, 563, 564 n., 608 and n., 611, 618, 679, 679 n., 691, - 698, 737; - on French coast, 608 n., 609; - recommended by English trawlers for North Sea, 702; - _ten miles_, 665, 668, 687, 694, 696, 698, 707, 737; - in Argentina, 661; - recommended for North Sea by English trawlers, 702; - _twelve miles_, 575, 593, 594, 662, 665, 668, 715; - _thirteen miles_, 703, 720, 738; - for fishery on Scottish coast, 720; - _fourteen miles_, 77, 84, 192, 193, 545, 694; - _twenty-eight miles_, 77, 84, 545; - _thirty miles_, 572, 696; - _forty miles_, 178, 585; - _sixty miles_, 3, 540, 696; - _eighty miles_, 79, 355; - _100 miles_, 3, 169, 353, 360, 373, 539, 541, 559; - claimed by Russia in Behring Sea, 582 - _Range of guns_, 21, 349, 549, 552, 593, 646, 658, 660, 676, 681, - 685-687, 690, 716; - first proposed by Dutch ambassadors, 156, 549; - Bynkershoek’s dictum on, 556; - merits of, 558; - fixed in treaties and decrees, 570-572; - generally adopted, 576; - incorporated in international law, 558; - generally accepted by publicists, 688; - the true principle of delimitation, 595, 602, 603; - and neutral rights, 557, 559, 571, 572; - and salute, 556, 557; - as “zone of respect,” 690, 775 - _Range of vision_, 175, 193, 347, 544-546, 571, 574, 596, 602, 694; - defects of, 546; - adhered to by Dutch, 546; - claimed by Denmark, 529, 545; - proposed by some modern publicists, 546, 565, 600 (_see_ Land-kenning); - subsistence limit of Sarpi, 547 - - Territorial waters. _See_ Territorial sea. - - Territorial Waters Jurisdiction Act, 580 n., 590, 591, 592, 717, 718, 731 - - Teutonic invaders, seafaring habits of, 26 - - Texel, 18, 409; battle of, 498 - - Thalweg. _See_ Mid-line. - - Thames, 49, 60, 76, 131, 133, 219, 443, 444, 459, 462, 472, 476 - - Thanet, 49, 68 - - Thorpe, 27, 28 - - Three-mile limit. _See_ Territorial sea. - - Three seas, 17 - - Thurloe, 432, 434, 436, 497, 498 n. - - Tithes of fish. _See_ Fish. - - Tlieff, Captain Andrees, 171, 174, 175 - - Top-sails, lowering of. _See_ Striking. - - Tordesillas, treaty of, 5, 106 - - Traders, hostilities between, 53, 54 - - Trafalgar, 15 - - Trawling. _See_ Fisheries. - - Treaties, England and Burgundy, 1405, 1408, 69; - 1417, 70; - 1439, 70; - 1467, 71; - 1478, 72; - 1496 (_Intercursus Magnus_), 72; - 1499, 73; - 1506, 73; - 1515, 73; - 1520, 73; - and Castile, 1351, 67; - and Denmark, 1468, 110; - 1490, 109; - 1523, 109; - 1583, 110; - and Flanders, 1320, 55; - and France, 1303, 44-46, 49; - 1403, 67; - 1471, 72; - 1528, 75; - and Portugal, 1353, 67; - 1439, 70; - and United Provinces, 1585, 433; - Scotland and the Emperor, 1541, 78; - 1550, 79, 179; - Scotland and the Netherlands, 1291, 1321, 1323, 1371, 1401, 1407, - 1412, 1416, 76; - 1531, 1541, 188 n.; - and United Provinces, 1594, 81, 157, 169, 173, 188 n., 257, 388; - Great Britain and Belgium, 1852, 617, 645; - 1882, 637; - and Denmark, 1882, 637; - 1901, 647, 740; - and France, 1686, 526, 622; - 1786, 572; - 1839, 612; - 1867, 619; - 1882, 637; - and Germany, 1882, 637; - and Mexico, 1888, 679 n.; - and the Netherlands, 1625, 433; - 1654, 435, 436, 455; - 1662, 455; - 1674, 508; - 1689, 517; - 1784, 522; - 1882, 637; - and Russia, 1825, 583; - and Spain, 1630, 425; - 1790, 573; - and Sweden, 427; - and United States, 1783, 622; - 1794, 574, 622; - 1814, 581; - 1818, 581, 627; - 1854, 625; - 1871, 627; - 1888, 628; - Denmark and Sweden, 1780, 572 n.; - 1899, 655, 675; - France and Algeria, 1689, 527, 573; - Burgundy, 1468, 71; - the Emperor, 1521, 74, 119; - Russia, 1787, 572; - and United Provinces, 1635, 276; - 1662, 453; - Norway and Mexico, 1886, 594, 679; - Porte and Naples, 1740, 546; - Russia, Denmark, and Sweden, 1780, 572 n.; - and the two Sicilies, 1787, 572; - and the United Provinces and Prussia, 1781, 572 n.; - Spain and Morocco, 1861, 668; - and Portugal, 1494, 106; - 1878, 1885, 1893, 665, 666; - and Tripoli, 1784, 572; - and the United Provinces, 1609, 148, 344, 350 n.; - United States and Morocco, 1785, 572; - and Russia, 1824, 583 - - Treaties concerning fishery, British North America, 526, 531, 532, - 574, 622, 625, 627, 628 - - Treaties guaranteeing liberty of fishing on English coasts, 66-74 - - Treaty of Antwerp, 148, 344, 350 n.; - of Breda, 464, 465; - of Dover, 475; - of Ryswick, 466 n.; - of Southampton, 388; - of Tordesillas, 5, 106; - of Troyes, 8, 35; - of Union, England and Scotland, 1604, 192, 545; - of Utrecht, 531 - - Treport, 65, 426 - - Trinity House, 114, 120, 447; - on limits of King’s Chambers, 9, 753; - on extent of British Seas, 20, 465 n., 477, 478; - on jurisdiction of Cinque Ports in Channel, 544; - on striking, 477 - - Triple Alliance, 467, 471, 474, 476, 481, 483, 490 - - Tromp, Lieut.-Admiral Martin Harpentz, 329, 390, 395, 408, 411 n., - 415, 422, 436, 477, 511; - attacks Oquendo in the Straits of Dover, 330; - in the Downs, 245, 331; - strikes to English, 330, 334; - his letter to Pennington, 334; - commands Dutch fleet, 329; - puts to sea to prevent search of Dutch vessels, 397; - no instructions as to striking, 397, 399; - his memorandum on striking, 398, 770; - reluctance to strike, 400, 401, 403, 404; - encounter with Blake, 12, 207 n., 397, 403, 404, 421; - correspondence with Blake, 404 n., 771; - story of broom, 408, 409 - - Tudors, 85, 86, 87, 118 - - Tunny fishery, 142, 504 - - Tweedmouth, Lord, 691, 720 - - _Twee Gebroeders_, case of, 576, 577, 641 n. - - Twiss, Sir Travers, 39, 40, 41, 42, 52 n., 53, 312 n., 689, 691 n. - - Two seas, 17 - - Tynemouth, 214 - - Tyrrhenian Sea, sovereignty of, 371 - - - United Provinces, 9, 12-14, 81, 119, 125, 126 n., 151, 157, 170, - 179, 187, 191, 197, 198, 201, 243 n., 246, 251, 253, 257, - 264, 265, 275, 288, 301, 302, 304, 340, 342, 364, 384, 399, - 405, 416, 441, 454, 460, 470, 474, 517, 527-529. - _See_ States-General, Dutch, Netherlands. - - United States of America, disputes and negotiations regarding British - North American fisheries, 532, 581, 621-630, 731 and n.; - regarding Behring Sea, 541, 583, 584, 695 n.; - territorial sea, 599, 661; - fixes three miles for neutrality, 21, 93, 573, 574; - various limits claimed, 574, 575, 650; - influence of, in adoption of three-mile limit, 650 - - Uruguay, territorial sea, 663 - - Ushant, 103, 290, 399, 437 - - Utrecht, 81; treaty of, 531, 582 - - - Vagabonds, 98 - - Valck, Jacob, 81 - - Valin, on territorial sea, 562 - - Vane, Sir Henry, 269, 414, 422 n., 439 - - Varangerfjord, 674, 695 - - Vardö, or Vardöhuus, 86, 97 n., 108, 109, 110 - - Vasquez. _See_ Vasquius. - - Vasquius, Ferdinand, on dominion of sea, 341, 351, 353 - - Vattel, on territorial sea, 560; - on appropriation of fisheries, 561 - - Venice, 30, 91, 186 n., 191; - sea sovereignty of, 3, 4 and n., 16, 33, 54, 107, 158, 339, 341, - 350, 351, 361, 371, 540, 547, 552; - limit of territorial sea, 571 - - Vestfjord, 672, 677 - - Vic, M. de, Vice-Admiral of France, 204 - - Violation of ports, 247, 249, 250 - - Virginia, 388 - - Visit and search and gun range, 557 - - Visitation of English ships, 268 - - - Wagenaar, 80, 167 n., 311 n. - - Walderswick, 90 n. - - Walker, Sir Richard, 280 - - Walmer Castle, 279 - - Warbeck, Perkin, 72, 387 - - Wardhouse. _See_ Vardö. - - Warwick, Earl of, 206 n, 276, 379, 380 - - Wash, the, 18 - - Washington, George, 573, 681 - - Wells, 90 - - Welwood, William, 342 n., 343, 371, 546, 551; - on appropriation of the sea, 353; - dominion of the sea, 354; - exhaustibility of sea, 355; - on Grotius, 352; - on limit for Dutch on Scottish coast, 79, 84; - sea laws of Scotland, 352; - attack on, by Graswinckel, 412 - - Wensleydale, Lord, on territorial sea, 586 n. - - Wentworth, Viscount, 227 n. - - West Friesland, 453 - - Westlake, Professor, on territorial sea, 691 n. - - Westmoney Islands, 109, 247 - - Weston, Lord, 227, 239 n., 241, 281 - - Weymouth, 268 - - Whale-fishing, 187, 189; - in Behring Sea, 585; - at Greenland, 407, 527-530; - at Jan Mayen, 527; - at Spitzbergen, 112, 164, 181-184, 193, 194 n., 200, 527; - in Varangerfjord, 674; - regulations, 695 - - Whales, right to, 66, 363 - - Wharton, 312 n. - - Wheaton, on territorial sea, 598 - - Whestone, Admiral, 520 - - Whitby, 462 - - Whitelock, 414 - - White Sea, sealing at, 695; - territoriality of, 657; - trawling at, 680 - - Whitstable Fishery, case of, 586 n. - - Wicklow, 63 - - Wicquefort, on sovereignty of sea, 495 - - Wilkins, 27 - - Willes, John, 43 - - William of Malmesbury, 27 - - William III. and sovereignty of sea, 517-520 - - William the Lion, King, 59 - - Williamson, Sir Joseph, plenipotentiary at Cologne, 496, 497, 498, 511 - - Willoughby, 181, 183 - - Wilson, Thomas, 163 n. - - Wimbledon, Viscount, 227 n. - - Winchelsea, 37, 49, 50, 73 - - Windebank, 243, 250, 253, 263, 267, 287, 295, 302, 319, 320, 322, 323 - - Winwood, Sir Ralph, 130 n., 152, 162, 168, 172 - - Wolff, on territorial sea, 559 - - Wolseley, Sir Charles, 429 - - Wolsey, Cardinal, 74, 119, 548 - - Woolsey, on territorial sea, 683 - - Worcester, 27 - - Worcester, Earl of, 56 n. - - Worsley, Dr Benjamin, 515 - - Wotton, 162 - - Wreck, right to, 66, 362, 363, 542 - - - Yarmouth, 34 n., 46 n., 49, 58, 60, 62, 73, 90, 96, 97 n., 100, 108, - 126, 129, 130 n., 131, 133, 134, 143-145, 151, 162, 214, 247, 248, - 249, 295, 307, 308, 391 n., 438, 455, 461, 462, 463, 515, 546 - - York, Duke of, 446, 448, 456, 457, 458, 469, 472, 485, 493, 516 - - Yorkshire, 133 - - Young, Captain, 207 n., 401, 402 - - Ypres, 71 - - - Zealand, 45, 60, 62, 64, 71, 72, 73, 74 n., 75, 81, 88, 92, 94, 95, 125, 195 - - Zierikzee, 45 n. - - Zorgdrager, 194 n. - - Zouch, 515 - - Zowe, fishing-bank, 65 and n., 189 n., 276 n., 426 n., 440, 544, 749 - - Zuiderzee, territoriality of, 635 - - -THE END. - -PRINTED BY WILLIAM BLACKWOOD AND SONS. - - - - -FOOTNOTES: - - -[1] The possession by Venice of this maritime sovereignty was -symbolised each year for many centuries by the picturesque ceremony of -“espousing” the Adriatic. On Ascension Day the Doge was rowed to the -strains of music in a magnificent gilded state barge, the _Bucentaur_, -to the channel of Lido, where he cast a ring into the water, exclaiming -as he did so, “We espouse thee, O Sea, in sign of a real and perpetual -dominion” (“Desponsamus te mare in signum veri perpetuique dominii”). -The Papal nuncio and representatives of other states assisted at the -ceremony. - -[2] Twiss, _The Law of Nations in Time of War_, 142. Maine, -_International Law_, 76. - -[3] Twiss, _op. cit._, 143, 144. Reddie, _Maritime International Law_, -i. 41. - -[4] Nicolas, _Hist. Navy_, i. 157. - -[5] “Il sera banny hors dAngleterre et de mer appartenant au roi -dAngleterre,” Article in _Black Book_, i. 58, ascribed to the reign -of Henry I. (A.D. 1100-1135); “Ad piscandum in mari nostro, prope -Jernemuth,” Edward I., A.D. 1295, _Fœdera_, ii. 688; “la meer -Dengleterre,” A.D. 1306, _Chanc. Rolls, Misc. Treaties_, &c., Bd. 14, -No. 15; “super mare Anglicanum” (_Rot. Pat._, 14 Edw. II., pt. ii. m. -26, d.), A.D. 1320, &c., &c.; “partibus maris infra regnum nostrum -Angliæ,” _A.D._ 1317, Edw. II., _Fœdera_, iii. 469; A.D. 1406, Hen. -IV., giving freedom of fishing, “ubicumque supra mare, per et infra -dominia, jurisdictiones, et districtus nostra”; “Seigneur de la mer,” -A.D. 1320, _Fœdera_, iii. 852; “reges Angliæ domini maris Anglicani -circumquaque,” A.D. 1336, _Rot. Scot._, i. 442; “domini maris et -transmarini passagii,” A.D. 1336, _Fœdera_, iv. 721; “le roi de la -mier,” A.D. 1372, _Rot. Parl._, ii. 311; “seigneurs del meer,” A.D. -1420, _ibid._, iv. 126, &c., &c. - -[6] _Fœdera_, xvi. 395; _State Papers, Dom._ 1604, 11, 40; _Fœdera_, -xix. 211; _Libelle of Englyshe Polycye_; Dee, _General and Rare -Memorials_, 6; _State Papers, Dom._ 1662, 66, 50, “It is a fundamental -Maxime of England, that the sea flowing about the Isle of Great -Britaine is of the same dominion with the isle”; “the dominion of the -ambient seas.” - -[7] _Rot. Escheat._, 41 Hen. III., A.D. 1259, referred to by Coke, -1. 107_a_; Bracton, _Legibus et Consuetudinibus Angliæ_, lib. v. c. -xxx. fol. 437 (A.D. _circa_ 1259); _Statutes of the Realm_, 18 Edw. I. -Stat. 4 (A.D. 1290); _Rot. Parl._, 13 Ric. II., “deinz les quatre miers -Dengleterre,” &c. - -[8] Hall, _On the Rights of the Crown in the Sea Shores of the Realm_, -p. 1. - -[9] “The guardian of his Majesty’s three seas” (A.D. 1607). _Cæsar -Papers, MS. Brit. Mus. Lansd._, 142, fol. 373. - -[10] - - “Thene here I ende of the comoditees - Ffor whiche nede is well to kepe the sees; - Este and weste, sowthe and northe they be; - And chefely kepe the sharpe narowe see, - Betwene Dover and Caleise.” - - -[11] _Acts of the Privy Council of England_, N.S., i. 232, 242. - -[12] Winwood’s _Memorials_, iii. 50. - -[13] _Mare Clausum_, ii. c. xiii. - -[14] Selden, _Mare Clausum_, lib. i. c. viii., lib. ii. cc. ii.-viii. - -[15] _Polyhistor._, c. xxiv. - -[16] _Mare Clausum_, lib. ii. c. xi. - -[17] _Mare Clausum_, lib. ii. c. xii. “Canutus autem Rex suæ ditionis -esse Oceanum Britannicum verbis expressissimis item est testatus.” -Prynne uses the same argument. _Animadversions on Coke’s Fourth -Institute_, 88. - -[18] Ed. Petrie, 395. - -[19] _Gesta Regum Anglorum_, i. 235; Eng. Hist. Soc. “Ego Edgarus -totius Albionis Basileus nec non maritimorum seu insulanorum Regum -circumhabitantium.” - -[20] “Ego Edgardus Anglorum Basileus omniumque Regum insularum, -Oceanique Britanniam circumjacentis cunctarumque nationum quæ infra -eam includuntur Imperator et Dominus,” &c. Dee, _General and Rare -Memorials_, 58, 60; Selden, _Mare Clausum_, ii. c. xii. (quoting from -a charter of Inspeximus, _Rot. Pat._, 1 Edw. IV., m. 23); Prynne, _op. -cit._, 87. - -[21] _Concilia_, i. 432. - -[22] _Ibid._, i. 239. - -[23] _Codex Diplomaticus_, ii. 404, vi. 237. - -[24] _Diplomatarium Anglicum Ævi Saxonici_, 211. - -[25] _Cartularium Saxonicum_, iii. 377. - -[26] “Insularum oceani quæ Brytanniam circumjacent.” - -[27] Worsaae, _An Account of the Danes and Norwegians in England, -Scotland, and Ireland_; Depping, _Histoire des Expéditions maritimes -des Normands_; Beamish, _The Discovery of America_. - -[28] Burrows, _Cinque Ports_, 62, 81. - -[29] Cunningham, _The Growth of English Industry and Commerce during -the Early and Middle Ages_, 173. - -[30] Twiss, _The Law of Nations in Time of Peace_, 244; ibid., _In Time -of War_, 142. - -[31] See p. 51. - -[32] _Mare Clausum_, lib. ii. c. xiv. - -[33] “Pour garder la mere,” “la garde du meer,” “la sauve garde -du meer,” “pro custodia maris,” “de custodia maritimæ,” &c. See -_Proceedings and Ordinances of the Privy Council of England_; Nicolas, -_History of the Royal Navy_; Prynne, _Animadversions_. - -[34] _Fœdera_, i. 861; Nicolas, _op. cit._, i. 279, 437. - -[35] Twiss, _The Law of Nations in Time of Peace_, 245. - -[36] _Vide_ Twiss, _Black Book of the Admiralty_, i. 420. - -[37] _Op. cit._, lib. ii. c. xviii. - -[38] Twiss, _ibid._, i. 64. - -[39] Nicolas, _op. cit._, i. 131, 231, ii. 45, 84, 130, 176; _Rot. -Pat._, 65 (1206); _Fœdera_, i. 96 (1208). - -[40] _Chronicles_, ii. 497. - -[41] _Op. cit._, lib. ii. cc. xiii., xx. - -[42] _Rot. Parl._, iii. 46b; Nicolas, _op. cit._, ii. 260-280; -Laughton, _Studies in Naval History_, 16-22. The Yarmouth herring -fishing suffered severely in these years, and the fishermen equipped -and armed vessels for their own defence,--_Chronicon Angliæ, ab_ A.D. -1328 _usque ad annum_ 1388, p. 170, Rolls Series. - -[43] _Op. cit._, lib. ii. c. xv. - -[44] _Rot. Parl._, iii. 63b, 391a; _Fœdera_, vii. 220. “C’este -l’ordinance et grante par l’advis des Marchaundz de Londres, et des -autres Marchaundz vers la North, par assent de touz Communes de -Parlement par devant le Comte de Northumberland et le Meair de Londres, -pur la garde et tuicion du Mier,” &c. The specified dues throw some -light on the commerce and fisheries of the period: (1) all vessels or -crayers navigating the seas within the limits of the admiralty of the -north were to pay a duty of sixpence a ton-tight, going and returning, -with the exception of those bringing wines and goods from Flanders to -London, or carrying wool and skins to Calais; (2) vessels laden with -goods belonging to merchants of Prussia, Norway, or Scone (Scania) -were to pay sixpence a last; (3) vessels carrying coals from Newcastle -were to pay sixpence a ton every three months; (4) sixpence a-week per -ton was to be paid by all vessels fishing for herrings within the said -admiralty, and sixpence every three weeks per ton by boats fishing for -other fish. - -[45] A.D. 1420, _Rot. Parl._, iv. 126. “Item, priount les ditz -Communes, que par l’ou nostre très soverain seignour le Roy et ses -nobles progenitours de tout temps ount esté seignours del meer, et -ore par la grace de Dieu est venuz que nostre dit seignour le Roy est -seignour des costes d’ambeparties del meer d’ordeigner que sur toutz -estraungers passantz parmye le dit meer tiel imposition à l’oeps nostre -dit seignour le Roy apprendre qui à luy semblera resonable, pur la -salve garde del dit meer.” - -[46] _Rotuli Scotiæ_, i. 442, “Nos advertentes quod progenitores nostri -reges Angliæ Domini Maris Anglicani circumquaque et etiam defensores -contra hostium invasiones ante hæc tempora extiterint,” &c. Part of the -language of this mandate was copied by Charles I. in his ship-money -writs. See p. 211. - -[47] _Fœdera_, iv. 722. “Consideratio etiam quod progenitores nostri, -Reges Angliæ, in hujusmodi turbationibus, inter ipsos et alios terrarum -exterarum dominos motis, domini maris et transmarini passagii, totis -præteritis temporibus, extiterunt,” &c. - -[48] Nicolas, _op. cit._, ii. 49, 106. - -[49] _Political Poems_, ii. 157. The author states that it was coined -after Edward captured Calais, when - - “The see was kepte, and thereof he was lorde, - Thus made he nobles coigned of recorde.” - -But Edward did not take Calais till 1347, while the noble was issued in -July 1344. Nicolas, _loc. cit._ - -[50] Oppenheim, _A History of the Administration of the Royal Navy_, i. -7. - -[51] Cunningham, _op. cit._, 361. In the _Libelle_ it is asked-- - - “Wher ben our shippes, wher ben our swerdes become? - Our enmyes bid for the ship set a sheep”; - -and the rubric of an anonymous commentator states that the advice -quoted was owing to the fact that while in the time of Edward III. -the English were lords of the sea, they were now in these days mad -(_vecordes_), vanquished, and for waging war and guarding the sea, like -sheep. The jest is also alluded to by Capgrave, _Liber de Illustribus -Henricis_, 135. - -[52] “Tous les pays tenoient et appelloient nostre avandit seigneur, le -Roi de la Mier.” - -[53] _Rot. Parl._, ii. 311. - -[54] _Mare Clausum_, lib. ii. c. xxvi. - -[55] _Animadversions_, 108. - -[56] Nicolas, _op. cit._, i. 156, but cf. ii. 481; Hannay, _A Short -History of the Royal Navy_, 15. Hannay, as well as the writer of the -naval articles in _Social England_ (i. 138), was not apparently aware -of the labours of Sir Travers Twiss mentioned in the text. - -[57] _The Black Book of the Admiralty_, i. Intro. xiii _et seq._, 129; -iii. Intro. i, x. - -[58] “Item ordonne estoit a Hastynges pour loy et coustumes de mer ou -temps du roy Johan lan de son regne second par advys de ses seigneurs -temporelz que se le lieutenant en aucun voyage ordonne par commun -conseil du royalme encontrent sur la mer aucunes nefz ou vesseaux -chargees ou voide que ne veullent avaller et abbesser leurs trefs -ou commandement du lieutenant du roy ou de ladmiral du roy, ou son -lieutenant, mais combatant encontre iceulx de la flotte que silz -puent estre pris quilz soient reputez comme ennemys et leurs nefs, -vesseaulx, et bien pris et forfaitz comme biens des ennemys tout soit -que les maistres ou possesseurs dicelles vouldroient venir apres et -alleguer mesmes les nefs, vesseaulx, et biens estre biens des amys du -roy nostre seigneur, et que le mayne estant en icelles soient chastiez -par emprisonnement de leur corps pour leur rebellete par discrecion.” -The above is given by Twiss from the _Whitehall MS._ of the eighteenth -century; it does not materially differ from the others. The _Cottonian -MS._, which is stated to be the earliest and purest, reads in both -places “le lieutenant du roy ou ladmiralle du roy ou soun lieutenant.” - -[59] _The Black Book_, Intro. xix, lxxvii. It is _Vespasian MSS._, B. -xxii. - -[60] _The Black Book_, iii. Intro. viii, x. See p. 410. - -[61] _Collection des Lois Maritimes_, iv. 199. - -[62] _Collection des Lois Maritimes_, i. Intro. pp. li, 129; iii. -Intro. p. xi. - -[63] _Mare Clausum_, lib. ii. c. xxvi. - -[64] “Quanquam tamen, ad primam vocem ipsorum Anglicorum, idem Johannes -Willes velum suum declinavit,” &c., _Fœdera_, viii. 273; “omnes tamen -inermes, et velum suum, ad primum clamorem Anglicorum declinantes,” -_ibid._, 277. - -[65] _Chancery Rolls, Misc. Treaties and Diplomatic_, Bdle. 14, No. -15. It is endorsed _De Superioritate Maris Angliæ et Jure Officii -Admirallatus in eodem_. There are several copies on separate membranes -in the bundle--viz., 1, 8, 12, 14, 15,--and they differ from one -another, as indicated in the transcript in Appendix A. Prynne -(_Animadversions_, 109) says that besides the roll in the Tower from -which Lord Coke and Selden quoted, he discovered “an ancient copy of -it in the White Tower Chapple,” and among the Admiralty papers is a -memorandum by Nicholas, undated, but before 1631, on the records in -the Tower respecting the Laws of Oleron and the Sovereignty of the -Seas, in which he says that “in ye little closset there” a record in -French exists, dated in the time of Edw. I. or II., referring to the -depredations of Grimbald. There is also a transcript in a collection of -MSS. in the British Museum (_Harleian_, 4314) and a translation of the -roll, in a hand of the seventeenth century, in _MS. Otho._ E. ix. fol. -14. - -[66] _Fourth Institute_, cap. 22, p. 142. - -[67] _Mare Clausum_, lib. ii. c. xxvii., xxviii., xx., xxiv. - -[68] _Rot. Pat._, 26 Edw. I., part 2, memb. 24, _in dorso_. - -[69] _Fœdera_, i. 954. - -[70] Selden, _op. cit._, lib. ii. c. xxvii., quoting from _Rot. Pat._, -31 Edw. I., m. 16, which reads as follows: “Des enterprises, mesprises, -et forfaitz en Treue ou en Sufferance, entre nous et le dit Roi de -Fraunce, dune part et dautre, es costeres de la mer Dengleterre et -autres per decea et ausint per deuers Normandie et autres costeres de -la mer per de la.” - -[71] The King of France ordered John de Pedrogue, a celebrated seaman -of Calais, to collect a fleet there and proceed with it to Holland -against the Count of Flanders, who had invested Zierikzee. Included in -the fleet were eleven Genoese galleys, under Reyner de Grimaldi, who -was given the chief command by Philip, with the title of “Admiral,” -John de Pedrogue acting under him. Nicolas (_op. cit._, i. 373) gives a -description of the fight. - -[72] The translation, for which I am indebted to Miss E. Salisbury, is -from membrane 12. - -[73] The expression is also used in a document of 1297, when Lord -William de Leybourne is described as “Admiral of the sea of the said -King of England.” _Fœdera_, i. 861. - -[74] Coke (_op. cit._, 143) states that this refers to “De Botetourt,” -who, he says, was Admiral “of the sea coasting upon Yarmouth in Norfolk -(right over against France) and of that station in _anno_ 22 Edw. I.” -Nicolas (_op. cit._, i. 270, 407) states that Sir John de Botetourt -was made commander of the northern fleet in 1293, and in the following -year, when Edward divided his fleet into three squadrons, the ships of -Yarmouth and the adjacent ports were placed under his charge. - -[75] The rest is on the back of the membrane. - -[76] The part within brackets is to be found on the membranes 1, 14_d_, -and 15, but not on 12. - -[77] _Mare Clausum_, lib. ii. c. xxvii. Hall, in his excellent -_Treatise on International Law_ (p. 141), and with reference apparently -to this roll, says that exclusive dominion over the English seas by the -English king was acknowledged as early as 1299 (_sic_), at a commission -in Paris, by the representatives of the merchants and mariners of the -countries mentioned in the above document. - -[78] See Appendix A. - -[79] _Chancery Miscel. Rolls_, _France_, Bdl. 5, No. 6. - -[80] See translation in Appendix B. - -[81] _Chancery Rolls, Misc._, Bdle. 14, n. 15, memb. 4. - -[82] “Infrascripti sunt articuli generales super quibus et fines ad -quos Justiciarii domini nostri Regis sunt consulend’, et dominus noster -Rex de eorum consilio certificand’ in Cancellar’ sua in scriptis citra -festum, &c. - - “Item ad finem, quod resumatur et continuetur ad subditorum - prosecucionem forma procedendi quondam ordinata et inchoata per avum - Domini nostri Regis et ejus consilium ad retinendum et conservandum - antiquam Superioritatem Maris Angliæ et jus officii Admirallatus - in eodem, quoad corrigendum, interpretandum, declarandum, et - conservandum leges et statuta per ejus antecessores Angliæ Reges - dudum ordinata ad conservandum pacem et Justitiam inter omnes gentes - nacionis cujuscunque per Mare Angliæ transeuntes, et ad cognoscendum - super omnibus in contrarium attemptatis in eodem, et ad puniendum - delinquentes et dampna passis satisfaciendum; quæ quidem leges et - statuta per Dominum Ricardum quondam Regem Angliæ in reditu suo a - Terrâ Sancta correcta fuerunt, interpretata, declarata, et in Insula - Oleron publicata, et nominata in Gallica lingua La loy Olyroun.” - -According to Godolphin (_A View of the Admiral Jurisdiction_, 1661), -the “form of proceedings” refers to the statute of the Writ of -Consultation, 24 Edw. I., with regard to the proceedings of the Courts. -The following is on another membrane in the same roll (mem. 2_d_), -which contains ordinances agreed upon between the masters and mariners -of England, Bayonne, and Flanders, at Bruges, 8th March 1286. It is in -the handwriting of the time of Edward III. - - “Item a la fin qe veues et considerees les formes des proces et des - lettres ordeinees per les consaillers le dit aiel nostres seigneur - le Roi pur eux et la dite nacioun Dengleterre a recouerer et receuer - les ditz subgitz aidaunz et alliez et a faire redresser a eux toux - les damages a eux donez en Mier et en terre duraunz les dites trewes - pees et confederaciouns et countre la forme dycelles par les ditz - Fraunceys aidaunz et alliez et eschuire clamour de poeple sur la dite - denatureste, &c., et les damages quiex de tiel clamour purroient - auenir et especialment a retenir et meintener la souereignete qe - ses ditz auncestres Rois Dengleterre soleyent auoir en la dite mier - Dengleterre quant alamendement declaracioun et interpretacioun des - lois per eux faites a gouerner toutes maneres des gentz passanz - per la dite mier. Et primerement a son admirail et as meistres et - mariners des nefs des Sync Portz Dengleterre et des autres terres - annex a la Corone Dengleterre entendaunt a sa armee en la dite - mier pur retenir et meyntenir la garde des lois auauntdites et la - puniscioun de toux faitz al encountre en la mier susdite Semblables - formes des proces et lettres soient desors tenues od toux les - amendementz quiex purrount estre ordeinez par le sage Counsail nostre - Seignur le Roi a profist et honur de lui et des soens.” - - -[83] Twiss (_Black Book of the Admiralty_, ii. xliii; ii. xi), who -collected the old sea laws of Europe, states that the most ancient -extant source of modern marine law are the Decisions of the Consuls -of the Sea of the City of Trani, on the shores of the Adriatic, which -purport to be of the date A.D. 1063; and that the next most ancient are -the Judgments of Oleron, of which there are still copies, belonging to -the reign of Edward II., in the archives of the Guildhall, for use no -doubt in the City court, which administered the Law Merchant and the -Law Maritime. - -[84] _Op. cit._, i. 484. - -[85] _Op. cit._ - -[86] _Op. cit._ The specification of the duties within the cognisance -of the Admiralty occupies several pages; they included “all cases of -seizures and captures made at sea, whether _jure belli publicis_, or -_jure belli privati_ by way of reprisals, or _jure nullo_ by way of -piracy ... all causes of spoil and depredations at sea; robberies and -pyracies,” &c., &c. - -[87] M’Pherson, _Annals of Commerce_, i. 475, 485, quoting from -_Fœdera_. - -[88] 18 Edw. III., st. 2, cap. 3. Several articles in the _Black -Book_ show the same desire to encourage foreign merchants, and severe -penalties were prescribed for the robbing or wronging of foreign ships, -or interference with their freedom to trade. - -[89] _The Reading of the Famous and Learned Robert Callis, Esqr._, -_upon the Statute of Sewers_, 23 Hen. VIII., c. 5, &c., 1622; ed. 1824, -p. 48. - -[90] “Sur la mere d’Engleterre, devers les parties de Craudon.” - -[91] “Et prierent que le Roi, de sa seignurie et poer real, fait sente -dreit et punissement del dit fait, de siccome il est seigneur de la -mer, et la dite roberie fut fait sur la mer dans son poer, sicomme -dessus est dit.” - -[92] Nicolas, who gives the details referred to, says that there is no -record of these proceedings in the rolls of Parliament. _Op. cit._, i. -388. - -[93] “Et cum dicti nuncii ad tractandum de novo super hujusmodi dampnis -per dictum dominum nostrum Regem admissi fuissent, ipsi nuncii, prout -alii nuncii præfati Comitis, in tractatibus supradictis, inter cetera -quæ requirebant, ante omnia supplicabant, ut dictus dominus Rex ad -sectam suam de potestate sua Regia inquiri et justitiam faceret de -quadam deprædatione quibusdam hominibus de Flandria nuper de vinis et -aliis diversis mercimoniis suis super mare Anglicanum, versus partes -de Crauden, infra potestatem dicti domini nostri Regis, per homines -de regno Angliæ. Ut dicebant facta asserentes quod vina et mercimonia -prædicta eisdem Flandrensibus deprædata adducta, fuerunt infra regnum -et potestatem dicti domini Regis, et quod ipse est dominus dicti maris, -et deprædatio prædicta facta fuit supra dictum mare infra potestatem -suam.” _Rot. Pat._, 14 Edw. II., pt. ii. m. 26, _in dorso_. Selden -quotes this document (lib. ii. c. xxix.), but his text varies from the -above, thus: “... potestatem dicti domini Regis, et quod ad ipsum Regem -pertinuit sic facere pro eo quod ipse est dominus dicti maris.” - -[94] _Mare Clausum_, lib. ii. c. xxix. p. 282. - -[95] That “Crowdon” was in Brittany appears from a letter, dated -from Plymouth, 9th December 1402, from Henry Beaufort, Bishop of -Lincoln, the Earl of Somerset, and the Earl of Worcester, who were -sent to escort Joan of Navarre, Duchess of Brittany, the second wife -of Henry IV., to England. “Et par fin force pur un temps nous faut -demurrer en Bretaigne car la ou nous avoioms envoie au dite nostre -treshonuree et tresredoutee dame pur venir, noz niefs ne poiont ne -osent aler en le temps dyver. Et faut qele eit un leisir pur venir -pardevers nous, dont le havene que nous pensoms aler ove leide de Dieu -est Crowdon.”--_Proceedings and Ordinances of the Privy Council of -England_, i. 190. - -[96] Allard, _Du Poisson, considéré comme Aliment dans les Temps -anciens et modernes_. - -[97] Garrad, _The Arte of War_. - -[98] In the itinerary of a journey from England made by a Scottish -nobleman to join Edward I. in Scotland, it is recorded that herrings -were purchased nearly every day--at Dunstable, Newport, Northampton, -Leicester, Nottingham, Sherburn, &c. Sixty fresh herrings at York, -nearly forty miles from the sea in a straight line, cost eightpence, -and fresh haddocks and codlings were also bought. - -[99] “Prohibeo etiam firmiter ne quis decimas suas eis injuste detineat -sicut habuerunt in tempore regis Davidis super meum forisfactum et ne -quis in aquis eorum piscari presumat ... nisi per eorum licentiam.” - -[100] _Fœdera_, ii. 23. “Gent de Flaundres estre venuz sur mer, come -Pescheurs,” &c. - -[101] _Ibid._, ii. 37. The Flemish fishermen had probably gone up the -Tweed after salmon. - -[102] _Ibid._, ii. 688, dated 28th September. “Quia intelleximus quod -multi homines, de partibus Hollandiæ, Zelandiæ et etiam Frislandiæ, qui -sunt de amicitia nostra, ad piscandum in mari nostro, prope Jernemuth,” -&c. - -[103] Lundberg, _Det Stora sillfisket i Skåne under medeltiden -oeh nyare tidens början_. Worms, _Hist. commerciale de la Ligue -Hanséatique_. - -[104] Fruin, _Tien Jaren uit den Tachtigjarigen Oorlog_, 181. - -[105] _Brit. Mus. MSS. Galba_, B. iii. 16. Henry apparently acceded to -the request; _vide_ “John Heron’s accompte for waftynge of the herring -fleete in the parties of Norfolk and Suffolk, _anno quarto_ R. Henrici -VIII.” _State Papers, Foreign and Domestic_, Hen. VIII., i. 1512. - -[106] Ljungman, _Nägra ord om de stora Bohus-länska Sillfiskeri_. - -[107] _Mare Clausum_, lib. ii. c. xxi. - -[108] _Rot. Pat._, 22 Edw. IV., m. 2; _ibid._, 2 Ric. III., i. m. 3; -_ibid._, 3 Hen. VII., part ii. _dorso_; _Mare Clausum_, lib. ii. xxi. - -[109] _The Statutes at Large passed in the Parliaments held in -Ireland_, i. 30. 5 Edw. IV., c. vi. “An Act that no Ship or other -Vessel of any Foreign Country shall go to the Fishing in the Irish -Countries, and for Custom to be paid of the Vessel that cometh from -Foreign Lands to Fishing.” - -[110] _Britannia_, Gough’s edition, ii. 248. - -[111] _A Pollitique Platt_, &c. - -[112] _State Papers, Dom._, James I., xlviii. 94. - -[113] Malines, _Lex Mercatoria_, 189, from whom Selden quotes it, with -the remark, “There are some also who affirm that the King of Spain,” -&c. _Mare Clausum_, ii. c. xxx. It is also given by Boroughs and other -writers. - -[114] _State Papers, Dom._, Charles I., clxxx. 96. - -[115] One of the licenses, which ran for a year, is printed in Appendix -C. The Zowe was described in 1630 as “a bank which lies between Rye and -Dieppe, and the outermost part is nearly one-third over the sea. This -zowe which they call the small zowe is 3 leagues long and 3 broad, and -26 and 28 fathoms deep. The French make it 10 leagues, because they -fish till they bring Beachy Head N., fayre Loo (? Fairlea, Fairlight) -W.N.W., and fish in 30 fathoms.” Sir H. Mainwaring to Coke, “A Short -Discourse or Propositions concerning the French fishing uppon the -Zowe, theyr abusing it, and the Remedy” (_ibid._) It was described as -the “chief nursery for turbetts, hollibatts, pearles (brill), soules, -weavers and gurnetts.” In Queen Elizabeth’s time only four licenses -were granted, but James increased the number to fourteen or fifteen. -They were carefully entered in the records of Dover Castle and the -Hundred Book of Rye. - -[116] Henrici de Bracton, _Legibus et Consuetudinibus Angliæ_, lib. -i. c. 12; lib. iii. c. 3. _Rolls Series_, Introd., by Sir Travers -Twiss, i. ii. Güterbock, _Henricus de Bracton und sein Verhältniss zum -Römischen Rechte_, 14, 55. - -[117] _Fœdera_, v. 719. “Il est convenu, &c., &c. Item, que pessoners -de la seignurie del roi de Castelle et del counte de Viscay peussent -venir et pescher fraunchement et sauvement en les portz d’Engleterre et -de Bretaigne, et en touz autres lieux et portz où ils vorrontz, paiantz -les droits et les custumes à les seignurs du pais.” - -[118] _Ibid._, v. 763. - -[119] _Fœdera_, viii. 306, 336. “Q’en ceste presente harenguison les -pescheurs de l’une part et d’autre puissent pescher plus seurement en -la mer la harenk et toutz autres poissons, depuis hable de Grauelinguez -et l’isle de Tanent, jusques a l’entree de la riviere de Saine, et au -hable de Hautoune.” - -[120] _Ibid._, viii. 451. - -[121] _Fœdera_, viii. 459. “Pro Piscatoribus, sub Dominio Ducis -Burgundiæ: ... toutz pescheurs, tant de nostre dit roiaume d’Engleterre -et de Caleis, et dez autres noz villes et lieux, come dez ditz conte -et paiis de Flandres, dez paiis de Picardie, de Normandie, et de -Bretaigne, et generalment de tut le dit roiaume de Fraunce, puissent -paisiblement aler par tout sur meer, pur peschier et gaigner lour -vivre, saunz en estre reprins ne empeschiez en ascun manere ... et par -ainsi que semblablement soit fait et otroie, de lez dites parties de -Flandres, Picardie, Normandie, Bretaigne, et autres del dit roiaume -de Fraunce, a la seurte dez ditz pescheours de nostre dit roiaume -d’Engleterre.” - -[122] _Ibid._, viii. 469, 472. Dumont, _Corps Universel Diplomatique du -Droit des Gens_, &c., II. i. 302. _Proc. and Ordinances of the Privy -Council of England_, i. 282. - -[123] _Ibid._, viii. 530, 548, “Et les pescheurs generalment aler -pescher sur mer pour gaignier leur vivre paisiblement.” - -[124] _Fœdera_, ix. 483. - -[125] _Rot. Parl._, iii. 643_b_. - -[126] Pikes and bows and arrows were used. Later, in the early part -of the seventeenth century, a regular part of the equipment of a -herring-buss was half-pikes and muskets, an estimate for one being--ten -half-pikes, £1; muskets with bandaleers, rests, and moulds, £6, with 6 -lb. of gunpowder and 6 lb. of leaden bullets. - -[127] _Fœdera_, x. 730, 736, 761, 791. The article on the fishery -was as follows: “Que tous pescheurs, tant d’Engleterre, d’Irlande, -et de Calais, comme des paiis de Brabant et de Flandres, pourront -paisiblement aler par tout sur mer, pour peschier et gaignier leur -vivre, sans empeschement ou destourber de l’une partie ne de l’autre. -Et avec ce, se fortune ou autre aventure chassoit ou amenoit les diz -pescheurs de la partie d’Engleterre, en aucun des ports, havres, -destrois, et daugiers des dites paiis de Brabant ou de Flandres, ou les -diz pescheurs des dites paiis de Brabant et de Flandres en aucuns des -dites ports, havres, destrois, ou daugiers du royaume d’Engleterre, -Yrland, et de Calais, que ilz y soient paisiblement et franchement -receuz et traictiez raisonnablement d’une coste et d’autre, en paiant -aux lieux, ou ils arriveront, les toulieux et devoirs accoustumez, et -d’illec puissent liberalment retourner a tout leurs nefs, applois, et -biens sans destourbier, arrest, ne empeschement; pourveu que, par les -diz pescheurs, d’un coste et d’autre, ne soit commise aucune fraude, ou -fait dommaige.” Intercursus continuandus pro spatio duodecim annorum -inter Anglos et Flandros, Gandanos, Iperos et civitatis de Brabant. -_Ibid._, xi. 143. - -[128] “Et pur toutz sez autres paiis et seigneuries.” - -[129] “Et sans qu’il leur soit bosoigne sur ceo requirer ne opteiner -ascune license, congie, ou saufconducte.” 5 Jan. 1467/1468. _Ibid._, -xi. 591, 592, 595, 609. Dumont, _op. cit._, III. i. 592. - -[130] Dumont, III. i. 400. - -[131] _Fœdera_, xi. 683. - -[132] _Ibid._, xii. 67. In 1484 Richard III. issued a commission to -Thomas Lye, sergeant-at-arms, to make restitution for fishing-boats -belonging to subjects of Maximilian, Duke of Austria, which had been -taken, laden with fish, by English pirates. _Ibid._, xii. 227. - -[133] “Item, conventum, concordatum et conclusum est quod piscatores -utriusque partis partium prædictarum (cujuscunque conditionis existant) -poterunt ubique ire, navigare per mare, secure piscari absque aliquo -impedimento licentia seu salvo conductu: Et, si contingat aliquos ex -piscatoribus unius partis per fortunam, tempestatem maris, vim hostium, -aut alio modo compelli intrare aliquem portum vel districtum alterius -partis, ibidem pacifice et amicabiliter recipientur et tractabuntur -(solvendo in locis ubi applicabunt jura et theolonia prædicta) et ab -illis portubus et locis poterunt libere recedere et redire, cum eorum -navibus et bonis, sine impedimento vel contradictione quacunque; -dummodo tamen per ipsos piscatores non committatur fraus neque dolus, -seu per eos aliis dampnum minime fiat.” 24 Feb. (1495)/(1496). -_Fœdera_, xii. 583. Dumont, III. ii. 338. - -[134] _Fœdera_, xii. 714; xiii. 132, 539, 714. - -[135] Ships of war were used to convoy the herring-busses of Holland -and Zealand at least as early as 1440. - -[136] _Cal. State Papers, Foreign and Domestic_, iii. Nos. 1534, 1535. - -[137] _Fœdera_, xiii. 752. Dumont, IV. i. 352. - -[138] Dumont, IV. i. 515. “Pourront aussi les Sujets des Païs, -Roiaumes, Terres et Seigneuries dessusdites, librement, et sans -détourbier, ni empêchement, pêcher à harangs, et autres poissons en -la mer, où ladite Treve aura lieu, et là où la pêche dudit harang -s’adonera, comme ils faisoient avant la Guerre, et pourroient et sont -accoûtumez de faire au tems de Paix.” - -[139] _Fœdera_, ii. 529, 545. Mieris, _Groot Charterboek der Graaven -van Holland_, &c., ii. 268; iii. 257; iv. 223, 378, 692, 816. Kluit, -_Historiæ Federum Belgii Federati_, 284. Yair, _An Account of the -Scotch Trade in the Netherlands_, 6, 27, 36. - -[140] Mieris, _op. cit._, iv. 146. About this time the Scots also did -their best to drive away English fishermen from their coasts. In 1400 -they fitted out a small fleet under Sir Robert Logan for this purpose, -but it was apparently insufficient, and Logan himself was captured by -the men of Lynn. Walsingham, _Hist. Anglicana_, 364. In 1420 complaint -was made to the English Parliament that the Scots had at divers times -attacked and taken English fishing vessels. _Rot. Parl._, iv. 127_a_. - -[141] _State Papers, Dom._, Charles I., clii. 63. See p. 218. - -[142] “Dat hy voorhadt, de haringvisscherij omtrent zyne kusten te -beletten.” Wagenaar, _Vaderlandsche Historie_, v. 209. - -[143] _Resol. Staten van Holl._, 5/15 September 1540. Bosgoed, _Bib. -Pisc._, 319. - -[144] Treaty of Binche, 9/19 February 1540/1541. Dumont, _op. cit._, -IV. ii. 208. - -[145] “Et quant au dernier article de la commission du Sr. de Limdy -[Lundy] ambassadeur, concernant le fait de la pescherie, ladite Dame -Reine [the Queen Dowager of Hungary and Bohemia] veuille par bonne et -meure deliberation proceder en telles et semblables affaires, se fera -informer sur le contenu dudit article, pour après en ordonner comme il -sera trouvé étre de raison, équité, et justice d’une part et d’autre -pour la conservation de la paix et amitié mutuelle desdits Sieurs.” -_Op. cit._, and see footnote next page. - -[146] Wagenaar, _op. cit._, 355. - -[147] _Res. St. Holl._, (29 Nov.)/(9 Dec.) 1544; (23 Feb.)/(5 Mar.) -1545, &c. Bosgoed, _op. cit._, 320. - -[148] Dumont, IV. iii. 12. “Circa piscationem verò ac liberum usum -maris, ea quæ per supradictum Tractatum anno 1541, 19 Februarii, -Binchii inter Serenissimam Reginam Mariam et supra nominatum Oratorem -Regis Scotiæ; inita, conclusa ac conventa fuerint debite ac sincere -observari debebunt.” - -[149] In 1618, when there was much searching of the records in Scotland -(where they were kept in a most careless and slovenly manner) to -establish the claim of James to the fishing in connection with the -approaching visit of the Dutch ambassadors, the Earl of Dunfermline -wrote to Lord Binning in London, forwarding a copy, in French, of the -treaty of 1541, and said, “Albeit ye will perseive by the last article -of the same annent the propositions of the fishings, the Queen of -Hungarie and Bohemia, who was for the Emperour Governant of the Low -Countries--we call her commonly Frow Mary--in that takes her to further -advysement with her Councill, and no thing resolved if any further -proceeding; _I pray God ye may find it otherwayes_.” _MSS. Advoc. -Lib._, 31. 2. 16. - -[150] The heads of the treaty and the ratifications are given by -Dumont, _Corps Diplomatique_, V. i. 507. The treaty itself is -published in full by Bor, _Vervolgh Vande Nederlantssche Oorlogen ende -Geschiedenissen_, iv. fol. 48-52. - -[151] _E.g._, in 1573, that “all maner of fischeris that occupyis the -sey and vtheris persounis quhatsumeuer” that catch herrings or white -fish “vpon the coist or within the Ilis or outwith the samin within -the Fyrthis” should bring them to free ports to be sold. _Acta Parl. -Scot._, iii. c. 7. - -[152] Leslie, _De Origine Moribus et Rebus Gestis Scotorum_, 24. A -point of land near Inveraray in Loch Fyne was long known, and is still -known, as Frenchman’s Point or French Farl, the tradition being that it -was to this place that herrings were brought to be sold and cured. _Old -Statistical Account of Scotland_, v. 291. - -[153] _Register Privy Council of Scotland_, i. 482. - -[154] _De Dominio Maris_, 16. In another work Welwood says, “And -for the eastern seas, direct from Scotland, what is more antiently -notorious than that covenant twixt Scottish men and Hollanders, -concerning the length of their approaching toward Scotland by way of -fishing.” _An Abridgement of All Sea Lawes_, c. 26. - -[155] _Register Privy Council of Scotland_, iv. 216. - -[156] Much information on the fisheries of the Netherlands will be -found in Professor A. Beaujon’s _History of Dutch Sea Fisheries_, 1884. - -[157] 33 Hen. VIII., c. 2. - -[158] 37 Hen. VIII., c. 23; 5 & 6 Edw. VI., c. 17; 7 Edw. VI., c. 11; 1 -Mary, st. 2, c. 13. - -[159] _Acts of the Privy Council of England_, i. 103, 104, 106, 112, -114, _an._ 1543. - -[160] 2 & 3 Edw. VI., c. 19. Certain exceptions, of those licensed, -ill, or very old, or in prison, were made. - -[161] _State Papers, Dom., Addenda_, Edw. VI., iv. 56. The paper, which -is endorsed by Cecil, “The Answer of the Fishmongers,” is undated, but -that it belongs to the reign of Edward VI. (1547-1553) is proved by -the words, “the reign of our late sovereign, Henry VIII.” The return -of 1528, referred to by the fishmongers, is among the State Papers -_(Foreign and Domestic Letters and Papers_, Hen. VIII., iv. pt. 2, -No. 5101). It states that 149 vessels went to the Iceland fishing, -mostly from Yarmouth, Blakeney, Cromer, Dunwich, Walderswick, and -Southwold; the herring-fishing in the North Sea employed 222, of which -110 belonged to the Cinque Ports, while 69 went to Shetland, the total -being 440. Shetland lings were in those days greatly prized, and -brought very high prices. - -[162] _State Papers, Dom., Addenda_, Edw. VI., iv. 57. “The decaied -Porte Townes w^{th} nombers of good villages a longe by the sea cost -of this realm, within these twentie or thirtie years;” undated, but -belonging to the same period, with Cecil’s calculations written on the -back. - -[163] _State Papers, Dom._, Elizabeth, xxvii. 71, February 1563. -Endorsed, “Arguments for Increase of the Navy,” and “Arguments to prove -that it is necessary for the restoring of the navy of England to have -one Day more in ye weeke ordained to be a fish day, and that to be -Wensday rather than any other.” - -[164] The exportation, without license, of herrings, among other -things, had been forbidden by 1 & 2 Ph. and Mary, c. 5 (1554); but by -1 Eliz., c. 17, subjects were permitted to export sea fish taken by -subjects in English ships free of customs for four years. - -[165] “The causes of the decay of fishing must be the lack of the vse -of fishing, which must be divided into ij partes, small eating of -fisshe in ye Realme, and not selling of it abroad.” - -[166] The number of French vessels engaged in the Newfoundland -fisheries is placed at 500, with 15,000 men; and over 100, with at -least 1000 men, fished at Iceland for “herrings,”--but no doubt for cod -and ling. - -[167] There are many other memoranda amongst the State Papers, some in -Cecil’s handwriting, which deal with fish-days. One gives in detail a -note of all the fish-days throughout the year, amounting to 186, and in -addition “a number of sayntes evens were fastyng dayes that now be not -observed.” _Ibid._, xxxi. 41, 42 (1563). - -[168] 5 Eliz. c. 5. The debate on the Wednesday proposal lasted three -days, the clause being ultimately carried by 179 to 97 (_Commons -Journals_, i. 68). It was in view of the expected opposition that the -long paper above referred to was prepared. The Wednesday was not put -on quite the same footing as the Fridays and Saturdays, since “one -only usual competent dish of flesh and no more” was allowed, provided -that at the same table “three full competent usual dishes of sea fish -of sundry kinds, either fresh or salt,” were served and eaten “without -fraud or covin.” Another clause explained that the object was “meant -politically for the increase of fishermen and mariners, and repairing -of port towns and navigation”, and not for any superstition “regarding -choice of meats”; any one stating the contrary was to be punished. - -[169] Among the imports of fish from the Low Countries at this time -were “cods-heads, cod-fish, eels, ‘gull-fish,’ haddocks, herrings, -ling, salmon, salt-fish, sturgeon, and ‘staple-fish.’” Hall, _A History -of the Customs Revenue in England_, ii. 237. - -[170] _State Papers, Dom._, Eliz., xxxv. 36. - -[171] 13 Eliz., c. 11. - -[172] _State Papers, Dom._, Eliz., xlviii. 83. - -[173] _Hatfield MSS._, i. 1177, 27th June 1568. - -[174] 13 Eliz., c. 11. In the preamble it is said the former Act “is a -very good Act, and greatly increased the navy and fishermen.” - -[175] _State Papers, Dom._, Eliz., lxxv. 16. - -[176] In the same year the author, at a dinner he gave at Westminster -to the burgesses representing “all the stately port towns of England,” -explained the substance of his “plat”; several of them suggested that -a subsidy should be raised on land and goods to set the scheme afloat; -and the Speaker remarked that “a Parliament had been called for a less -cause.” - -[177] _Burghley Papers_, A.D. 1572, _MSS. Lansd._ 14, No. 30. As the -catalogue states, the signature is erased, and the paper is entered -as anonymous; but careful scrutiny shows that it was signed “Rob^{t.} -Hitchcock.” - -[178] _A Pollitique Platt for the honour of the Prince, the greate -profite of the publique state, relief of the poore, preseruacion of -the riche, reformation of Roges and Idle persones, and the wealthe of -thousandes that knowes not howe to liue. Written for an_ Newyeres -gift _to Englande and the inhabitantes thereof_, by Robert Hitchcok, -late of Cauersfeelde, in the Countie of Buckyngham, Gentleman. London, -1st Januarie 1580. - -[179] In the early MS. copy presented to the Queen the 400 vessels -were to be from 100 to 200 tons, costing £400 each, and the crew was -to consist of a master, nine mariners, and thirty “rogues and lustie -vagabonds” obtained in the same forcible way. - -[180] This place, frequently mentioned in old works and papers -referring to the fisheries, was Vardö, or Vardöhuus, at the mouth of -the Varangerfjord, Finmarken, on the north-east coast of Norway, or, -as it was often described, Lapland. The king of Denmark had a castle -on the island, and dues had to be paid for liberty to fish. A number -of English vessels went there in spring, returning towards the end of -summer. - -[181] In France at this time, according to other records, Flemish -herrings brought £25 per last; Yarmouth, £10; Irish, £18; “coast” -herrings and Scotch, £11. - -[182] The _Pollitique Platt_ is earnest and even religious in tone, -and it is obvious that the author spent much time in collecting the -information and elaborating his scheme, which in all sincerity was -meant for the good of his country. Even after three centuries one -learns with regret (from his letter preserved at Hatfield) that he had -to petition the Privy Council, “for his relief and maintenance in these -his now declining years” (1596), to cause every innkeeper, &c., to -purchase from him, for sixpence, and put up publicly, a printed table, -or “breviate,” describing the “benefits that growe to this Realme by -the Observance of Fish-Daies.” - -[183] Better known by its running title, _The Brytish Monarchie_. It is -a very rare work, only 100 copies having been printed. The author’s own -copy is in the British Museum. - -[184] P.7. - -[185] Sir John Constable’s case. Moore, _Hist. Foreshore_, 225, from -_Hargrave MSS._, 15, fol. 95_d_. In the case for the crown the claim -to the sea is very briefly put: “Car quant est floud est parcel del -mere que est solement en le Roign et nemy en ascun subject; car est -pur passage pur chescun, mes owner de ceo nul si non le Roign.” -Anderson, _Les Reports du Treserudite_, i. 86. (ed. 1664). In a MS. -in the Cottonian collection (_Galba_, C. 11, “Acta inter Angliam et -Belgium, 1564-1567”) it is said the jurisdiction of the Prince in the -adjoining sea extends for a distance of 100 miles unless (1) in seas -lying between the territories of two princes which contain less than a -hundred miles, in which case it extends to the mid-line--usq’ ad mediũ -eiusdem maris extenditur; (2) where another prince has a right to the -whole sea. The authorities referred to are Bartolus, Angelus, Paulus de -Castro, and Joan de Platea. - -[186] _Op. cit._, 21. - -[187] Two MS. copies exist, one bound up with Dee’s copy of the -_General and Rare Memorials_ in the British Museum, which was sent -to Dyer with the MS., the other in _Harleian MSS._ 249, fol. 95. The -latter, which is a draft, is addressed “To my very honorable frende -Syr Edward Dyer, Knight,” and a note inscribed on it says, “Written -by Dr John Dee, out of whose library I bought it after his death A^o -D^o 1625, S.D.” The title on both MSS. is ΘΑΛΑΤΤΟΚΑΡΤΙΑ ΒΡΕΤΤΑΝΙΚΗ: -_Miscelanea quædam extemporanea de Imperii Britannici Iurisdictione in -Mari_; and both are dated 8th September 1597. - -[188] Lat. 49° 6´ N., long. 2° 49´ W. - -[189] “All those that pass within our sea jurisdiction (either absolute -or respective) and therein commit any notable offence against us may -lawfully by our power be taken; and the same offenders may as lawfully -and justly be punished, as if on our land territory an offence like, -or of like degree of injury, were by them against us committed.” -“Absolute” jurisdiction applied to the sea where both coasts belonged -to England; “respective” where it terminated half seas over. - -[190] In 1597 Dee expressed his grief and surprise that so little had -been done or attempted with regard to the sovereignty of the sea, “and -so my labours (after a sort) vaynely employed.” MS. - -[191] _Bullarium Romanum Novissimum_, i. 346. “Insulæ novi Orbis -à Ferdinando Hispaniarum Rege, et Elisabeth Regina repertæ, et -reperiendæ, conceduntur eisdem, propagandæ fidei Christianæ causa ... -omnes insulas et terras firmas inventas et inveniendas, detectas ad -detegendas versus Occidentem et Meridiem fabricando, et construendo -unam lineam à Polo Arctico scilicet Septentrione, ad Polum Antarcticum, -scilicet Meridiem, sive terræ firmæ, et insulæ inventæ et inveniendæ -sint versus Indiam aut versus aliam quamcumque partem, quæ linea distet -à qualibet Insularum, quæ vulgariter nuncupantur de los Azores y cabo -vierde, centum læucis versus Occidentem et Meridiem,” &c. Art. 8, -“prohibet aliis accessum ad illas insulas pro mercibus habendis absque -Regis licentia.” - -[192] Harrisse, _The Diplomatic History of America_, 78. - -[193] Selden, _Mare Clausum_, i. c. xvii. - -[194] Selden, _loc. cit._ - -[195] Camden, _Annales_, 225 (ed. 1635). - -[196] _Hatfield MSS._, ii. 684. “Whether Your Majesty’s Subjects may -lawfully trade into the Indies.” Undated, but calendered under the year -1578. - -[197] Hautefeuille, _Hist. des Origines, des Progrès, et des -Variations du Droit maritime international_, 15. Hall, _A Treatise on -International Law_, 142. - -[198] _Rot. Parl._, iv. 79_b_. The petition declared that owing to -the fish having deserted the coasts where they used to be taken, the -fishermen had been forced to go to Iceland and other places for six or -seven years past in order to catch them. English fishermen, however, -had frequented Iceland long before that time. - -[199] _Fœdera_, ix. 322. - -[200] _Rot. Parl._, iv. 348, 378. 8 Hen. VI., c. 2. - -[201] _Fœdera_, xii. 381. - -[202] _Ibid._, xiii. 798. - -[203] _State Papers, Dom._, Elizabeth, clxxx. 26, 15th July 1585. - -[204] _Ibid._, ccxiii. 92. - -[205] _Fœdera_, xvi. 278. A license granted in 1570 to an Englishman, -one Raymond Binge, for fishing at Iceland for seven years, gave -permission for his boats to be kept and wintered in the ports there, on -payment of the customs and abstaining from trading, as well as freedom -of fishing except where prohibited by royal edicts, reserved for the -king’s use, or granted to others. _Brit. Mus. Vespasian MSS._, C. xiv. -fol. 21. - -[206] Complaint of the Mayor of Kingston-upon-Hull to Cecil, 2nd July -1599. _State Papers, Dom._, cclxxi. 68. - -[207] _Fœdera_, xvi. 395, 432. - -[208] _Brit. Mus. Vespasian MSS._, C. xiv. fol. 22. _Fœdera_, xvi. 431. - -[209] _State Papers, Dom._, cclxxiv. - -[210] _Fœdera_, xvi. 433. - -[211] _Brit. Mus. Lansdowne MSS._, 142, fol. 380. - -[212] 23 Eliz., c. 7, 1580-81. _Brit. Mus. Lansd. MSS._, 14. - -[213] 39 Eliz., c. 10. - -[214] The price of stock-fish had risen from £12 a last in 1584 to £18 -and £20 in 1597, and the price of cured ling in the same time advanced -from £3 to £5, 5s. per cwt. _State Papers, Dom._, cclxv. - -[215] A commission of eleven peers, three bishops, and two law-officers -had been appointed in 1593 for the repeal of the Act respecting the -importation of salted fish and herrings. _Ibid._, ccxliv. 84. - -[216] _Ibid._, cxlvii. 21, 22. - -[217] 27 Eliz., c. 11. - -[218] 35 Eliz., c. 7. - -[219] Jeninges, _A briefe discouery of the damages that happen to this -Realme by disordered and vnlawfull diet_, 1593. Hitchcock, _A briefe -note of the benefits that grow to this Realme by the observation of -Fish-Daies_, _Hatfield MSS._, 1595. _State Papers, Dom._, cclxv. 25. -_Remembrancia_, 391 _et seq._ - -[220] _Every Man in His Humour_, Act 3, sc. 4. - -[221] Froude, _Hist. England_, iii. 69. - -[222] King Edward’s Journal, in Burnet, _Hist. Reformation_, ii. (v. of -ed. 1865). Oppenheim, _Hist. Administration Roy. Navy_, 106. - -[223] _Acts of the Privy Council of England_, iv. 37. 7th May 1552. - -[224] Selden, _Mare Clausum_, lib. ii. c. xxvi. - -[225] Raleigh, _A Discourse of the Invention of Ships_, Collected -Works, viii. 326. Monson, _Naval Tracts_, in Churchill’s _Collection of -Voyages and Travels_, iii. - -[226] Monson, _op. cit._ Laughton, _Fortnightly Review_, Aug. 1866. - -[227] Froude, _op. cit._, viii. 68. Laughton, _loc. cit._ - -[228] An undated State Paper, calendared under the year 1604, entitled -“Reglement for Preventing Abuses in and about the Narrow Seas,” -contains a claim by the king to a most absolute dominion over the Four -Seas (_State Papers, Dom._, James, xi. 40). It appears, however, to -be merely a copy of the similar regulation prepared in 1633 by Sir -Henry Martin (see p. 252). It is not contained in the volume of royal -proclamations published in 1609, and is not referred to by Selden. It -has no doubt been wrongly calendared. - -[229] It is given in Appendix D, from _A Booke of Proclamations, -published since the beginning of his Majesties most happy Reigne ouer -England, &c., Vntill this present Moneth of Febr. 3, Anno. Dom. 1609._ -_Cum Priuilegio_, p. 98. - -[230] “Item, conventum et conclusum est, quod, dicto bello durante, -nullus subditus principum prædictorum, intra portus et sinus maris -quoscumque, flumina, ostia fluminum, gurgites, aquas dulces, stationes -navium, et præsertim stationem vulgariter vocatam _les Dunes_, aut -alia loca maritima quæcumque jurisdictioni dicti Regis Angliæ subjecta -aliquam navem mercatoriam, onerariam, armatam vel non armatam, onustam -seu vacuam, cujuscumque quantitatis aut oneris fuerit, de quacumque -natione eadem navis extiterit, capere, spoliare, diripere, seu merces, -victualia, aut armamenta quæcumque, ab eisdem navibus, aut earumdem -nautis auferre, nec eisdem vim, violentiam, aut molestationem aliquam -inferre possit, aut debeat,” &c. Dumont, _Corps Diplomatique_, IV. i. -352. - -[231] This interesting document is printed in Appendix E, from _State -Papers, Dom._, James I., vol. 13 (1605), No. 11; No. 12 is another -of the same. It is not the original, but a copy, the names being all -in the same hand as the body of the paper. Diligent search among the -records has failed to furnish the “plott” referred to, but there -is no reason to doubt that the reproduction of it by Selden (_Mare -Clausum_, lib. ii. c. xxii.), and shown here on fig. 3, is an accurate -representation. Selden states that the plott or chart was engraved, and -copies sent to the officers concerned. - -[232] It will be noticed from fig. 4, where the lines between the -headlands are shown on a modern map, that some of the “chambers” on the -east coast have entirely disappeared, no doubt owing to the erosion or -silting up of the coast at those places during the last three hundred -years. - -[233] In stormy weather as many as 300 or 400 sail of Hollanders took -refuge in St George’s Channel at a time. _State Papers, Dom._, xlv. 23 -(1609). - -[234] Cunningham, _The Growth of English Industry and Commerce_, i. 424. - -[235] Gardiner, _Hist. England_, i. 103. - -[236] Declaratie van de visscherijen in Holland Zeeland en Vlaanderen. -Fruin, _Tien Jaren uit den Tachtigjarigen Oorlog_, 1588-1598, p. 186. - -[237] _Descrittione Di M. Lodovico Gvicciardini Patritio Florentino, -Di Tvtti i Paesi Bassi, Altrimenti Detti Germania Inferiore_, Antwerp, -1567, p. 21. The value of the cod caught was placed at £150,000 -sterling per annum. - -[238] Hadrianus Junius, _Batavia_, p. 203. The work was written between -1565 and 1569, and published in 1588. - -[239] Hitchcock, _A Pollitique Platt_. The author says that when he was -at the wars in 1553, more than 400 busses were set forth from twelve -towns in the Low Countries. Dee, _General and Rare Memorials_. - -[240] Faulconnier, _Description Historique de Dunkerque_, i. 47, 53, -121. - -[241] Van Meteren, _Historie der Nederlandscher ende haerder Naburen -Oorlogen_ (1614), fol. 466. This author says the maritime power of -the States was shown in the same year, when between 800 and 900 ships -departed for the Baltic within the space of two or three days’ tides. - -[242] John Keymer’s _Observation made upon the Dutch Fishing about -the year 1601. Demonstrating that there is more Wealth raised out of -Herrings and other Fish in his Majesties Seas, by the neighbouring -Nations in one Year, then the King of Spain hath from the Indies in -Four._ London, Printed from the original Manuscript, for Sir Edward -Ford, in the year 1664. Keymer states that he found in Holland more -than 20,000 sail of ships and “hoyes,” more than was possessed by -England, France, Spain, and other eight countries in Europe. The same -figure is given by Sir Thomas Overbury, who visited the Netherlands in -1609 (_Observations in his Travels, upon the State of the Seventeen -Provinces_, 1626). - -[243] - -[Illustration: Fig. 5.--_Facsimile of Keymer’s Signature to his ‘Book -of Observations.’_] - -_Observations touching Trade and Commerce with the Hollander, and Other -Nations; presented to King James, wherein is proved that our Sea and -Land Commodities serve to enrich and strengthen other Countries against -our own._ Raleigh’s _Collected Works_, viii. 351. Oldys, in his Life -of Raleigh, which was published in 1736, says there was some reason -to doubt whether Sir Walter Raleigh was the author of this treatise: -it was first printed in 1653, first associated with Raleigh’s name by -being bound up with his “Remains” in 1656, and first definitely said to -be Raleigh’s by Roger Coke in his _Detection of Court and State_; and -he gives reasons for the opinion that it was written by John Keymer and -not by Raleigh (_Collected Works_, i. 441). But, as Raleigh’s latest -biographer states, Raleigh still has the credit of it (Stebbing, _Sir -Walter Raleigh_, 267). I have, however, found the original signed -manuscript copy among the State Papers for 1620 (_State Papers, Dom._, -cxviii. 114, December 1620), and an unsigned and slightly altered copy -among those for 1623 (_State Papers, Dom._, clvii. 45). The original -is endorsed, _Keymers booke of observac͠ons for your moste excellent -Ma^{tie} touchinge trade and traffique beyond y^e Seas and in England -wherein he certaynly findeth y^t your sea and land Commodities doe -searve to inrich and strengthen other Cuntries agnst your Kingdome; -w^{ch} were y^e urgent causes why he endeavoured himselfe to take -extraordynarie paynes for y^e redresse: soe it maie stande w^{th} -your Ma^{ties} good Likinge_. 1620. It is subscribed, “Your Ma^{ties} -most loyall and true harted Subject, John Keymer,” and it is the same -treatise as is published in Raleigh’s _Works_, with a few trifling -verbal differences, while the concluding sentence is omitted in the -printed form--viz., “To conclude, England is a great and famous body -and would be farr greater, richer and stronger, if the ten fingers were -rightly imployed.” Further proof exists that Keymer was the author of -this much-discussed treatise. Its object was to show how the trade and -revenue might be greatly increased, and the author begged the king to -have a commission appointed to examine witnesses as to his proposals. -This commission was appointed two years later, as appears from the -following entry in the Grant Book in 1622: “20 Dec. Com̃ to Charles, -pr. of Wales, John Bp. of Linc., Ld Keeper of y^e g. seale, Lewis Duke -of Lennox, Geo. Marquis Buck., &c. to hear the propositions which shall -be made by John Keymer and to consider whether they will tend to the -good of y^e King, and commonwealth as is pretended” (_State Papers, -Dom._, Jas. I. (Grants), vol. 141, p. 352). There does not appear to -be any further mention of the matter. This John Keymer is supposed -to be the same as a person of that name who was licensed by Raleigh -about 1584 to sell wines at Cambridge. Among the MSS. at Hatfield are -letters from him, dated in 1598, to Cecil and the Earl of Essex, in -which he speaks of his services, of “his travels and labours to find -out the practises used beyond the seas to their advantage and our great -danger and how to prevent the same,” and of his works, one of which -he said showed how to increase the Queen’s treasure above £100,000 a -year. He also corresponded with Carleton in 1619. In his address to -the king, prefixed to the treatise of 1620, he mentions that “about -fourteen or fifteen years past” he had presented him with “a book of -such extraordinary importance for the honour and profit” of his Majesty -and posterity, which was doubtless the earlier tract referred to above, -and would fix its date about 1605 or 1606. He was also engaged on the -fishery question about 1612 (doubtless in connection with the proposed -society), because Tobias Gentleman, whose work was published in the -spring of 1614, tells us that he was visited “some two yeares past” -by “Maister John Keymar,” who was collecting information about the -fisheries, with the view of placing it before the Council (_Englands -Way to Win Wealth_, 3). - -The copy of Keymer’s tract, which is among the State Papers of 1623, -is unsigned, and is simply calendared as “Tract addressed to the King, -consisting of observations made by the writer in his travels on the -coasts,” &c.; but the person who calendared the paper has written -on it, in pencil, “q. By Sir Walter Cope (_ob._ 1614). See 1612, a -letter or discourse to the King, to which this was attached,” and has -added the name “Walter Cope” at the end. The paper referred to (_State -Papers, Dom._, vol. 71, No. 89) has written on it in the old hand, “Sr -Walter Cope to K.,” and “Anno Domini 1612. A present for the Kinges -most excellent Maiestie.” It is only mentioned here because the draft -of it, which is the next paper in the volume (No. 90) and has several -corrections on the first page, bears the following note in one of the -corners, “Nota Mr Chancellor and Malynes wife (?) the ... of Maye, -Ralegh.” The meaning is obscure, but perhaps it may be surmised from -the contents that Malynes, who was at that time concerned with the -fishery society proposals, had submitted it to Sir Walter Raleigh, and -that ultimately it was presented to the king by Sir Walter Cope, who -was on intimate terms with him. - -[244] _Englands Way to Win Wealth, and to employ Ships and Mariners; -or, A plaine description what great profite it will bring vnto the -Commonwealth of England, by the Erecting, Building, and aduenturing -of Busses, to Sea, a Fishing: With a true Relation of the inestimable -Wealth that is yearly taken out of his Majesty’s Seas by the -Hollanders, &c._, by Tobias Gentleman, Fisherman and Mariner, London, -1614. - -[245] _State Papers, Dom._, Jas. I., xlvii. 114. - -[246] Keymer, _Observations on Dutch Fishing_; Gentleman, _op. cit._; -Buchanan, _Rerum Scot. Hist._, lib. i. c. xlix; Leslie, _De Origine -Moribus et Rebus Gestis Scotorum_, 39; _Register Privy Council of -Scotland_, ii. 656; _MSS. Advoc. Lib._, 31. 2. 16. - -[247] _State Papers, Dom._, xxxii. 31. Other accounts are as follows. -In 1609 the Earl of Salisbury wrote (erroneously) that while fifty or -sixty years before only one or two hundred foreign vessels came to -fish on the east coast, they then numbered two or three thousand sail -(Winwood, _Memorials_, iii. 50). Sir William Monson in the same year -placed the number of Hollander busses at 3000 and the number of men -at over 30,000 (_State Papers, Dom._, xlvii. 112, 114). Sir Nicholas -Hales also estimated the number of men at 30,000 (_Ibid._, xlv. 23; -cclxxiv. 67). In the following year the Dutch ambassadors admitted that -20,000 men were employed in the great herring fishery, as well as other -40,000 in connection with it on shore (_Ibid._, lxvii. 111). A little -later, in 1616, the Secretary to the Duke of Lennox told the Dutch -ambassador that in the previous June, 1500 or 1600 Hollander busses -were at Shetland (_Add. MSS. Brit. Mus._, 17,677, J, fol. 160). In 1618 -the number fishing on the east coast of Scotland sometimes exceeded -2000 sail (_MSS. Advoc. Lib._, 31. 2. 16). Malynes in 1622 placed the -number of busses from Holland and Zealand at 2000 (_Consuetudo vel Lex -Mercatoria_, 89). Two years later a Spanish agent described them as -consisting of 2400 vessels, guarded by 40 men-of-war, and scattered -over an area of 200 leagues (_State Papers, Dom._, dxxi. 30). In 1629 -Secretary Coke, who derived the information from a Scottish source, -said the Hollander busses sometimes amounted to 3000 sail; three years -later he put the number in connection with the fishery off Yarmouth -at “above a thousand”; at this time the French vessels numbered 40 -(_Ibid._, Chas. I., clii. 63; ccxxix. 79). Beaujon (_op. cit._, p. 64) -expresses the opinion that 2000 busses were the maximum number. - -[248] To Pomerania, Poland, “Spruceland,” Denmark, Liefland, Russia, -Sweden, Germany, Brabant, Flanders, France, “Lukeland,” England, -Greece, Egypt, Venice, Leghorn, and all over the Mediterranean, and -even as far as Brazil. - -[249] _State Papers, Dom._, xlvii. 112. - -[250] To the King’s most excellent Majesty: A Declaration of the -fishing of Herring, Cod, and Ling, and how much the favour or disfavour -of Your Royal Majesty concerneth the Hollanders. _Ibid._, xxxii. 30; -cclxxix. 67. - -[251] Misselden, _The Circle of Commerce, or the Balance of Trade_, -1623, p. 121. It may be said that the aggregate quantity of herrings -now taken in the North Sea, and mostly by Scottish and English -fishermen, equals about 3,500,000 barrels in a year. - -[252] Manship, _History of Great Yarmouth_, 119, 121. - -[253] Gentleman, _op. cit._, 7, 32. - -[254] Keymer, _Observations on Dutch Fishing_. - -[255] Manship, _op. cit._, 97, 120. The work was written between 1612 -and 1619. - -[256] Gentleman, _op. cit._, 36; Swinden, _History of Great Yarmouth_, -465; _State Papers, Dom._, xlvii. 112, 114. - -[257] Meynert Semeyns, _Een corte beschryvinge over de -Haring-visscherye in Hollandt_. - -[258] Keymer, _Observations on Dutch Fishing_; Monson, _Naval -Tracts_, in Churchill’s _Collection_, iii. 467; H. Robinson, _Briefe -Considerations concerning the Advancement of Trade_, p. 50; _England’s -Great Interest by encouraging the setting up of the Royal Fishery_, -&c., &c. - -[259] A Demonstration of the Hollanders increase in Shipping and our -Decay herein. _State Papers, Dom._, xlvii. 112. - -[260] _The Trades Increase._ Keymer, _Observations on Dutch Fishing, -&c. Observations touching Trade, &c._, Raleigh’s _Works_, viii. 374. -_State Papers, Dom._, xlviii. 114. - -[261] _A Discourse of the Invention of Ships. Works_, viii. 325. - -[262] In one of the most elaborate and detailed of the proposals for -the building of busses, the daily allowance of beer for each man was to -be a gallon, as in the king’s ships: the buss was to go to sea with 56 -herring barrels full of beer. E. S.--_Britaines Bvsse, or a Computation -as well of the Charge of a Bvsse or Herring fishing ship as also of the -Gain and Profit thereby._ London, 1615. - -[263] Keymer, _Observations on Dutch Fishing_. The industrious -Hollander was held up as an example to the English. “If any be so -weak,” said one writer, “to think this mechanical fisher trade not -feasible to the English people, to him I may say with Solomon, Go to -the Pismire! Look upon the Dutch! Thou Sluggard! learn of them! They -do it daily in the sight of all men at our own doors, upon our own -coasts.” “Shall we,” said another, “neglect so great blessings? O -slothful England, and careless Countrymen! Look but on these fellows, -that we call the plump Hollanders; behold their diligence in fishing -and our own careless negligence.” - -[264] _State Papers, Dom._, James I., lxxi. 89. Malynes, who, as -already suggested in the note on page 128, may have been the author -of Cope’s tract, said exactly the same thing in 1622--that there had -been a continual agitation for over thirty years to make busses and -fisher-boats. _The Maintenance of Free Trade_, 42. - -[265] J. Bowssar to Sir Julius Cæsar, 14th October 1607, _Brit. Mus. -Lansdowne MSS._, 142, fol. 373. - -[266] A Project for to restore unto the King’s Majestie his Dueties of -Fishing by re-establishing ye Auncient Manner of fishing for herringe, -Coad, and Ling, for maintenaunce of Navigation and Marryners with -greatt increase of Traffique, 22nd April 1609, _Brit. Mus. Lansdowne -MSS._, 142, fol. 371. _State Papers, Dom._, xlviii. 95. - -[267] Treaty of Antwerp, 30 March/9 April 1609. - -[268] A rubric in the copy at the Record Office says, “By Proclamation -first, most convenient to all the world.” - -[269] _State Papers, Dom._, xlviii. 94. It is written on parchment and -imperfect, and endorsed, “Mr Rainsford’s Answeares.” - -[270] See p. 64. - -[271] To the King’s Most excellent Majestie: A Declaration of the -Fishing of Herring, Codd, and Ling, and how greatly the favour or -disfavour of Your Royal Majesty concerneth the Hollanders. _State -Papers, Dom._, xxxii. 32. A Declaration how much the Favour or -Disfavour of Your Royal Majestie doth concern the Prosperity or -Adversitie of the Hollanders: and what inconvenience may ensue, and how -to praevent the same to the honour and safety of your Majesty and the -tranquillitie of the Netherlanders. _Ibid._, xlv. 23. - -[272] A Demonstration of the Hollanders Increase in Shipping and our -Decay herein. _Ibid._, xlvii. 112. Particulars of the Lawes observed by -other Nations touching fishing, and the Advantages that would accrue -from establishing an English Fishing fleet. _Ibid._, 114. - -[273] _Records of the Convention of the Royal Burghs of Scotland_, ii. -203, July 2, 1605. - -[274] _State Papers, Dom._, xxxii. 31. - -[275] _State Papers, Dom._, xlv. 22. The petition was signed by -fishermen of Yarmouth, Dover, Hastings, Rye, Hythe, and Folkestone. It -is said in the petition that they had previously craved both the king -and the Council for redress, without avail. - -[276] The author of _Britaines Buss_ had heard, but did not believe, -stories of the “very foul and insolent dealing of their bussmen with -our poor weak fishermen upon our coasts.” Tobias Gentleman, who admired -the Dutch for their industry, said they scorned us only “for being so -negligent of our profit, and careless of our fishing; and they do daily -flout us that be the poor fishermen of England, to our faces at sea, -calling to us and saying, ‘Ya English, ya zall, or oud scoue dragien,’ -which in English is this: ‘You English, we will make you glad for to -wear our old shoes.’” _Englands Way to Win Wealth_, p. 44. - -[277] _Brit. Mus. Lansdowne MSS._, 142, fol. 375. A copy of the letter -of the Lords of the Council, in the handwriting of Sir Julius Cæsar, -is as follows: After our very hearty recommendations. Whereas his -Majesty hath of late been moved vpon many consyderations arising from -the complayntes of his subiects, to take some course of restraynt of -many inconveniences depending vpon the excesse of libertie, w^{ch} is -taken by the subiectes of forraigne princes and states to fish vppon -his coast; By which, not onlie his owne ffishermen receive wrong in -their fishing, but the verie Coast-Townes themselves are much decayed -for lack of meanes to sett their people on work. To w^{ch} end hee had -resolved to set forth a proclamation to th’effect of that w^{ch} is -hereinclosed: - -Fforasmuch as vppon perusall of some Treaties from King Henry 7_{ths} -tyme till this daye betweene the Crowne of England and the house of -Burgundy, we fynde certeyne clauses, by which there maye arise some -question how farre any such Prohibition maye concurre with the practice -of the same for so much as shall concerne the subiects of that Estate; -Of w^{ch} particulars it is necessary that some deliberation were -taken, beefore his Ma^{tie} proceeded to a generall execution of the -same: We have thought good to requyre yow ioyntly and severally to -peruse all those Treaties, and to consyder of them, and all other -thinges, by w^{ch} the lawfullnes or vnlawfulnes maye appeare of this -proceeding; Which being don wee shall expect some report from you for -his Ma^{ties} better satisfaction. - -Wherein wee doubt not but yow will proceede w^{th} all convenient -expedition. And so will bid yow hartelie farewell. - - Ffrome the Court at Whitehall - first of Ffebruarie, 1606. - - Mr Secretary Herbert. - Mr Chancellor of the Exchequer - Sr. Daniel Dun. - Sr. Thomas Crompton. - Sr. Christopher Perkins. - - Yo^r Verie loving friendes, - Subscribed by the - - 1. L. Chancellor. - 2. L. Treasour. - 3. L. Admirall. - 4. The Earle of Worcester. - 5. The Earle of Salisbury. - 6. The Earle of Marr. - 7. The L. Stanhop. - -This copy is dated 1st February 1606, and the copy of the report of -the Committee is also dated 1606, which would imply that the matter -had been before the Privy Council in that year. It appears, however, -from other evidence that Sir Julius Cæsar made a mistake in dating the -copies. - -[278] _Brit. Mus. Lansdowne MSS._, 142, fol. 377. In Sir Julius Cæsar’s -handwriting, and endorsed, “A copy of a letter from Mr Secretary -Herbert, myself, and others to the L^{ds} of the King’s P. Councell, -touching the prohibition of strangers fishing on the coasts of -England,” &c. This important paper reads as follow: Our humble duties -dewe to y^r good LL^{ps}. We have according to y^r commandement, -considered of the liberty w^{ch} is taken by the Subiectes of forreine -Princes and States to fish vppon the kings Ma^{ties} coasts by w^{ch} -not onely the English fishermen receive wrong in their fishing but -the very coast townes themselves are much decayed for want of meanes -to set their people on work; and we have considered likewise of the -proclamation for the restraint of those many inconveniences depending -vppon the excesse of such strangers fishing: We haue also pervsed the -treaties frõ Henry the 7th time till this day betweene the Crowne of -England and the House of Burgundy, and we have considered of them, and -of all other thinges by w^{ch} (as wee conceave) the lawfulness or -vnlawfulness may appeare of this proceeding. And are of opinion, that -the K^s Ma^{ty} may w^{thout} breach of any treatyie nowe in force, -or of the lawe, vppon the reasons specified in the proclamation sent -vnto vs, restreine all strangers frõ fishing vppon his coasts w^{thout} -license, in such moderation and after such convenient notice given -thereof by publik proclamation, as his Ma^{ty} shall think fit. - -And so we most humbly take our leaves. 14 febr. 1606. - - Yo^r L^{dships} humbly at commandment, - - J. Herbert. Jul. Cæsar. Daniel Dun. Christoph. Parkins. Tho. Crompton. - -From the erasures and corrections (see Fig. 6) there seems little doubt -that the paper is the original draft. - -[279] _Brit. Mus. Lansdowne MSS._, 142, fol. 379. In Cæsar’s -handwriting. - -[280] See Appendix F. - -[281] Perhaps an oblique reference to _Mare Liberum_. - -[282] _State Papers, Dom._, xlv. 24. _Proc. Coll._, No. 11. - -[283] Salisbury to Cornwallis, 8th June 1609. Winwood’s _Memorials of -Affairs of State in the Reigns of Q. Elizabeth and K. James I._, iii. -49. - -[284] Muller, _Mare Clausum_, _Bijdrage tot de Geschiedenis der -Rivaliteit van Engeland en Nederland in de Zeventiende Eeuw_, p. 52. -Bosgoed, _Bib. Pisc._, 347. Resolutiën ... van Vergaderinge van de -Heeren Staten van Hollandt ende West-Vrieslandt, 2/12 June 1609. “Ter -Generaliteyt’s lands recht voorstaan ter saake van het Engelsch placaat -op het visschen op de kusten en zeeën van Groot Brittannien en Yrland.” - -[285] “Ende oic Sijne authoriteyt eñ macht die hy in die See heeft -voir de werelt manifest te maecken.” - -[286] Sir George Carew to Salisbury, 20th June 1609. Acknowledges -his lordship’s letter, “according the request made by the ffr. Amb^r -for one year’s Respite longer for the ffishers of this nation,” and -expressing his pleasure that other considerations of state so fell out -as to give his Majesty cause to grant them that favour, “for it is like -to increase the amity of the two crowns.” - -[287] Caron to the States-General, 13/23 July 1609. _Brit. Mus. Add. -MSS._, 17, 677. - -[288] Winwood to Salisbury, 6th September 1609. _Memorials_, iii. 64. - -[289] The assize-herring was thus described by Skene, in _De Verborum -Significatione_, annexed to the laws of Scotland, printed in 1597. -“Assisa Halecum. The assise herring signifies ane certain measure and -quantity of herring, quilk perteinis to the king as ane part of his -custumes and annexed propriety, _Jac._ 6, p. 15, c. 237, for it is -manifest that Hee shuld have of everie Boat that passis to the drave, -and slayis herring, ane thousand herring of ilk tak that halds, viz. of -Lambmes tak, of the Winter tak, and the Lentrone tak”--that is, of the -summer, winter, and spring fishings. The assize-herrings appear to have -been originally a contribution to the king’s kitchen. In 1526 James V. -granted assize-herrings to Stuart of Ardgowane (_Origines Parochiales -Scotiæ_, ii. 83). In 1593, in an Act of the Parliament of Scotland, -entitled “Annexatioun of the Propertie of the Croun that wes nocht -annext of befoir,” the assize-herrings were included (Jac. VI., 1593, -c. 32. _Acta_, iv. 28), and an Act of 1597, entitled “Assysis hering -may nocht be disponit,” ordained that no infeftment or alienation in -few ferm or otherwise, and all rentals and dispositions whatsoever, -past or to come, were to be null and void, because they pertained to -the king as part of his customs and annexed property (_Acta_, iv. 131). -Later the assize-herring was commuted into a money payment. An Act -of Charles I. in 1641 (cap. 117), entitled “Act anent the Excise of -Herring,” on the ground that the collection of the herrings was “very -hard and difficult,” commuted the thousand herrings in the Firth of -Lothian into a money payment of £6 Scots. In the eighteenth century, -when it had been for the most part granted to individuals, or farmed, -it took the form of a tax ranging from £4 Scots to £10 Scots per boat -or per net, and was felt as a grievous burden. In the Firth of Forth -each boat that was “size-worthy” (viz., that caught 3000 herrings -during the whole season) had to pay ten shillings as “size-duty.” On -the west coast it amounted to £10 Scots, or sixteen shillings and -eightpence sterling, whether herrings were caught or not. With regard -to the gross value of the tax, those of the great Dunbar fishings were -leased in 1614 for five years for £1000 Scots, and a yearly rent of -2000 merks (_Reg. Privy Council Scot._, x. 282). In 1613 the value of -the “duty of the tack of the assize-herrings,” amounting to fourteen -lasts, which the Earl of Argyle rendered for Lochfyne, was estimated to -be about £36 or £38 sterling (_Melrose Papers_, i. 124). In 1598 the -assize-herring from the “east seas” was estimated to amount to 1120 -dry “killing” (cod), which shows it was sometimes paid in other fish; -in 1656-57 it was equal to £130 sterling (Chalmers, _Caledonia_, ii. -497); in 1629 Captain Mason claimed no less than £12,489, 7s. sterling -as the value, with interest, of the assize-herrings of the Hebrides and -North Isles granted to him by James for the years 1610-11, and not paid -(_State Papers, Dom._, cliv. 13). - -[290] Arguments for Collecting the Assyze herring from all Strangers -fishing in the North Seas of Scotland, and Answers to some objections -proponet be Sir Noel Caron. _State Papers, Dom._, xxxii. 31. - -[291] Winwood, _Memorials_, iii. 105, 135, 146, 162. Muller, _op. -cit._, 56. - -[292] _State Papers, Dom._, xlvii. 111. “2. For that it is by the Lawe -of nacions, no prince can Challenge further into the Sea then he can -Com̃and w^{th} a Cannon except Gulfes w^{thin} their Land from one -point to an other. 3. For that the boundlesse and rowlinge Seas are as -Com̃on to all people as the ayre w_{ch} no prince can prohibite.” The -paper is endorsed “Reasons vsed by the Hollanders for the Continuance -of Fishing Contrarie to the proclamation made in May 1609 forbidding of -strangers to fish,” and there is a note, apparently in Cæsar’s writing, -saying, “This note was sent by Emanuell Demetrius who was present att -the discourse.” It is misdated “Aug. 1609.” The endorsements appear -to have been made after 1612, because at the end it is said, “It was -answered by the _late_ Lord Treasr. Salisburie att a hearing,” &c. A -list is given of those present at the conference--viz., the Earls of -Salisbury, Northampton, Nottingham, Suffolk, Shrewsbury, and Worcester, -Mr Secretary Herbert and Sir Julius Cæsar, the “Standers by” being Sir -T. Edmondes, Sir Daniel Dunn, Sir Christopher Perkins, Sir William -Wade, and Mr Levinus Emanuell Demetrius,--probably the Levinus Muncke -of the Dutch and other records. It is to be noted that the argument -as to the limitation of the territorial sea by the range of guns was -not contained in the instructions to the Dutch, as printed by Aitzema -(_Saken van Staet en Oorlogh_, ii. 406) and Vreede (_Vrijheid van -Haringvaart_, 6; compare Muller, _Mare Clausum_, 58, 91), and is not -referred to by them in their Journal, where, however, they say they -put forward “other reasons” than those they recite (Muller, _Mare -Clausum_, 59). Van Meteren, whose work was published in 1614 (_Historie -der Nederlandscher ende haerder Naburen Oorlogen, &c._, fol. 650), -reports, however, that there was a great dispute as to how far a -country’s limit might extend into the open sea, and the brief note -of Levinus seems to be the only record of it. (“Sy seyden mede, dat -het een groote dispute ware, hoeverre elcx Laudts Custen ofte Limiten -inde groote wijde Zee Oceane mochte strecken.”) The document is of -interest not only from the clear enunciation of the doctrine at so -early a period, but because there are grounds for thinking that the -idea may have originated in the fertile brain of Grotius. Competent -Dutch authorities believe that Grotius either himself drew up the -instructions dealing with the fishery question or was consulted in -their preparation; and the fact that the argument is not contained in -the official instructions scarcely weakens the supposition. It was of -so drastic and novel a character to be urged against the pretensions of -King James that the Dutch, anxious to conciliate him, may have followed -a practice not uncommon in diplomacy, and kept it in the background -only to be made use of if a suitable occasion arose. It is, moreover, -known that Grotius had a close personal relationship with Elias van -Oldenbarnevelt, the envoy to whom the fishery negotiations were -specially entrusted. - -[293] Vreede, _Vrijheid van Haringvaart en Visscherij_. _Nota, in den -Jare 1610, door de Nederlandsche Gezanten aan de Engelsche Regering -ingediend (Bijdragen voor Vaderlandsche Geschiedenis en Oudheidkunde, -Derde Deel._ Arnhem, 1842). Muller, _op. cit._, 57; _State Papers, -Dom._, xlvii. 111; _Brit. Mus. Lansdowne MSS._, 142, fol. 362. Vreede -thinks it probable that the instructions were drawn up by Grotius; -Muller believes that he was at all events consulted on the matter. - -[294] _State Papers, Dom._, xlvii. 111. Vreede, _op. cit._ Muller, -_op. cit. Brit. Mus. Lansdowne MSS._, 142, fol. 362. “Answers for -prohibiting of strangers fishing upon the English coastes without the -King’s license, 5th May 1610”--in the writing of Sir Julius Cæsar. - -[295] “Niet door sollicitatiën van eenige courtisanen ofte hovelingen.” - -[296] The Lords of the Council to Winwood, _Memorials_, iii. 166. - -[297] _State Papers, Dom._, xlviii. 92. - -[298] Sir Walter Cope to the king, _State Papers, Dom._, lxxi. 89. See -note, p. 128. - -[299] _The Maintenance of Free Trade_, 42 (1622). He mentions the -reasons given by the powerful companies for their action, but it was -caused by their fears for their monopolies. - -[300] _State Papers, Dom._, lxxvii. 79. The Earl of Northampton to Sir -Thomas Lake, 4th July 1613. _Ibid._, lxxiv. 23. The queen, who was -fond of the banquet and the masque, was often in financial straits. -Chamberlain wrote to Winwood in 1609 that she had been melancholy about -her jointure, and that £3000 a-year had been added to it out of the -customs, with a gift of £20,000 to pay her debts. _Memorials_, iii. 117. - -[301] Gentleman, _Englands Way to Win Wealth, &c._; E. S., _Britaines -Buss; The Trades Increase_. - -[302] In 1609 Sir Nicholas Hales told the king that he had been -informed “the Hollanders were petitioners to the Queen to grant them a -term of years in the seas for the fishing of herring, cod, and ling.” -_State Papers, Dom._, xlv. 23. - -[303] Wotton to Sec. Winwood, Hague, 20th March 1614. - -[304] Archbishop Abbot and Lord Chancellor Ellesmere to Thomas Wilson, -24th August 1614. _State Papers, Dom._, lxxvii. 80. It is endorsed, -“The letter to me, 24th Aug. 1614, sending for me from Harford and -for the transcribing an abstract of all things out of my papers which -might concern his Majesty’s jurisdiction on the sea, which I did -and delivered it to Mr Attorney-General, Sir Francis Bacon, by the -commandment of the Lord Chancellor and the Archbishop of Canterbury.” - -[305] Caron to States-General, 27 Aug./6 Sept. 1614. _Brit. Mus. Add. -MSS._, 17, 677, H. - -[306] Muller, _op. cit._, 91, 92. - -[307] 26th September 1614. - -[308] _Records of the Convention of the Royal Burghs of Scotland_, ii. -455. Anstruther Easter, one of the Fife villages, asked that the costs -(£400 Scots) should be reimbursed to them for obtaining the decree -against Mason “for exacting of thame certane excyse hering and fishes -at the fishing in Orknay and Zetland.” - -[309] _State Papers and Correspondence of Thomas, Earl of Melros_, i. -130. - -[310] _Reg. Privy Council Scot._, x. 231. _Rec. Convent. Roy. Burghs -Scot._, ii. 540. - -[311] The Lords of the Council to the king, 17th May 1614. _Melrose -Papers_, i. 130. “It wes fundin,” wrote the Lords, “by vniforme -voices and consent, without ony kynd of contradictioun, that the -assise dewytie aucht onlie to be payit for the hering brought freshe -and greene to land, and that the hering whilkis ar maid, saltit, and -barrellit vpoun the sea, and maid reddye for the transporte, hes nevir -bene in vse to pay ony dewytie.” - -[312] _Loc. cit._ The “patent” was the treaty of 1594. See p. 81. -It may be mentioned that Mason, in his petition to Charles I. (see -p. 153 _note_), stated that in 1611 he collected “some part” of the -assize-herrings, but that upon the marriage of the Princess Elizabeth -(February 1613) “the States ambassador made suit to the king for the -remission of the said assize-herrings due by their nation, which -was granted.” We have discovered no other evidence of this. Loose -statements were often made on the subject by English writers and -certain foreign authors, as Rapin (_Hist, d’Anglet._, vii. 58), and -Wagenaar (_Vaderl. Hist._, ix. 318) following him, that the Dutch -agreed to pay an annual sum for liberty to fish on the British coasts. -The error was elaborated by others, as by Lediard in his great work -(_Naval History of England_, i. 420), who says: “In the year 1608 -(_sic_) King James published a proclamation prohibiting all foreign -nations to fish on the coast of Great Britain. This prohibition, though -general, was designed against the Dutch; and it occasioned the Treaty -the year following whereby they engaged to pay an annual sum for leave -to fish--an evident acknowledgment of the English Dominion of the Seas.” - -[313] _Rec. Conv. Roy. Burghs Scot._, ii. 323, 350, 354, 374. - -[314] Winwood to Carleton, 14/24 September 1616. _Letters from and to -Sir Dudley Carleton, Knt., during his Embassy in Holland; from January -1615/6 to December 1620_, p. 52. - -[315] Caron to the States-General, 25 Aug./4 Sept. 1616. _Brit. Mus. -Add. MSS._, 17,677, J, fol. 152. In an account of the oppressions of -Lord Robert Stewart in the Orkneys and Shetlands in the sixteenth -century, it is stated that that nobleman laid heavy tolls upon the -Dutch fishermen and the Norwegian traders. In 1575 the inhabitants -complained that he compelled “the dogger boats and other fishers of -this realm to pay to him great toll and taxis bye auld use and wont, -to wit, ilk boat ane angel noble, ane hundreth fish, and twa bolls -salt” (_Oppressions of the Sixteenth Century in the Islands of Orkney -and Zetland_, xlviii. 4). It appears from a complaint of merchants of -Bremen, in 1614, that it had been a custom “past memory of man” for -each ship arriving at the Orkneys to pay six angels and one dollar for -ground-leave and water-leave (_Reg. Privy Counc. Scot._, x. 247); and -the Dutch are said to have given to the agent of the Earl of Orkney a -barrel of salt for his “oversight” of each ship, and to have offered -the Earl for each ship “an angell and ane barrell of birskate (biscuit) -bread,” while he demanded “no less than ane double angell or ane Rose -noble at the least” (_MSS. Advoc. Lib._, 31. 2. 16). - -[316] See p. 81. The treaty did not contain any stipulation of the -kind; and, moreover, the Scottish copy was then amissing. - -[317] Muller, _Mare Clausum_, 107. _Brit. Mus. Add. MSS._, 17,677, J, -fol. 153 _et seq. Lansdowne MSS._, 142, fol. 410. _Reg. Privy Counc. -Scot._, xi. 605, 608. - -[318] By the Scots Act, 1 James I., May 1424, regarding the “custome -of horse, nolt, scheepe, had furth of the realm, and of herring,” it -was ordained that the following should be paid: “of ilk thousand of -fresche herring sauld, of the Sellar one penny, and of ilk last of -herring, tane be Scottis-men barrelled, foure schillinges, of ilk last -be strangeris taken, sexe schillinges.” - -[319] Caron to the States-General, 25 Aug./4 Sept., 12/22 Sept., -19/29 Sept. 1616. _Brit. Mus. Add. MSS._, 17,677, J, fol. 152-166. -The statement of Lennox that the tax was a barrel of herrings or ten -shillings agrees with the statements of the Dutch skippers, who, -however, added twelve cod-fish (“Een tonne harinck van elcke bu sse oft -een Angelott daervooren met twelff cabillauwen”). - -[320] Carleton, _Letters_, 156, 157. Muller, _op. cit._, 110. _Brit. -Mus. Add. MSS._, 17,677, J, fol. 213_b_. _Lansdowne MSS._, 142, fol. -410. _State Papers, Dom._ Collection, Charles II., vol. 339. - -[321] Carleton, _Letters_, 156. Caron to the States-General, 3/13 Aug. -1617; Carleton to the States-General, 27 Aug./6 Sept. _Brit. Mus. Add. -MSS._, 17,677, J, fol. 210, 213. _State Papers, Dom._ Collection, -Charles II., vol. 339. - -[322] Carleton, _Letters_, 168, 169, 172, 176, 186. Muller, _op. cit._, -111. - -[323] _Brit. Mus. Lansdowne MSS._, 142, fol. 398, 400. “The State of -the Case between his Majesty and the States of the United Provinces, -touching the remanding to his Majesty of a Delinquent,” 19th November -1617. In Cæsar’s handwriting. It describes the circumstances of Brown’s -capture. The counsel whose opinion was obtained were “W. Byrde (? Sir -Wm. Bird, Dean of the Arches), H. Marten, and Hy. Styward.” “Brown, -his Majesty’s subject of the Kingdom of Scotland, was by authority -from that State sent in a pinnace of the King to the subjects of the -United Provinces, who were then fishing for herrings upon the coasts of -Scotland, to demand a certain acknowledgment claimed by his Majesty, -as due unto him in the right of that crown;” that “while delivering -his errand he was arrested and carried prisoner to Holland by the -Dutch commander, who pretended he had warrant and commission from the -Lords the States so to do; that his Majesty (having represented this -indignity by his ambassador there to the Lords the States, the latter -disavowed the act of the captain) requireth the offender there, to be -remanded unto himself here to receive as to justice shall appertain. -_The Question_--Whether this offender ought to be sent herein to -his Majesty as is required. _Answer_--There are good authorities -that if a subject of one State commit a heinous crime within the -territory of another State (though against a private person), the -subject so offending ought to be remitted to the place where the crime -was committed, if it be required.” There were also opinions to the -contrary, but “two very particular circumstances about this offence -seem necessarily to enforce the remission of the Dutch captain to his -Majesty (1) taken from the person of Brown, who was a public messenger -sent by the State of Scotland on the affairs of the Prince, and ought -to have been inviolable by the Law of Nations, and therefore a wrong -and abuse done to him was _contra jus gentium_; (2) taken from the -manner of the wrong done, which was _nomine publico_--viz., by a -pretended commission from the Lords the States.” - -[324] Carleton, _Letters_, 219-263. Muller, _op. cit._, 113. - -[325] Crail, Anstruther, and Pittenweem, in Fife, and Musselburgh and -Fisherrow, on the opposite side of the Firth of Forth. - -[326] 12th March 1618. _Reg. Privy Counc. Scot._, xi. 329. - -[327] Record imperfect. - -[328] _Reg. Privy Counc. Scot._, xi. 328, 330. - -[329] Carleton, _Letters_, 259. - -[330] King James to Sir D. Carleton, 4th May 1618. “For the other -part, which is y^e ancient custom alleadged by O^r Subjects that they -(the Dutch) should not fish within Kenning of Land, of which they -make shew to be ignorant, and would understand what is meant by it: -you may say that O^r Subjects do conceave that Custom to be that no -strangers should fish either within the Creeks of O^r Land or within -a Kenning of the Land as Seamen do take a kenning, and insisting -upon this interpretation of O^r Subjects’ meaning, you shall observe -curiously their reply, and what scope and liberty they do limit to -themselves in their fishing, and whether they understand that they may -fish where they list, near or far off, or that they may be confined -to any reasonable bounds, for thereupon will depend a great part of -that resolution which may be taken hereafter in a matter of so great -moment as this is, and the answer you shall receive you may either -advertise by writing, or bring with you, as you shall find O^r service -to require.” _State Papers, Dom._ Collections, Chas. II., vol. 339. -In a later communication to the States-General Carleton described the -land-kenning thus: “Ce qui est une limite bien entendue par gens de -Marine, et appellée en ces quartiers là _The Kenning of the Land_, et -icy _de kennis vant landt_.” Dr P. P. C. Hoek informs me that “het land -verkennen” is even now the technical Dutch expression when a sailor -comes near the coast without knowing at what point he approaches it. - -[331] Muller, _Mare Clausum_, 114. - -[332] “Ane True Relatione of the Greifs and Wrangs qlks the Inhabitants -of the Isles of Orknay and Schetland and Others his Ma^{ties} Subjects -Fishars within ye Kingdome of Scotland sustains be the Hollanders -and Hamburghgers and wha within these few Zears are associat to the -Hollanders in the Fishing within his Ma^{ties} Seas in Scotland.” _MSS. -Advoc._, 31. 2. 16. It may be noted that the custom referred to in the -last paragraph was of Scandinavian origin. - -[333] The Council to the king, 4th April 1618. _Melrose Papers_, i. -306, 307. - -[334] 5th June 1618, _Groot Placaet-Boeck, inhoudende de Placaten -ende Ordonnantien van de H.M. Heeren Staten Generael der Vereenighde -Nederlanden, &c._, i. 707. In Fraser’s _Memorials of the Earls of -Haddington_ (ii. 66) there is printed the copy which King James sent to -Lord Binning. Sir Thomas Hamilton became Lord Binning in 1613, the Earl -of Melrose in 1619, and the Earl of Haddington in 1627. - -[335] Answer by the States-General of the United Provinces to the -Propositions of the Ambassador of James VI. relative to the Herring -Fishery on the Coast of Scotland, 5th June 1618. Fraser, _Memorials_, -ii. 65. _Resol., St.-Gen._, 5th, 6th June. Muller, _op. cit._, 115. - -[336] The king to Lord Binning, 11th June 1618. Fraser, _Memorials_, -ii. 85. Nothing seemed to be known of this treaty. James complained -that the States were not explicit. “This pointe” about the treaty, he -wrote, “they leave obscure, seeing they neyther expresse which of our -predecessouris it was, neyther whether he were our predecessour in -Scotlande or Englande.” - -[337] Carleton to Naunton, 19th August 1618. - -[338] The king to the Privy Council, 29th August 1618. _Reg. Privy -Counc. Scot._, xi. 440. - -[339] P. 131. - -[340] Hakluyt’s _Voyages_, i. 246. - -[341] M’Pherson, _Annals of Commerce_, ii. 213. - -[342] Muller, _op. cit._, 118. In a memorandum drawn up by Sir John -Coke in 1625, the Dutch are said to have first “intruded” in 1613. -_State Papers, Dom._, Chas. I., dxxii. 136. See also _Brit. Mus. -Lansdowne MSS._, 142, fol. 387 _et seq._ - -[343] Earl of Northampton to King James, August 2, 1612. _State Papers, -Dom._, lxx. 23. - -[344] Chamberlain to Carleton, 27th October 1613. _Ibid._, lxxiv. 89. -M’Pherson, _Annals_, ii. 273. - -[345] M’Pherson, _Annals_, ii. 274. Winwood, _Memorials_, iii. 480. -M’Pherson speaks of fifteen Dutch, French, and Biscay whalers and four -English “interlopers.” Muller (_Mare Clausum_, 120), quoting from a -contemporary Dutch account, mentions three Biscayers, three Spaniards, -two French, one Dunkirker, and two Hollanders. Both the Spanish and -French Governments protested against the action of the English vessels. -Digby wrote from Madrid (4th September 1613) that the English merchants -at St Sebastian were threatened in person and goods on the return of -the Spanish ships which had been prevented from fishing at “Greenland,” -and they were forced to remain indoors. - -[346] A Trew Declaracion of the Discoverie of the mayne Landes, -Islandes, Seas, Ports, Havens, and Creekes, lyenge in the North-West, -North, and North-East partes of the World, _State Papers, Dom._, lxxvi. -51. Muller, _op. cit._, 121, 123. Carleton, _Letters_, 7. - -[347] _Groot Placaet-Boeck_, i. 670. Aitzema, _Saken van Staet en -Oorlogh_, ii. 336. _State Papers, Dom._, xcix. 36. - -[348] _Ibid._, xcix. 36-41. M’Pherson, _Annals_, ii. 287. Muller, _op. -cit._, 131. - -[349] Carleton, _Letters_, 312. - -[350] They were Johan van Goch, Ewout van der Dussen for Gelderland and -Holland, and Joachim Liens for Zealand. Holland had at first intended -to send Grotius. _Ibid._, 306. - -[351] Among the Cæsar papers in the British Museum (_Lansd. MSS._, 142, -fol. 383) there is one dated 23rd December 1618, containing extracts -“noted out of a book called _Mare Liberum sive de Jure quod Batavia, -&c._, Lugd. Bat., 1609,” together with notes from Welwood’s _De Dominio -Maris_, answering the assertions in that book. It was doubtless a -memorandum to be used in the conferences with the Dutch ambassadors; -and on the back of it are scrawled jottings difficult to decipher, -headed, “The Kinges Speeche touching the Dutchemen’s fishing upon the -coasts of Great Britain and Ireland,” to the following effect: “1. The -treaty never so opportune as now when they fearest it most and their -State least settled; in ill terms with France and Spain. 2. In the East -Indies we can match them, and so in the north voyage (Greenland ?). The -French King taketh part with Barnevelt. The King of Spain prepareth -against Venice. What the King of Denmark, the Princes of the Union, -the ... and the rest of the Protestants think of any falling out with -the Low Countries.” It may be noted that this memorandum contains no -reference to Selden’s _Mare Clausum_, which the author stated was -submitted to the king this year (see p. 366). - -[352] The king to the Council, 7th November 1618. _Reg. Privy Counc. -Scot._, xi. 631. - -[353] _Reg. Privy Counc. Scot._, xi. 462. - -[354] Lord Binning to the king, 27th November 1618. _Melrose Papers_, -ii. 631. The statement was to the same effect as that previously -referred to. A Mr Bruce of Shetland stated that while of old the -Hollanders used to carry on the greater part of their fishery forty -miles and more from the land, yet they came usually within fourteen -miles before shooting their nets; that in the time of the late Earl of -Orkney they came still nearer, within six or seven miles; while now -they came so close that their nets were sometimes torn on the rocks. -Sir Gideon Murray to Lord Binning, 26th November 1618. _MSS. Advoc._, -31. 2. 16. - -[355] Earl of Dunfermline to Lord Binning, 27th November 1618. _MSS. -Ibid._ “Concerning the Hollanders fishing in our seas,” he said, “for -all the search and tryall I have made, whilk has been my uttermost, I -can wryte or send to you little more nor before, in effect nothing.” -The Constable of Dundee searched all his records, the records of the -Admiralty were explored, and all those in Edinburgh Castle and in the -city archives, as well as many in the keeping of private persons, and -every one likely to know anything about the matter was communicated -with; but “nothing to the purpose” was found, “nor no recorde of any -wryte made for the Hollanders’ use in 1594 or any other time.” The -“wryte” of 1594, it is to be remembered, was a long treaty made by -James himself. Copies were ultimately discovered of the treaties of -1531 and 1541, but nothing to the point. Copies of the treaty and of -other documents referring to it were obtained, apparently from Holland, -in 1619, and were ordered to be preserved in his Majesty’s Register -in Edinburgh Castle (_Reg. Privy Counc. Scot._, xii. 22); but in 1630 -and 1631, when they were again wanted, they could not be found. _State -Papers, Dom._, Chas. I., ccvi. 46. - -[356] This referred to the licenses to certain French boats to fish on -the Sowe in the Channel. See p. 65. - -[357] “Zijne ma^t was een coninck van de grootste insulen van de werelt -ende seer wel wiste het rechte dat hij hadde opte custen van sijne drij -coninckrijcken.” Commissioners to States-General, (24 Dec. 1618)/(3 -Jan. 1619). _Brit. Mus. Add. MSS._, 17,677, J, fol. 372. - -[358] Note of Treatie with the Commissioners of the Estates annent the -Fishing. Dec. 1618. _MSS. Advoc._, 31. 2. 16. - -[359] Naunton to Carleton, 21st December 1618. - -[360] In apprehending Brown, p. 171. Grotius was then in prison, and -known to be the author of _Mare Liberum_. - -[361] _State Papers, Dom._, xc. 65. - -[362] The Dutch Commissioners to the States-General, (29 Nov.,)/(9 -Dec.,) 17/27 Dec. 1618; (24 Dec. 1618,)/(3 Jan. 1619), 3/13 Jan., (23 -Jan.)/(2 Feb.) 1619. _Brit. Mus. Add. MSS._, 17,677, J, fol. 364, 367, -370, 374, 380. Muller, _op. cit._, 140, 147, 148, 153. Aitzema, _Saken -van Staet_, ii. 402. Carleton, _Letters_, 326. _MSS. Advoc._, 31. 2. -16. _State Papers, Dom._ Collection, Chas. II., vol. 339, p. 351, 361, -369, &c. - -[363] The Dutch Commissioners to the States-General, (30 Jan.)/(9 Feb.) -1619. _Ibid._, 387. Naunton to Carleton, 21st January 1619. Carleton, -_Letters_. Justice, _A General Treatise of the Dominion and Laws of the -Sea_, 179. The States were desired “to cause proclamation to be made, -prohibiting any of their subjects to fish within fourteen miles of -his Majesty’s coasts this year, or in any time hereafter, until order -be taken by commissioners to be authorised on both sides, for a final -settling of the main business.” - -[364] P. 223. - -[365] Carleton to the king, 6th February 1619. - -[366] Muller, _op. cit._, 156. “So verre van ’t Lant souden blijven als -men met oogen konde afsien.” - -[367] 2nd June 1619. Dumont, _Corps Diplomatique_, V. ii. 333. - -[368] The English, who were the first to carry on the whale-fishing at -Spitzbergen, had taken possession of the best fishing-places: whales -then abounded in the bays close to the shore, where the “cookeries” -were erected. - -[369] Muller, _op. cit._, 160. _State Papers, Dom._, cv. 9. The Muscovy -Company, now supported by the East India Company, fitted out nine ships -and two pinnaces for the Spitzbergen fishery in 1619, but the voyage -was unfortunate. After carrying on the fishing for a few years longer -the company abandoned it, though it was carried on on a small scale -by other English vessels, mostly from Hull. The Dutch, on the other -hand, prosecuted the fishing with great vigour and success under the -protection of men-of-war, and they rapidly made it one of the most -profitable industries of the Low Countries. A full account is given by -Zorgdrager, an old whaling captain, who wrote in the early part of the -eighteenth century (_Bloeijende opkomst der aloude en hedendaagsche -Groenlandsche Visscherij_). The Dutch factory on Amsterdam island grew -to a village called Smeerenburg or Oil-town, which was fortified in -1636. In those early years the whales were taken by the ships’ boats, -which lay moored in the bays; later, as the whales got scarce, they -were flensed at sea and the blubber carried home. This was the case -before F. Martens visited the island in 1671. - -[370] The king to the Privy Council of Scotland, 16th June 1619. _Reg. -Privy Counc. Scot._, xi. 607. - -[371] Since the records of the Scottish Council are silent as to the -steps taken to collect the assize-herrings in 1616 and 1617 and the -capture of John Brown in the latter year, while the Dutch and English -records are equally mute as to the proceedings in 1618 and 1619, it at -first appeared that a mistake might have been made in the dates of the -former, a view that seemed to be supported by the remark in the first -letter of the king to the Council, “to the intent that the Estaitis -may not alledge that no suche dewteis had bene demandit”--a curious -statement in face of the fact that Brown had been carried to Holland -the year before. But the late Professor Masson, who was the editor -of the _Register of the Privy Council_, obligingly informed me that -the documents are the original _Acta_ and not copies; and among the -English State Papers is a letter dated from Holyrood House, on 10th -July 1619, in which it is stated that Captain Murray had been sent to -claim the assize-herrings from the “Flemings” fishing in the northern -seas, and that he was well equipped to secure his safety if his demands -were refused (Raith to Abercromby, _State Papers, Dom._, cix. 127). -The phrase in the king’s letter may be explained by the fact that the -duty in 1616 and 1617 was demanded by the Duke of Lennox, to whom the -assize-herrings had been granted. - -[372] _Reg. Privy Counc. Scot._, xi. 605, 608. - -[373] See Appendix G. Fenton was one of those who were on intimate -terms with Ben Jonson during the poet’s visit to Scotland. _Reg. Privy -Counc. Scot._, xi. p. clxvii. - -[374] _Op. cit._, 606. - -[375] _Op. cit._, 593, 603. - -[376] Footnote, p. 195. - -[377] Carleton, _Letters_, 437, 447, 448, 451. Bosgoed, _Bib. Pisc._, -352. The sum voted in 1620 was 22,000 gulden; in the following years it -varied between 23,000 and 36,000 gulden. - -[378] Muller, _op. cit._, 172, 173. Aitzema, _Saken van Staet_, i. 13, -17. - -[379] Muller, _op. cit._, 174, 178. - -[380] “Ghy sijt sangsues, bloetsuygers van mijn rijck, ghy treckt het -bloet van mijne Ondersaeten ende souckt mij te ruineren.” - -[381] Muller, _op. cit._, 191, 194, 203. Aitzema, i. 191, 193. -Journal van de Ambassade van den Heere van Sommelsdyck naer Engelant, -1621-1623, _Brit. Mus. Add. MSS._, 22,866. - -[382] 2/12 May 1620. Verboth van Haringh binnen de Klippen van -Yerlandt, Hitlandt, oft Noorwegen te vangen. _Groot Placaet-Boeck_, i. -752. - -[383] 2/12 June 1623, _Groot Placaet-Boeck_, i. 708. Muller, _op. -cit._, 206. - -[384] _Rec. Convent. Roy. Burghs_, iii. 142. _Reg. Privy Counc. Scot._, -xiii. 308, 317. - -[385] George Lord Carew to the Secretary of State, Calvert, 8th March -1623. _State Papers, Dom._, cxxxix. 66. The Lord Mayor to Lords -Grandison, Carew, and Chichester, 27th March, 3rd April 1623. _Ibid._, -cxl. 47, cxlii. 21. - -[386] A Project for the Encouragement of Fishing by passing an Act of -Parliament for Building fishing-vessels, to be protected by a Fleet -Royall of 20 ships, the expense to be defrayed by a Tribute of every -Tenth Fish. _Ibid._, clvii. 46. - -[387] A Discourse of the Invention of Ships. _Collected Works_, viii. -326. - -[388] Naval Tracts, in Churchill’s _Collection of Voyages_, iii. 220, -224. - -[389] Cecil to Parry, 10th June 1603. _Foreign Papers, France_, vol. -129. It is endorsed “Souverainty of ye Seas, 1603. Monsr. de Vicque -beares ye armes of france in Dover road.” See also Sully, _Memoires des -Sages et royales Oeconomics d’Estat_, ii. 173, and Kermaingant, _Le -Droit des Gens Maritimes_, 3. - -[390] Monson’s Naval Tracts, _ibid._, 222. The Spaniards to whom Monson -refers were no doubt the troops which Don Louis Fajardo had attempted -to carry to Flanders when he was attacked by the Dutch and took refuge -in Dover. Monson, it may be said, was in receipt of a secret pension of -£350 per annum from Spain. Gardiner, _Hist._, i. 215. - -[391] Loccenius, _De Jure Maritimo et Navali_, 48. - -[392] Thus in the Earl of Warwick’s voyage, in 1627, four vessels -“stood with their forefoot and very earnestly” tried to weather the -king’s ships off Falmouth, among them being a French man-of-war. The -English then shot at the latter, and “soo brought him by ye lee” -(_State Papers, Dom._, lxxix. 17). In 1637 Captain Straddling explained -how he compelled Dutch vessels to take in their flags, lower their -top-sails, and “lie by the lee” (_Ibid._, ccclxi. 41). In the historic -encounters with the Dutch in 1652 the same rule was shown. When Captain -Young met the Dutchmen on 12th May (see p. 402), their admiral came -under his lee and took down his flag, but their vice-admiral, “contrary -to navigation with us in the narrow seas, came to the windward of us” -(_French Occurrences, Brit. Mus._, E, 665, 6). So also when Blake met -Tromp, he “fired two shots thwart Tromp’s forefoot for him to strike -his flag and bear down to leeward, and he taking no notice of it, the -general ordered the third shot at Tromp’s flag, which went through his -main top-sails” (_Brit. Mus. Add. MSS._, 11,684, fol. 5_b_). - -[393] The Lords of the Admiralty to Plumleigh. _State Papers, Dom._, -clvii. fol. 121. - -[394] Meadows, _Observations concerning the Dominion and Sovereignty of -the Seas_, 2. - -[395] _State Papers, Dom._, Chas. I. ccxxix. 79. - -[396] 17th October 1632. _The Earl of Stirling’s Register of Royal -Letters_, ii. 627. - -[397] _State Papers, Dom._, cxcix. 51. - -[398] _State Papers, Dom._, cc. 5. - -[399] _Ibid._, ccviii. 27. - -[400] _State Papers, Dom._, dxxiii. 74, dxxix. 73. The proposal to -utilise the tenth herring for maintaining a navy had been long before -put forward by Dr Dee. See p. 101. - -[401] The other half were exported as red-herrings. - -[402] _State Papers, Dom._, 1629, clii. 57. - -[403] Mason, who was intimately associated with the fishery scheme, -proposed that the island should be purchased by a company of -naturalised Scotsmen, and fishing stations established; and later he -recommended the purchase of the island by the king, leaving complete -freedom of fishery to all Scotsmen. Sir William Monson urged that a -“government” should be established in the island as well as in Orkney -and Shetland, and also a principal town; and that the children of the -islanders should be taught English, and “correspondence” between the -inhabitants and the Highlanders hindered, “considering the danger of -their too great friendship.” _State Papers, Dom._, 1629, clii. 66, 67, -68. The subject of the Earl of Seaforth’s lease and the fishings is -dealt with by Mackenzie, _History of the Outer Hebrides_, 290 _et seq._ - -[404] _State Papers, Dom._, clii. 63, 71; clxxx. 97. Dymes’ report is -printed in full by Mackenzie (_op. cit._, 591). The master of one of -the Dutch busses, who transported Dymes from Lewis to the mainland, -told him that the herrings were in such great abundance that they were -sometimes constrained to cast them into the sea again, they having more -in half their nets than they were able to save, “and he was of opinion -that if there had bene a thousand Busses more there was fish enough for -them all.” - -[405] _Rec. Convent. Roy. Burghs Scot._, iii. 257, 259, 291. The -arguments against the Dutch were elaborated in a long document, which -concluded thus: “Lastly, theis Netherlanders greatnes, strength, -wealth, arts, and every happines doe originally proceede from their -fishing in his Majesty’s seas of England, Scotland, and Ireland.” - -[406] P. 77. - -[407] _State Papers, Dom._, clii. 63; clxv. 201; clxxx. 100. _Rec. -Conv. Roy. Burghs_, iii. 300 _et seq._ - -[408] _Acta Parl. Scot._, v. 220_b_. Captain John Mason, who was -afterwards appointed “Admiral” of the busses belonging to the society, -was apparently originally intended to lay the matter before the -Council. The draft, in Coke’s handwriting, is entitled, “Instructions -for Captain John Mason employed by his Majesty to treat with the Lordes -of the Privie Council of Scotland about the erection of a general -fishing,” and is among the _State Papers, Dom._, clxxx. 101. - -[409] _Acta Parl. Scot._, v. 221. This ambitious scheme included the -building of 200 busses of from 30 to 50 tons each, “for a considerable -beginning,” besides the employment of the fishing vessels already -engaged on the coast which were of suitable size. These were computed -to number about 100 in Scotland and 200 in England (employed at -Newfoundland and the north seas), while at least 300 “coasters” -from Berwick to the Thames might also be made available; and it was -suggested that more might be built by the company “in every town,” or -bought from the Dutch. It was estimated that the cost of building and -equipping the 200 busses, including casks, salt, wages, &c., would be -£222,586, and that the total return the first year would amount to -£388,000, made up as follows: (1) summer herring fishing, 20,000 lasts -at £10, equal to £200,000; (2) winter herring fishing, 12,000 lasts at -£12, equal to £144,000; (3) cod and ling fishing in spring, 1,200,000 -fish at £30 a thousand, and 600 tuns of oil at £13, 6s. 8d., equal to -£44,000. Several calculations were made about this time as to the cost -of equipping herring-busses, the profits to be derived from their use, -and the loss to the realm by the transport of cured fish by the Dutch; -Monson put the latter loss at £621,750 per annum. _State Papers, Dom._, -clii. 70, clxxx. 99, ccvi. 52; _MSS. Advoc. Lib._, 31. 2. 16; _Brit. -Mus. Sloane MSS._, 26. The latter is a “Discourse on the Hollanders’ -Trade of Fishing,” by Sir Robert Mansel, of the usual type. - -[410] _Acta Parl. Scot._, v. 225. The committee consisted of fifteen -peers, several bishops, and a large number of commoners. Mason, who -had accompanied Sir William Alexander to Scotland, reported to Coke -that the Council gathered in the Lord Chancellor’s chamber, “he lying -sick of the gout,” to hear the king’s letter read, and that Mr John Hay -“violently opposed” the scheme and attacked the Earl of Seaforth for -bringing in the Hollanders. _State Papers, Dom._, clxxii. 19. - -[411] At this time the herring-fishing on the west coast of Scotland, -which began on 1st July and continued till Christmas, employed from -800 to 1500 fishing-boats of from 5 to 6 tons each, besides about -200 “cooper” boats of about 12 tons, which carried casks and salt -and brought back cured herrings to the burghs: about 6000 “seamen” -were employed in this industry. The herring-fishing on the east coast -was for the most part carried on at Dunbar--as many as 20,000 people -sometimes congregating there--and in the deep water where the Dutch -fished in July, August, and September. There was also an important -winter fishing for herrings in the Firth of Forth in November, and -at the North Isles from 1st October till Christmas. The “keeling” or -cod-fishing at the mouth of the Clyde in February, March, and April -employed about 120 of the largest boats; on the east coast this method -of fishing was carried on from 1st April till 24th June. - -[412] _Acta Parl. Scot._, v. 226. _Rec. Conv. Roy. Burghs_, iii. 322, -323. The Earl of Seaforth, writing to the Earl of Carlisle on August -17th, said that the Lord Chancellor and the Lord Treasurer had left no -argument unuttered which might induce their countrymen, and especially -the burghs, to concur in the king’s desire about the fishing. The -burghs would not admit any association either with countrymen or -strangers; “they like not,” he said, “that noblemen or gentry should -understand matters of industry,” and they would do what they could to -move the king to delay. _State Papers, Dom._, clxxii. 78. In another -account of the proceedings of the Convention, it is said the burghs -claimed as “absolutely theirs” the fishing within bays and lochs, and -at sea for a distance of “two kennings” from the shore, and stated -that they would admit no partners, either natives or strangers; that -buss-fishing was distinguished by them to be “without two kennings from -the land”; and they would not “on any condition” allow any busses to -participate in the “land fishing” within two kennings, or to land at -all, but only to “make” their fish (cure them) on shipboard, as the -“Flemings” did. It is added that those who would have hazarded some -means in the project were “absolutely discouraged” by the attitude of -the burghs. _Ibid._, ccvi. 45. - -[413] _Acta Parl. Scot._, iv. 369. _Statutes of the Realm_, 1 Jac. I., -c. 2. _Reg. Privy Counc. Scot._, vi. _Nat. MSS. of Scot._, iii. No. -85. _State Papers, Dom._, 1604, x. No. 1. It is unfortunate that the -reasonable delimitation of the territorial fishing waters proposed in -the treaty was not carried out, for there can be little doubt that had -it been it would have become recognised by other nations, and would -have continued to the present day. - -[414] _Acta Parl. Scot._, v. 228, 230. _The Earl of Stirling’s Register -of Royal Letters_, ii. 478. - -[415] The commissioners were the Earl of Morton (Lord High Treasurer), -the Earl of Monteith (President of the Privy Council), the Marquis of -Hamilton, the Earls of Roxburgh and Carrick, Sir William Alexander, Mr -John Hay, and Mr George Fletcher. - -[416] Among other things, the commissioners were instructed to -represent to the king the prejudice which Scotland sustained by the use -of the name “Great Britain” in the royal patents, writs, and records -relating to Scotland, for, they reminded him, “there was no union -as yet with England”; and Charles was to be requested to renew his -seals under the terms _Carolus Dei gratia Scotiæ, Angliæ, Franciæ, et -Hiberniæ Rex_. It must be remembered that at this time the Scottish -aristocracy were smarting under the defeat which the king had recently -inflicted on them in connection with the Act of Revocation, by which -most of the church, property in the hands of laymen was re-annexed to -the crown. - -[417] _Acta Parl. Scot._, v. 232. - -[418] _Rec. Conv. Roy. Burghs_, iii. 325. The foreigners from Hamburg -and Bremen were chiefly engaged in trade and barter. - -[419] _Fœdera_, xix. 211. _State Papers, Dom._, clxxxvii. 46. The -commission was dated 8th December 1630, and the other commissioners -were the Earls of Salisbury, Dorset, and Carlisle, Viscounts Wimbledon -and Wentworth, Sir John Coke, Sir Francis Cottingham, and Sir William -Alexander, who was Secretary for Scotland. - -[420] _Acta Parl. Scot._, v. 235. _Rec. Conv. Roy. Burghs_, iv. 526. -_State Papers, Dom._, clxxxviii. 72. In the record of the burghs -the distance from the shore on the east coast, at the Orkneys and -Shetlands, and on the north coast, is given as forty miles; but as the -original records of the Convention between 1631 and 1649 were lost, and -that printed is from an abstract prepared in 1700, it appears that an -error was made in the transcribing. - -[421] The Duke of Lennox had some time before this proposed the -formation of a fishery society for the purpose. - -[422] _Acta Parl. Scot._, v. 236. The Act referred to was passed in -1607 by the Scottish Parliament, but it was to be inoperative until a -corresponding Act was passed by the Parliament of England, which was -not done. - -[423] _State Papers, Dom._, cxci. 7. Memorandum, dated 11th May 1631, -by Secretary Coke, on “Matters in difference betwixt the English -and Scottish Commissioners concerning the fishing.” From this paper -it appears that the Scottish commissioners made the most of points -relating to naturalisation; they objected to the natives being employed -as fishermen by the association, and they would say nothing about the -proportion of busses that might be set forth in Scotland. - -[424] _Stirling Letters_, ii. 538, 544. _Acta Parl. Scot._, v. 236. -Charles, it will be observed, mentions 15 miles. The miles stated in -the Scottish documents were Scots miles of 5929·5 imperial feet, 10 -Scots miles being equal to nearly 11¼ imperial miles; the extent of the -reserved waters was therefore very nearly 15¾ imperial miles (15·72). - -[425] _Rec. Conv. Roy. Burghs_, iv. 534. - -[426] _Acta Parl. Scot._, v. 238. - -[427] _Rec. Conv. Roy. Burghs_, iv. 534, 535. - -[428] “Whereat we ourselff for the most part were present,”--king to -Council, 15th July 1632. _Stirling Letters_, ii. 604. - -[429] _State Papers, Dom._, ccvi. 46. - -[430] _State Papers, Dom._, ccvi. 50. - -[431] _State Papers, Dom._, cciii. 53, 54, 19th November 1631. The -draft appears to have been prepared and altered entirely by the king -himself. - -[432] _State Papers, Dom._, ccxxix. 78, 83, 87, 89. - -[433] The king to the Council, 15th July 1632. _Stirling Letters_, ii. -605, 606, 617. _Acta Parl. Scot._, v. 245. - -[434] The Act specified by the king was passed in 1491, but he seems -rather to have been referring to the Act 6 James III., c. 48. “That -Lordes, Barrones and Burrowes gar make Schippes, Busches, and greate -Pinck-boates with Nettes,” which was passed in 1471, “for the common -good of the realm and the great increase of riches,” to be brought from -other countries in exchange for fish exported. The Act of James IV., -“Anent the makeing of Schippes and Busches on the quhilk all Idle Men -suld Laboure,” was an early attempt to carry out the policy advocated -by English writers in the sixteenth, seventeenth, and eighteenth -centuries. It enacted that ships and busses, not under twenty tons -burden, should be built in all the burghs and towns of Scotland, -provided with mariners and nets: and power was given to compel “idle -men” to man them. - -[435] _State Papers, Dom._, ccvi. 47. “What is required from the Lords -and Gentry of Scotland towards the fishing.” - -[436] _Acta Parl. Scot._, v. 236. - -[437] _State Papers, Dom._, ccxxi. 1 ; _Acta Parl. Scot._, v. 239. - -[438] The councillors nominated by Charles were, for England and -Ireland, Lord Weston, the High Treasurer (created Earl of Portland -in February of the following year), the Earl of Arundel, the Earl -of Pembroke, Viscount Savage, Lord Cottingham, and Secretary Coke; -for Scotland, the Earl of Morton, the High Treasurer, the Earl of -Stratherne and Monteith, President of the Privy Council, the Earl of -Roxburgh, Viscount Stirling, Mr John Hay, and Mr George Fletcher. - -[439] Martin, who visited the Hebrides about the year 1695, saw the -foundation of a house, which, the natives told him, had been built by -the Society as a store for salt and casks, on Hermetra, a small island -in the Sound of Harris; and he saw a similar relic on a small island -called Vacksay, in Loch Maddy. He was informed by the natives that “in -the memory of some yet alive,” as many as 400 sail had been loaded -with herrings in Loch Maddy in one season: at the time of his visit -the fishing had been abandoned, though herrings were plentiful. _A -Description of the Westerne Islands of Scotland_, pp. 51, 54, 55. - -[440] Simon Smith, who was latterly Secretary to Pembroke’s -association, afterwards stated that the Society had attained to the -proper cure of herrings, and was likely to have been ultimately -successful. This opinion was not shared by Dutch writers. The author of -_The True Interest and Political Maxims of the Republic of Holland_, -published under the name of De Witt, says the herrings the Society -sent to Dantzic in 1637 and 1638, though caught at the same time and -place as the Hollanders’ herrings, were “esteemed naught to the very -last barrel”; and a contemporary author, Meynert Semeyns, a skipper of -Enkhuisen, in a work written in 1639 (_Een corte beschryvinge over de -Haring-visscherye in Hollandt_), says the same thing. “The Dutch,” he -boasted, “catch more herrings and prepare them better than any other -nation ever will; and the Lord has, by means of the herring, made -Holland an exchange and staple-market for the whole of Europe.” No -other nation, he added, ever tried the industry but to their loss, and -the example adduced was the Society’s herrings sent to Dantzic. - -[441] In August and September 1633, before the Council had met (busses -having been purchased on the strength of subscriptions promised), -two busses were taken by Dutch men-of-war and one by a Dunkirker. -The former captures were doubtless made because the Dutch fishermen -were acting contrary to the fishery laws of the United Provinces in -taking service with aliens, and they were promptly disavowed by the -States-General and the busses restored. The Dunkirkers made prize of -some of the busses (there were ten or twelve of them) almost every -year: one, the _Salisbury_, was taken twice, and in 1639 four were -captured. Spain was then at war with the United Provinces, and the -Dutch buss was a natural prey of the Dunkirk privateer. - -[442] P. 309. - -[443] _State Papers, Dom._, ccccxxix. 48. Order of the King in -Council, 29th September 1639. “Taking into consideration of what great -importance it is and may be to the good of this kingdom to plant, -increase and cherish the fishery in the North seas, and understanding -that the Dutch, who reap an annual great benefit thereby, have and -do not only privately underhand, but too manifestly also oppose the -endeavours of his Majesty’s good subjects, who have of late years -employed their industry that way,” it was ordered that the Lord -Treasurer, the Earl Marshal, the Lord Admiral, the Lord Chamberlain, -the Earl of Dorset, and one of the Secretaries of State, calling to -their aid Sir Henry Marten (Judge of the Court of Admiralty), should -forthwith “consult and advise what fitting course may be taken to -advance and settle the said fishery, and particularly to consider -whether it may not be fit to debar the exportation of lampreys, without -which the Dutch cannot well, as is informed, continue their fishing -for cod and ling, until his Majesty’s subjects be quietly settled -in the herring fishing.” The Dutch obtained their lampreys for bait -almost exclusively from England, and chiefly from the Thames. The -above account of the proceedings of the Fishery Society is summarised -(for the most part) from numerous State Papers. It was stated by Simon -Smith, who was latterly Secretary to Pembroke’s association, that -£10,000 was lost through the Dunkirkers. - -[444] Oppenheim, _A History of the Administration of the Royal Navy_, -i. 215, 217, 221. - -[445] _Ibid._; Hannay, _A Short History of the Royal Navy_. - -[446] Oppenheim, _op. cit._, 265. - -[447] Oppenheim, _op. cit._, 275. - -[448] _State Papers, Dom._, lvi. 66; lxi. 81; lxx. 8, 9; liv. 56; xc. -70, 119; clxii. 82, 45. - -[449] _State Papers, Dom._, lix. 79; xci. 30, 45; xcii. 62; xciii. 82; -xcv. 39; clxiii. 65; clxxx. 94. In 1630 a Yarmouth fisherman, owner -of one of the Iceland smacks under convoy, petitioned the Council for -relief from the payment of the twenty shillings, on the grounds that -before the Order was made he had paid £5 for the assurance of his boat -during that season to the assurance office in London, and that three -boats belonging to him had been previously taken by Dunkirkers. - -[450] Oppenheim, _op. cit._, 276. - -[451] _State Papers, Dom._, cclxviii. 31, 88 ; cclxiv. fol. 20_a_; -ccxciii. 107; ccxciv. 46. - -[452] _State Papers, Dom._, ccxciii. 107; ccxciv. 46; ccxcv. 31, 69, -71; cclxiv. fol. 164. Many of the crew of the man-of-war were English, -Scottish, or Irish. It was probably owing in part to the considerable -numbers of British subjects serving on the Dutch men-of-war that they -were always favoured by the country people. - -[453] _Ibid._, ccxcvi. 5, 14, 30. Joachimi to States-General, (26 -Aug.)/(4 Sept.), _Brit. Mus. Add. MSS._, 17,677, O, fol. 380. - -[454] _Brit. Mus. Add. MSS._, 30,221, fol. 43_b_. - -[455] Reglement for Preventing Abuses in and about the Narrow Seas and -Ports, March 1633. _State Papers, Dom._, cclx. 127, 128; cclxxix. 18. -_Brit. Mus. Add. MSS._, 30,221, fol. 44 (Pepys’ collections). Copies -exist in _State Papers, Dom._, vol. 515, Nos. 38, 39 (1647), extracted -from _Admiralty Book_, Liber E, and in _State Papers, Dom._, Jas. I., -vol. 11, No. 40 (1604), wrongly calendered (see p. 119). - -[456] _Ibid._, liv. 9, 33. - -[457] Oppenheim, _op. cit._ - -[458] _State Papers, Dom._, lxxxvi. 73, 75; ccxxix. 102. - -[459] Gardiner, _Hist._, vii. 349 _et seq._ - -[460] Gardiner, _op. cit._, 368. - -[461] _State Papers, Dom._, cclxxxvii. 55; ccxci. 14. - -[462] _Ibid._, cclxxvi. 65. - -[463] Rushworth, _Collections_, ii. 257. _State Papers, Dom._, cclxxvi. -64. Compare the language of Edward III. in 1336, p. 36. - -[464] Rushworth, ii. 294, 353. Compare Windebank’s notes of the speech, -_State Papers, Dom._, ccxc. 108: “The Judges at the Assizes to let the -people know his Majesty’s care to preserve the ancient dominion (of the -seas).” - -[465] Gardiner, _op. cit._ - -[466] _State Papers, Dom._, cclxix. 51. - -[467] _Resol. States-General_, 9/19 Nov. 1633; Muller, _Mare Clausum: -Bijdrage tot de Geschicdenis der Rivaliteit van Engeland en Nederland -in de Zeventiende Eeuw_, 229. - -[468] _State Papers, Dom._, ccxxxiv. 87; Nicholas’s _Letter Book_, Feb. -16, fol. 97. Muller thinks it was this revival of feeling about the -dominion of the sea that caused the edition of Grotius’ _Mare Liberum_ -to be published this year, with the Magnus Intercursus appended. - -[469] Coke to Boswell, 16/26 April 1635. Needham, _Additional Evidences -concerning the Right of Soveraigntie and Dominion of England in the -Sea_; Justice, _A General Treatise of the Dominion and Laws of the -Sea_, 181; Entick, _A New Naval History_, xvii. If, as is probable, the -mention of discourses concerning _Mare Clausum_ referred to Selden’s -work, it would show that the author was then known to be engaged in -writing it. - -[470] “Dessein de Sa Ma^{te} de la grande Bretagne p̄ sa flotte -p̅r̅e̅nte,” 15/25 May 1635. Aitzema, _Saken van Staet en Oorlogh_, ii. -164; Muller, _op. cit._, 230. Boswell suppressed the reference to the -Dutch fisheries and to the old troubles at Greenland and in the East -Indies, and he toned down the part prohibiting the warships of other -nations from keeping guard in the British seas. - -[471] _State Papers, Dom._, cclxxxvi. 100. - -[472] They were as follow: _Merhonour_, admiral, 44 guns; _James_, -vice-admiral, 48 guns; _Swiftsure_, rear-admiral, 42 guns; _St -George_, 42 guns; _St Andrew_, 42 guns; _Henrietta Maria_, 42 guns; -_Vanguard_, 40 guns; _Rainbow_, 40 guns; _Red Lion_, 38 guns; _Constant -Reformation_, 42 guns; _Antelope_, 34 guns; _Leopard_, 34 guns; -_Swallow_, 34 guns; _Mary Rose_, 26 guns; _Bonaventure_, 34 guns; and -the First, Third, Eighth, and Tenth _Lion’s Whelps_, of 14 guns each. -The merchant ships were the _Sampson_, _Freeman_, _Royal Exchange_, -_William Thomas_, and _Pleiades_. - -[473] The king to the Earl of Lindsey, _State Papers, Dom._, -cclxxxviii. 84. - -[474] Instructions for our very good Lord, the Earle of Lindsey, -Admirall of his Majesties’ fflete, in his Majesty’s shippe the -_Merhonour_, prepared for this present Expedic̃on for Guard of the -Narrow Seas. 2nd May 1635. _State Papers, Dom._, clvii. fol. 135_b et -seq._ - -[475] _Ibid._, cxcii. 3, 21st May 1631; clvii. fol. 117_b_. It was -found that the French had a fleet of thirty-nine men-of-war, and two -additional ships were building. _Ibid._, cxcviii. 84. - -[476] 20th May 1631. _Ibid._, cxci. 80. - -[477] _State Papers, Dom._, ccxxxvii. 1. - -[478] _Ibid._, clvii. fol. 132, 26th April 1634. - -[479] In the memorandum which Pennington submitted to the Admiralty, he -said: “Sixtly, that if any stranger bee oprest by another stranger y^t -is stronger than hee, within the jurisdicion of ye Narrow Seas, and y^t -hee flyes for succor or refuge to any of his Majesty’s shippes imployed -for the guard of the sayd Seas, and come under his lee, and craves -protection, whether his Majesty’s ffloatinge ffortes shall not have -ye same privelege in succoringe and defendinge them as ffortes a Land -hath.” _Ibid._, cclxv. 23. - -[480] Windebank and Cottington were two of the three in the confidence -of the king as to the secret negotiations with Spain. _State Papers, -Dom._, cclxv. 23, 25, 26, 41, 49, 78, 89; clvii. fol. 132. - -[481] An equally obscure answer of Coke’s is recorded in the collection -of papers for the ambassadors to Cologne in 1673 (_State Papers, Dom._, -Chas. II., vol. 339, p. 513). “1636. Ea Leicester (_sic_) Query--What -answer shall I give if I be asked what I mean by the seas of ye King -my master, or our seas? The Answer returned by Mr Secretary Coke in -his own hand: By the King’s or our seas you are not to understand or -condescend to any restrictive sense but to answer ye Brittish Seas: -and that the 4 seas mentioned in our laws are thereby meant, which you -must not otherwise circumscribe or limitt; besides they are the same -which in all antiquity have been acknowledged to belong unto us, as is -sufficiently proved by authentic records.” - -[482] _State Papers, Dom._, cclxxxviii. 84, 85. - -[483] _State Papers, Dom._, cclxxxviii. 4; cclxxxix. 75. He had “no -more than two blue and two white flags with six pendants to each of -them; there are wanting two red flags and six pendants, one blue flag -and one white.” The office of Lord High Admiral was in commission from -the death of the Duke of Buckingham in 1628 until the appointment of -the Earl of Northumberland in 1638. - -[484] Gardiner, _Hist._, vii. 385. - -[485] The inhabitants of the coast were apprehensive of the French -fleet, and the Admiral sent a message to the Mayor offering to show his -orders from the King of France, which bound him to honour and respect -everything that belonged to his Majesty of Great Britain. _State -Papers, Dom._, ccxci. 23. - -[486] _State Papers, Dom._, ccxci. 58, 59. - -[487] Gardiner, _op. cit._, 385; _State Papers, Dom._, ccxcv. 61. -The English agent in France reported in August that two squadrons -under French admirals, and bearing the French flag, were to ply, one -along the coast of France from Belle Isle to Bayonne, the other at -the mouth of the Channel. The remainder of the fleet, half French and -half Hollander (which guarded the coast up to Calais and to the north -of it), bore the States’ colours, and were under the command of the -Hollander Admiral,--“an expedient to avoid acknowledging his Majesty’s -right in the Channel, in case this squadron should meet his Majesty’s -fleet and be constrained to vail the bonnet.” - -[488] Gardiner, _loc. cit._ - -[489] It was from this Hollander, met off Beachy Head on 9th June, that -Lindsey learned that the French fleet was at Portland. - -[490] _State Papers, Dom._, ccxci. 80, 27th June 1635. - -[491] _Ibid._, ccxcvi. 14. - -[492] _State Papers, Dom._, ccxciii. 12. - -[493] Gardiner, _op. cit._, 386. - -[494] Lindsey to the king, 2nd August; Coke to Lindsey, 4th August. -_State Papers, Dom._, ccxcv. 9, 42. The rumour that two of the king’s -ships were to go north to the busses reached the ears of the States’ -ambassador. _Brit. Mus. Add. MSS._, 17,677, O, fol. 376. - -[495] _State Papers, Dom._, ccxcvi. 5, 14, 16, 30. _Brit. Mus. Add. -MSS._, 17,677, O, fol. 380. _Res. Holl._, 7th September, Bosgoed, _op. -cit._, p. 358. Twelve busses and three of the convoys took refuge at -Newcastle; others in the Firth of Forth. The skipper of a coasting -vessel from Scotland to Scarborough saw seven busses in flames; the -sky was red from the conflagration. The _Leopard_, one of Lindsey’s -fleet, convoying merchantmen to Dunkirk, met eighteen of the privateers -returning in triumph. The Dutch busses were the natural prey of the -Dunkirkers, and the States were put to great expense and pains in -guarding them. In 1625 a Spanish agent, Egidio Ouwers, submitted to -Cardinal de Ceva, at Brussels, an elaborate plan for destroying the -Dutch herring fishery, so as to “spoil their chiefest mine by which -they maintained their wars.” _State Papers, Dom._, dxxi. 30. - -[496] _State Papers, Dom._, ccxcv. 44. - -[497] The facts as to the movements, &c., of the fleet are mostly taken -from the Earl of Lindsey’s Journal, written for the king’s information, -and preserved in the Record Office. “A Relation of the passages that -daily happened in this late expedition under my conduct, being by Your -Majesty’s gratious appointment Admiral and General of your Majesty’s -ffleet sett forthe for guard of your Narrow Seas, from the time that -the ships mett all together in the Downes, 28^o May, untill the 8^o of -October following, I making my first entrance aboard yo^r Royall ship -the _Merhonor_, 16^o May, in Tilbury Hope.” _Ibid._, ccxcix. 28. - -[498] Pennington to Nicholas, 3rd August 1635. _State Papers, Dom._, -ccxcv. 18. Pennington, it may be said, lost no chance of sneering -privately at the Earl of Lindsey, especially in his correspondence with -his friend, Nicholas, the Secretary to the Admiralty. When Lindsey -finally reached the Downs in October, and Pennington was appointed -to command the winter fleet, he told Nicholas that he had hoped that -“they” who had had the “sweet of the summer should have had a little -of the sour sauce of the winter”; he had spent “twice as much as he, -and more every way for the king’s honour.” Nicholas shared the feeling. -On hearing that Lindsey had appointed a French cook on board the -_Henrietta Maria_ he refused to believe it, “as it was never since his -time known that any Frenchman was admitted scarce to go aboard, much -less to be an officer in any of the king’s ships”; and he foretold -great evils from it. _Ibid._, ccxcix. 19; ccxci. 61. - -[499] Gardiner, _op. cit._ - -[500] _Brit. Mus. Add. MSS._, 17,677, O, fol. 364. - -[501] _State Papers, Dom._, cclxxviii. 3. Roe’s reference was to the -fishings at the Zowe or Sowe, where great numbers of gurnards were -caught (see p. 65). The stipulation of Richelieu concerned the allied -squadrons which were to blockade Dunkirk, as arranged by Article viii. -of the treaty. Article xii., after providing for the size of the -squadrons, continues, “Et au cas que lesdites esquadres viennent à -s’assembler, comme il peut arriver qu’il sera necessaire pour le bien -commun, l’Admiral desdits Seigneurs les Estats abaissera à l’abord son -pavillon du grand mast, et le saluëra de son canon, et celui du Roi le -resaluëre comme de coustume, et comme il en a esté use par le Roi de la -Grande Bretagne.” Dumont, _Corps Diplomatique_, 83 (?). - -[502] _State Papers, Dom._, lxxix. 17. “Athwart ye opening of Falmouth -four sailes stood with their forefoot,” and very earnestly tried to -weather the English ships. Among them was a French man-of-war of -Rochelle, but they shot four or five pieces of ordnance at him, and -“soo brought him by ye lee.” See p. 207. - -[503] He reported, 16th September 1631, that two English merchantmen -had met five French men-of-war, bearing the French king’s colours on -the main-top, and the Malta colours on the poop, who saluted them with, -“Amain, rogues, for the King of France”; but as the English ships -refused to strike and prepared to fight, the French sheered off. He -added that he had learned, through an interview between one of his -lieutenants and one of the French commanders, that the latter had a -commission to compel any English ships he could master to take in their -flags and dowse their top-sails, and that three French admirals had -been appointed for regaining the regality of the Narrow Seas, because, -as the French officer said, the Pope had taken it from France and given -it to England, but now that we had fallen from their religion it had -been reassigned. _State Papers, Dom._, cxcix. 51. - -[504] Nicholas to Pennington, 29th September 1631. _Ibid._, cc. 45. - -[505] Pennington to Nicholas, 2nd October (_ibid._, cci. 7). -Pennington, whose information about the French trying to make the -English strike had given the Admiralty and the king “good content” -(_ibid._, cc. 27), had been ordered westwards to retaliate, but “he -hoped the Lords would not think that his two ships half-manned were -able to encounter with twenty well manned”. _Ibid._, cci. 29. - -[506] 14th October, 12th November 1631. _State Papers, Dom._, cci. 54; -cciii. 32. - -[507] _Ibid._, cclxiii. 75. - -[508] _Ibid._, cccxvii. 102. - -[509] _State Papers, Dom._, cclxv. 23, 25, 41, 49. - -[510] _Ibid._, cccxvii. 102. - -[511] _State Papers, Dom._, cci. 59; ccii. 17; ccciii. 71, 79; ccx. 58; -ccxxxiv. 37; ccxlviii. 81. - -[512] _State Papers, Dom._, ccxx. 25, 26. - -[513] _Ibid._, ccxxxiv. 5, 32. “The Ambassador and the other Lords -being at dinner in the great cabin, the gunner sent word that a -Hollander was passing with his top-sails a-trip, to whom he gave -order to make a shot. The Lords and gentlemen left the table to see -the event, but the Hollander, neither for that shot nor two or three -others, would lower the same one foot; whereupon he gave order to shoot -him through, which was done, with as much speed as they could bring -ordnance to bear, so as before she passed she had twenty shot in and -through her sides, which they heard to crash in the same. They could -perceive but one piece she had forth; to that fire was given twice. The -shot came not near, but they might well hear the same. After her came -the Admiral with his flag on the main-top.” Ketelby cleared for action -and was giving orders for a broadside; but the ambassador twice desired -him to give over and stand for Dover, and he submitted. If it had not -been for his passengers, Ketelby did not doubt he would have brought -them in to answer the contempt. - -[514] _State Papers, Dom._, ccxcv. 13; ccxcvii. 28; ccxcviii. 16. It -was the usual practice to make the offender pay for the shot. - -[515] _State Papers, Dom._, ccc. 43; ccci. 28; ccxcix. 21. - -[516] _Ibid._, cclxv. 49. - -[517] Ketelby and Viscount Conway explained that it was necessary to -punish them in a public manner, since imprisonment in the bilboes -and such corporal punishments were not effective. Conway recommended -Scott’s fine to be remitted, owing to his worth and poverty, as well as -from the fact that he had recently been taken captive by the “Turkish” -pirates, and his ransom was not all paid. Bushell, as we learn from a -petition “of divers poor men, women, and children, whose kindred are -now in slavery at Argier and Sallee,” had redeemed and brought home -thirty of the captives; and it is probable that neither of the fines -was exacted. It is doubtful if Lindsey’s action was regular, for the -vessels, according to his statement, had not come within gunshot. -The _Neptune_ was one of the three ships fitted out by London for -Northumberland’s fleet. _State Papers, Dom._, ccxv. 28, 65, 67; cclxv. -50; cclxiii. 75; ccxcvi. 30, 34, 37; ccci. 31. - -[518] Molloy, _De Jure Maritimo et Navalis_, 149. - -[519] _Regulations and Instructions relating to his Majesty’s Service -at Sea_, 1734, 1766, 1790, Art. xi.; 1808, Art. xxiv. A case of the -kind occurred in 1829. Phillimore, _Commentaries upon International -Law_, ii. 58. - -[520] Gardiner, _op. cit._, viii. 84. - -[521] _State Papers, Dom._, ccxcvi. 69; cci. 26, 97. - -[522] _State Papers, Dom._, ccciii. 74; cccv. 36, 38; cccxi. 1. The -total number of men in the first fleet, which included five of the -“Whelps” and two pinnaces then building, was to be 4580; in the second, -in which were included two “Whelps,” it was to be 1890. - -[523] Hume (_Hist. Engl._, ch. lii. an. 1636), following earlier -writers, places the number at sixty. Thus Frankland (_Annals of King -James and King Charles the First_, 477 (1681)) speaks of “sixty gallant -ships.” Baker (_A Chronicle of the Kings of England_, 455 (1679)) -and others, including most of the naval historians of the eighteenth -century, give the same number. - -[524] Northumberland’s Journal, _State Papers, Dom._, cccxliii. -72. Pennington, on hearing of the appointment of the Earl of -Northumberland, wrote in February 1636 to the Council expressing his -satisfaction; verily believed he would carry himself like a general in -all respects, unless led away, “as the last was, by such as neither -knew the honour of the place nor the way of managing the service for -the honour and safety of the kingdom.” - -[525] _State Papers, Dom._, ccxcviii. 63. - -[526] The Lords of the Admiralty to the king, 24th February 1636. -_State Papers, Dom._, cccxiii. 24, 25. The documents are in Windebank’s -writing; the first is endorsed “Fishing. Waftage. An excellent Piece.” -See Appendix I. - -[527] “Instructions for our very good Lord, the Earle of -Northumberland, Admirall of his Majesty’s fflete in his Majesty’s ship -the _Triumph_, prepared for this present Expedic̃ion for guard of his -Majesty’s Seas.” _State Papers, Dom._, clvii. fol. 141. - -[528] Gardiner, viii. 157. The English ships were “clogged with -timber,” which, however, served them well in the first Dutch war when -they were pitted against the slighter-built ships of the States. -(Oppenheim, _op. cit._, 254.) - -[529] _State Papers, Dom._, clvii. fol. 141_b_; ccxiv. 107. The Earl of -Northumberland to the Lords of the Admiralty, cccxxi. 44, 45, 65, 78, -87; cccxxii. 16, 40; cccxxv. 78, 79; cccxxvi. 16, 38; cccxxvii. 42, 73. -The Lords of the Admiralty to Northumberland, 14th June, cccxxvi. 32. - -[530] Rowland Woodward to Francis Windebank, 16th December 1630. _State -Papers, Dom._, clxxvii. 13. The writer said he “much feared the event -if it should be put in execution.” - -[531] _Ibid._, cclxxix. 67. - -[532] Petition of the Governor, Assistants, and Fellowship of the -Merchant Adventurers of England to the Council. _Ibid._, cclxxxix. 91. - -[533] _Ibid._, cclxxxv. 84. - -[534] _State Papers, Dom._, cccviii. 48; cccxx. 14. - -[535] A Proclamation for Restraint of Fishing upon His Maiesties Seas -and Coasts without License. _State Papers, Dom._, cccxx. 62. _Fœdera_, -xx. 15. - -[536] The form annexed to the Earl of Northumberland’s instructions, -sent to him on 14th June from Hampton Court, and which he received at -Plymouth on the 22nd, is as follows:-- - - -“CHARLES R. - -“We are gratiously pleased by these Presents to grant Lycense to ... to -fish with the Men and Company belonging to a Ship or Vessel called the -... being of the Burthen of ... Tonnes, upon any of Our Coasts or Seas -of Great Brittaine and Ireland, and the rest of our Islands adjacent, -where usually heretofore any fishing hath been. And this Our Lycense to -continue for one whole Year from ye Date hereof: Willing and requiring -as well all Our subjects as others of what Nation, quality or condition -soever that they give no Impeachment or molestation to ye said ... or -his company in the said Vessell in the Execution of this Our Lycense, -upon such Paines and Punishments, as are to be inflicted upon the -Violators of Our Royall Protection, and the wilful Breakers of Our -Peace, in Our aforesaid Dominions and Jurisdictions, further requiring -and Commanding all Our Admiralls, Vice-Admiralls, Rere-Admiralls and -Captaines of Our Ships, Castles, and Forts to protect and assist the -said ... in ye quiet enjoying the benefit of this Our Lycense.” - -Another form, dated in July, was as follows:-- - -“Charles by the Grace of God King of Great Brittaine, France -and Ireland, Defender of the Faith, &c. To all his Admiralls, -Vice-Admiralls, Rere-Admiralls, and Captaines of oure Shippes, Castles -and fforts, and to all and every other our Officers, Ministers and -subjects to whome it shall apperteyne, Greeting. Whereas Wee are -gratiously pleased by these presents to grant License to ... Master of -a Busse or Vessell called the ... beinge of the burthen of ... Tonnes, -To fishe with the Men and Company belonging to the said Busse or -Vessell upon anie of our Coastes and Seas of Great Brittaine, Ireland -and the rest of our Islands adiacent where usually fishing hath bene, -from the date hereof, to the last of December next. These are to will -and require as well Yow our said Officers and Subjects, as others of -what Nacion, quality, or condition soever That yow not onely give noe -impeachment or molestacion to the said ... or his Company in the said -Vessell in the Execucion of this Our License, upon such paynes and -punishments, as are to be inflicted upon the Violaters of oure Royall -Protecion and the wilfull Breakers of our Peace in oure aforesaid -dominions and jurisdictions: But that yow protect and assist the said -... and his Company in the quiet enioying the benefitt of this oure -License during the time before limitted: Given ...” _Ibid._, cccxxvi. -32; cccxxix. 77, 78, 79. It appears from copies without the names and -particulars filled in, which are preserved at The Hague, that the first -form was used in July, a certain Joost Bouwensz of Delfshaven having -accepted one on the 24th (N.S.) of that month. - -[537] _State Papers, Dom._, cccxix. 81; cccxxii. 40; cccxxvi. 32; -cccxvii. 93; cccxxviii. 11, 41, 69. - -[538] The herring-busses in ordinary course fished all night in fleets, -with their drift-nets floating in the water; during the day the crews -were employed in curing and packing the herrings caught. - -[539] “Next day wee fetched in 4 more of them, and having caused their -busses to be manned with English, and threatened the takeing away -their nettes, they at last consented to take Licenses, and paying -the acknowledgment I sent them all away very well satisfied.” These -busses belonged to the Enkhuisen herring fleet, which was convoyed by -a warship under Captain Gerrit Claesz. Ruyter, to whom Northumberland, -after the licenses had been accepted, gave a written certificate and -safe-conduct for bringing in the busses. Muller, _Mare Clausum_, 269, -377. - -[540] These were the Delfshaven busses, the skipper of one being Joust -Bouwensz, previously referred to. According to the Dutch accounts, -money was scarce on the busses, but the English very willingly took -herrings instead, a barrel of herrings being reckoned at from four to -four and a-half florins. - -[541] These were the _Victory_, _Repulse_, and _Swallow_. From a report -of the Officers of the Navy to the Admiralty, on 20th August, we learn -that the _Repulse_ had a great many sick on board--“some three or four -having died within these two days; some thirty sick were landed at -Margate and eight are ill on board. The surgeon is dead, as is said -of the spotted fever, full of spots, and it is much doubted that the -pestilence is amongst them.” The plague in this and the following year -made great ravages in London and at the naval ports, partly from the -want of simple precautions--_e.g._, in this case the sick men were -to be discharged “for fear of infection (of the ship) and to cease a -needlesse charge.” _State Papers, Dom._, cccxxx. 61. - -[542] The account of the movements of Northumberland’s fleet is -extracted from his “Journall of oure Summer’s Voyage in the yeare -1636.” _State Papers, Dom._, cccxliii. 72. - -[543] Northumberland to Windebank, 16th August 1636 (from Scarborough). -_State Papers, Dom._, cccxxx. 41. About 400 licenses in all, each -signed by the king, had been furnished to the Earl. - -[544] 20th Dec. 1628. “Clachten van de insolentien van’t bootsvolk en -de visschers deser landen in Schotlandt.” Muller, _op. cit._, 232. - -[545] The English Company and the king’s relation to it were considered -by the States in January 1631, 25th Oct. 1632, 19th Nov. 1633, and 15th -Sept. 1634. (Bosgoed, _Bib. Pisc._, 357. Oprichting eener Engelsche -compagnie voor de Haring-visscherij, Muller, _op. cit._, 235.) - -[546] _Verbaal van Beveren_, 1636-37. Muller, _op. cit._, 246. - -[547] _Brit. Mus. Add. MSS._, 17,677, P, fol. 67 _et seq._ - -[548] Van Beveren to the States-General, 15/25 Aug. _MSS. Add._, -17,677, P, fol. 88. In his letter he says the tax on each ton was -“twee sixpenningen,” or an English shilling. Others placed it at two -shillings a last. - -[549] Aitzema, _Saken van Staet en Oorlogh_, ii. 409. Muller, _op. -cit._, 263. - -[550] Joachimi to the States-General, (31 Aug.)/(10 Sept.), 9/19 Sept. -1636. _Brit. Mus. Add. MSS._, 17,677, P, fol. 99, 100. _Verbael van -Joachimi_, 1636. Muller, _op. cit._, 264. - -[551] Elizabeth to Sir Thomas Roe, 15/25 Aug. 1636. _State Papers, -Dom._, cccxxx. 38. - -[552] Roe to Elizabeth, 19th Aug., 20th Sept. _Ibid._, cccxxx. 50; -cccxxxii. 1. - -[553] Northumberland to the Admiralty and to Secretary Coke, Sept. 16. -_State Papers, Dom._, cccxxxi. 55, 56. - -[554] _State Papers, Dom._, cccxxxii. 39. - -[555] Northumberland’s Journal, _Ibid._, cccxliii. 72; Northumberland -to Nicholas, 6th October 1636. _Ibid._, cccxxxiii. 26. Dutch accounts -vary somewhat from that given by the Earl of Northumberland. According -to them, seven English men-of-war fell in with a hundred busses -convoyed by five States’ warships, and the busses paid the tax and took -the licenses. But when thirteen Dutch men-of-war, convoying a great -herring fleet, arrived on the scene and put themselves in a position -for battle, the English ships did not interfere any further and soon -sheered off. - -[556] An Accompt of the Convoy money, as it was delivered unto me by -the Captaines emploied in that Service, vizt.: Captain Carteret, £657, -Captaine Lindsey, £200, Captain Slingsby, £42, Captain Johnson, £20, Mr -Skinner, £80. - -[557] An Account of the Acknowledgment Money taken of the Holland -Fishermen. The partiality for English gold is shown by the fact that -£119, 13s. of the total was thus paid. - -[558] The Dutch themselves appear to have acknowledged a payment -of 20,000 florins (Muller, _Mare Clausum_, 274). Rapin (_Hist. -d’Angleterre_, vii. 455) and Wagenaar (_Vaderlandsche Historie_, xi. -260) placed it at 30,000 florins; Larrey (_Hist. d’Angleterre, d’Ecosse -et d’Irlande_, iv. 126) states that the Dutch concluded a treaty with -Charles by which they agreed to pay him “dix mille ecus par an,” -which is equivalent to the same thing; Hume (_Hist. of England_, ch. -lii. an. 1636) says: “The Dutch were content to pay £30,000 for a -license during this year.” The error is found in the earlier English -historical writers. Rushworth (_Collections_, V. ii. 322) also states -the sum as £30,000, and adds that the Dutch were willing to pay a -yearly tribute for a like liberty in future. Frankland (_Annals -of King James and King Charles the First_, 477 (1681)) says that -Northumberland with his “sixty gallant ships” “commanded the Dutch -busses to cease fishing until they had obtained permission from the -King, which they seeming not willing and ready to do, he fired amongst -them, sunk some and seized others, until they were forced to fly into -his Majesty’s harbours, and desired the Lord Admiral to mediate to -his Majesty for his leave for this summer, and they would pay unto -his Majesty’s treasury therefor the sum of £30,000, which they did -accordingly, and professed their readiness to become suppliants to his -Majesty for a grant, under the condition of a yearly payment therefor -for the future.” This writer seems to have confused Northumberland’s -operations with those of Blake’s fleet in 1652 (see p. 406) or with -the onslaught of the Dunkirkers in 1635. Kennet (_A Complete Hist. -of England_, iii. 85 (1719)) repeats the mistake and puts the sum at -£30,000, and so with almost all the historians, as well as the naval -writers. Thus, Burchett (_A Complete Hist. of the Most Remarkable -Transactions at Sea_, 379 (1720)) and Lediard (_The Naval History of -England_, 526 (1735)) give the statement of Frankland; Entick (_A New -Naval History_, 438 (1757)) drops one of the ciphers and makes the -sum £3000, but otherwise retains the false account. Admiral Colomb, -in his recent excellent work on _Naval Warfare_ (p. 33), no doubt -founding on these naval authors, also refers to the “non-payment of the -£30,000 annually, which had been fixed by Charles as license dues.” The -writers of minor books embellished the error. In a mendacious treatise -published in 1664 (_The Dutch drawn to the Life_, 146) it is said that -Northumberland “scoured the seas of the Dutch busses, seizing some, -sinking others, and enforcing the rest to flee; so reducing all to the -precarious condition of entreating the favour of fishing by the King’s -commission, which he was the readier to indulge them, because he looked -upon them as the most likely instruments for his nephew’s restauration -to the Palatinate.” John Smith, writing in 1670 (_England’s Improvement -Reviv’d_, 257), said that “the composition of the Hollanders (for -liberty to fish) was an annual rent of £100,000, and £100,000 in hand; -and never having been paid or brought into the Exchequer, as I could -hear of, there is an arrearages of above £2,500,000; an acceptable -sum,” he adds, “and which would come very happily for the present -occasions of his Majesty”--Charles II. would have been very glad of -much less; he quite failed to induce the Dutch to pay him £12,000 -a-year for a like liberty. Evelyn in 1674 (_Navigation and Commerce_) -put the “arrears” at over half a million sterling, and he said that in -1636 the Hollanders paid £1500, 15s. 2d. for licenses; but this was -only, as he explained later, “the sophism of a mercenary pen,” since -he slumped the convoy and the “acknowledgment” money together (having -had access to Northumberland’s Journal), and eight years later he wrote -to Pepys his remarkable letter of recantation, in which he stated, -“Nor did I find that any rent (whereoff in my 108 page I calculate the -arrears) for permission to fish was ever fixed by both parties” (_Diary -and Correspondence_, iii.) - -The writers on international law have copied the erroneous statements -from the historians and from one another. Wharton (_Hist. of the Law -of Nations_, 154) says, “The exclusive rights to the fisheries within -these seas (the Four Seas) and near the coasts of the British Islands -had been occasionally acknowledged by the Dutch in the form of annual -payments and taking out licenses to fish; and was again suspended by -treaties between the sovereigns of England and the Princes of the House -of Burgundy.” This statement, which outrages chronology as well as -fact, is repeated (without acknowledgment) by Phillimore (_Commentaries -upon International Law_, I., Part ii., c. vi. s. clxxxiv.), and by -Travers Twiss (_The Law of Nations in Time of Peace_, 254), Hall -(_Treatise on International Law_, 145), and others. Hall quotes Hume’s -statement that the Dutch had to pay £30,000 for leave to remain, and a -more recent author supposes that the great fishing of the Dutch on our -coasts originated in the reign of Elizabeth, and that, growing strong, -they refused to pay the “duties levied without question for generations -within the British Seas” (Walker, _A History of the Law of Nations_, i. -167). As has been shown in the text, the Dutch herring-boats resisted -the payment of the “acknowledgment” money as far as they could; the -States-General equipped a fleet to prevent by force their molestation -by the English men-of-war, and they dismissed their Admiral because he -failed in 1636 to protect them. - -[559] Aitzema, _op. cit._, ii. 408. “Op de bewaringhe ende -bescherminghe van de groote ende kleyne Visscherij deser Landen tegen -de Spaansche ende allen anderen die hun souden willen beschadigen,” -August 5/15, 1636. - -[560] _State Papers, Dom._, cccxxxiii. 13. - -[561] Muller, _op. cit._, 273. - -[562] _Res. Holl._, 19th September; _Res. St.-Gen._, 8th November 1636; -Bosgoed, _Bib. Pisc._, 360. - -[563] Gardiner, _Hist. England_, viii. 160, 163, 202, 205. - -[564] Roe to Ferentz, Oct. 15, 1636. _State Papers, Dom._, cccxxxiv. -15. Goring to his father, Lord Goring, Feb. 4/14, 1637. _Ibid._, -cccxlvi. 33. Goffe to Archbishop Laud, Feb. 2. _Ibid._, cccxlvi. 23. -The Queen of Bohemia to Archbishop Laud, Feb. 4/14. _Ibid._, cccxlvi. -34. Laud to the Queen, Feb. 28. _Ibid._, cccxlviii. 62. Roe to the -Queen, Mar. 17. _Ibid._, cccl. 16. The Queen to Laud, (Mar. 25)/(April -4). _Ibid._, cccli. 1. Goffe’s letter to Laud was as follows: “Your -Grace will receive intelligence from other hands that certain edicts -which were ready to be published by the States against paying any -acknowledgment for leave to fish are now suppressed upon the hopes of -his Majesty’s relinquishing that business for the present. But the -Prince of Orange, not willing to content himself with probabilities, -hath been very pressing with the Queen of Bohemia to have some -assurance given him that the king would not interrupt their fishing -this year. And if no other way might be afforded, he is very urgent at -least that the Elector (the son of Elizabeth) would write to him and -assure him so much. How much such an assurance would be prejudicial -to the honour of his sacred Majesty your Grace can best judge. But I -thought it my duty to add that though their edicts are suppressed, -yet their book in answer to Mr Selden’s _Mare Clausum_ is ready to -come forth: and the author is neither so modest nor discreet that the -Elector should trust him [? the Prince of Orange] with any written -assurance in that kind. The Prince of Orange hath been so much upon -this that it hath given others cause to believe that the Elector will -be moved in it.” - -[565] Roe to Ferentz. _State Papers, Dom._, cccxxxiv. 15. - -[566] The “confident vrundt” was probably Roe, who was the confidential -adviser of Elizabeth, and at this time had interviews with the Dutch -ambassador in the Prince’s interests, which he “feared would come to -nothing.” _Ibid._ - -[567] “Que durant le même temps les Pescheurs et preneurs d’hareng, -subjects de leurs Seigneuries, pescheront librement et franchement, -com̄e ils out tousiours faict du temps de la Royne Elysabeth et du -grand Roy Jacques tous deux de très-glorieuse mémoire, s’approchants -si près des bords de mer, et rivages des royaulmes, terres et ysles de -sa Ma^{té}, que leur mestier, la course de poisson et hareng, et leur -proffit portera, voire jusques à seicher leurs filets sur terre, sans -que sa Ma^{té} directement ou indirectement leur fera ou fera faire -aucun dommage, destourbier, ou empeschement en cela.” _Verbaal van -Beveren._ Muller, _op. cit._, 279. - -[568] Gardiner, _op. cit._, 218. _State Papers, Holland_, Jan., Feb. -1637. - -[569] March 19, 1637. _State Papers, Dom._, cccl. 34. - -[570] Gardiner, _op. cit. State Papers, Holland, Flanders._ - -[571] Windebank to Northumberland, July 3. _State Papers, Dom._, -ccclxiii. 21. - -[572] _State Papers, Dom._, clvii. 151_b_. - -[573] Windebank to the Earl of Northumberland, 3rd July 1637. _State -Papers, Dom._, ccclxiii. 21. - -[574] Northumberland to Windebank, 4th July, _Ibid._, ccclxiii. 28. - -[575] Windebank to Northumberland, 6th July. _Ibid._, ccclxiii. 41. - -[576] “Diamentenring van tamelijcke groote,” _Verbaal van Beveren_. -Muller, _op. cit._, 297. - -[577] _State Papers, Dom._, cccliv. 16; ccclv. 22. - -[578] Report of Fielding, 24th July. _Ibid._, ccclxiv. 45. - -[579] Pennington to Nicholas, 10th July, _State Papers, Dom._, -ccclxiii. 99; Northumberland to Sir Thomas Roe, 6th August, _ibid._, -ccclxv. 28; Pennington to Northumberland, 20th May, _ibid._, ccclvii. -15, ii. - -[580] Windebank to Fogg, Aug. 10. _Ibid._, ccclxv. 51. With reference -to this letter of Windebank’s, the following note by Secretary -Williamson was made on the copy in the volume prepared for the -ambassadors going to Cologne in 1673 (_State Papers, Dom._, Chas. -II., 339, p. 519): “This mentioned report appears by other letters -and passages of that time to have been really the truth, but of that -disadvantage to his Ma^{tys} right and title, as it was thought fitt -by all means to stiffle it, and give out Captain Fielding went to ye -Holland Busses onely w^{th} notice of ye Dunquerq^{rs} preparations to -intercept them in their return and to offer his Ma^{ties} protection.” - -[581] Windebank to Northumberland, 1st Aug., _State Papers, Dom._, -Chas. I., ccclxv. 5; Roe to Countess of Northumberland, 20th July, -_ibid._, ccclxiv. 22; Northumberland to Windebank, 1st Sept., _ibid._, -ccclxviii. 1; Same to Admiralty, 6th Sept., _ibid._, ccclxviii. 43. - -[582] Aug. 10. _Ibid._, ccclxv. 53. The king’s real feelings were shown -in the instructions given to the Earl when he was ordered to the west -on 1st August. “If any of the fishers of Holland which have refused his -Majesty’s licenses shall be assaulted by the Dunkirkers, his Majesty -will in no wise that you protect them.” _Ibid._, ccclxv. 5. - -[583] Aug. 6. _State Papers, Dom._, ccclxv. 28. - -[584] An example of the feeling is to be found in an incident of this -summer. One, Richard Rose, a justice of the peace, on hearing that the -fleet was going forth to maintain the king’s title of being Lord of the -Narrow Seas, exclaimed: “What a foolery is this; that the country in -general shall be thus much taxed with great sums to maintain the king’s -titles and honours! For my part, I am £10 the worse for it already.” -When information of this remark was laid before the Council, the Lords -“thought it not fit to question these words.” _Ibid._, ccclxx. 1. - -[585] The king to the Twelve Judges, 2nd Feb. 1637. _Ibid._, ccclxvi. -11. - -[586] The _Sovereign of the Seas_ was the largest ship hitherto built -for the navy; it was 127 feet long in the keel, 46½ feet in breadth -(inside measurement), and 19 feet 4 inches in depth; the tonnage was -by the “new rule” 1552 tons, by the “old rule” 1823 tons. She was also -by far the most expensive. Her cost was £40,833, 8s. 1½d., besides -her guns, which were estimated to cost, with engraving, £25,059, 8s. -8d. _State Papers, Dom._, ccclxi. 71; ccclxix. 44; ccclxxiv. 30; -ccclxxxvii. 87. See also Oppenheim, _Hist. Administration Royal Navy_, -260. In 1637 a “description” of the ship was published by Thomas -Heywood, dedicated to the king, and with a frontispiece representation -of it: “_A True description of his Majestie’s Royall Ship Built this -yeare 1637 at Wool-witch in Kent. To the great glory of our English -Nation and not paraleld in the whole Christian World._ Published by -Authoritie, London, 1637.” The description, apart from the verse, -occupies a few pages at the end, the work dealing chiefly with the -ships of the ancients. A second edition was published in 1638: “_A True -Discription of his Majestie’s royall and most stately ship called the -Soveraign of the Seas, built at Wol-witch in Kent 1637 with the names -of all the prime officers in her_,” &c. Prynne (_Brief Animadversions_, -&c., p. 123) says that Charles claimed and maintained the dominion of -the seas by increasing the navy, &c., and “by giving the name of the -_Edgar_ (with this motto engraven on it, _Ego ab Edgaro quatuor maria -vendico_) and of the _Soveraign of the Sea_ to the Admiral of his -fleet.” - -[587] _State Papers, Dom._, ccclxxx. 61; ccclxxxix. 86; cccxc. 39. - -[588] _State Papers, Dom._, cccxxv. 21; cccxxxviii. 15; cccxli. 6; -ccclxi. 41; cccliii. fol. 34. _Brit. Mus. Add. MSS._, 17,677, O, fol. -364. - -[589] _State Papers, Dom._, ccclxxxii. 44; ccclxxxiii. 29. - -[590] Smith to Pennington, 8th June 1639. _Ibid._, ccccxxiii. 56. - -[591] Windebank to Pennington, 10th, 15th, 16th July, _State Papers, -Dom._, ccccxxv. 45, 72, 81; Northumberland to Pennington, _ibid._, -ccccxxv. 76; Windebank to Hopton, 16th August, _Clarendon State -Papers_, i. 1283. - -[592] Pennington to Windebank, 13th July. _State Papers, Dom._, -ccccxxv. 61, 68. - -[593] Gardiner, _Hist._, ix. 69; _State Papers, Dom._, ccccxxviii. 52. - -[594] Northumberland to Pennington, 12th September, _State Papers, -Dom._, ccccxxviii. 92; Windebank to Hopton, 29th September, _Clarendon -State Papers_, ii. 71; Hopton to Windebank, October 12/22, _Cal. Clar. -State Papers_, i. 1311. - -[595] Gardiner, _op. cit._, 61. - -[596] Windebank to Colonel Gage and Count Leslie, (28 Sept.)/(8 Oct.). -_Cal. Clar. State Papers_, i. 1296. - -[597] Gardiner, _op. cit._, 63. - -[598] Smith to Pennington, 30th Sept. _State Papers, Dom._, ccccxxix. -70. - -[599] Northumberland to Pennington, 16th September. _Ibid._, -ccccxxviii. 92. - -[600] Pennington to the Master of the _Luke_, of London, 23rd Sept. -_Ibid._, ccccxxix. 15. - -[601] Smith to Pennington, 19th Sept. _State Papers, Dom._, ccccxxviii. -111. - -[602] “De Spaansche Vloot te vernielen sonder eenige aanschouw of -reguard te nemen op de Havenen, Reeden, of Baayen van de Coningryken, -waar de zelve zoude zyn te bekomen.” _Resol. Stat.-Gen._, 11/21, -20/30 Sept. 1639. Aitzema, _Saken van Staet en Oorlogh_. Bynkershoek, -_Quæstiones Juris Publici_, lib. i. - -[603] Northumberland to Pennington, 8th Oct., _State Papers, Dom._, -ccccxxx. 47; Same to Windebank. 9th Oct., _ibid._, ccccxxx. 55; -Pennington to Northumberland, 11th Oct., _ibid._, 77; Suffolk to -Windebank, 11th Oct., _ibid._, 66, 68; Pennington’s report, 11th -Oct., _ibid._, 74; Hopton to Windebank, 20/30 Nov., _Cal. Clar. State -Papers_, i. 1323; Tromp to Pennington, 11/21 Oct., _State Papers, -Dom._, _ibid._, 80 (translation in Windebank’s writing); _ibid._, -ccccxxxi. 4. - -[604] Leslie to Windebank, 11th Oct.; Gage to Windebank, 19/29 Oct. -_Cal. Clar. State Papers_, i. 1309, 1313. - -[605] Northumberland to Pennington, 15th Oct. _State Papers, Dom._, -ccccxxxi. 18, 30; _Cal. Clar. State Papers_, i. 1324. - -[606] Windebank to Gerbier, 18th Oct. _State Papers, Dom._, ccccxxxi. -35. Gage to Windebank, 9/19 Nov. Paper delivered by Hopton to King of -Spain, 24th Nov. _Cal. Clar. State Papers_, i. 1321, 1324. - -[607] _State Papers, Dom._, dxxxviii. 106. The paper is endorsed -“Soverainty of the Seas: the Dutch attempt on the Spaniards in the -Downs.” - -[608] _Resol. St.-Gen._, 16/26, 20/30 Oct., (26 Oct.)/(5 Nov.) 1639. -Instructie van Sommelsdijck, Muller, _Mare Clausum_, 309; Aitzema, -_Saken van Staet_, ii. 618. - -[609] _Secrete Resol. St.-Gen._, 11/21 Oct., “Dat hunne meeninge -gantsch niet was, het recht van Visscherie in de Noortzee van ijemant -te stipuleren, versoecken ofte reveleren.” Muller, _op. cit._, 312. In -the following year Vice-Admiral De With refused to lower his flag to an -English ship-of-war off Hellevoetsluis. - -[610] Maine, _International Law_, 13, 75. Phillimore, _Commentaries -upon International Law_, I. xxi. Wheaton, _History of the Law of -Nations_, 54. - -[611] Meadows, _Observations_, p. 3. Raleigh, _A Discourse on the -Invention of Ships_. - -[612] Cunningham, _The Growth of English Industry and Commerce during -the Early and Middle Ages_, p. 418. - -[613] _Le Droit International_, i. 20. - -[614] _De Potestate Legis Pœnalis_, lib. ii. c. 14. Quoted by Nys, -_Les Origines du Droit International_, p. 382, and by Grotius, _Mare -Liberum_, c. vii. - -[615] D. Fernandus Vasquius, _Controversiæ Illustres_, Venice, 1564, -lib. ii. c. lxxxix. s. 30 (p. 356, ed. Frankfurt, 1668). - -[616] _Mare Libervm sive de Jvre qvod Batavis competit ad Indicana -Commercia Dissertatio._ Lugdvni Batauorvm. Ex officinâ Ludovici -Elzevirij Anno 1609. The name of Grotius did not appear on the -title-page until the second edition in 1618 (_Hvgonis Groti Mare -Libervm sive_ ... vltima editio. Lvgdvni Batavorum, anno 1618), the -year in which he was arrested; and that he was not generally known to -be the author until this time is shown by Welwood referring to _Mare -Liberum_ in 1613 as written by “an unknown author,” and by an English -State Paper, prepared for the negotiations with the Dutch ambassadors -in 1618, which contains excerpts out of a book called _Mare Liberum_ -(_Brit. Mus. MSS. Lansd._, 142, fol. 383). Grotius was then one of the -most prominent men in Holland. Another edition was published, also at -Leyden, in 1633, together with Paul Merula’s _Dissertatio de Maribus_ -and Boxhorn’s _Apologia pro Navigationibus Hollandorum adversus Pontem -Hevtervm_, under the title, Hugo Grotius, _De Mare Libero_. It was also -included in Hagemeier’s _De Imperio Maris, variorum Dissertationes_, -published in 1663. A translation in the vernacular appeared at Haarlem -in 1636,--no doubt in consequence of the publication of Selden’s _Mare -Clausum_,--H. Groti, _Vrye Zeevaert, ofte Bewys van het Recht dat -de Inghesetenen deser gheunieerde Landen toekomt over de Oost ende -West-Indische Koophandel_. Hugo de Groot was born at Delft in 1583; he -was appointed Advocate-General before he was twenty-four years of age, -and settled at Rotterdam in 1613, where he became Pensionary of that -town; he was sent to England as one of the Dutch envoys in that year. -In 1618 he was arrested in connection with the Barnevelt troubles, -and in the following year condemned to perpetual imprisonment; but he -escaped to Paris, where he lived for eleven years, and then entering -the service of the Queen of Sweden, he was employed as her ambassador -at the Court of France. He died at Rostock in 1645. Some of his works -were translated into almost all European languages, and even into -Persian, Greek, and Arabic. - -[617] Tiele, _Opkomst van het Nederlandsch Gezag in Oost-Indie_; Fruin, -_Een onuitgegeven werk van Hugo de Groot_, in _De Gids_, Derde ser. -zesde Jaargang, 1868, vierde del; M’Pherson, _Annals of Commerce_, ii. -209, 226. - -[618] “Ante annos aliquot, cum viderem ingentis esse momenti ad -patriæ securitatem Indiæ quæ Orientalis dicitur commercium, id vero -commercium satis appareret obsistentibus per vim atque insidias -Lusitanis sine armis retineri non posse, operam dedi ut ad tuenda -fortiter quæ tam feliciter cœpissent nostrorum animos inflammarem, -proposita ob oculos causæ ipsius iustitia et æquitate, unde nasci το -ἑυελπι recte a ueteribus traditum existimabam. Igitur et universa belli -prædæque iura, et historiam eorum quæ Lusitani in nostros sæue atque -crudeliter perpetrassent, multaque alia ad hoc argumentum pertinentia -eram persecutus amplo satis commentario, quem edere hactenus -supersedi.” _Hugonis Grotii Defensio Capitis quinti Maris liberi -oppugnati a Gulielmo Welwodo Iuris Civilis professore capite XXVII. -eius libri scripti Anglico sermone cui titulum fecit Compendium legum -Maritimaram._ This manuscript of Grotius was discovered in 1864, along -with the work _De Jure Prædæ_, to which he refers, in a collection of -MSS. brought to auction, which belonged to the family of Cornets de -Groot of Bergen-op-Zoom, who had descended in a direct line from the -great publicist (Fruin, _op. cit._) It was printed by Muller in 1872 -(_Mare Clausum_, p. 331). The greater work, edited by Hamaker, was -published in 1868, _Hugo Grotius de Jure Prædæ Commentarius_. - -[619] “Hujus generis est Aër, duplici ratione, tum quia occupari -non potest, tum quia usum promiscuum hominibus debet. Et eisdem de -causis commune est omnium Maris Elementum, infinitum scilicet ita, ut -possideri non queat, et omnium usibus accommodatum: sive navigationem -respicimus, sive etiam piscaturum.” Cap. v. - -[620] Cap. v. “Similiter reditus qui in piscationes maritimas -constituti Regalium numero censenter, non rem, hoc est mare, aut -piscationem, sed personas non obligant. Quare subditi, in quos legem -ferendi potestas Reipublicæ aut Principi ex consensu competit, ad onera -ista compelli forte poterunt: sed exteris jus piscandi ubique immune -esse debet, ne servitus imponatur mari quod servire non potest.... Quod -in aliis difficile videtur, in hac omnino fieri non potest: quod in -aliis iniquum judicamus, in hac summe barbarum est, atque inhumanum.... -In tanto mari si quis usu promiscuo solum sibi imperium et ditionem -exciperet, tamen immodicæ dominationis affectator haberetur: si quis -piscatu arceret alios, insanæ cupiditatis notam non effugeret.” - -[621] Not improbably James had _Mare Liberum_ in view in the following -sentence in his Proclamation of 1609: “Finding that our connivance -therein hath not only given occasion of over great encroachment -upon our regalities, or rather questioning for our right.” That it -was believed in England that Grotius had James in view is shown by -the following _précis_ contained in the volume of official records -prepared for the ambassadors to the Congress at Cologne in 1673: “K. -James coming in, the Dutch put out _Mare Liberum_, made as if aimed -at mortifying the Spaniards’ usurpation in the W. and E. Indyes, but -indeed at England. K. James resents it, bids his Amb^r S^r D. Carleton -complaine of it.” _State Papers, Dom._, cccxxxix. p. 99. Chas. II., -1673-75. - -[622] Cap. v. p. 29. “In hoc autem Oceano non de sinu aut fretu, nec -de omni quidem eo quod e littore conspici potest controversia est. -Vindicant sibi Lusitani quicquid duos Orbes interjacet.” - -[623] Cap. vii. - -[624] Hvgonis Grotii De Ivre Belli ac Pacis, Libri Tres. - -[625] Lib. ii. cap. ii. s. iii. 1, 2. - -[626] Lib. ii. cap. iii. s. viii. “Ad hoc exemplum videtur et mare -occupari potuisse ab eo qui terras ad latus utrumque possideat, etiamsi -aut supra pateat ut sinus, aut supra et infra ut fretum, dummodo non -ita magna sit pars maris ut non cum terris comparata portio earum -videri possit. Et quod uni populo aut Regi licet, idem licere videtur -et duobus aut tribus, si pariter mare intersitum occupare voluerint, -nam sic flumina quæ duos populos interluunt ab utroque occupata sunt, -ac deinde divisa.” - -[627] Lib. ii. cap. iii. ss. ix.-xii. - -[628] Lib. ii. cap. iii. s. xiii. 2. “Videtur autem imperium in maris -portionem eadem ratione acquiri qua imperia alia, id est, ut supra -diximus, ratione personarum et ratione territorii. Ratione personarum, -ut si classis, qui maritimus est exercitus, aliquo in loco maris -se habeat: ratione territorii, quatenus ex terra cogi possunt qui -in proxima maris parte versantur, nec minus quam si in ipsa terra -reperirentur.” - -[629] Calvo, _Le Droit Internat._, i. 348; Ortolan, _Règles -Internationales et Diplomatie de la Mer_, i. c. v. See p. 156 referring -to a State Paper of 1610, which seems to be misdated “August 1609.” - -[630] Dumont, _Corps Diplomatique_, vol. V. ii. p. 99. The treaty was -signed on (30 March)/(9 April) 1609. - -[631] _Defensio_, 332 (_circa_ 1614); Letter to his brother, 1st April -1617. _Epistolæ_, 759. - -[632] _De Justo Imperio Lusitanorum Asiatico adversus Grotii Mare -Liberum._ - -[633] _Ivlii Pacii De Dominio Maris Hadriatici Disceptatio_, Lvgdvni -M.D.C.XIX. Other works were Angelus Mattheacius, _De Jure Venetorum et -Jurisdictione Maris Adriatici_, Venezia, 1617; Cornelio Francipane, -_Alegazion in Jure, per il Dominio, della Republica Veneta, del suo -Golfo, contra alcune Scritture di Napolitani_, 1618; Franciscus -de Ingenuis, _Epistola de Jurisdictione Venetæ Reipublicæ in Mare -Adriaticum_, 1619; P. Zambono, _Del Dominio del Mare Adriatico overo -Golfo di Venezia_, Venice, 1620. - -[634] M’Crie, _Life of Andrew Melville_, 206, &c. Selden describes him -as _Jurisconsultus Scotus_; and Prynne “A Scot, Professor of the Civil -Law” (_Animadversions_, 113). - -[635] There is a copy in the Library of the University, Cambridge -(Aldis, _A List of Books printed in Scotland before 1700_; Dickson and -Edmond, _Annals of Scottish Printing_, 415), and I have found a MS. -copy among the State Papers, entitled “The Sea Law of Scotland, shortly -gathered and plainly dressed for the ready use of all seafaring men. -Dedicated to James VI. of Scotland by William Welvod. At Edinborough, -A^o 1590, by Robert Walgrave.” (_State Papers, Dom._, Jas. I., ccviii. -No. xvi.) It was printed at Edinburgh by Waldegrave in 1590. There -are fifteen chapters dealing with the freighting of ships, the powers -and duties of the master, the relations between the master and the -merchants, &c. In his preface to the _Abridgement_, Welwood refers to -this earlier work as follows: “It pleased your M. some yeeres past most -graciously to accept of this birth, in the great weaknes and infancie -thereof. Therefore it is, that now being strong, and by all warrants -inarmed, it most thankefully returnes, offring seruice to your M. euen -for all the coasts of your Highnes dominions, vpon hope to merit your -former grace.” His last work is dated 1622. It is probable that, like -so many of his countrymen, he followed King James to London, where all -his later works were published. He was of an ingenious mind, and, while -teaching mathematics at St Andrews, obtained a patent for a new mode of -raising water from wells, &c., on the principle of the syphon. M’Crie, -_op. cit._ - -[636] _An Abridgement of all Sea-Lawes, gathered forth of all Writings -and Monuments, which are to be found among any people or Nation upon -the coasts of the greate Ocean and Mediterranean Sea: And specially -ordered and disposed for the use and benefit of all benevolent -Sea-farers, within his Maiesties Dominions of Great Britanne, -Ireland, and the adiacent Isles thereof._ London, 1613. Tit. xxvii. -deals with the “community” of seas. He refers to the work of Grotius as -“a verie learned, but a subtle Treatise (_incerto authore_) intituled -_Mare Liberum_.” Welwood’s _Abridgement_ was republished in 1636, -without alteration; also in the edition of 1686 of Malyne’s _Consuetudo -vel Lex Mercatoria_, but without his name. - -[637] _De Dominio Maris Ivribvsque ad Dominivm praecipve spectantibvs -Assertio brevis et methodica._ Cosmopoli, 16th January 1615. It was -republished at The Hague in 1653, and replied to by Graswinckel. See p. -412. - -[638] In Roman law a distinction was made between the sea and rivers -in regard to propriety. The sea is “_communis omnium naturali jure_,” -but the rivers are “_publicæ res, quarum proprietas est populi vel -reipublicæ_.” - -[639] Welwood’s _De Dominio Maris_ is not mentioned by Grotius, whose -tract appears to have been written before it was published. - -[640] _Jus Feudale, Tribus Libris Comprehensum_, lib. i., Diegesis 13, -p. 103. Edinburgh, 1603 and 1655. The treatise was dedicated to King -James. Craig was born in 1538 and died in 1608. - -[641] “Quod ad mare attinet, licet adhuc ita omnium commune sit, -ut in eo navigari possit. Proprietas tamen ejus ad eos pertinere -hodie creditur, ad quos proximus continens adeo ut mare Gallicum id -dicatur quod littus Galliæ alluit, aut ei propius est, quam ulli alii -continenti. Sic Anglicum, Scoticum, et Hybernicum, quod propius Angliæ, -Scotiæ, et Hyberniæ est. Ita ut reges inter se, quasi maria omnia -diviserint, et quasi ex mutua partitione alterius id mare censeatur, -quod alteri propinquius et commodius est; in quo si delictum aliquod -commisum fuerit, ejus sit, jurisdictio qui proximum continentem -possideat. Isque suum illud mare vocat.... Piscationes vero quæ in -proximo mari fiunt, proculdubio eorum sunt qui proximum continentem -possident. Itaque non sine summa injuria nostra Belgæ circa nostras -insulas piscantur. Nam licet piscationes in mari non prohibeantur, -tamen et hæ præscribuntur, et traduntur permissæ aut prohibitæ secundum -consuetudinem.” - -[642] _The Maintenance of Free Trade_, p. 42 _et seq. Consuetudo -vel Lex Mercatoria._ The latter contains chapters on Navigation and -Community of Seas, and The Distinct Dominions of the Seas. Many -editions were published. - -[643] Wheaton, _Hist._, 51, 153; Phillimore, _Commentaries_, I. xxxix. - -[644] _Alberici Gentilis Juriscons. Hispanicæ Advocationis_, Libri -Duo, Hanoviæ, 1613. Gentilis was born in 1551 and died, like Craig, -in 1608. His most important works were _De Jure Belli_ (1588) and _De -Legationibus_. Professor Holland has given an account of his life and -works in _An Inaugural Lecture on Albericus Gentilis_, delivered at All -Souls College, 1874. See also Alessandro de Giorgi, _Della Vita e delle -opere di Alberico Gentili_, Parma, 1876. - -[645] In a letter from the Earl of Salisbury to Sir Thomas Lake in -1606, referring to a dispute between the Dutch and Spanish ambassadors -about prizes taken in the Narrow Sea, it is said that the king, in -putting in force his proclamation about the recall of subjects in -foreign service (p. 119), dealt as follows: if a prize had been taken -and brought into the English limits (chambers), and Englishmen were -aboard the taker, he dealt with them as having offended against his -proclamation, and also released the ship as not being good prize. -Even more, proceeds the Earl, “although there be no English but all -Flemings, the king takes all from them and restores it [the ship] -wherein, tho’ in effect it undoes the end of the States warr by sea, -because they have no way to come home but by the narrow seas, where -the least wind that can blow them can hardly keepe themself from the -English coasts, and so a partiall jugement of ½ a mile more or less -in a wyde sea looseth or winneth their right.” _State Papers, Dom._, -xviii. 22. - -[646] In 1604, between King James and Philip III. and the Archdukes. -Dumont _Corps Diplomatique_, V. ii. 34. - -[647] “Etiam non nocet, quod objicitur et longe antehac longo usu -servatos in hujusmodi quæstionibus hos esse fines qui expressi nunc -sunt Edicto,” p. 30. - -[648] Gryphiander, _De Insulis Tractatus_, Frankfort, 1623, cap. 14, s. -46. - -[649] Moore, _A History of the Foreshore and the Law relating thereto_, -1888. - -[650] “Arguments prooving the Queenes Ma^{ties} propertye in the Sea -Landes, and salt shores thereof, and that no subiect cann lawfully -hould eny parte thereof but by the Kinges especiall graunte.” It is -printed by Moore (_op. cit._, 185) from _Lansdowne MSS._, No. 100. -Various copies exist; one in _Lansd. MSS._, No. 105, belonged to Lord -Burghley, and is endorsed by him “Mr Digges. The Case of Lands left by -ye Seas.” A copy is in _State Papers, Dom._, cccxxxix. 1. - -[651] It may be said that this claim to “royal fish,” made also by -Bracton, was not peculiar to the English crown. It was made on the -Continent from an early period, as is shown by the ancient laws of -Jutland and of Scania, and the practice in many parts of France and -among the Normans. It may have been introduced into England by William -the Conqueror, who granted Dengey Marsh to Battle Abbey, with the right -to wreck and royal fish. - -[652] _The Reading of the famous and learned Robert Callis, Esqr., upon -the Statute of Sewers_, 23 Hen. VIII., c. 5, as it was delivered by him -at Gray’s Inn in August 1622. 4th ed., 1824. - -[653] Such as “A Collection of divers particulars touching the King’s -Dominion and Soveraignty in the Fishings, as well in Scotland as in -the British Ocean,” by Captain John Mason. (_State Papers, Dom._, -1590. _Admiralty_, Eliz., Jac. I., Car. I., No. 37, fol. 131.) A -superior compilation, dealing with the opinions of the Civilians, -as well as with the Dutch and native fisheries, and founded largely -on Dee, Hitchcock, Gentleman, and Keymer, is entitled “The King’s -Interest in the Sea and the Commodities thereof” (_ibid._, ccv. 92). -Another treatise, also dealing with the opinions of the Civilians, the -jurisdiction of the Admiral, and the rights of the crown of England to -the dominion of the narrow seas, is in _State Papers, Dom._, ccviii., -No. x., fol. 402. - -[654] The original Latin copy bearing the date 1633 (confirmed by -internal evidence) is in the British Museum (_Harleian MSS._, 4314). It -is entitled _Dominium Maris Britannici assertum ex Archiuis Historiis -et Municipalibus Regni Legibus_, per D. Johannem de Burgo, 1633; it -is dedicated to the king. Other MS. copies in the British Museum are -_Harl._, 1323; _Lansdowne_, 806, f. 40; _Sloane_, 1696; and _Harl._, -4626, the latter being very imperfect. There is also a fine copy in -English among the State Papers, dated 1637, with this addition to the -title: “Also a Perticuler Relation concerning the Inastimable Riches -and Commodities of the British Seas” (_State Papers, Dom._, ccclxxvi. -68). It was republished in the third edition of Malyne’s _Consuetudo -vel Lex Mercatoria_, in 1686. - -[655] _Mare Clausum_, in dedication to King Charles, “Divi parentis -tui jussu tentata olim adumbrataque, inter schedas sive neglectas sive -disjectas per annos amplius sedecim mecum latuit; ut imperfecta nimis -sic etiam ceu intermortua.” - -[656] _Vindiciæ Maris Clausi_, p. 25. This was the explanation -which Selden gave when, in 1652, he was taunted by a Dutch writer, -Graswinckel, with having written his work to get out of prison. It is -surprising that James, who was loquacious and fond of displaying his -knowledge, never lectured the Dutch ambassadors on the themes in _Mare -Clausum_--as from the rolls of the Edwards; nor was any use made of its -facts and arguments throughout the protracted negotiations in his reign. - -[657] A Proclamation concerning a book intituled _Mare Clausum_, 15th -April 1636. _Fœdera_, xx. 12. - -[658] _State Papers, Dom._, cclxxiii. 30; cclxxvi. 58. - -[659] Gardiner, _Hist._, vii. 330. Poor Prynne, who lost both his ears -on this occasion, and had his books burned under him in the pillory, -became later an ardent defender of the king’s dominion in the seas in -the reign of Charles II., when he held the office of Keeper of the -Records. - -[660] _State Papers, Dom._, cclxxvi. 58; cclxxxiii. 96-98. - -[661] _Brit. Mus. Add. MSS._, 17,677, O, fol. 367. Joachimi to the -States-General, 5/15 Aug. 1635. “Het boeck Seldeni getituleert, soo ich -hoore, _mare clausum_, is onder den druck deur ordre van den Coningh.” - -[662] Joannis Seldeni Mare Clausum seu de Dominio Maris, Libri Duo. -_Primo_, Mare, ex _Jure Naturæ seu Gentium_, omnium hominum non esse -Commune, sed Dominii privata seu Proprietatis capax, pariter ac -Tellurem, esse demonstratur. _Secundo_, Serenissimum Magnæ Britanniæ -Regem Maris circumflui, ut individuæ atque perpetuæ Imperii Britannici -appendicis, Dominum esse, asseritur. Pontus quoque Serviet Illi. -Londini, excudebat Will. Stanesbeius, pro Richardo Meighen, MDCXXXV. -The Preface is dated at the Temple, 4th November 1635. - -[663] _Vindiciæ_, “proceres apud regem præpollentes.” - -[664] Proclamation, 15th April 1636. - -[665] Rushworth, _Historical Collections_, ii. 320. Frankland, -_The Annals of King James and King Charles the First_, 476. In the -Exchequer Order Book, under date 5th May, the following entry occurs: -“Whereas S^r William Beecher, K^t, one of the clerks of his Ma^{ts} -most honorable pryvy councill, did this daye deliver in Court to the -Lord Treasurer, Chauncillor, and Barons of the Courte, a booke lately -published by John Selden, Esqr., entituled _Mare Clausum seu de dominio -maris_, to be kept in this Courte as a faithfull and stronge evidence -for the undoubted right of the Crowne of England to the Dominion of -the Bryttishe seas, which saide booke the said Clerke of the Councill -did deliver according to an order in that behalfe made by the King’s -most excellent Ma^{tie} and the Lords of His Highness privy councell at -Whitehall, the third of Aprill last past, a coppie of which said order -is alsoe delivered with the said booke: It is, therefore, nowe ordered -by the said Lord Treasurer, Chauncillor, and Barons that the said booke -bee receaved by his Ma^{ties} Remembrancer of this Courte, and by -him kypt of record amonge the Records of the Courte as his Ma^{ties} -evidence. And as well the said order of the third of Aprill before -mentioned as this present order to bee inrolled upon Record.” _Charles -I. Decrees and Orders_, Series iii., No. 19, fol. 3_b_. - -[666] Besides the Romans and the Carthaginians, he mentions as -among these the Cretans, Lydians, Thracians, Phœnicians, Egyptians, -Lacedemonians, and a great many more; but in most cases the evidence -adduced shows merely that naval power was exercised. - -[667] Lib. i. cap. xvii. - -[668] Lib. i. cap. xx. “Quod ad genus primum attinet (commerce, -travelling, navigation); humanitatis quidem officia exigunt, ut -hospitio excipiantur peregrini etiam ut innoxius non negetur transitus.” - -[669] Lib. i. cap. xxii. “Sed vero ex aliorum piscatione, navigatione, -commerciis ipsum mare deterius Domino cæterisque ejus jure gaudentibus -fieri non raro videmus. Scilicet minui, quod alias inde percipi posset, -commodum. Quod manifestius cernitur in marium usu, quorum fructus -sunt uniones, corallium, id genus cætera. Etiam minuitur in horas -marium hujusmodi abundantia, non aliter ac sive metalli fodinarum ac -lapicidinarum, sive hortorum, quando fructus eorum auferuntur.... Et -similis sane ratio qualiscunque piscationis.” - -[670] Lib. ii. cap. xiii. - -[671] (1) _Ioannis Seldeni Mare Clavsvm sev de Dominio Maris Libris -Dvo. Quorum argumentum paginâ versâ._ Juxta exemplar Londinense. -Will. Stanesbeii pro Richardo Meighen, CIƆ IƆc xxxvi. (12^o); (2) with -the same title and the following addition: _Accedunt Marci Zverii -Boxhornii Apologia pro navigationibus Hollandorum adversus Pontvm -Hevtervm et Tractatvs Mvtvi commercii et navigationis inter Henricvm -VII. Regem Angliæ et Philippvm Archidvcem Austriæ_. Londini, juxta -exemplar Will. Stanesbeii pro Richardo Meighen, MDCxxxvi. (8^o); (3) -with the title as in the original London edition, and Lvgdvni Batavorvm -apud Joannem et Theodorvm Maire, 1636 (4^o). The original London -edition was a small folio. In all the Dutch editions the plates are -badly copied. No. 1 is sometimes referred to by English writers as -the original edition. No. 2 is the one alluded to by Charles in his -proclamation of 15th April 1636. - -[672] _Resol. Holl._, 11/21 Dec. 1635. Quoted by Arendt, _Algemeene -Geschiedenis des Vaderlands_, iii., stuck 5, p. 8. - -[673] _Resol. Holl._, (31 March)/(10 April) 1636. Muller, _Mare -Clausum_, 283. - -[674] “Ego, cum Suecia,” he wrote to his brother on January 14, -1636, “multum teneat oræ maritimæ, quid aliud præstare possum quam -silentium?” Grotii, _Epistolæ_, 864. - -[675] Digby to Lord Conway, January 21/31, 1636. _State Papers, Dom._, -cccxliv. 58. - -[676] The treatise was entitled, _Th. Graswinckelii, Jurisc. Delph. -Maris Liberi Vindiciæ adv. virum clarissimum Johannem Seldenum_. -Arendt, _loc. cit._; Muller, _loc. cit._ Goffe, writing from Holland to -Archbishop Laud on 2nd February 1637, stated that the book in answer -to Selden’s _Mare Clausum_ was “ready to come forth, and the author is -neither so modest nor discreet that the Elector should trust him with -any written assurance in that kind,”--that Charles would not interrupt -the Dutch fishery that year (_State Papers, Dom._, cccxlvi. 23). We -shall again find Graswinckel in the thick of the controversy during the -first Dutch war, p. 411. - -[677] _Joh. Isacii Pontani Discvssionvm Historicarvm Libri Duo, quibus -præcipuè quatenus et quodnam mare liberum vel non liberum clausumque -accipiendum dispicitur expenditurque, &c._, Harderwick, 1637. - -[678] _Jacobi Gothofredi De Imperio Maris_, in Hagemeier, _De Imperio -Maris Variorum Dissertationes_. - -[679] _Mare Balticum_ (anon.), 1638; _Ante-Mare Balticum, scilicet, an -ad Reges Daniæ, an ad Reges Poloniæ, pertineat_ (anon.), 1639; Azuni, -_Systema dei Principii del Diritto Maritimo_. - -[680] The Case of Ship-Money briefly discussed, according to the -Grounds of Law, Policy, and Conscience. Presented to the Parliament, -November 3, 1640. Stubbe, _A Further Justification of the Present War -against the United Netherlands_, 76. - -[681] Gardiner, _Hist. Engl._, x. 208. Clarendon, iii. 113. - -[682] Rushworth, _Collections_, v. 312. - -[683] Penn, _Memorials of the Professional Life and Times of Sir -William Penn, Knt., from 1640 to 1670_, i. 224. - -[684] _State Papers, Dom._, dxv. i. 37, 38, 39. There is also in one of -the collections a quotation from Selden’s _Mare Clausum_, that it was -treason not to acknowledge the King of England’s dominion in his own -seas by striking sails. - -[685] Instructions given by the Committee of Lords and Commons for the -Admiralty and Cinque Ports, to be observed by all captains, officers, -and common men respectively in this fleet, provided to the glory of -God, the honour and service of the Parliament, and the safety of the -three Kingdoms, March 30, 1647. _Ibid._, dxv. 40. - -[686] Rushworth’s _Collections_; Penn, _op. cit._, i. 242. - -[687] Loccenius, _De Jure Maritimo_, x. s. 10. - -[688] _State Papers, Dom._, 27th Feb. 1649. - -[689] 17th January 1650. _A Collection of the State Papers of John -Thurloe_, i. 134. - -[690] Penn, _Memorials_, i. 365, 379. - -[691] Geddes, _History of the Administration of John de Witt_, i. 102, -106, 150-157. Gardiner, _History of the Commonwealth and Protectorate_, -i. 353, 356. - -[692] Geddes, _op. cit._, 157, 159, 165. Gardiner, _op. cit._, 359. -_The Nicholas Papers_, i. 230. - -[693] “Wee doe tender the ffriendshipp of the Com̃onwealth of England -unto the High and Mighty Lords the States Generall of the Vnited -Provinces, and doe propound that the Amitye, and good Correspondency -which hath aunciently beene betweene the English Nation and the Vnited -Provinces, be not only renewed, and preserved inviolably, But that a -more strict, and intimate Allyance, and Vnion, be entred into by them, -whereby there may be a more intrinsicall, and mutuall interest of each -in other then hath hitherto beene for the good of both.” Submitted 25 -March/6 April. “A briefe Narrative of the Treatie at the Hague betweene -the hono^{ble} Oliver St John, Lord Chiefe Justice of the Court of -Com̃on Pleas, and Walter Strickland, Esq., Embassado^{rs} extraordinary -of the Parliament of the Com̃onwealth of England, to the great Assembly -of the States Generall of the Vnited Provinces begun upon the 20th of -March 1651 and continued vntill the 20th of June 1651 and then broke of -_re infectâ_.” _State Papers, Foreign, Treaty Papers (Holland)_, No. -46, 1651. - -[694] “We propound, That the two Com̄onwealths may be confederated -friends, ioyned, and allyed togeather for the defence and Preservation -of the Libertyes, and ffredomes of the people of each, against all -whomsoever that shall attempt the disturbance of either State, by Sea -or Land, or be declared enemyes to the freedome and Libertie of the -people liveing under either of the said Governments.” Submitted, 17th -April. _Ibid._, p. 7. - -[695] _Narrative of the Ambassadors_ (ibid.) Geddes, _op. cit._, 157, -159, 165, 171. Gardiner, _op. cit._, 359, 362, 363. Tideman, _De Zee -Betwist: Geschiedenis der Onderhandelingen over de Zeeheerschappij -tusschen de Engelsche Republiek en de Vereenigde Provinciën vóór den -ersten Zee-Oorlog_, 39-47. Thurloe’s _Collections_, i. 176, 179, -181-186, 188, 193. Aitzema, _Saken van Staet en Oorlogh_, 657-660. - -[696] See Appendix K. _Narrative of the Ambassadors_, p. 23. Aitzema, -_op. cit._, iii. 698-700. MS. of Duke of Portland in _Hist. MSS. Com. -Thirteenth Report, App. I._, 605. Tideman, _op. cit._, 47, 48, 49. -Geddes _op. cit._ 178. - -[697] Articles 17-33, _Narrative of the Ambassadors_. These articles -are given in Appendix K. Tideman, _op. cit._, 50. Aitzema, _op. cit._, -iii. 695. - -[698] “Over het strijken van vlaggen ende andere Ceremonieën daeruyt -meenichmael differentien in zee coomen te ontstaen.” _Resol. der Groote -Vergadering_, 15/25 May 1651. Tideman, _op. cit._, 52. - -[699] St John and Strickland left The Hague on 20th June, and the -Act was recommended to the Parliament by the Council of State on 5th -August, and passed on 9th October (Gardiner, _op. cit._, ii. 82). The -essence of the Act was to prohibit the importation of extra-European -commodities into any territory of the Commonwealth except in English -vessels, or from Europe unless in English vessels or vessels belonging -to the country in which the commodities were manufactured or produced. -The importation of salt-fish or fish-oil, and the exportation of salted -fish, were to be permitted only in English vessels, but the importation -of fresh fish was not forbidden. Early in the next year two Dutch -doggers, driven into Yarmouth by contrary winds, exposed their cod and -haddocks for sale and were seized by the bailiffs; their release was -ordered by the Council of State. - -[700] Geddes, _op. cit._, 192, 193. Tideman, _op. cit._, 89, 96. -Gardiner, _op. cit._, ii. 108. Gardiner, _Letters and Papers relating -to the First Dutch War, 1653-1654_, Navy Records Society. In the third -volume (1906) of this valuable work the papers are brought down to 10th -February 1653. - -[701] Tideman, _op. cit._, 96. Aitzema, _op. cit._, iii. 696. - -[702] They were Whitelocke, John Lisle, Bond, Scott, Viscount Lisle, -and Purefoy. - -[703] Cats’ _Verbael_. Tideman, 94-108. Geddes, 198. - -[704] The conferences on the articles were on 3rd, 5th, 6th, 10th, and -13th May. The incorporation and union of Scotland with England was -proclaimed at Edinburgh on the 21st of the preceding month. - -[705] Cats’ _Verbael_, _App._, 21. Tideman, _op. cit._, 117. - -[706] “De dispuyte over ’t recht hetwelck de Engelsche pretenderen -privative over eenigh ghedeelte van de Zee te hebben, ende in allen -ghevalle aan deselve geen soodanigh recht in eenigher wijse toe te -staen, ende alleen te handelen over de vryheijdt ende seeckerheijdt van -wederzijts visscherije.” Tideman, _op. cit._, 119. Aitzema, _op. cit._, -iii. 708. - -[707] Cats’ _Verbael_. Tideman, 118. - -[708] Aitzema, iii. 713. Tideman, 124, 130, 132. The draft instructions -were dated (April 30)/(May 10), and were approved on May 6/16. A -translation of the 7th Article is as follows :“The superior officers -and captains either already in command of the aforesaid squadrons -or hereafter appointed, are to be charged to free the ships of this -country from all search by any one whatever, and to defend them against -all who try to do them injury, and to release them to the uttermost of -their power from every one who may have captured them, and further to -do whatever their ordinary instructions in their commission requires -in a sailor-like fashion for the service of the country.” By the 5th -Article, fifteen men-of-war were to be sent for the protection of the -“great” (herring) fishery, “which is of so great importance to the -State,” along with the ordinary national convoy-ships, and the ships -which the towns of Enkhuizen, Delft, Rotterdam, and Schiedam were -accustomed to add. Gardiner, _Letters and Papers_, i. 155. - -[709] Tromp’s memorandum was dated (28 Feb.)/(9 March), 1651. The -original is apparently lost (Tideman, _De Zee Betwist_, 68); but an -account of it is given by his contemporary, Aitzema (iii. 731), and -is printed in Appendix L. Tromp, in his _Rescript_ of 14/24 October -1652, justifying and explaining his conduct with regard to the meeting -with Blake, refers to a memorandum on the subject of the flag which -he presented to a committee of the States on “Jan. 6/16, 1650/1651,” -and which they considered in arranging his instructions of “(Feb. -21)/(March 3), 1650/1651” (Gardiner, _Letters and Papers_, i. 422). The -dates here are those given by Tideman. - -[710] “Sonderlinge de swackste sijnde.” - -[711] Tideman, _op. cit._, 68. _Resol. Holl._, 1/11 March 1651. - -[712] _Hollantsche Mercurius_, April 1651, p. 49: “Seer jalours, omdat -hij niet terstond gereedt was voor haar te strijcken.” - -[713] _Resol. St. Gen._, 7/17, 12/22 Oct. 1651. Aitzema, iii. 731. -Tideman, 68, 92. - -[714] _Add. MSS. Brit. Mus._, 11,684, fol. 30. - -[715] Bourne’s letter in _The Answer of the Parliament of the -Commonwealth of England to three Papers delivered to the Council of -State by the Lords Ambassadors Extraordinary of the States-General of -the United Provinces_: and also a _Narrative of the Late Engagement_, -&c., _Brit. Mus._, (517, k, 15)/(36), p. 12. - -[716] Letter to States-General, May 30. _Hollantsche Mercurius_, May -1652. _The Answer of the Parliament._ Geddes, 209. Tideman, 130. - -[717] Blake’s letter, _The Answer of the Parliament_, p. 8. - -[718] Tideman, 128, 129. Geddes, 210, 211. - -[719] Young’s despatch, 14th May 1652, in _The Answer of the -Parliament_, p. 20. Penn’s _Memorials_, i. 419. Tideman, 197. Gardiner, -_Letters and Papers relating to the First Dutch War_, i. 178. _The -French Occurrences_, &c., _Brit. Mus._, E, 665, 6. It may be noted that -Tromp, in his _Rescript_ to the States-General (see note, p. 398), -mentioned that Huyrluyt and van der Saen had received instructions to -strike only to royal squadrons. - -[720] In the Dutch writings the place was described as “Fairle,” -“Fayrleigh,” “Virly,” “Vierly,” &c. Its position is shown, as Fairlee, -in the reproduction of the chart from Selden in this book (Fig. 3, p. -121). - -[721] _The Answer of the Parliament._ Gibson, Collections of Naval -Affairs, _Add. MSS._, 11,684, fol. 5_b_. Geddes, _op. cit._, 212. -Gardiner, _op. cit._, ii. 118; _Letters and Papers_, i. 172. Tideman, -_op. cit._, 135. The Dutch accounts, which vary in certain particulars -from the English and from one another, are unanimous in saying that the -first broadside came from Blake’s ship, the _James_, which would have -been according to custom, since Tromp did not lower his flag after the -third shot. - -[722] See his memorandum, p. 398. Tromp wrote to Blake from Calais -four days afterwards ((23 May)/(2 June)), saying he had intended to -salute him, and asking for the restoration of a ship taken. In reply -Blake accused him of having sought out the English fleet, and “instead -of performing those usual respects which of right belong unto them, -and which yourself have often done,” had attacked him. In _The Answer -of the Parliament_, p. 11, it is said that one of the Dutch captains -who had been taken prisoner stated that when he struck to some English -men-of-war at Calais a few weeks before, Tromp asked him “why he did -strike sail to them,” saying, “Were you not as strong as they? And -being so, why were you afraid?” As the above-mentioned letter from -Tromp to Blake is given by Gardiner (_Letters and Papers_, i. 216) only -as “translated from a Dutch translation of the French original,” an -authenticated copy of the French original is given in Appendix M, from -Tideman (_De Zee Betwist_, App. C, p. 202). It is from the archives at -The Hague (_Lias Engeland_, 1652 (_Copie_), and is endorsed by Job. -Corñ. Rhees, and again by N. Ruysch, as identical with the authentic -copy. The original of Blake’s reply is also given. It is printed by -Gardiner as “retranslated from the Dutch translation” (_ibid._, i. -257), and differs in some points from the original. - -[723] _The Answer of the Parliament_, p. 4. - -[724] _Resol. St.-Gen._, (25 May)/(4 June), 3/13 June 1652. Tideman, -_De Zee Betwist_, 164. Articulen van Vreede ende Confederatie, -&c. _Brit. Mus._, 8122, ee. 12--“Dat hij aengaeñ het voeren ofte -strijcken van vlagge in de Rencontre mette Engelsche Vlooten of -Schepen hem bij provisie respectivelijck sal hebben te gedragen en te -reguleren in sulcker voegen als bij tijden van voorgaende Coningen van -Groot-Britaignen is gedaan ende gepractiseert geweest.” - -[725] Tideman, 171. - -[726] _State Papers, Dom._, xxiv. 15. - -[727] Cats, Schaep, and van de Perre to the States-General, 27th June -1652. _Add. MSS._, 17,677, U, fol. 162. Pauw was officially informed -by the Council of State that the fleet had put to sea “to execute its -designs.” Geddes, _op. cit._, 223. Gardiner, _Letters and Papers_, i. -301. The number of Blake’s fleet was variously stated as 60, 64, 66, -68, 72 vessels: 60 were counted passing Dunbar. - -[728] Letter from Leyden, 4/14 August 1652. _Mercurius Politicus_, -_Brit. Mus._, E, 673, 1. The accounts vary somewhat. _Severall -Proceedings in Parliament_, _Brit. Mus._, E, 796, 11. _A Perfect -Diurnall_, E, 796, 14. _French Occurrences_, E, 669, 6. _Onstelde-Zee_, -p. 34, (8122, ee. 6)/(11). _Hollantsche Mercurius_, 1652, p. 70. -Gibson in his narrative (_supra_) says he was on board one of the -ships (the _Assurance_) that attacked the busses, and that they found -them “northwards of the Dogger Bank”; but there is no doubt that the -locality was far north of the Dogger, off Buchan Ness, _Brit. Mus. Add. -MSS._ 11,684. - -[729] _Memoirs of Edward Ludlow_, 420. - -[730] _Proc. Council of State_, 20th July 1652. - -[731] _Resol. Holl._, 1652, pp. 343, 364, 387. _Hollantsche -Mercurius_, 1652, p. 86. Beaujon, _Hist. Dutch Fisheries_, 363. _Groot -Placaet-Boeck_, ii. 506. Aitzema, _Saken van Staet_, iii. 810. Penn’s -_Memorials_, i. 526, 527. _State Papers, Dom._, xxv. 25; xxxii. 15; -xxxvi. 15, 29, 55; xxxviii. 116; xxxix. 73; xli. - -[732] The Declaration and Speech of the Lord Admiral Vantrump, and -his setting up a great Standard of Broom for the States of Holland, -for the Cleering of the Narrow Seas of all Englishmen: New Broom -sweepes clean, p. 4. _Brit. Mus._, E, 689, 13. A Perfect Account of -the Daily Intelligencer, _Brit. Mus._, E, 689, 14. Gardiner, _Hist. of -Commonwealth_, ii. 151. Geddes, _op. cit._, 270, 319. - -[733] _Journals of the House of Commons_, vii. 145. - -[734] _State Papers, Dom._, _Interregnum_, xxix. 42-47. - -[735] This collection is in a treatise in the British Museum (_Harleian -MSS._, 4314), entitled “The Sovereignty of the English seas vindicated -and proved by some few Records (amongst many others of that kynd) -remayning in the Tower of London,” Collected by William Ryley, senior. -Among the State Papers (_Dom._, xxxv. 35) is a copy of the ordinance -of John, in Latin, French, and English, endorsed by Bradshaw, “A -transcript of a record in the time of King John touching the striking -of sail; brought in by Mr Ryley, Keeper of the Records in the Tower, -by order of the Council of State.” It contains the following note by -Ryley, referring, presumably, to the _Black Book of the Admiralty_: -“The French is in a very ancient and fair MS. book amongst the rest of -the maritime laws, and undoubtedly was a record of the Admiralty Court, -then in the possession of the registrar of that Court, the names of the -Lord Admiral and registrar being written at the beginning of the book, -which is now remaining with Mr Selden, and is of no less authority than -antiquity.” - -[736] _State Papers, Dom._, _Interregnum_, xxix. 48. - -[737] Masson, _Life of Milton_, iv. 149, 226. - -[738] _Of the Dominion or Ownership of the Sea, written at first in -Latin and entituled_ Mare Clausum seu De Dominio Maris _by John Selden, -Esqr: translated into English and set forth with some Additional -Evidences and Discourses_ by Marchamont Needham. Published by special -Command, London, 1652. Another edition, by “J. H. Gent,” was published -in 1663, “perfected and restored.” It is, however, so far as Selden’s -text is concerned, merely Needham’s translation, careful inspection -showing that it was printed from the same type. - -[739] _State Papers, Dom._, _Interregnum_, xxxiv. 31-49; vol. 33, No. -14. The copy belonging to Cromwell, and bearing his autograph, was sold -in 1908. - -[740] In some dedicatory verses Neptune thus addresses the Great -Commonwealth of England:-- - - “Go on (great State!) and make it known - Thou never wilt forsake thine own, - Nor from thy purpose start: - But that thou wilt thy power dilate, - Since Narrow Seas are found too straight - For thy capacious heart. - So shall thy rule, and mine, have large extent: - Yet not so large, as just, and permanent.” - -The work appeared when Tromp was lord of the narrow seas; the preface -is dated 19th November, the day before Blake’s defeat. - -[741] _De Dominio Serenissimæ Genvensis Reipublicæ in Mari Ligustico._ -Rome, 1641. - -[742] _Maris Liberi vindiciæ adversus Petrum, Baptistam Burgum -Ligustici Maritimi Dominii Assertorem._ Hagæ Comitum, 1652. - -[743] Cap. vi. p. 118. See _supra_, p. 367. - -[744] _Joannis Seldeni vindiciæ secundum integritatem existimationis -suæ, per convitium de Scriptione Maris Clausi, petulantissimum -mendacissimumque insolentius læsæ in Vindiciis Maris Liberi adversus -Petrum Baptistam Burgum, Ligustici Maritimi Dominii assertorem. Hagæ -Comitum jam nunc emissis._ London, 1653. - -[745] _Maris Liberi Vindiciæ adversus Gulielmum Welwodum Britannici -Maritimi Dominii assertorem._ Hagæ Comitum, 1653. Other works were -Mord. von der Reck, _Disputatio juridica de Piscatione_, 1652; Martin -Schook, _Imperium Maritimum_, Amsterdam, 1653; Stephen S. Burman, _Mare -Belli Anglicani injustissimè Belgis illata_, Helena, 1652. The latter -contains a pretty full account of the old “Burgundy” treaties, and of -others concluded by England with various countries in the seventeenth -century, in which, as the author points out, no claim was made to the -sovereignty of the seas. - -[746] For example, Robinson, _Briefe Considerations concerning the -Advancement of Trade and Navigation_, 1649. - -[747] Stubbe, _A Further Justification_, 91. - -[748] Geddes, i. 282, 289, 292. Gardiner, ii. 128, 183, 329. Aitzema, -iii. 804. - -[749] Geddes, i. 315. Gardiner, ii. 340. _Verbael gehouden door de -Heeren H. van Beverningk, W. Nieuport, J. van de Perre, en A. P. -Jongestal, als Gedeputeerden en Extraordinaris Ambassadeurs van de -Heeren Staeten Generael der Vereenigde Nederlanden, aen de Republyck -van Engelandt_, i. 7, 12. - -[750] Clarendon, _The History of the Rebellion and Civil Wars_, vi. -607. Gardiner, _op. cit._, ii. 111. - -[751] _Verbael of the Ambassadors_, 10, 21, 35. - -[752] _Ibid._, 84. Thurloe’s _State Papers_, i. 394. - -[753] 21st July 1653. _Verbael_, 53. - -[754] 25th July, _Verbael_, 56, 59, 62. Geddes, i. 341. Thurloe, i. 382. - -[755] The Deputies to the Council, (27 July)/(6 August); reply of the -Council, 1/11 August. _Verbael_, 64, 66, 70. - -[756] _Verbael_, 75, 142, 143, 150. Thurloe, i. 370, 417, 418. Geddes, -i. 362. Gardiner, ii. 350, - -[757] _Verbael_, 155. “7. Dat alle schepen onder het ressort van -haer Ho. Mog. t’ huys behoorende, in alle rencontres in de Zee, aen -Oorloghschepen van de Republyck van Engelandt sullen draegen het -selvige respect, ende deselve eere doen, als sy ooit voor desen syn -gewoon geweest te doen.” - -[758] Stubbe, _A Further Justification_, 92. Stubbe says he had -an account of part of the proceedings from one of the English -commissioners; he had also the use of official manuscripts. - -[759] _Verbael_, 189. “Syn Excellencie ... gesyt ... dat sy daerom -voor af meenden, dat moeste vaststellen haer Reght ende Dominie in de -naeuwe Zee, ende het stuck van haere Visscherye, ende ... eyndelyck -besluytende dat die pointen van de Zee ende Visscherye geadjusteert -synde, het vordere werck seer souden faciliteren.” - -[760] _Verbael_, 189, 190, 196, 198, 214. - -[761] Art. xviii. _Verbael_, 203. - -[762] Stubbe, _A Further Justification_, 62. - -[763] Art. xv. - -[764] Gardiner, _Letters and Papers_, i. 49, 170. - -[765] Art. xvi. _Verbael_, 203. - -[766] Art. xiv. “That the inhabitants and subjects of the United -Provinces may, with their ships and vessels, furnished as merchantmen, -freely use their navigation, sail, pass and repass in the seas of Great -Britain and Ireland, and the Isles within the same, (commonly called -the British Seas) without any wrong or injury to be offered to them, by -the ships or people of this Commonwealth, but on the contrary shall be -treated with all love and friendly offices; And may likewise with their -men of war not exceeding such a number as shall be agreed upon in this -treaty, sail, pass and repass through the said seas, to and from the -countries and parts beyond them: but in case the States-General shall -have occasion to pass the said seas with a greater number of ships of -war, they shall give three months before notice of their intentions to -the said Commonwealth, and obtain their consent for the passing of such -fleet, before they put them forth upon these seas, for preventing all -jealousies and misunderstandings between the States by means thereof.” -_Verbael_, 202. - -[767] Sir H. Vane, who was the chief director of the war, is reported -to have said that the interests of the two countries “were as -irreconcilable as those of rivals, trade being to both nations what a -mistress is unto lovers; that there never could intervene any durable -peace, except both nations did unite by coalition, or the English -subjugate the others and reduce them into a province, or by strict -conditions and contrivances ensure themselves against the growth and -future puissance of the Dutch.” Stubbe, _op. cit._, 119. - -[768] The Ambassadors to the States-General, 18/28 November. _Verbael_, -215. Geddes, i. 372. - -[769] _Verbael_, 216, 219. - -[770] _Verbael_, 229, 230, 236. - -[771] See pp. 78-81. - -[772] Art. xviii. “Antiqui intercursus et commercii tractatus, -provisionaliter pristinam vim et auctoritatem obtineant.” - -[773] Beukelsz, who invented the modern method of pickling herrings, is -said by some to have died in 1347, by others in 1397, and by a few in -1401. Stubbe says the deputies assigned the year 1414 to the discovery, -but no year is mentioned in their report. - -[774] _Verbael_, 237, 238, 240-243. Stubbe, _op. cit._, 64. - -[775] The statement referred to the licenses for fishing on the Zowe. -See p. 65. - -[776] Whitelock to Thurloe, 10th March 1654. Thurloe’s _Collection_, -ii. 158. - -[777] Council of State Order Book, 6th Aug. 1653. _State Papers, Dom., -Interregnum._ - -[778] Dumont, _Corps Diplomatique_, VI. ii. 125. “X. Subditis -Serenissimi Regis Sueciæ liberum erit, per Maria atque Littora, quæ in -Ditione hujus Reipublicæ sunt, piscari, atque Haleces, aliosque Pisces -capere; dummodo mille Navium numerum piscantes non excedant. Neque -inter piscantes ullum iis impedimentum, aut, molestia asseratur Neque -à Navibus præsidiariis hujus Reipublicæ, neque ab iis quibus Diplomate -permissum est, res suas privatim suo marte repetere, nec a piscantibus -in Boreali plagâ Britanniæ, piscationis nomine onera aliqua exigantur, -immo omnes humaniter atque amice tractentur, usque retia in Littore -siccare, quemque opus est commeatum ab eorum Locorum Incolis, justo -pretio comparare sibi licebit.” - -[779] Stubbe, _op. cit._, 68. Robinson, _England’s Safety in Trades -Encrease_, 1641. Ibid., _Considerations Concerning the Advancement of -Trade and Navigation_, 1649. - -[780] The Deputies to the States-General, 7/17 December 1653. -_Verbael_, 246. - -[781] It may be noted that Philip Meadows now became Latin Secretary -to the Council in place of Milton. He was afterwards an extremely able -opponent of the English claims to the sovereignty of the sea, and wrote -the best book against them. See p. 524. - -[782] _Verbael_, 260, 261. MS. Commentary, Stubbe, _op. cit._, 60. - -[783] “Ende dat sy alleenlyck spraecken van de naeuwe Zee.” - -[784] _Verbael_, 231. - -[785] _Verbael_, 272. - -[786] Stubbe, _op. cit._ Geddes has shown that Beverning, acting -secretly with De Witt, had clandestine communications with Cromwell as -early as 8th December, clearly with reference to the exclusion of the -Prince of Orange. _Op. cit._, i. 385. - -[787] _Verbael_, 273. - -[788] Ad. 15. ut ad angustum mare (quod Britannicum vocant) ibique ad -certas regulas cum distinctione locorum et littorum ita restringatur, -ut idem ille honor eademque dignitas, quæ vexilli supremi et veli -dimissione unquam delati aut observati fuerunt, in posterum adhuc -deferantur, et observentur. _Verbael_, 275. - -[789] “Ende met eenen voortgaende tot het 15 Artikel raekende het -stryken van de Vlagge, &c., syn wederom gerepeteert alle de argumenten -ende redenen, die in voorige Conferentien syn geallegeert geweest, -ende wierdt ten uytersten by den Heer Generael daer in gepersisteert, -alleenlyck, dat hy die explicatie byvoeghde op haere laetste antwoorde, -daer sonder eenige distinctie van de rencontres in zee gesprooken -wordt, dat sy dat verstonden van de naeuwe Zeën die de Britannische -Zeën genoemt worden.” _Verbael_, 278, 27 December 1653/4 January 1654. - -[790] _Secrete Resol. St. Generael_, 9/19 Feb. 1654. _Verbael_, 300. - -[791] “Met seer scherpe woorden, ende hatelycke illatien tegensprack.” -_Ibid._, 307. - -[792] _Ibid._, 320. “Angustum mare, quod vulgo Britannicum mare -appellatur.” - -[793] “Tot de naeuwe Zee expresselyck gerestringeert.” _Ibid._, 288. - -[794] _Verbael_, 283, 285, 289. - -[795] Geddes, _op. cit._, i. 380. - -[796] _Ibid._, 290, 293, 311, 319. Geddes, i. 378-393. Gardiner, _op. -cit._, ii. 368, 369. - -[797] “Gelyk sy in ’t 14 van de 27 Artikelen haere Brittannische Zën -selver gedefinieert hadden.” _Verbael_, 396. - -[798] “Daer op syne Hoogheyt in colere seyde, dat sonder de versoghte -elucidatie ende interpretatie, hy de Ratificatie niet konde -uytwisselen.” _Ibid._, 397. - -[799] Next day Cromwell entertained the Dutch ambassadors and their -wives to a sumptuous banquet, and after dinner he passed them a paper -with the remark, “We have hitherto exchanged many papers, but in my -opinion this is the best.” It was the first verse of Psalm cxxxiii., -which they all then sang together solemnly-- - - “Behold, how good a thing it is, - And how becoming well, - Together such as brethren are - In unity to dwell.” - -_Verbael_, 419. Aitzema, iii. 927. Geddes, i. 422. - -[800] Dumont, _Corps Diplomatique_, VI. ii. 75. _Verbael of the -Ambassadors_, 356. - -[801] XIII. Item, quod naves et navigia dictarum Fœderatarum -Provinciarum, tam bellica et ad hostium vim propulsandam instructa, -quam alia, quæ alicui e navibus bellicis hujus Reipublicæ in maribus -Britannicis obviam dederint, vexillum suum e mali vertice detrahent, -et supremum velum demittent, eo modo, quo ullis retro temporibus, sub -quocunque anteriori regimine, unquam observatam fuit. - -[802] Lawson, from the _Fairfax_, at Aberdeen, to the Admiralty -Committee, 13th May 1654. Same to Blackburn, 13th May. _State Papers, -Dom._, lxxi. 78, 79. - -[803] Cockraine to the Admiralty Committee, 11th Aug. 1654. _Ibid._, -lxxiv. 39. - -[804] Heaton to the Admiralty Committee, 15th Aug. 1654. _State Papers, -Dom._, lxxiv. 61, 62. - -[805] The Skagerreef or Scaw, the north point of Jutland, Denmark. -The ships were going to the north in connection with the war between -Denmark and Sweden. - -[806] Richard Cromwell, the Protector, to General Montague, 18th March -1659. Thurloe’s _Collections_, vii. 633. - -[807] The Information of William Gunnell, and others, of Great -Yarmouth, 25th September 1654. _Verbael of the Ambassadors_, 600, 601. - -[808] _Ibid._, 612, 614, 646, 689, 711. From the sworn depositions made -before the Burgomasters of Enkhuisen, it appears that that town had at -least 246 busses at the Yarmouth fishing in 1654. - -[809] _Brit. Mus. MSS. Stowe_, 152, fol. 135. - -[810] Proc. Council of State, 9th June 1654. Vice-Admiral Lawson, in -transmitting to the Admiralty the request from the Governor of Calais, -said it had been the practice for the French and Spanish men-of-war to -suffer the fishermen of each nation to fish freely, although the war -between these Powers had lasted so long. _State Papers, Dom._, xcviii. -13. - -[811] Bills to repeal it were introduced into the Commons in 1656, -1657, and 1658. _Commons’ Journals_, vii. 451, &c. - -[812] _An Act for the Encouraging and Increasing of Shipping and -Navigation_, 12 Car. II., c. 18, cl. v. 1660. - -[813] _An Act for the Encouragement of Trade_, 15 Car. II., c. 7, ss. -xiii., xiv. 1663. - -[814] _An Act against importing Cattle from Ireland and other parts -beyond the Seas, and Fish taken by Foreigners_, 18 & 19 Car. II., c. -2, s. ii. Any ling, herring, cod, pilchard, fresh or salted, dried or -bloated, or any salmon, eels, or conger, taken by aliens and brought -into the realm, were liable to be seized by any person for his own -benefit and the benefit of the poor of the parish. The prohibition to -import stockfish and live eels was withdrawn by 32 Car. II., c. 2, 1680. - -[815] “To the High and Mighty Monarch Charles ye Second, &c., the -humble petition of Simon Smith, late agent for the Royall Fishing,” MS. -prefixed in a copy of _The Herring-Bvsse Trade_, and _A True Narration -of the Royall Fishings of Great Brittaine and Ireland_, bound together -in vellum, elaborately ornamented in gold, and bearing the royal arms -and the letters C. R. on both sides. - -[816] Sir Edward Nicholas to the Lord Mayor, 23rd July 1660. -_Remembrancia_, p. 143. There is an undated copy among the State Papers -(_Domestic_) erroneously calendared under September 1662 (vol. lix. -6: compare vol. xli. 19, under date September 1661). The original is -in the Guildhall. Simon Smith was employed in the preliminary work -connected with the Society, and in 1662 rendered an account of his -disbursements, amounting to £456, including £150 “for setting the poor -to work so as to breed up teachers for making nets, &c.” _State Papers, -Dom._, liv. 77. - -[817] _Commons’ Journals_, viii. 179. _State Papers, Dom._, Charles -II., xxi. 27. - -[818] _Commons’ Journals_, viii. 203, 215, 222, 228. _Lords’ Journals_, -xi. 228_b_. According to the Dutch ambassador, the Bill was not passed -without much debate and opposition (De Witt’s _Brieven_, iv. 68), no -doubt principally owing to the provisions concerning fish-days. An -amendment was carried limiting Wednesday to be a fish-day in all inns, -taverns, and victualling houses. - -[819] _Lords’ Journals_, xi. 239. De Witt’s _Brieven_, iv. 66. The -preamble was of the usual kind: that the honour and greatness of the -king and the power and wealth of the kingdom depended upon shipping and -commerce, the fisheries being one of the greatest means thereto; and -it proceeded to say that the kingdom was specially suited for fishery -by reason of the number of harbours, and the sea from which foreign -nations took such great wealth, set their people on work, and made -their towns populous and prosperous. The foreigners were not content -with a temperate and moderate exercise of the liberty of fishing on -our coasts, which was permitted to them by favour of the king, but -fished with illegal instruments which served to destroy the brood of -fish in some places, causing the greatest poverty; and in other places -they came with whole fleets among the nets and boats of subjects, to -the great damage and hindrance of their lawful business. The king was -therefore most humbly beseeched to establish completely and vigorously -and maintain the rights of his crown over the seas, and to give such -orders and instructions to the admirals and commanders at sea as might -be necessary to this effect. The first clause prohibited trawling, -whether by subjects or foreigners, within eight miles of the coast of -Sussex and the coast to the westwards, and other clauses prohibited the -use of set-nets or other nets with small meshes on the coast “or within -half seas over,” or the use of seines by foreigners within ten miles of -any part of the coast to the hindering of subjects in their fishing. -Offenders were to be brought in as prize. These provisions were in part -aimed against the French. - -[820] _Act for the Fishings and Erecting of Companies for promoting the -same_, 12th June 1661. _Acta Parl. Scot._, vii. 259. - -[821] _Records Convent. Roy. Burghs_, iii. 523, 15th September 1660. -The commissioners, taking into consideration how advantageous it would -be to the increase of trade and the common weal of the whole burghs -and kingdom “that the fisching tread be erected within the samyn, and -wnderstanding by thair registeris and wther paperis in thair clarkis -handis that the said tread hes bein endevoured in former tymes but not -takin full effect,” instructed that the records be searched, and the -matter represented to Parliament. - -[822] _Rec. Conv. Roy. Burghs_, iii. 626. _Acta Parl. Scot._, vii. 64, -103, 195, &c. _Ibid._, William and Mary, c. 103. - -[823] _State Papers, Dom._, xli. 20. - -[824] ΙΧΘΨΟΘΗΡΑ, _or the Royal Trade of Fishing, Discovering the -inestimable Profit the Hollanders have made thereof, with the vast -Emoluments and Advantages that will redound to his Sacred Majesty and -his three Kingdoms by the Improvement of it. Now seasonably published -by Command for the Benefit of the Nation._ London, 1662. - -[825] _State Papers, Dom._, 1663, lxxiii. 56; lxxxvi. 104, 105, 106; -xci. 53; ciii. 130; cix. 2. “But Lord!” says Pepys, “to see how -superficially things are done in the business of the Lottery, which -will be the disgrace of the Fishery, and without profit.” _Diary_, iv. -369 (ed. 1893). - -[826] _Commons’ Journals_, viii. 378, 383. 14 Car. II., c. 28. - -[827] Lord Southampton to the Masters of the Trinity House, 31st -July 1662. The Masters to the Lord Treasurer, 23rd August. The Lord -Treasurer to the king, 2nd Sept. _State Papers, Dom._, lix. 7; _Entry -Book_, vii. 258. Pepys’ _Diary_, ii. 403, 404. - -[828] _Commons’ Journals_, viii. 497, &c. _Lords’ Journals_, xi. -555, &c. 15 Car. II., c. 16. All herrings, white or red, were to be -“justly and truly packed, and of one time of taking, salting, saving, -or drying, and equally well packed in the midst and every part of the -barrel.” This was to be done by a sworn packer, and the barrel branded -after the Dutch method. - -[829] John Collins, _Salt and Fishery_, 2. 1682. - -[830] _State Papers, Dom._, ciii. 130. - -[831] _Diary_, vol. iv. 177, 192, 233, 263, &c. - -[832] The ambassadors were Van Beverwaert (Louis of Nassau), Simon van -Hoorn, the burgomaster of Amsterdam, Michael van Gogh, and Joachim -Ripperda. Pontalis, _John de Witt_, i. 263. _Brieven, geschreven -ende gewisselt tusschen de Heer Johan de Witt, Raedt-Pensionaris -en Groot-Segelbewaerder van Hollandt en West-Vrieslandt, ende de -Gevolmaghtigden van den Staedt der Vereenigde Nederlanden_, &c., iv. 1, -46. - -[833] De Witt’s _Brieven_, iv. 109, 119. Clarendon’s _Memoirs_, iii. -434. There are numerous papers referring to these negotiations and -the subsequent treaty, including “the articles which the States’ -Ambassadors Extraordinary are to procure from his Majesty of Great -Britain,” among _State Papers, Foreign Treaty Papers (Holland)_, -1651-1665, Bdl. 46. - -[834] _Res. Holl._, 13th Sept. 1659, 261. _Ibid._, 1660, p. 749; 1661, -p. 181. - -[835] _Hollantsche Mercurius_, 1661, pp. 9, 10. De Witt’s _Brieven_, -iv. 48, 61, 68, &c. - -[836] De Witt to Van Beuningen, 27 December 1660/6 January 1661; the -same to Van Beverwaert and Van Hoorn, 4/14 Jan. 1661; Van Beverwaert -to De Witt, 3/13, 4/14 Jan. 1661. _Brieven_, i. 344; iv. 65, 66, 68. -Pontalis, _John De Witt_, i. 267. - -[837] “Dutch Amb^{rs} Memoriall desiring the Act of Parliament -about fishing may not pass,” 17th Dec. 1660. Copy in _S. P., Dom._ -Collection, Chas. II., vol. 339, p. 581. It is to the effect that -the extraordinary ambassadors were informed that a Bill had been -introduced into the Lower Chamber regarding the herring fishery, in -which foreigners were to be prohibited from fishing within eight or -ten “leagues” (“huiet ou dix lieuës”) from the coast, and praying the -king to prevent the said Bill from becoming an Act of Parliament. -It contains the usual arguments as to immemorial possession, treaty -rights, &c. - -[838] _Brieven_, i. 344; iv. 66, 69, 81, 87, 89, 105, 109. - -[839] Boreel to De Witt, (25 Nov.)/(5 Dec.) 1653. _Ibid._, i. 54. - -[840] Letters from Van Beuningen to De Witt, 1/11 Feb. 1661 to (20 -Feb.)/(2 March) 1662; from De Witt to Van Beuningen, 3/13 Oct. 1661 to -12/22 March 1662. _Brieven_, i. 432-514. _Secreete Resolutiën van de -Staaten van Holland en West-Vriesland_, ii. 246. Pontalis, _John de -Witt_, i. 276. Pontalis scarcely grasps the question of the fishery -when he says: “The free right of fishing still more directly concerned -the States-General; they could not prevail in England to allow them -the enjoyment of it, _so long as it had not been accorded to them by -France_, and they therefore made it a condition of their treaty with -Louis XIV.” - -[841] Dumont, _Corps Diplomatique_, VI. ii. 412. Aitzema, _Saken -van Staet en Oorlogh_, x. 305. The article was as follows: “IV. -L’obligation reciproque de s’entr’aider et deffendre, s’entend aussi -pour estre Sa Majesté et lesdits Seigneurs Estats Generaux, leurs Pays -et Sujets, conservez et maintenus en tous leurs Droits, Possessions, -Immunitez et Libertez, tant de Navigation, que de Commerce et Pêche, -et autres quelconques par Mer et par Terre, qui se trouveront leur -appartenir par le Droit commun, ou estre acquis par des Traitez faits -ou à faire, en la maniere susdite, envers et contre tous Roys, Princes, -Republiques, ou autres Estats Souverains,” &c. - -[842] “Herr Downingh de voorsz. antwoorde begonde te justificeren, -door de gepretendeerde Souverainiteyt van de Engelschen op de Zee, -... ende hebbe ick rondt uyt verklaert, dat eer wy die imaginaire -Souverainiteyt souden erkennen, ofte by maniere van concessie van de -Engelschen ontfangen, die vryheydt tot het bevaeren ende bevisschen van -de Zee, die ons van de nature, ende nae ’t Volckeren-reght competeerde, -wy alle den laetsten druppel bloedt daer by souden laeten.” De Witt to -Van Beverwaert and Van Hoorn, 14/24 June 1661 (_Brieven_, iv. 144); the -same to Van Beuningen, 4/14 Dec. 1661 (_ibid._, i. 471). - -[843] Dumont, _op. cit._, VI. ii. 424. “X. Item, quod naves et navigia -dictarum Fœderatarum Provinciarum, tam bellica et ad hostium vim -propulsandam instructa, quam alia, quæ alicui e navibus bellicis dicti -Domini Regis Magnæ Britanniæ in maribus Britannicis obviam dederint, -vexillum suum e mali vertice detrahent, et supremum velum demittent, eo -modo quo ullis retro temporibus, unquam observatam fuit.” - -[844] _State Papers, Dom._, lv. 14. - -[845] _State Papers, Dom._, xliv. 64. Pepys’ _Diary_, ii. 135, 151. -According to Rugge (_Brit. Mus. Add. MSS._, 10, 116), quoted by Lord -Braybrooke, Holmes insisted upon the Swede’s lowering his flag, and -had even fired a shot to enforce the observance; but the ambassador -sent a message to the English frigate to assure the captain, on the -word of honour of an ambassador, that the king by a verbal order had -given him leave and a dispensation, and upon this false representation -he was allowed to proceed. The Swedes, it may be added, were always -disinclined to strike to English ships. - -[846] Pepys’ _Diary_, ii. 145, 146, 148, &c. - -[847] Pontalis, _op. cit._, i. 313. It would appear that on a previous -occasion Lawson had returned the salute with the flag, for in the -controversy with France on the striking of the flag a few years later, -the Dutch stated, as an instance of the custom with England, that -Lawson had shown this courtesy to De Ruyter off Tangiers. De Witt’s -_Brieven_, ii. 474. - -[848] _Commons’ Journals_, viii. 548, 553; _Lords’ Journals_, xi. 599, -614; _Parlt. Hist._, iv. 291, 308; Clarendon’s _Memoirs_, ii. 235-237, -288; Hume, _Hist. of England_, lxiv.; Pepys’ _Diary_, iv. 31, 42, &c.; -Pontalis, _John de Witt_, i. 309. - -[849] _The Dutch Drawn to the Life_, 1664. “Never was anything so -unanimously applauded by men of all persuasions and interest as a Dutch -Warre, which is the universal Wish of the people.” - -[850] 16 & 17 Car. II. - -[851] The king to the Duke of York, 22nd March 1665. _State Papers, -Dom._, cxv. 76. - -[852] The author of _The Dutch Drawn to the Life_ expatiated on -the inestimable benefit the Dutch derived from the British seas -by encroaching on our fisheries, and asserted that the only way -to keep them under was “by commanding the narrow sea, their coast -and ours,”--the narrow sea, according to this writer’s view, or at -least the “right and dominion of England,” extending as far as the -Mediterranean (p. 75). - -[853] See Mahan, _The Influence of Sea Power upon History_; Colomb, -_Naval Warfare_; Pontalis, _op. cit._; Clarendon’s _Memoirs_, ii. 111. - -[854] _Groot Placaet-Boeck, inhoudende de Placaten ende Ordonnantien -van de H. M. Heeren Staten Generael der Vereenighde Nederlanden_, iii. -291-293. _Resol. Holl._, 1665, 24, 59, 78, 210, 383. _State Papers, -Dom._, cxiv. 104. _Ibid._, _Warrant Book_, 18, p. 213; 23, pp. 283, -475. _Ibid._, clxxviii. 172. - -[855] _S. P., Dom._ Collection, Chas. II., vol. 339, p. 591. It is a -copy in English. The petition was from the “Burgomasters, Eschevins, -Counsellors, and the rest of the body of Citizens.” - -[856] “Warrant to ye Lord Chancellor for affixing ye great seale to an -instrument containing a grant of fishinge in these seas for a certain -number of boates belonging to ye City of Bruges, yearely,” July 17, -1666. _State Papers, Warrant Book_, 23, p. 27. “Patent in favour of the -Citie of Bruges in fflanders for a libertie of fishing in the British -Seas with 50 saill of ships,” 29th August 1666. _Advoc. MSS._, 25. -3. 4. The draft or copy of the Royal Letter which followed upon the -Warrant is given in Appendix N. - -[857] See p. 617. - -[858] _Resol. Holl._, 11/21 Jan. 1665, p. 54. _Hollantsche Mercurius_, -15th Oct. 1665, p. 143. _State Papers, Dom._, 4th Nov. 1665, cxxxvi. 35. - -[859] _Groot Placaet-Boeck_, iii. 295, 296. - -[860] _State Papers, Dom._, clxvi. 8, 46, 77, 100; clxvii. 148; clxxv. -146; clxxxi. 113. - -[861] _Ibid._, clxxi. 30; clxxii. 7, 41. At the Yarmouth fishing this -year (1666) “the sea was fuller of herrings than was ever known”; no -sooner were the nets in the water than they were full of fish, and many -herrings had to be thrown overboard, so that it was locally rhymed, -“twelve herrings a penny fills many a hungry belly.” The exceptional -abundance was attributed by the fishermen to the war having practically -put a stop to the Dutch fishing off our coast, so that the shoals -came to the inshore grounds in a body and not broken up. The herring -fishing was also unusually successful during the third Dutch war. In -1666, however, the herring fishing in Ireland was likewise uncommonly -productive. _Ibid._, clxxiv. 52, 100, 129, 156; clxxv. 49. - -[862] _Resol. Holl._, 21 June/1 July 1667, p. 210. _State Papers, -Dom._, ccxvi. 143; ccxvii. 77. - -[863] De Witt to Van Beuningen, 12/22 July 1666 to 18/28 July 1667; -Van Beuningen to De Witt, (21 June)/(1 July) 1666 to 12/22 July 1667. -“Raisons par lesquelles il paroît, que le contre-salut du Pavillon, -aux rencontres des Flotes de Sa Majesté Très-Chrétienne et des États -Généraux, est d’une justice toute évident.” De Witt’s _Brieven_, ii. -473, &c. Pontalis, _op. cit._, i. 353. - -[864] _Articles touching Navigation and Commerce, concluded at Breda_, -21/31 July 1667. - -[865] “Dat de scheepen van oorlois (_sic_) van den Coninck van Groot -Brittannien door die van desen staet met het strijcken van de vlagge -gesalveert werdende, van haere sijde vervolgens met het strijcken van -haere vlagge contra salueren sullen.” Extract from _Secret Resolution, -States-General_, 11th May 1667, Instructions to Ambassadors. _Treaty -Papers (Breda)_, 1667, Bdl. 73. - -[866] Art. xix. See p. 455. Van Beuningen to De Witt, 5/15 April 1667. -De Witt to Van Beuningen, 18/28 April, 20/30 June, (27 June)/(1 July) -1667. _Brieven_, ii. 483, 487, 528, 533. - -[867] _Treaty of Breda_, Art. vii. It may have been in connection with -the interpretation of this clause that the High Court of Admiralty -asked the Trinity House their opinion as to the end of the English -Channel westwards, and got the following answer: “We shall not -presume,” said the Masters, on 2nd January 1668, “to determine matters -that have for some ages past been controverted, and for anything that -we at present know have not had a full resolution or any precedent -for deciding questions relating thereunto;” but the opinion of “the -past and present age,” with which they concurred, was that when -any commander brought Scilly N.N.W. he had entered “the Channel of -England.” _Brit. Mus. Add. MSS._, 30,221. - -[868] _Treaty of Peace and Alliance between Charles I. and Louis XIV., -concluded at Breda_, 21/31 July 1667. Article xvii. - -[869] _Treaty of Peace and Alliance between Charles II. and Frederick -III., concluded at Breda_, 21/31 July 1667. Art. ii. - -[870] In the negotiation of subsequent treaties, controversy was -usually occasioned about the wording of these articles relating to -the date of cessation of hostilities on the sea, the United Provinces -or France pointing to the treaty of Breda as a precedent, while the -English took their stand on Cromwell’s treaty of 1654. In the treaty -of Ryswick in 1697, between the United Provinces and France, the term -“British Channel” was employed in conjunction with the Baltic and North -Sea (Art. ii.); and in the treaty between William III. and Louis, -signed at Ryswick on the same day, the words were “in the British and -North Seas, as far as the Cape St Vincent” (Art. x.) In the negotiation -with France in 1712 for a suspension of hostilities, the French -insisted on the words, “the seas which surround the British Isles,” -citing the treaty of Breda, while the British were equally obstinate -to have the term _in maribus Britannicis_ inserted, as in the treaty -of 1654, arguing that the “error” of Breda had been rectified in the -later treaty of Ryswick; the result being that in one article “the -Channel, the British Sea, and the North Sea” were specified, and in -another the phrase was “in the Channel and North Sea.” Dumont, _Corps -Diplomatique_, VIII. i. 306. Burchett, _A Complete History of the Most -Remarkable Transactions at Sea, &c._, p. 38. - -[871] See p. 474. - -[872] This was the farthing known later as the “Lucas farthing,” from -the gibes of Lord Lucas in his attack on the king’s policy made in the -debate on the Subsidy Bill in the House of Lords in 1670. Speaking -of the scarcity of money in the kingdom, he said: “What supply is -preparing for it, my Lords? I hear of none, unless it be of copper -farthings; and this is the metal that is to indicate, according to the -inscription on it, ‘The Dominion of the Four Seas.’” _Parl. Hist._, iv. -473. - -[873] “Omtrent het point van de Vlagge, saegen wy alhier seer gaerne -iets seeckers gedetermineert, ten minsten dat wy moghten weten waer -mede men buyten nieuwe feytelyckheydt ende Oorloge konde verblyven; dat -een Fregatje ofte een Kitsje een gantsche Oorloghs-Vloote soude doen -strycken, is notoirlyck intolerabel.” De Witt to Meerman, 12/22 June -1668. The same to the same, (29 Feb.)/(9 March), 3/13, 7/17 April, (24 -April)/(4 May), (22 May)/(1 June) 1668. De Witt to Meerman and Boreel, -17/27 March, (29 May)/(8 June) 1668. Meerman to De Witt, (28 March)/(7 -April), 6/16 June 1668. De Witt’s _Brieven_, iv. Sir William Temple to -Lord Arlington, 2/12 Feb., 6/16 March 1668; the same to the Lord-Keeper -Bridgeman, (25 Oct.)/(4 Nov.) 1668. _Works_, iii. 134, 199, 348. -_State Papers, Dom._, 1668, ccxxxv. 49, 62; _ibid._, 1665, cxxiii. 67. -Aitzema, _Saken van Staet en Oorlogh_, v. 390. - -[874] The king to the Duke of York, 31st Oct. 1669. _State Papers, -Entry Book_, 31, fol. 37. - -[875] Pepys’ _Diary_, 20th Dec. 1668, viii. 184. - -[876] Pontalis, _op. cit._, ii. 24. - -[877] The king to the Duke of York, 26th June 1669. _State Papers, -Entry Book_, 31, fol. 29. Instructions by the Duke of York to Sir -Thomas Allin, 6th July 1669. _Ibid._, cclxii. 120. A marginal -memorandum on the latter document says, “This rule was adjusted with -Colbert, the French Ambassador here, _but nothing passed in writing but -this_.” - -[878] _State Papers, Dom._, 1669, cclxi. 82-87. - -[879] _State Papers, Dom._, 1668, ccli. 191; 1670, cclxxiv. 157; -cclxxv. 43; cclxxvi. 206; cclxxxi. 15; 1671, ccxc. 5, &c. Temple’s -_Memoirs_, iii. 433. Justice, _Dominion and Laws of the Sea_, 298. - -[880] Bynkershoek, _De Dominio Maris_, cap. ii. iv. As elsewhere -explained (p. 557), it was this custom which helped to prepare the way -for the acceptance of the principle that now determines the extent of -the territorial sea on an open coast--viz., the range of guns. - -[881] Hume, _Hist, of England_, c. lxv. Temple’s _Memoirs and Letters_. -Pontalis, _John de Witt_. Macaulay, _Hist._, i. c. ii. - -[882] _Parl. Hist._, iv. 456. Hume, _op. cit._ - -[883] De Witt’s _Brieven_, iv. 837. Pontalis, _op. cit._, ii. 122. - -[884] Sir Leoline Jenkins to Sir Thomas Allin, Admiral of the Blue -Flag, 8th Oct. 1670. _Life of Sir Leoline Jenkins_, ii. 699. - -[885] _Brit. Mus. Add. MSS._, 30,221, ff. 46_b_, 48_b_. - -[886] _Brit. Mus. Add. MSS._, 30,221, fol. 47_b_. The affidavits of -three English sailors who witnessed the meeting of the _Merlin_ and -the two Dutch convoyers off Flamborough. The sailors swore “that they -exchanged guns but did not strike their flags, but went away with their -flags abroad.” This evidence was obtained to magnify the offence; the -position assigned, “off the Flamborough,” makes its value doubtful. - -[887] “A Draft made by Sir Leoline Jenkins about the King’s Sovereignty -in the British Seas.” _Brit. Mus. Add. MSS._, 30,221, fol. 46_b_. -Undated, but probably referring to this case. - -[888] Sir William Temple to Sir John Temple, 14th Sept. 1671. _Works_, -iii. 501. Pontalis, _John de Witt_, 126, 127. Hume, _Hist. of England_, -cap. lxv. _State Papers, Dom._, 1671, ccxcii. 45, 77, 78, 81, 215. -Evelyn’s _Diary_ (ed. 1850), ii. 69. _Brit. Mus. Add. MSS._, 30,221. - -[889] Pontalis, _op. cit._, ii. 130, 134. Hume, _op. cit._, cap. xlv. -Sir William Temple to his brother, 23rd May 1672. _Works_, iii. 505. -Clarendon’s _Memoirs_, ii. 289. _England’s Appeal_, p. 22. _State -Papers, Entry Book_, 24, fol. 54. _Ibid._, _Dom._, 1671, ccxciv. 127; -1672, cccii. 55, 112, 233; ccciii. 206. _Entry Book_, 34, f. 147. -It was in connection with the offers of the Dutch on this occasion -or a little later in the year that Sir Leoline Jenkins made the -following pronouncement as to the king’s rights to the dominion of -the seas. He was asked by Secretary Coventry “what his Majesty, his -heirs and successors, Kings of England, may reasonably pretend to -be signified by these words, _en la pleine et entiere joüissance du -droit de pavillon_”? Jenkins replied (1) that the King of England for -the time being was Lord of these seas, where he had the right of his -flag acknowledged, and that these seas were, as much as that watery -element is capable of being so in its nature, no less a domain of the -Crown than the Honour of Greenwich or the Manor of Eltham; (2) that -the _droits souveraines_ of the king in his seas against strangers had -all the legal requisites of a prescription beyond the memory of man, -and did not consist in one individual point, as for instance in having -the flag struck to, or in having the liberty of fishing acknowledged -by yearly sums of money; but in all the several rights, honours, and -perquisites that a sovereignty is capable of producing, and have been -enjoyed by former kings of England, with this difference from all -_seigneuries_ that move from a _mesne_ Lord, or Lord Paramount, that -our kings hold this as they do their crown, from God alone, and by -their sword. _Life_, ii. 697. - -[890] The account was brought to Court by Lieutenant Churchill, -afterwards the great Duke of Marlborough, who was serving under Lord -Ossory. - -[891] Pontalis, _op. cit._, ii. 239. Hume, _loc. cit. State Papers, -Dom._, _Entry Book_, 24, f. 57; _ibid._, 34, f. 164; cccii. 130; -ccciii. 26, 72, 211-218; ccciv. 9, 11, 20, 21, 25, 36; cccvii. 169; -_Foreign Entry Book_, 21, ff. 1, 9. - -[892] Hume, _loc. cit._ Pontalis, _loc. cit._ Temple’s _Works_, i. 175; -iii. 505. _Parl. Hist._, iv. 512. _Hollantsche Mercurius_, 1672, p. 50. -Dumont, _Corps Diplomatique_, VII. i. 163. _State Papers, Dom._, cccii. -210; ccciv. 21, 22; cccvi. 27; _Entry Book_, 31, f. 90. _Ibid._, 34, f. -157. - -[893] Mahan, _op. cit._ Colomb, _op. cit._ - -[894] 9/19 March, 5/15 Sept. 1672. _Groot Placaet-Boeck_, iii. 292, -298. The embargo was renewed in the next year. - -[895] _State Papers, Dom._, cccxv. 108, &c.; cccxvi. 43. - -[896] Dumont, _Corps Diplomatique_, VII. i. 206. Hume, _op. cit._, -c. lxv. In _State Papers, Foreign, Treaty Papers_ (_Breda_), 1667, -Bdl. 73 (as at present arranged), are a number of papers belonging to -these negotiations and the later ones at Cologne in 1673, consisting -mostly of draft articles, with copious notes by the plenipotentiaries. -In one, marked “1st project as framed,” Art. xiv. refers to the flag -as follows, the words in brackets being inserted here from a second -copy: “That the ships and vessells of the United Provinces, as well -men-of-war as others, be they single ships or in Fleets how great -soever, meeting in any part within ye Brittish seas, with any one of ye -ships of war (yachts) or other vessells w’soever of ye said K. of Gr. -Brittain, or in his service and wearing his flagg, colours (or Jack) -shall strike their flaggs and lower their Topsailes untill they be -passed by, as a Ancient and undoubted Right belonging to the said K., -and which hath been payd and performed to his R^{ll} progenitors in all -times.” The fishery article (xxiv.) was as follows, the words within -brackets being taken from another copy, to fill up a blank: “And the -said States acknowledging his said Maj^{ts} ancient and undoubted Right -in the Brittish Seas, as they do hereby own and acknowledge ye same, -Doe further promise and agree, that they and their successors will from -henceforth pay to his said Maj. his Heirs and successors, for euer, -at the Receipt of his Exchequer, a yearly sum̄ of ... (10^{mte}--as -likewise ye yearly summe of 2^{mt} sterling by ye yeare at ye Receipt -of his Ma^{tys} Treasury of his Kingdom of Scotland) ... sterling by -the year, in consideration of his Maj^{ts} license and permission to -them and their subj^{ts} to fish in the said seas and upon his Ma^{tys} -coasts.” Another article (xxv.) provided for the payment of £1,000,000 -for the charges of the war, £400,000 in the following October, and the -remainder later. - -[897] Hume, _loc. cit._ Temple’s _Memoirs_, i. 166. _State Papers, -Dom._, cccxi. 75, 82, 206; cccxiii. 233. _Commons’ Journals_, ix. 246. -Dumont, _op. cit._, VII. i. 206. _Hollantsche Mercurius_, 1672, p. 265. - -[898] _Brief Animadversions on, Amendments of, and Additional -Explanatory Records to the Fourth Part of the Institutes of the Lawes -of England, concerning the Jurisdiction of Courts, compiled by the late -famous Lawyer, Sir Edward Coke, Knight, &c._, 1669. - -[899] England’s _Improvement Reviv’d: Digested into Six Books_, 1670. - -[900] Roger Coke, _A Discourse of Trade_, 1670. - -[901] William de Britaine, _The Dutch Usurpation, or a Brief View of -the Behaviour of the States-General of the United Provinces towards the -King of England_, 1672. - -[902] _State Papers, Dom._, cccviii. 143. - -[903] _A Justification of the Present War against the United -Netherlands, wherein the Declaration of his Majesty is vindicated, and -the War proved to be Just, Honourable, and Necessary; the Dominion of -the Sea explained, and his Majesty’s Rights thereunto asserted; the -Obligations of the Dutch to England, and their continual Ingratitude: -Illustrated with Sculptures. In Answer to a Dutch Treatise entitled, -Considerations upon the Present State of the United Netherlands._ By an -English Man, 1672. - -[904] 8th July 1872. _State Papers, Dom._, cccxii. 166. - -[905] Benson to Williamson, 28th June, 9th July 1672. Stubbe to -Williamson, 8th July. _State Papers, Dom._, cccxii. 45, 166, 184. The -warrant was to Mr Thurloe and Mr Bish of Lincoln’s Inn. Stubbe made -considerable use of the book, citing it as “MSS. Commentary of the -Treaty and Articles betwixt the English and the Dutch in 1653.” - -[906] _A Further Justification of the Present War against the -United Netherlands, illustrated with several Sculptures._ By Henry -Stubbe, a lover of the Honour and Welfare of Old England, &c., 1673. -Unfortunately for Stubbe, he tried his hand on another line, and was -arrested and imprisoned in the same year for denouncing, in his “Paris -Gazette,” the Duke of York’s marriage with Princess Mary of Modena. - -[907] _Life of Sir Leoline Jenkins_, i. 3. For the use of the -plenipotentiaries a volume of transcripts of documents, mostly State -Papers, and chiefly in the handwriting of Williamson’s clerks, was -prepared, dealing with the claims to the sovereignty of the sea in its -various phases. It comprised 613 folio pages, and forms volume 339 -of the Domestic series of Charles II. There is a long memorandum in -regard to the striking of the flag, consisting for the most part of -brief paragraphs reciting precedents (and many of them are omitted), -and arranged under the following heads: (1) Strikeing in Generall; (2) -Whole Fleets to Single Ships and a Greater Number to a Lesser; (3) Till -they be passed by to keepe downe their Flag in sight of ye English; -(4) Within the Brittish Seas, What the Brittish Seas are, &c., where -done, &c. What Places esteemed according to this Practice to be within -ye Brittish Seas; (5) This done as a Duty and Right and not only as a -Civillity. Some of the papers have notes on them, apparently penned by -the ambassadors at Cologne. - -[908] In one of the papers in the volume provided for the use of the -ambassadors, containing a copy of the fishery article put forward by -Cromwell in 1653 and afterwards withdrawn, is the following, with -a sidenote referring to the “king’s instructions to the special -ambassadors”: “Lastly, that y^e subiects of y^e States generall shall -for y^e future abstayne from fisheing vpon y^e Countreys and shores of -any of his Ma^{tyes} Dominions w^{thout} leaue and Passeports first -obtayned. One thing more I must obserue to you relating to those six -propositions particularly that of y^e fishery. In his Ma^{tyes} former -Instructions to you vpon that Point you were bid to consent to y^e -leauing out that Article in case y^e Dutch should be obstinate vpon -it. But his Ma^{ty} by progress of tyme finding that his Subiects seem -fonder thereof, bids me now to direct you to insist vpon that, as vpon -y^e rest and to frame it as neare as you can according to y^e Words set -down in y^e Reply.” Then after Cromwell’s article is the following: “Ye -Art. of the Fishery as contained in y^e Project, 1673.” It is the same -as that given in the previous year (note, p. 491),--the part referring -to the contribution of £2000 for Scotland being interpolated,--except -that it concludes with this sentence, “In w^{ch} fisheing y^e said -States shall oblidge themselues that their Subiects shall not come -w^{th}in one league of y^e shoares of England and Scotland,” which is -the first mention of a three-mile limit that has been discovered. Sir -Arnold Braems suggested to Arlington, in August 1673, that the king -should insist in the treaty for an annual payment of £10,000 or £12,000 -for their free fishing on his coasts, and that £3000 of this should -be devoted to the bringing over of Dutch families and fishing-busses -to England, a project which was then being tried by more or less -surreptitious methods. _State Papers, Dom._, vol. 336, No. 295. - -[909] See p. 461. - -[910] The ambassadors to the Earl of Arlington, 8/18 Aug., (26 Aug.)/(5 -Sept.), 13/23 Sept., (23 Sept.)/(3 Oct.), 3/13 Oct. 1673. _Life of Sir -Leoline Jenkins_, i. 68, 86, 87, 109, 126, 133. - -[911] Penn was in error in supposing that “Finisterre” in the -subsequent treaty was _finis terræ_, and meant the Land’s End in -England (Granville Penn, _Memorials of the Professional Life and Times -of Sir William Penn_, ii. 255). It was described as “Finisterre, in -Galicia,” by the Dutch ambassadors in 1668. See p. 469. - -[912] The ambassadors to Arlington, (29 Aug.)/(8 Sept.), 2/12, 13/23 -Sept., (23 Sept.)/(3 Oct.), 3/13 Oct. 1673. _Life of Sir Leoline -Jenkins_, i. 91, 95, 109, 117, 120, 125, 133. - -[913] The same to the same, (24 Oct.)/(3 Nov.), 11/21, 14/24 Nov. 1673, -(23 Dec. 1673)/(2 Jan. 1674), 2/12 Jan., 3/13 Feb. 1674. _Ibid._, i. -151, 170, 171, 223, 235, 237, 279. - -[914] The same to the same, 10/20 Oct. 1673 to 3/13 Feb. 1674. _Ibid._, -i. 139, &c. _State Papers, Foreign, Treaty Papers_ (_Breda_, sic), -Bdle. 73. There were prolonged discussions as to the extent of the -British seas both in regard to the article on the flag and that on the -cessation of hostilities on the sea, as shown by the very numerous -notes on the draft articles. The ambassadors were of opinion with -regard to the latter article that St George’s Channel and the sea -between England, Ireland, and Scotland were comprehended in the term -“the Channel,” a point which was left for the opinion of the king. - -[915] _Commons’ Journals_, ix. 282. _Lords’ Journals_, xii. 588. - -[916] P. 513. - -[917] Hume, _loc. cit. Commons’ Journals_, ix. 299. Temple’s -_Memoirs_, i. 167-169. Temple to the Prince of Orange, Feb. 1674. The -same to the Duke of Florence, 11th Feb. 1674. _Works_, iv. 13, 16. - -[918] “Prædicti Ordines Generales Unitarum Provinciarum debite, ex -parte sua agnoscentes jus supramemorati Serenissimi Domini Magnæ -Britanniæ Regis, ut vexillo suo in maribus infra nominandis honos -habeatur, declarabunt et declarant, concordabunt et concordant, quod -quæcunque naves et navigia ad præfatas Unitas Provincias spectantia, -sive naves bellicæ, sive aliæ, eæque vel singulæ vel in classibus -junctæ, in aliis maribus a Promontorio _Finis Terræ_ dicto usque ad -medium punctum terræ _van Staten_ dictæ in Norwegia, quibuslibet -navibus aut navigiis ad Serenissimum Dominum Magnæ Britanniæ Regem -spectantibus, obviam dederint, sive illæ naves singulæ sint, vel in -numero majori, si majestatis Britannicæ sive aplustrum, sive vexillum -_Jack_ appelatum gerant, prædictæ Unitarum Provinciarum naves aut -navigia vexillum suum e mali vertice detrahent et supremum velum -demittent, eodem modo parique honoris testimonio, quo ullo unquam -tempore aut in alio loco antehac usitatum fuit, versus ullas Majestatis -suæ Britannicæ aut antecessorum suorum naves ab ullis Ordinum -Generalium suorumque antecessorum navibus.” Art. iv. Dumont, _op. -cit._, VII. i. 253. The land _van Staten_ (which is a Dutch expression) -is the peninsula of Stadtland in N. Berghus, in 62° 5´ N. latitude. It -is probable that the English Ministers took the advice of the Trinity -House (p. 478) to consult the authors who had written on the northern -boundary of the British seas, and that the substitution of _van Staten_ -for the North Cape, first made at the congress of Cologne (see p. 506), -was based upon Selden’s plate showing the British seas (_Mare Clausum_, -lib. ii., cap. i., p. 122), and which is reproduced in the frontispiece -of this book. Selden’s plate was much less liberal to the British seas -than was his text. The Dutch appellation may have been extracted from a -Dutch map. - -[919] _Memoirs_, i. 170. Temple added: “Nothing, I confess, had ever -given me a greater pleasure, in the greatest public affairs I had run -through, than this success; as having been a point I ever had at heart, -and in my endeavours to gain, upon my first negotiations in Holland, -but found Monsieur De Witt ever inflexible, though he agreed with me -it would be a rock upon which our firmest alliances would be in danger -to strike, and to split, whenever other circumstances fell in to make -either of the parties content to alter the measures we had entered into -upon the triple alliance.” - -[920] _Brit. Mus. Add. MSS._, 30,221, fol. 59. Some writers on -international law erroneously describe the boundaries mentioned in the -article as the boundaries of the British seas. - -[921] Temple to the Duke of Ormonde, Oct. 1673. The same to the Duke of -Florence, 11th Feb. 1674. _Works_, ii. 91; iv. 19. - -[922] _Life of Sir Leoline Jenkins_, ii. 697. - -[923] _State Papers, Dom._, vol. ccclxxvi. 46. - -[924] _State Papers, Dom._, ccclxx. 238, 245, 252. - -[925] _State Papers, Dom._, ccclxxvi. 92; ccclxxix. 9. The incident -occurred on 11th November 1675, between 46 and 47 degrees latitude. -The Spanish ship “required him to strike for the King of Spaine, -and the said Cap^n Harris haueing seuerell times refused to doe it, -and required the said Ostender to strike for his Ma^{ty} of Greate -Brittain; yet neuerthelesse he, Cap^t Jos. Harris, in the time of their -convention (_sic_) about this matter, did order the Topsaile of the -said Ketch to be Lowered, w^{ch} was accordingly done, and is proued -by the depositions vpon Oath taken in Court,” &c. The court found that -by lowering his top-sails he struck to a foreigner in his Majesty’s -seas, “a great derogac͠on from his Ma^{ties} Honour, contrary to the -32th Article of the General Instrucc͠ons and punishable by the Eleventh -Article of War.” - -[926] _H. O. Warrant Book_, i. 126, 144. - -[927] 8th Oct. 1674. Tanner, _Catalogue of Naval MSS. in Pepysian -Library_, No. 1838. - -[928] _Life_, ii. 716. Various other indictments are referred to in -_Brit. Mus. Add. MSS._, 30,221, fol. 62_b_. - -[929] _Navigation and Commerce; their Original and Progress_, 1674. - -[930] Evelyn’s _Diary and Correspondence_, ii. 90, 91 (ed. 1850). - -[931] Evelyn to Pepys, 19th Sept. 1682. “To speake plaine truth,” he -says, “when I writ that Treatise, rather as a _philological_ exercise, -and to gratifie the present circumstances, I could not clearly satisfie -myself in sundry of those particulars, nor find realy that euer the -Dutch did pay toll or tooke license to fish in Scotland after the -contest (with Spain) from any solid proofs.... I think they neuer payd -a peny for it ... nor did I find that any rent (wheroff in my 108 page -I calculate the arrears) for permission to fish, was euer fixed by both -parties.” - -[932] _De Jure Maritimo et Navali, or a Treatise of Affaires Maritime -and of Commerce_, London, 1676. Editions were published in 1682, 1690, -1744, 1769, &c. It is still quoted by writers on international law. -Molloy was the author of a work attacking the Dutch during the second -Dutch war--_Holland’s Ingratitude, or a Serious Expostulation with the -Dutch, &c._, 1666. - -[933] _A View of the Admiral Jurisdiction, &c._, London, 1661; 2nd -edition, 1685. - -[934] _The Jurisdiction of the Admiralty of England Asserted_, London, -1686. - -[935] _England’s Great Interest_, 38. _State Papers, Dom._, cccxi. 86; -cccxv. 196 ; cccxxxvi. 295. - -[936] _State Papers, Dom._, ccclxix. 263. It is endorsed by Williamson, -“Herring Fishery: Given me by ye King to keepe. Sunday, 24 Ap. 75,” -and is unsigned. Each buss was to be of 70 tons, with a master, mate, -pilot, and 12 seamen, to be all paid partly by results. The whole -charge for the first year was put at £58,537, and the earnings at -£90,000, on the assumption that each buss would catch 100 lasts of -herrings, 15,000 cod, and 10,000 ling. - -[937] _State Papers, Dom._, _ibid._, 264, 265. - -[938] _Memoires relating to the State of the Royal Navy of England for -Ten Years, determin’d December 1688._ London, 1690. - -[939] Dumont, _Corps Diplomatique_, VII. ii. 236. Wagenaar, -_Vaderlandsche Historie_, c. lxi. - -[940] Valin, _Nouveau Commentaire sur l’Ordonnance de la Marine, &c._, -ii. 689. - -[941] Dumont, _op. cit._, VII. ii. 230. - -[942] “Upon your meeting with any ship or ships within his Majestie’s -Seas, (which for your better guidance herein, you are to take notice -that they extend to Cape Finisterre) belonging to any foreign Prince or -State, you are to expect them in their passage by you, to strike their -topsail and take in their flag, in acknowledgment of his Majestie’s -Sovereignty in these Seas; and if any shall refuse, or offer to resist, -you are to use your utmost endeavour to compel them therto, and in no -wise to suffer any dishonour to be done to his Majesty; and in case any -of his Majestie’s subjects shall be so far forgetful of their duty, -as to omit striking their topsail as they pass by you, when it may be -done without the loss of the voyage, you are to bring them to the Flag -to answer their contempt, or otherwise to return the name of the ship -and of the master to the Secretary of the Admiralty, or the Lord High -Admiral of England, or the Commissioners for executing the office of -Lord High Admiral for the time being, as also the place whence and the -port to which he shall be bound. And you are to make the master of -such ship pay the charge of what shot you shall make at her. And you -are further to take notice that in his Majestie’s Seas his Majestie’s -ships are in no wise to strike to any; and that in other parts no ship -of his Majestie’s is to strike her flag or topsail to any foreigner, -unless such foreign ship shall have first struck, or at the same time -strike, her flag or topsail to his Majestie’s ship, except in the -harbour of some foreign Prince, or in the road within shot of cannon of -some fort or castle, where you are to send on shore to inform yourself -what return they will make to your salute. And in case you have good -assurance you shall be answered gun for gun, you are then to salute -the port as is usual; but if you shall not be well assured that you -shall have an equal number of guns returned you, you are in no wise to -salute that place. And in case the ship in which you now command shall -at the same time carry his Majestie’s flag, you are, before you salute -the place, carefully to inform yourself how flags of the same quality -with that you carry, of other Princes, have been saluted there, and you -are to insist on it being saluted with as great respect and advantage -as any flag of the same quality with yours, of any other Prince, hath -been saluted in that place, from which you are in no wise to depart.” -Art. xxxv. 1691. _State Papers, Dom._, _H. O. Admiralty_, 1, No. 14. -Justice, _A General Treatise of the Dominion and Laws of the Sea_, 595. - -[943] _Regulations and Instructions relating to His Majesty’s Service -at Sea. Established by His Majesty in Council._ 2nd edition, 1734, Art. -xi. _Ibid._, 10th edition, 1766. _Ibid._, 13th edition, 1790. - -[944] _State Papers, Dom., H. O. Admiralty_, 5, 1108, October 19. - -[945] _State Papers, Dom., Petition Entry Book_, 3, 90. - -[946] Justice, _op. cit._, 193. - -[947] _State Papers, Dom., Naval_, 1769, 45. Copies of the various -papers sent from the Admiralty to the Under-Secretary of State. -Professor Laughton states that Lieutenant Smith was reinstated to a -higher rank next day. _Fortnightly Review_, Aug. 1866, p. 721. - -[948] _A Complete History of the Most Remarkable Transactions at Sea, -&c._ By Josiah Burchett, Secretary to the Admiralty, 1720. Burchett’s -account and definitions were adopted by later writers, as Lediard, _The -Naval History of England_, 1735; Colliber, _Columna Rostrata; or a -History of the English Sea Affairs_, 1727; Entick, _A New Naval History -or Compleat View of the British Marine, &c._, 1757; Campbell, _Lives -of the Admirals and other Eminent British Seamen_, 1742-44. Entick -claimed for the crown the right to all the fisheries in the British -seas, the right to impose tribute on all merchant ships navigating -them, the execution of justice for all crimes committed within them, -the permitting or denial of free passage through them to foreign ships -of war, and the striking of the flag. - -[949] In both it was as follows: “Art. ii. À l’égard des honneurs -du pavillon, et du salut en mer, par les vaisseaux de la République -vis-à-vis de ceux de Sa Maj. Britannique, il en sera usé respectivement -de la même manière qui a été pratiquée avant le commencement de la -guerre qui vient de finir.” Martens, _Recueil de Traités_, iii. 514, -561. - -[950] Mahan, _The Influence of Sea Power upon History_, 209, 225, 510, -&c. - -[951] _The Life of Richard, Earl Howe_, 200 (1838). - -[952] In the _Regulations and Instructions_ issued in 1808, the article -is as follows: “XXIV. Within his Majesty’s seas his ships are not on -any account to strike their topsails, nor take in their flags; nor in -any way to salute any foreign ship whatever; nor are they, in any other -seas, to strike their topsails, or take in their flags, to any foreign -ships, unless such foreign ships shall have first struck, or shall at -the same time strike, their flags and topsails to his Majesty’s ships.” - -[953] _Observations concerning the Dominion and Sovereignty of the -Seas: being an Abstract of the Marine Affairs of England._ In his -preface the author says the work was presented in manuscript to Charles -II., “and well accepted by him.” In a letter from W. Bridgeman to Sir -J. Williamson, dated from Whitehall, 13th May 1673, there was enclosed -“a paper drawne up as I remember about the beginning of this Warre by -S^r Philip Meadowes, which I find amongst other papers, and showing -it to My Lord he directed mee to send it to you.” The enclosure is -endorsed, “Soveraignity and Fishery by S^r Phil. Meadowes, 1674,” the -proper date being probably 1672. It is evidently a draft of the later -work, essentially the same in substance and tone. (_State Papers, -Dom._, Chas. II., vol. 335, Part II., No. 168.) Later he sent a copy to -Pepys, dated January 2, 1686. _Brit. Mus. Add. MSS._, 30,221, ff. 13-43. - -[954] _Op. cit._, pp. 44-46. The draft article was as follows: “To -maintain a due distinction betwixt natives and foreigners fishing -upon the coasts of their respective sovereigns; and to prevent the -manifold inconveniences which occasionally arise by a promiscuous -and unlimited fishing; ’Tis mutually covenanted, concluded, and -agreed, That the people and subjects of the United Netherlands shall -henceforth abstain from fishing within any the rivers, fryths, havens, -or bays of Great Britain and Ireland, or within a distance of ... -leagues from any point of land thereof, or of any the isles thereto -belonging; under a penalty and forfeiture of all the fish that shall -be found aboard any vessel doing to the contrary, and of all the nets, -utensils and other instruments of fishing. The like distances, and -under the same penalties, to be kept and preserved by the subjects -of His Majesty of Great Britain and Ireland, from any of the coasts -belonging to the United Netherlands. But beyond these precincts and -limits, that the people and subjects on both sides be at freedom to -use and exercise fishing, where they please, without asking or taking -licenses or safe-conducts for so doing, and without the let, hindrance, -or molestation one of another. Saving always the ancient rights of the -crown of England, and that nothing herein contained be interpreted -or extended to any diminution or impeachment thereof, But that they -remain in the same force and vertue, as before this agreement.” Meadows -does not suggest the number of leagues within which fishing should be -reserved, but he quotes with approval the proposal of James, in 1618, -to fix a limit of fourteen miles--that is, one “land-kenning” of the -Scotch. - -[955] “Reflections upon a Passage in S^r William Temple’s Memoirs, -printed 1692, relating to the Right of Dominion on the British Seas.” -_Brit. Mus. Add. MSS._, 30,221, fol. 55. It is dated 1693. - -[956] _A Treaty of Peace, Good Correspondence and Neutrality in -America, &c._, 16th November 1686, Art. v. By Article xvi. French -subjects were to be at liberty to fish for turtles in the islands of -Cayman. - -[957] Rayneval, _Institutions du Droit de la Nature et des Gens_, i. c. -x. - -[958] _Resol. van de Staten-Generael_, April, May, June 1616. _Resol. -d. Stat. van Holl._, March, April 1616. _Ibid._, 15th Dec. 1623; March, -May 1635; 19th May 1637; Dec. 1639, _Res. St.-Gen._, 18th June 1639. -_Res. Holl._, 13th April 1691. Lindemann, _Die Arktische Fischerei der -Deutschen Seestädte_, p. 8. _Groot Placaet-Boeck_, iv. 235, 237. Auber, -_Annuaire de l’Institut de Droit International_, xi. 144. - -[959] _Resol. St.-Gen._, Nov., Dec. 1698, 1740, 1741. _Resol. Holl._, -July 1699; Jan., March, April, Sept., Dec. 1739; Jan., March, May 1740, -1741; Oct. 1757; Jan. 1758; Aug. 1761; April 1762. Martens, _Causes -Célèbres_, i. 359-398; ii. 122-131. Beaujon, _Hist. Dutch Fisheries_, -479. A full account of the proceedings in 1738-40 is said by Beaujon -to be contained in the memorials of Mauricius, who was the Dutch -ambassador at Hamburg at the time, and was closely connected with the -negotiations; they are contained in the Koninklijke Bibliotheek at The -Hague. - -[960] Art. xii. “D’exercer la pêche dans lesd. mers, bayes, et autres -endroits à trente lieues près des costes de la nouvelle Ecosse au -sudest, en commençant depuis l’isle appellée vulgairement de _Sable_,” -&c. Dumont, _Corps Diplomatique_, VIII. i. 341. - -[961] Treaty of Paris, 10th February 1763, Art. v. Hertslet, -_Collection_, i. 274. Martens, _Recueil_, i. 109. - -[962] Treaty of Versailles, 3rd Sept. 1783, Arts. v., vi., and -Declaration attached. Hertslet, i. 246. Martens, iii. 522. - -[963] _Parl. Hist._, xv. 1063, 1261-1263. In the negotiations for peace -in 1761, Pitt, who was then in office, most wisely insisted on an -exclusive fishery. - -[964] _Treaty of Peace between Great Britain and the United States -of America, signed at Paris_, 3rd Sept. 1783, Art. viii. Martens, -_Recueil_, iii. 556. - -[965] Gander, _A Vindication of a National Fishery, wherein is asserted -that the Glory, Wealth, Strength, Safety, and Happiness of this Kingdom -... doth depend (under God) upon a National Fishery ... to which is -added the Sovereignty of the British Seas_, 1699. Puckle, _England’s -Way to Wealth and Honour_, 1699. _A Discourse concerning the Fishery_, -1695. _The British Fishery recommended to Parliament_, 1734. _The -Wealth of Great Britain in the Ocean Exemplified_, 1749, &c., &c. - -[966] 23 Geo. II., c. 24, 1750. _An Act for the Encouragement of the -British White Herring Fishery._ - -[967] Gifford, _Historical Description of the Zetland Isles_; -Edmondston, _A View of the Ancient and Present State of the Shetland -Isles_; _Europische Mercurius_, 1703, ii. 107. - -[968] Maine, _International Law_, 77. - -[969] _Tyberiadis, D. Bartoli de Saxoferrato, Jurisconsultorum omnium -facile principis, Tractatus de Fluminibus, &c._, Bononiæ, 1576, p. -55. “Jurisdictionem habens in territorio mari cohærenti habet etiam -jurisdictionem in mari usque ad centum milliaria, ... sicut præses -provinciæ debet purgare provinciam malis hominibus per terram, ita -etiam per aquam.... Constat autem quòd centum miliaria per mare minus -est duabus dietis.” - -[970] _Commentaria ad Institutiones, Pandectas et Codicem_, iii. 79. -Venice, 1577. - -[971] Bodinus, _De Republica_, lib. i. c. x. § 170, Frankfort, 1591; -Pacius, _De Dominio Maris Hadriatici Disceptatio_, c. i., Leyden, 1619; -Welwood, _De Dominio Maris_, c. i. p. 5, 1615; Dee, _General and Rare -Memorials_, p. 21, 1577; Gryphiander, _De Insulis Tractatus_, c. xiv., -1623; Gentilis, _Advocatio Hispanica_, c. viii. de marina territorio -tuendo, 1613; Gothofredus, _De Imperio Maris_, 1637. - -[972] “Mare dicitur esse de territorio illius civitatis cui magis -appropinquat et ideo Veneti quia domini sunt maris Adriatici possunt -imponere navigantibus vectigalia, et adversus contra facientus pœnam -adjicere.” - -[973] _Loc. cit._ - -[974] “Et dicunt doctores, quod domini Veneti, et Genuenses, et alii -habentes portum, dicuntur habere jurisdictionem, et imperium in toto -mari sibi propinquo per centum miliaria, vel etiam ultra, si non -propinquant alteri provinciæ.” _Loc. cit._ - -[975] Azuni, _Systema Universale dei Principii del Diritto Maritimo -dell’ Europa_, i. 58, 1798. Jurisdiction was conferred within certain -boundaries on land, “et intus mare centum milliaria.” - -[976] _Parl. Papers, U.S., No. 1._, 1893. _Behring Sea Arbitration, -British Case_, 37, 133. - -[977] In the definitions of the boundaries of lands and fisheries in -Anglo-Saxon charters such descriptions occur as “up midne streame,” -“ūt on Temese oð midne streām,” “up midne streame by halfen streame,” -&c. Birch, _Cartulariurm Saxonicum_. - -[978] “Quicquid etiam ex hac parte medietatis maris inventum et dilatum -ad Sandwic fuerit sive sit vestimentum sive rete arma ferrum aurum -argentum, medietas monachorum erit, alia pars remanebit inventoribus.” -Kemble, _Codex Diplomaticus Ævi Saxonici_, iv. 21. - -[979] _Le Mirroir des Justices_, c. iii., “la sovereine seignurie de -tote la terre jeqes el miluieu fil de la meer environ la terre.” - -[980] See p. 102. - -[981] _Brit. Mus. Hargraves MSS._, No. 98; printed by Moore, _Hist. of -the Foreshore_, 362. - -[982] _A Treatise relating to the Maritime Law of England_, 10. - -[983] See p. 35. - -[984] _Brit. Mus. Add. MSS._, 30,221, fol. 50. The opinion of the -Trinity House was given in November 1686. In 1677 the Privy Council, -on a petition of the fishermen of Hastings complaining of the French -fishing on the coast, sent to the Cinque Ports for an account “of the -old limitations used to be put upon the French and others in their -proceedings in that fishing,” and also ordered two ships to be sent “to -forbid the French to fish on the coast as having no license thereto, -and to drive them away from thence” (_ibid._) On the other hand, -Jeakes, in his _Charters of the Cinque Ports_, written in 1678, states -with reference to the powers “by land and sea” conferred on the Ports -by various charters, that _per mare_ did not mean _altum mare_, the -high sea, where the Admiral had jurisdiction, but only the “havens, -creeks, and arms of the sea, so far as can be judged in a county, where -the land is on both sides,” p. 69. - -[985] See p. 547. - -[986] 31st Oct. 1563, tit. i. par. 27, “Ne qua in mari vis fierit vel -suis subditis, vel sociis, vel peregrinis, sive belli, sive alterius -rei causa intra conspectum a terra vel portu.” Bynkershoek, _Quæstiones -Juris Publici_, lib. i. cap. viii. _De Domini Maris_, c. ii. - -[987] _Mare Liberum_, c. v. See p. 347. - -[988] Foreigners were not to fish “nerer the land nor nor yai mycht see -the shoir out of yair main toppis.” - -[989] Stair, _The Institutions of the Law of Scotland_, bk. ii. tit. -i. 5 (1681). “The vast ocean is common to all mankind as to navigation -and fishing, which are the only uses therof, because it is not capable -of bounds; but where the sea is enclosed, in bays, creeks, or otherwise -is capable of any bounds or meiths, as within the points of such lands, -or within the view of such shores, there it may become proper, but with -the reservation of passage for commerce, as in the land. So fishing -without these bounds is common to all, and within them also, except as -to certain kinds of fish, such as herrings, &c.” The qualification and -the “etcetera” are peculiar. - -[990] See p. 528. - -[991] Captain George St Lo, _England’s Safety, or a Bridle to the -French King_, 1693. “During the time I was convoy to our fishing there, -as aforesaid (1685-6), my business was to see that no foreigner should -fish in sight of the shore, because the fish draw thither to spawn; the -best draughts are there.” - -[992] Azuni, _Sistema universale dei Principj del Diritto marittimo_, -i. 78. - -[993] _Dominio del Mar’ Adriatico e sue Raggione per il Jus Belli della -Serenissima Repvblica di Venetia_, Venezia, 1686. - -[994] Hale, _A Treatise relating to the Maritime Law of England_, c. -iv. Coke’s _Fourth Institute_, c. xxii. p. 140 (ed. 1797). Blackstone, -_Commentaries_, i. 110. Hale, _Pleas of the Crown_, ii. 54. An early -authority is in Fitzherbert’s _La Grande Abridgment_ (1565), Corone -et Plees de Corone, fol. 259, placit 399, “Nota p. Stanton justic q̃ -ceo nest pas sa͠nce demere ou hoe puit veier ceo q̃’est fait del ou -part del ewe et del aut, coe a rier de lun terr tanq̃ a laut q̃ le -cozon viendr’ en ceo cas et fra son offic auri coe auent a vyent en vu -brau del mer la ou home puit vier de lun parte tanque a lauter del auer -que en cel lieu auient puyt paiis auer conisans.” There are some words -in this passage difficult to translate, but the following has been -given as its rendering: “Nota per Stanton Justice, that that is not -sance [which Lord Coke translates ‘part’] of the sea where a man can -see what is done from one part of the water and the other, so as to see -from one land to the other; that the coroner shall come in such case -and perform his office, as well as coming and going in an arm of the -sea, there where a man can see from one part to the other of the [word -undeciphered], that in such a place the country can have conusance.” - -[995] See p. 119. - -[996] Lib. ii. cap. iii. s. xiii. 2, “Ratione territorii, quatenus ex -terra cogi possunt qui in proxima maris parte versantur, nec minus quam -si in ipsa terra reperirentur.” See p. 349. - -[997] _Discussiones Historicæ de Mari Libero_, 1637. - -[998] _De Dominio Seren. Genuensis Reipub. in Mari Ligustico_, 1641. - -[999] _Imperium Maritimum_, 1654. - -[1000] _Dissertatio de Imperio Maris_, 1676. - -[1001] _De Imperio Maris._ - -[1002] _Jus Maritimum_, 1652. - -[1003] _Maris Liberi Vind. adv. P. B. Burgum_, 1652; _Maris Liberi -Vind. adv. G. Welwodum_, 1633. - -[1004] _De Jure Maritime et Navali_, lib. i. c. iv. Ed. 1652. - -[1005] _De Jure Naturæ et Gentium_, 1672. - -[1006] Lib. iv. c. v. s. vii. - -[1007] 7th March, 1689, Art iv. - -[1008] _State Papers, Dom._, Chas. II., ccxxxiv. 112, 113, 8th Feb. -1667/8. _Brit. Mus. Add. MSS._, 30,221, fol. 64, 12th March 1683. - -[1009] Wynne, _Life of Sir Leoline Jenkins_, ii. 727, 732, 755, 780, -783. In reporting to the king in one case, in which he found the -capture was made in the Channel beyond the limits of a chamber, Jenkins -says: “However the truth be as to the chamber, ’tis certain the seizure -was made in your Majesty’s seas: but so it is, that notwithstanding -your Majesty’s undoubted right of dominion and protection in these -seas, strangers do hold themselves, if not permitted, yet excused for -such hostilities, when they are acted at a due distance from your -Majesty’s ports, harbours, and chambers; grounding themselves upon -what was done and observed in that long war between Spain and the -Netherlands.” The preamble of the proclamation of 12th March 1683 was -as follows: “Whereas the safeguard and protection we owe to such of our -own subjects, and to all others in league and amity with us, as pass -and repass the seas belonging to these our kingdoms, has been always -a principal part of our royal care and concern, and we, finding that -the freedom and security of our navigation and commerce to and from -our ports in time of hostility between our neighbouring princes has -been much disturbed, nay, the reverence due to our ports, harbours, and -other places under our immediate protection has been violated by the -partial practices, depredations, and insolencies of private men-of-war -and others pretending commissions for the present hostilities: We have -thought fit, by the advice of our Privy Council, after an exact view -first taken of the rules, ordinances, and provisions made on the like -occasions by our royal progenitors and ourself, to revive, establish, -ratify and publish to all the world these rules and ordinances -following.” The rules are similar to those in the regulations of 1633 -and 1668; but it is noteworthy that the “King’s Chambers” are not -specifically mentioned, nor is any reference made to a “platt,” and the -claim to the dominion of the seas, so prominent in 1633, is omitted. - -[1010] _De Dominio Maris Dissertatio._ Hagæ-Batavorum, 1703. - -[1011] _Quæstiones Juris Publici._ Lugduni-Batavorum, 1737. - -[1012] “Unde dominium maris proximi non ultra concedimus, quam e terra -illi imperari potest, et tamen eo usque; nulla siquidem sit ratio, -cur mare, quod in alicujus imperio est et potestate, minus ejusdem -esse dicamus, quam fossam in ejus territorio.... Quare omnino videtur -rectius, eo potestatem terræ extendi, quousque tormenta exploduntur, -eatenus quippe cum imperare, tum possidere videmur. Loquor autem de his -temporibus, quibus illis machinis utimur: alioquin generaliter dicendum -esset, potestatem terræ finiri, ubi finitur armorum vis; etenim hæc, -ut diximus, possessionem tuetur.” _De Dom. Maris_, cap. ii. In the -_Quæstiones_ the phrase is “imperium terræ finitur, ubi finitur armorum -potestas,” and “terræ dominium finitur ubi finitur armorum vis.” - -[1013] _Ibid._, cap. ii. - -[1014] See p. 381. - -[1015] _De Jure Maritimo_, p. 150. - -[1016] _Discursus Legales de Commercio_, Venice, 1740, D, 136. 174, -211, tom. 2. An earlier edition was published at Florence in 1719. - -[1017] “Naves exteræ dicuntur esse sub protectione illius principis, -cujus mare navigant, quando reperiuntur intra portus illius, aut in -mari, ita vicino, ut illuc tormenta, bellica adigi possent. Et si -deprædentur ab inimicis, de jure restituendæ sunt.” - -[1018] _Tratado jurídico-politico, sobre pressas de mar, y calidades, -que deben concurrir para hacerse legitimamente el Corso_, Part I. c. v. -Cadiz, 1746. - -[1019] “No podrá con razon pretender mas extension de sus Costas, que -las dos leguas.” - -[1020] “Y circunda en el espacio á lo menos de cien millas en recto: lo -qual es una infalible, y conforme tradicion de los Letrados de todas -las Naciones.” - -[1021] _Jus Gentium_, Halæ Magdeburgicæ, 1749, cap. i. ss. 120-132, pp. -99-107. “Partes maris a gentibus, quæ idem accolunt, occupari possunt, -quousque dominium in iisdem tueri possunt.” - -[1022] _Le Droit des Gens_, Liv. i. c. xxiii. 5, 279-295, 1758. - -[1023] _De la Saisie des Bâtimens Neutres_, La Haye, 1759, tom. i. Part -I. c. iii. s. 5, p. 57. - -[1024] _Nouveau Commentaire sur l’Ordonnance de la Marine du mois -d’Août 1681_, Rochelle, 1766, t. ii. Liv. v. tit. i. pp. 687, 688. -“Jusqu’à la distance de deux lieues, et avec cette restriction encore, -la mer est donc du domaine du souverain de la côte voisine; et cela -que l’on puisse y prendre fond avec la sonde, ou non. Il est juste au -reste d’user de cette méthode en faveur des États dont les côtes sont -si escarpées, que dès le bord on ne peut trouver le fond; mais cela -n’empêche pas que le domaine de la mer, quant à la jurisdiction et à -la pêche, ne puisse s’étendre au delà; soit en vertu des traités de -navigation et de commerce, soit par la règle ci-dessus établie qui -continue le domaine jusq’où la sonde peut prendre fond, ou jusqu’à -la portée du canon, ce qui est aujourd’hui la règle universellement -reconnue.” Lawrence, in his annotated edition of Wheaton’s _Elements -of International Law_, Part II. c. iv. s. 6 (1864), makes a curious -blunder in regard to the limit proposed by Valin, who, he says, -“proposed to fix it according to the _sound of a cannon_, or as far as -the ball would reach.” The authority Valin gives for the statement that -the rule was universally recognised is _Journal de Commerce_, Mai 1759, -p. 40. - -[1025] _Versuch des Neuesten Europäischen Völkerrechts in Friedens-und -Kriegs-zeiten_, Bd. v. 486, Frankfort, 1778. “Das an die Küsten -eines Landes stossende Meer stehet nach dem Völkerrecht unter der -Oberherrschaft des angränzenden Landes unstreitig, so weit es mit -Canonen von dem festen Land bestrichen werden kan.” - -[1026] _Juris Publici Universalis, sive Juris Naturæ et Gentium, -Theoremata_, ii. 7, 65. “Nobis visum est singulas gentes eam partem -circa littus suum occupare posse, cujus usus necessarius, quamque -tuendis littoribus et territorio necessarium arbitrantur.” - -[1027] _De’ Doveri de’ principi neutrali verso i principi -guerreggianti, e di questi verso i neutrali._ Naples, 1782. - -[1028] “Mi parrebbe peraltro ragionevole, che senza attendere a -vedere se in atto tenga il Sovrano del territorio construtta taluna -torre o batteria, e di qual calibro di cannoni la tenga montata, si -determinasse fissamente, e da per tutto la distanza di tre miglia dalla -terra, come quella, che sicuramente è la maggiore ove colla forza della -polvere finora conosciuta si possa spingere una palla, o una bomba,” p. -432. - -[1029] _Précis du Droit des Gens moderne de l’Europe, fondé sur les -Traités et l´Usage_, Göttingen, 1789, Liv. iv. c. iv. In an earlier -work, _Primæ Lineæ Juris Gentium Europæarum_, published at Göttingen -in 1785, the three-league limit is omitted. After speaking of ports, -bays, and straits, he says, “Neque minus in genere eæ maris partes, quæ -territorio proximæ sunt (mare proximum vocant) et tormentorum in limite -terræ constitutorum ictui subsunt, censentur esse in dominio gentis -terræ dominæ, et pro parte territorii habentur.” - -[1030] “Sur la mer voisine en général jusqu’à la portée du canon placé -sur le rivage; c. a. d. jusqu’à trois lieues du rivage,” p. 189. He -also speaks elsewhere of the range of guns being equivalent to three -leagues; but it would appear that the terms “miles” and “leagues” were -sometimes used indifferently and carelessly (see Bluntschli, p. 682), -and three leagues was far beyond the range of guns in Von Marten’s time. - -[1031] _Sistema universale dei Principj del Diritto marittimo dell’ -Europa._ Florence, 1795-96. The work was translated into French -in 1801--_Système Universel de Principes du Droit Maritime de -l’Europe_--and revised, enlarged, and republished in 1805. - -[1032] See p. 574. - -[1033] “Giacchè essa sola è, secondo me, il giusto ed unico mezzo, che -potrebbe servire di norma per fissare una volta il mare territoriale -sempre combattuto, e non ancora deciso, o almeno non stabilito come si -dovrebbe in un pubblico Trattato tra le Potenze marittime,” i. 75. - -[1034] “La distanza di tre miglia dalla Terra come quella, che senza -dubbio è la maggiore, dove colla forza della polvere a fuoco finora -cognita si possa spingere una palla o una bomba,” p. 76. - -[1035] _Répertoire de Jurisprudence._ - -[1036] See p. 571. - -[1037] Daru, _Histoire de la République de Venise_, i. 445; Smedley, -_Sketches of Venetian History_, i. 72. See p. 4. When Venice was -conquered, the _Bucentaur_ was stripped of her gilding and finery, and, -under the name of _Hydra_, became a prosaic guard-ship, stationed at -the mouth of the Lido until 1824, when she was destroyed. - -[1038] _Rescripter, Resolutioner og Collegial-Breve for Kongeriget -Norge, i Tidsrummet fra 1660-1813_, i. 315, 18th June 1745. “Rescr. -(til Stiftsbefalingsmændene i Norge) ang. det ikke skal være nogen -fremmed Caper tilladt at opbringe noget Skib een Miil nœr de Norske -Kyster og de der udenfor beliggende Grunde og Skjær,” &c. The league in -the Scandinavian ordinances measures fifteen to one degree of latitude, -or one German mile, equal to about 7420 metres. The marine league, -or three-mile limit ordinarily adopted, is of twenty to a degree of -latitude, or about 5565 metres, or 3.4517 English statute miles. - -[1039] _Ibid._, i. 423, 439, 602. - -[1040] 14th Sept. 1807, s. 5; 28th March 1810, s. 7. In the last the -privateers were forbidden to capture ships in the Sound within such -distance of the Swedish coast as was within the range of guns. Auber, -_Ann. de l’Institut de Droit Internat._, xi. 145. - -[1041] Kleen, _Neutralitetens Lagar_, ii. 865. - -[1042] Boeck, _Oversigt over Litteratur, Love, Forordninger Rescripter, -m.m. vedrørende de Norske Fiskerier_, p. 12. - -[1043] Real Cédula, 17th December 1760; Real Órden, 1st May 1775; -Real Decreto, 3rd May 1830; Real Decreto, 20th June 1852. Riquelme, -_Elementos de Derecho Público Internacional, con esplicacion de todas -las reglas que, segun los Tratados, &c., constituyen el Derecho -Internacional Español_, i. 211, App., 187, 197, 200; Madrid, 1849. -Negrín, _Tratado de Derecho internacional maritimo_, Madrid, 1883, p. -66. - -[1044] Martens, _Recueil_, i. 479. - -[1045] 21st Nov. 1777; 9th May 1778. Martens, _Recueil_, iii. 16, 18. -In Kent’s _Commentaries on American Law_, i. 118 (ed. 1884), it is said -(apparently on the authority of Sparks’ _Diplomatic Correspondence_, -ii. 110) that the Commissioners, in their circular letter of 1777 -to the commanders of American armed vessels, “carried very far the -extension of neutral protection when they applied it indiscriminately -to all captures within sight of a neutral coast.” There is nothing of -this in the document given by Martens. - -[1046] 19th Sept. 1778. _Op. cit._, i. 47. - -[1047] 1st Aug. 1778. “E ne’ mari adjacenti agli altri porti, scali, -torri, e spiagge del Gran Ducato non potrà usarsi atto veruno di -ostilità nella distanza, che potrebbe circoscriversi da un tiro di -cannone.” _Op. cit._, 24. - -[1048] 4th March 1779. “Nè generalmente dentro la distanza di un tiro -di cannone da terra.” _Op. cit._, i. 52. - -[1049] 1st July 1779. “Nei porti, golfi, e spiagge del nostro dominio -nella distanza, che potrebbe circonscriversi da un tiro di cannone.” -_Op. cit._, 64. - -[1050] 9th Sept. 1779, Arts. viii., ix. “Ed in tutti mari ad essi -adjacenti, limitati, almeno allo spazio circoscritto dalla portata d’un -grosso cannone di batteria.” _Op. cit._, i. 78. - -[1051] Jenkinson (Lord Liverpool), _A Discussion on the Conduct of the -Government of Great Britain in respect to Neutral Nations_ (1758), ed. -1801, Pref. Phillimore, _Commentaries_, iii. 273. Wheaton’s _Elements_ -(ed. 1864), 1024. Martens, _Recueil_, iii. 158, _seq._ - -[1052] Mutual protection was to be afforded “dans leurs ports ou rades, -mers internes, passages, rivières, et aussi loin que leur jurisdiction -s’etend en mer.” 8th Oct. 1782, Art. v. Martens, _op. cit._, 433. - -[1053] “À la portée du canon des châteaux de l’autre.” _Vide_ Martens -and De Cussy, _Rec._, i. 381. - -[1054] 26th Sept. 1786, Art. xli. “Leurs dites Majestés ne souffriront -point que sur les côtes, à la portée du canon, et dans les ports et -rivières de leur obéissance, des navires et des marchandises des sujets -de l’autre soient pris par des vaisseaux de guerre, ou par d’autres -qui seront pourvus de patentes de quelque prince, république, ou ville -quelconque,” &c. Martens, _Rec._, iv. 178. - -[1055] 11th Jan. 1787, Art. xxviii. “... Hors de la portée du canon des -côtes de son allié ... dans les ports, havres, golfes et autres eaux -comprises sous le nom d’eaux closes.” By Article xx. the salute was -abolished. _Ibid._, 207, 210. The mention of closed waters no doubt -referred to the Baltic, which was declared to be a closed sea (_une -mer fermée_), into which the armed vessels of belligerents were to -be refused entry, by a decree of the King of Denmark in 1780, and by -conventions between Russia and Denmark and Sweden in the same year, and -between Russia and the United Provinces and Prussia in the following -year. _Ibid._, iii. 175, 195, 219, 250. - -[1056] 17th Jan. 1787, Art. xix. _Ibid._, iv. 237. - -[1057] 7th August 1803. Martens, _Recueil_, 2. viii. 105. - -[1058] Martens, _Recueil_, iii. 763, 10th Sept. 1784, Art. vi. - -[1059] See p. 527. - -[1060] Oct. 28, 1790, Art. iv. Martens, _ibid._ iv. 489, 497. Wheaton, -_Elements_, 307 (ed. 1864). - -[1061] Wheaton, _Elements_, 723 ; President’s Proclamation of -Neutrality, April 22, 1793; Mr Jefferson, Secretary of State, to M. -Genet, 8th Nov. 1793; Wharton’s _Digest of the International Law of the -United States_, i. c. 2, s. 32. - -[1062] Opinion of Attorney-General, 14th May 1793; Letter of Sec. of -State to the French Minister, 15th May 1793; Kent’s _Commentaries_, -i. 30. Delaware Bay, it may be said, has always been, and still is, -claimed as territorial water by the United States. _Vide_ reply of -Government of United States to Observations of British Government on -Draft Treaty, 1887. Correspondence relative to the Fisheries Question, -1887-1888. _Parl. Papers (Canada)_, 1888, p. 70. - -[1063] Act of Congress, 5th June 1794, c. 50. Kent’s _Commentaries_, 30. - -[1064] Wheaton, _Elements_, 724. - -[1065] Wharton’s _Digest_, i. c. 2. - -[1066] Mr Madison to Messrs Monroe and Pinckney, 17th May 1806. Kent, -_Commentaries_, i. 31. - -[1067] Hall, _A Treatise on International Law_, Part II. c. ii. s. 2. - -[1068] The High Court of Admiralty, for instance, decided in 1760 that -a French vessel taken by an English privateer at Hayti was not good -prize, as it had been attacked while in a port belonging to the King of -Spain, “within reach of his cannon and under his protection” (Marsden, -_Report of Cases determined by the High Court of Admiralty_, 175). - -[1069] There were two cases of _Twee Gebroeders_--the first (Alberts, -master) tried on 29th July 1800; the second (Northolt, master) tried on -27th November 1801. - -[1070] Robinson, _Reports of Cases Argued and Determined in the High -Court of Admiralty_, iii. 162. London, 1802. - -[1071] _Ibid._, 339. - -[1072] _Ibid._, v. 373. - -[1073] _Vide_ Chief Justice Cockburn, _Law Reports, Excheq. Div._, -ii. 178. It is a curious circumstance that many English writers on -municipal law, even after this time, adhering to a different line of -inquiry, clung tenaciously to the husk of the old claims of England to -the sovereignty of the sea. Hale, as we have seen, followed Selden, as -did Hargrave and Blackstone, though with apparent diffidence. Chitty, -in his _Treatise on the Law of the Prerogative of the Crown_, published -in 1820, relying on Selden, Hale, and Molloy, declares that “the king -possesses the sovereign dominion in all the narrow seas, that is, the -seas which adjoin the coasts of England, and other seas within his -dominions” (p. 173); and that he “has an undoubted sovereignty and -jurisdiction, which he has immemorially exercised, through the medium -of the admiralty courts, over the British seas, that is, the seas which -encompass the four sides of the British islands; ... the law of nations -and the constitution of the country have clothed the sovereign with -this power, that he may defend his people and protect their commercial -interests” (p. 142). He also assigns the soil under the sea to the -king. Hall, in his _Essay on the Rights of the Crown and the Privileges -of the Subject in the Sea Shores of the Realm_, published in 1830, -states the doctrine even more nakedly. After defining the British seas -according to Selden, he says, “Over the British Seas, the King of -England claims an absolute dominion and ownership, as Lord Paramount, -against all the world. Whatever opinions foreign nations may entertain -in regard to the validity of such claim, yet the subjects of the King -of England do, by the common law of the realm, acknowledge and declare -it to be his ancient and indisputable right.” Hall also assigns the -bottom or _fundum_ of the British seas to the king, the authorities -cited being Coke, Callis, Molloy, Hale, and Blackstone. Loveland, the -editor of the second edition of Hall’s _Essay_, which was published in -1875, does not attempt to qualify the statements. It was not, indeed, -till after the decision in the case of the _Franconia_ in 1876, and -the Territorial Waters Jurisdiction Act of 1878, that the doctrine was -abandoned in theory by English lawyers. Even Moore, the editor of the -third edition of Hall’s _Essay_, which appeared in 1888, while pointing -out the alteration of the law by the decision in the _Franconia_ case, -and by the Territorial Waters Jurisdiction Act, thought it undesirable -to vary Hall’s text, having regard to the diversity of the opinions -expressed by the judges in the case referred to. _Vide_ p. 590. - -[1074] Convention, 1818, Art. i. “... And the United States hereby -renounce for ever any liberty heretofore enjoyed or claimed by the -inhabitants thereof to take, dry, or cure fish on or within three -marine miles of any of the coasts, bays, creeks, or harbours of his -Britannick Majesty’s dominions in America not included within the -above-mentioned limits.” Wheaton, _Elements_, 324, 463 (ed. 1864). -_Parl. Papers, North America_, No. 1 (1878). Henderson, _American -Diplomatic Questions_, 497. - -[1075] Martens, _Nouv. Recueil_, V. ii. 358; Behring Sea Arbitration, -British Case, _Parl. Papers, United States_, No. 1 (1893), p. 38, App. -I. No. 1. - -[1076] The Duke of Wellington to Count Nesselrode, 17th Oct. 1822; G. -Canning to the Duke of Wellington, 27th Sept. 1822; Count Nesselrode to -Count Lieven, 26th June 1823; G. Canning to S. Canning, 8th Dec. 1824; -S. Canning to G. Canning, 3rd April 1825. _Parl. Papers_, _ibid._, 41, -42, 44, 46, 56, App. II. pt. i. 14, 15, 29, 52, 57. - -[1077] _American State Papers, Foreign Relations_, v. 452; _Parl. -Papers_, _ibid._, App. II. pt. ii. No. 5; Wheaton, _Elements_, 308. - -[1078] Treaty between Russia and the United States, April 17th, 1824, -Art. i. iv.; treaty between Great Britain and Russia, 28th Feb. 1825, -Art. i. vii. Martens, _Nouv. Recueil_, vi. 684. _Parl. Papers_, -_ibid._, 52, 53. - -[1079] In 1842. _Parl. Papers_, _ibid._, 83. - -[1080] In 1846. _Ibid._, 84. - -[1081] _Ibid._, 87. - -[1082] _E.g._, the case of the _Leda_, in which Dr Lushington claimed -that the term United Kingdom included the waters to a distance of -three miles from the shore (Swa., _Adm._, 40); General Iron Screw -Company, in which Lord Hatherly said that it was “beyond question that -for certain purposes every country may, by the common law of nations, -legitimately exercise jurisdiction over that portion of the high seas -which lies within three miles from its shores,”--whether this limit was -determined by the range of cannon was not material, since it was clear -it extended at any rate to that distance (1 J. and H., 180); Whitstable -Fishery Case, in which it was said that the soil of the seashore to the -distance of three miles from the beach was vested in the crown, and -in which Lord Chelmsford observed that “the three-mile limit depends -upon a rule of international law, by which every independent state is -considered to have territorial property and jurisdiction in the sea -which washes their coast within an assumed distance of a cannon-shot -from the shore” (11 C.B. (N.S.), 387; 2 H.L.C., 192); the _Annapolis_, -in which Dr Lushington said. “Within British jurisdiction, namely, -within British territory, and at sea within three miles from the -coast” (1 Lush., _Adm._, 306); Rex _v._ Forty-nine Casks of Brandy, in -which Sir John Nicholl said that “as between nation and nation, the -territorial right may, by a sort of tacit understanding, be extended -to three miles” (3 Haggard, 257); Gammell _v._ Commissioners Woods -and Forests and Lord Advocate, in which Lord Wensleydale referred to -the distance of three miles as belonging, by the acknowledged law of -nations, to the coast of the country, and “under the dominion of the -country by being within cannon range, and so capable of being kept in -perpetual possession” (3 MacQueen, H.L., 419). - -[1083] This subject is treated of by Mr A. H. Charteris, Lecturer in -International Law, University of Glasgow, in a paper read before the -International Law Association at Berlin in 1906 (_Twenty-third Report_, -103). - -[1084] Two small islands in the Channel. - -[1085] Bell, _Crown Cases Reserved_, 72. See Hall, _Internat. Law_, 5th -edit., p. 156; Westlake, _Internat. Law_, i. 118. - -[1086] The Direct United States Cable Company _v._ the Anglo-American -Telegraph Company, Privy Council, 1877. _Law Reports_, Appeal Cases, -ii. 394. - -[1087] 33 & 34 Vict., c. 90. - -[1088] See pp. 592, 632. - -[1089] Regina _v._ Keyn, _Law Reports, Excheq. Div._, ii., 1876-7, p. -63. - -[1090] _E.g._, p. 204: “There are several treaties by which nations -have engaged, in the event of either of them being at war with a third, -to treat the sea within three miles of each other’s coasts as neutral -territory,” the treaties being those referred to on p. 572. “After -the three-mile theory had been propounded by Bynkershoek,” p. 177. Mr -Justice Amphlett went further, and attributed a similar doctrine to -Grotius: “All the earlier writers, including Grotius, the vigorous -advocate of the free navigation of the high seas, and many of the later -writers, maintained that within the zone of three miles the state had, -without qualification,” &c., p. 122. - -[1091] 41 & 42 Vict., c. 73. - -[1092] 58 & 59 Vict., c. 42. - -[1093] _Hansard_, xxxiii. 504. The Lord Chancellor (Lord Herschell), -who followed, said : “He was far from saying that three miles was -to be the limit of territorial waters for all time. Originally the -distance was fixed by gunshot, and it was always said that the distance -a gun could fire to was three miles. How far this principle was to -be extended, and whether it was to be extended indefinitely, was a -question for consideration, and it was a question which would not be -without its difficulty.” Lord Salisbury referred to a gun which was -fired on Jubilee Day and carried twelve miles, and Lord Herschell to -one which had a range of thirteen miles. - -[1094] 9 Geo. II., c. 35; 24 Geo. III., c. 47; Twiss, _The Law of -Nations in Time of Peace_, 261; Hall, _A Treatise on the Foreign Powers -and Jurisdiction of the British Crown_, 244. - -[1095] 16 & 17 Vict., c. 107, ss. 212, 218; 39 & 40 Vict., c. 36, s. -179. - -[1096] Kent, _Commentaries_, i. 31; Wheaton, _Elements_, 267, 323. - -[1097] Riquelme, _op. cit._ See p. 569. - -[1098] _Fifteenth Ann. Rep. Assoc. for Reform and Codification of the -Law of Nations_,. 18, 22; _Seventeenth_, _ibid._, 302; _Annuaire de -l’Institut_, xi. 151. - -[1099] _Fifteenth Rep._, _ibid._, 84, 121; _Ann. de l’Institut_ for -1894. Customs Act of Canada, 49 Vict., c. 32, s. 21. - -[1100] 26 Geo. II.; 6 Geo. IV., c. 78. - -[1101] _Mer Territoriale_, 222; and see pp. 551, 560, 564. - -[1102] Twiss, _op. cit._, 261-264; Phillimore, _Commentaries_, i. 236; -Kent, _loc. cit._; Wheaton, _loc. cit._; Hall, _loc. cit._ The latter -author states that they “repose on an agreement which, though tacit, is -universal,” and that “no civilised country encourages offences against -the laws of a foreign state when it sees that the laws are just and -necessary.” - -[1103] _De la Liberté des Mers, ou le Gouvernement Anglois devoilé_, -1798. - -[1104] _La Mer Libre, La Mer Fermée_, 1803. - -[1105] _Institutions du Droit de la Nature et des Gens._ - -[1106] _De la Liberté des Mers._ - -[1107] _A Practical Treatise on the Law of Nations relative to the -Legal Effect of War on the Commerce of Belligerents and Neutrals._ -London, 1812. - -[1108] _Das Europäische Völkerrecht_, Berlin, 1817, p. 141. - -[1109] “So weit der Schuss des Geschütses vom Ufer es bestreichen möge; -dies selbst nahm man mit noch ungebundenerer Will-Kühr auf 3 Lieues an.” - -[1110] P. 564. - -[1111] _Europäisches Völkerrecht_, Stuttgart, 1821, p. 204; _Droit des -Gens moderne de l’Europe_, 1819, III. ii. 130 (ed. 1831). - -[1112] _A Digest of the Law of Maritime Captures or Prizes_, New York, -1815, c. ii. p. 55. - -[1113] _Elements of International Law_, c. iv. ss. 6-10. London, 1836. - -[1114] The King’s Chambers were, however, confined to the coast of -England. See p. 122. - -[1115] _Commentaries on American Law_, i. Part I. Lect. iii. - -[1116] _Commentaries on the Law of Nations_, p. 119. 1839. - -[1117] _Das Europäisches Völkerrecht der Gegenwart_, Berlin, 1844. _Le -Droit International de l’Europe_, Paris, 1873, s. 75. “La ligne de la -portée du canon elle-même, bien qu’elle soit regardée comme de droit -commun, ne présente aucune base invariable et peut-être fixée par les -lois de chaque État, du moins d’une manière provisoire.” - -[1118] _Researches in Maritime International Law_, i. 16. 1844. - -[1119] _Règles Internationales et Diplomatie de la Mer_, i. 177. - -[1120] _Histoire des Origines, des Progrès, et des Variations du Droit -Maritime International_, ed. 1858, p. 22. - -[1121] _Traité des Prises maritimes_, i. 93. Paris, 1855. - -[1122] “La portée du canon, placé à terre, est la seule limite réelle -et vraie des mers territoriales.” - -[1123] _Le Droit commercial, dans ses rapports avec le Droit des Gens -et le Droit Civil_, Paris, 1844-47, tom. i. Liv. ii. tit. i. c. i. ss. -103-105. - -[1124] _Plans and Proposals transmitted to the Committee on the -Fishery_, No. 1, &c. - -[1125] _Reports by the Commissioners for the British Herring -Fishery_ for 1819, 1821, 1822; _Staatsblad_, No. 28, 4th April -1824, for a copy of which I am indebted to Mr H. van Hall, of the -Universiteits-Bibliotheek, Amsterdam. After a reference to the -previous decrees prohibiting the taking of herrings “between the -banks and rocks of Scotland,” as being injurious to the reputation -of Dutch pickled herrings (see p. 201), it is stated that the Board -for the Great Fishery is of opinion that, in the interest of this -branch of national industry, the fishing should be carried on at a -farther distance from the main coast of Scotland (_Schotsche vaste -kust_), and it is determined and resolved as follows: “Art. I. Het -zal aan geenen Nederlandschen visscher geoorloofd zijn, de groote of -pekelharingvisscherij op eenen naderen afstand der vaste kust van -Schotland uitteoefenen, dan dien van twee uren hemelsbreedte (20 -zoodanige uren eenen graad uitmakende), noch onder eenig voorwendsel -hoe ook genaamd (alleen met uitzondering van het geval van dringende -noodzakelijkheid bij art. 22 der voormelde wet voorzien), gedurende -den tijd dat hij de vangst van pekelharing bedrijft, de vermelde kust -op eenen minderen afstand te naderen.” The second article excepted the -fishing at Shetland (Hitland) and Fair Isle (Fair-hill), the autumn -fishing on the English coast and off Yarmouth, and the fresh-herring -fishery; but these exceptions were withdrawn by a royal decree of 5th -June 1827 (_Staatscourant_, 1827, No. 278). It may be said that in -1818 the old prohibition of fishing between the sandbanks and rocks of -Norway, Shetland, and Scotland had been renewed. _Staatsblad_, No. 15, -12th March 1818. - -[1126] _Rapport fait en Exécution des Ordres du Ministre de la Marine_, -par M. L. de Montaignac, Capitaine de frégate, Commandant la Station de -la Mer du Nord. - -[1127] Montaignac, _op. cit._; _Parl. Papers_, Sess. 1837-38; _Rep. -Com. Brit. Herring Fishery_, 1834. - -[1128] _Report from the Select Committee on British Channel Fisheries, -Parl. Papers_, Sess. 1833, No. 676. - -[1129] An ordinance of the French Marine Department, of 15th January -1829, prohibited the use of certain nets, as drag and trawl nets, -within _three leagues_ of the shore from 15th April to 1st September, -and within two leagues from 1st September to 15th April. - -[1130] Some of the English fishery Acts then in force, at least -nominally, extended jurisdiction beyond the distance of one league with -regard to the use of certain nets, &c., and the Committee apparently -desired that, besides a zone of exclusive fishery, foreigners should -be bound to observe the municipal law for the protection of the spawn -and brood of fish that might apply beyond such zone. The Acts referred -to were 3 Jac. I., c. 12 (1605), for the better preservation of sea -fish, which, _inter alia_, prohibited the use of certain nets within -five miles of any harbour, haven, or creek; 14 Chas. II., c. 28 (1662), -regulating the pilchard-fishing in Devon and Cornwall, which prohibited -the use of any “drift, trammel, or stream net,” between 1st June and -30th November, within one and a half leagues of the coasts of these -counties; 1 George I., stat. 2, c. 18 (1714), which prohibited the use -“at sea upon the coast of England” of certain nets, and the landing or -sale of undersized fish; the Act 33 Geo. III., c. 27 (1759), prohibited -the taking or knowingly possessing “any spawn, fry, or brood of fish, -or any unsizeable fish, or any fish out of season.” - -[1131] Under the Act 6 Geo. IV., c. 108, 1825. - -[1132] Mr Cornish, quoting from his MS. treatise on zoology, said: “It -is generally supposed that all sea fish, the cetaceous (_sic_) and -cartilaginous excepted, deposit their ova in sand-banks, in creeks, -bays, and shallow water near the shores, because it is imagined that a -certain, though a small, degree of the sun’s action on the water and -atmosphere is necessary to bring such ova to maturity. This we know to -be the case with the salmon species, which always ascend to the shallow -parts of rivers for that purpose, and never lay their eggs in deep -water, and therefore we infer that the same influence prevails over the -sea fish: this cannot, however, be proved, and rests mainly on opinion -and probable conjecture, founded on such facts as we are acquainted -with.” It may be said that a Select Committee of the House of Commons, -appointed in 1817 to inquire into the condition of the fisheries on -the south coast of Devon, strongly recommended Parliamentary action -for the protection of the fisheries, founding on the same erroneous -assumption that the fishes spawned near the shore. A Bill was -accordingly introduced in the session of 1819, and again in 1822, for -the appointment of conservators or overseers of the bays, creeks, and -arms of the sea, to supervise regulations for the preservation of the -fish coming there to spawn, and of their brood and fry, and applying -to a distance of one and a half leagues from the shore; but it did not -pass the Lords. _Rep. Select Com. on the State and Condition of the -Fisheries on the South Coast of Devon_, 1817; _Parl. Bills_, xxii. 587, -601. _Eighth Ann. Rep. Fishery Board for Scotland_, Part III., pp. 13, -258 (1890); _Tenth, ibid._, pp. 19, 235; _Eleventh, ibid._, p. 13. - -[1133] Memorials, &c., received by Her Majesty’s Government since -1st January 1832, complaining of the Aggressions of French fishermen -on the British Coasts, _Parl. Papers_, Sess. 1837-38; Supplementary -Papers relative to the Complaints respecting the Aggressions of French -fishermen on the British Coasts, 1838, _ibid._, 1839; _Reports by the -Commissioners for the Herring Fishery_, for 1834, 1835, 1839. - -[1134] _Convention between Her Majesty and the King of the French, -defining and regulating the Limits of the Exclusive Right of the Oyster -and other Fishery on the Coasts of Great Britain and of France._ Signed -at Paris, August 2, 1839. - -[1135] The line of closure, as will be seen from fig. 16, was not a -single straight line, as usual, but a series of lines determined by -landmarks. The area between this series and the three-mile limit, from -which British fishermen were excluded, measures a little over 100 -square (geographical) miles. On the other hand, all of the closing -line north of 49° 3´ (and thus the greater part of it) is, curiously, -_within_ the three-mile zone; the area outside this line to the -three-mile line is about 23 square miles. - -[1136] 6 & 7 Vict., cap. 79. “An Act to carry into Effect the -Convention between Her Majesty and the King of the French concerning -the Fisheries in the Seas between the British Islands and France,” 22nd -August 1843. The mesh of trawl-nets, the length of the trawl-beam, -the weight of the trawl-irons and of the ground-rope, the mesh of -herring, mackerel, “bratt,” and trammel nets, were in no case to be -over or under a specified standard. A series of detailed regulations -for oyster-fishing was also made, including a close-time and a minimum -size. This Act was repealed by the Sea Fisheries Act, 1868 (the -Convention Act), 31 & 32 Vict., c. 45, but it was revived by Parliament -in 1877 (40 & 41 Vict., c. 42), the Convention of 1867 not having been -ratified by France. - -[1137] _Reports of the Commissioners for the Herring Fishery_, 1839, -1840, 1841. - -[1138] It was denounced in the Boulogne Chamber of Commerce as the -greatest blunder the French Government had ever made, and many -complaints were received from French fishermen of their boats having -been captured or pursued by British cruisers. Deseille, _Histoire de la -Pêche à Boulogne-sur-Mer_, 229. The French cruisers were no less active -in apprehending British transgressors. _Parl. Papers_, Sess. 1854-5, -459. - -[1139] Mitchell, _The Herring: Its Natural History and National -Importance_, 243. - -[1140] The Board pointed out that the fishermen of other foreign -countries were not disposed to observe the limits laid down in the -Anglo-French convention, specifying Dutch as well as Belgians, and -that the naval superintendents were perplexed from the want of fixed -instructions on this point. The letter from the Board of Trade was as -follows (_Report of the Commissioners for the year ended 5th January -1849_):-- - - “OFFICE OF COMMITTEE OF PRIVY-COUNCIL FOR TRADE, - - “WHITEHALL, _14th September 1848_. - - “SIR,--With reference to your letter of 4th ultimo, requesting, on - the part of the Commissioners of British Fisheries, to know whether - Foreign Fishermen are permitted to fish within three miles of the - Shore; I am directed by the Lords of the Committee of Privy-Council - for Trade, to inform you, that it is the opinion of this Board, that - no such permission is recognised by the British Government, and - accordingly, that it is the duty of the Superintendents of British - Fisheries, to warn Dutch, Belgian, or any other Foreigners, as well as - French Fishermen, to keep outside of the limits above mentioned.--I - am, sir, your obedient servant, - - (Sd.) DENIS LE MARCHANT. - - The Honourable B. F. PRIMROSE, Secretary, - Board of Fisheries, Edinburgh.” - - -[1141] See p. 461. - -[1142] Convention between Her Majesty and the King of the Belgians -relative to Fishery. Signed at London, March 22, 1852. “Art. I. Belgian -subjects shall enjoy, in regard to fishery along the coast of the -United Kingdom of Great Britain and Ireland, the treatment of the most -favoured foreign nation. In like manner, British subjects shall enjoy, -in regard to fishery along the coast of the Kingdom of Belgium, the -treatment of the most favoured foreign nation.” The convention was to -endure for seven years, and it was to remain in force thereafter until -the expiry of twelve months after either party notified to the other -its intention of terminating it. - -[1143] _Reports by the Commissioners for the British Fisheries_, -1848-51. _Parl. Papers_, Sess. 1856. - -[1144] _Reports of the Commissioners for the British Fisheries_, 1852, -1853, 1862. - -[1145] _Report of the Commissioners appointed to Enquire into the Sea -Fisheries of the United Kingdom_, I. lxix. (1866). - -[1146] _Convention between Her Majesty and the Emperor of the -French, relative to the Fisheries in the seas between Great Britain -and France._ Signed at Paris, 11th November 1867. Art. I. “British -fishermen shall enjoy the exclusive right of fishery within the -distance of three miles from low-water mark, along the whole extent of -the coasts of the British Islands; and French fishermen shall enjoy -the exclusive right of fishery within the distance of three miles from -low-water mark along the whole extent of the coast of France, the only -exception to this rule being that part of the coast of France which -lies between Cape Carteret and Point Meinga. The distance of three -miles fixed as the general limit for the exclusive right of fishery -upon the coasts of the two countries shall, with respect to bays, the -mouths of which do not exceed ten miles in width, be measured from a -straight line drawn from headland to headland. The miles mentioned in -the present Convention are geographical miles, whereof sixty make a -degree of latitude.” In neither of the conventions was it expressly -said that the ten-mile closing-line for bays was to be measured from -low-water mark of the headlands, but it was so declared in the Act of -1843, 6 & 7 Vict., c. 79. - -[1147] 31 & 32 Vict., c. 45. - -[1148] _London Gazette_, 9th Feb. 1869. C. E. Fryer, _The Relation of -the State with Fishermen and Fisheries. Parl. Papers, Commerc._, 24 -(1882), p. 1. - -[1149] 46 & 47 Vict., c. 22, sec. 30. - -[1150] 6 & 7 Vict., c. 79, s. vi. - -[1151] 5 & 6 Vict., c. 106. - -[1152] _Parl. Papers_, Sess. 1867-68, Fisheries (Ireland), 135. - -[1153] 31 & 32 Vict., c. 45, s. 67. - -[1154] _Report from the Select Committee on Oyster Fisheries_, 8, 166 -(1876). - -[1155] Had the coasts of the United States been visited by British -fishermen, it is not unlikely that the Government of that country would -have been more willing to admit the ordinary interpretation with regard -to bays. British vessels do not, however, fish on the coasts of the -United States, and the United States fishermen, having exhausted the -once productive waters of their own coasts of the New England States, -go to catch a large part of their fish to the waters on the coasts of -British North America, and hence it is to their interest that the limit -of exclusive fishing on the latter should be as small as they can get -it made. The position is very similar to that of the English trawlers -who, having impoverished the North Sea, now go to foreign coasts, as -Iceland, to keep up the supplies. See p. 707. - -[1156] Treaty between Her Majesty and the United States of America, -signed at Washington, 1st June 1854, Art. i., ii. I. “It is agreed by -the high contracting parties that in addition to the liberty secured -to the United States’ fishermen by the above-mentioned convention of -October 20, 1818, of taking, curing, and drying fish on certain coasts -of the British North American Colonies therein defined, the inhabitants -of the United States shall have, in common with the subjects of Her -Britannic Majesty, the liberty to take fish of every kind, except -shell-fish, on the sea coasts and shores, and in the bays, harbours, -and creeks of Canada, New Brunswick, Nova Scotia, Prince Edward’s -Island, and of the several islands thereunto adjacent, without being -restricted to any distance from the shore, with permission to land -upon the coasts and shores of those Colonies and the islands thereof, -and also upon the Magdalen Islands, for the purpose of drying their -nets and curing their fish; provided that, in so doing, they do -not interfere with the rights of private property, or with British -fishermen, in the peaceable use of any part of the said coast in -their occupancy for the same purpose.” The second article accorded -to Canadian fishermen similar privileges in the waters of the United -States, north of 36 degrees N. latitude. - -[1157] Before this arrangement was made, the British Government, on -12th April 1866, instructed the Admiralty “that American fishermen -should not be interfered with, either by notice or otherwise, unless -they are found within three miles of a line drawn across the mouth of -a bay or creek, which is less than ten geographical miles in width, in -conformity with the arrangement made with France in 1839.” - -[1158] 27th June 1870. “The limits within which you will, if necessary, -exercise the power to exclude United States’ fishermen, or to -detain American fishing vessels or boats, are for the present to be -exceptional.... Her Majesty’s Government are clearly of opinion that, -by the Convention of 1818, the United States have renounced the right -of fishing, not only within three miles of the Colonial shores, but -within three miles of a line drawn across the mouth of any British -bay or creek. It is, however, the wish of Her Majesty’s Government -neither to concede, nor for the present to enforce, any rights in this -respect which are in their nature open to any serious question. Until -further instructed, therefore, you will not interfere with any American -fishermen, unless found within three miles of the shore, or within -three miles of a line drawn across the mouth of a bay or creek, which, -though in parts more than six miles wide, is less than six geographical -miles in width at its mouth. In the case of any other bay--as Bay des -Chaleurs, for example--you will not interfere with any United States’ -fishing vessel or boat, or any American fishermen, unless they are -found within three miles of the shore.” - -[1159] Treaty between Her Majesty and the United States of America, -signed at Washington, 8th May 1871, Art. xviii., xix. - -[1160] _Parl. Papers_, No. 1 (1888), (C.--5262). - -[1161] The number of American fishing vessels which take the licenses -for Canadian waters is usually about 100, the fees aggregating 10,000 -or 12,000 dollars per annum. _Ann. Reports, Marine and Fisheries_, -Ottawa. - -[1162] The three-mile limit is measured from the ten-mile arc. - -[1163] Mr Phelps to the Marquis of Salisbury, 3rd August 1887, -enclosing ad interim arrangement proposed by the United States’ -Government, with “Observations” by the British Government and Reply of -the Government of the United States. - -[1164] Gordon, _15th Ann. Rep. Assoc. for Reform of Law of Nations_ -(8). 1893. - -[1165] _Report by the Commissioners for the Herring Fishery_, Scotland, -1869, p. 4; _Report by the Commissioners of the Fishery Board, -Scotland_, 1876, p. 7. - -[1166] Report of W. H. Higgin, Esq., Q.C., on the Outrages committed -by Foreign upon English Fishermen in the North Sea. _Parl. Papers_ -(C.--2878), 1881. - -[1167] After all, however, the damage from the monetary point of view -was not very great, amounting, according to the detailed information -collected by Mr Higgin, to £4372, 3s. over the years 1870-1880, or at -the rate of about £400 per annum. - -[1168] Correspondence respecting the Conference at The Hague and the -Convention of the 6th May 1882, relative to the Police of the Fisheries -in the North Sea. _Parl. Papers, Commercial_, No. 24, 1882. - -[1169] M. Barthélemy St Hilaire to Lord Lyons, 2nd July 1881; M. de -Freycinet to M. Challemel-Lacour, 2nd March 1882. - -[1170] “The fishermen of each country shall enjoy the exclusive right -of fishery within the distance of three miles from low-water mark -along the whole extent of the coasts of their respective countries and -of the dependent islands. As regards bays, the entrances of which do -not exceed ten miles in width, the distance of three miles shall be -measured from a straight line joining the two extreme points of the -bay. The present article shall not in any way prejudice the right of -free navigation and anchorage in territorial waters accorded to vessels -of all sizes, provided they conform to the special police regulations -enacted by the Powers to whom the shore belongs.” - -[1171] Messrs Kennedy and Trevor to Mr Farrer, Oct. 31, 1881. In the -Anglo-French convention of 1867 the British negotiators unsuccessfully -pressed for the insertion of the words, “the islands ... and their -dependencies.” M. de Freycinet to M. Challemel-Lacour, 2nd March 1882. - -[1172] Vide _Fiskeri-Beretning for Finansaaret_, 1907-1908, p. 178. -Kjobenhavn, 1908. - -[1173] _Report on the Sea Fisheries of England and Wales_, 1879. The -British delegate laid stress on one of the conclusions reached by Mr -Buckland, to the effect that “nothing that man has done, and nothing -that man can do, can affect the supply of herrings in the seas.” Even -if this were proved for the herring in the absolute form in which it is -expressed,--and it is clearly illogical and unwarrantable to pledge the -future in this loose way,--it obviously might not, and in point of fact -does not, apply to the great bulk of the fishes that would have been -affected by the German suggestion. - -[1174] _International Convention for the Purpose of Regulating the -Police of the Fisheries in the North Sea outside Territorial Waters._ -Signed at The Hague, 6th May 1882. - -[1175] Sir H. Rumbold to Earl Granville, 16th March 1882; H.M. -Plenipotentiaries to the same, 8th May 1882. - -[1176] The boundaries specified are, on the north, the parallel of the -61st degree of latitude; on the east and south, the coast of Norway -between the above parallel and Lindesnæs Lighthouse, a straight line -thence across the Skagerrack to Hantsholm Lighthouse in Denmark, the -coasts of Denmark, Germany, the Netherlands, Belgium, and France, as -far as Cape Gris Nez Lighthouse; on the west, a straight line from Gris -Nez Lighthouse to the easternmost lighthouse at the North Foreland in -Kent, the eastern coasts of England and Scotland, a line from Duncansby -Head in Caithness to the southern point of South Ronaldsha in the -Orkneys, the eastern coasts of the Orkney Islands, a straight line -from North Ronaldsha Lighthouse to Sumburgh Head Lighthouse in the -Shetland Islands, the eastern coasts of these islands, and the meridian -of the North Unst Lighthouse as far as the parallel of the 61st degree -of latitude. The Dutch proposed the 60th degree of latitude as the -northern limit, and the British the 62nd degree. - -[1177] 46 & 47 Vict., c. 22. An Act to carry into effect an -International Convention concerning the Fisheries in the North Sea, and -to amend the laws relating to British Sea Fisheries. - -[1178] Messrs Kennedy and Trevor to Mr Farrer, 31st Oct. 1881. _Doc. -cit._ - -[1179] Dispatch to Hon. E. Ashley, 17th Nov. 1881; Earl Granville to -Her Majesty’s Representatives at Paris, Brussels, The Hague, Berlin, -Copenhagen, and Stockholm, 6th December 1881. - -[1180] A case occurred in 1908 in which the master of an English -trawler, the _Taurus_, was convicted in a German court for trawling -within the three-mile limit on the German coast, and the case was -appealed on the ground that the place was outside the territorial -waters, and was so shown on the English fishery charts. It was found, -however, that the three-mile line on these charts did not take into -account the dependent banks, whereas the German charts did take them -into account, the limit running in some cases six or seven miles -from the coast. It may be mentioned that as considerable parts of -the Goodwin Sands are visible at low-water of neap tides, such parts -are entitled to a three-mile limit in the same way as the dependent -banks on the German coast. Recently, also, it has been found that -the three-mile limit in the neighbourhood of the Scaw fluctuates -considerably owing to the shifting of the shoals, and the Danish -authorities, early in 1907, intimated that any case of alleged -infraction of the limit by foreign fishing vessels would be judged of -by the actual position of the line at the time, and not by what may -be shown on any chart in use. The point in regard to banks was raised -a century ago in connection with neutral rights in a case in which a -British privateer captured a French corvette, the _Africaine_, on the -coast of the United States, six miles from shore. It was argued that -the capture was unlawful, because the place was within the neutral -waters of the United States, the extent of which had been defined by -Congress in 1794 as one marine league from the coast (see p. 574). It -was contended that “coasts” included all the shoals or banks which, -in Florida, extended to a distance of twenty miles from the land, and -were therefore within territorial jurisdiction, and that the distance -of protection should be reckoned from the outermost shoal. The American -judge overruled the argument, because, although in a maritime sense -this interpretation of “coasts” might be correct, it was too vague -for juridical purposes, since the shoals vary, and there would be -no fixed rule by which the boundary could be ascertained; and that -the district courts would have to apply different rules at different -places, instead of the one marine league everywhere. A somewhat similar -question was argued in 1805 in the English Admiralty Court in the -case of an American ship, the _Anna_, captured by a British privateer -off the mouth of the Mississippi, at a point claimed to be within the -neutral waters of the United States--viz., 1½ mile from an island, and -“within view” of a fort, which was, however, five miles distant. A -question raised was whether certain small mud-islands, formed of earth -and drifted logs, and covered with reeds, where people occasionally -went to shoot wild-fowl, was United States territory from which the -marine league could be measured. It was argued that the islands had -not sufficient consistency to support the purposes of life, and were -sometimes scarcely distinguishable, and that since the distance -of neutral protection “is reckoned according to the efficacy of -protection, that is, within the range of firearms,” the land from which -the extension is measured should be a place from which this protection -could be in reality afforded. Lord Stowell, in deciding that they -were United States territory, stated that the right of dominion did -not depend upon the texture of the soil; and he quoted Bynkershoek’s -formula as the rule of law, saying that the distance “has usually been -recognised to be about three miles from the shore.” It may be said -here that in the earlier writings and decisions about the limit of -territorial waters, low-water mark is not specified, and in the case -of the _Twee Gebroeders_ (see p. 577) it is clear that sand-banks -uncovered at low-water were not regarded as entitled to an independent -zone, the distance being measured from _terra firma_. - -[1181] _Fish Trades Gazette_, May 31st, 1902, p. 8; _ibid._, April 4th, -1903, p. 21. - -[1182] “Les articles 2 et 3 de ce contrat stipulent que les pêcheurs -nationaux jouiront du droit exclusif de pêche dans le rayon de trois -milles géographiques de 60 au degré de latitude, à partir de la laisse -de basse mer, le long de toute l’étendue des côtes de leurs pays -respectifs, ainsi que des îles et des bancs qui en dépendent.” _Loi -relative à la pêche maritime dans les eaux territoriales. Exposé des -motifs._ Sess. 1890-91. - -[1183] The Marquis of Lothian, Secretary for Scotland, in introducing -the Bill which became the Herring Fishery (Scotland) Act, 1889, said: -“With regard to the east coast there is no very great difficulty in -fixing the limits of territorial waters, because between Her Majesty’s -Government and what I may call the riparian powers of the North Sea -there is a Fisheries Convention; but on the west coast there is no -such convention, and therefore it has been thought desirable to attach -a schedule to this Bill in order to show exactly what are the waters -closed against trawlers apart altogether from the general international -rule as to the three-mile limit.” June 28th, 1889. Hansard, vol. 337, -p. 975. - -[1184] 46 & 47 Vict., c. 22, s. 28. - -[1185] 6 & 7 Vict., c. 79 (1843). The international regulations -agreed upon in virtue of the eleventh article of the convention were -to apply to “the seas lying between the coasts of Great Britain and -of France”; and differences of interpretation arose in this country -as to the extent of the seas coming under this denomination--_e.g._, -whether those on the west coast of Scotland were included. The power -given to the crown to suspend the operation of the Act on the Irish -coasts, and the obvious intention of the Act and articles, seemed to -the Royal Commissioners of 1863 to warrant the opinion that these -extra-territorial regulations applied to all the seas around the -British Isles (_Report, Royal Commission on Sea Fisheries_, i. p. -lxiii). On the other hand, it was contended that the words quoted -must be construed strictly, and included only those seas which were -situated geographically between the two countries. This difference of -opinion as to the interpretation of the phrase in question does not, -however, affect the validity of Article ix. of the convention, one of -the principal objects of which was to determine the limits of exclusive -fishery. - -[1186] _Vide_ 46 & 47 Vict., c. 22, s. 24. - -[1187] _Report from the Select Committee on Oyster Fisheries_, p. 1. -1876. - -[1188] 19th, 22nd, and 23rd _Reports Fishery Board for Scotland_, Part -I. Corresponding particulars are not given in the English or Irish -fishery reports. - -[1189] The preceding laws, however, left the territorial limits -indefinite, under the law of nations, or subject to any special -international agreement, as that of 12th February 1872, concerning -foreign fishermen at Iceland. (“1. Drive fremmede Nationers Fiskere -nogetsomhelst Fiskeri under Islands Kyster indenfor Søterritoriets -Grænse, saaledes som denne er bestemt ved den almindelige Folkeret, -eller ved særlige internationale Overenskomster for Islands Vedkommende -maatte blive fastsat, straffes de med Bøder fra 10 til 200 Rd.” C. F. -Drechsel, _Samling af Islandske Love, Forordninger, m.m. gældende for -Fiskeriet paa Søterritoriet ved Island_, 1892.) Later laws, both for -the Faröes and Iceland, merely referred to the “territorial sea.” - -[1190] Convention between His Majesty the King of the United Kingdom -of Great Britain and Ireland and His Majesty the King of Denmark -for regulating the Fisheries of their respective Subjects outside -Territorial Waters in the Ocean surrounding the Faröe Islands and -Iceland. Art. ii. “The subjects of His Majesty the King of Denmark -shall enjoy the exclusive right of fishery within the distance of three -miles from low-water mark, along the whole extent of the coasts of the -said islands, as well as of the dependent islets, rocks, and banks. - -“As regards bays, the distance of three miles shall be measured -from a straight line drawn across the bay, in the part nearest the -entrance, at the first point where the width does not exceed ten -miles.” The geographical limits for the application of the convention, -which embodies practically the same regulations as in the North Sea -Convention, are as follows: on the south, by a line commencing from -where the meridian of North Unst Lighthouse (Shetland Islands) meets -the parallel of 61st degree of north latitude to a point where the 9th -meridian of west longitude meets the parallel of 60° north latitude, -and from thence westward along that parallel to the meridian of 27° -west longitude; on the west, by the meridian of 27° west longitude; on -the north, by the parallel of 67° 30´ of north latitude; on the east, -by the meridian of the North Unst Lighthouse (which is about 50´ west -longitude). The area is thus very large, much larger than the North -Sea. The convention continues in force until the expiration of two -years from notice by either party for its termination, and a clause -is inserted providing for the adhesion of any other Government whose -subjects fish in the ocean surrounding the Faröe Islands and Iceland. - -[1191] “Das positive deutsche Recht enthält keinerlei ausdrückliche -Bestimmung über die Grenze der Küstengewässer landwärts.... Auch -für die Grenze seewärts hat das deutsche Recht keine ausdrückliche -Bestimmung, und adoptiert in dieser Richtung lediglich die Regeln des -Völkerrechts.” Harburger, _Fifteenth Ann. Rep. Internat. Law Assoc._, -73. 1893. - -[1192] Herstlet, _Commercial Treaties_, xiv. 1055. Perels, _Das -Internationale öffentlichs Seerecht der Gegenwart_, 38. - -[1193] _Mittheilungen des deutschen Seefischerei-vereins_, Bd. xiii. -61. 1897. - -[1194] “Vi ville have fastsat som Regel i alle de Tilfælde hvor -Spørgsmaal er om Bestemmelse af Vor Territorial-Hoiheds Græendse udi -Søen, at denne skal regnes indtil den sædvanlige Sø-Miils Afstand fra -den yderste øe eller Holme fra Landet, som ikke overskylles af Søen.” -_Rescripter Resolutioner_, &c., i. 626, 22 (25), Feb. 1812. A circular -of the Royal Danish Chancellory of 18th August 1810 made an exception -for the territorial waters near the fortress of Kronberg, on the Sound, -and of Glückstadt, on the Elbe, where the distance was to be computed -only up to the range of the guns of the fortress. Auber, _Annuaire de -l’Institut de Droit International_, xi. 146 (1894). - -[1195] _Svensk Fiskeri Tidskrift 9e_ Årg., 78. Stockholm, 1900. -“Danmark räknar på grund af konvention samma [with Sweden] fyra mils -gräns mot oss, men däremot på grund af Nordsjötraktaten blott tre -mil gentemot de i denna deltagande makterna, t. ex. engelsmän och -tyskar.” Instruks for det ved Fiskerikontrollen ansatte Personale, -Landbrugsministeriet, den 20 Marts 1908, _Fiskeri-Beretning for Aaret_ -1908-9. - -[1196] Natzen, _Den Danske Statsforfatningsret_, i. 36. 1888. - -[1197] Fiskerikonventionen mellem Danmark og Sverig, 14de July 1899. -_Fiskeri-Beretning for Finansaaret_, 1898-1899, Copenhagen, 1900. “Art. -I. I de til Kongerigerne Danmark og Sverig grænsende Farvande skal, -med de i Art. II. nævnte Undtagelser, det Omraade, hvor Fiskeriet -udelukkende er forbeholdt hvert Lands egne Undersaatter, udgøre en -Strækning af en geografisk Mil (1/15 Breddegrad) fra Kysten eller -yderste der udfor liggende Holme og Skær, som ikke til Stadighed -overskylles af Vandet,” &c. The definition in the Swedish is “en -geografisk mil (1/15 breddgrad) från kusten eller ytterst därutanför -liggande holmar och skär, som icke ständigt af vattnet öfversköljas.” -(_Svensk Fiskeri Tidskrift, 16e_ Årg., Häft 6, p. 189.) Article II. -makes the fishery in the Sound, including Kioge Bay, common to the -subjects of each state, except that on either side, _within a depth of -seven metres_ (four fathoms), subjects of the other country shall be -allowed to fish for herrings only, with nets; and mutual liberty of -herring-fishing with drift-nets is conceded in like fashion at certain -other specified places. Certain amendments were made to this agreement -in 1907, the chief one being the prohibition of trawling in the -Sound. _Fiskeri-Beretning for Finansaaret_, 1906-1907, p. 45. _Svensk -Författningssamling_, No. 79, År., 1907. - -[1198] _Sixth Supplement to Section 44 of Customs Orders_, vol. vi., -1886; _Ordinance of Home Department for the Regulation of the Fishery -Supervision on the Murman Coast_, 4th May 1887. See footnote, p. 657. - -[1199] _Norsk Fiskeritidende_, 466, 1893: Revue Général de _Droit -International Public_, 1894, p. 440. - -[1200] In July 1910, a British trawler, _Onward Ho_, while engaged -in fishing off the Kanin Peninsula, at a distance, according to the -skipper, of 40 miles from Russian Lapland, and admittedly much beyond -the three-mile limit, was arrested by a Russian cruiser and taken to -Archangel, on the charge of illegal fishing. The vessel was released -after representations had been made by the British Government, the -Russian authorities finding that it had been arrested outside the -boundary under the protection of the cruiser. The action was doubtless -taken in connection with a new law of 10th December 1909, establishing -a limit of 12 miles from the coast for customs purposes,--all vessels, -Russian or foreign, being held to be subject to the control of the -Russian authorities when within that distance. _Handelsberichten_, 12th -May 1910, p. 135. - -[1201] “Art. 2. Sur la demande des prud’hommes des pêcheurs, de leurs -délégués et, à défaut, des syndics des gens de mer, certaines pêches -peuvent être temporairement interdités sur une étendue de mer au delà -de 3 milles du littoral, si cette mesure est commandée par l’intérêt -de la conservation des fonds ou de la pêche de poissons de passage. -L’arrêté d’interdiction est pris par le Préfet Maritime.” - -[1202] M. de Chasseloup Lubat, in _Ann. di Agricoltura_, 50. 1891. - -[1203] Law of 7th June 1832. Heffter, _Le Droit International de -l’Europe_, c. ii. s. 75. - -[1204] “Loi relative à la pêche maritime dans les eaux territoriales,” -19th August 1891. A decree of 5th September 1892 regulated foreign -fishing-boats when within territorial waters. - -[1205] Wet van 15 Juni 1883, _Staatsblad_, No. 73; Koninklijk Besluit -van 20 March 1884, _Staatsblad_, No. 40, putting in force the North -Sea Convention: “Art. 1. De bepalingen dezer overeenkomst, welke -ten doel heeft de politie der visscherij in de Noordzee buiten de -territoriale wateren te regelen, zijn toepasselijk op allen, die -tot de nationaliteit der Hooge contracteerende Partijen behooren. -2. De visschers van elken Staat zullen het uitsluitend recht van -visscherij genieten binnen een kring van drie mijlen, gerekend van de -laagwaterlijn, langs de geheele uitgestrektheid der kusten van elken -Staat en evenzeer langs de eilanden en banken, die daarmede zijn -verbonden,” &c. Wet van 7th December 1883, _Staatsblad_, No. 202; Wet -van 26th October 1889, _Staatsblad_, No. 135, “Tot vaststelling van -bepalingen tegen het visschen door opvarenden van vreemde vaartuigen -in de territoriale wateren van het Rijk”; the limits, as laid down in -the convention of 1882, are applied to all foreign fishing vessels. -There are special agreements with Belgium as to the fishings in the -Schelde. H. van der Hoeven, _Wetgeving betreffende de Zee- en de -Zalmvisscherijen_. Leiden, 1897. - -[1206] Strisower, _Annuaire de l’Institut de Droit International_. 1894. - -[1207] Verordnung der Ministerien des Handels und des Ackerbaues, im -Einvernehmen mit dem Ministerium des Innern, vom 5 December 1884, -betreffend die Seefischerei, s. 3. - -[1208] Handels- und Schiffahrtsvertrag vom 27 Dec. 1878, zwischen -Oesterreich-Ungarn und Italien. Schlussprotokoll ad Art. xvii., xviii.; -Marchesetti, _La pesca lungo le coste orientali dell’ Adria_. Trieste, -1882. - -[1209] Vorschriften über die See-Fischerei giltig in Oesterreich-Ungarn -seit 12 December 1884. - -[1210] Legge sulla pesca del 4 marzo 1877, No. 3706 (Serie 2^a). - -[1211] _Annali di Agricoltura_, 1891. Atti della commissione consultiva -per la pesca, pp. 32, 86. - -[1212] Definizione del mare territoriale e ordine di vigilare sugli -armamenti alla pesca. _Ann. del Ministero di Agricoltura, Industria e -Commercio_, i. parte i. 96. Genoa, 1871. - -[1213] Corsi, in _Fifteenth Ann. Rep. Assoc. for the Reform and -Codification of the Law of Nations_, 83. - -[1214] No. 7, 409, 2nd Dec. 1869. Apostolidès, _La Pêche en Grèce_, 86. -Athens, 1888. - -[1215] Dr Kishinouye, _in litt._ - -[1216] Civil Code, Articles 593, 611. - -[1217] Reglamentendo la pesca y caza, _Boletin official_, 20th -September 1907. - -[1218] Reglamento para las concesiones de pesca en el litoral -oceánico de la Provincia de Buenos Aires, 4th June 1909. “Art. 3^o. -Los concesionarios solo podrán emplear redes arrastradas por vapores -en una zona distante no menos de doce (12) millas, contadas desde -las líneas de las más bajas mareas. Art. 4^o. Dentro de la zona de -doce millas hasta la línea de las más bajas mareas, podrán usarse -redes arrastradas por veleros. Se declara libre el uso de las líneas, -palangres ó espineles, nasas y redes verticales de deriva. Art. 6^o. -Las personas ó empresas que quisieran usar artes especiales de pesca -distintos de los indicados, deberán solicitar permiso especial de la -División de Ganadería y obtener la autorización correspondiente. Art. -7^o. Las embarcaciones llevarán bandera nacional y sus tripulaciones -se compondrán de una parte de individuos de nacionalidad argentina, -de acuerdo con las leyes y reglamentos de cabotaje nacional.” I -am indebted to the courtesy of Mr R. M. Bartleman, the American -Consul-General at Buenos Aires, for a copy of these regulations. - -[1219] Reuter’s telegrams from Buenos Aires, 21st March, 30th June -1908. _Scotsman_, 23rd March, 2nd July 1908. _La Prensa_, one of the -leading journals of Buenos Aires, is quoted as declaring it hard to -believe that the British Government has decided to raise a question of -such exceptional gravity, seeing the first effect of such action would -be to bring about a conflict to which there could be no conciliatory -or friendly solution, since the immediate reply, which would be final, -would be absolute rejection of the claim put forward--that is, that the -waters of the estuary outside the limits of three miles from the coasts -are non-territorial. - -[1220] Award of the Tribunal of Arbitration, p. 23, “outside the -ordinary three-mile limit.” The President, Baron de Courcel, has since -explained that the tribunal “s’est borné à constater que les parties -étaient d’accord pour admettre que l’étendue de trois milles à partir -de la côte comme formant dans l’espèce qui lui était soumise, la limite -ordinaire des eaux territoriales.” M. de Courcel to M. Auber, _App. -Ann. de l’Institut de Droit Internat._ for 1894, p. 282. _Vide_ Hall, -_A Treatise on International Law_, 4th ed., p. 161. - -[1221] For example, Leoni Levi, “No territorial sovereignty exists or -can be claimed beyond the three miles zone.” _Internat. Law_, 112. - -[1222] Mr Seward, Secretary of State, to Mr Tassara, 6th December 1862. -The same to Mr Burnley, 16th September 1864. Wharton, _A Digest of the -International Law of the United States_, i. 105. American ships were -charged with pursuing Confederate vessels into British waters, and -the balls from the guns they fired had struck objects on shore. The -facts were used to show that the hostile acts had occurred within our -territorial jurisdiction. Hansard, vol. 173, p. 509; February 1864. - -[1223] Secretary Fish to Sir E. Thornton, 22nd January 1875. “We have -understood and asserted that, pursuant to public law, no nation can -rightfully claim jurisdiction at sea beyond a marine league from the -coast.” _Loc. cit._ - -[1224] Torres-Campos, in _Fifteenth Ann. Rep. Assoc. for Reform and -Codification of the Law of Nations_, 93. Negrin, _Tratado de Derecho -internacional maritimo_, 1883. - -[1225] _Negocios Externos. Documentos apresentados ás Cortes na Sessão -legislativa de 1879 pelo Ministro e Secretario d’Estado dos Negocios -Estrangeiros. Questão das Pescarias_, p. 258. Lisboa, 1879. The volume -contains a full discussion of the questions between the two Governments. - -[1226] Tratado de navegación y comercio entre España y Portugal, -firmado en Madrid el dí 27 de Marzo de 1893. Apéndice Sexto. Reglamento -de policía costera y de pesca. Sec. 1. Disposiciones aplicables á -las aguas de cada país, “Art. 1^o. La policía costera y de pesca en -las aguas jurisdiccionales de España y de Portugal, quedará sujeta -á las disposiciones siguientes. Art. 2^o. Los límites dentro de los -cuales el derecho general de pesca, queda reservado exclusivamente á -los pescadores sujetos á las jurisdicciones respectivas de las dos -naciones, se fijan en seis millas, contadas por fuera de la linea -de bajamar de las mayores mareas. Para las bahías cuya abertura no -exceda de diez millas, las seis millas se contáran á partir de una -linea recta tirada de una punta á la otra. Las millas mencionadas son -millas geográficas de 60 al grado de latitud. Art. 3°. Cada una de los -Estados tendrá el derecho de reglamentar el ejercicio de la pesca en -sus respectivas costas marítimas hasta una distancia de seis millas -de las mismas, límite dentro del cual solamente será permitido á los -Pescadores nacionales ejercer esta industria.” F. López y Medina, -_Colección de Tratados Internacionales, Ordenanzas y Reglamentos de -Pesca_, pp. 44, 49 (Madrid, 1906). I am indebted to Sir Reginald -MacLeod, K.C.B., late Under-Secretary for Scotland, for this volume. - -[1227] _Revista de Pesca Marítima_, ix. 97 (1893); x. 209 (1894). -Various regulations have been lately made with respect to trawling -beyond the six-mile limit at certain parts of the Spanish coast (_vide_ -López y Medina, _Primer Apéndice a la Colección de Tratados, &c._, -pp. 34-45. Madrid, 1907), and also on the coast of Portugal (_vide -Collecção de Leis e Disposições diversas com relação á Pesca e Serviço -maritimo dos Portos_, pp. 28, 54, 276, 535. Lisboa, 1907). In no other -countries, it may be added, have more regulations been made restricting -all kinds of trawling than in Spain and Portugal. - -[1228] Prof. A. F. Marion, _in litt._ - -[1229] The National Sea Fisheries Protection Association: -_Twenty-fourth Ann. Rep. of the Committee of Management_, 1905, p. 7. -“Spanish and Portuguese Territorial Limits. Communications were made to -the Foreign Office on the subject of Spanish and Portuguese Territorial -Limits, and, in reply, the Association was informed that His Majesty’s -Government did not recognise any claims of the Spanish or Portuguese -Governments to exercise jurisdiction over British vessels beyond the -three-mile limit.” - -[1230] _Fish Trades Gazette_, 10th Dec. 1904, p. 23. London. _Boletin -Oficial de la Liga Marítima Española_; _Vida Marítima, Revista de -Navegación y Comercio, Pesquerias, &c._ Madrid. In 1905 no less than -forty-five English trawlers, as well as four German trawlers and one -Spanish, landed fish at Lisbon and Oporto, which had been caught in -neighbouring waters and as far as Morocco, the value being 332,220 -milreis, or about £74,750. _Estatistica das Pescas Maritimas, Anno de -1905._ Lisboa, 1907. - -[1231] A summary of this new law, which received the sanction of the -King of Portugal on 26th October 1909, is given in _Mitteilungen -des Deutschen Seefischerei-Vereins_ for February 1910 (Bd. xxvi. -No. 2), from _Diario do Governo_, No. 247, viz.: Portugiesisches -Gesetz betreffend das Verbot für fremde Fahrzeuge zum Fischen -in den territorialen Gewässern. “Art. 1. In den portugiesischen -Territorialgewässern innerhalb einer Zone von 3 Seemeilen, von der -Linie des Niedrigstwasserstandes an gerechnet, ist fremden Fahrzeugen -das Fischen verboten. In den Buchten ist die Zone von 3 Seemeilen -gemäss den Grundsätsen des internationalen Rechts zu berechnen.” - -[1232] Tratado de comercio con el emperador de Marruecos, 20th November -1861, _Revista de Pesca Marítima_, xiv. 149, 1898. López y Medina, _op -cit._, 72. - -[1233] This is also the interpretation made by Mr Arctander (_Norsk -Fiskeritidende_, Tolvte Aargang, 1893, p. 464) of the wording of the -ordinances, that the line must be drawn through points that lie above -the water at high tide (_flod_), the rule thus differing from the usual -one. On the other hand, the Norwegian Department of the Interior, in -replying to certain queries from the International Law Association, -stated, with reference to the royal ordinance of 1812 (see p. 653), -that “it is not expressly said whether the distance is to be reckoned -at half-tide, high-water, or low-water”; and they did not suggest which -ought to be adopted. _Rep., Seventeenth Conference_, 1895, p. 301. The -Danish terms agree with the Swedish. See p. 655. - -[1234] Professor Auber thus states the practice in Norway: “Nous avons -regardé comme tout naturel que, l’île n’étant pas située plus qu’à, -deux anciens milles marins (deux quinzièmes de degré) de la terre -ferme, l’étendue de la mer territoriale doive être compter jusqu’à un -mille au delà de l’île, et ainsi de suite d’île en île” (_Annuaire de -l’Institut de Droit International_ for 1889, p. 139). M. Kleen, on -the other hand, speaks of the outermost isle being included “sous la -condition que cette île ou ce brisant ne soit pas situé plus loin de -la côte qu’une lieu géographique” (_Fifteenth Ann. Rep., Internat. -Law Association_, p. 20). The Norwegian law refers to “the island or -islet farthest from the mainland, and not covered by the sea,” while M. -Kleen says: “Comme brisant à compter sera alors considéré chacun qui -n’est pas _continuellement_ submergé par la mer ... pourvu qu’il soit à -découvert périodiquement et que la mer ne le couvre pas _toujours_.” - -[1235] _Kongelig Resolution_ af 16 Oktober 1869: “At en ret linie, -trukket i en geografisk mils afstand fra og parallelt med en ret linie -mellem Storholmen og Svinö, bliver at betragte som grændsen for den -havstrækning udenfor den tilsvarende kyst af Söndmöres fogderi, paa -hvilken fiskeriet er landets egen befolkning udelukkende forbeholdt.” -_Kongelig Resolution_ af 9 September 1889: “En linie, trukket i en -geografisk mils afstand fra og parallelt med en linie fra Storholmen -over Skraapen (udenfor Harö), Gravskjær (udenfor Ona) og Kalven (det -yderste af Orskjærene) til yderste Jevleholme udenfor Grip, bliver -at betragte som grændsen for den havstækning udenfor den tilsvarende -kyst af Romsdal amt, paa hvilken fiskeriet er landets egen befolkning -udelukkende forbeholdt.” - -[1236] From about 62° 20´ N. lat. and 5° 13´ E. long, to about 63° 13´ -N. lat. and 7° 35´ E. long. - -[1237] Provisorisk Anordnung angaaende vaartorskefiskeriet ved -Söndmöres kyster, 3 Jan. 1870; Lov angaaende vaartorskefiskeriet ved -Söndmöres kyster, 6 June 1878; Lov om vaartorskefiskeriet ved Romsdals -amts kyst og fjorde, 1 July 1907. - -[1238] It is referred to in A.D. 888. The fishery is prosecuted from -about the middle of January to the end of April; in 1908 over 20,000 -fishermen, drawn from all the neighbouring parts of the coast, took -part in it. _Aarsberetning vedkommende Norges Fiskerier for 1908_: -4^{de} Hefte. _Lofotfiskeriet_, 1908. - -[1239] “Le droit exclusif de la pêche dans le golfe du Vestfjord, -consacré par un usage plusieurs fois seculaire, n’a jusqu’ici été -l’objet d’aucune disposition legislative.” Letter of the Minister for -Foreign Affairs, 6th August 1908. “The Vestfjord through centuries -has been considered as Norwegian territorial waters, but no decree -or decision as to the special frontier or limit between this fjord -and the open sea has been issued up to the present.” Letter from his -Excellency M. J. Irgens, the Norwegian Minister, 13th June 1908. Having -some difficulty in getting authentic copies of the various Norwegian -decrees, I applied to Dr Fridtjof Nansen, then Norwegian Minister in -London, and later received full information from three sources--from -Mons. J. Irgens, Dr Nansen’s successor, and now the Foreign Minister of -Norway; by the courtesy of Sir Reginald MacLeod; and through Dr Baty, -the Secretary to the International Law Association. - -[1240] 5th January 1881; 19th June 1880; 14th June 1890; 17th December -1896; 7th January 1904. In the law of 17th December 1896 the limits -are mentioned as follows: “Paa Havstrækningen ved Tromsø Amts og -Finmarkens Amts Kyst i en Afstand af indtil én geografisk Mil fra -Kysten, regnet fra den yderste Ø eller Holme, som ikke overskylles -af Havet, skal det indtil videre være forbudt at jage, anskyde eller -dræbe Hval i Tidsrummet fra 1ste Januar til Udgangen af Mai. For -Varangerfjordens Vedkommende i Finmarkens Amt bliver Grændsen for den -fredede Strækning udad mod Havet en ret Linie trukket fra Kibergnæs -til Grændse, Jakobselv, dog saaledes, at det ogsaa udenfor denne Linie -skal være forbudt i den ovenanførte Tid at jage, anskyde eller dræbe -Hval i kortere Afstand fra Kysten ved Kibergnæs end én geografisk Mil.” -See also Auber, Annuaire, xi. 136, 1892; Kleen, _Fifteenth Ann. Rep. -Internat. Law Assoc._, 17; Aschehoug, Norges nuvarende Retsforfatning, -90; Kleen, _Neutralitetens Lagar_, 1889; _Norsk Fiskeritidende_, 1893, -461. - -[1241] “Räknadt från kusten eller längst ut från denna liggande ö -eller skär, som ej ständigt af hafvet öfversköljes.” _Svensk Fiskeri -Tidskrift_, 9e Årg., p. 78. - -[1242] Auber, _loc. cit._ - -[1243] Kleen, _op. cit._; Egerström, _Sveriges Landtbruksförvaltning_, -1896, p. 37. It is the same in Finland,--J. A. Sandman, _Uebersicht -ueber die Seefischerei Finnlands_, p. 145, 1906. - -[1244] Minister of the Interior to Minister of Foreign Affairs, 28th -October 1868 ... “Cela s’explique: ces pêches, ayant lieu dans un golfe -considéré comme faisant partie de la mer territoriale de la Norvège, -out été regardées comme la propriété exclusive du pays. Cela ne peut -certainement pas cadrer avec les principes du droit international, -qu’on puisse tout à coup amener des changements dans une situation -légale qui repose sur une reconnaissance tacite de plusieurs siècles.” - -[1245] Letter of the Minister for Foreign Affairs, 7th November 1868. -“Aussi il est défendu aux sujets étrangers de faire la pêche dans ce -golfe, et cette défense s’applique également à la mer voisine et à -l’embouchure jusqu’à une distance d’une lieue marine à partir du point -le plus méridional du group d’îlots dit ‘Röst.’” - -[1246] Minister of the Interior to Minister for Foreign Affairs, 28th -January 1870. - -[1247] 20th August 1886. “Art. 7 ... Les deux parties contractantes -conviennent de considérer comme limites des mers territoriales de -leur côtes respectives pour tout ce qui se rapporte à l’application -des règlements de douane et aux mesures prises pour empêcher la -contrebande, une distance de trois lieues marines comptées depuis de la -ligne de marée basse.” A similar customs treaty, it may be mentioned, -was concluded between Mexico and Great Britain on 27th November 1888, -in which three marine leagues was stipulated by each country “as a -limit of their territorial waters on their respective coasts,” strictly -for customs purposes. “The two Contracting Parties agree to consider, -as a limit of their territorial waters on their respective coasts, the -distance of three marine leagues reckoned from the line of low-water -mark. Nevertheless, this stipulation shall have no effect, excepting in -what may relate to the observance and application of the Custom-house -Regulations and the measures for preventing smuggling, and cannot be -extended to other questions of civil and criminal jurisdiction or of -international maritime law” (Hertslett, _Treaties_). It is of interest -to note, however, that the ordinary limit adhered to by the British -Government so rigorously in connection with fishery rights, may be -legitimately extended by treaty in order to protect the revenue. - -[1248] Auber, _op. cit._, 141. - -[1249] Foreigners are forbidden to carry on fishing within the -territorial waters, the most recent law relative to this subject -being that of 2nd June 1906. Instructions to the commanders of the -Norwegian cruisers, dated 22nd December 1906, with reference thereto, -describe the limit as an “ordinary sea mile” (measured as described), -the equivalent distance being stated at 7529 metres, which is equal to -4·065 mean nautical miles, or 4·68 English statute miles. A law of 1908 -prohibits trawl-fishing within the territorial waters. - -[1250] _Le Droit International_, i. 349; _Dict. de Droit -International_, 501. Bluntschli endeavours to place the doctrine on a -philosophical but absurd basis, by stating that the sovereignty over -the sea extended originally only to a stone’s-throw from the coast, -later to an arrow-shot, and then according to the range of firearms. - -[1251] _Das Moderne Völkerrecht_, s. 307-9. - -[1252] _Commentaries upon International Law_, I. viii. cxcviii. - -[1253] _International Law_, 135. - -[1254] _Commentaries on Criminal Law_, iv. c. 5, s. 74. - -[1255] _Introduction to the Study of International Law_, s. 56. - -[1256] Wheaton’s _International Law_, 8th ed., p. 359. - -[1257] _The Law of Nations in Time of Peace_, s. 172. - -[1258] _Trattato di Diritto Internazionale Pubblico_, ii. c. 3, pp. -65-67. - -[1259] In Fiore, _Nouveau Droit International Public_, note, p. 372. - -[1260] _Das Internationale Öffentliche Seerecht der Gegenwart_, p. 21 -_et seq._ - -[1261] _International Law_, 399. - -[1262] _Droit Commercial Maritime_, 10. - -[1263] _La Mer Territoriale_, 36. - -[1264] _Neutralitetens Lagar_, i. s. 160; _Annuaire de l’Institut de -Droit International_, xii. 140. - -[1265] _Norges Offentlige Ret_, 79-81; _Annuaire_, xi. 141. - -[1266] _Revue générale de Droit International Public_, No. 1. - -[1267] _A Treatise on International Law_, 4th edition, 1895, p. 160. - -[1268] _International Law_, i. 242 (1905). - -[1269] The Committee of the Association was composed of ten -members--viz., Sir Travers Twiss, President; Sir George Baden-Powell; -Hon. D. Dudley Field, New York; Dr F. Sieveking, President of the -Hanseatic High Court of Appeal, Hamburg; Mr E. H. Schweigaard, -Christiania; Rear-Admiral P. H. Colomb; E. Edouard Clunet, Paris; Dr -E. N. Rahusen, Amsterdam; Mr T. H. Haynes; and Mr (now Sir) Thomas -Barclay, Paris, who was Secretary. The Committee of the Institut -comprised twenty-four members, including Sir Travers Twiss; Professor -Westlake; Professor Lorimer; M. Desjardins, Advocate-General of the -Court of Cassation; Feraud-Giraud, Judge of the French Court of -Cassation; Harburger, Judge of the Court of First Instance at Munich; -Hartmann, Privy Councillor, Hanover; Perels, Director of the German -Admiralty; Marquis d’Olivart, Ex-Professor of International Law, -Madrid; Edouard Rolin, Editor of the _Revue de Droit International_; -&c. M. Renault, the Paris Professor of International Law, was appointed -“reporter” to the Committee, but this position was soon occupied by Sir -Thomas Barclay. - -[1270] Most of the English members who expressed their opinion, as Sir -Travers Twiss, Professor Holland, and Mr Moore, preferred to retain the -limit at three miles; Professor Westlake favoured five miles. - -[1271] _Report from the Select Committee on Sea Fisheries_, 1893; -_Seventeenth Rep., International Law Assoc._, p. 103, 1896; _Annuaire -de l’Institut de Droit International_, xiii. - -[1272] “Il en est ainsi pour les _firths_ écossais.... Toutes ces baies -sont considérées comme étant sous la domination exclusive de l’État -riverain.” _Annuaire_, 23. - -[1273] _Annuaire de l’Institut de Droit International_, x., xi., xii., -xiii. _Reports, International Law Association_, xv., xvi., xvii. - -[1274] 49 Vict., c. 95. - -[1275] 38 Vict., c. 18; Order in Council, 28th November 1876. - -[1276] _Award of the Tribunal of Arbitration_, p. 23. Declarations made -by the Tribunal of Arbitration, 1893. As the Behring Sea case has been -often referred to in recent controversies about the right of fishing, -as having affirmed the three-mile limit as the true international -boundary of the territorial sea, the facts may be briefly recalled. -In 1867 the United States purchased from Russia the territory of -Alaska with its dependent islands, &c., and an American company, -very powerful financially and politically, was formed in 1870, which -obtained a lease of the Pribilov Islands in order to engage in the -fur-seal industry. Under the Act of Congress of 1870 which enabled this -to be done, it was made unlawful to kill any seals upon the islands, -“or in the waters adjacent thereto,” except during certain specified -months. Sealing vessels, both from the United States and from British -Columbia, began to frequent Behring Sea and the waters adjacent to -the islands; their competition impaired the practical monopoly of -the Company in the markets for seal-skins; and in 1886 three British -vessels were seized by American revenue cruisers at distances of 70, -75, and 115 miles from the land, and the masters and mates were fined -and imprisoned for illegal sealing. Up to 1890 other eleven British -sealers were similarly seized and dealt with for fishing at distances -between 15 and 96 miles from land, and five others were ordered out -of Behring Sea. In the negotiations which followed, the American -Government first pled a virtual _mare clausum_ for the whole of Behring -Sea; then that they had jurisdiction up to 100 miles from land; and -lastly, that they had special property in and right of protection over -the fur-seals in Behring Sea and frequenting the islands for breeding -purposes. The Tribunal of Arbitration decided that they had not this -right of protection or property “when such seals are found outside the -ordinary three-mile limit.” Then the Tribunal, in terms of the treaty -appointing them, prescribed the regulations above referred to, leaving -to Great Britain the honours of the contest, and to the United States -the advantage. The true lesson to be derived from this chapter of -international diplomacy, is not that the high tribunal reaffirmed the -three-mile limit as the legal boundary of the territorial sea, which -they did not do (see letter from Baron de Courcel, the President, p. -664), but that that limit may be set aside and a much wider boundary -fixed (in this instance 60 miles) if the protection and preservation -of a marine fishery require it. It may be added that of late years -pelagic sealing by Japanese has greatly increased in Behring Sea, and -since the regulations apply only to British and American subjects, the -Japanese carry on their operations up to the ordinary three-mile limit -around the Pribilov Islands, and sometimes within it, there having -been several encounters with the American patrol-boats involving loss -of life, and heavy fines have been inflicted on offenders. In the -summer of 1908 a fleet of thirty Japanese schooners, some with sixteen -boats, were thus engaged, and according to the Government agent, they -effectually blocked the escape of the seals from the islands. The agent -says that in the last ten years the seal herds have diminished almost -three-fourths, and if the slaughter by the Japanese is not put a stop -to, complete destruction of the industry will follow. Thus, while the -British are compelled to keep sixty miles off the islands, and can only -kill the seals with spears, the Japanese operate up to three miles from -shore, and can use firearms or any other method. It is stated that some -of the British Columbia sealers are endeavouring to nationalise their -vessels in Japan, so that they may be able to fish under the Japanese -flag. In April 1910, when the lease of the Company expired, the United -States Government did not renew it, but took the seals under their -own protection, and an Act was passed prohibiting the killing of the -fur-seal unless authorised by the Secretary of Commerce and Labour. - -[1277] _Parl. Papers, Russia_, No. 1 (1895). Correspondence respecting -the Agreement with Russia relative to the Seal Fishery in the North -Pacific. Seal Fishery (North Pacific) Act, 1893, 56 Vict., c. 23; Order -in Council, 4th July 1893. - -[1278] The Western Australian Pearl and Bêche-de-mer Fishery -(Extra-Territorial) Act, 1889. - -[1279] An Act for the further Encouragement and better Regulation of -the British White Herring Fishery, 48 Geo. III., c. 110, s. 60, 46. -Section 60: “And whereas it may be useful to provide a jurisdiction -for preserving order and settling disputes among persons carrying on -the fishery for herrings on the coast and in the lakes of Scotland; -be it therefore enacted, That the jurisdiction of the sheriffs and -stewarts depute of Scotland, and their substitutes, shall be extended -over all persons engaged in catching, curing, and dealing in fish -in all the lochs, bays, and arms of the sea within their respective -counties and stewartries, and also within ten miles of the coasts of -their said counties and stewartries, and that in as full and ample a -manner as the same is exercised over the inhabitants of these counties -and stewartries; and if any loch, bay, or arm of the sea shall adjoin -to two or more counties or stewartries, or any part of the sea shall be -within ten miles of the coasts of two or more counties or stewartries, -the sheriffs and stewarts of the said counties shall have and exercise -a concurrent jurisdiction over such persons as aforesaid, in any such -loch, bay, or arm of the sea which shall be in or opposite to their -respective counties and stewartries, or any part of the sea within the -aforesaid distance of the coast thereof.” - -[1280] _Report of Commission on Sea Fisheries_, 1863, p. lxvi. - -[1281] Trawling, and, in particular, steam-trawling, is practically -unknown in America; but in recent years French steam-trawlers have -begun to frequent the Newfoundland banks. - -[1282] _Annual Reports_, Fishery Board for Scotland; _Journal of the -Marine Biological Association, &c._ - -[1283] For the earlier periods the statistics are incomplete. In 1863 -the number of sailing trawlers was 955, of which 650 to 700 fished in -the North Sea, 530 belonging to Ramsgate, Yarmouth, Grimsby, and Hull; -in 1883 the aggregate was estimated at 3000, some being large vessels -of ninety tons; in 1889 there were 230 steamers and 2323 smacks; in -1899 the steamers numbered 1186 and the smacks 1637. - -[1284] Garstang, The Impoverishment of the Sea, _Journal Marine Biol. -Assoc._, vol. vii. p. 47, 1900. - -[1285] Return of the Number of Steam Trawlers registered at Ports in -the States of Western Europe in the Year 1907, _Parl. Papers_, Cd. -4236, 1908. - -[1286] _Report of the Commissioners appointed to inquire into the Sea -Fisheries of the United Kingdom_, vol. i., 1866. The late Professor -Huxley and Mr Shaw Lefevre (now Lord Eversley) were two of the -commissioners. - -[1287] _Report on the Sea Fisheries of England and Wales_, 1879 -(C.--2449). The commissioners were Mr Frank Buckland and Mr (afterwards -Sir) Spencer Walpole. - -[1288] _Report of the Commissioners on Trawl-Net and Beam-Trawl -Fishing_, 1885 (C.--4328). - -[1289] “That taking into consideration that the question of the -destruction of immature fish is one of international importance, it -is, in the opinion of this meeting, imperative in the public interest -that an International Conference be held to consider the desirability -of recommending legislation upon the subject; and this meeting of -practical fishermen further requests of Her Majesty’s Government to -take immediate steps to bring about such Conference at the earliest -possible date.” _Fisheries Exhibition Literature_, vol. iv. pp. 346, -355. - -[1290] Conference of Representatives of the Trawl-Fishing Industry, -held at the Inns of Court Hotel, London, 13th November, 1888. “1. -That we find a large and distressing diminution in the North Sea -of soles, turbot, plaice, and all flat fish, and view with alarm -the future, unless some steps are immediately taken to prohibit the -catching of immature fish.” 2. “That the Conference petition Her -Majesty’s Government, urging them to enter into negotiations with all -Continental Governments to establish an international law to prohibit -the wilful catching of immature fish, and to make it unlawful to offer -such immature fish for sale.” 3. “That copies of the resolutions be -forwarded to the President of the Board of Trade asking for immediate -action, and to the President of the National Sea Fisheries Protection -Association, asking that Association to undertake the responsibility of -a measure for legislation, and to do all they can for the protection -of immature fish in and around the coasts of the North Sea and other -coasts of the United Kingdom upon which breeding-grounds exist.” - -[1291] Conference of the Trawl-Fishing Industry of the East Coast -Ports, held at Hull, 30th April 1890. 1. “That this Conference of the -Trawl-Fishing Industry of the East Coast, consisting of delegates from -Hull, Grimsby, Yarmouth, Lowestoft, Scarboro’, and Boston, having -realised the enormous loss which the trade has sustained year by -year through the wholesale capture and destruction of immature and -inedible fish, hereby resolves that the time has come when a strong -and united effort should be made to put a stop to this growing evil; -and as a preliminary step in this direction, it is agreed by the whole -of the delegates here assembled, for themselves individually and the -Companies, Corporations, Fleets, and Associations they represent, to -abstain during the coming summer from fishing on the grounds where -immature fish are generally caught in great abundance, such grounds -being specified in the next Resolution.” 2. “That the Fishing Grounds -or Nurseries where experience has found immature fish to be most -prolific, and which are referred to in the foregoing Resolution, shall -be defined as follows: That part of the North Sea the Eastern Boundary -of which is the German and Danish Coasts; the Western Boundary, -Longitude 7 deg. 30 min.; the Northern Boundary, Latitude 56 deg.; -the Southern Boundary, 53 deg. 50 min.” The third resolution defined -immature lemon soles, soles, turbot, brill, and plaice; and the fourth -expressed the opinion that it was “highly necessary for the future -wellbeing of the trade, and for the preservation of an important -food-supply, that Parliament should be asked to impose restrictions -upon the sale and purchase of immature fish”; and the delegates -were instructed to press for legislative interference, national and -international. - -[1292] International Conference of Representatives of Maritime Powers -convened under the auspices of the National Sea Fisheries Protection -Association, to discuss the Question of Remedial Measures necessary to -be taken for the Preservation and Development of the Fisheries in the -Extra-territorial Waters of Europe, 1890. _Minutes of Proceedings._ -The Conference passed a resolution that an official international -conference of European maritime powers should be held with the view -of concluding a convention for the preservation of undersized fish; -and another, proposed by Dr P. P. C. Hoek, the delegate for the -Netherlands, that before such a conference met, “the different nations -interested in the sea fisheries of European waters should collect, -with as little delay as possible, sufficient information, scientific -as well as statistical, with regard to the damage done by the capture -of undersized fish by their fishermen.” The author, who was present, -conscious of the advantages of international co-operation, if the -programme and conditions were appropriate, proposed that Dr Hoek’s -resolution “should be modified in the way of recommending that a joint -scheme of investigation might be drawn up by the countries concerned”; -and on the motion of Captain C. F. Drechsel, the delegate for Denmark, -who approved of it, the delegates adjourned to consider this proposal. -The result, however, was merely the tabling of a resolution, which -was adopted, “That the National Sea Fisheries Protection Association -be requested to formulate a set of questions with a view to obtaining -scientific and statistical information in relation to undersized fish, -and forward it to each delegate, in order that he may submit it to his -Government for adoption”--with what result does not appear. _Ibid._, -pp. 21, 34, 36, 37. - -[1293] “Your Committee are sensible of the difficulties of making -international regulations, but are nevertheless of opinion that the -best method for effectively governing the operations of the various -classes of fishermen, and, at the same time, for securing, so far as it -may be found possible, the proper protection of spawning and immature -fish, would be to throw the responsibility of these duties, so far as -the waters immediately adjacent to the various countries are concerned, -on those various countries; that, for the effective realisation of this -object, the present territorial limit of three miles is insufficient, -and that, for fishery purposes alone, this limit should be extended, -provided such extension can be effected upon an international basis, -and with due regard to the rights and interests of all nations. Your -Committee would earnestly recommend that a proposition on these lines -should be submitted to an international conference of the Powers who -border on the North Sea.” _Report from the Select Committee on Sea -Fisheries_, 377, 1893. The Chairman of the Committee, which consisted -of fourteen members, was Mr Marjoribanks (the late Lord Tweedmouth); -among the others were Sir Albert Rollit, Mr Buchanan, and Mr (now Lord) -Heneage. The report was presented to the House of Commons and ordered -to be printed on 17th August 1893. - -[1294] _Special Report and Report from the Select Committee on the -Sea Fisheries Bill_, 1900 (287): “Your Committee think that it is -proved beyond doubt that there is a very serious diminution of the -supply of certain kinds of flat-fish, particularly in the North Sea. -Of late years the total quantity of such fish caught has remained -nearly stationary. This fact, when taken along with the enormously -increased catching power and the vastly larger area of sea subjected -to fishing operations, seems to show that the ancient fishing-grounds -are much depleted. The whole of the local evidence, differing in many -other respects, is practically unanimous as to this point. It seems -clear that the evil is a growing one, and that in default of a remedy -the consequences to the fishing industry in the diminished supply of -flat-fish will at no very distant future be disastrous.” The late Mr -(afterwards Lord) Ritchie, President of the Board of Trade, Mr Graham -Murray (now Lord Dunedin), and Captain Sinclair, now Lord Pentland, -Secretary for Scotland, were members of the Committee. - -[1295] “Your Committee feel that the subject of the diminution of the -fish supply is a very pressing one, and that the situation is going -from bad to worse. In their view, no effort ought to be spared (1st) -to arrange for international treatment of the subject generally, -and especially for regulation of the North Sea area; and (2nd) to -provide for the adequate equipment of the Government Departments in -charge of the subject, so that they may effectively pursue scientific -investigation and ascertain with sufficiency and precision what has -been done, either in the way of scientific research or in the matter of -practical legislation, by other inquirers and by other countries, with -the view of determining whether any, and if so what, legislation may be -desirable to effect the objects of the Bill.” _Ibid._, iv. - -[1296] _E.g._, “That this conference regards as conclusive the evidence -of a widespread diminution of the supply of food fishes in the North -Sea and adjacent grounds, and is of opinion that the only practicable -remedy is the prevention of landing and sale of immature and undersized -fish.” Nat. Sea Fisheries Protection Ass., 1902. - -[1297] _Report from, the Select Committee of the House of Lords on -the Sea Fisheries Bill (H.L.)_, 1904 (36). The Earl of Onslow, Lord -Tweedmouth, and Lord Heneage were members of this Committee. - -[1298] _Op. cit._ - -[1299] Thus from the year 1903 (when these statistics begin) to 1906 -the number of tons of bottom fishes landed on the East Coast of England -by first-, second-, and third-class fishing vessels, from the North Sea -and from beyond the North Sea, was as follows:-- - - 1903. 1904. 1905. 1906. - - From North Sea 260,313 230,975 207,440 217,567 - From beyond the North Sea 67,625 78,216 93,395 129,697 - -[Illustration: - -Fig. 28.--_Chart showing the Fishing-grounds frequented by British -trawlers. Depths under 100 metres represented in black; those from 100 -to 200 metres in shading._ - -From Report of the Board of Agriculture and Fisheries for 1906.] - -The particulars for all coasts are only given for 1906, and they show -that almost half of the total supply of bottom fishes in England and -Wales come from grounds outwith the North Sea. The figures are: from -North Sea, 217,571 tons; from beyond the North Sea, 203,863 tons. -Captain Walter S. Masterman, of the Board of Agriculture and Fisheries, -in a valuable report on his research work in the North Sea, states that -while the total quantity of bottom fishes taken within the North Sea by -steam-trawlers and landed on the East Coast of England has decreased -in the four years, 1903-1906, by 39,650 tons, or nearly 17 per cent, -the decrease in flat fish has amounted to 23,590 tons, or nearly 42 per -cent; and that “the decrease has been continuous from year to year, -especially in the case of plaice.” _Report on the Research Work of the -Board of Agriculture and Fisheries in relation to the Plaice Fisheries -of the North Sea_, 1908 (Cd. 4227). - -[1300] A leading representative of the trawling industry, Mr G. L. -Alward, thus described the process to the Committee of the Lords in -1904. The diminution, he said, was from over-fishing, “first of all -in our original old fishing-grounds. We denuded those, and found less -year by year as time went on. We then discovered new grounds, with, -in process of time, the same result. In going back originally, say to -about 1830 to about 1890, we found, at ground after ground, after being -fished for a few years, the same results; the fish became scarcer and -scarcer.” _Report_, p. 78. - -[1301] The quantity brought to England from Iceland and Faröe in 1907 -was nearly 117,000 tons, or nearly 26 per cent of the total quantity of -bottom fishes landed. _Board of Agriculture and Fisheries Annual Report -on Sea Fisheries for 1907_. Schmidt, _Fiskeriundersøgelser ved Island -og Færøerne i Sommeren_, 1903, p. 132. - -[1302] A sidelight is thrown upon the risks as well as the enterprise -of their labours by the fact that in 1908 a trawler’s crew, on the -one hand, fishing on the coast of Africa, fell into the hands of the -Moors; while another, whose vessel was wrecked near the White Sea, were -saved from starvation by the kindness of Russian Laplanders, who killed -reindeer for their sustenance. - -[1303] Trawlers, on discovering new and productive grounds, invariably -select out the fish that are most remunerative and throw the rest back -into the sea. “Hundreds of thousands of tons” of immature fish are -said to have been destroyed in this way in the North Sea, and what has -happened at Iceland with regard to mature fish is thus described in a -letter from one trawler to another, which was read by the recipient to -the Parliamentary Committee in 1893: “Dear Manton, ... At present the -trawlers who are running Iceland are throwing thousands of tons of good -mature fish away, which, if some scheme of storage were got up, the -fish sorted, and bought for food, would supply thousands in the year. -I have been to Iceland, and we have to throw away hundreds of tons of -good mature fish, such as haddock, supposed to be too large, and great -quantities of cod, ling, and other fish. The fact is, the ground, which -is valuable for fishing, is completely rotten with the refuse from the -trawlers. We have to haul every two hours, and we have to carry extra -hands to get rid of the fish and get the bit below we choose to save. -The ground is fairly poisoned, and the plaice-fishing not so brisk, -only in odd places; whereas before it was more general where there is -any trawling ground” (_Report cit._, p. 248). The grounds had only -been recently opened up when this was written. It is different to-day, -when 85 per cent of the fish brought back from Iceland are round fish, -chiefly haddocks and cod (_Ann. Rep. Sea Fisheries for 1906_, App., p. -15). It used to be the same in the North Sea, only prime fish being -taken, and haddocks, &c., thrown away. - -[1304] _Vida Marítima, Órgano de la Liga Marítima Española_, 1904, -1905; _Boletin oficial_. - -[1305] Sea Fisheries Regulation Act, 1888, 51 & 52 Vict., cap. 54. -Section 1 is as follows: “1.--(1) The Board of Trade may from time to -time on the application of a county council or borough council, by -order, (_a_) create a sea fisheries district comprising _any part of -the sea within which Her Majesty’s subjects have by international law -the exclusive right of fishing_, either with or without any part of the -adjoining coast of England and Wales; and (_b_) define the limits of -the district,” &c. _Sea Fisheries (England and Wales), Annual Reports -of the Inspectors_; _Board of Agriculture and Fisheries, Annual Reports -of Proceedings under Acts relating to Sea Fisheries_. An excellent -chart, showing the regulations with respect to trawling around the -English coast, is published in the _Report from the Select Committee of -the House of Lords on the Sea Fisheries Bill_, 1904. - -[1306] _Department of Agriculture and Technical Instruction for -Ireland: Report on the Sea and Inland Fisheries for 1907._ Part I., -General Report, pp. 56-62. - -[1307] _Report on the Sea and Inland Fisheries of Ireland for 1904_, p. -xxv. _Manual of Fisheries (Ireland) Acts._ Section 3 (subsection 1) of -the _Steam Trawling (Ireland) Act_, 1889 (52 & 53 Vict., c. 74), gave -powers to the Inspectors of Irish Fisheries to make, alter, and revoke -byelaws for prohibiting steam-trawling “within three miles of low-water -mark of any part of the coast of Ireland, _or within the waters of -any other defined areas specified in any such byelaw_, and subject to -any conditions or regulations contained in such byelaw.” Subsection -2 enacted that “each and every person who uses any trawl-net, or any -method of fishing in contravention of any byelaw of the Inspectors of -Irish Fisheries made in pursuance of this section,” shall be subject -to a fine not exceeding five pounds for a first offence, or twenty -pounds for a second or subsequent offence, with forfeiture of the -gear employed. Section 4 made it unlawful for “any person” to land or -sell in Ireland any fish caught in contravention of any such byelaw. -Section 1 (subsection 1) of the _Fisheries (Ireland) Act_, 1901 (1 Ed. -VII., c. 38), makes “every person who uses any trawl-net or any method -of fishing in contravention of any byelaw” of the department made in -pursuance of the third section of the Act of 1889, liable on conviction -under the Summary Jurisdiction Acts to a fine not exceeding one hundred -pounds, with forfeiture of the gear, for the seizure of which any duly -authorised officer is empowered to “go on board any vessel propelled by -steam employed in fishing.” The Irish byelaws must be approved by the -Lord-Lieutenant and Privy Council of Ireland. - -[1308] _Sea Fisheries (Clam and Bait Beds) Act_, 44 & 45 Vict., c. 11. - -[1309] 48 & 49 Vict., c. 70; 50 & 51 Vict., c. 52. - -[1310] 48 & 49 Vict., c. 70. - -[1311] 1st Feb. 1886, 18th April 1887, 25th April 1887, &c. _Manual of -Sea Fisheries (Scotland) Acts and Statutory Bye-laws_, pp. 253-257. - -[1312] See pp. 592, 643. - -[1313] _Ibid._, p. 255. - -[1314] _The Herring Fishery (Scotland) Act_, 1889, 52 & 53 Vict., c. -23. Section 7.--(1) “The Fishery Board may, by byelaw or byelaws, -direct that the methods of fishing known as beam trawling and otter -trawling shall not be used within a line drawn from Duncansby Head, in -Caithness, to Rattray Point, in Aberdeenshire, in any area or areas to -be defined in such byelaw, and may from time to time make, alter, and -revoke byelaws for the purposes of this section, but no such byelaw -shall be of any validity until it has been confirmed by the Secretary -for Scotland.” The next section prohibits the landing or sale in -Scotland of any fish caught in contravention of the Act or byelaws. - -[1315] “11.--(1) The Fishery Board may, by byelaw or byelaws, -direct that the methods of fishing known as beam trawling and otter -trawling shall not be used within a line drawn from Rattray Point, in -Aberdeenshire, to the Farne Islands, in Northumberland, in any area or -areas to be defined in such byelaw, and may from time to time make, -alter, and revoke byelaws for the purposes of this section.” - -[1316] _A Bill [as amended in Committee] intituled An Act for the -better Regulation of Scottish Sea Fisheries_ (52), s. 10, February 1895. - -[1317] _Sea Fisheries Regulation (Scotland) Act_, 1895, 58 & 59 Vict., -c. 42. Section 10.--(1) “The Fishery Board may, by byelaw or byelaws, -direct that the methods of fishing known as beam trawling and otter -trawling shall not be used in any area or areas under the jurisdiction -of Her Majesty, within thirteen miles of the Scottish coast, to be -defined in such byelaw, and may from time to time make, alter, and -revoke byelaws for the purposes of this section. Provided that the -powers conferred in this section shall not be exercised in respect to -any areas under Her Majesty’s jurisdiction lying opposite to any part -of the coasts of England, Ireland, or the Isle of Man, within thirteen -miles thereof.” (2) provided for a local inquiry to be held. (3) -“Provided that no area of sea within the said limit of thirteen miles -shall be deemed to be under the jurisdiction of Her Majesty for the -purposes of this section unless the powers conferred thereby shall have -been accepted as binding upon their own subjects with respect to such -area by all the States signatories of the North Sea Convention, 1882.” - -[1318] _Eighteenth Ann. Rep. Fishery Board for Scotland_, Part I., p. -xxxii. The information relating to this part of the subject is taken -mostly either from the _Annual Reports_ of the Scottish Fishery Board -or from Hansard’s _Parliamentary Debates_. - -[1319] See _Norges Officielle Statistik; Norges Fiskerier_, 1906, -pp. 17, 18. Sixteen steam trawlers were on the list as registered in -Norway in that year, but “they did not carry on fishing from Norwegian -ports,” and were not included in the list of _bona fide_ Norwegian -fishing-vessels. - -[1320] _Peters_ v. _Olsen_, 7, _Court of Session Reports_, 5th Series -(_Justiciary Cases_); 42 _Scottish Law Reporter_, p. 735. - -[1321] “In fact, the Moray Firth, within the line from Duncansby -Head to Rattray Point, is not the high seas, but is a bay or area -between these headlands _intra fauces terræ_,--between the jaws of the -land,--which has been called in England one of the King’s Chambers. -In law, such an area must be dealt with by the Courts of this country -as part of the territorial limits of Scotland, unless the Legislature -chooses to enact, in fairness to other countries or for any other -reason, that the extent of the space involved is too great to come -within the reasonable definition of a bay.” - -[1322] See p. 545. - -[1323] _Court of Session Reports_, 8 Fraser, p. 93. - -[1324] “For the purpose of regulating the police of the fisheries -in the North Sea outside territorial waters.” The use of the words -“territorial waters” and “exclusive fishery limits” indifferently for -the same thing is common, but improper. - -[1325] “I, George Milne Cook, Vice-Consul for Norway for Aberdeenshire -and the adjacent districts, by instructions of Herr Laveland, Minister -for Foreign Affairs of Norway, hereby protest, on behalf of the -Government of Norway, against any conviction of the masters of the -Norwegian trawling vessels _Stroma_, _Sando_, and _Catalonia_, provided -the trawling with which they were charged has taken place outside -the territorial limits, and I further protest against any punishment -or fines being inflicted in the Sheriff Court at Elgin on the said -masters.” - - (Sd.) GEORGE M. COOK. - - ELGIN, _31st January 1908_. - - -[1326] Hansard, vol. 169, pp. 557, 558, 988; vol. 170, pp. 1202, 1206. - -[1327] A letter appeared in the _Fish Trades Gazette_, on 14th October -1905, from Mr Hans Johnsen, the Fisheries Agent for Norway in Great -Britain, stating that he had resigned his membership of the National -Sea Fisheries Protection Association owing to the President (Lord -Heneage) having prevented him from reading at the annual conference of -the Association at Aberdeen, with reference to a resolution regarding -the Moray Firth, a letter from the Norwegian fishery authorities. His -object in endeavouring to speak on the resolution, he said, “was to -clear the Norwegian flag from having anything to do with the piracy -practised by Grimsby steam trawl-owners in the Moray Firth, and which -the Government of Norway and the Norwegian Fishery Board is highly -indignant at.” - -[1328] Hansard, vol. 170, pp. 472, 1206, 1246, 1383. - -[1329] In these Norwegian vessels there were a “flag-master” and a -“fishing-master,” the former, nominally in charge of the vessel, -being a Norwegian in order to comply with the registration laws, but -often, or usually, occupying a humble position, such as cook. The -“fishing-master” had the real control and occupied the master’s rooms -on board. He, like all or most of the crew, was English, resident at -Grimsby. - -[1330] In April the penalties ranged from £10 to £2, 10s., or two to -ten days’ imprisonment; in July they ranged from £1 or one day to £45 -or fourteen days; three cases were dismissed, one was found not proven, -and in five the verdict was not guilty; four cases were appealed to -the High Court by the Procurator-Fiscal and the appeal sustained. -_Twenty-Sixth Ann. Rep. Fishery Board for Scot._, Part I., App. L., II. - -[1331] Hansard, vol. 170, p. 472. - -[1332] See p. 707 _et seq._ - -[1333] Hansard, vol. 169, pp. 832, 991, 1037; vol. 170, pp. 786, 1246, -1247; vol. 192, p. 832. &c. - -[1334] _Ibid._ - -[1335] Thus, in the “Reply on behalf of Her Britannic Majesty’s -Government to the Answer of the United States of America,” submitted to -the International Fisheries Commission at Halifax in 1877, it was said: -“It is not understood that the Answer either raises or invites the -discussion of any rules or doctrines of international law, save such -as bear upon the question of what are to be considered the territorial -waters of a maritime State for the purposes of exclusive fishing. The -contention of the Answer in relation to these doctrines which requires -special attention, is that which asserts that Great Britain and other -Powers have traditionally recognised a rule, by which foreigners were -excluded from fishing in those bays only which are six miles, or less, -in width at their mouths. It is distinctly asserted on the part of Her -Majesty’s Government _that this alleged rule is entirely unknown to, -and unrecognised by, Her Majesty’s Government_, and it is submitted -that no instance of such recognition is to be found in the Answer or -the Brief accompanying the same, and that none can be produced.” This -was approved of by the Earl of Derby, Foreign Secretary (the Earl of -Derby to Mr Ford, August 31, 1877; the same to the same, Oct. 6, 1877). - -[1336] 11th Nov. 1908. Hansard, vol. 196, p. 236. Very important -declarations as to the territorial character of bays will be found -in the decision of the Permanent Court of Arbitration at The Hague, -on the North Atlantic Fisheries (7th September 1910, Award No. V.), -received as these sheets are passing through the press. The application -of the three-mile limit to bays was rejected, the following rule being -formulated: “In case of bays the three marine miles are to be measured -from a straight line drawn across the body of water _at the place where -it ceases to have the configuration and characteristics of a bay_. At -all other places the three marine miles are to be measured following -the sinuosities of the coast.” In its practical application to British -North America, the Tribunal recommended a ten-mile limit generally, -except for certain specified bays (including Chaleurs, Miramichi, -Egmont) where special lines, enclosing much larger areas, are proposed. - -[1337] Hansard, vol. 170, p. 1383. The miles referred to are English -statute miles. - -[1338] Hansard, vol. 191, p. 1769. - -[1339] Reports of the British Delegates attending the International -Conferences held at Stockholm, Christiania, and Copenhagen, with -respect to Fishery and Hydrographical Investigations in the North -Sea. _Parl. Papers_, Cd. 1313, 1903. Corresponding “Reports” to 1906 -(_Parl. Papers_, Cd. 2966/06, 3033/06, 3165/06). Conseil Permanent -International pour l’Exploration de la Mer, _Rapports et Procès-Verbaux -des Réunions_, Copenhague. A summary on the subject, by Dr A. T. -Masterman, will be found in the Minutes of Evidence, Committee on -Fishery Investigations (_Parl. Papers_, Cd. 4304, p. 479, 1908). - -[1340] “2. The delegates should propose that the scientific -investigations shall be accompanied by a practical _exposé_ of the -steps to be taken in order to bring the exercise of sea-fishing more in -accord with the natural conditions regulating the growth and increase -of fish in our seas, and thus permanently increase the supply of fish -in the markets of the countries adjoining the North Sea. 3. In making -this proposal, which they should do at the outset, the delegates should -make it clear that the principal object the British Government have in -directing them to take part in the Conference, is to secure a careful -inquiry into the effect of present methods of fishing in the North Sea; -and the delegates should give every assistance in promoting a scheme -for determining whether protection against overfishing is needed, -and, if so, where, when, and how such protection should be given. 4. -The delegates should propose that a thorough scheme for obtaining -statistical information with regard to the quantity and quality of fish -caught by the different methods of fishing shall be organised, with a -view of determining whether protection against overfishing is needed, -either by the prohibition of trawling in certain selected areas or the -limitation of fishing during certain selected seasons.”--Instructions -to the British Delegates for the Meeting at Stockholm, 15th June 1899; -Reports of the British Delegates, &c., p. 13. _Parl. Papers_, Cd. 1313, -1903; Committee on Fishery Investigations, Minutes of Evidence, &c., p. -278, _Parl. Papers_, Cd. 4304, 1908. The instructions of the British -Government to the Delegates for the Meeting in 1901, at Christiania, -were of similar tenour:--“His Majesty’s Government fully share in -the interest shown in the cause of scientific research, but having -regard to the importance of the evidence which was laid before the -Select Committee of the House of Commons [see p. 709], and which was -adopted by them as showing that the supply of fish in the North Sea is -decreasing, they are of opinion that the consideration of this subject -will admit of no delay, and you should press on your foreign colleagues -the importance of entering at once upon the pursuit of investigations -calculated to lead to an international agreement. You should in no -way discourage or check any desire which you may find to exist for -scientific research into problems not so immediately pressing, but his -Majesty’s Government place in the forefront of their reasons for taking -part in the forthcoming Committee the desire that no delay should be -incurred in the adoption, by international agreement, of measures for -arresting the diminution of the supply of fish in the North Sea, and -for restoring, as far as possible, that source of supply to its former -abundance.” _Ibid._, p. 278. - -[1341] _Memorandum drawn up by the Expert Members of the Ichthyological -Research Committee_, Report of the Committee appointed to Inquire and -Report as to the Best Means by which the State or Local Authorities -can Assist Scientific Research as applied to Problems affecting the -Fisheries of Great Britain and Ireland (_Parl. Papers_, Cd. 1312, p. -xxii, x, 1902). _Evidence of Mr Walter E. Archer, Assistant-Secretary, -Board of Agriculture and Fisheries_, Minutes of Evidence given before -the Committee appointed to inquire into the Scientific and Statistical -Investigations now being carried on in relation to the Fishing Industry -of the United Kingdom, pp. 277, 288, 346, 359 (_Parl. Papers_, Cd. -4304, 1908). - -[1342] Reports of the British Delegates, &c., _Parl. Papers_, Cd. 1313, -p. 72, 1903. The countries represented were Great Britain, Germany, -Denmark, Belgium, the Netherlands, Norway, Sweden, and Russia. - -[1343] Hansard, vol. 169, pp. 992, 996; vol. 170, p. 786; and 11th Nov. -1908. - -[1344] Mr Frank Barrett, of Grimsby, thus referred to the condition -of the North Sea at the conference of the National Sea Fisheries -Protection Association in 1905: “Unless they did something as a -counterpoise to the continual trawling which was going on, they would -find themselves powerless as regarded that splendid fishing-ground, the -North Sea. He did not believe the North Sea, if left to itself, could -last for ever. He was one of those who thought it could not last very -long; and he thought they should apply the lessons of science in order -to rehabilitate the North Sea.” _Fish Trades Gazette_, Oct. 14, 1905. - -[1345] Mr G. L. Alward, one of the leading and most experienced -trawl-owners of Grimsby, who was invited to take part in a discussion -on sea fisheries in the Zoological Section of the British Association -in 1906, thus referred to the subject. He said: “There was no doubt -that the North Sea was deteriorated as a fishing-ground, and in order -to maintain an adequate supply they had had to explore fresh fields. -They had shifted the trawling-grounds to the coasts of Faröe, Iceland, -and Norway, while others had had to go out into the Atlantic, to the -Bay of Biscay, and to the coast of Morocco. But if they had exhausted -the 147,000 square miles of the North Sea,--every mile of which had -been fished,--and they fished out the area between Norway and Faröe and -Iceland, not more than forty or fifty thousand square miles, with the -same rapidity, they had to look forward to nothing short of a dearth of -fish and a rise in value to famine prices.” _Aberdeen Free Press_, 9th -August 1906. - -[1346] According to an interesting table on a chart appended to the -_Annual Report of the Board of Agriculture and Fisheries_ for 1906 (see -fig. 28), the areas, in square miles, between the three-mile limit -and the 200-metre line, are as follows: North Sea, 152,473; North of -Scotland (Orkney and Shetland), 18,096; West of Scotland, 32,099; West -of Ireland, 9066; Irish Sea, 15,743; Southwards of Ireland, 50,416; -Bristol Channel, 8613; English Channel, 25,238. The area at Iceland is -36,608, and at the Faröes, 4949 square miles. - -[1347] Hansard, vol. 169, p. 996; vol. 196, p. 217. I have been -courteously informed by Mr Bjarni Sæmundsson, of Reykjavik, a -well-known authority on the fisheries of Iceland, that no laws -proposing to extend the territorial waters were passed, or proposed, by -the _Althing_. - -[1348] Hansard, vol. 170, p. 786. - -[1349] On Mem. 1 the words “le dit Roi Dengleterre et” follow -“Procurors.” - -[1350] Mem. 1 and 8, “de touz autres de son Roialme.” - -[1351] Mems. 1, 14, and 15, “il ny ad.” Mem. 8, “du temps qil ny ad.” - -[1352] Mem. 8, “aueroient este.” - -[1353] Mem. 1, “oue touz les Isles et les apportenaunces.” - -[1354] Mem. 1, the words are “estatuitz et defenses comunes et priuees” -and the rest is omitted to “sur toute manere des gentz taunt,” &c. Mem. -8, “communes et priuees a garder pays et droiture entre tote manere des -gentz tant,” &c. Mem. 15, “estatuitz et defences pur gouerner en toute -manere,” &c. - -[1355] Mems. 1, 8, 14, 15, “come de lour propre.” - -[1356] Mem. 1, “oue.” - -[1357] Mems. 1, 8, and 15, “oue.” - -[1358] Mem. 1, instead of gouernement, “a la generalte”; Mem. 8, “a la -garde.” - -[1359] Mems. 1, 8, and 15, “le dit Roi.” - -[1360] Mem. 1 omits “Dengleterre.” - -[1361] Mems. 1 and 8, “Rois Dengleterre deputez eient este.” - -[1362] Mem. 8, “de la dite seignurie et garde.” - -[1363] Mems. 1, 8, 14, and 15, “forspris.” - -[1364] Mems. 1, 8, and 15 insert “et.” - -[1365] Mem. 15, “a.” - -[1366] Mem. 1, “ou mesfaitz”; Mem. 8, “ou de mesfaitz.” - -[1367] The sentence from “Et come” to “Coustumes” is omitted on Mems. -1, 8, and 15. - -[1368] Mems. 1 and 8 omit “en vne cedule anexe ayceste,” and Mems. 1, -14, and 15 omit the whole of the next paragraph, recommencing “Monsieur -Reymer Grimbaus.” Mem. 8_d_, paragraph commencing “Primerement.” - -[1369] Mem. 8, “et a maintener.” - -[1370] Mem. 8, “excepte pur le dit Roy.” - -[1371] Mem. 8, “le dit Roy.” - -[1372] Mem. 14 omits “et.” - -[1373] Mems. 1 and 8 omit “Dengleterre.” - -[1374] Mems. 1, 14, and 15, “du dit Roi.” - -[1375] Mems. 8 and 15 insert “les.” - -[1376] Mems. 1, 8, and 15 insert “et marchandises.” - -[1377] Mem. 1 omits “et.” - -[1378] Mem. 1 omits “de Fraunce.” - -[1379] Mems. 1, 14, and 15 read (here and elsewhere) “ceo.” - -[1380] Mem. 8 omits “et la prise,” &c., recommencing, “sur la -forfaiture,” &c. - -[1381] Mem. 14, “ou.” - -[1382] Mem. 8 inserts “et.” - -[1383] Mems. 1, 14, and 15, “sa.” - -[1384] Mems. 1 and 8, “de par le dit Roi.” - -[1385] Mem. 1, “de la”; Mems. 8, 14, and 15, “de le.” - -[1386] Mems. 1, 8, 14, and 15 insert “a vous Seigneurs.” - -[1387] Mems. 8 and 14, “qil.” - -[1388] Mem. 8 inserts “il.” - -[1389] Mems. 1, 14_d_, and 15 complete the passage as follows: “Come -il purra suffire et en sa deffaute son dit seignur le Roi de Fraunce -par qi il estoit deputeez al dit office et qe apres dewe satisfactioun -faite as ditz damagez le dit Monsieur Reiner soit si duement punitz -pur le blemissement de la dite alliance qe la punicioun de lui soit as -autres example [Mem. 8, ‘ensample’] pur temps auenir.” Mem. 15 ends -here. Mem. 8 transposes the next paragraph and the last. - -[1390] Mem. 1, “aunciens”; Mem. 14, “auncienes.” - -[1391] Mems. 1, 8, and 14, “ne.” - -[1392] Mems. 1, 8, and 14 omit “nefs.” - -[1393] Mem. 8, “leurs.” - -[1394] Mem. 8, “doiuent.” - -[1395] Mem. 8. “deuantdiz.” - -[1396] Mems. 1 and 8, “les.” - -[1397] Mems. 1 and 8, “ses.” - -[1398] Mem. 8, “soy.” - -[1399] [_Sic_]: not previously mentioned; probably Johan Paderogh. - -[1400] _See_ below. - -[1401] Side-note says: “The said goods have been delivered to Will. -Bush.” - -[1402] _24th Aug. 1303, Saturday._ - -[1403] _St Lawrence_, _Aug. 10_. - -[1404] _29th Sept. 1303, Sunday_. - -[1405] Differences found in copy, _State Papers, Dom._, Chas. II., Vol. -339, p. 589, are shown in brackets. - - -[Transcriber's Note: - -Manuscript abbreviations on pages 765-767 have been changed to modern -letters due to the unavailability of suitable characters. - -Inconsistent spelling and hyphenation are as in the original.] - - - - - -End of Project Gutenberg's The Sovereignty of the Sea, by Thomas Wemyss Fulton - -*** END OF THIS PROJECT GUTENBERG EBOOK THE SOVEREIGNTY OF THE SEA *** - -***** This file should be named 54977-0.txt or 54977-0.zip ***** -This and all associated files of various formats will be found in: - http://www.gutenberg.org/5/4/9/7/54977/ - -Produced by MWS, Wayne Hammond and the Online Distributed -Proofreading Team at http://www.pgdp.net (This file was -produced from images generously made available by The -Internet Archive) - -Updated editions will replace the previous one--the old editions will -be renamed. - -Creating the works from print editions not protected by U.S. copyright -law means that no one owns a United States copyright in these works, -so the Foundation (and you!) can copy and distribute it in the United -States without permission and without paying copyright -royalties. 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