Opening…

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.

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.

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

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

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

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

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

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

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

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

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

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

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

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

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.

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

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

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

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]

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.

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.