Presented to the

UNIVERSITY OF TORONTO
LIBRARY

by the

ONTARIO LEGISLATIVE
LIBRARY

1980

3

The Sovereignty of the Sea

-7^!

"British Seas,''' according to Selden.

*

*' msn .;

The Sovereignty of

An Historical Account of the

Claims of England to the Dominion of
the British Seas, and of the Evolution
of the Territorial Waters : with special
reference to the Rights of Fishing
and the Naval Salute

BY

THOMAS WEMYSS FULTO

LECTURER ON THE
SCIENTIFIC STUDY OF FISHERY PROBLEMS, THE UNIVERSITY OF,

WITH ILLUSTRATIONS

William Blackwood and Sons

Edinburgh and London

191 1

ALL RIGHTS RESERVED

/ DEDICATE THIS BOOK TO

WIFE

PREFACE.

IN this book I have endeavoured to bring together from all
available sources such information as exists as to the claims
formerly made to the sovereignty of the British Seas, and to
trace the evolution of the territorial waters in recent times.
The work was originally undertaken with the intention of
dealing only with these subjects so far as they related to the
sea fisheries, but it soon became apparent that to restrict the
scope in this way would involve considerable disadvantages,
and would enable only a partial picture to be presented. For
though during a large part of the period with which the book
is concerned, the question of the fishery was the main question
in determining the claim to sea sovereignty, and is the one of
the greatest frequency at the present day with respect to the
territorial waters, it was by no means the only one. The
freedom of commerce to regions more or less remote ; the
jurisdiction of a State in the sea which washed its shores or
which it claimed as belonging to it ; the naval salute or
homage to the flag, and various other matters, were commonly
bound up with the question of the fisheries. It was therefore
deemed more satisfactory to treat the subject as a whole, even
though this necessarily involved much additional labour.

The book is divided into two sections, the first comprising
an historical account of the pretensions to the dominion of
the sea ; the second dealing with the relic of such preten-
sions, 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

vni PREFACE

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 de-
cayed 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 negotia-
tions 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 Newfound-
land, 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

PREFACE ix

temperate presentation of the British case by Sir Robert Finlay,
but chiefly, it cannot be doubted, to the growing feeling of
goodwill between the two great branches of the Anglo-Saxon
race. It is to be hoped that similar differences now pending
and to come, as to the fisheries on other coasts, may be adjusted
in a corresponding spirit of amity and compromise. The fish
in the sea, as Dr Nansen has said, are not the property of any
particular nation. They are, if the word may be used, inter-
national, 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 equit-
able 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 — hav.e 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 Socie"te Imperiale
Russe de pisciculture et de peche, St Petersburg; and Dr

X PREFACE

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 Roche", Paris ; Dr Eugene
Canu, Boulogne-sur-mer ; Senor 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 assist-
ance 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 com-
pletion of the book.

It is right to add that I alone am responsible for all the
opinions expressed, unless when otherwise stated/

T. WEMYSS FULTON.

41 QUEEN'S ROAD, ABERDEEN,
January 1911.

CONTENTS.

INTRODUCTION/

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 —
Merchant 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 preten-
sion 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

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

CHAPTER I.

EARLY HISTORY.

Alleged sea sovereignty exercised by ancient Britons, Romans, and
Anglo - Saxons — King Edgar — Canute — Norman, Angevin, and
Plantagenet kings — The Channel or Narrow Sea — The safeguarding
of the sea — Admiralty jurisdiction — Impressment of ships —
Liberty of navigation and fishing — The question of tribute —
English kings as lords of the sea — King John's ordinance as to
lowering sail to a royal ship — The sovereign lordship in the so-
called Sea of England — The roll De Superioritate Maris Anglice
— Complaint against Reyner Grimbald — Nature of jurisdiction
exercised in Sea of England . . . . .25

I

Xll CONTENTS

CHAPTER II.

THE FISHERIES.

Importance of fisheries in middle ages — Ecclesiastical fasts — A great
herring fishery — Foreign fishermen frequent British coasts — The
question of freedom of fishing — Licenses to French to fish in the
Channel — Treaties guaranteeing liberty for foreigners to fish on the
British coasts — The " Burgundy " treaties — The Intercursus Magnus -
— Practice in Scotland differed from that in England — Waters
reserved for natives, and foreigners excluded — Treaties with the
Netherlands — Acts of the Parliament of Scotland 57

CHAPTER III.

UNDER THE TUDORS.

Decay of English fisheries — Influence of Reformation — Rise of Dutch
fisheries — The " Political Lent " — Cecil's inquiries and proceedings
— Legislation to protect the English fisheries and encourage the
consumption of fish — First complaints against foreign fishermen on
English coast — Hitchcock's "Pollitique Platt" — His scheme of a
national fishery association to compete with the Dutch — Proposals
of Dr John Dee to tax foreigners fishing on British coasts — Claim
advanced to the sovereignty of the sea — Supposed limits of British
seas — Queen Elizabeth opposes all claims to Mare Clausum —
Spanish and Portuguese pretensions to dominion on the great
oceans — Negotiations with Denmark as to trading and fishing at
Iceland and Norway — Queen Elizabeth's exposition of the principles
of the freedom of the seas — Further legislation to promote the
fisheries — Failure of the policy of fish-days — The striking of the
flag .

>
CHAPTER IV.

UNDER THE STUARTS. JAMES I. A NEW POLICY.

Change of policy as to freedom of fishery — The " King's Chambers "
defined and described — Limited to questions of neutrality— Begin-
ning of struggle with Dutch for commercial and maritime suprem-
acy— 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 —

CONTENTS Xlll

Complaints of encroachments of Hollanders in England and Scot-
land— Petition from Cinque Ports for protection — Privy Council
consider unlicensed fishing by foreigners — Recommend proclama-
tion 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 em-
bassy of 1610 — Fishery question postponed — Other fishery schemes
— The queen's proposals — Records to be searched to establish king's
jurisdiction at sea and right to the fishings . . . .118

CHAPTER V.

JAMES i. — continued. DISPUTES WITH THE DUTCH.

Grant of " assize-herrings " in Scotland to Duke of Lennox — Considered
by Scottish Council — James instructs that the tax be levied from
foreign fishermen — Mr John Brown collects them in 1616 from
Dutch — Protest by Dutch ambassador — Dutch naval commanders
ordered to prevent further payments — Brown again sent in 1617 —
Seized and carried to Holland by Dutch man-of-war — Repudiation
of act by States-General — Further complaints in Scotland against
Dutch — Representations by British ambassador at Hague — " Land-
kenning" or range of vision claimed as limit — Scottish Council
asked to prevent Hollanders from fishing within sight of land —
Dutch edict of 1618 — Assize-herrings again demanded by the
Restore — Mare Clausum in the Arctic Seas — Spitzbergen whaling
disputes — Dutch embassy of 1618 — Evasion of fishery question —
James's displeasure — Threats to use force — Fishery treaty again
postponed — A limit of fourteen miles requested — Dutch concession
— Proposals regarding whaling at Spitzbergen — Assize - herrings
again demanded by the Charles — The Dutch strengthen their con-
voying 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

CHAPTEE 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 —

XIV CONTENTS

Difficulties with Scottish burghs — Charles requests Scottish Privy
Council to further the scheme — Strenuous opposition in Scotland
— Claim of "reserved waters" advanced — Commissioners on be-
half of England and Scotland appointed — Prolonged negotiations
— Extent of reserved waters denned — Modifications proposed —
Burghs petition Charles to prevent the Hollanders from fishing in
Scottish waters — Fisheries declared to be under the royal preroga-
tive— 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 ..... 20!>

CHAPTER VII.
CHARLES i. — continued. THE NAVY.

Need of a strong navy — Insecurity of seas from pirates — Violations of
King's Chambers and ports by Dutch and Dunkirkers— Proclama-
tion 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 — Lind-
se/s queries — Proceedings of the fleet — Rumours in London —
Friction with the admiral — Fails to meet the French fleet — Riche-
lieu's strategy, and proposals as to salute — Licenses for Dutch
herring-busses — Lindsey quits the fleet — Discontent at his failure
— The question of the salute becomes very prominent — Doubts
and queries as to the custom in enforcing it — Practice on foreign
coasts — Between ships and forts — Arrogance of English captains
— Usual compliance of the Dutch — British merchantmen the
worst offenders 246

CHAPTER VIII.

CHARLES i. — continued. THE NAVY.

The second ship-money fleet — Placed under the Earl of Northumber-
land— 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 Northumber-
land— The proceedings of the fleet — Cruise in Channel — Royal

CONTENTS XV

proclamation forbidding foreigners from fishing without license
in British seas — Northumberland goes in quest of Dutch herring-
busses — Licenses forced upon them — English men-of-war left to
" guard1' 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 — Inter-
vention 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 — Mis-
representations 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 dis-
content 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 Pen-
nington — The battle in the Downs — Action of English fleet —
Humiliation of Charles — The Dutch the real masters of the seas . 286

CHAPTER IX.
CHARLES i. — continued. THE JURIDICAL CONTROVERSIES.

Mare Liberum and Mare Clausum — Dawn of international law —
Claims to maritime dominion conflict with commercial expansion
of period — Opinions of publicists previous to Grotius — De Castro
— Vasquius — The Mare Liberum of Grotius — Its origin and object
— Arguments of Grotius against appropriation of seas — His later
work and opinions — Opponents of Mare Liberum — De Freiras —
Pacius — Wei wood — His Abridgment of All Sea Laives 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' Sover-
aignty 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 recog-
nised— The king's eulogy — The character of Mare Clausum — Its

XVI CONTENTS

facts and arguments — Absolute sovereignty claimed for English
crown — Anxiety in Holland — States-General resolve on an official
refutation of Mare Clausum — Graswinckel's treatise — Pontanus 338

CHAPTER X.

THE PARLIAMENT, THE COMMONWEALTH, AND THE PROTECTORATE.
THE FIRST DUTCH WAR.

Claim to the sovereignty of the sea and the salute continued — Instruc-
tions 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 — Pro-
positions 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 Eng-
land— 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 Common-
wealth 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 . . 37g

CHAPTER XL

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

CONTENTS XV 11

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

CHAPTEE 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

XV111 CONTENTS

CHAPTER XIII.
CHARLES II. — continued.

THE THIRD DUTCH WAR.

Policy of Louis XIV. — The Triple Alliance — Secret compact of
Charles and Louis against the Dutch — Parliament deceived —
Pretexts for a fleet — Ill-feeling against Dutch fomented — Inquiries
by Sir Leoline Jenkins as to striking and extent of British seas
— The king's yacht, Merlin, sent to pick a quarrel about the flag
— The scheme miscarries — Downing's mission to The Hague —
Capture of Dutch shipping — Attack on Smyrna fleet — Declara-
tion 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 diaries, the Cambridge — English commander con-
demned to death for striking to the Spaniards — Masters of foreign
merchantmen prosecuted in Admiralty Court for refusing to strike *
— "Works on the sovereignty of the sea — Evelyn — Molloy — Further
schemes to promote the fisheries ..... 474

CHAPTER XIV.

JAMES II. AND AFTER.

Gradual decline of the pretension to the sovereignty of the sea —
England and the United Provinces allied against France — Louis'
ordinance regarding the salute — William III. claims the sovereignty
of the narrow seas — The question of striking becomes of little
international importance — The Admiralty instructions concerning
— Disputes about it less common — Encounter with a Swedish
man-of-war — The case of the Gironde — The naval historians on

CONTENTS XIX

the sovereignty of the sea — Articles regarding striking in later
treaties — The ceremony abandoned after the battle of Trafalgar —
General claims to maritime dominion give place to international
arrangements — Sir Philip Meadows — His treatise against the
dominion of the seas — Definite boundaries begin to be fixed for
fisheries — Fishery disputes between Denmark and the United
Provinces — Great Britain sides with the Dutch in opposing claims
to Mare Clausum — The North American fishery treaties of the
eighteenth century — The claim to the sovereignty of the seas dies
out — Decay of the Dutch fisheries and rise of the British . .517

SECTION II.— THE TERRITORIAL WATERS.
CHAPTER I.

THE HISTORICAL EVOLUTION OF THE TERRITORIAL SEA.

Various limits proposed or adopted — The old English lawyers, Glan-
ville, 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 — Juris-
diction 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 Puffen-
dorf — Opinion of publicists at end seventeenth century — Usage in
seventeenth century — Decisions of High Court of Admiralty regard-
ing 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, Hiibner, 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 Azuui (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

XX CONTENTS

CHAPTER II.

GENERAL ADOPTION OF THE THREE-MILE LIMIT.

Cannon-range and three-mile limit as its equivalent introduced into-
English Jurisprudence in 1800, 1801 — Lord Stowell's decisions
regarding the Twee Gebroeders and the Anna in British High
Court of Admiralty — Restricted to questions of neutrality—-
The practice of Great Britain and the United States leads to
general adoption of three-mile limit — First applied to fisheries (of
North America) by Great Britain — Treaty of 1818 — Negotiations
concerning Behring Sea — Russian claim of 100 miles — Adoption of
gunshot or three miles — Judicial decisions as to extent of territorial
sea — The Bristol Channel — Conception Bay — Statutes relative
to territorial waters — Foreign Enlistment Act — Territorial
Waters Jurisdiction Act — The Franconia case — Three-mile
limit restricted to the open coast for certain purposes only —
Bays excluded — The Hovering Acts — Customs' jurisdiction — Quar-
antine Acts — Opinions of publicists of earlier part of nineteenth
century — Rayneval, Chitty, Schmalz, Kliiber, Wheaton, Kent,
Manning, Heffter, Reddie, Ortolan, Hautefeuille, Pistoye and
Duverdy, Masse — Summary — Most accept cannon-range — Few
accept the three-mile limit . . . . . 576

CHAPTER III.

THE FISHERY CONVENTIONS.

Ill 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 — Con-
vention 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 Con-
vention 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

CONTENTS XXI

by British Government — Licenses to American vessels — A six-mile
limit for bays conceded — Treaty of Washington, 1871 — Terminated
by United States, 1885 — Treaty of Washington, 1888 — Precise
delimitation of bays — Treaty not ratified by United States —
Modus vivendi conceded and still in force — Discussion as to bays —
Renewed disputes in North Sea — The Belgian " Devil " — The
Higgin's Inquiry — Conference at Hague, 1881 — Views of British
Government as to territorial limit — Question of dependent banks —
Trawling and preservation of fish — North Sea Convention, 1882 —
Sweden and Norway refuse to join — Discussion of its terms —
Views of British Government as to inclusion of banks — Question of
the Eddystone, the Bell Rock, the Seven-Stones Rocks — Discussion
as to limit under the Conventions and under the Law of Nations —
Anglo-Danish Convention, 1901, respecting the Faroes and Iceland 604

CHAPTER IV.

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

Apparent discrepancy between general practice and the opinions of
publicists — No state has formally defined the extent of its terri-
torial 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 re-
served— 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-Fodere,
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

XX 11 CONTENTS

CHAPTER V.

THE INADEQUACY OP 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 inter-
national 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 — Prose-
cutions 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

CONTENTS xxiii

APPENDIX.

A. The Libel regarding Reyner Grirnbald. De Superioritate Maris

Angliae 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

E. Declaration of the Jury of the Trinity House as to the Limits of

1604

the King's Chambers, 4th March ,™v . . . 753

loUO

F. Proclamation of James I. for the Eestraint 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

/. 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 ^ 762

Ibob

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, 21*A 1651 .770

N. 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

0. 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 77T

LIST OF ILLUSTRATIONS.

no. 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 KEYMEft's SIGNATURE TO HIS ' BOOK OF OB-

SERVATIONS ' . . . . . .127

€. 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 CON-

VOYING 8HIP-OF-WAR. AFTER VAN DER MEULEN . . 299

12. FACSIMILE OF THE OFFICIAL ACCOUNT OF THE MONIES RE-

CEIVED FROM THE DUTCH HERRING FISHERMEN FOR THE
KING'S LICENSES . . . . . .310

13. THE "SOVEREIGN OF THE SEAS." AFTER VANDEVELDE . 324

XXVI LIST OF ILLUSTRATIONS

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 DBS CHALEURS ..... 625

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

20. SHOWING THE LIMITS FOR THE ANGLO-DANISH FISHERY CON-

VENTION OF 1901 ..... 648

21. SHOWING THE TWO LIMITS IN DANISH WATERS. FROM

' DANSK-FISKER1TIDENDE ' .... 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 circum-
stance 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 ^ecurjn^Jthe_land from
Jnvasjonj then came the duty of aafagimrding. 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

A

2 THE SOVEREIGNTY OF THE SEA

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 per-

•i haps 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

<a> goliticaLaoYfireignty that existed as a matter of right, and
was duly recognised as such, apart from an actual pre_doinm-
ance 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 oi~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

INTRODUCTION 3

embraced in the term besides the question of naval ascendency.
There were jurisdictions of various kinds and for various pur-
poses. 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 enter-
prise 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 juris-
diction 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 border-
ing sea within which navigation was practically confined.
Sometimes the principle governing the ownership of rivers was
transferred in theory to the sea, the possession of the opposite
shores by the same state being held to entitle that state to the
sovereignty over the intervening water; or, if it possessed
only one shore, to the same right as far as the mid-line. In
most cases, however, the appropriation of the sea was effected
by force and legalised afterwards, if legalised at all, and
the disputes on the subject between different nations not
infrequently led to sanguinary wars.

The most notable instances are to be found among the early
Italian Republics. Long before the end of the thirteenth
century Venice, eminent for her commerce, wealth, and maritime
power, assumed the sovereignty over the whole of the Adriatic,
though she was not in possession of both the shores, and after
repeated appeals to the sword she was able to enforce the right
to levy tribute on the ships of other peoples which navigated

4 THE SOVEREIGNTY OF THE SEA

the Gulf, or to prohibit their passage altogether. The neigh-
bouring 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 domin-
ion 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

1 The possession by Venice of this maritime sovereignty was symbolised each
year for many centuries by the picturesque ceremony of " espousing " the Adriatic.
On Ascension Day the Doge was rowed to the strains of music in a magnificent
gilded state barge, the Bucentaur, to the channel of Lido, where he cast a ring
into the water, exclaiming as he did so, " We espouse thee, 0 Sea, in sign of a
real and perpetual dominion" (" Desponsamus te mare in signum veri perpetuique
dominii "). The Papal nuncio and representatives of other states assisted at the
ceremony.

INTRODUCTION 5

of Bulls of the Pope and the Treaty of Tordesillas, divided the
great oceans between them. Spain claimed the exclusive right
of navigation in the western portion of the Atlantic, in the
Gulf of Mexico, and in the Pacific. Portugal assumed a similar
right in the Atlantic south of Morocco and in the Indian Ocean.
It was those preposterous pretensions to the dominion of the
immense waters of the globe that caused the great juridical
controversies regarding mare clausum and mare liberum, from
which modern international law took its rise. The task of
Grotius in demolishing them by argument was, however, materi-
ally facilitated by the exploits of Drake, Hawkins, and Caven-
dish on the part of the English, and of Jakob van Heemskerkj
on the part of the Dutch ; and, as we shall show, the credit of
having first asserted the freedom of the seas in the sens^
now universally recognised, belongs rather to our own Queer
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 appro-
priated 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 his-
torical 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 naviga-
tion 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.1 The lawless-

1 Twiss, The Law of Nations in Time of War, 142. Maine, International Law, 76.

6 THE SOVEREIGNTY OF THE SEA

ness 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. Inde-
pendent 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,1
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 trad-
ing 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 punish-
ment 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

1 Twiss, op. cit., 143, 144. Reddje, Maritime International Law, i. 41.

INTRODUCTION 7

as enemies, and the ships, vessels, and goods were to be seized
and forfeited and the crews punished. This is the first
evidence of the custom of lowering the top-sails and striking
the flag which afterwards became so notorious as a supposed
acknowledgment of the English sovereignty of the sea; and
it is to be noted that, in later times at least, the vessel had
not only to strike, but had also to " lie by the lee." Consider-
ing 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 explan-
ation 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 con-
nection 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.1 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,

1 Nicolas, Hist. Navy, i. 157.

8 THE SOVEREIGNTY OF THE SEA

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 sov-
ereignty 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 ex-
istence 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

INTRODUCTION 9

rights were, moreover, recognised in numerous treaties with
other nations.

Until the accession of the Stuarts indeed, any pretension
of England to a sovereignty in the sea had but little inter-
national 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 pre-
viously held, to be the waters under the special jurisdiction of
the crown, or, in other words, the " Sea of England," though
the latter doubtless included, at times at least, the Straits of
Dover and perhaps the Channel as well.

But James went further than this. In 1609 he issued a
proclamation in which he laid claim to the fisheries along the
British and Irish coasts, and prohibited all foreigners from
fishing on those coasts until they had demanded and obtained
licenses from him or his commissioners. This policy of
exclusive fishing, though in complete agreement with the

10 THE SOVEREIGNTY OF THE SEA

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 com-
mercial 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 cen-
tury 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 particu-
larly 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

INTRODUCTION 1 1

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 role 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 inter-
ruption 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 pro-
posed 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 memor-
able 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 North-

12 THE SOVEREIGNTY OF THE SEA

umberland 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 achieve-
ments 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

INTRODUCTION 13

of respect, thinking that it might be construed as an ac-
knowledgment on their part that the Republic of the Nether-
lands was inferior to the Republic of England. They had
dallied with the subject when it was brought before them
in connection with the instructions to their fleets, and had
refrained deliberately from giving precise orders about it.
The Commonwealth, on the other hand, assigned as much
importance to the striking of the flag as Charles had ever
done, considering that it touched their dignity as well as
their sovereignty in the seas, and the instructions they issued
to the naval commanders were practically the same as those
that had been given to the ship-money fleets. Even the godly
Barebones' Parliament of 1653, which looked upon the Dutch
as a carnal and worldly people, held it necessary that the seas
should be secured and preserved as peaceable as the land, as
a preparation for the coming of Christ and the personal reign.
The traditional sentiment of the English nation respecting
supremacy at sea had never been stronger; their jealousy of
the commercial pre-eminence of the Dutch was never keener.
In the prolonged negotiations that preceded the conclusion
of peace, Cromwell, who, until he became Lord Protector,
acted as spokesman for the Council, put the questions relating
to the dominion of the sea in the foreground. The draft
articles which he submitted to the Dutch for their acceptance,
while permitting their merchant vessels to navigate the British
seas (a provision offensive in itself), proposed to limit the
number of their men-of-war that might be allowed to pass
through those seas, and if occasion arose for a larger number,
the Dutch Government were to give three months' notice to
the Commonwealth and obtain consent before they put them
forth. Their men-of-war, as well as their merchant vessels,
were to submit to be visited and searched. The Dutch were
to have liberty to fish upon the British coasts on payment
of an annual sum for the privilege. They were to render
the honour of the flag to any ship of the Parliament. Of
all these demands the only one that was conceded was the
last, and it was a small triumph for Cromwell that he was
able, for the first time, to bind another nation to this ceremony
by the formal stipulation of a treaty. The Dutch, however,
were able to eliminate from the article the words representing

14 THE SOVEREIGNTY OF THE SEA

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 hood-
wink the English people as to this flagrant breach of treaty

INTRODUCTION 1 5

obligations. He therefore contrived, as the means of picking
a quarrel with the Dutch, a dispute about the honour of
the flag, and he sent, not a frigate, but his yacht, the Merlin,
to force the whole Dutch fleet to strike to it, and thus to
raise a clamour in England, as he hoped, about the sovereignty
of the sea being flouted and endangered. In the third Dutch
war which followed, the United Provinces maintained the
contest at sea with credit and success against both the English
and the French. For domestic reasons Charles was forced
to make a separate peace, and in the long negotiations with
that object the question of the sovereignty of the sea was
brought prominently forward. An attempt was made again
to induce the Dutch to agree to pay an annual sum of £12,000
for the privilege of fishing on the British coasts, but the
only concession obtained from them related to the striking
of the flag. The article in the treaty of peace which dealt
with this differed from the corresponding article in previous
treaties. The term "the British Seas" was omitted, and it
was agreed that even squadrons of the Dutch should strike
to any single ship of the king's in "any of the seas" from
Cape Finisterre to Van Staten in Norway; but it was to
be done as an "honour" to the king's flag, and not as an
acknowledgment of his alleged sovereignty of the sea. The
Dutch, indeed, offered to strike in the same way all the world
over.

After this time the English claim to the sovereignty of
the sea began to lose its importance. In subsequent treaties
with the Dutch Republic, even as late as 1784, a clause was
inserted providing for the salute, but it had become merely
a matter of form and precedent. The ceremony, in truth, had
grown to be a political encumbrance, and after the battle
of Trafalgar, when British supremacy at sea was unquestioned,
the clause relating to the enforcement of the salute was quietly
dropped out of the Admiralty instructions.

It is remarkable that throughout the whole of the long
period in which England claimed sovereignty in some form
or other over the so-called " Sea of England," or the " British
Seas," no authoritative definition was ever given of the extent
of sea included in the term. In the case of the Adriatic there
was no difficulty in understanding the limits within which

16 THE SOVEREIGNTY OF THE SEA

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 exer-
cised over them. They expanded and contracted according*
to the naval power at the time and the condition of inter-
national affairs. Sometimes the whole sea up to the con-
tinental 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.1 Similar phrases

1 " II sera banny hors dAngleterre et de mer appartenant au roi d Angle terre, ""
Article in Black Book, i. 58, ascribed to the reign of Henry I. (A.D. 1100-1135) ;.

INTRODUCTION 1 7

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.1 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.2

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 1830.3 Rarely the " Three Seas "
are mentioned,4 and less rarely the " Two Seas," by which was

"Ad piscandum in mari uostro, prope Jernemuth," Edward I., A.D. 1295, Fcedera,
ii. 688; "la meer Dengleterre," A.D. 1306, Chanc. Rolls, Misc. Treaties, &c., Bd.
14, No. 15 ; "super mare Anglicanum" (Rot. Pat., 14 Edw. II., pt. ii. m. 26, d.),
A.D. 1320, &c., &c. ; "partibus maris infra regnum nostrum Anglise," A.D. 1317,
Edw. II., Fcedera, iii. 469 ; A.D. 1406, Hen. IV., giving freedom of fishing,
"ubicumque supra mare, per et infra dominia, jurisdictiones, et districtus
nostra " ; "Seigneur de la mer," A.D. 1320, Fcedera, iii. 852; "reges Anglise
domini maris Anglican! circumquaque," A.D. 1336, Rot. Scot., i. 442; " domini
maris et transmarini passagii," A.D. 1336, Fcedera, iv. 721 ; "le roi de la mier,"
A.D. 1372, Rot. Parl., ii. 311 ; "seigneurs del meer," A.D. 1420, ibid., iv. 126,
&c. , &c.

1 Fcedera, xvi. 395 ; State Papers, Dom. 1604, 11, 40 ; Fcedera, xix. 211 ; Libelle
of Enylyshe Polycye ; Dee, General and Rare Memorials, 6 ; State Papers, Dom.
1662, 66, 50, "It is a fundamental Maxime of England, that the sea flowing about
the Isle of Great Britaine is of the same dominion with the isle " ; " the dominion
of the ambient seas."

2 Rot. Escheat., 41 Hen. III., A.D. 1259, referred to by Coke, 1. 107« ; Bracton,
Leyibus et Consuetudinibus Anglice, lib. v. c. xxx. fol. 437 (A.D. circa 1259) ;
Statutes of the Realm, 18 Edw. I. Stat. 4 (A.D. 1290) ; Rot. ParL, 13 Ric. II., "deinz
les quatre miers Dengleterre," &c.

3 Hall, On the Rii/hts of the Croitm in the Sea Shores of the Realm, p. 1.

4 "The guardian of his Majesty's three seas" (A.D. 1607). Ccesar Papers, MS.
Brit. Mus. Lansd., 142, fol. 373.

B

18 THE SOVEREIGNTY OF THE SEA

meant the two arms of the sea passing respectively between
England and France, and England and Flanders, and corre-
sponding 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 Englyahe
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,1 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." 2 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," 3 and likewise the sea off the Dutch coast ;
tuid' 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 re-
peated 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

1 " Thene here I ende of the comoditees j

Ffor whiche nede is well to kepe the sees ;

Este and weste, sowthe and northe they be ;

And chefely kepe the sharpe narowe see,

Betwene Dover aud Caleise."

<J Act* of the Privy Council of Enyland, N.S., i. 232, 242.
3 Wiuwood's Memorials, Hi. 50.

INTRODUCTION 1 9

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 defini-
tion 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 repre-
sentatives, 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." l 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, Ice-
land, 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 ex-
tent 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,

1 Mare Clautum, ii. c. xiii.

20 THE SOVEREIGNTY OF THE SEA

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 de-
clared 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 in-
frequently happened on particular occasions when a precise
definition of their extent was required, that only a vague dec-
laration 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 re-
sult. 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 pre-
tension to maritime sovereignty could be put forward and used
as a political instrument when the navy was strong and oc-
casion offered, and when the navy was weak the pretension

INTRODUCTION 21

might fall into the background without the national honour
being unduly tarnished. But on the whole, the claim to the
sovereignty of the so-called British seas became an anachron-
ism 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 cen-
tury 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, "terrse 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 opera-
tions of belligerents carried on beyond three miles from the
shore, while at the same time it furnished a practical measure
of the extent of the protection that neutral Powers were bound
to afford to the vessels of one belligerent from attacks by the
other. But all this is changed. Guns are now able to throw
shells to a distance of fifteen miles and more, and the three-
mile limit has become quite inadequate to secure the coasts of a
neutral from damage from the guns of belligerents engaged in
hostilities in the waters near their shores. The argument is

22 THE SOVEREIGNTY OF THE SEA

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 ex-
clusive 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

\

Oil"

CHAPTER I.

EARLY HISTORY.

WHEN the claim of the English crown to the sovereignty of
the British seas became a question of international importance
in the early part of the seventeenth century, the records of
history and the treasures of ancient learning were searched for
evidence to establish its antiquity. Some of the greatest law-
yers 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 exer-
cised by them during their possession of the island.1 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 Solinus2 in which Irish warriors are
described as decking the hilts of their swords with the tusks

1 Selden, Mare Clausum, lib. i. c. viii., lib. ii. cc. ii.-viii.

2 Polyhistor., c. xxiv.

26 THE SOVEREIGNTY OF THE SEA

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 clausiim pro-
fessed 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.1 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 main-
tained 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 gar-
ments of thy lord." In these words Selden professed to find

1 Mare Clausum, lib. ii. c. xi.

EARLY HISTORY 27

clear proof that Cnut claimed the British seas as part of his
dominions.1

There appears to be only one instance before the Norman
Conquest in regard to which priina facie evidence was pro-
duced 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." 2 According to William of Malmesbury,
who wrote in the twelfth century, Edgar usually styled him-
self the sovereign lord of all Albion and of the maritime or
insular kings dwelling round about,3 the assumption being that
he also exercised sovereignty over the intervening and surround-
ing 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.4 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,5 Wilkins,6 and by the more recent
authorities on Anglo-Saxon charters, Kemble,7 Thorpe,8 and

1 Mare Clausum, lib. ii. c. xii. " Canutus autem Rex suse ditionis esse Oceanum
Britaimicum verbis expressissimis item est testatus." Prynne uses the same
argument. Animadversions on Coke's Fourth Institute, 88.

2 Ed. Petrie, 395.

3 Gesta Regum Anglorum, i. 235 ; Eng. Hist. Soc. " Ego Edgarus totius Albionis
Basileus nee non maritimorum seu insulanorum Regum circumhabitantium."

4 " Ego Edgardus Anglorum Basileus omniumque Regum insularum, Oceanique
Britanniam circumjacentis cunctarumque nationum quae infra earn includuntur
Imperator et Dominus," &c. Dee, General and Rare -Memorials, 58, 60 ; Selden,
Mare Clausum, ii. c. xii. (quoting from a charter of Inspeximus, Rot. Pat.,
1 Edw. IV., m. 23); Prynne, op. cit., 87.

5 Concilia, i. 432. « Ibid., i. 239.

7 Codex Diplomaticus, ii. 404, vi. 237.

8 Diplomatarium Anglicum jEvi Saxonici, 211.

28 THE SOVEREIGNTY OF THE SEA

Birch,1 from which it appears that Edgar claimed to be, not lord
of the sea, but of the islands in the sea.2 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 estab-
lished. 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 there-
fore 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 role 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 ambas-
sador 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

1 Cartvlarium Saxonicum, iii. 377.

2 "Insularum oceani qua; Brytanniam circumjacent."

EARLY HISTORY 29

(A.D. 985), and North America (A.D. 861); and they founded
kingdoms or dynasties not only in England, but in France,
Sicily, Ireland, and Russia.1 In the presence of such irre-
pressible 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 Con-
quest 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 follow-
ing 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 territor-
ies of the king, and it acquired high importance as the passage
from one part of the realm to the other. It was in this connec-
tion and for the guarding of the coasts that the organisation of
the Cinque Ports was developed by the Norman and Angevin
kings.2 Even after the loss of the French provinces, the contin-
ued 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,3 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 commence-
ment of the twelfth century onwards, the Channel acquired
special significance from a military point of view, and it was

1 Worsaae, An Account of the Danes and Noriwgians in England, Scotland, and
Ireland ; Depping, Histoire des Expeditions maritimcs des Normands ; Beamish,
The Discovery of America.

2 Burrows, Cinque Ports, 62, 81.

3 Cunningham, The Growth of English Industry and Commerce during the Early
and Middle Ages, 173.

30

from this time that the importance of "keeping the narrow
seas " began to be recognised in English policy. The command
of the Channel was not only of value in safeguarding the coast.
The Channel formed the great avenue of commerce between
the north and south of Europe. The merchant vessels from
Venice, Genoa, and the Mediterranean, from Spain and France,
passed northwards through it on their way to Flanders and the
Baltic, and those from the Hanseatic towns and northern parts
had in like manner to traverse it in their southern voyages.
The Channel was thus crowded with shipping in summer, and
the nation which commanded it had the power of interrupting
the commerce of other nations, and consequently retained a
potent political weapon in its hands. It is this aspect of
"keeping the narrow sea" which forms the burden of the
remarkable old poem, The Libelle of Englyshe Polycye.

Moreover, in the period following the Norman Conquest
another condition came into existence in connection with the
security of the commerce passing through the Channel, which
throws light on the origin of the English claim to sovereignty
over it. As already mentioned, owing to the lawlessness that
prevailed on the sea after the break-up of the Roman empire,
when pirates and freebooters infested every coast, it became
customary for merchants to associate themselves together for
mutual protection. Their vessels sailed forth in fleets under
the charge of an elected chief, called the " admiral," and armed
vessels were frequently fitted out by them for the express
purpose of purging the sea of pirates. In the course of time
this duty of maintaining the police of the seas was taken over
by sovereign princes, who exercised, their jurisdiction through
an admiralty, and put in force the old " laws of the sea " which
had gradually grown up among the merchant associations.1
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

1 Twiss, The Law of Nations in Time of Peace, 244 ; ibic}., In Time of War, 142.

EARLY HISTORY 31

according to the old maritime laws, for the maintenance of
"peace and justice amongst the people of every nation passing
through the said sea." 1 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.2 The
evidence adduced, however, merely proves that measures were
taken for guarding the seas, defending the coasts, and sup-
pressing 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,3 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,4 but before this

1 See p. 51. 2 Mare Clausum, lib. ii. c. xiv.

3 " Pour garder la mere," " la garde du meer," " la sauve garde du nicer," " pro
custodia maris," " de custodia maritime," &c. See Proceedings and Ordinances
of the Privy Council of England ; Nicolas, History of the Royal Navy ; Prynne,
A nimadversions.

4 Fadera, i. 861 ; Nicolas, op. cit., i. 279, 437.

THE SOVEREIGNTY OF THE SEA

time the King of Castile and Leon had appointed an admiral
with similar duties, and an Admiral of all France was ap-
pointed about the year 1280.1 So too with the equipment of
fleets. Edward I. divided the ships charged with the guard-
ing of the seas into three squadrons, each with an admiral, — a
measure which, it was argued, showed his resolution to main-
tain 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 " (prcefectus 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.2 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,3 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,4 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.5
The argument of the English writers that these arbitrary pro-
ceedings were evidence of the dominion exercised by the kings
of England on their sea is rebutted by the practice in France.
Froissart6 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

1 Twiss, The Law of Nations in Time of Peace, 245.

2 Vide Twiss, Black Book of the Admiralty, i. 420.

3 Op. eit., lib. ii. c. xviii. 4 Twiss, ibid. , i. 64.

8 Nicolas, op. cit.t i. 131, 231, ii. 45, 84, 130, 176; Rot. Pat., 65 (1206);
Fcedera, i. 96 (1208).
6 Chronicles, ii. 497.

EARLY HISTORY 33

sovereignty — the right to exclude others from an equal use of a
particular sea by prohibiting navigation, at least of vessels of
war, and from fishing in it, or by imposing dues and conditions
for the liberty — there is scarcely a scrap of evidence to show
that any authority of the kind was exercised by England in
the adjacent seas. The circumstance is noteworthy, inasmuch
as other countries which then enjoyed undoubted maritime
sovereignty, did not permit unrestricted navigation or fishing
in the seas specially under their control, as Venice in the
Adriatic, and Denmark in the northern seas and in the Baltic.
The evidence concerning the liberty of fishing in the sea along
our coasts is dealt with in another chapter, but it may be said
here that this liberty was provided for in a series of treaties
with other Powers. As for liberty of navigation, it was
asserted, or rather implied, by Selden, in guarded language, that
the kings of England anciently possessed the power of refusing
it ; l 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 for-
feiture 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,
1 Op. cit., lib. ii. cc. xiii., xx.
C

34 THE SOVEREIGNTY OF THE SEA

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."1 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 Eng-
lish vessels, which had therefore to pay for passage through
the sea "just as one may exact payment for passage over
one's field." 2 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 prob-
ably made at the request of the merchants themselves, who
had been petitioning the king and Parliament for protection.3
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 peti-

1 Rot. Part., iii. 466; Nicolas, op. cit., ii. 260-280; Laughton, Studies in
Naval History, 16-22. The Yarmouth herring fishing suffered severely in these
years, and the fishermen equipped and armed vessels for their own defence, —
C'hronicon Anglice, ab A.D. 1328 usque ad annum 1388, p. 170, Rolls Series.

2 Op. cit., lib. ii. c. xv.

:t Rot. Parl., iii. 636, 391a ; Fcedera, vii. 220. " C'este 1'ordinance et grante
par 1'advis des Marchaundz de Londres, et des autres Marchaundz vers la North,
par assent de touz Communes de Parlement par devant le Comte de Northumber-
land et le Meair de Londres, pur la garde et tuicion du Mier," &c. The specified
dues throw some light on the commerce and fisheries of the period : (1) all vessels
or crayers navigating the seas within the limits of the admiralty of the north were
to pay a duty of sixpence a ton-tight, going and returning, with the exception of
those bringing wines and goods from Flanders to London, or carrying wool and
skins to Calais ; (2) vessels laden with goods belonging to merchants of Prussia,
Norway, or Scone (Scania) were to pay sixpence a last ; (3) vessels carrying coals
from Newcastle were to pay sixpence a ton every three months ; (4) sixpence
a- week per ton was to be paid by all vessels fishing for herrings within the said
admiralty, and sixpence every three weeks per ton by boats fishing for other fish.

EARLY HISTORY 35

tioned 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." 1 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 mari-
time 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,

1 A.D. 1420, Rot. Parl., iv. 126. "Item, priount les ditz Communes, que par
1'ou nostre tres soverain seignour le Roy et see nobles progenitours de tout temps
ount este" seignours del meer, et ore par la grace de Dieu est venuz que nostre dit
seignour le Roy est seignour des costes d'ambeparties del meer d'ordeigner que
sur toutz estraungers passantz parmye le dit tneer tiel imposition k 1'oeps nostre
dit seiguour le Roy apprendre qui a luy sernblera resonable, pur la salve garde del
dit meer."

36 THE SOVEREIGNTY OF THE SEA

though it may also have implied the idea of sovereign juris-
diction. 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.1 Later in the same year, in a com-
mission 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.2 These declar-
ations, 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

1 Rotuli Scotia, i. 442, " Nos advertentes quod progenitores nostri reges Augliae
Domini Maria Anglicani circumquaque et etiam defensores contra hostium inva-
siones ante hsec tempora extiterint," &c. Part of the language of this mandate
was copied by Charles I. in his ship-money writs. See p. 211.

2 Foedera, iv. 722. " Consideratio etiam quod progenitores nostri, Reges Anglise,
in hujusmodi turbationibus, inter ipsos et alios terrarum e,xterarum dominos motis,
domini maris et transmarini passagii, totis prseteritis temporibus, extiterunt," &c.

EARLY HISTORY 37

equally great victory over the Spaniards off Winchelsea (" Les
Espagnols sur Mer " ), commanding the fleet in person on each
occasion.1

It appears to have been in connection with the former
victory that Edward coined his famous gold noble, in which

Fig. I. — Edward's Noble.

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 oil the obverse
has been usually regarded as symbolic of Edward's power and
sovereignty on the sea. The unknown author of The Libelle
of Englyslce 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," 2 —

and it is always mentioned by the English writers on the
sovereignty of the sea as evidence that Edward exercised

1 Nicolas, op. cit., ii. 49, 106.

2 Political Poems, ii. 157. The author states that it was coined after Edward
captured Calais, when

"The see was kepte, and thereof he was lorde,
Thus made he nobles coigned of recorde. '

But Edward did not take Calais till 1347, while the noble was issued in July 1344.
Nicolas, loc. cit.

THE SOVEREIGNTY OF THE SEA

that sovereignty. A recent author1 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.2

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,3 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

1 Oppenheim, A History of the Administration of the Royal Navy, i. 7.

2 Cunningham, op. cit., 361. In the Libelle it is asked —

" Wher ben our shippes, wher beu our swerdes become?
Our enmyes bid for the ship set a sheep " ;

and the rubric of an anonymous commentator states that the advice quoted was
owing to the fact that while in the time of Edward III. the English were lords of
the sea, they were now in these days mad (vecordes), vanquished, and for waging
war and guarding the sea, like sheep. The jest is also alluded to by Capgrave,
Liber de Illustribus ffenricis, 135.

3 " Tous les pays tenoient et appelloient nostre avandit seigneur, le Roi de la
Mier."

EARLY HISTORY 39

royal power, by which there was great peril to all the realm.1
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 prom-
inent — 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 1635,2 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 contem-
porary critics. Prynne, who, like Boroughs, was Keeper of
the Records, printed it in 1669 from the Black Book of the
Admiralty? 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.4 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 1873.5 Twiss gives the

1 Rot. Parl., ii. 311. a Mare Clausum, lib. ii. c. xxvi.

3 Animadversions, 108.

4 Nicolas, op. cit., i. 156, but cf. ii. 481 ; Hannay, A Short History of the Royal
Navy, 15. Hannay, as well as the writer of the naval articles in Social England
(i. 138). was not apparently aware of the labours of Sir Travers Twiss mentioned
in the text.

5 The Black Book of the Admiralty, i. Intro, xiii et seq., 129 ; iii. Intro, i, x.

40 THE SOVEREIGNTY OF THE SEA

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 makeiug
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.1

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 L, 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 1420,2
and appears to have been drawn up for the use of Sir Thomas
Beaufort, the Lord High Admiral. The manuscript used by

1 " Item ordonne estoit a Hastynges pour loy et coustumes de mer ou temps du
roy Johan Ian de son regne second par advys de ses seigneurs temporelz que se le
lieutenant en aucun voyage ordonne par commun conseil du royalme encontrent
sur la mer aucunes nefz ou vesseaux chargees ou voide que ne veullent avaller et
abbesser leurs trefs ou commandement du lieutenant du roy ou de ladmiral du roy,
ou son lieutenant, mais combatant encontre iceulx de la flotte que silz puent estre
pris quilz soient reputez comme ennemys et leurs nefs, vesseaulx, et bien pris et
forfaitz comme biens des ennemys tout soit que les maistres ou possesseurs dicelles
vouldroient venir apres et alleguer mesmes les nefs, vesseaulx, et biens estre biens
des amys du roy nostre seigneur, et que le mayne estant en icelles soient chastiez
par emprisonnement de leur corps pour leur rebellete par discrecion." The above
is given by Twiss from the Whitehall MS. of the eighteenth century ; it does not
materially differ from the others. The Cottonian MS., which is stated to be the
earliest and purest, reads in both places "le lieutenant du roy ou ladmiralle du roy
ou soun lieutenant."

2 The Black Book, Intro, xix, Ixxvii. It is Vespasian MSjS., B. xxii.

EARLY HISTORY 41

Selden was probably written between 1430 and 1440 ; that
of the Black Book itself a little later, but still in the reign of
Henry VI.1 The others are not older than the seventeenth
century. None of the manuscripts is therefore contempor-
aneous 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,2 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 con-
sultations with the judges in 1338 on the subject of the mari-
time 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.,

1 The Black Book, iii. Intro, viii, x. See p. 410.
a Collection dcs Lois Ataritimes, iv. 199.

42 THE SOVEREIGNTY OF THE SEA

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.1

The best authority is therefore in favour of the authenticity
of the ordinance ; but whether it be held as genuine or apocry-
phal 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.2
In 1201 John still possessed both shores of the Channel, a cir-
cumstance 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

1 Collection des Lois Maritimes, i. Intro, pp. li, 129 ; iii. Intro, p. xi.

2 Mare Clausum, lib. ii. c. xxvi.

EARLY HISTORY 43

officers to be satisfied whether it was engaged in piracy or in
lawful trade.

Until the sixteenth century there is scarcely any evidence
to show that the " right of the flag," as it came to be called,
was enforced even in the Channel. The record of one such
incident, however, exists, which occurred in 1402, in the reign
of Henry IV., — and thus, it is interesting to note, before the
oldest extant manuscript containing John's ordinance was
written, — and, curiously, the place where the lowering of
the sails was demanded was not the Channel but the North
Sea. In the year mentioned, the town of Bruges complained
to the king and Council that a poor fisherman of Ostend,
named John Willes, along with another from Briel, while
fishing for herrings in the North Sea, had been captured by
an English vessel and taken into Hull, notwithstanding that
they were unarmed — a remark which is significant — and had
lowered their sails at the moment the English had called to
them.1 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
Do minus utriusque ripce, as when Normandy belonged to the
English crown. The rolls in question are still preserved in the

1 " Quanquain tarnen, ad primam vocem ipsorum Anglicorum, idem Johannes
Willes velum suum declinavit," &c., Fcedera, viii. 273 ; "omnes tamen inermes, et
velum suum, ad primum clamorem Anglicorum declinantes, " ibid., 277.

44 THE SOVEREIGNTY OF THE SEA

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.1

The documents were first brought into prominence by Lord
Coke2 and Selden,3 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 ap-
pointed 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.4 On 20th May 1303 a treaty of peace and alli-
ance was signed at Paris,5 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 in-
quire into the " encroachments, injuries, and offences committed

1 Chancery Rolls, Misc. Treaties and Diplomatic, Bdle. 14, No. 15. It is endorsed
De Superioritate Maris Anglice et Jure Officii Admirallatus in eodem. There are
several copies on separate membranes in the bundle — viz., 1, 8, 12, 14, 15, — and
they differ from one another, as indicated in the transcript in Appendix A. Prynne
(Animadversions, 109) says that besides the roll in the Tower from which Lord
Coke and Selden quoted, he discovered ' ' an ancient copy of it in the White Tower
Chappie," and among the Admiralty papers is a memorandum by Nicholas, undated,
but before 1631, on the records in the Tower respecting the Laws of Oleron aiid
the Sovereignty of the Seas, in which he says that "in ye little closset there" a
record in French exists, dated in the time of Edw. I. or II. , referring to the depre-
dations of Qrimbald. There is also a transcript in a collection of MSS. in the
British Museum (ffarleian, 4314) and a translation of the roll, in a hand of the
seventeenth century, in MS. Otho. E. ix. fol. 14.

2 Fourth Institute, cap. 22, p. ] 42.

3 Mare Clausum, lib. ii. c. xxvii., xxviii., xx., xxiv.

4 Rot. Pat., 26 Edw. I., part 2, memb. 24, in dorso. 5 Fcedera, i. 954.

EARLY HISTORY 45

on either side during the truce or sufferance between us and
the said King of France, on the coasts of the sea of England
and other neighbouring coasts, and also towards Normandy
and other coasts of the sea more remote."1 To these com-
missioners 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 Flem-
ings, with seizing their merchants and merchandise contrary
to the treaty at Paris : 2 —

CONCERNING THE SUPREMACY OF THE SEA OF ENGLAND AND THE
EIGHT OF THE OFFICE OF ADMIRALTY IN THE SAME.S ,

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 4 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

1 Selden, op. cit., lib. ii. c. xxvii., quoting from Rot. Pat., 31 Edw. I., m. 16,
which reads as follows: "Des enterprises, mesprises, et forfaitz en Treue ou en
Sufferance, entre nous et le dit Roi de Fraunce, dune part et dautre, es costeres de
la iner Dengleterre et autres per decea et ausint per deuers Normandie et autres
costeres de la mer per de la."

- The King of France ordered John de Pedrogue, a celebrated seaman of Calais,
to collect a fleet there and proceed with it to Holland against the Count of Flanders,
who had invested Zierikzee. Included in the fleet were eleven Genoese galleys^
under Reyner de Grimaldi, who was given the chief command by Philip, with the
title of " Admiral," John de Pedrogue acting under him. Nicolas (op. cit., i. 373)
gives a description of the fight.

3 The translation, for which I am indebted to Miss E. Salisbury, is from
membrane 12.

4 The expression is also used in a document of 1297, when Lord William de
Leybourne is described as "Admiral of the sea of the said King of England."
Fadera, i. 861.

46 THE SOVEREIGNTY OP THE SEA

sovereign lordship of the sea of England and of the isles within the
same, by ordinance and establishment of laws, statutes, and pro-
hibitions 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.1 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 messen-
gers 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

1 Coke (op. cit., 143) states that this refers to " De Botertort," who, he says, was
Admiral "of the sea coasting upon Yarmouth in Norfolk (right over against
France) and of that station in anno 22 Edw. I." Nicolas (op. cit., i. 270, 407)
states that Sir John de Botetourt was made commander of the northern fleet in
1293, and in the following year, when Edward divided his fleet into three squadrons,
the ships of Yarmouth and the adjacent ports were placed under his charge.

EARLY HISTORY 47

them and their kingdoms, they shall be good and loyal friends
and allies against every man living, and ready to die to defend,
keep, and maintain the franchises, liberties, privileges, rights,
dues and customs aforesaid ; Except (on the part of) the said
King of England, Monsieur John, Duke of Brabant, in Brabant,
and his heirs descended from him and the daughter of the
King of England, and except (on behalf of) our said lord the
King of France, the excellent Prince, Monsieur Albert, King
of Almaigne [and] his heirs Kings of Almaigne, and Monsieur
John, Count of Hainault in Hainault. And that the one
shall not be of counsel nor aiding where the other may lose life,
member, temporal estate, or honour.1

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 re-
ceivers 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 con-
cerning 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

The rest is on the back of the membrane.

48 THE SOVEREIGNTY OF THE SEA

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 Eeyner may be so duly punished for the vio-
lation of the said alliance that his punishment may be an example
to others in times to come.1] 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 al-
most all the neighbouring nations to belong to England.2
This is, however, not quite justified, because there is no record
at all to show any decision, or even whether the matter was

1 The part within brackets is to be found on the membranes 1, 14d, and 15,
but not on 12.

2 Mare Clausum, lib. ii. c. xxvii. Hall, in his excellent Treatise on International
Law (p. 141), and with reference apparently to this roll, says that exclusive dominion
over the English seas by the English king was acknowledged as early as 1299 (sic),
at a commission in Paris, by the representatives of the merchants and mariners of
the countries mentioned in the above document.

EARLY HISTORY 49

ever brought to proof, and no mention is made of the pro-
ceedings 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 l 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.2 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 doubt-
less those, or part of those, on which the De Superioritate
roll is based.3 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 Win-
chelsea 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 dis-
posed 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

1 See Appendix A. 2 Chancery Miscel. Rolls, France, Bdl. 5, No. 6.

3 See translation in Appendix B.

D

50 THE SOVEREIGNTY OF THE SEA

Richard Bush against " Reyner Gryrnaus," 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 de-
mand 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 Mickele
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 " con-
fesses 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 Micltele
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 un-
doubtedly 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 reason-

EARLY HISTORY 51

able 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 juris-
diction 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 connec-
tion with the consultation of the judges to which it refers.1 It
recites that, among a number of other things, the King's Justi-
ciaries 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 memor-
andum 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?

1 Chancery Rolls, Misc., Bdle. 14, n. 15, memb. 4.

2 " Infrascripti sunt articuli generates super quibus et fines ad quos Justiciarii
domini nostri Regis sunt consulend', et dominus noster Rex de eorum consilii>
certificand' in Cancellai-' sua in scriptis citra festum, &c.

" Item ad finem, quod resumatur et coutinuetur ad subditorum prosecu-
cionem forma procedendi quondam ordinata et inchoata per avum Domini
nostri Regis et ejus consilium ad retinenduin et conservandum antiquam
Superioritatem Maris Angliao et jus officii Admirallatus in eodem, quoad
corrigendum, interpretandum, declarandum, et conservandum leges et statuta
per ejus antecessores Angliae Reges dudum ordinata ad conservandum pacem
et Justitiam inter onmes gentes nacionis cujuscunque per Mare Anglue
transeuntes, et ad cognoscendum super omnibus in contrarium attemptatia

52 THE SOVEREIGNTY OF THE SEA

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.1 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 be-
gan 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

in eodem, et ad puniendum delinquentes et dampna passis satisfaciendum ;

quae quidem leges et statuta per Dominum Ricardum quondam Regem Anglise

in reditu suo a Terra Sancta correcta fuerunt, interpretata, declarata, et in

Insula Oleron publicata, et nominata in Qallica lingua La loy Olyroun."

According to Godolphin (A View of the Admiral Jurisdiction, 1661), the "form

of proceedings " refers to the statute of the Writ of Consultation, 24 Edw. I. , with

regard to the proceedings of the Courts. The following is on another membrane

in the same roll (mem. 2d), which contains ordinances agreed upon between the

masters and mariners of England, Bayonne, and Flanders, at Bruges, 8th March

1286. It is in the handwriting of the time of Edward III.

" Item a la fin qe veues et considerees les formes des proces et des lettres
ordeinees per les consaillers le dit aiel nostres seigneur le Roi pur eux et la
dite nacioun Dengleterre a recouerer et receuer les ditz subgitz aidaunz et
alliez et a faire redresser a eux toux les damages a eux donez en Mier et en
terre duraunz les dites trewes pees et confederaciouns et countre la forme
dycelles par les ditz Fraunceys aidaunz et alliez et eschuire clamour de poeple
sur la dite denatureste, &c., et les damages quiex de tiel clamour purroient
auenir et especialment a retenir et meintener la souereignete qe ses ditz
auncestres Rois Dengleterre solej'ent auoir en la dite mier Dengleterre quant
alamendement declaracioun et interpretacioun des lois per eux faites a gouerner
toutes maneres des gentz passanz per la dite mier. Et primerement a son
admirail et as meistres et mariners des nefs des Sync Portz Dengleterre et
des autres terres annex a la Corone Dengleterre entendaunt a sa armee en
la dite mier pur retenir et meyntenir la garde des lois auauntdites et la
puniscioun de toux faitz al encountre en la mier susdite Semblables formes
des proces et lettres soient desors tenues od toux les amendementz quiex
purrount estre ordeinez par le sage Counsail nostre Seignur le Roi a profist et
honur de lui et des soens."

1 Twiss (Slack Book of the Admiralty, ii. xliii ; ii. xi), who collected the old sea
laws of Europe, states that the most ancient extant source of modern marine law
are the Decisions of the Consuls of the Sea of the City of Trani, on the shores of
the Adriatic, which purport to be of the date A.D. 1063 ; and that the next most
ancient are the Judgments of Oleron, of which there are still copies, belonging to
the reign of Edward II., in the archives of the Guildhall, for use no doubt in the
City court, which administered the Law Merchant and the Law Maritime.

EARLY HISTORY 53

continued among the Admiralty regulations in subsequent
reigns, and it was part of the duties of the admiral to see
that they were duly observed in the seas within his juris-
diction. The powers of the admiral were extensive, as may
be seen from the memorandum of the fourteenth century de-
fining his office and duties, which has been published by
Nicolas,1 by those given by Twiss in the Black Book,2 and
later by Godolphin.3

At the time with which we are dealing the utmost lawless-
ness reigned on the sea, the depredations of undisguised free-
booters 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 um-
pires. In 1317, although there was peace between England
and Flanders, the mutual reprisals of the seamen and mer-
chants 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 " be-
tween their subjects.4 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 speci-
ally passed to declare the sea open to all merchants.5

With these circumstances in view, it can be readily under-
stood how desirable it was to have the maritime laws for the
security of commerce and shipping carefully considered and

1 Op. cit., i. 484. 2 Op. cit.

3 Op. cit. The specification of the duties within the cognisance of the Admiralty
occupies several pages ; they included " all cases of seizures and captures made
at sea, whether jure belli publicis, or jure belli privati by way of reprisals, or
jure nullo by way of piracy ... all causes of spoil and depredations at sea ;
robberies and pyracies," &c., &c.

4 M'Pherson, Annals of Commerce, i. 475, 485, quoting from fcedera.

5 18 Edw. III., st. 2, cap. 3. Several articles in the Black Book show the same
desire to encourage foreign merchants, and severe penalties were prescribed for the
robbing or wronging of foreign ships, or interference with their freedom to trade.

54 THE SOVEREIGNTY OF THE SEA

put iii 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 sor
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.1 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,

1 The Reading of the Famous and Learned Robert Callis. Esqr. , upon the Statute
ofSeivers, 23 Hen. VIII., c. 5, &c., 1622; ed. 1824, p. 48.

EARLY HISTORY 55

and finally, in 1320, envoys from Flanders arrived in London
during the sitting of Parliament, and a treaty was con-
cluded. In this it is stated that divers merchants of
Flanders, while "proceeding on the sea of England near
Craudon," 1 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 punish-
ment awarded, since he is lord of the sea, and the said robbery
was committed in the sea under his power." 2 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.3 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.4
Selden, who gives the document in which the previous pro-
ceedings are also recited,5 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 Nic-

1 "Sur la mere d'Engleterre, devers les parties de Craudon."

2 "Et prierent que le Roi, de sa seignurie et poer real, fait sente dreit et
punissement del dit fait, de siccome il est seigneur de la mer, et la dite roberie
fut fait sur la mer dans son poer, sicomme dessus est dit."

3 Nicolas, who gives the details referred to, says that there is no record of these
proceedings in the rolls of Parliament. Op. cit., i. 388.

4 "Et cum dicti nuncii ad tractandum de novo super hujusmodi dampnis per
dictum dominum nostrum Regem admissi fuissent, ipsi nuncii, prout alii nuncii
prsefati Comitis, in tractatibus supradictis, inter cetera quse requirebant, ante
omnia supplicabant, ut dictus dominus Rex ad sectam suam de potestate sua
Regia inquiri et justitiam faceret de quadam deprsedatione quibusdam hominibus
de Flandria nuper de vinis et aliia diversis mercimoniis suis super mare Anglicanum,
versus partes de Crauden, infra potestatem dicti domini nostri Regis, per homines
de regno Anglise. Ut dicebant facta asserentes quod vina et mercimonia prsedicta
eisdem Flandrensibus deprsedata adducta, fuerunt infra regnum et potestatem
dicti domini Regis, et quod ipse est dominus dicti maris, et deprcedatio prsedicta
facta fuit supra dictum mare infra potestatem suam." Rot. Pat., 14 Edw. II.,
pt. ii. m. 26, in dorso. Selden quotes this document (lib. ii. c. xxix.), but his
text varies from the above, thus : ". . . potestatem dicti domini Regis, et quod
ad ipsum Regem pertinuit sic facere pro eo quod ipse est dominus dicti maris."

5 Mare Clausum, lib. ii. c. xxix. p. 282.

56 THE SOVEREIGNTY OF THE SEA

olas 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 " Crow-
don," 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.1 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.

1 That " Crowdon " was in Brittany appears from a letter, dated from Plymouth,
9th December 1402, from Henry Beaufort, Bishop of Lincoln, the Earl of Somerset,
and the Earl of Worcester, who were sent to escort Joan of Navarre, Duchess of
Brittany, the second wife of Henry IV., to England. "Et par fin force pur un
temps nous faut demurrer en Bretaigne car la ou nous avoioms envoie au dite
nostre treshonuree et tresredoutee dame pur venir, noz niefs ne poiont ne osent
aler en le temps dyver. Et faut qele eit un leisir pur venir pardevers nous, dont
le havene que nous pensoms aler ove leide de Dieu est Crowdon." — Proceedings
and Ordinances of the Privy Council of England, i. 190.

57

CHAPTER II.

THE FISHERIES.

IT was with respect to the right of fishery on the British
coasts that the claim to maritime sovereignty was revived in
the seventeenth century, and with which it was chiefly con-
cerned. 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 pros-
perity 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 Govern-
ment. In some respects this liberty enjoyed was remarkable,
when one considers the practice in many other countries and
the value of the fisheries.

In the early and middle ages the sea fisheries were indeed
much more important relatively than they are now. There
was a greater demand for fish, and fishermen from various
countries — from France, Flanders, Spain, and England — made
long and distant voyages, extending to Iceland and even beyond

58 THE SOVEREIGNTY OF THE SEA

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.1 The fasts were strictly observed through-
out 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 impracti-
cable 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 exceed-
ing that for beef, mutton, or pork.2 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.3 In mediaeval times,
moreover, fishermen and fishing vessels constitued a consider-
able 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.

1 Allard, Du Poiston, considers comme Aliment dans Ics Temps anciens et moderncs.

2 Garrad, The Artc of War.

3 In the itinerary of a journey from England made by a Scottish nobleman to
join Edward I. in Scotland, it is recorded that herrings were purchased nearly
every day— atDunstable, Newport, Northampton, Leicester, Nottingham, Sherburn,
&c. Sixty fresh herrings at York, nearly forty miles from the sea in a straight
line, cost eightpence, and fresh haddocks and codlings were also bought.

THE FISHERIES 59

The herring fishery was by far the most important of all the
sea fisheries, and as this fish was found in greatest abundance
on the British coasts, foreign fishermen were attracted hither in
great numbers. It was with reference to the herring fishery
that exclusive claims were raised by England in the seventeenth
century, and it is desirable at the outset to understand the
policy which was pursued previously in regard to it both in
England and Scotland. At what period foreign fishermen first
began to frequent the British coasts is uncertain ; but we know
that within fifty or sixty years of the Norman Conquest fisher-
men 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
Duiibar, 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 " command-
ing 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.1 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

1 " Prohibeo etiam firmiter ne quis decimas suas eis injuste detineat sicut habue-
runt in tempore regis Davidis super meum forisfactum et ne quis in aquis eorum
piscari presumat . . . nisi per eorum licentiam."

60 THE SOVEREIGNTY OF THE SEA

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.1
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, arid 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.2 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.3 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

1 Fcedera, ii. 23. " Gent de Flaundres estre venuz sur mer, come Pescheurs," &c.

2 Ibid., ii. 37. The Flemish fishermen had probably gone up the Tweed after
salmon.

3 Ibid., ii. 688, dated 28th September. " Quia intelleximus quod multi
homines, de parti bus Hollandiae, Zelandire et etiam Frislandise, qui sunt de ami-
citia nostra, ad piscandum in mari nostro, prope Jernemuth," &c.

THE FISHERIES 61

July 1296 above a thousand men of Flanders, and others of
France, disguised as fishermen, were preparing to attack and
burn Yarmouth and neighbouring places, and the bailiffs and
men of the port were ordered to collect their ships to oppose
them. These proceedings show the lawless state of the sea in
those times. In the thirteenth century an extensive herring
fishing was also carried on by the Scots on the east coast,
especially in the Firth of Forth and the Moray Firth, and
particularly by the men of Fife, and cargoes of herrings, cod,
and haddocks, as well as salmon, were exported to England and
chiefly to London, but also to Bordeaux, Rouen, Dieppe, and
other ports in France.

From the foregoing it is clear that centuries before the
question of mare clausum was raised, important fisheries were
established along the east coast of England and Scotland, and
that foreign fishermen took part in them. The number of
French and Flemish fishermen attending the fishery must have
been always great, because they had to furnish a large part of
Catholic Europe with fish. But the number was increased
after the fourteenth century, and especially in the fifteenth,
from two causes. One was the decline of the great herring
fishery at Scania, in the Baltic, upon which the Hanseatic
League had risen to power and opulence, and which provided
perhaps the greater part of continental Europe with salted and
smoked herrings — Germany, Poland, Russia, part of France, and
even to some extent Flanders and England. The Scanian her-
rings were esteemed the best, and the Hanse controlled the trade.1
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 ; 2 but from the fifteenth century at least the herring
fishery on the British coasts became by far the most import-

1 Lundberg, Del Stora sillfisket i Skane under mcddtiden oeh nyare tidens btirjan.
Worms, Hist, commercialc de la Ligue Hansfatique.

2 Fruin, Tien Jar en nit den Tachtigjarigen Oorlog, 181.

62 THE SOVEREIGNTY OF THE SEA

ant 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.3 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 Bohuslan fishery in Sweden, which con-
tinued barren for about seventy years.2 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."3 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 arrange-
ments which were occasionally made for " wafting " or guard-
ing the fishermen at the Yarmouth fishing, and for which the
fishermen thus protected had to pay, — an arrangement which

1 Brit. Mus. MSS. Galba, B. iii. 16. Henry apparently acceded to the request ;
vide " John Heron's accompte for waftynge of the herring fleete in the parties of
Norfolk and Suffolk, anno quarto R. Henrici VIII." State Papers, Foreign and
Domestic, Hen. VIII., i. 1512.

2 Ljungman, Nagra ord om de stora Eohus-lanska Sttlfiskeri.

3 Mare Clausum, lib. ii. c. xxi.

THE FISHERIES 63

was also adopted in the reign of Charles I. Thus, in 1482,
Edward IV. invested certain persons, called Guardians, Con-
ductors, and Wafters, with naval powers, to protect the fisher-
men "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 fisher-
men were to be apprehended. This arrangement was repeated
in the reigns of Richard III. and Henry VII.1 It is evident
that the payment was only exigible from such foreign fisher-
men 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.2 It was passed to pre-
vent 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 " scarf es" 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 state-

1 Rot. Pat., 22 Edw. IV., m. 2 ; ibid., 2 Ric. III., i. m. 3 ; ibid., 3 Hen. VII.,
part ii. dor so ; Marc Clausum, lib. ii. xxi.

2 The Statutes at Large passed in the Parliaments held in Ireland, i. 30.
5 Edw. IV., c. vi. "An Act that no Ship or other Vessel of any Foreign Country
shall go to the Fishing in the Irish Countries, and for Custom to be paid of the
Vessel that cometh from Foreign Lands to Fishing. "

64 THE SOVEREIGNTY OF THE SEA

ment made by Camden about 1586,1 and by Hitchcock some
years earlier,2 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. Scar-
borough Castle was in early times an important stronghold on
the north-east coast, and it is not unlikely that foreign fisher-
men, 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 bring-
ing them to the town, thus defrauding the Castle of its dues.
Another instance, which was frequently made use of in negotia-
tions 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 Salis-
bury in 1609 by one Richard Rainsford, an agent for a fishery
company,3 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,4 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 con-
structed on a very slender basis.

There is, however, one interesting case, or series of cases, in

1 Britannia, Gough's edition, ii. 248.

2 A Pollitique Platt, &c. 3 State Papers, Dom., James I., xlviii. 94.

4 Malines, Lex Mercatoria, 189, from whom Selden quotes it, with the remark,
4 ' There are some also who affirm that the King of Spain, " &c. Mare Clausum,
ii. c. xxx. It is also given by Boroughs and other writers.

THE FISHERIES 65

which licenses to fish in the Channel were frequently granted
by the Lord Warden of the Cinque Ports to a limited number
of French fishermen, chiefly of Dieppe and Treport, for the
ostensible purpose of supplying the king of France's table with
fresh fish, and especially soles. It is stated that the French
kings " time out of mind " had applied for such licenses,1 and
they were certainly granted under Elizabeth, the Stuart kings,
and Oliver Cromwell. It is doubtful when the custom origin-
ated, 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 fisher-
men later.2 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

1 State Papers, Dom., Charles I., clxxx. 96.

2 One of the licenses, which ran for a year, is printed in Appendix C. The
Zowe was described in 1630 as "a bank which lies between Rye and Dieppe,
and the outermost part is nearly one-third over the sea. This zowe which they
call the small zowe is 3 leagues long and 3 broad, and 26 and 28 fathoms deep.
The French make it 10 leagues, because they fish till they bring Beachy Head N.,
fayre Loo (? Fairlea, Fairlight) W.N.W., and fish in 30 fathoms." Sir H. Main-
waring to Coke, " A Short Discourse or Propositions concerning the French fishing
uppon the Zowe, theyr abusing it, and the Remedy " (ibid.) It was described as
the "chief nursery for turbetts, hollibatts, pearles (brill), soules, weavers and
gurnetts." In Queen Elizabeth's time only four licenses were granted, but James
increased the number to fourteen or fifteen. They were carefully entered in the
records of Dover Castle and the Hundred Book of Rye.

E

66 THE SOVEREIGNTY OF THE SEA

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, ferce naturce, 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 cen-
turies (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, pre-
cisely on the ground that Callis, Coke, Selden, and Hale
claimed the sea fisheries generally for the crown in the seven-
teenth 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 every-
thing necessary at his disposal to enable him to embody the
common law of England.1 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 for-
eign 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.

1 Henrici de Bracton, Legibus et Consuetudinibus Anglice, lib. i. c. 12 ; lib. iii.
c. 3. Rails Series, Introd., by Sir Travers Twiss, i. ii. Guterbock, Henricus de
Bracton und tein VerhcUtniss zum Romischen Rechte, 14, 55.

THE FISHERIES 67

Fish caught by foreigners were regularly imported into Eng-
land, 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.1 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,2 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

1 Fcedera, v. 719. " II eat convenu, &c., &c. Item, que pessoners de la seignurie
del roi de Caatelle et del counte de Viscay peussent venir et pescher fraunchement
et sauvement eu les portz d'Engleterre et de Bretaigne, et en touz autres lieux
et portz oti ils vorrontz, paiantz les droits et les custumes a les seignura du pais,"

• Ibid., v. 763

68 THE SOVEREIGNTY OF THE SEA

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.1 As the king's
missive is dated 26th October, it appears that there was then, as
there is now, a considerable w.inter herring fishing in the Chan-
nel. 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.2 Consider-
ing 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 fisher-

1 Foedera, viii. 306, 336. " Q'en ceste presente harenguison les pescheurs de 1'une
part et d'autre puissent pescher plus seurement en la mer la harenk et toutz autres
poissons, depuis hable de Grauelinguez et 1'isle de Tanent, jusques a Ten tree de la
riviere de Saine, et au hable de Hautoune."

2 Ibid., viii. 451.

THE FISHERIES 69

men 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 ; pro-
vided 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.1

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 import-
ance 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 inter-
course, 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.2 In
1408 the mutual freedom of fishing in the sea was twice con-
firmed,— 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 ; 3 and it was again

1 Fcedera, viii. 459. " Pro Piscatoribus, sub Dominio Ducis Burgundise : . . . toutz
pescheurs, tant de nostre dit roiaume d'Engleterre et de Caleis, et dez autres uoz
villes et lieux, come dez ditz conte et paiis de Flandres, dez paiis de Picardie, de
Normandie, et de Bretaigne, et generalment de tut le dit roiaume de Fraunce,
puissent paisiblement aler par tout sur meer, pur peschier et gaigner lour vivre,
saunz en estre reprins ne empeschiez en ascun manere . . . et par ainsi que sem-
blablement soit fait et otroie, de lez ditea parties de Flandres, Picardie, Normandie,
Bretaigne, et autres del dit roiaume de Fraunce, a la seurte dez ditz pescheours de
nostre dit roiaume d'Engleterre."

2 Ibid., viii. 469, 472. Dumont, Corps Universd Diplomatique du Droit des Gens,
&c., II. i. 302. Proc. and Ordinances of the Privy Council of England, i. 282.

3 Ibid., viii. 5»0, 548, " Et lea pescheura generalment aler pescher sur mer pour
gaignier leur vivre paisiblement."

70 THE SOVEREIGNTY OF THE SEA

confirmed at Amiens by John, Duke of Burgundy, in 1417,
in the reign of Henry V.1

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.2 Such
occurrences were by no means uncommon, and it was customary
for fishing vessels to go to sea armed,3 — 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

1 Pcedera, ix. 483. 2 Rot. Part., iii. 643J.

* Pikes and bows and arrows were used. Later, in the early part of the seven-
teenth century, a regular part of the equipment of a herring-buss was half-pikes
and muskets, an estimate for one being — ten half-pikes, £1 ; muskets with banda-
leers, rests, and moulds, £6, with 6 Ib. of gunpowder and 6 Ib. of leaden bullets.

THE FISHERIES 71

usual conditions. Although the Duke of Burgundy was also
Count of Holland and Zealand, these states were not specifically
included in this treaty, which was renewed in 1442 for other
five years, and again, at Calais, in 1446, for a term of twelve
years, in precisely the same terms, and the commonalties of
Ghent, Bruges, Ypres, and of the French dominions promised
to observe it.1 In the renewal of the treaty of intercourse
at Brussels, in 1468, by Edward IV. and the Duchess of Bur-
gundy on behalf of her husband, Duke Charles, in addition to
the mention of Brabant, Flanders, and Mechlin, words were
added2 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,3 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 Peronne, between Louis XI. of France and Charles,
Duke of Burgundy, a similar clause was inserted providing for
the freedom of the herring fishery ; 4 and in the ten years' truce

1 Fcedera, x. 730, 736, 761, 791. The article on the fishery was as follows :
" Que tous pescheurs, tant d'Engleterre, d'Irlande, et de Calais, comme des paiis
de Brabant et de Flandres, pourront paisiblement aler par tout sur mer, pour
peschier et gaignier leur vivre, sans empeschement ou destourber de 1'une partie ne
de 1'autre. Et avec ce, se fortune ou autre aventure chassoit ou amenoit les diz
pescheurs de la partie d'Engleterre, en aucun des ports, havres, destrois, et daugiers
des dites paiis de Brabant ou de Flandres, ou les diz pescheurs des dites paiis de
Brabant et de Flandres en aucuns des dites ports, havres, destrois, ou daugiers du
royaume d'Engleterre, Yrland, et de Calais, que ilz y soient paisiblement et
franchement receuz et traictiez raisonnablement d'une coste et d'autre, en paiant
aux lieux, ou ils arriveront, les toulieux et devoirs accoustumez, et d'illec puissent
liberalment retourner a tout leurs nefs, applois, et biens sans destourbier, arrest,
ne etnpeschenient ; pourveu que, par les diz pescheurs, d'un coste et d'autre, ne
soit commise aucune fraude, ou fait dommaige." Intercursus continuandus pro
spatio duodecim annorum inter Anglos et Flandros, Gandanos, Iperos et civitatis
de Brabant. Ibid., xi. 143.

2 " Et pur toutz sez autres paiis et seigneuries."

* " Et sans qu'il leur soit bosoigne sur ceo requirer ne opteiner ascune license,

congie, ou saufconducte. " 5 Jan. j^. Ibid., xi. 591, 592, 595, 609. Duinont,

op. cit., III. i. 592.
4 Duinont, III. i. 400.

72 THE SOVEREIGNTY OF THE SEA

agreed upon in 1471 between Edward IV. and the King ot
France mutual liberty of commerce and fishing was stipulated
during the continuance of the truce.1 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 per-
petual, in 1478, the clause providing for the liberty of fishing
remaining unaltered.2

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 Traite 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 requir-
ing any license or safe-conduct, and to have free use of one
another's ports under stress of misfortune, weather or enemies,

1 Fcedera, xi. 683.

2 Ibid., xii. 67. In 1484 Richard III. issued a commission to Thomas Lye,
sergeant-at-arms, to make restitution for fishing -boats belonging to subjects of
Maximilian, Duke of Austria, which had been taken, laden with fish, by English
pirates. Ibid., xii. 227.

THE FISHERIES 73

on paying the ordinary dues.1 As conservators for this treaty
of peace and commerce, which was received with much rejoic-
ing 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 sub- ,
jects 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 1520.2 While they confirmed in
general terms the previous treaty, the clause referring to the
freedom of fishery was not specifically mentioned, a circum-
stance 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 pro-
vision 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 appar-
ently with success. The same regard for the herring fishery

"Item, conventum, concordatum et conclusum est quod piscatores utriusque
partis partium praedictarum (cujuscunque conditionis existant) poterunt ubique
ire, navigare per mare, secure piscari absque aliquo impedimento licentia seu salvo
conductu : Et, si contingat aliquos ex piscatoribus unius partis per fortunam,
tempestatem maris, vim hostium, aut alio modo compelli intrare aliquem portum
vel districtum alterius partis, ibidem pacifice et amicabiliter recipientur et tracta-
buntur (solvendo in locis ubi applicabunt jura et theolonia prsedicta) et ab illis
portubus et locis poterunt libere recedere et redire, cum eorum navibus et bonis,
sine impedimeuto vel coutradictione quacunque ; dummodo tamen per ipsos
piscatores non committatur fraus neque dolus, seu per eos aliis dampnum minime

1 4Q*S

fiat." 24 Feb. ££.. Foedera, xii. 583. Dumont, III. ii. 338.
2 Foedera, xii. 714 ; xiii. 132, 539, 714.

74 THE SOVEREIGNTY OF THE SEA

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 diffi-
culty about the fisheries, the ambassadors said, as they knew
the Emperor wished it, and that his subjects would more will-
ingly go to sea in that event than they then did under the
protection of ships charged to defend them.1 The French
ambassadors also informed Francis that Wolsey pressed tlje
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." 2 It is clear from the political events that followed, that
the great Cardinal, in stipulating for the security of the fisher-
men, 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 secur-
ity 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.3 In
the war which ensued, the French admirals did not push the
advantage they had on the sea to extremes, but sold safe-con-
ducts to the fishermen of the Netherlands, and allowed them to
pursue their fishing. In several treaties and truces made in the

1 Ships of war were used to convoy the herring-busses of Holland and Zealand
at least as early as 1440.

2 Col. State Papers, Foreign and Domestic, iii. Nos. 1534, 1535.

3 Fcedera, xiii. 752. Dumont, IV. i. 352.

THE FISHERIES 75

next few years between the Powers named, it was provided that
the herring fishery should be carried on freely and in security
on both sides, even during the existence of hostilities. One of
these, to last for eight months, was concluded in 1528 between
Charles V., Francis I., Henry VIII., and Margaret of Austria,
who represented Holland, Zealand, and Friesland, as well as
Flanders.1 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

1 Dumont, IV. i. 515. " Pourront aussi lea Sujets des Pais, Roiaumes. Terres et
Seigneuries dessusdites, librement, et sans detourbier, ni empechement, pecher k
harangs, et autres poissons en la mer, ou ladite Treve aura lieu, et la ou la peche
dudit harang s'adonera, comme ils faisoient avant la Guerre, et pourroient et sont
accoutumez de faire au terns de Paix."

76 THE SOVEREIGNTY OF THE SEA

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 import-
ance to the people than was the case in England, which pos-
sessed 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 fif-
teenth century the title " Piscinata Scotia " was referred to as
an " old proverb." The fisheries, besides forming a not unim-
portant 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 Parlia-
ments 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 gen-
erous 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 sub-

THE FISHERIES 77

sequently.1 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.2 There is much testimony to show that
in those times the Scottish fishermen were of a fierce and force-
ful 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.3 This tale

1 Fcedera, ii. 529, 545. Mieris, Groot Charterboek der Graaven van HMand, &c.,
ii. 268 ; iii. 257 ; iv. 223, 378, 692, 816. Klult, Historice Federum Bdgii Federati,
284. Yair, An Account of the Scotch Trade in the Netherlands, 6, 27, 36.

2 Mieris, op. cit., iv. 146. About this time the Scots also did their best to drive
away English fishermen from their coasts. In 1400 they fitted out a small fleet
under Sir Robert Logan for this purpose, but it was apparently insufficient, and
Logan himself was captured by the men of Lynn. Walsingham, Hist. Anglicana,
364. In 1420 complaint was made to the English Parliament that the Scots had
at divers times attacked and taken English fishing vessels. Rot. Purl, , iv. 1 27a.

3 State Papers, Dom., Charles I., clii. 63. See p. 218.

78 THE SOVEREIGNTY OF THE SEA

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.1 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,2
alleging that the prohibition of their herring fishing by the
King of Scotland was inconsistent with the freedom of naviga-
tion, 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,3 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 con-
ducting 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 con-

1 " Dat hy voorhadt, de haringvisscherij omtrent zyne kusten te beletten.'
Wagenaar, Vaderlandsche ffistorie, v. 209.

2 Resol. Staten van ffott., ^ September 1540. Bosgoed, Sib. Pise., 319.

9 1540

1 Treaty of Binche, ^ February j^j. Dumont, op. cit., IV. ii. 208.

THE FISHERIES 79

tained 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.1 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 Nether-
lands, and their ships and seamen arrested, and arrangements
were made by the Dutch to convoy their herring-busses with
many ships of war.2 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.3 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 Scot-
land. It confirmed all previous treaties, and contained pro-
visions 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

1 " Et quant au dernier article de la commission du Sr. de Limdy [Lundy]
ambassadeur, concernant le fait de la pescherie, ladite Dame Reine [the Queen
Dowager of Hungary and Bohemia] veuille par bonne et meure deliberation pro-
ceder en telles et semblables affaires, se fera informer sur le contenu dudit article,
pour apres en ordonner comme il sera trouve" etre de raison, e'quite", et justice
d'une part et d'autre pour la conservation de la paix et amitie mutuelle desdits
Sieurs." Op. cit., and see footnote next page.

2 Wagenaar, op. cit., 355.

3 Res. St. JfoU., 1544 ; 2|- 1545, &c. Bosgoed, op. cit., 320.

80 THE SOVEREIGNTY OF THE SEA

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."1 This treaty, which was called in
the Netherlands "celebre foedus," 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

A 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.2

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

1 Dumont, IV. iii. 12. " Circa piscationem vero ac liberum usum maris, ea
quaj per supradictum Tractatum anno 1541, 19 Februarii, Binchii inter Sereuissi-
mam Reginam Mariana et supra nominatum Oratorem Regis Scotiae inita, conclusa
ac conventa fuerint debite ac sincere observari debebunt."

2 In 1618, when there was much searching of the records in Scotland (where
they were kept in a most careless and slovenly manner) to establish the claim of
James to the fishing in connection with the approaching visit of the Dutch am-
bassadors, the Earl of Dunfermline wrote to Lord Binning in London, forwarding
a copy, in French, of the treaty of 1541, and said, "Albeit ye will perseive by the
last article of the same annent the propositions of the fishings, the Queen of
Hungarie and Bohemia, who was for the Emperour Governant of the Low
Countries — we call her commonly Frow Mary — in that takes her to further
advysement with her Councill, and no thing resolved if any further proceeding ;
I pray God ye may find it othenvayes." MSS. Advoc. Lib., 31. 2. 16.

THE FISHERIES 81

1594, fifteen years before he issued, as king of England as
well as of Scotland, his famous proclamation forbidding pro-
miscuous 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, Fries-
land, 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 am-
bassadors 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 Queeen Mary, " his honoured dame and mother,"
and having found it very desirable, good, and beneficial for
him and his country, it was to be observed inviolably for the
good of the traffic and commerce of the subjects of the two
nations ; and he sincerely promised to observe the treaty and
every clause and article in it. Then the easy-going monarch
appears to have forgotten all about it. The document itself
was lost, and when it was urgently wanted for the negotiations
in the next century it could not be found, and nobody in this
country seemed to know what it contained; it was even
regarded by some — as the English ambassador at The Hague
— as apocryphal. Although the Dutch relied much on this
treaty, it contained no stipulation regarding liberty of fishing.

82 THE SOVEREIGNTY OF THE SEA

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.1

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 ; con-
cerning 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 con-
trol over foreign fishermen on the sea,2 and all that we know of

1 The heads of the treaty and the ratifications are given by Dumont, Corps Diplo-
matique, V. i. 507. The treaty itself is published in full by Bor, Vervolgh, Vande
Nederlantssche Oorlogen ende Oeschiedenissen, iv. fol. 48-52.

2 E.g., in 1573, that " all inaner of fischeris that occupyis the sey and vtheris
persounis quhatsumeuer " that catch herrings or white fish " vpon the coist or
within the His or outwith the samin within the Fyrthis " should bring them to
free ports to be sold. Acta Part. Scot., iii. c. 7.

THE FISHERIES 83

the practice and customs in Scotland makes it highly probable
that these enactments were in point of fact enforced against
foreign fishermen as far as they could be. The Scots were
always particularly jealous about the fishings in the firths and
lochs " within land." An important herring fishery of this kind
was carried on in the lochs on the west coast, especially in
Loch Broom and Loch Fyne, in autumn and winter, by fisher-
men 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.1 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 consul-
tation 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.2
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 pre-
served. 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

1 Leslie, DC Origine Moribut et Rebus Gestis Scotorum, 24. A point of land near
Inveraray in Loch Fyne was long known, and is still known, as Frenchman's Point
or French Farl, the tradition being that it was to this place that herrings were
brought to be sold and cured. Old Statistical Account of Scotland, v. 291.

* Register Privy Council of Scotland, i. 482.

84 THE SOVEREIGNTY OF THE SEA

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 six-
teenth 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 dissen-
sions at home and the audacity of the Hollanders the right was
lost.1 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, appar-
ently 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

1 De Dominio Mans, 16. In another work Welwood says, "And for the
eastern seas, direct from Scotland, what is more antiently notorious than that
covenant twixt Scottish men and Hollanders, concerning the length of their ap-
proaching toward Scotland by way of fishing." An Abridgement of All Sea Lawes,
c. 26.

THE FISHERIES 85

even, it was argued on their behalf, if the fish had been caught
within his Majesty's waters, still, in respect of the "continual
trade " which strangers had had there in all time past, " there
being no inhibition made or published to the contrary as yet,"
no such treatment should have been meted out to them.1 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 Scot-
tish fishermen, apart from the waters of firths and lochs.

The difference in the national policy of England and Scot-
land 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 vindi-
cated by Queen Elizabeth.

1 Register Privy Council of Scotland, iv. 216.

86

CHAPTER III.

UNDER THE TUDOES.

THE policy of freedom of commercial intercourse, navigation,
and fishery which was enunciated in the Intercursus Magnus
and the treaties which preceded it, was faithfully observed
throughout the sixteenth century. No attempt was made by
any of the Tudor sovereigns to interfere with the liberty
which foreigners enjoyed of fishing on the English coast ; nor
was any claim put forward by them to the dominion or lord-
ship of the surrounding seas. On the contrary, throughout the
greater part of the century, facilities were given for the peace-
ful exercise and encouragement of sea-fishing, even in time of
war; while on several occasions the last and greatest of the
monarchs of the Tudor line actively contested the old preten-
. i sions of Denmark to the sovereignty of the northern seas, and
; ! the more recent claims of Spain and Portugal to the exclusive
1 1 right of navigating the great oceans. It was nevertheless dur-
ing this century that changes occurred which made it easy for
James early in the next to initiate a new policy of mare
clausum, and to repudiate the provisions of the so-called
Burgundy treaties. The most important of these changes was
perhaps the decay which overtook the sea fisheries. Apart
from their commercial and economic value, the fisheries were
looked upon as indispensable for the maintenance of maritime
power, and probably at no previous time had greater efforts
been made to foster maritime power than under the Tudors.
The hardy fishermen who navigated their barks to distant seas
— to Iceland, to Wardhouse, round the North Cape, and now
to Newfoundland — were trained in a school of seamanship
which fitted them admirably to take their place for the naval
defence of the country. Even the herring-smacks and the

UNDER THE TUDORS 87

dogger-boats that fished in the North Sea and the Channel
turned out mariners by no means to be despised, — men ac-
quainted with the coasts and the tides, able to manage sails
and educated to the sea. It was this aspect of the fisheries
which was mostly regarded by the statesmen of those times,
and for which the " political lent " and the protective legislation
were designed.

The causes which led to the decay in the English fisheries
were no doubt various, but perhaps the chief one, and the one
on which most stress was laid in the latter part of the century,
was the Reformation. The very large consumption of fish due
to the observance of Lent and the numerous days of fasting, or
fish-days, has been referred to (see p. 58). The suppression
of the monasteries (1536-1539) and the dispersal of the inmates
and dependants must alone have had considerable influence, but
the relaxation of ecclesiastical rule among the laity which fol-
lowed was much more detrimental to the fisheries. The decay
of the sea-coast towns, so frequently spoken of in the reign of
Elizabeth, was mainly attributed to this cause. Another in-
fluence which operated in the same direction, most markedly
towards the end of the century, was the great growth of the
fisheries and commerce of the Dutch. After the assertion of
their independence of Spain (1581), commonly called the
"abjuration of Philip," their fisheries developed with great
rapidity. One of the first acts of the new Republic (1582) was
the codification of the fishery statutes ; and about this time
they applied to the deep-sea herring fishery the name of Great or
Grand Fishery (Oroote Visscherye), as being " the chief industry
of the country and principal gold-mine to its inhabitants," in
mtrast to the real gold-mines of Spain. They furnished the
greater part of Europe with cured herrings and other fish, and
the fish supply of England, and more particularly of London,
fell to a large extent into their hands. Their herring fishery
ras carried on along our east coast, and the spectacle of great
leets of foreign fishing vessels frequenting our waters, while
the native fisheries were falling to decay, roused envious and
jealous feelings in the breasts of patriotic Englishmen.1

Under the Tudors the efforts made to foster the sea fisheries
did not, as has been said, take the form of interfering with the

Much information on the fisheries of the Netherlands will be found in Professor
L Beaujon's History of Dutch Sea Fisheries, 1884.

88 THE SOVEREIGNTY OF THE SEA

foreign fishermen. They were rather directed, on the one hand,
to increase the consumption of fish by restoring the strict ob-
servance of Lent and fish-days, and, on the other hand, to
check the importation of fish caught by foreigners. In this
way it was hoped that the native fisheries would be stimulated
to supply at least the home markets. As early as 1541 — a year
or two after the suppression of the monasteries — an Act was
passed which apparently indicates that the decline in the
fisheries had already set in, and that it was customary for the
English people to purchase fish from foreigners rather than
catch them for themselves. Heavy penalties were imposed on
any person who should bring into the realm for sale fresh fish
(except sturgeon, porpoise, and seal, which were then included
in the term) which they had purchased from strangers in
Flanders, Zealand, Picardy, France, or elsewhere beyond the
sea, " or upon the sea between shore and shore " ; but the buy-
ing of fish at Iceland, Scotland, Orkney, Shetland, Ireland, or
Newfoundland — to all which places English vessels went — was
not prohibited.1 This statute was re-enacted four years later,
and again by Edward VI. and Queen Mary.2 In the reign of
Elizabeth a number of similar statutes were made, with the
object of favouring the native fishermen in their competition
with foreigners.

About the same time as the first Act of Henry was passed
we begin to get evidence of laxity in the observance of Lent
and of measures taken to deal with it. Many persons, includ-
ing noblemen, were brought before the Privy Council charged
with having eaten flesh in Lent, and were committed to the
Fleet. The mayor and aldermen of London were commanded
to make inquisition throughout all the wards of the city as to
the households in which flesh was used in Lent, and the
butchers were required to furnish information as to the quan-
tity of flesh sold by them, and to whom, in the same period.3
This activity of the Privy Council foreshadowed the new policy
of the " political lent " which was inaugurated a few years later
in the reign of Edward VI., and with which the name of Cecil

1 33 Hen. VIII., c. 2.

2 37 Hen. VIII., c. 23 ; 5 & 6 Edw. VI., c. 17 ; 7 Edw. VI., c. 11 ; 1 Mary,
st. 2, c. 13.

3 Acts of the Privy Council of England, i. 103, 104, 106, 112, 114, an. 1543.

UNDER THE TUDORS 89

was associated. By this time it was clearly recognised that
the religious changes that had taken place were prejudicial to
the fisheries by lessening the consumption of fish, and in 1548
an " Act for Abstinence from Flesh " was passed, by which fines
were imposed on those who did not observe the usual fast-days.
The object of the measure was clearly explained. " One day
or one kind of meat of itself," it said, " is not more holy, more
pure, or more clean than another, for that all days and all
meats be of their nature of one equal purity, cleanness, and
holiness ; " but " considering that due and godly abstinence is a
mean to virtue, and to subdue men's bodies to their soul and
spirit, and considering also especially that Fishers, and men
using the trade of living by fishing in the sea, may thereby
the rather be set on work," it was enacted that no person
should eat flesh meat on Fridays, Saturdays, Ember-days, Lent,
or on any other day which was accustomed a fish-day, under a
penalty of ten shillings fine and ten days' imprisonment with-
out flesh food.1

By this statute the political lent was established, and the
policy of compelling the people to eat fish for the good of the
fisheries and the navy was continued with more or less vigour
for a century and a half. Sir William Cecil was especially
active in its favour. He caused careful inquiries to be made
into the condition of the decaj^ed havens and sea-coast towns
and the state of the fisheries. He was informed by the London
fishmongers, to whom he had submitted a series of questions,
that there was not so much fish then consumed "by a great
quantity" as used to be the case, and that the number of
vessels engaged in the fisheries had greatly decreased. On the
latter point they referred to a return made about the twentieth
year of the reign of Henry VIII., which showed that seven-
score and odd ships then went to the Iceland fishery, about
80 crayers to Shetland, and about 220 crayers from Scarborough
and other towns to the North Seas fishing, making a total of
about 440 fishing vessels ; while at the time they wrote — in the
reign of Edward VI., and probably in 1552 or 1553 — the
number had fallen to about 133, of which 43 went to Iceland,
10 crayers to Shetland, and 80 to " the North Seas," showing a

1 2 & 3 Edw. VI., c. 19. Certain exceptions, of those licensed, ill, or very old, or
in prison, were made.

90 THE SOVEREIGNTY OF THE SEA

ts\ W

decrease in the twenty-four or twenty-five years of about 307
" ships and crayers." l A similar story of the decay of the fish-
eries came from the east-coast towns. At Lynn, which was
maintained chiefly by the Iceland and the herring fisheries,
and which twenty or thirty years before sent out about
thirty vessels to those fisheries, there were then only two Ice-
land barks, and no herring-smacks at all. It used to be able
to furnish 300 mariners for the king's service, while now it
could not supply more than twenty or thirty. And so at
Burnham (where the fishing -boats had decreased from 26
to nil), Wells, Clee, Cromer, Yarmouth, and other Norfolk
ports — all had greatly decayed. The fisheries and the shipping
had fallen off, the " men of substance " had lost their money or
left, the population had diminished, and even the houses were
falling down. To a statesman like Cecil, who knew the value
of the mariners bred at the fishing ports for manning the navy
if need arose, and how a flourishing fishery multiplied shipping,
such information must have been disquieting. He calculated
that while within twenty years back there had been 150 ships
for Iceland, 220 for the north seas, and 78 for " Shetland "
(Shetland), the numbers had fallen when he wrote to 43 for
Iceland, 75 for the north seas, and 9 for Shetland; and that
the number of fishing vessels had decreased from 448 to 127.2
In replying to Cecil's second question as to the cause of the
decay in the fisheries, the fishmongers said it was first of all
due to the diminished consumption of fish, since the fish-days
were not "duly observed as heretofore," which "took away
such hope of gain as in time past they have had" in carry -

1 State Papers, Dom., Addenda, Edw. VI., iv. 56. The paper, which is endorsed
by Cecil, "The Answer of the Fishmongers," is undated, but that it belongs to the
reign of Edward VI. (1547-1553) is proved by the words, " the reign of our late
sovereign, Henry VIII." The return of 1528, referred to by the fishmongers, is
among the State Papers (Foreign and Domestic Letters and Papers, Hen. VIII. , iv.
pt. 2, No. 5101). It states that 149 vessels went to the Iceland fishing, mostly
from Yarmouth, Blakeney, Cromer, Dunwich, Walderswick, and Southwold ; the
herring-fishing in the North Sea employed 222, of which 110 belonged to the
Cinque Ports, while 69 went to Shetland, the total being 440. Shetland linga
were in those days greatly prized, and brought very high prices.

2 State Papers, Dom., Addenda, Edw. VI., iv. 57. "The decaied Porte Townes
wtH nombers of good villages a longe by the sea cost of this realm, within these
twentie or thirtie years ; " undated, but belonging to the same period, with Cecil's
calculations written on the back.

t UNDER THE TUDORS 91

ing on the fisheries. A second reason they gave was the
greater love " for ease and pleasure " than in former times,
people now preferring to buy their fish from strangers rather
than to "travail and venture for it themselves," — a very
common charge against Englishmen then and for a long time
afterwards. As a third reason, they said the price of fish was
regulated in various towns by the mayors and other officers in
such a way that they were often forced to sell without sufficient
profit, while Government purveyors made them part with their
fish at nominal prices. It is to be noted that they made no
complaint against foreign fishermen or the importation of
foreign fish.

During the brief reign of Mary (1553-1558) Cecil was in the
shade, but shortly after the accession of Elizabeth he again
devoted attention to the decay of the fisheries and tried to
apply fitting remedies. Among the State Papers of the year
1563 is a long and elaborate document, copiously revised by
Cecil himself, which deals with the condition of shipping and
fisheries, and obviously formed the basis and argument for the
great Act made in the same year.1 fin this paper the decay of~~]
the navy both in ships and mariners was traced by Cecil to a ^
variety of causes : the piracies of Turks and Moors on the
Levant trade, the transference of the spice trade from the
Venetians to the Portuguese and Spaniards, the Spanish law of
bottomry, the augmentation by the King of Denmark of the tolls
at the Sound and his recovery of Iceland, and the decay of the
English fisheries.l Herrings and other sea fish, he said, were
now taken upon our coast by strangers, who brought them into
the realm and sold them " to the very inhabitants of the parts
that were used to be fishermen," while Englishmen had them-
selves been prohibited from exporting fish.2 The remedies
which Cecil proposed were that the importation of wines and
woad should be allowed only in English ships ; that English- J

1 State Papers, Dom., Elizabeth, xxvii. 71, February 1563. Endorsed, "Argu-
ments for Increase of the Navy," and "Arguments to prove that it is necessary
for the restoring of the navy of England to have one Day more in ye weeke
ordained to be a fish day, and that to be Wensday rather than any other."

The exportation, without license, of herrings, among other things, had been
forbidden by 1 & 2 Ph. and Mary, c. 5 (1554) ; but by 1 Eliz., c. 17, subjects were
permitted to export sea fish taken by subjects in English ships free of customs for
four years.

92 THE SOVEREIGNTY OF THE SEA

men should be prohibited from purchasing fresh herrings which
had been caught by strangers; that they should be free to
export and sell sea fish out of the realm ; and, principally, that
Wednesday should be made an additional fish-day. The decay
of the fisheries, he said, was manifest on all the sea coast in the
decay of the port towns, which soon would be " remedeless," and
it was caused by diminished consumption of fish. at home and
the want of foreign markets.1 On the other hand, Scotland,
Norway, Denmark, Friesland, Zealand, Holland, and Flanders
caught not only sufficient fish for themselves, but exported it to
other countries, including England ; while Spain provided her-
self by her fisheries on the south coast of Ireland, and France
" aboundeth with fishermen " from her great fisheries at New-
foundland and Iceland.2 Cecil's conclusion was that there was
no likelihood for a long time of developing a flourishing export
trade in fish, and that it would be necessary to institute another
fish-day to increase the demand at home. On this part of his
proposals he entered into a long argument, showing that in 1536
the 500 monasteries which paid tithes to the king, with a mini-
mum number of 25,000 inmates, must have required a great
supply of fish, as fish was then eaten on at least seventy-six
days a year more than at the time when he wrote.3

By the great Act passed in 1563, " Touching certain Politic
Constitutions made for the Maintenance of the Navy," Wednes-
day was added to the two fish-days previously enjoined by the
statute of Edward VI., but only after long debate and opposi-
tion on the part of the " puritans." 4 The Act also contained

1 " The causes of the decay of fishing must be the lack of the vse of fishing,
which must be divided into ij partes, small eating of fisshe in ye Realme, and not
selling of it abroad."

2 The number of French vessels engaged in the Newfoundland fisheries is placed
at 500, with 15,000 men ; and over 100, with at least 1000 men, fished at Iceland
for " herrings," — but no doubt for cod and ling.

3 There are many other memoranda amongst the State Papers, some in Cecil's
handwriting, which deal with fish-days. One gives in detail a note of all the fish-
days throughout the year, amounting to 186, and in addition " a number of sayntes
evens were fastyng dayes that now be not observed." Ibid., xxxi. 41, 42 (1563).

4 5 Eliz. c. 5. The debate on the Wednesday proposal lasted three days, the
clause being ultimately carried by 179 to 97 (Commons Journals, i. 68). It was in
view of the expected opposition that the long paper above referred to was prepared.
The Wednesday was not put on quite the same footing as the Fridays and Satur-
days, since "one only usual competent dish of flesh and no more" was allowed,
provided that at the same table "three full competent usual dishes of sea fish

UNDER THE TUDORS 93

provisions to restrain foreign importation of fish, to encourage
the export of English-caught fish by subjects, and to remove
the complaints as to the action of purveyors and burdensome
impositions — points on which the fishmongers had laid some
stress. Herrings and other sea fish taken by Englishmen in
English ships were to be freely exported without paying
custom ; no tax, toll, or restraint was to be imposed on fish
taken and landed by subjects ; it was made illegal to buy from
strangers any herrings unless they were "sufficiently salted,
packed, and casked " ; only English vessels were to be allowed
to carry coastwise any fish, victuals, or other goods; the
cultivation of flax for fishing -nets was to be encouraged;
and on the plea that there was "much deceitful packing"
of cod and ling brought into the realm by aliens, the import-
ation of these fish was forbidden, except only " loose, in bulk
and by tale." Most of these provisions and prohibitions would
operate against the Dutch, who had not only a large part
)f the trade in herrings with England, but practically the

lonopoly in supplying barrelled cod and ling.1
From this time forward the policy of protecting the native

sheries by checking the competition of foreigners went hand
in hand with the encouragement of the consumption of fish
the compulsory observance of fish-days. Interfering as it

lid with established practice and conflicting trade interests,
the Act aroused opposition in various quarters, especially on
the part of those who were interested in the important com-

lerce in cured cod-fish. In the year after it passed, the Queen's
purveyors were unable to obtain in England sufficient supplies
of fish for the navy and the royal service, and they were
licensed to import cod-fish, lings, and green -cod, in barrels
or casks, notwithstanding the prohibition in the Act,2 — a
privilege which had to be extended to all English subjects

of sundry kinds, either fresh or salt," were served and eaten " without fraud or
covin." Another clause explained that the object was " meant politically for the
increase of fishermen and mariners, and repairing of port towns and navigation, and
not for any superstition " regarding choice of meats " ; any one stating the contrary
was to be punished.

1 Among the imports of fish from the Low Countries at this time were " cods-
heads, cod-fish, eels, 'gull-fish,' haddocks, herrings, ling, salmon, salt-fish, sturgeon,
and 'staple-fish.' " Hall, A History of the Customs Revenue in England, ii. 237.

2 State Papers, Dom., Eliz.. xxxv. 36.

94 THE SOVEREIGNTY OF THE SEA

a few years later with respect to fish caught in their own
vessels " with cross-sails." l On the other hand, it was claimed
that the Act had done good. The coast people of Norfolk and
Suffolk informed the Council in 1568 that it had increased the
trade in fish in these counties ; and as the Act had been passed
for four years only and continued at the Queen's pleasure, they
petitioned that it should be renewed, and that provision should
be made to put a stop to the importation by strangers of cod
and ling in bulk, which were dried and sold under the name of
Iceland fish, to the detriment of those engaged in the Iceland
fishery, and also to ensure that fish-days should be better
observed.2 In the same year the Council instructed the
magistrates of London, Hull, and Southampton, and the
justices of various shires, to commit to jail any persons
fraudulently dealing with foreign imported cod and ling as
Iceland fish ; 3 and three years later another Act was passed,
giving effect to the wishes of the fishermen, and continuing the
former Act for other six years.4 It contained a new provision
showing that complaints had been made about the vessels, some
of them foreign, which came " pretending " to buy fresh herrings
on the coast of Norfolk. To avoid " lewd outrages " by these
" catches, mongers, and Picardes," in cutting and damaging the
drift-nets of the fishermen, they were prohibited from anchor-
ing between sunset and sunrise during the fishing season
in the places where the boats were accustomed to fish.

Up to about this time no complaint seems to have been
made against the foreign fishermen either by English fishermen
or by statesmen or writers. The men from the Low Countries
appear to have pursued their occupation in peace side by side
with the Englishmen. But in 1570 the first note was heard of
what became later almost a continuous lamentation. A petition
was presented to the Privy Council asking that "letters"
should be sent to Zealand and Holland, or ships of war de-
spatched to protect the English fishermen from the evil doings
of the Low Countrymen. "Otherwise," the petitioners said,
"" both wee and all others that entend fysshing in all partes of

1 13 Eliz., c. 11. 2 State Papers, Dom., Eliz., xlviii. 83.

3 Hatfield MSS., i. 1177, 27th June 1568.

4 13 Eliz., c. 11. In the preamble it is said the former Act " is a very good Act,
And greatly increased the navy and fishermen. "

UNDER THE TUDORS 95

this realme shall be utterly undone, for that the fishermen
Flemynges this yeire have so spoyled and mysused all the
coaste men, that it hath so discomforted them " that they feared
"the whole avoyadaunce of fysshing both for herring and
other fysshing upon all the north coast of this realme."1
Whether or not this complaint referred to the outrages de-
scribed in the Act quoted above is uncertain, but probably
it did not, as the Hollanders and Zealanders fished for them-
selves, and they were now becoming rather numerous. It does
not appear that any special action was taken regarding the
petition. It was Cecil's aim to increase the use of fish within
the realm and to foster the native fisheries, but he had no
desire to interfere with the liberty of fishing enjoyed by the
Hollanders. Such action would have been contrary not only
to the treaties but to the' international policy of England at
that time. On political and religious grounds the aid of the
Dutch was needful in the struggle against the common enemy,
Spain.

That the English people had become interested in the con-
dition of the fisheries and somewhat jealous of the fleets of
foreign vessels which fished along their coast may be inferred
from the appearance at this time of two works — one by Captain
Kobert Hitchcock, and the other by the learned and unfortunate
Dr John Dee. It is a curious circumstance that those authors,
who wrote at the same period, should each have advocated one
of the two lines of policy adopted in the next century. Hitch-
cock was all for freedom of fishing, for strangers and natives
alike. His remedy was the creation of a great English fishery
organisation to oust the Dutch from our seas. Dee, on the
other hand, was emphatic in claiming mare clausum and an
exclusive fishing for Englishmen, and in urging heavy taxation
of foreigners who fished in the British seas.

Hitchcock was a gentleman and a soldier who, in 1553,
as he himself tells us, while serving the Emperor Charles V.
in his wars in the Low Countries, had observed with astonish-
ment that the wealth and shipping of Zealand and Holland
were due to their sea fisheries. Pondering on his discovery,
he thought out a plan some years later by which a great
national fishery might be established in England to supplant

1 State Papers, Dom., Eliz., Ixxv. 16.

96 THE SOVEREIGNTY OF THE SEA

the Dutch, so that the wealth acquired by them in the British
seas might go to profit his own countrymen. It was the first
of the innumerable schemes of the kind which are to be found
scattered over the economic literature of the next two centuries.
Having reduced his plan to writing, he submitted it about
the year 1573 to the Earl of Leicester, in 1575 to Queen
Elizabeth, and in the following year he distributed copies to
men of influence, in the hope "that God would stir up some
good man to set out this work." It appears even to have been
brought to the notice of Parliament by Sir Leonard Digges, but
its consideration was deferred " for want of time." l The copy
presented to the Queen is preserved among the Burghley Papers
in the British Museum,2 and the completed work, somewhat
enlarged, — now very rare, — was published (in black-letter)
on 1st January 1580 as "A New Year's Gift to England."3
The plan of Hitchcock was to borrow £80,000 for three years,
when the whole amount would be repaid from the proceeds
of the fish sold. The shires were to be arranged in eight
groups, each group providing with its £10,000 fifty fishing
vessels of not less than 70 tons burthen, or 400 altogether.
These were to be built after the manner of " Flemysche Busses "
and distributed at eighty ports around the coast ; and at eight
of the chief ports (London, Yarmouth, Hull, Newcastle, Chester,
Bristol, Exeter, and Southampton) two " honest and substantial
men of credit" were to be appointed chief officers, to act as
treasurers, purveyors, and directors. Hitchcock estimated that
each ship when ready for fishing would cost £200 ; the crews
were to consist of a skilled master, twelve mariners or fisher-

1 In the same year the author, at a dinner he gave at Westminster to the
burgesses representing "all the stately port towns of England," explained the
substance of his "plat"; several of them suggested that a subsidy should be
raised on land and goods to set the scheme afloat ; and the Speaker remarked that
"a Parliament had been called for a less cause."

a BurgUey Papers, A.D. 1572, MSS. Lansd. 14, No. 30. As the catalogue
states, the signature is erased, and the paper is entered as anonymous ; but careful
scrutiny shows that it was signed " Robt- Hitchcock."

3 A Pollitique Plait for the honour of the Prince, the greate profite of the publique
state, relief of the poore, presentation of the riche, reformation of Roges and Idle
persones, and the wealthe of thousandcs that knowes not howe to Hue. Written for
an Newyeres gift to Englande and the inhabitants thereof, by Robert Hitchcok,
late of Cauersfeelde, in the Countie of Buckyngham, Gentleman. London, 1st
Januarie 1580.

UNDER THE TUDORS 97

men, and twelve "strong lustie beggers or poore men taken
upp through the land." l The scheme proposed that the busses
should first fish for herrings on the coast of England and
Ireland during the fourteen or fifteen weeks this fishing lasted,
the herrings being cured and branded after the "Flemish"
fashion. The busses were also to visit Newfoundland for
cod and ling; or some were to go to Iceland, " Wardhouse," 2
the north seas of England and Scotland, or to Ireland. It
was intended to employ some of them in winter in exporting
the surplus of cured fish to France, " or elsewhere." As for the
all-important question of earnings, it was calculated that each
buss would catch at least 50 lasts, or 600 barrels, of herrings,
worth £10 a last; altogether £200,000 from this item,3 and
if two voyages were made, the amount would be doubled.
It was supposed that each buss would bring back from New-
foundland 20,000 of the best "wet" fish and 10,000 dried-
together worth £500; the same value was placed upon the
15,000 cod and 10,000 ling to be procured at Iceland, Ward-
house, or the north seas ; and besides the fish, each ship
was estimated to return with £50-£60 worth of cod-liver oil.
Then with regard to the "vent" or sale of the fish, it was
assumed that about half of the herrings, or 120,000 barrels,
would be required for home consumption — not an exaggerated
idea, for from other accounts it appears that London and the
parts around it consumed about this time 60,000 barrels.
Markets for the surplus herrings, it was believed, would be
found at Normandy, Nantes, Bordeaux, and Rochelle. The
profits were to be divided into shares, and besides paying
off the borrowed capital and the interest (at 10 per cent),
a stock of £8000 was to be formed at the eight chief ports,

1 In the early MS. copy presented to the Queen the 400 vessels were to be from
100 to 200 tons, costing £400 each, and the crew was to consist of a master, nine
mariners, and thirty " rogues and lustie vagabonds " obtained in the same forcible
way.

2 This place, frequently mentioned in old works and papers referring to the
fisheries, was Vardb, or Vardohuus, at the mouth of the Varangerf jord, Finmarken,
on the north-east coast of Norway, or, as it was often described, Lapland. The
king of Denmark had a castle on the island, and dues had to be paid for liberty to
fish. A number of English vessels went there in spring, returning towards the end
of summer.

3 In France at this time, according to other records, Flemish herrings brought
£'25 per last; Yarmouth, £10; Irish, £18; "coast" herrings and Scotch, £11.

G

98 THE SOVEREIGNTY OF THE SEA

and £400 at the " 225 decayed towns " in England and Wales
for the philanthropic purpose of giving work to the poor.
Nay, there was more. At the chief ports the surplus earnings
were to provide a salary for " an honest, virtuous and learned
man," who was to travel constantly about the coasts preaching
to the people, "as the Apostles did." Among the indirect
benefits to the nation Hitchcock included the transformation
of idle vagabonds, of whom there were plenty, " darly increas-
ing," into good subjects — some of the Members of Parliament
thought this part of the scheme alone entitled it to national
support, — the addition of 9000 mariners for manning the navy,
the saving of coin spent on foreign fish, the increase of the
Queen's customs, of commerce and navigation, and the repair
of the decayed towns.

Such was the dream of this enthusiastic but thoroughly
sincere old soldier : to expel the Hollanders from our seas
by means of a national fishery organisation and to win back
for England the wealth they gathered from her waters. At
the time when he wrote, foreign fishermen were not nearly
so numerous on our coasts as they became later. The herring-
busses from the Low Countries which fished on the east coast
numbered, he says, between 400 and 500, and the Englishmen
"for feare of them," and of tempests, fished in small vessels
near the shore, as he shows in a " similitude," here reproduced
(fig. 2). Besides these, between 300 and 400 ships and barks-
from Biscay, Galicia, and Portugal fished off" the south-west
coast of Ireland from April to July, "near to Mackertymors
country " ; and also on the west and north-west coasts of
Ireland for cod and ling from about Christmas to March.
Hitchcock makes no complaint against the foreign fishermen
for fishing in " her Majesty's seas." With a fine catholic gener-
osity he indeed expressly says that all men of what country
soever should be free to do so ; that there was enough fish in
the northern seas for all, even if there were 1000 sail more than
there was. He believed that the English, by being so much
nearer the fishing grounds, ought to be able to undersell the
foreigner and get the markets and the trade.1

1 The Pollitique Plait is earnest and even religious in tone, and it is obvious
that the author spent much time in collecting the information and elaborating his
scheme, which in all sincerity was meant for the good of his country. Even after

UNDER THE TUDORS

99

The scheme of Dr John Dee was very different from that of
Hitchcock. A mathematician, an astrologer, a reputed magician,
ind, above all, an accomplished scholar, he looked at the subject
from another point of view. Well acquainted with the writings
of the Italian jurists and the practice of the Italian states, he
expounded the view that the fisheries and the sovereignty in the
British seas pertained to the crown of England, and that
foreigners should be compelled to pay tribute for the liberty of

Fig. 2. — HitchcocKs representation of the English and Flemish fisheries,

fishing within them. It is the philosopher of Mortlake, indeed,
who must be recognised as the literary pioneer of the claims to
the sovereignty of the sea which were put forward by England
in the seventeenth century. In 1577 he published a book

three centuries one learns with regret (from his letter preserved at Hatfield) that
lie had to petition the Privy Council, "for his relief and maintenance in these his
now declining years" (1596), to cause every innkeeper, &c., to purchase from him,
for sixpence, and put up publicly, a printed table, or " breviate," describing the
" benefits that growe to this Realme by the Observance of Fish-Daies."

100 THE SOVEREIGNTY OF THE SEA

entitled General and Rare Memorials pertayning to the Per-
fect Arte of Navigation,1 in which he dealt with the fisheries
and the boundaries of the British seas, and recommended that
the tribute to be exacted from foreign fishermen should be
expended in maintaining a navy to be called " The Petty Navy
Royall," for keeping the seas and supervising the fisheries.
" Should not forreyne fishermen," he asks, " (overboldly now
and to to injuriously abusing oure riche fishings about England,
Wales and Ireland), by the presence, oversight, power and
industry of this Petty Navy Royal be made content ; and judge
themselves well apaid to enjoy, by our leave, some great portion
of revenue to enrich themselves and their countries by, with
fishing within the seas appertayning to oure ancient bounds
and limits ? Where now, to oure great shame and reproache,
some of them do come in a manner home to our doors ; and
among them all, deprive us yearly of many hundred thousand
pounds, whiche by our fishermen using the said fishings as
chief, we might enjoy ; and at length, by little and little, bring
them (if we would deal so rigorously with them) to have as
little portion of our peculiar commodity (to our Islandish
Monarchy, by God and Nature assigned) as now they force
our fishermen to be contented with ; and yearly notwithstanding,
doo at their fishing openly and ragingly use suche words of re-
proche toward our Prince and realm, as no true subject's hart can
quietly digest ; and besides that, offer such shamefull wrongs to
the good laboursom people of this land, as is not (by any reason)
to be born withall, or endured any longer : destroying their nets,
cutting their cables to the los of their anchors ; yea, and often-
tymes of Barkes, men and all." 2 Here is the first note of a
plaint which will become very common. He also accused the
foreign fishermen, under colour of fishing, of making secret
soundings of the channels and banks along our coast, to the
great danger of the realm.

As for their fishing on the English coast, he says, erroneously,
that the men from the Low Countries had frequented the herring
fishing off Yarmouth for only thirty years (since 1540), since

1 Better known by its running title, The Brytish Monarchic. It is a very rare
work, only 100 copies having been printed. The author's own copy is in the
British Museum.

2 P. 7.

UNDER THE TUDORS 101

when their numbers had greatly increased. They had now
become " very rich, strong, proud, and violent," so that the ships
of Norfolk and Suffolk, next to the fishing places, were reduced
in numbers by 140 sail, besides crayers and other craft. The
number of Flemish herring-busses that came to our coast he
placed at over 500, while there were about 100 French ; and
300 or 400 " Flemings " fished for cod in the north seas, " within
the English limits." Other foreigners, moreover, caught herrings
on the Lancashire and Welsh coasts, and about 300 sail of Span-
iards, besides Frenchmen, fished off Cape Clear and Blackrock
in Ireland. All these fishings, said Dee, were "enjoyed as
securely and freely from us by strangers, as if they were within
their own King's peculiar sea limits ; nay, rather as if those
coasts, seas and bays were of their private and several pur-
chases : to our unspeakable loss, discredit and discomfort, and
to no small further danger in these peculiar times of most
subtle treacheries and fickle fidelity." While admitting that"
the British seas were free for navigation, Dee held that the
fisheries pertained to the crown of England, and that no
foreigner had a right to cast a net in our sea without first
obtaining leave from the Queen. To her belonged " the tenth "
of all foreign fishings " within the royal limits and jurisdiction "
in the British and Irish seas, and it was " a most reasonable and
friendly request" that foreigners should pay that tenth in
acknowledgment of the liberty to fish, — a tribute which he
calculated would amount to £100,000 a-year, and which he
urged should be devoted to the maintenance of the "Petty
Navy Royal."

Dee was not only the first English writer who claimed the
sovereignty of the sea and the fisheries for England ; he was
also the first who attempted to define their boundaries in detail.
At the time when he wrote, it appears indeed to have been held
in theory by some lawyers that the limit of the English seas
extended to the mid-line between England and foreign coasts,
except in the case of the Channel, where the water right up to
the opposite shore was believed to be under the sovereignty of
England. The doctrine, no doubt, was evolved from the opinions
of the Italian jurists, whose authority was then very high (see
p. 539), and from the political relations with France then and
in former times. Two years before Dee published his book,

102 THE SOVEREIGNTY OF THE SEA

Plowden, an eminent lawyer, acting as counsel in a case con-
cerning the rights on a manor to wreck of the sea, argued for
the defendant that " the bounds of England " extended to the
middle of the adjoining sea which surrounded the realm, but
that the Queen had the exclusive jurisdiction on the sea between
England and France by reason of her title to France, and so
also with Ireland ; whereas in other places, as towards Spain,
she had only the moiety. It was the same, said Plowden, with
the sea as with great, rivers. But 'while Plowden allowed the
"jurisdiction and governance of all things" to the Queen on the
sea within the limits stated, he denied to her the right of
property in it or in the land under it ; it was common to all
men, and she could not prohibit any one from fishing in it ; the
water and the land under it were things of no value, and " the
lish are always removable from one place to another." l

Dee adopted the same opinion as to the limits, but held,
as we have seen, that the fisheries were appropriated. The
boundaries of the Queen's " peculiar seas," he said, were " in
all places to be accounted directly to the myddle seas over
betweene the sea-shores of her own kingdom (and of all petty
Isles to the same kingdom appertayning) arid the opposite sea-
shores of all f orrein princes : and in all seas lying immediately
betweene any two of her own coasts or sea-shores, the whole
breadth of the seas over (in such places) is, by all reason of
justice, appropriate to her peculiar jurisdiction and sea roy-
alty," even if the distance in such cases were 1000 miles or
more.2 On the other hand, according to Dee, neighbouring
countries were to be allowed the same rights and interests in
the moiety of the sea appropriate to their coasts.

1 Sir John Constable's case. Moore, Hist. Foreshore, 225, from Hargrave MSS.t
15, fol. 95d. In the case for the crown the claim to the sea is very briefly put :
" Car quant est floud est parcel del mere que est solement en le Roign et nemy
en ascun subject ; car est pur passage pur chescun, mes owner de ceo nul si non le
Roign." Anderson, Les Reports du Treserudite, i. 86. (ed. 1664). In a MS. in
the Cottonian collection (Galba, C. 11, "Acta inter Angliam et Belgium, 1564-
1567 ") it is said the jurisdiction of the Prince in the adjoining sea extends for a
distance of 100 miles unless (1) in seas lying between the territories of two princes
which contain less than a hundred miles, in which case it extends to the mid-line
— usq' ad mediu eiusdem maris extenditur ; (2) where another prince has a right
to the whole sea. The authorities referred to are Bartolus, Angelus, Paulus de
Castro, and Joan de Platea.

2 Op. cit., 21.

UNDER THE TUDORS 103

The limits of the British seas, and the sovereignty per-
taining to them, were more fully described by Dr Dee some
years later in a long unpublished letter or treatise addressed to
Sir Edward Dyer,1 who had apparently asked him for a fuller
statement of his views on the subject. In his book Dee said
little about the boundaries in the Channel, where the principle
of the mid-line was complicated by two circumstances — the
claim of Elizabeth to the French crown, and the possession by
England of the Channel Islands. In his later treatise he says
that presupposing " for doctrine's sake " that Calais was in the
hands of Spain, and the northern coasts of Picardy and Nor-
mandy were appropriated by France (which was the case), then
the boundary must be drawn in the very middle of the Channel
between Dover and Calais, and then westwards in the middle
line between the opposite coasts of England and of Picardy and
Normandy, until it touched the middle of a straight line drawn
between Portland and the island of Alderney. In this region,
west of the line, inasmuch as the coasts of the Channel Islands
and the opposite coast of England belonged to the Queen, her
Majesty had "absolute, peculiar, and appropriate Sea Sovereignty
and Jurisdiction Royall." The western boundary of this area
of absolute sovereignty in the narrow seas coincided with a
line drawn from Start Point to an "island" that Dee calls
"Rocktow," which is unrepresented on charts, but which is
probably a phonetic synonym for " Roches Douvres," a group
of islets off the north coast of Brittany.2 From the middle of
this line the boundary passed westwards, again midway between
the coasts of England and Brittany, until it touched the middle
of a third straight line drawn from the north-west part of
Ushant to about the Lizard. These were the limits on the
supposition above referred to; but, "speaking more boldly in
her Majesty's right," Dee declared that the whole sea between

1 Two MS. copies exist, one bound up with Dee's copy of the General and Rare
Memorials in the British Museum, which was sent to Dyer with the MS., the
other in Harleian MSS. 249, fol. 95. The latter, which is a draft, is addressed
" To my very honorable frende Syr Edward Dyer, Knight," and a note inscribed on
it says, ' ' Written by Dr John Dee, out of whose library I bought it after his death
Ao Do 1625, S.D." The title on both MSS. is ©AAATTOKAPTI'A BPETTANIKH4 :
Miscclanea qucedam extemporanca de Imperil Britannici lurisdictione in Mari ;
and both are dated 8th September 1597.

2 Lat. 49° 6' N., long. 2° 49' W.

104 THE SOVEREIGNTY OF THE SEA

the south coast of England and the north coast of France —
Picardy, Normandy, and Brittany — was under the Queen's " sea-
jurisdiction and sovereignty absolute," inasmuch as she was a
real monarch of France by direct inheritance and prior con-
quest, and therefore had right to the French coasts ; and this
" absolute sovereignty " served to " enlarge and warrant " the
Queen's " Jurisdiction Respective " in the ocean to the west of
France. So also the jurisdiction of the crown of England
extended into the main ocean to the west of England and
Ireland by reason of the possession of the shores; while the
ocean around Scotland, inasmuch as that country was (he
said) in olden times tributary to the English kings, yielded to
her Majesty "a mightie portion of Sea Sovereignty," as it
stretched away westwards to " that famous and very ancient
Platonicall or Solonicall Atlantis." For the same reasons Dee
claimed prerogative and jurisdiction for the Queen in the
northern ocean, and between Scotland and the opposite coasts
of Norway and Denmark, "at least to the mid -sea," and so
to the southwards "half seas over" between the east coast
of England and the coasts of Denmark, Friesland, and Holland,
to the Straits of Dover.

Within the British seas as thus defined, Dee claimed that the
crown of England had first of all sovereign jurisdiction, over
foreigners as well as over subjects,1 and part of the duty of the
Petty Navy Royal — which, as stated, was to be maintained by
taxing foreign fishermen — was to guard and protect foreign
ships passing through our seas. This doctrine he based upon
the law as laid down by the Italian jurists. Nor did he forget
the purely naval side. Quoting the old proverb, "A sword
keepeth peace," he argued that the presence of a fleet such as
he suggested would cause other nations to respect us more
than they did, and enable us to enjoy the royalty and
sovereignty of the narrow seas and of our other seas better
than the possession of Calais and Boulogne could do.

Dee's work was premature. His proposals that Elizabeth

1 "All those that pass within our sea jurisdiction (either absolute or respect-
ive) and therein commit any notable offence against us may lawfully by our
power be taken ; and the same offenders may as lawfully and justly be punished,
as if on our land territory an offence like, or of like degree of injury, were by them
against us committed." "Absolute" jurisdiction applied to the sea where both
coasts belonged to England ; " respective " where it terminated half seas over.

UNDER THE TDDORS 105

should tax foreigners for fishing in the British seas and exer-
cise jurisdiction over foreign vessels passing through them
remained as much a dream as the scheme of Hitchcock.1 It
need not be supposed that such measures as Dee proposed
were intrinsically distasteful either to the Queen or to Cecil.
If a navy could have been acquired so easily, or a much
less sum than £100,000 gathered from foreign fishermen in
a " friendly " way, as Dee supposed, neither the sovereign nor
the statesman was likely to let the chance go by. But they
knew better than the philosopher, or than the Stuarts in the
next century, that a policy of the kind would involve them
in difficulties with other Powers, — with France and Spain as
well as with the Protestant Netherlands.

So far from adopting any policy of this nature or making"]
any claim to a special sovereignty in the surrounding seas, v
Elizabeth steadily opposed all claims which other nations put
forward to mare clausum. Long before Grotius, she was the
champion of the free sea, although it must be admitted that
the action of the English Queen was no more based on con-
siderations of the general good of mankind than were the
efforts of the Dutch publicist : both had in view the interests ">
of their native land. Elizabeth's motive was to secure liberty
of trade and fishery for her subjects, which was threatened
by^the pretensions of Spain and Portugal on the one hand
and by Denmark on the other. The Portuguese pretension
was of long standing. When that nation in the latter half
of the fifteenth century had pushed her way down the west
coast of Africa and ultimately round the Cape of Good Hope
to the East Indies, she obtained from the Pope various bulls
securing her in her possessions, and granting sovereign authority
to the crown of Portugal in all the lands it might discover in
the Atlantic from Cape Bojador to the Indies. By an inhuman
doctrine established during the Crusades, Christian princes were
supposed to have the right to invade, ravage, and acquire the
territories of infidel nations on the plea of extending the sway
of the Christian Church ; and the " Pope, from his supreme
authority over all temporal things, disposed of these heathen

1 In 1597 Dee expressed his grief and surprise that so little had been done or
attempted with regard to the sovereignty of the sea, " and so my labours (after a
sort) vaynely employed." MS.

106 THE SOVEREIGNTY OF THE SEA

lands to such princes as might bring them under the dominion
of the Church and propagate the true faith among the inhabit-
ants. Immediately on the return of Columbus from his first
voyage in 1493, the Spanish monarchs accordingly obtained a
bull from Pope Alexander VI. confirming them in the newly-
discovered regions; and in order to prevent disputes with
Portugal as to the extent of their respective claims, another
bull was issued, on 4th May 1493, containing the famous line
of demarcation between their territories. This was an ideal
straight line drawn from the North Pole to the South Pole,
passing 100 leagues to the west of the Azores and Cape
Verde Islands. All islands or lands discovered to the west
of this line by the Spaniards, and which had not been in the
possession of any Christian Power before the preceding Christ-
mas, were to belong to the Spanish crown ; and all territory
discovered to the east of it was to belong to Portugal. The
Pope, moreover, granted a monopoly of commerce within those
immense regions to the respective crowns, so that other nations
could not trade thither without license from the Spanish or
Portuguese sovereigns.1 Spaniards even were not allowed to
go to the New World either to trade or form establishments
without royal license and authority. Disputes arose between
Spain and Portugal as to the equity of the Pope's line of
demarcation, and by the Treaty of Tordesillas, 7th June 1494,
they agreed that the inter-polar line should pass 370 leagues
to the west of Cape Verde Islands.2 The exclusive rights con-
ferred by the Pope were rigorously enforced by Spain and
Portugal. Navigation to their new possessions, or the carrying
on of any trade or commerce with them, without royal license
was made punishable by death and confiscation of goods.3

Early in her reign Elizabeth had occasion to protest against

1 Hullarium Jlomanum Novissimum, i. 346. " Insulse novi Orbis h, Ferdinando
Hispaniarum Rege, et Elisabeth Regina repertaj, et reperiendae, conceduntur eisdem,
propaganda) fidei Christiana) causa . . . omnes insulas et terras firmas inventas et
inveniendas, detectas ad detegendas versus Occidentem et Meridiem fabricando, et
construendo unam lineam a Polo Arctico scilicet Septentrione, ad Polum Antarcti-
cum, scilicet Meridiem, sive terra) firnue, et insulaj inventa: et inveniendse sint
versus Indian! aut versus aliarn quamcumque partem, qua; linea distet a qualibet
Insularum, qua) vulgariter nuncupantur de los Azores y cabo vierde, centum
lamcis versus Occidentem et Meridiem," &c. Art. 8, "prohibet aliis accessum ad
illas insulas pro mercibus habendis absque Regis licentia."

2 Harrisse, The Diplomatic History of America, 78.
* Selden, Mare Clausum, i. c. xvii.

UNDER THE TUDORS 107

the claims of Portugal, and had a heated dispute with King
Sebastian about them.1 Later, the daring exploits of Drake
on the Spanish seas were more than a flagrant violation of
Philip's pretension to mare clausum in the western Atlantic
and the Pacific Oceans — a claim which Elizabeth refused to
recognise. When Mendoza, the Spanish ambassador, com-
plained to her in 1580 of Drake's depredations, and that
English ships presumed to trade in the " Indian " seas, he was
told in effect that the Spaniards, contrary to the Law of Nations,
had prohibited the English from carrying on commerce in
those regions, and had consequently drawn the mischief upon
themselves. She was unable to understand, she said, why
her subjects and those of other princes should be barred from
the "Indies." She could not recognise the prerogative of
the Bishop of Rome "that he should bind princes who owe
him no obedience," and her subjects would continue to navigate
" that vast ocean," since " the use of the sea and air is common
to all ; neither can any title to the ocean belong to any
people or private man, forasmuch as neither nature nor regard
of the public use permitteth any possession thereof." 2

About the time when Drake left England, the question of
the right of Spain to forbid the English to trade to the Indies
had been considered. It was argued that the Pope's bull was^
void, for several reasons. The consent of the Pope had been
conditional for the conversion of the natives, while the " usage
of the Spaniards hath been otherwise." The bull could have
no_force in tending to the prejudice of a third party, because
all princes by theTCaw of Nations had the right of navigation
in the sea and the right of traffic, and the Pope could not
deprive them of these rights. Besides, there had been agree-
ments between Spain and England since the^date of the bull
that the subjects of each state might freely traffic in the
' dominions of the other ; and the Spanish lawyers had come
to the conclusion that the Venetians could not legally inhibit
others from trading in the Adriatic, and therefore, by the same
reasoning, neither could the Spaniards or Portuguese prohibit
orderly and lawful traffic to their Indies.3 Elizabeth has been
charged with inconsistency on the ground that at the time

1 Selden, loc. cit. 2 Camdeu, Annales, 225 (ed. 1635).

3 Hatfield MSS., ii. 684. " Whether Your Majesty's Subjects may lawfully trade
into the Indies." Undated, but calendered under the year 1578.

108 THE SOVEREIGNTY OF THE SEA

when she was asserting the freedom of the seas against the
claims of Spain she was claiming for herself, " with very great
energy," a similar dominion in the British seas.1 The charge
is quite unfounded. No claim was put forward by her to
the sovereignty of the British seas. On the contrary, they
were declared to be free for the navigation and fishery of all
nations.

The policy of Elizabeth as to the freedom of the sea. is
revealed still more clearly in the negotiations with the King
of Denmark as to the right of fishery at Iceland and in the
northern seas. Denmark claimed not only the Sound and the
Belts and the maritime dominion of the Baltic, with the right
of controlling the navigation through them, but also the seas
intervening between the coasts of Norway on the one hand
and Iceland and Greenland on the other. A similar claim was
made to the sea between Norway and the Orkney and Shetland
Isles, at all events prior to 1468, when they were acquired by
Scotland. Putting aside altogether the differences that arose
with regard to the dues exacted at the Sound and in con-
nection with the Baltic, a great many disputes had occurred
between England and Norway and Denmark as to the right
of Englishmen to trade and fish at Iceland and along the
Norwegian coast, and many treaties were made between the
two Powers regulating that right. From an early period
numerous barks from Lynn, Yarmouth, Hull, Scarborough,
and other east coast ports, and from Bristol, frequented the
northern seas for fishing and buying fish, and for traffic,
visiting not only Iceland, but Helgoland, Nordland, and Fin-
mark, and going at least as far east as Wardhouse or Vardo.
In 1415 Henry V., at the request of King Eric, and notwith-
standing an earnest petition of the Commons to the contrary,2
prohibited his subjects from going to Iceland or other islands
belonging to Norway or Denmark;3 in 1429 the King of
Denmark prohibited English merchants from purchasing fish

1 Hautefeuille, Hist, des Origines, des Progres, et des Variations du Droit mari-
time international, 15. Hall, A Treatise on International Law, 142.

2 Rot. Parl., iv. 796. The petition declared that owing to the fish having deserted
the coasts where they used to be taken, the fishermen had been forced to go to
Iceland and other places for six or seven years past in order to catch them.
English fishermen, however, had frequented Iceland long before that time.

3 Fncdera, ix. 322.

UNDER THE TUDORS 109

at Finmark, or elsewhere in his dominions than at Bergen,
against which the English petitioned Henry VI. ; 1 and in 1490
an important treaty was concluded between Henry VII. and
King John II. of Denmark and Norway, by which English
subjects were granted liberty to sail freely to Iceland for
fishing or trading on paying the usual customs, provided that
they obtained a renewal of their license to do so every seven
years.2 This treaty was renewed in 1523 between Henry VIII.
and Christian II.,3 but disputes frequently arose later, and
several embassies were charged with composing the differences.
Apparently the English fishermen did not always conduct
themselves with propriety. They were accused of committing
various wrongs and injuries on the inhabitants, and in 1585,
on the complaint of the King of Denmark, Queen Elizabeth
issued an Order in Council reproving them for their excesses,
and intimating that if they were continued the King of Den-
mark would interdict their fishing, and " punish such as shall
without his license repair thither, and confiscate their ships
and goods." The king, she said, had promised that if the
English fishermen abstained from committing outrages and
behaved themselves, and paid the customary duties, he would
allow them to enjoy the liberties they had formerly possessed ;
and she commanded the principal officers at her ports to take
bonds from all those going to Iceland or Wardhouse for their
good behaviour.4 But the disputes and difficulties continued.
The English fishermen omitted to renew their licenses sep-
tenially, — in 1592 it was said they had not been obtained
for twelve years, and the stipulation had been forgotten by
those in authority,5 — and the Danes began about 1593 to
interrupt them in their fishing at Westmoney and in the sea
off Iceland, and to seize their vessels. On complaint being
made to the King of Denmark, he declared his willingness to
allow the Englishmen to fish at Iceland under license, except
at Westmoney (small islands on the south coast), where the
fishing was reserved for his court.6 At the close of the century

1 Rot. Parl, iv. 348, 378. 8 Hen. VI., c. 2.

2 Pcedera, xii. 381. 3 Ibid., xiii. 798.
4 State Papers, Dom., Elizabeth, clxxx. 26, 15th July 1585. * Ibid., ccxlii. 92.
* Fadera, xvi. 278. A license granted in 1570 to an Englishman, one Raymond

Binge, for fishing at Iceland for seven years, gave permission for his boats to be

110 THE SOVEREIGNTY OF THE SEA

the Danes used stronger measures. In 1599 several English

" O

vessels were seized or molested. Five ships of Kingston-upon-
Hull, while at Wardhouse for fish, as had been their custom
for years, were met there by a small Danish fleet with the
King of Denmark himself on board, who caused them to be seized
as prize, took all the goods and effects of the Englishmen, beat
some of the crew and put them in irons, and finally carried off
four of the ships.1 Other English vessels were driven away
from their fishing on the high seas around Iceland, although
far from the coast.

Elizabeth complained strongly of these acts of injustice as .
being contrary to the Law of Nations.2 A Danish ambassador
who came to England at this time tried to justify the pro-
hibitions by reference to the treaty of 1583, by which permis-
sion had been given to English vessels to navigate the northern
seas to Russia, but which did not grant any authority for fish-
ing ; and he requested the Queen to publish an edict inhibiting
her subjects from fishing at Iceland or Wardhouse without the
license of the King of Denmark, declaring that many English
vessels persisted in carrying on the fishery without any license,
contrary to the treaties. Reliance was also placed on an old
treaty made in 1468 between Edward IV. and Christian I., in
which it was stipulated that English vessels should not go
farther north on the coast of Norway than Hagaland.3 In the
following year ambassadors were dispatched from England to
negotiate an arrangement concerning the tolls levied at the
Sound and the freedom of the northern seas for English fisher-
men,4 and in a paper of 1602 conveying instructions to the
ambassadors at Bremen we find an admirable exposition of the
principles of the freedom of the seas.

After claiming that the treaties of 1490 and 1523 had given
liberty of fishing to the English, the ambassadors were to-
kept and wintered in the ports there, on payment of the customs and abstaining
from trading, as well as freedom of fishing except where prohibited by royal
edicts, reserved for the king's use, or granted to others. Brit. Mus. Vespasian MSS.,.
C. xiv. fol. 21.

1 Complaint of the Mayor of Kingston -upon -Hull to Cecil, 2nd July 1599.
State Papers, Dom., cclxxi. 68.

* Fcedera, xvi. 395, 432.

3 Brit. Mus. Vespasian MSS., C. xiv. fol. 22. Fatdera, xvi. 431.

4 State Papers, Dom., cclxxiv.

UNDER THE TUDORS 111

declare that the Law of Nations allowed fishing in the sea

o

everywhere, as well as the use of the ports and coasts of princes
in amity for traffic and the avoiding of the dangers from
tempests ; so that if the English were debarred from the enjoy-
ment of those common rights, it could only be in virtue of an
agreement. But there was no such contract or agreement. On
the contrary, by denying English subjects the right of fishing
in the sea and despoiling them for so doing, the King of Den-
mark had injured them against the Law of Nations and the
terms of the treaty. Moreover, with respect to the licenses the
Queen declared that if her predecessors had " yielded " to take
them, "it was more than by the Law of Nations was due";
they might have yielded for some special consideration ; and in
any case it could not be concluded that the right of fishing,
"due by the Law of Nations," failed because licenses were
omitted. As to the claim to the sea between Iceland and Nor-
way on the ground that the King of Denmark possessed both
coasts — the argument used by Dee and Plowden for the domin-
ion of the English crown in the Channel — Elizabeth was
emphatic. If it was supposed thereby " that for the property
of a whole sea it is sufficient to have the banks on both sides,
as in rivers," the ambassadors were to declare "that though
property of sea, in some small distance from the coast, may
yield some oversight and jurisdiction, yet use not princes to
forbid passage or fishing, as is well seen in our Seas of England
and Ireland, and in the Adriatic Sea of the Venetians, where
we in ours and they in theirs, have property of command ; and
yet neither we in ours nor they in theirs, offer to forbid fishing,
much less passage to ships of merchandise ; the which by Law
of Nations cannot be forbidden ordinarily ; neither is it to be
allowed that property of sea in whatsoever distance is con-
sequent to the banks, as it happeneth in small rivers. For
then, by like reason, the half of every sea should be appro-
priated to the next bank, as it happeneth in small rivers, where
the banks are proper to divers men ; whereby it would follow
that no sea were common, the banks on every side being in the
property of one or other ; wherefore there remain eth no colour
that Denmark may claim any property in those seas, to forbid
passage or fishing therein."

The ambassadors were to declare that the Queen could not

112 THE SOVEREIGNTY OF THE SEA

agree that her subjects should be absolutely forbidden the seas,
ports, or coasts in question for the use of fishing, " negotiation,"
and safety ; she had never yielded any such right to Spain and
Portugal for the Indian seas and havens. Nevertheless, if the
King of Denmark for special reasons desired that she should
" yield to some renewing of license," or that " some special place
upon some special occasion " should be reserved for his own use,
they were in their discretion and for the sake of amity to
agree; but the manner of obtaining the license was to be
defined in such a way that it would not be prejudicial to her
subjects, nor "to the effect of some sufficient fishing," and the
licenses were to be issued in the subject's name rather than in
hers or the king's.1 Denmark continued to insist upon her
right to the trade with Iceland, and to the fisheries in the
northern seas,2 which became of greater importance early
in the next century when the whale-fishing was established
at Spitzbergen. The Danish claim to a very wide zone of
territorial sea around Iceland was enforced until quite recent
times.

The dispute between Elizabeth and the King of Denmark as
to the rights of fishing in the North Atlantic bears a strong
resemblance to that between James I. and the Dutch, which
began a few years later, when the positions, however, were
reversed, James insisting on his right to the fishery on the
British coasts, while the Dutch used the arguments of Elizabeth
in favour of the complete freedom of the seas. One difference
in the two cases may be pointed out. England by agreeing to
take licenses from the King of Denmark, in the treaties of
1490 and 1523, acknowledged the sovereignty of Denmark in
northern waters, whereas the Netherlands never acknowledged
the sovereignty of England in the British seas, within which
the liberty of fishing had been expressly granted to them by
the Burgundy treaties.

Meantime the condition of the English fisheries had not
much improve^, either under the restrictive legislation respect-
ing imports and exports of fish or by the measures taken to
enforce the political lent. The liberty given by the Act of
1571 for the importation of cod-fish was opposed to the interests
of the Iceland trade, and gave rise to abuses. Great quantities

1 Fcedera, xvi. 433. - Brit. Mus. Lansdowne MSS., 142, fol. 380.

UNDER THE TUDORS 11.3

of inferior fish were " engrossed " by English merchants abroad
and brought into the realm, which was thus " furnished with
foreign fish and herrings," while the Iceland fishery declined
and the number of mariners available for the navy diminished.
The importation of foreign salted fish or salted herrings by
Englishmen or denizens was therefore prohibited ; such fish
were allowed to be brought by aliens alone, who were to pay
additional customs, but fish from Iceland, Shetland, Newfound-
land, and from the Scottish seas were still to be admitted.1
But the attempt to keep out foreign fish failed in its object,
the restrictions were found to be otherwise injurious, and they
were repealed in 1597. "It had been hoped and expected,"
it was said in the preamble of the repealing Act,2 "that the
fishermen of this realm would in such sort have employed
themselves to fishing, and to the building and preparing of
such store of boats and shipping for that purpose, as that they
should long ere this time have been able sufficiently to have
victualled this realm with salted fish and herrings of their own
taking, without any supply of aliens and strangers, to the great
increase of mariners and maintenance of the navigation within
this realm. Notwithstanding it is since found by experience
that the navigation of this land is no whit bettered by means
of that Act, nor any mariners increased, nor like to be in-
creased by it ; but contrary wise, the natural subjects of this
realm being not able to furnish the tenth part of the same with
salted fish of their own taking, the chief provision and victual-
ling thereof with fish and herrings hath ever since the making
of the same Statute been in the power and disposition of aliens
and strangers, who thereby have much enriched themselves,
greatly increased their navigation, and (taking advantage of
the time) have extremely enhanced the prices of that victual 3
to the great hurt and impoverishing of the native subjects of
this realm, and yet do serve the markets here in very evil
sort," housing their fish till the price was raised to their liking.
Thus the merchants in England were hindered in their trade,
the navigation of the realm, " which was intended to be aug-

1 23 Eliz., c. 7, 1580-81. Brit. Mus. Lansd. MSS., 14. a 39 Eliz., c. 10.

3 The price of stock-fish had risen from £12 a last in 1584 to £18 and £20 in
1597, and the price of cured ling in the same time advanced from £3 to £5, 5s.
per cwt. State Papers, Dom., cclxv.

H

114 THE SOVEREIGNTY OF THE SEA

mented, hath been rather impaired than increased," and the
price of fish had been greatly raised, to the general prejudice
of the people. After this very thorough condemnation of its
previous Act,1 Parliament declared that as strangers and sub-
jects were at liberty to export English-caught fish and herrings,
it was only right to allow subjects as well as foreigners to
bring in fish to provision their own country, and the previous
Act was wholly repealed. Thus the condition reverted to what
it had been before this course of legislation began.

It is equally doubtful whether the compulsory fish-days or
political lent had much influence in fostering the fisheries. At
first, if a return from the Trinity House can be trusted, the
number of fishing-boats increased. They reported in January
1581 that since the previous Parliament there had been an
increase along the coast from Newcastle to Portsmouth of 114
sail of fishing-boats, of between fifteen and forty tons, which was
equal to the maintenance of a thousand additional seamen for
the navy.2 It is not improbable that an increase of the her-
ring-boats occurred on the east coast at this time, but it was
temporary, and more likely due to other provisions of the Act
of 1563. Cecil's Wednesday, for which he had fought so hard,
was abolished in 1584, while certain penalties for eating flesh
in Lent, on Fridays, Saturdays, or other fish-days, were at the
same time augmented;3 but in 1593 all the penalties were
greatly reduced.4

The policy of the political lent did not fail from want of
efforts to enforce it. In London especially precautions were
taken to have the law carried out, and the fishmongers were
naturally active in their own interests. Taverns and inns
were often raided ; those who had flesh in their houses during
Lent were often put in the pillory, and those who partook of
it in the stocks ; and butchers were frequently prosecuted for
selling flesh on forbidden days. Those who were licensed to
provide flesh in Lent for the sick were put under bond, and
had to keep an account of every joint they sold ; watchmen
guarded the city gates lest any beef should be smuggled in.

1 A commission of eleven peers, three bishops, and two law-officers had been
appointed in 1593 for the repeal of the Act respecting the importation of salted
fish and herrings. Ibid., ccxliv. 84.

2 Ibid., cxlvii. 21, 22. 3 27 Eliz., c. 11. 4 35 Eliz., c. 7.

UNDER THE TUDORS

115

Similar measures were taken throughout the country. The
sheriffs and justices of the peace were ordered by the Council
to see that the Act was duly enforced, and innkeepers had to
enter into recognisance to observe it.

But there is abundant testimony that the observance of the
ish-days was evaded on all sides. The policy was against the
temper of the people. So long as it had been a matter of re-
ligion and ecclesiastical rule they were faithfully observed,
motive was now too remote ; and although the people were
exhorted on grounds of "conscience" to eat fish on 153 days
in the year in order to maintain the navy, and "great
numbers" at first obeyed, the "universal multitude" always
abstained, and their example was followed by the better
classes. Many considered abstinence from flesh on fish-days
to be "papistical"; others objected on economic grounds, say-
ing they could maintain their families better and cheaper on
flesh than on fish ; and great numbers took advantage of the
clauses in the Act granting license of exemption. The Lord
[ayor was pestered by such applications, very commonly from
loblemen and persons about the Court, even receiving them
>m the Queen herself, and in 1595 he begged that the Act
light be repealed altogether.1 Thus " Cecil's fasts," as the
ipopular fish -days were vulgarly called, designed by the
reat statesman to increase the fisheries and strengthen the
ivy, became the butt of the popular dramatist, and served
little purpose except, in the words of Ben Jonson, to " keep a
lan devoutly hungry all day, and at night to send him
ipperless to bed."2 There is little doubt that the policy of
political lent, if it had been feasible, would have succeeded
its object. Edward Jennings at the end of the century
ilculated that shipping had diminished in the proportion of
70 to five since the time when fish-days were observed, and
it the fisheries were reduced in the proportion of four-fifths
the same period ; while the number of idle persons in Eng-
id who had previously engaged in fishing in the sea was

Jeniuges, A brief e discouery of the damages that happen to this Realme by dis-
iered and vnlawfull diet, 1593. Hitchcock, A briefe note of the benefits that grow
this Realme by the observation of Fish-Daics, Hatfield MSS., 1595. State Papers,

cclxv. 25. Remembrancia, 391 et seq.
2 Every Man in His Humour, Act 3, sc. 4.

116 THE SOVEREIGNTY OF THE SEA

estimated at 10,000. Even if those figures were exaggerated,
they indicate, as Parliament admitted, that the measures
hitherto taken to revive the fisheries had failed. It remained
for King James to try another plan, that of exercising an
effective sovereignty on the British seas by prohibiting foreign
fishermen from fishing within them without taking license and
paying tribute.

Before passing to the reign of James something must be
said about one symbol of this sovereignty, as it was now re-
garded— the striking of the flag and top-sails. From the be-
ginning of the fifteenth century, when the Flemish herring-
boats, and no doubt others, lowered their sails to English ships
(see p. 43), there appears to be no record of the ceremony
until the middle of the next. In the reign of Henry VIII.,
although he was sometimes called " Lord of these seas," l and
ships were appointed to " keep the passage of the narrow sea,"
the honour of the flag was probably only occasionally enforced.
But under Edward VI., during the Protectorate of Northumber-
land, we find it stated in the King's Journal that in April
1549 "the Flemings' men-of-war would have passed our ships
without vailing bonnet, which they seeing shot at them, and
drave them at length to vail bonnet and so depart " ; and again
in July of the following year, at Dieppe, the Flemish ships
lowered their sails to an English man-of-war.2 This appears to
be the first recorded instance of foreign men-of-war saluting
the ships of the King of England, and it is noteworthy that in
the latter case it was performed in a French port by Flemish
vessels.

That it was not always demanded in the absolute manner of
later times is shown by orders issued by the Privy Council in
1552. The Baron de la Garde was in command of a French
fleet of twelve men-of-war, and Sir Henry Dudley, whose force
was weaker, asked how he should act " touching the preemin-
ence of honnour to be gyven " when he met the Baron. The
Council replied that " in respect of thamitie and that the sayd
Baron is stronger then he uppon the sees sume tymes yelde and
sume tymes recey ve thonnour " ; and he was told to use the

1 Froude, Hist. England, iii. 69.

2 King Edward's Journal, in Burnet, Hist. Reformation, ii. (v. of ed. 1865).
Oppenheim, Hist. Administration Roy. Navy, 106.

UNDER THE TODORS 117

Baron courteously, "and with such discression that the same
yelding of the preeminence may be interpreted to be of curtesy
rather then to the derogacion of the Kinges honnour." 1 It was
the French who consistently and constantly opposed the English
claim, and there is evidence that the salute was a point of
rivalry between the two countries even at this time. An ordin-
ance issued by Henry II. of France in 1555 (repeated by
Henry III. in 1584) required all vessels to strike their sails
to ships of the French navy whenever they met them at sea,
and some Hamburgers were seized because they did not do so.2
The honour appears to have been generally accorded by the
Dutch in the reign of Elizabeth,3 and compelled from the
Spaniards. In 1554, in the reign of Mary, when the Spanish
fleet was coming up Channel in all its bravery, with the royal
flag flying on the Admiral's ship, and bringing Philip of Spain
to marry the Queen of England, the English Admiral, Lord
William Howard, fired a broadside into the Spaniard and
forced him to lower his colours while in his presence.4 And
later, when Anne of Austria was on her way to Spain to marry
Philip, the Spanish ships were fired on by Admiral Hawkins at
Plymouth and forced to strike the flag and lower top-sails in
like manner.5 But it was not till the reign of Charles I. that
this punctilio became of great international importance.

1 Acts of the Privy Council of England, iv. 37. 7th May 1552.
a Selden, Mare Clausum, lib. ii. c. xxvi.

3 Raleigh, A Discourse of the Invention of Ships, Collected Works, viii. 326.
Monson, Naval Tracts, in Churchill's Collection of Voyages and Travels, iii.

4 Monson, op. cit. Laughton, Fortnightly Review, Aug. 1866.

5 Froude, op. cit., viii. 68. Laughton, loc. cit.

118

CHAPTER IV.

UNDER THE STUARTS. JAMES I. A NEW POLICY.

SHORTLY after the accession of James to the throne of England,
the liberal policy of his predecessors as to the freedom of the
sea suffered a marked change. In the previous century, under
the Tudors, little was heard of the pretension to the sovereignty
of the sea, with the exception of the striking of the flag to
the royal ships in the narrow seas — a ceremony that was not
peculiar to England. Foreigners then, as always before, en-
joyed complete liberty of fishing on the coasts of England and
Ireland, and no attempts had been made to exact tribute from
them on the Scottish coasts. Queen Elizabeth, as has been
shown, not only refrained from putting forward claims to the
sovereignty of the sea, but on several occasions and in the most
positive manner asserted the freedom of the seas for both
navigation and fishing against the exclusive policy of Denmark
and Spain. At the end of the Tudor period England was the
great champion of mare liberum — long before the Dutch Re-
public had challenged the monopolies of the Portuguese either
by the pen of Grotius or the guns of Jakob van Heemskerk.

But under James the old doctrine was revived, and something
new was added in a claim to the fisheries along the British
coasts. Before he had been a year in England he took measures,
with the laudable object of defining the bays, or " King's
Chambers," within which the hostile actions of belligerents
were prohibited. In its essence this act was opposed to ex-
tensive claims t D maritime sovereignty, because it restricted a
most important attribute of such sovereignty to comparatively
a narrow space in the adjacent sea, though a space much
greater than that now comprised in the so-called territorial
waters. In point of fact, throughout his reign no assertion was

UNDER THE STUARTS: JAMES I.: A NEW POLICY 119

made to such a maritime sovereignty as was claimed by
Charles I. l The measures referred to were in relation to
neutrality in the war which continued between the United
Provinces and Spain, James having promptly concluded peace
with the latter Power. He issued a number of proclamations
referring to privateering and depredations at sea, most of them
being conceived in the interests of Spain ; and in one of these,
for the recall of British mariners in foreign service, dated
1st March 1604, the king forbad hostilities within his ports,
havens, roads, creeks, or other places of his dominions, or so
near to any of his ports or havens as might be reasonably con-
strued to be within that title, limit, or precinct, as well as the
hovering of men-of-war in the neighbourhood of such places ;
and he caused " plats " of the limits of his ports and jurisdiction
to be prepared for the instruction of his officers concerned.2

Long before the time of James the harbours, roadsteads, and
at all events some of the bays of a country were recognised as
belonging to it, in the sense at least that hostilities of belliger-
ent men-of-war or the capture of prizes were forbidden within
them ; they were " sanctuaries " under the jurisdiction and
protection of the adjoining territory. With regard to the
English Chambers, we find that in the treaty which Cardinal
Wolsey drew up in 1521, when acting as mediator between the
Emperor Charles V. and King Francis I. of France, it was
stipulated that during the war between these two sovereigns,
the ships, whether armed or unarmed, as well as the mariners,
of either side should be secure from attack by the other Power
in the harbours, bays, rivers, mouths of rivers, roads or stations
for shipping, and especially in the Downs or other maritime
place under the jurisdiction of the King of England.3 There is

1 An undated State Paper, calendared under the year 1604, entitled "Reglement
for Preventing Abuses in and about the Narrow Seas," contains a claim by the
king to a most absolute dominion over the Four Seas (State Papers, Dom., James,
xi. 40). It appears, however, to be merely a copy of the similar regulation pre-
pared in 1633 by Sir Henry Martin (see p. 252). It is not contained in the volume
of royal proclamations published in 1609, and is not referred to by Selden. It has
no doubt been wrongly calendared.

2 It is given in Appendix D, from A Booke of Proclamations, published, since the
beginning of his Majesties most happy Reigne ouer England, &c., Vntill this present
Moneth of Febr. 3, Anno. Dom. 1609. Cum Priuilegio, p. 98.

3 " Item, conventum et conclusum est, quod, dicto bello durante, nullus subditus
principum pnedictorum, intra portus et sinus maris quoscumque, flumina, ostia

120 THE SOVEREIGNTY OF THE SEA

little doubt that this article only embodied in a formal manner
what had long been the practice of nations, the Downs being
specially mentioned as the most important anchorage in the
kingdom.

When James decided to mark out distinctly on a chart the
boundaries of his neutral waters on the coast of England, the
matter was submitted to the Trinity House, and a jury of
thirteen men, specially skilled in maritime affairs, was appointed
to prepare tables and charts showing the position and limits of
the King's Chambers and ports and the sailing directions for
the same, according to their knowledge of what had been the
custom in the past. The charts and schedules were presented
to Sir Julius Caesar, the Judge of the High Court of Admiralty,
on 4th March 1604, together with a sworn declaration that
they represented the true boundaries.1 The chambers formed
were nominally twenty-six in number, the points or headlands
selected by the surveyors being as follows, beginning at the
northern extremity of the east coast and ending at the Isle of
Man — Holy Island, Souter Point, Whitby, Flamborough Head,
Spurn Point, Cromer, Winterton Ness, Caster Ness, Lowestoft,
East Ness, Orfordness, the North Foreland, the South Foreland,
Dungeness, Beachy Head, "Dunenoze" (Isle of Wight), Port-
land Bill, Start Point, Rame Head, Dodman Point, the Lizard,
the Land's End, Milford, St David's Head, Bardsey Island,
Holyhead, the Isle of Man. The extent of the "chambers"
varies in different places ; and while this is obviously due on

flurninum, gurgites, aquas dulces, stationes navium, et prsesertim stationem vul-
gariter vocatam les Dunes, aufc alia loca maritima qusecumque jurisdiction! dicti
Regis Anglise subjecta aliquam navem mercatoriam, onerariam, armatam vel non
armatam, onustam seu vacuam, cujuscumque quantitatis aut oneris fuerit, de
quacumque natione eadem navis extiterit, capere, spoliare, diripere, seu merces,
victualia, aut armamenta qusecumque, ab eisdem navibus, aut earumdem nautis
auferre, nee eisdem vim, violentiam, aut molestationem aliquam inferre possit,
aut debeat," &c. Dumont, Corps Diplomatique, IV. i. 352.

1 This interesting document is printed in Appendix E, from State Papers, Dom.,
James I., vol. 13 (1605), No. 11 ; No. 12 is another of the same. It is not the
original, but a copy, the names being all in the same hand as the body of the
paper. Diligent search among the records has failed to furnish the " plott "
referred to, but there is no reason to doubt that the reproduction of it by Selden
(Mare Clausum, lib. ii. c. xxii.), and shown here on fig. 3, is an accurate repre-
sentation. Selden states that the plott or chart was engraved, and copies sent to
the officers concerned.

ig. 3. — Chart prepared by the 7'rimty House showing the bearings of
the King's Chambers. From Selden.

122 THE SOVEREIGNTY OF THE SEA

some parts of the coast to the contour, it is due on other parts
to a selection of headlands, no doubt according to the custom
which had grown up and was recognised among the officers and
others concerned. Thus the great bay between Cornwall and
Devon would have formed a natural " chamber " by a line, not
so long as some of the others, between Start Point, or Prawl
Point, and the Lizard, and which would have formed part of
the girdle around the coast ; whereas three chambers are formed
along its shores. On the east coast the " chambers " are as a rule
small,1 the largest embracing the mouths of the Humber and
the Thames ; they are generally large on the south coast, and
largest of all on the west coast, where the whole of the Bristol
Channel was enclosed by the line from Land's End to Milford,.
a distance of nearly 100. nautical miles, the whole area con-
taining about 3400 square nautical miles. This chamber, as
well as those to the north of it, must have been of import-
ance on account of the volume of shipping which passed
through it.2

It is to be noted that the King's Chambers were confined to-
the coast of England, and, further, that they had no reference
to the claim of James to property in his seas, so far at least
as fisheries were concerned. They were strictly limited to
questions of neutrality and jurisdiction, in view of the war
then existing between Spain and the United Provinces and
the frequent depredations of privateers. The chambers on
the east coast, where the Dutch carried on their great herring
fishery, were much too small to have any relation to the subject
of unlicensed fishing ; and at no time during the prolonged dis-
cussions on the fishery were the limits of the King's Chambers
made use of in argument. Neutral protection, moreover, was.
strictly limited to the waters defined. It was in vain that
Gentilis, the Spanish advocate in the Admiralty Prize Court,
argued that the jurisdiction of England extended far beyond
the limits of the "chambers," and ought therefore to be law-
fully and justly applied in protecting Spanish vessels from

1 It will be noticed from fig. 4, where the lines between the headlands are-
shown on a modern map, that some of the "chambers" on the east coast have
entirely disappeared, no doubt owing to the erosion or silting up of the coast at
those places during the last three hundred years.

2 In stormy weather as many as 300 or 400 sail of Hollanders took refuge in
St George's Channel at a time. State Papers, Dom., xlv. 23 (1609).

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

124 THE SOVEREIGNTY OF THE SEA

the talons of the Dutch on the high seas. The judgment
of the Court of Admiralty, so far as concerned the place of
capture, was always based upon the consideration whether
that place lay within or without the limits of a "chamber."

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

In truth, a great change had taken place in the national
sentiment. England had now entered upon the long struggle
for commercial and maritime supremacy, with the aim of
increasing the power of the nation against all rivals.1 It was
obvious to every one that the great rival and competitor was
the Dutch Republic, whose rapid rise to the first commercial
state in Europe deeply impressed the minds of English states-
men and writers. In the reign of Elizabeth, the common
interest of the two countries in opposing Spain prevented
measures being taken to curb the growing power of the

1 Cunningham, The Growth of English Industry and Commerce, i. 424.

UNDER THE STUARTS: JAMES I. I A NEW POLICY 125

Dutch. But early in the seventeenth century this motive
had lost its force. James had promptly concluded peace
with Spain, and even spoke of the Dutch as rebels.1 Thus,
during his reign arose that bitter rivalry and keen emulation
of the Dutch which continued throughout nearly the whole
century, and of which the English claim to the sovereignty of
the sea may be looked upon as an important phase. It was
against the United Provinces that the claim was directed, and

O

as the Dutch themselves openly boasted that the sea fisheries
were the foundation of their shipping, wealth, and power, it
was to the sea fisheries that England first turned in her efforts
to cripple them.

Those fisheries had greatly increased towards the end of the
sixteenth and in the early part of the seventeenth century. An
official account of the fisheries of Holland, Zealand, and
Flanders in 1562 estimated the number of busses and fishing-
boats at 700, of which Holland had 400, most of them being
" great " busses of about 46 lasts burden.2 Guiccardini, who
visited the Low Countries about the same time, placed the fleet
of busses at 700, each of which made three voyages, bringing
back on an average 70 lasts of herrings, or a total of 588,000
barrels, valued at £441,000 sterling.3 Another author of the
period gave a list of towns whose prosperity and even existence
depended upon the fishery ; 4 and a little later Hitchcock, and,
following him, Dee, stated that 400 or 500 busses came every
year from the Low Countries to fish for herrings on the east
coast of this country.5 Those figures referred to the fisheries
of the Netherlands as a whole, including Flanders, but during
the war of independence, after the United Provinces threw
off the yoke of Spain and secured command of the sea, the
Flemish fisheries withered away. At Dunkirk, for example,

1 Gardiner, Hist, England, i. 103.

2 Declaratie van de visscherijen in Holland Zeeland en Vlaanderen. Fruin,
Tien Jaren uit den Tachtigjarigen Oorlog, 1588-1598, p. 186.

3 Descrittione Di M. Lodovico Gvicciardini Patritio Florentine, Di Tvtti i Paesi
Bassi, Altrimenti Dctti Germania Inferiore, Antwerp, 1567, p. 21. The value of
the cod caught was placed at £150,000 sterling per annum.

4 Hadrianus Junius, Batavia, p. 203. The work was written between 1565 and
1569, and published in 1588.

5 Hitchcock, A Pollitique Platt. The author says that when he was at the wars
in lf>53, more than 400 busses were set forth from twelve towns in the Low
Countries. Dee, General and Rare Memorials.

126 THE SOVEREIGNTY OF THE SEA

which sent 500 busses to the herring-fishing in 1532 and 400
in 1550, the fishermen at the beginning of the next century
were scarcely able to supply the town with herrings.1 The
industry passed into the hands of the Dutch. At the end of
Elizabeth's reign, so greatly had it prospered that 1500 busses
went to the herring-fishing in 1601 from Holland and Zealand
alone.2

From this time much attention was given by English writers
to the Dutch fisheries, and on the whole they exaggerated their
extent and the number of boats and vessels engaged in them.
One of them, John Keymer, who was afterwards much quoted,
professedly based his account upon his personal observations in
the Netherlands about the year 1601. His statement appears
to have been submitted to King James in 1605 or 1606, but it
was not published until 1664. He said that the fishing fleet of
the Hollanders numbered more than 4100 vessels, of which 100
were dogger-boats, 700 pinks and well-boats, 700 " strand-boats,"
400 "euers," and 400 "galliotts, drivers, and tod-boats," and
1200 busses, afterwards increased to 2000. The pinks and well-
tooats, each from 60 to 100 tons burden, fished on the coasts of
England and Scotland for cod and ling, while the busses, rang-
ing from 60 to 200 tons burden, pursued the herring fishery
along our east coast. There were also, according to this author,
400 Dutch vessels, called " Gaynes " and " Euers," which fished
for herrings off Yarmouth ; 1000 vessels, of from 50 to 100 tons,
that caught cod and ling in his Majesty's seas ; as well as 600
ships engaged in carrying cod and ling to London. Keymer
.also says that he had seen near 3000 sail of English, Scotch,
French, Hollanders, Embdeners, Breemeners, and Hamburgers
fishing at one time upon the coast of Scotland, Shetland,
Orkney, Gattney (Caithness ?), North Farrel, and Fowl (Fair)
Isle, and divers other places.3 In a later treatise which

1 Faulconnier, Description Historique de Dunkerque, i. 47, 53, 121.

2 Van Meteren, Historic der Nederlandscher ende haerder Naburcn Oorlogen
(1614), fol. 466. This author says the maritime power of the States was shown
in the same year, when between 800 and 900 ships departed for the Baltic within
the space of two or three days' tides.

8 John Keymer's Observation made upon the Dutch Fishing about the year 1601.
Demonstrating that there is more Wealth raised out of Herrings and other Fish in
his Majesties Seas, by the neighbouring Nations in one Year, then the King of Spain
hath from the Indies in Four. London, Printed from the original Manuscript,

UNDER THE STUARTS I JAMES I. I A NEW POLICY 127

Keymer wrote in 1620 and submitted to King James, it is also
said that the Hollanders employed about 3000 ships and 50,000
people in fishing on the coasts of England, Scotland, and Ireland.
This tract has usually been attributed to Sir Walter Raleigh
and is published among his works, and it obtained celebrity in
consequence, both in this country and on the Continent, but it
was without doubt written by Keymer.1 A more moderate

for Sir Edward Ford, in the year 1664. Keymer states that he found in Holland
more than 20,000 sail of ships and " hoyes," more than was possessed by England,
France, Spain, and other eight countries in Europe. The same figure is given by
Sir Thomas Overbury, who visited the Netherlands in 1609 (Observations in his
Travels, upon the State of the Seventeen Provinces, 1626).

1 Observations touching Trade and Commerce with the Hollander, and Other
Nations ; presented to King James, wherein is proved that our Sea and Land Com-
modities serve to enrich and strengthen other Countries against our own. Raleigh's
Collected Works, viii. 351. Oldys, in his Life of Raleigh, which was published in
1736, says there was some reason to doubt whether Sir Walter Raleigh was the
author of this treatise : it was first printed in 1653, first associated with Raleigh's
name by being bound up with his " Remains " in 1656, and first definitely said to be
Raleigh's by Roger Coke in his Detection of Court and State ; and he gives reasons

Fig. 5. — Facsimile of Key/liter's Signature to his ' Book of Observations. '

for the opinion that it was written by John Keymer and not by Raleigh (Collected
Works, i. 441). But, as Raleigh's latest biographer states, Raleigh still has the
credit of it (Stebbing, Sir Walter Raleigh, 267). I have, however, found the original
signed manuscript copy among the State Papers for 1620 (State Papers, Dom., cxviii.
114, December 1620), and an unsigned and slightly altered copy among those
for 1623 (State Papers, Dom., clvii. 45). The original is endorsed, Keymers bookc
•of observafons for your moste excellent Matte touchinye trade and traffique beyond
ye Seas and in England wherein he certaynly findeth yt your sea and land Com-
modities doe searve to inrich and strengthen other Cuntries agnst your Kingdome ;
itfh were ye urgent causes why he endeavoured himselfe to take extraordynarie
paynes for ye redresse : soe it maie stande wtfl your Matte* good Likinge. 1 620. It
is subscribed, "Your Maties most loyall and true harted Subject, John Keymer,"
and it is the same treatise as is published in Raleigh's Works, with a few trifling

128 THE SOVEREIGNTY OF THE SEA

statement was made b}^ another writer, Tobias Gentleman, who
published the best work on the subject, in 1614, and was
evidently well versed in the fisheries both of Holland and
England. He states that 1000 sail of Hollanders came every

verbal differences, while the concluding sentence is omitted in the printed form
— viz., "To conclude, England is a great and famous body and would be farr
greater, richer and stronger, if the ten fingers were rightly imployed." Further
proof exists that Keymer was the author of this much-discussed treatise. Its
object was to show how the trade and revenue might be greatly increased, and
the author begged the king to have a commission appointed to examine witnesses
as to his proposals. This commission was appointed two years later, as appears
from the following entry in the Grant Book in 1622 : "20 Dec. Coin to Charles,
pr. of Wales, John Bp. of Line., Ld Keeper of ye g. seale, Lewis Duke of Lennox,
Geo. Marquis Buck., &c. to hear the propositions which shall be made by John
Keymer and to consider whether they will tend to the good of ye King, and com-
monwealth as is pretended" (State Papers, Dora., Jas. I. (Grants), vol. 141, p. 352).
There does not appear to be any further mention of the matter. This John
Keymer is supposed to be the same as a person of that name who was licensed by
Raleigh about 1584 to sell wines at Cambridge. Among the MSS. at Hatfield are
letters from him, dated in 1598, to Cecil and the Earl of Essex, in which he speaks
of his services, of " his travels and labours to find out the practises used beyond the
seas to their advantage and our great danger and how to prevent the same," arid
of his works, one of which he said showed how to increase the Queen's treasure
above £100,000 a year. He also corresponded with Carleton in 1619. In his
address to the king, prefixed to the treatise of 1620, he mentions that "about
fourteen or fifteen years past " he had presented him with " a book of such extra-
ordinary importance for the honour and profit " of his Majesty and posterity,
which was doubtless the earlier tract referred to above, and would fix its date
about 1605 or 1606. He was also engaged on the fishery question about 1612
(doubtless in connection with the proposed society), because Tobias Gentleman,
whose work was published in the spring of 1614, tells us that he was visited " some
two yeares past " by " Maister John Keymar," who was collecting information
about the fisheries, with the view of placing it before the Council (England's Ways
to Win Wealth, 3).

The copy of Keymer's tract, which is among the State Papers of 1623, is unsigned,
and is simply calendared as " Tract addressed to the King, consisting of observa-
tions made by the writer in his travels on the coasts," &c. ; but the person who-
calendared the paper has written on it, in pencil, " q. By Sir Walter Cope (ob. 1614).
See 1612, a letter or discourse to the King, to which this was attached," and has
added the name " Walter Cope" at the end. The paper referred to (State Papers*
Dom., vol. 71, No. 89) has written on it in the old hand, "Sr Walter Cope to K.,"
and "Anno Domini 1612. A present for the Kinges most excellent Maiestie."
It is only mentioned here because the draft of it, which is the next paper in the
volume (No. 90) and has several corrections on the first page, bears the following
note in one of the corners, " Nota Mr Chancellor and Malynes wife (?) the of

Maye, Ralegh." The meaning is obscure, but perhaps it may be surmised from
the contents that Malynes, who was at that time concerned with the fishery society
proposals, had submitted it to Sir Walter Raleigh, and that ultimately it was pre-
sented to the king by Sir Walter Cope, who was on intimate terms with him.

UNDER THE STUARTS: JAMES I. : A NEW POLICY 129

year to fish for herrings in " his Majesty's streams " ; that more
than 600 of them were " great busses," some of 120 tons, most
of about 100 tons; that the crews numbered from 16 to 24
men, so that there could not be less than 20,000 mariners
altogether. In addition to the great fleet of busses, the Hol-
landers had " a huge number " of smaller vessels of from 20 to
50 tons burden, with crews of from 8 to 12 men, which were
called " sword-pinks," " flat-bottoms," " Holland-toads," " Crab-
skuits," and " Yeuars," and fished for herrings along with the
busses on the east coast from Shetland southwards, carrying
home their catches or selling them at Yarmouth. Gentleman
says there had been seen at one time, "and numbered," at
Brassey Sound, in Shetland, where the busses rendezvoused,
either going to sea or at sea within view, 2000 sail of busses
and schuits, besides those that were out of sight. All these
fished for herrings during the season " in his Majesty's seas."
Then the pinks and well-boats, which caught cod and ling all
the year round, numbered between 500 and 600 ; they were
from 30 to 40 tons burden, and had crews of about 12 men
each. There were also more than 200 " fly-boats " which fished
with lines to the north-east of Shetland all the year round for
ling, which were split and salted in bulk and were known as
"Holland-lings," although, says Gentleman, they were really
Shetland lings before they took them from his Majesty's seas.
This author placed the total number of Dutch fishermen who
fished off the British coasts at not less than 37,000, of whom
32,000 were engaged in the herring fishery, and 5000 in fishing
for cod and ling.1

It would thus appear from the evidently honest account
of Gentleman, that early in the reign of James fully 2000
Hollander busses and fishing vessels frequented the British
seas. But the Dutch were not the only foreigners who reaped
the harvest of fishes along our coasts. Fishermen likewise
came from France, Spain, and Portugal, from Hamburg, Emden,
and Bremen. The French herring-boats, from Normandy and
Picardy, generally numbered about 100 ; sometimes there were

1 Enylands Way to Win Wealth, and to employ Ships and Mariners ; or, A plaine
description what great profile it icill bring vnto the Commonwealth of England, by
the Erecting, Building, and aduenturing of Busses, to Sea, a Fishing : With a true
Relation of the inestimable Wealth that is yearly taken out of his Majesty's Seas by
the Hollanders, etc., by Tobias Gentleman, Fisherman and Mariner, London, 1614.

I

130 THE SOVEREIGNTY OF THE SEA

only 40, and they did not go so far north as the Hol-
landers.1 Spanish, Portuguese, and French vessels fished for
mackerel on the Irish coast and to the south-west of England,
as well as for cod in the North Sea. Those from Hamburg,
Bremen, and Emden took part in the herring fishery on the east
coast, but they appear to have mostly confined their operations
to the northern parts of Scotland. French and Flemish vessels
also visited the western lochs of Scotland, both for fishing and
for the purchase of fish.2 The total number of foreign vessels
thus fishing in the British seas at the time in question must
have been large. In both of Keymer's treatises it is stated
that there were 20,000, with 400,000 people. This estimate is
obviously greatly exaggerated ; but making all due allowances,
it is certain that the fleets of foreign fishing vessels frequenting
our coasts in the reign of James were of formidable extent. The
great herring - busses, while fishing along the east coast of
Scotland, were described in 1608 as occupying an area of the
sea of at least 45 miles in length by 22 miles in breadth,
within which space they allowed no others to shoot a net.3

1 State Papers, Dom., Jas. I., xlvii. 114.

2 Keymer, Observations on Dutch Fishing ; Gentleman, op. cit. ; Buchanan, Rerum
Scot. Hist., lib. i. c. xlix. ; Leslie, De Origine Moribus et Rebus Gestis Scotorum, 39 ;
Register Privy Council of Scotland, ii. 656; MSS. Advoc. Lib., 31. 2. 16.

3 State Papers, Dom., xxxii. 31. Other accounts are as follows. In 1609 the
Earl of Salisbury wrote (erroneously) that while fifty or sixty years before only
one or two hundred foreign vessels came to fish on the east coast, they then
numbered two or three thousand sail (Winwood, Memorials, iii. 50). Sir William
Monson in the same year placed the number of Hollander busses at 3000 and the
number of men at over 30,000 (State Papers, Dom., xlvii. 112, 114). Sir Nicholas
Hales also estimated the number of men at 30,000 (Ibid., xlv. 23; cclxxiv. 67).
In the following year the Dutch ambassadors admitted that 20,000 men were em-
ployed in the great herring fishery, as well as other 40,000 in connection with it
on shore (Ibid., Ixvii. 111). A little later, in 1616, the Secretary to the Duke of
Lennox told the Dutch ambassador that in the previous June, 1500 or 1600 Hol-
lander busses were at Shetland (Add. MSS. Brit. Mus., 17,677, J, fol. 160).
In 1618 the number fishing on the east coast of Scotland sometimes exceeded 2000
sail (MSS. Advoc. Lib., 31. 2. 16). Malynes in 1622 placed the number of busses
from Holland and Zealand at 2000 (Consuetude vcl Lex Mercatoria, 89). Two years
later a Spanish agent described them as consisting of 2400 vessels, guarded by 40
men-of-war, and scattered over an area of 200 leagues (State Papers, Dom., dxxi.
30). In 1629 Secretary Coke, who derived the information from a Scottish source,
said the Hollander busses sometimes amounted to 3000 sail ; three years later he
put the number in connection with the fishery off Yarmouth at "above a thou-
sand " ; at this time the French vessels numbered 40 (Ibid. , Chas. I. , clii. 63 ;
ccxxix. 79). Beaujon (op. cit., p. 64) expresses the opinion that 2000 busses were
the maximum number.

UNDER THE STUARTS I JAMES I. I A NEW POLICY 131

The herring fishery of the Dutch along the British coast was
known as the " great fishery " (Groote Visscherye), to distinguish
it from the " small " or fresh-herring fishery which was pursued
locally, and it was subjected to minute regulations. The busses
collected at Bressay Sound in Shetland in the early part of June,
but the fishing was not allowed to begin until St John's Day,
on the 24th of the month, when the vessels departed in fleets
for the fishing-grounds under the charge of " commodores " and
guarded by men-of-war. As the season advanced the fishing was
carried on farther and farther to the south. Until St James'
Day (25th July) it was prosecuted in the neighbourhood of
Shetland, Fair Isle, and as far south as Buchan Ness ; from
then until Elevation Day (14th September) it was from Buchan
Ness to the coast of Northumberland ; then southwards to the
deep water off Yarmouth till St Catherine's Day (25th Sept-
ember) ; and so to the mouth of the Thames, the fishing usually
coming to an end at the beginning of December. The " fleet " or
train of nets was more than a mile in length, which necessitated
the busses keeping some distance apart to prevent fouling;
they were shot in the evening and hauled in the morning,
when the crew began to salt and pack the herrings into barrels,
which were then taken to Holland in "yagers," or carriers,
repacked, branded, and exported to various countries. The
smaller vessels which took part in the " fresh " herring fishery
were employed especially off Yarmouth in the autumn, and
they sold their herrings for ready money to the fish-curers
with whom they were " hosted." On some occasions as many
as 200 of those smaller Dutch vessels lay in Yarmouth harbour
at a time. The boats that went for cod, ling, and haddock
fished throughout the North Sea, — the smaller ones at the
Dogger Bank as a rule, the larger on the Scottish coast and
at Shetland. Hand -lines, baited with herring or lamprey, were
used, the cod being either pickled, dried, or brought to land
alive in wells, and these vessels furnished the larger part of
the supply to London.

The quantity and value of the fish caught by the Dutch off the
British coasts were variously stated. Keymer, in his first tract,
estimated the quantity of herrings taken by the 2000 busses in
the twenty-six weeks of their fishing at about 300,000 lasts
(or 3,600,000 barrels) annually, and the value, at first hand, at

132 THE SOVEREIGNTY OF THE SEA

£3,600,000 sterling. But the merchants who exported the
pickled herrings — and by far the greater quantity were ex-
ported l — are said to have charged from £16 to £36 a last, the
eventual value as merchandise being estimated at not less than
£5,000,000 sterling. In his later treatise the value of the
herrings exported by the Dutch is placed lower, at about
£1,768,000, the quantity being stated at from about 89,500
to 100,500 lasts, or from 1,074,000 to 1,206,000 barrels. Gentle-
man, whose work seems to have been the most trustworthy,
estimated the quantity of herrings taken by the Dutch in the
British seas at over 100,000 lasts or 1,200,000 barrels, the orig-
inal value at £1,000,000 sterling and the gross value at twice
that amount ; " while we," he says, " take no more than to bait
our hooks." Gentleman's estimate of the quantity may be taken
as approximately correct, because in the present day the least
effective of the vessels taking part in the Dutch herring fishery —
namely, the old-fashioned flat-bottomed boats (bommeri) — catch
and cure on an average in a season about 660 barrels each, so that
the quantity taken by a fleet of 2000 of such vessels would be
about 1,320,000 barrels. But the old busses were of a superior
type, keeled vessels (hoekers, sloepen), and the average catch of
their modern representatives in a season is about 1060 barrels,
which for a fleet of the same number would give a total yield
of about 2,120,000 barrels, or over 176,000 lasts. Monson
placed the value of the herrings exported from Holland to the
Baltic at £800,000, and of those sent to other countries at
£1,000,000,2 while Sir Nicholas Hales in 1609 estimated the
value of the exported herrings at £4,000,000, but raised it
later, in 1634, to £6,000,000, owing to information received
from Amsterdam.3 Sir John Borough's estimate was still higher.
He said that if account was taken of all the herrings, cod,
ling, and other fish caught in the British seas by foreigners,
the gross value would exceed £10,000,000 a year.

The larger figures above cited are unquestionably exagger-

1 To Pomerania, Poland, " Spruceland," Denmark, Liefland, Russia, Sweden,
Germany, Brabant, Flanders, France, "Lukelaiid," England, Greece, Egypt,
Venice, Leghorn, and all over the Mediterranean, and even as far as Brazil.

2 State Papers, Dom., xlvii. 112.

3 To the King's most excellent Majesty : A Declaration of the fishing of Her-
ring, Cod, and Ling, and how much the favour or disfavour of Your Royal Majesty
concerneth the Hollanders. Ibid., xxxii. 30 ; cclxxix. 67.

UNDER THE STUARTS: JAMES I.: A NEW POLICY 133

ated, but even the lowest shows how very valuable the sea
fisheries were to the Dutch at the beginning of the seventeenth
century, for the total value of all the commodities exported
from England in 1613 was placed at £2,487,435, and the value
of the imports at £2,141,151.1

The English fisheries, which Cecil had laboured to revive,
presented a striking contrast to the prosperous fishery of the
foreigners. As in the days of Hitchcock, our fishermen shot
their nets for herrings from small vessels near the shore, and
on the east coast, at least, only in the period from September
to November, with the exception of an occasional "summer"
fishing.2 They had very " sorry " nets and poor frail boats, and
most of those going to the Yarmouth fishing from Yorkshire
and Durham were only " five-men " cobles.3 " The Hollander
busses," it was said, " are greate and strong and able to brooke
foul weather, whereas our cobles, crayers, and boats, being
small and thin-sided, are easily swallowed by rough seas, not
daringe to adventure far in fair weather by reason of their
weaknesse for feare of stormes." The largest of the crayers
were of 20 tons burden, their catch of herrings for a
night being generally from one to three, and rarely as much as
seven, lasts.4 One can only guess at the number of fishing
boats and vessels belonging to east coast ports at this time.
Gentleman stated that the number of " North Sea boats "
which fished for cod, and probably also for herrings, in autumn,
was from 224 to 237 along the stretch of coast between the
Thames and the Humber, the crews employed in them being
between 1500 and 1600. The Iceland barks numbered about
125 in 1614; 20 of them, as well as 150 of the North Sea
boats, belonged to Yarmouth. The town-clerk of that port,
writing about the same time, said that they sent annually
to Iceland and the north seas for cod and ling about 120
sail, while all the " ships, crayers, and fisher-boats " belonging
to Yarmouth numbered 220 ; the able-bodied mariners and

1 Misselden, The Circle of Commerce, or the Balance of Trade, 1623, p. 121. It
may be said that the aggregate quantity of herrings now taken in the North Sea,
and mostly by Scottish and English fishermen, equals about 3,500,000 barrels in a
year.

- Manship, History of Great Yarmouth, 119, 121.

3 Gentleman, op. cit., 7, 32.

4 Keymer, Observations on Dutch Fishing.

134 THE SOVEREIGNTY OF THE SEA

fishermen amounted to 1000.1 The only other fisheries oii
the east coast were a small one for mackerel, which employed
40 boats at Yarmouth in the spring ; a sprat fishery with bag-
nets; while some small trawlers worked in the bays and
estuaries. On the east coast of Scotland there was no native
herring fishery except in the firths.

Compared with the great trade of the Dutch, the exports
of fish from this country were insignificant and trifling in
view of the quantity imported : in London alone no less
than £12,000 was paid to the Hollanders for barrelled fish
and Holland lings between the Christmas of 1613 and 18th
February 1614. Scotland still sent tolerably large quantities
of salmon, herrings, and salt fish to France, Spain, and else-
where ; but the exports from England were almost quite confined
to red-herrings from Yarmouth and pilchards from Cornwall,
— both sent to the Mediterranean, and very commonly in Dutch
bottoms.2 The English had no share whatever in the trade in
pickled herrings or in pickled cod ; they were indeed ignorant
of the method of curing the latter.

From the foregoing it is not difficult to realise the feeling of
irritation against the Dutch which began to gather in the
breasts of the English people. They witnessed with envy
the great fleets of alien fishing vessels which darkened their
coasts every season and reaped a rich harvest in waters which
they regarded as their own. "No king upon the earth,"
said Gentleman, "did yet ever see such a Fleet of his own
subjects at any time, and yet this Fleet is there and then yearly
to be seen. A most worthy sight it were, if they were my
own countrymen ! " Statesmen and economists saw in the
extension of the Dutch fisheries a menace to the power and
wealth of the nation. The fisheries formed a valuable nursery
of seamen to man the mercantile marine and the royal navy ; it
was chiefly from this point of view that the political lent
and the fishery Acts of the previous reign were designed.
Another consideration began to excite even more attention.
The trade in fish was looked upon as forming the basis of
commerce and national wealth. The Dutch boasted that the
herring fishery was their " gold-mine " ; that " the herring

1 Manship, op. cit., 97, 120. The work was written between 1612 and 1619.
a Gentleman, op. cit., 36; Swinden, History of Great Yarmouth, 465; State
Papers, Dorrt., xlvii. 112, 114.

UNDER THE STUARTS: JAMES I. : A NEW POLICY 135

keeps Dutch trade going, and Dutch trade sets the world's
afloat " ; l and the argument that national power and wealth
depended on the sea fisheries became a commonplace in the
seventeenth century, and was urged as a reason why the
English people should secure for themselves the fisheries in
their own seas. This, it was said, would do more good to
the kingdom than all the mines and the whole trade in
cloth and wool ; the fisheries would be more valuable to us
than the Indies were to Spain, or than was the commerce
with the West Indies; they were the "very goal and prize
of trade and of the dominion of the sea." 2 Had not Holland,
which was "not so big as one of his Majesty's shires," and
where nothing " grew " save " a few hops, madder, and cheese,"
become a rich and powerful state, full of goodly towns,
and the great mart of Europe, owing to the fish drawn
from the British seas ? Did not Dutch ships, in return for
the fish they exported, come back laden with the riches of
other lands, — with oil and wine, honey and wool, from France
and Spain; with velvets, silks, and spices from the Medi-
terranean; with corn and wax, hemp, iron, and timber, from
the Baltic ? And all this great commerce was founded on
their fisheries in his Majesty's seas.

Two other arguments were very commonly put forward, —
that the development of the fisheries would directly increase
shipping, and also give birth to many other industries.
Ingenious and detailed calculations were made to show that
if 20 busses were built at a seaport they would cause other
80 ships to be constructed, increase the number of mariners
by 1000, and give employment to nearly 8000 people by
sea and land. " It is the fish taken upon his Majesty's coasts,"
said Sir William Monson, the Admiral of the Narrow Sea,
" that is the only cause of the increase of shipping in Europe ;
and he that hath the trade of fishing becomes mightier than
all the world besides in number of ships."3 Dutch ships
crowded our ports; they carried away English commodities

1 Meynert Semeyns, Een corte beschryvinge over de Jfaring-visscheryc in Hollandt.

2 Keymer, Observations on Dutch Fishing ; Monson, Naval Tracts, in Churchill's
Collection, iii. 467 ; H. Robinson, Brief e Considerations concerning the Advancement
of Trade, p. 50 ; England's Great Interest by encouraging the setting up of the Royal
Fishery, &c., &c.

3 A Demonstration of the Hollanders increase in Shipping and our Decay here-
in. State Papers, Dom., xlvii. 112.

136 THE SOVEREIGNTY OF THE SEA

at lower freights than English vessels could afford to do,
and thus we were " eaten out of all trade and the bread
taken out of our mouths in our own seas, and the great
customs carried from his Majesty's coffers to foreign princes
and states." The Hollanders were accused of trying "to get
the whole trade of Christendom into their own hands, as
well for transportation as otherwise for the command and
mastery of the seas." Yet the king was " Lord Paramount
of those seas" in which the foreigners caught the fish that
made them so rich and powerful : surely " he would not,
without question, allow strangers to eat up the food that
was provided for his children ! " l

Such was the national spirit and sentiment that had been
developing during the closing years of Elizabeth's reign and
the early part of the reign of James, and was well expressed
by Sir Walter Raleigh when he said that " whosoever com-
mands the sea commands the trade ; whosoever commands
the trade of the world commands the riches of the world,
and consequently the world itself." 2 England was to become
powerful and rich by shipping and maritime commerce, and
the first step in the struggle was to secure the fisheries for
herself. Opinions varied as to how this was to be accom-
plished. Some recommended the establishing of a national
fishery on the plan recommended by Hitchcock in the pre-
ceding generation and tried by Charles I. in the next. Others
suggested the institution of a commission of " State Merchant,"
which would have trade and commerce as well as fisheries
under its charge. A few spoke, more faintly, of the potency
of fish -days and the strict observance of Lent. But all
or almost all agreed that foreigners, and in particular the
Hollanders, should be either prohibited from fishing in the
British seas or allowed to do so only under license and regu-
lations and the payment of a tribute to the crown.

The proposal most commonly mooted was to build a fleet
of herring -busses for ourselves, and, in short, to imitate the
Dutch system in all particulars. The natural advantages we

1 The Trades Increase. Keymer, Observations on Dutch Fishing, <fce. Observa-
tions touching Trade, iL-c., Raleigh's Works, viii. 374. State Papers, Dom., xlviii.
114.

2 A Discourse of the Invention of Ships. Works, viii. 325.

UNDER THE STUARTS : JAMES I. : A NEW POLICY 137

possessed were made the most of. The fishing-grounds were
at our doors, while the Dutch had to sail long distances. We
had numerous harbours and sheltered beaches for the winter-
ing of the busses. We had all the materials for building and
equipping the busses except pitch and tar, whereas the Dutch
had to import everything save hemp ; and abundance of men
to man the vessels could be got from the "decayed towns."
It was on the other hand admitted that we laboured under
one disadvantage. The Dutch fishermen were more frugal,
more industrious and painstaking, than the English. They
were content with plain fare — with bread and butter, cheese
a little pork, and fish, — while the English required beef and
beer, and much of both.1 And while the Dutch worked hard,
" labouring merrily together," the English fishermen " sat day
and night drinking in the ale-houses." 2

But any scheme for establishing a great national fishery
had little chance of financial support from the public unless
it could be shown to be profitable, and there was no lack
of calculations and computations to prove the great profits
that might be made. Gentleman estimated that the clear
gain from one buss, allowing for wear and tear, would amount
to £565 in four months, and from a pink for cod -fishing to
£158 in two months. The author of Britaines Buss calculated
that the yearly profit from one herring -fishing and one cod-
fishing of a single buss would amount to £897, after all ex-
penses had been paid. This writer proposed that a corporation
should be formed, consisting of noblemen, gentry, and citizens
"of ability," each of whom should provide one buss; that
the corporation should receive from the king certain powers,

1 In one of the most elaborate and detailed of the proposals for the building of
busses, the daily allowance of beer for each man was to be a gallon, as in the king's
ships : the buss was to go to sea with 56 herring barrels full of beer. E. S. —
Britaines Bvsse, or a Computation as well of the Charge of a Bvsse or Herring fishing
ship as also of the Gain and Profit thereby. London, 1615.

- Keymer, Observations on Dutch Fishing. The industrious Hollander was held
up as an example to the English. " If any be so weak," said one writer, " to think
this mechanical fisher trade not feasible to the English people, to him I may say
with Solomon, Go to the Pismire ! Look upon the Dutch ! Thou Sluggard ! learn
of them ! They do it daily in the sight of all men at our own doors, upon our own
coasts." "Shall we," said another, "neglect so great blessings? 0 slothful Eng-
land, and careless Countrymen ! Look but on these fellows, that we call the plump
Hollanders ; behold their diligence in fishing and our own careless negligence."

138 THE SOVEREIGNTY OF THE SEA

privileges, and immunities; and that a joint -stock should
be raised like that of the East India Company, the annual
profit on which was estimated at 75 per cent.

Those schemes resembled the one put forward by Hitch-
cock in the previous reign and frequently advocated since.
Sir Walter Cope indeed told King James, in 1612, that "this
royal work," within his own knowledge, had been in project
for thirty years, but that in Queen Elizabeth's time it had
been "ever silenced" in favour of the Netherlands, who then
maintained war against a common enemy.1

Within two or three years of the accession of James, the
project took more definite form, and was brought before the
Privy Council, and it was carefully considered in 1607. An
integral part of the proposal was that strangers fishing in
the British seas should pay tribute to the king, while the
native fishery remained untaxed, and that the tribute should
be farmed out to patentees, as was done with the assize-
herrings in Scotland, who would then establish a national
buss fishery and pay a rent to the crown.2 There were
several schemes of the kind, but the one which received
most attention was put forward by a Mr Richard Rainsford,
acting on behalf of a number of London merchants, who
aimed at forming an association to be called the Society
of Fishing Merchants. In 1608 the proposals were referred
to the Earl of Northampton, Lord Privy Seal, and the Earl
of Devonshire, who commended them as being for the pub-
lic good, and early next year a formal and detailed scheme
was prepared.3 In the preamble stress was laid on the fact
that the Hollanders and other nations had their principal
fishing on his Majesty's coasts and seas, "whose soveraignty
ought therein to be acknowledged, not only to procure thereby

1 State Papers, Dom., James I., Ixxi. 89. Malynes, who, as already suggested in
the note on page 128, may have been the author of Cope's tract, said exactly
the same thing in 1622 — that there had been a continual agitation for over thirty
years to make busses and fisher-boats. The Maintenance of Free Trade, 42.

2 J. Bowssar to Sir Julius Caesar, 14th October 1607, Brit. Mus. Lansdowne
MSS., 142, fol. 373.

3 A Project for to restore unto the King's Majestic his Dueties of Fishing by
re-establishing ye Auncient Manner of fishing for herringe, Coad, and Ling, for
maintenaunce of Navigation and Marryners with greatt increase of Traffique,
22nd April 1609, Brit. Mus. Lansdoivne MSS., 142, fol. 371. State Papers, Dom.,
xlviii. 95.

UNDER THE STUARTS I JAMES I. : A NEW POLICY 139

payment of his Majesty's duties of fishing, but also to have
his kingdom provided with fish at such reasonable rates and
prices as other nations have maintained thereby navigation
and mariners; and setting of an infinite number of subjects
on work within the realm of England and Scotland to
strengthen his Majesty's dominion by sea and land, as the
chief point of a most commendable Union," that is to say,
a union of England and Scotland, the idea of which was
still in the mind of James. The justification for imposing
a tribute on foreign fishermen, which was to be in kind,
was the king's right to the tithe, " grounded by ancient
customs and records of his Majesty's predecessors demanding
the tenth fish ; whereunto three things were required : (1)
how his Majesty's tithe and right can be evidently proved ;
(2) precedents, that other kings and princes have and do
the like in their seas ; (3) that it shall give no cause of
offence to other princes or states to move war." The second
part of the project was to build a "competent number" of
ships or busses yearly, and so to re-establish the fishing trade
which, it was said, one Violet Stephens and other discontented
fishmongers from England had transferred to Enkhuisen and
other places in Holland some ninety years earlier, teaching
the Dutch to come and fish in the British seas — a false tale
current in England in the reign of James.

As an alternative plan, to be put into immediate execution
in connection with the truce just concluded between Spain
and the United Provinces,1 it was proposed that, his Majesty's
right and tithe having been made plain as above described,
the Hollanders themselves should be invited to join on reason-
able terms with the English projectors in the fishing trade
for one-third part, or even a half, of the fishery. This course,
it was believed, would prevent any cause of offence, being,
it was said, in agreement with " the known precedents of other
princes." It was also thought that it would be agreeable to
the Hollanders, since they would see that the Society of Fish-
ing Merchants, being free from license or tribute, could afford
to have busses built in Denmark for themselves should that
be necessary. If the Hollanders could be induced to associate

1 Treaty of Antwerp, 3J *JJJh- 1609.

1-10 THE SOVEREIGNTY OF THE SEA

themselves with the Society, then, it was argued, when the time
came to interfere with their " general fishery," the risk of war
would be removed, and the king's tithe and right might be
acknowledged and established by proclamation or otherwise.1

The acknowledgment of the king's "sovereignty or title
annexed to the dignity of the Crown " required the contribution
of the tenth or the twentieth fish, more or less, to be delivered
at sea for the general good of the Society, so that they might
be able to tide over bad years and maintain the fishermen.
In this way, by heavily taxing the Hollanders, it was believed
that " no man should be discouraged by bad successe, but might
depend upon God's blessing with a quiete minde to follow his
vocacion avoydinge Idlenes by ye survey of others." On the
other hand, the Society would undertake to pay the king so
much upon every last of fish as might be thought convenient,
provided that letters patent were granted under which the
Hollanders and other strangers would be " limited and ruled."

In this scheme of the London merchants it was proposed to
acquire in the first year fifty fishing vessels, partly by buying
them beyond the seas, and partly by building them in
Denmark, Scotland, and the north of England. The busses
were not to exceed fifty, or the dogger-boats thirty tons, since
the Dutch in recent years had found the smaller vessels more
profitable than the larger ones. It was stated that some
families in Holland, the "east countries," and Hamburg, with
vessels of their own, were desirous of joining the London
Society, — several of them had indeed arrived in England, — and
it was proposed to admit them for a few years only, in order
to lay the foundations of the business, and to educate English
lads in the curing of herrings, and, what was "not the least
point," to make the English as industrious as themselves.
When the fishery was thoroughly established, it would be easy
to erect " staple towns and magazines " for the commodities
of other countries ; the ships of the Society would bring back
merchandise for the fish exported, and a great commerce would
be created. In all this prosperity "the King's Majesty might
be made a partaker, as a Royal Merchant," while the stock
required would easily be found among the merchants. On the

1 A rubric in the copy at the Record Office says, " By Proclamation first, most
convenient to all the world."

UNDER THE STUARTS I JAMES I. : A NEW POLICY 141

other hand, if the king confined his action to the issuing of
licenses to foreigners, without giving means for establishing
a society of merchants for the fishing, then his subjects would
be entirely dependent for their fish on these foreign fishermen,
who would charge higher prices to recoup themselves for the
cost of the licenses. The country, moreover, would suffer
from the loss of the commerce that sprung from the trade in
fish ; the transportation of money and bullion for fish and
other commodities brought into the realm would continue
unchecked ; and the king would lose the great strength of
shipping and mariners that otherwise would be available for
the defence of the kingdom.

Objections were raised to the project on the ground that it
was unlikely that the Society, even with the advantages which
they desired, would be able to compete with the Hollanders.
The Hamburgers and other peoples who had previously made
the attempt had failed, for the Dutch were very industrious
and frugal, their fish always brought the highest price,
often 25 per cent above that of other nations, because they
were thoroughly skilled and experienced in the industry. The
freights of the Hollanders were, moreover, far lower than in
English ships, as they took barrelled herrings for ballast, or
even for "drink money."

A more serious difficulty was the principle that lay at the
root of the scheme — the taxation of the Dutch fishermen for
the benefit of the Society. It was evidently admitted that the
project would fail, even if the busses were manned by Dutch-
men and the herrings cured and exported by them, unless
some form of subsidy was provided. But on the threshold lay
the question of the king's right to impose a tribute on foreign
fishermen. Rainsford endeavoured to help the solution by sub-
mitting a memorandum, "Touching his Majesty's Tythe."1
It has some interest from the circumstance that it was the
first attempt made in the reign of James to furnish historical
and legal precedents for interfering with the liberty of fishing.
In substance it is little more than a collection of the stories
current at the time concerning the sovereignty of the sea,
such as those about King Edgar, Queen Mary and Philip, and

1 State Papers, Dom., xlviii. 94. It is written on parchment and imperfect, and
endorsed, " Mr Rainsford's Answeares."

142 THE SOVEREIGNTY OF THE SEA

Camden's statement about Scarborough.1 It was also said
that fishermen were compelled to pay taxes for liberty to fish
in Russia, at the " Shoffland " islands and other islands belong-
ing to the King of Sweden, in Denmark, and in Spain, where
the Duke of Medina Sidonia derived a large revenue from
the taxes on the tunny fishery. Rainsford reiterated the
advantages of the scheme to the nation and the navy, and
promised an annual revenue of £20,000 to the king, after the
lapse of seven years, so long as he granted to the patentees
the tribute on foreign fishermen.

About this time, whether by arrangement with the London
merchants or independently, some influential persons addressed
the king in denunciation of the Dutch. Sir Nicholas Hales
in 1608, and again in 1609, strongly advised the king to take
action against them. Their fisheries in his Majesty's seas,
he said, were worth more than the mines of gold and silver
in the Indies ; in one year they had sold fish in England alone
to the value of £1,200,000 ; by their means they maintained
100,000 men with their wives and families. Then their
immense shipping was a menace to the security of the realm.
They came into our roads and harbours with their guns and
ordnance on board : sometimes three or four hundred sail
of Hollanders sheltered in St George's Channel, where our
fleet, if need were, could always strike them. The whole
trade of Christendom appeared to be going into their hands.
Sir Nicholas was afraid they might join with the "Turks"
against us; there was even risk of invasion unless measures were
taken to curb their growing power. The measures he proposed
were the delivery of Flushing and Brill as pledges of security,
and the payment of £4,000,000 for the king's license to carry
on their fishery for twenty-one years on the British coasts.
Otherwise they should be compelled to pay a tithe of the
twentieth herring or be forbidden altogether.2 Sir William

1 See p. 64.

2 To the King's Most excellent Majestic : A Declaration of the Fishing of Herring,
Codd, and Ling, and how greatly the favour or disfavour of Your Royal Majesty
concerneth the Hollanders. State Papers, Dom., xxxil 32. A Declaration how
much the Favour or Disfavour of Your Royal Majestic doth concern the Prosperity
or Adversitie of the Hollanders : and what inconvenience may ensue, and how
to praevent the same to the honour and safety of your Majesty and the tranquillitie
of the Netherlanders. Ibid., xlv. 23.

UNDER THE STUARTS I JAMES I. : A NEW POLICY 143

Monson — who was a Roman Catholic, had been Admiral of
the Narrow Sea, and was accused by the Dutch of antipathy
to them — wrote several papers in the same strain. He dwelt
upon the danger to England of their increase in shipping
commerce and power, all derived from the fisheries in the
British seas. They had already got the Irish and Russian
trade, as well as that to the Mediterranean, so that while twelve
years before there were twelve English ships to one Hollander
in that sea, there were now ten Hollanders to one English;
they even transported the red-herrings from Yarmouth and
the pilchards from Cornwall and Ireland, which was previously
done by English vessels. Monson's remedy was to obtain
possession of the fisheries and build a fleet of English busses.1

There is no doubt James was inclined to listen with a
favourable ear to the proposals to establish a native herring
fishery at the expense of the Dutch. A year or two earlier
he had, indeed, induced the Parliament of Scotland to pass
an Act providing, among other things, that the royal burghs
should equip busses for the herring fishery, — a suggestion
frequently made and never well received. When the burghs
were called upon to state the number of busses they were
prepared to set forth, they declared that some of the coast
towns already had vessels engaged in this fishery, especially
in summer, " att the back of the Isles besyid the Flemeingis " ;
that on the coast there was more shipping for fishing than
"substance" to furnish them with or mariners to serve in
them; and that the most profitable and "easy" fishing was
at the Isles and lochs on the west coast, though they were
hindered there by the barbarous1 conduct of the natives. It
was therefore, they said, " in vain " to ask them to fish " in
the mayne sea " when they could get this easy and profitable
fishing at the lochs and near the shore at all seasons, in great
abundance, both summer and winter.2

At the time the fishery scheme was under consideration

1 A Demonstration of the Hollanders Increase in Shipping and our Decay herein.
Ibid., xlvii. 112. Particulars of the Lawes observed by other Nations touching
fishing, and the Advantages that would accrue from establishing an English Fishing
fleet. Ibid., 114.

2 Records of the Convention of the Royal Burghs of Scotland, ii. 203, July 2,
1605.

144

THE SOVEREIGNTY OF THE SEA

some events occurred which favoured the plans, if not of
the London merchants, at least of those who were preaching
hostility to the Dutch. A chorus of complaints came from
Scotland and England as to the encroachments of the Hol-
landers near the shore on the east coast, not only interfering
with the operations of the native fishermen, but breaking up
and scattering the shoals of herrings. Whereas they had been
prescribed " in ancient times " in Scotland from fishing nearer
the land than they might see the shore from the main-tops of
their vessels, they now came as near as they pleased, and
would not suffer any others, whether subjects or strangers, to
fish within the bounds of their fleet, which, it was said, extended
over a space " at least forty Scottish miles in length and twenty
broad," thus "breaking and killing" the shoals before they
could reach the mainland. They were also accused of drawing
"the great fish" (by which was meant cod, saithe, &c.) from
the grounds along the shore, by casting into the sea the guts
of the herrings they cured on board their busses. By reason
of all this the Scottish fishermen, who used to get abundant
supplies at "yair awn dooris" to supply the whole country,
were now scarcely able, with great pains, to supply their own
families, and there was in consequence a general clamour in
the country, the people affirming that " the Hollanderis fishes
the meait out of thir mouthis." The evil was felt all the more
by the Scottish fishermen because they paid three "assizes"
every year for their several fishings, each consisting of 1000
herrings, while the Hollanders paid nothing.1

Early in 1609 the fishermen of the Cinque Ports, who fre-
quented the Yarmouth fishing in large numbers, sent a petition
to the king, in which they recited their grievances. They
alleged that the laws prohibiting the purchase from foreigners
of fish unless sufficiently salted and casked (laws which, they
pointed out, had done great good in the past, and had increased
shipping and mariners) were not properly enforced. This com-
plaint was aimed against the Dutch, who sold large quantities
of fresh herrings at Yarmouth, and supplied London and other
towns with fresh cod. They also complained that fishermen
from the Low Countries, with a few from France, came before
the fishing season and " preoccupied and environed " the best
1 State Papers, Dom., xxxii. 31.

UNDER THE STUARTS : JAMES I. I A NEW POLICY 145

places with their shipping, enclosing, as in a circle, the shoals
of herrings, and preventing the native fishermen from fishing
among them. They were thus deprived of one of the best
commodities of the land, and the herrings which they were
prevented from catching were taken by the Hollanders and
sold fresh on the English coast in contravention of the statutes.
They said they were threatened with utter decay and impover-
ishment, and were discouraged from building barks for the
Iceland fishing, which had in the past produced numbers of
good mariners, to the great honour and defence of the realm.
They pointed to the " ingenious dexterity of the Netherlanders,
who in the care and pollicy of their State, and for the main-
tenance of their navigation and fishing," had imposed a tax of
fifteen shillings on every last of herrings imported by foreigners
into their country ; and they begged the king, by the justice of
lex talionis, to do likewise, and thus to save the poor fishermen
from the multitude of foreigners who oppressed them.1 About
this time complaints began to be made of cruel and harsh
treatment of the native fishermen by the Dutch, but they
appear to have rested on very slender grounds.2

The complaints against the Hollanders gave James his
opportunity. The policy of issuing a proclamation to forbid
unlicensed fishing by foreigners on the British coasts was
discussed by the Privy Council early in the year. Doubts,
however, were expressed whether such action would be in
conformity with the provisions of the "Burgundy" treaties,
which granted liberty of fishing to the Low Countries. In
the " qualification " of Rainsford's fishery scheme the question
as to how the king's title and rights could be proved had
been answered in a lofty spirit — " By prerogative royall,
without any accompt to be rendered to other nations; yet

1 State Papers, Dom., xlv. 22. The petition was signed by fishermen of Yarmouth,
Dover, Hastings, Rye, Hythe, and Folkestone. It is said in the petition that they
had previously craved both the king and the Council for redress, without avail.

2 The author of Britaines Buss had heard, but did not believe, stories of the
"very foul and insolent dealing of their bussmen with our poor weak fishermen
upon our coasts." Tobias Gentleman, who admired the Dutch for their industry,
said they scorned us only " for being so negligent of our profit, and careless of our
fishing ; and they do daily flout us that be the poor fishermen of England, to
our faces at sea, calling to us and saying, ' Ya English, ya zall, or oud scoue
dragien,' which in English is this: 'You English, we will make you glad for to
wear our old shoes.'" Englands Way to Win Wealth, p. 44.

K

146 THE SOVEREIGNTY OF THE SEA

others to declare the reasons thereof." But the Privy Council
had to consider the matter more carefully. They remitted
the draft proclamation to a committee consisting of Sir John
Herbert, the second Secretary, Sir Julius Caesar, now Chan-
cellor of the Exchequer, Sir Daniel Dunn, Sir Thomas
Crompton, and Sir Christopher Perkins, instructing them,
after perusing all the Burgundy treaties, to report .as to the
lawfulness or unlawfulness of the proposed action.1

A fortnight later the report of the committee was sent to
the Council. They had, they said, considered of the liberty

1 Brit. Mus. Lansdowne MSS., 142. fol. 375. A copy of the letter of the Lords of
the Council, in the handwriting of Sir Julius Cfesar, is as follows : " After our very
hearty recommendations. Whereas his Majesty hath of late been moved vpon many
consyderations arising from the complayntes of his subiects, to take some course
of restraynt of many inconveniences depending vpon the excesse of libertie, wcl1 is
taken by the subiectes of forraigne princes and states to fish vppon his coast ; By
which, not onlie his owne ffishermen receive wrong in their fishing, but the verie
Coast-Townes themselves are much decayed for lack of meanes to sett their people
on work. To wch end hee had resolved to set forth a proclamation to th 'effect
of that wdi is hereinclosed :

Fforasmuch as vppon perusall of some Treaties from King Henry 7ths tyme till
this daye betweene the Crowne of England and the house of Burgundy, we fynde
certeyne clauses, by which there maye arise some question how farre any such
Prohibition maye concurre with the practice of the same for so much as shall
concerne the subiecta of that Estate ; Of wch particulars it is necessary that some
deliberation were taken, beefore his Ma*'e proceeded to a generall execution of the
same : We have thought good to requyre yow ioyntly and severally to peruse all
those Treaties, and to consyder of them, and all other thinges, by w«h the lawfull-
nes or vnlawfulnes maye appeare of this proceeding ; Which being don wee shall
expect some report from you for his Maties better satisfaction.

Wherein wee doubt not but yow will proceede wth all convenient expedition.
And so will bid yow hartelie farewell.

Ffrome the Court at Yoi Verie loving friendes,

Whitehall Subscribed by the

first of Ffebruarie, 1606. L L Chancelloi,

2. L. Treasour.

Mr Secretary Herbert. 3. L. Admirall.

Mr Chancellor of the Exchequer. 4. The Earle of Worcester.

Sr. Daniel Dun. 5. The Earle of Salisbury.

Sr. Thomas Crompton. 6. The Earle of Marr.

Sr. Christopher Perkins. 7. The L. Stanhop.

This copy is dated 1st February 1606, and the copy of the report of the
Committee is also dated 1606, which would imply that the matter had been
before the Privy Council in that year. It appears, however, from other evidence
that Sir Julius Csesar made a mistake in dating the copies.

UNDER THE STUARTS I JAMES I. : A NEW POLICY 147

taken by the subjects of foreign princes and states to fish
upon the coasts of the King's Majesty, by which not only
the English fishermen received wrong in their fishing, but
the very coast towns were decayed ; they had also considered
the proclamation for the restraint of fishing, and had perused
the Burgundy treaties as required, and they were " of opinion
that the King's Majesty may without breach of any treaty
now in force, or of the law, upon the reasons specified in the
proclamation sent unto us, restrain all strangers from fishing
upon his coasts without license, in such moderation and after
such convenient notice given thereof by public proclamation,
as his Majesty shall think fit."1

It was on this extremely important deliverance that the new
policy of interfering with the liberty of foreigners fishing on
the British coasts was based. The cautious language of the
Privy Council indicates that they were conscious of the strength
of the case against them from the existence of the Burgundy
treaties ; but the committee professed to find that those treaties
were no longer in force,-^an argument which was made the
most of in the subsequent negotiations with the Dutch Re-

1 Brit. Mus. Lansdowne MSS., 142, fol. 377. In Sir Julius Caesar's hand-
writing, and endorsed, " A copy of a letter from Mr Secretary Herbert, myself,
and others to the L^s of the King's P. Councell, touching the prohibition of
strangers fishing on the coasts of England," &c. This important paper reads as
follows : " Our humble duties dewe to yr good LLP8. We have according to
yr commandement, considered of the liberty wch is taken by the Subiectes of forreine
Princes and States to fish vppon the kings Maties coasts by wch not onely the
English fishermen receive wrong in their fishing but the very coast townes them-
selves are much decayed for want of meanes to set their people on work ; and we
have considered likewise of the proclamation for the restraint of those many in-
conveniences depending vppon the excesse of such strangers fishing : We haue also
pervsed the treaties fro Henry the 7th time till this day betweene the Crowne of
England and the House of Burgundy, and we have considered of them, and of all
other thinges by wch (as wee conceave) the lawfulness or vnlawfulness may appeare
of this proceeding. And are of opinion, that the K» Maty may wthout breach of
any treatyie nowe in force, or of the lawe, vppon the reasons specified in the
proclamation sent vnto vs, restreine all strangers fr5 fishing vppon his coasts
wthout license, in such moderation and after such convenient notice given thereof
by publik proclamation, as his Maty shall think fit.

And so we most humbly take our leaves. 14 febr. 1606.

Yor Ldsl»Ps humbly at commandment,
J. Herbert. Jul. Ctesar. Daniel Dun. Christoph. Parkins. Tho. Crompton.

From the erasures and corrections (see Fig. 6) there seems little doubt that the
paper is the original draft.

148 THE SOVEREIGNTY OF THE SEA

public. The report was submitted to the Council in February ;
in March Grotius published his Mare Liberum, in which he
branded as " insanely cupid " any one who attempted to inter-
fere with the common liberty of fishing in the sea ; and within
a week or two thereafter the Truce of Antwerp was signed by
Spain and the States-General, by which the long war between
those Powers was brought to a close, and James was free to
begin his policy against the Dutch fishermen. On 12th April
1609 a memorandum was drawn up for the Council, in which
it was stated (1) that a conference having been held with the
fishermen concerning the seasons of all the fishings on the
coast, it was thought fit that the proclamation should take
effect from 1st August ensuing; (2) that from that day
forward it should be unlawful for any stranger to fish " upon
those his Majesty's coasts and seas of Great Britain and Ire-
land and the Isles adjacent," where the fishing was usually
carried on, until they had obtained license for the same from
the king; (3) that commissioners should be appointed by the
king, at London, for England and Ireland, and for Scotland
at such place as the king should select, to give out licenses
on such conditions as he might think fit; and (4) that the
licenses should be apportionable to the number and tonnage
of the ships.1

These provisions were embodied in the proclamation, which
was issued on 6th May 1609.2 " Whereas," said James, in his
wordy style, " we have been contented since our coming to the
crown, to tolerate an indifferent and promiscuous kind of
liberty to all our friends whatsoever, to fish within our
streams, and upon any of our coasts of Great Britain, Ireland,
and other adjacent islands, so far forth as the permission or
use thereof might not redound to the impeachment of our
prerogative royal, nor to the hurt and damage of our loving
subjects, whose preservation and flourishing estate we hold
ourself principally bound to advance before all worldly re-
spects : so finding that our connivance therein hath not only
given occasion to over great encroachments upon our regalities,
or rather questioning for our right,3 but hath been a means of
much daily wrongs to our own people that exercise the trade

1 Brit. Mus. Lansdowne MSS., 142, fol. 379. In Caesar's handwriting.

a See Appendix F. 3 Perhaps an oblique reference to Mare Liberum.

150 THE SOVEREIGNTY OF THE SEA

of fishing, as (either by the multitude of strangers, which do
preoccupy those places, or by the injuries which they receive
most commonly at their hands) our subjects are constrained to
abandon their fishing, or at the least are become so discouraged
in the same, as they hold it better for them to betake them-
selves to some other course of living, whereby not only divers
of our coast-towns are much decayed, but the number of
mariners daily diminished, which is a matter of great conse-
quence to our estate, considering how much the strength there-
of consisteth in the power of shipping and use of navigation."
It was therefore both just and necessary, the king continued,
to take lawful means to put an end to these inconveniences,
although he had no intention, as he desired the world to take
notice, to deny his neighbours "those fruits and benefits of
peace and friendship" which might justly be expected at his
hands in honour and reason. He therefore gave notice to all
the world, that after 1st August 1609, "no person of what
nation or quality soever, being not our natural born subject,
be permitted to fish upon any of our coasts and seas," " until
they have orderly demanded and obtained licenses from us,"
or the commissioners appointed at London and Edinburgh.
The licenses were to be renewed yearly, "upon pain of such
chastisement as shall be fit to be inflicted upon such wilful
offenders.1

The prohibition of unlicensed fishing in the British or Irish
seas was general in its character, and applied to all foreigners
indifferently. But it was well understood to be aimed at the
Dutch. There is no evidence to show that any steps were
taken to induce the hundred or so of French boats that took
part in the herring-fishing on the east coast to obtain licenses ;
and though the Earl of Salisbury wrote a long letter to the
English ambassador at Madrid, explaining the reasons that had
induced the king to issue the proclamation, it does not appear
that the numerous Spanish fishermen who caught mackerel off
the coast of Ireland and the south-west coast of England were
ever interfered with, or asked to apply for licenses.2

In the United Provinces the important step taken by the King

1 State Papers, Dom., xlv. 24. Proc. Coll., No. 11.

2 Salisbury to Cornwallis, 8th June 1609. Win wood's Memorials of Affairs of
State in the Reigns of Q. Elizabeth and K. James L, iii. 49.

UNDER THE STUARTS: JAMES 1. : A NEW POLICY 151

of England was regarded with much concern. Early in June
the proclamation was discussed by the States of Holland, and
it was resolved that as the interference with the liberty of
fishing was contrary to the treaties between England and the
Netherlands, the States-General should maintain their right
to fish off the British and Irish coasts.1 This resolution was
confirmed on the same day by the States-General, and it was
decided to make representations against putting the proclama-
tion into force. The herring-fishing, as previously described,
began in June at Shetland, and was prosecuted down the east
coast to Yarmouth, where the busses were usually to be found
in September. There was therefore not much time to lose.
Sir Noel Caron, the Dutch ambassador in London, had several
interviews on the subject with the Earl of Salisbury and with
James himself. Lord Salisbury, who was believed by Caron
to be the real author of the scheme, held out little hope of an
amicable settlement. But the good-natured king, who loved
peace even more than he loved his prerogative, was more con-
ciliatory. He explained to Sir Noel that the proclamation was
for the purpose of introducing better order into the fishery,
and to make manifest to the world the authority and power
which he had on the sea,2 and was not meant in any way to
wrong the States, either by hostile force or otherwise. The
French Government had in the meantime moved in the matter.
At first nothing was said to our ambassador at Paris about the
proclamation, and he thought it " no wisdom " to speak about
it to them unless they raised the question. This they did
later, either on account of the French fishermen or at the in-
stigation of the Dutch, and a year's respite was granted.3

1 Muller, Mare Clausum, Bijdrayc tot de Geschiedenis der Rvcaliteit van Engeland
en Nederland in de Zeventiende Eeuio, p. 52. Bosgoed, Bib. Pise., 347. Resolution

. . . van Vergaderinge van de Heeren Staten van Hollandt ende West-Vrieslandt,
2
js June 1 609. " Ter Generalitey t 's lands recht voorstaan ter saake van het Engelsch

placaat op het visschen op de kusten en zeeen van Groot Brittaunien en Yrland."

2 " Ende oic Sijne authoriteyt eii rnacht die hy in die See heeft voir de werelt
manifest te maecken."

3 Sir George Carew to Salisbury, 20th June 1609. Acknowledges his lordship's
letter, " according the request made by the ffr. Amb>' for one year's Respite longer
for the ffishers of this nation," and expressing his pleasure that other considerations
of state so fell out as to give his Majesty cause to grant them that favour, " for it
is like to increase the amity of the two crowns."

152 THE SOVEREIGNTY OF THE SEA

Caron learned the welcome intelligence from the French am-
bassador in London, that a promise had been made to him that
the project would proceed no further until after mutual negoti-
ations, which would occupy the whole of that year.1 Sir Ralph
Winwood, who was appointed English ambassador at The Hague
in August 1609, also had conferences about the proclamation
with Barnevelt, whose authority in Holland was then supreme.
He was told that the States would send special ambassadors
to the king, "to acknowledge those many royal favours they
had received from him," and to treat of the liberty of fishing.
Meantime their ambassador in London had been instructed to
beseech the king to have patience with their people " trading "
on his coasts, and that " without impeachment they might use
their accustomed liberty and ancient privileges." 2

Sir Noel Caron had also discussions in London with respect
to the legality of imposing any tax on Dutch fishermen, the
principle of which he could not well understand. As previously
mentioned, one of the precedents upon which James founded
his claim to impose tribute was the payment by Scottish fisher-
men of the so-called "assize-herrings." This was an ancient
tax or custom of a thousand herrings levied from each fishing-
boat employed at the herring fishery, and they belonged to the
king as part of the crown revenues.3 From the extent of the

1 Caron to the States-General, || July 1609. Brit. Mm. Add. MSS., 17,677.

2 Winwood to Salisbury, 6th September 1609. Memorials, iii. 64.

3 The assize-herring was thus described by Skeue, in De Verborum Significatione,
annexed to the laws of Scotland, printed in 1597. " Assisa Halecum. The assise
herring signifies ane certain measure and quantity of herring, quilk perteinis to the
king as ane part of his custumes and annexed propriety, Jac. 6, p. 15, c. 237, for
it is manifest that Hee shuld have of everie Boat that passis to the drave, and
slayis herring, ane thousand herring of ilk tak that halds, viz. of Lambmes tak,
of the Winter tak, and the Lentrone tak " — that is, of the summer, winter, and
spring fishings. The assize-herrings appear to have been originally a contribution
to the king's kitchen. In 1526 James V. granted assize-herrings to Stuart of
Ardgowane (Origines ParocMales Scotia;, ii. 83). In 1593, in an Act of the
Parliament of Scotland, entitled " Annexatioun of the Propertie of the Croun that
wes nocht annext of befoir," the assize-herrings were included (Jac. VI., 1593, c. 32.
Acta, iv. 28), and an Act of 1597, entitled " Assysis hering may nocht be disponit,"
ordained that no infeftment or alienation in few ferm or otherwise, and all rentals
and dispositions whatsoever, past or to come, were to be null and void, because
they pertained to the king as part of his customs and annexed property (Acta,
iv. 131). Later the assize-herring was commuted into a money payment. An
Act of Charles I. in 1641 (cap. 117), entitled "Act anent the Excise of Herring,"

UNDER THE STUARTS: JAMES LI A NEW POLICY 153

Dutch herring fishery it is evident that a similar tax imposed
on it would have brought in a goodty sum annually to the
king's coffers. A few years later, when James did attempt to
collect the tax from the Dutch fishermen, each buss was to be
charged an "assize duty" of 10,000 herrings, or £66, 13s. 4d.
Scots, which was equal to about £5, lls. Id. sterling; so that if
the duty had been exacted from the 2000 herring-boats fishing
on the coast the crown would have benefited to the extent of
about £11,000 a year, and the Hollanders would have been all
that the poorer.

When the principle of the assize-herring was explained to
the Dutch ambassador, he appears to have devoted some atten-
tion to it. He argued that although the Scots Acts showed that
the assize-herrings had been exacted from the Scottish fisher-
men in the firths on the east and west coasts, the tax had never
been imposed in the north seas and at the Isles (Shetlands)
where the Hollander busses fished ; it would therefore be an
" innovation " to enforce the payment there now. He further
averred that treaties between King James and the United
Provinces existed by which Dutch fishermen were freed from
any payment to the king for fishing on his coasts and seas.
Moreover, he declared the sea was free to all, mare est liberutn,
and consequently there was no king nor lord to be acknow-
ledged upon the sea, " but every stranger may fish over all the

on the ground that the collection of the herrings was "very hard and difficult,"
commuted the thousand herrings in the Firth of Lothian into a money payment
of £6 Scots. In the eighteenth century, when it had been for the most part
granted to individuals, or farmed, it took the form of a tax ranging from £4 Scots
to £10 Scots per boat or per net, and was felt as a grievous burden. In the Firth
of Forth each boat that was " size- worthy " (viz., that caught 3000 herrings during
the whole season) had to pay ten shillings as "size-duty." On the west coast it
amounted to £10 Scots, or sixteen shillings and eightpence sterling, whether
herrings were caught or not. With regard to the gross value of the tax, those
of the great Dunbar fishings were leased in 1614 for five years for £1000 Scots,
and a yearly rent of 2000 merks (Reg. Privy Council Scot., x. 282). In 1613 the
value of the " duty of the tack of the assize-herrings," amounting to fourteen lasts,
which the Earl of Argyle rendered for Lochfyne, was estimated to be about £36 or
£38 sterling (Mdrose Papers, i. 124). In 1598 the assize-herring from the "east
seas" was estimated to amount to 1120 diy "killing" (cod), which shows it was
sometimes paid in other fish; in 1656-57 it was equal to £130 sterling (Chalmers,
Caledonia, ii. 497) ; in 1629 Captain Mason claimed no less than £12,489, 7s.
sterling as the value, with interest, of the assize-herrings of the Hebrides and
North Isles granted to him by James for the years 1610-11, and not paid (State
Papers, Dom., cliv. 13).

154 THE SOVEREIGNTY OF THE SEA

seas where he pleases, without asking license, or paying any
toll or duty whatsoever." It was moreover apparent, apart
from considerations of principle as to the freedom of the sea,
that no certainty existed that the king, or a successor, would
not raise the tax, if once imposed, as the King of Denmark had
done with the dues at the Sound, until they became a heavy
burden.

A Scottish lawyer, probably in the service of the crown,
in reply to the objections of Sir Noel Caron, argued that it
could not be called an "innovation" to exact the tribute, if
the herrings swam from the ancient places of their resort
and appeared in new places in his Majesty's seas, where the
tax was not previously levied, or because there was an " over-
sight" in levying it in olden times when, he said, there was
little fishing in the north seas and about the Isles, and
the cost of collecting it would have been great. As for
treaties, it was most improbable that any stranger would
ask or king grant that strangers should be more free to fish
" within the seas of the king's dominions " than the native
subjects of the kingdom. But even if such grant had been
made, it could not stand good in law, because it was " re-
pugnant to reason." By negligence, he said, the Hollanders
had been allowed two advantages. In ancient times they were
" appointed " to fish no nearer the land than they could see the
shore from their main-tops; but now they fished as near as
they pleased, excluding the natives and breaking up the shoals.
Then, while the natives had to pay three assizes yearly, the
Dutch were " as yet " asked to pay only one, though many of
the busses made three voyages in a year. And if the sea was
free to all, why had the Netherlanders entered into treaties for
freedom of fishing ? By making covenants with the kings of
Scotland, " and taking liberty of them to fish within the Scot-
tish seas," they had " disclaimed mare liberum and acknow-
ledged the Kings of Scotland to be Lords of these Seas." Why
should the Dutch alone object, if the natives, the French, and
all other foreigners willingly pay the assize-herring ? l It was,
however, untrue to say that the tax was paid by the French or

1 Arguments for Collecting the Assyze herring from all Strangers fishing in the
North Seas of Scotland, and Answers to some objections proponet be Sir Noel
Caron. State Papers, Dom., xxxii. 31.

UNDER THE STUARTS I JAMES I. : A NEW POLICY 155

other foreign fishermen. Even Scottish fishermen who fished at
the North Isles were exempt ; and when an attempt was made
some years later to force them to pay, the burghs obtained a
decree of absolvitor from the court and the Privy Council, on
the ground that the tax could only be levied on "green"
or fresh fish landed, and not on herrings cured on board
(see p. 166).

In the spring of 1610 James's proclamation was again taken
into consideration by the States of Holland and the States-
General, and it was resolved to send an embassy to London,
primarily to thank the king for his friendly offices in connection
with the conclusion of the truce with Spain, but in reality to
deal with the fishery question and some other matters. One of
the ambassadors was Joachimi, who afterwards represented the
States at the English Court for over twenty-five years. Another
was Elias van Oldenbarnevelt, a brother of the great statesman
who was then at the head of affairs in the Netherlands, and to
him the business of the fishing was specially committed. They
arrived in England on 14th April, and had an audience with the
king a few days later and another with the Privy Council.
They asked for an assurance that the king's proclamation was
not meant to extend to the United Provinces, since he was in
alliance with them, and treaties existed between the two
countries. But the Earl of Salisbury plainly told them that
the principal motive of the proclamation arose from the multi-
tude and disorder of their fishermen, " who had wholly drawn
the fishing to themselves, to the destruction of his Majesty's
people and coast-towns " ; and they were invited to further
conference.1

On the 6th May, exactly a year after the publication of the
proclamation, the ambassadors had a formal conference with
Sir Julius Caesar, Sir Thomas Parry, Sir Daniel Dunn, Sir
Christopher Perkins, Dr Henry Marten (Advocate-General), and
Levinus Muncke, a Fleming, and " clerk to his Majesty's Sig-
net." The English commissioners began the discussion by
justifying the proclamation on the grounds previously indi-
cated. The Dutch contended for complete freedom of fishing,
resting their case on arguments drawn from the civil law, on
immemorial possession, on the existence of treaties, and on

1 Winwood, Memorials, iii. 105, 135, 146, 162. Muller, op. cit., 56.

156 THE SOVEREIGNTY OF THE SEA

political considerations. They said the United Provinces had
always been in peaceful possession of free fishing, and that from
time immemorial they had enjoyed complete liberty to fish over
the whole sea, both as a matter of usage and of right. To dis-
turb them by force in the enjoyment of that right would be
unjust. Besides, by the Law of Nations the boundless and
rolling sea was as common to all people as the air, " which no
prince could prohibit." No prince, they said, could " challenge

-iirwf,, .f

*~ •^

*t

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

further into the sea than he can command with a cannon,
except gulfs within their land from one point to another," — the
first occasion on which this principle for delimiting terri-
torial waters, afterwards so celebrated, appears to have been
advanced.1

1 State Papers, Dom., xlvii. 111. "2. For that it is by the La we of nations,
no prince can Challenge further into the Sea then he can Coffiand w*h a Cannon
except Gulfes wthin their Land from one point to an other. 3. For that the
boundlesse and rowlinge Seas are as Coinon to all people as the ayre wch no prince
can prohibite." The paper is endorsed "Reasons vsed by the Hollanders for the
Continuance of Fishing Contrarie to the proclamation made in May 1609 forbid-
ding of strangers to fish," and there is a note, apparently in Caesar's writing,
saying, "This note was sent by Emanuell Demetrius who was present att the
discourse." It is misdated "Aug. 1609." The endorsements appear to have
been made after 1612, because at the end it is said, " It was answered by the
late Lord Treasr. Salisburie att a hearing," &c. A list is given of those present
at the conference — viz., the Earls of Salisbury. Northampton, Nottingham, Suffolk,
Shrewsbury, and Worcester, Mr Secretary Herbert and Sir Julius Caesar, the
" Standers by " being Sir T. Edmondes, Sir Daniel Dunn, Sir Christopher Perkins,
Sir William Wade, and Mr Levinus Emanuell Demetrius, — probably the Levinus
Muncke of the Dutch and other records. It is to be noted that the argument as
to the limitation of the territorial sea by the range of guns was not contained
in the instructions to the Dutch, as printed by Aitzema (Saken van Staet en Oorlogh,
ii. 406) and Vreede ( Vrijheid van Haringvaart, 6 ; compare Muller, Mare Clausum,

UNDER THE STUARTS : JAMES I. : A NEW POLICY 157

Besides these more or less abstract arguments, the am-
bassadors made a strong case by reason of the treaties in
which liberty of fishing was stipulated. It is noteworthy
that they referred to only one of the treaties with England,
the Intercursus Magnus of 1496, while they laid stress on the
treaties with Scotland in 1541, 1550, and especially in 1594,
when James himself was on the throne of the northern king-
dom (see p. 81). They further declared that there were
reasons of state which forbade the United Provinces from
allowing the free use of the sea to be disputed. More than
20,000 mariners were maintained by the herring fishery
alone, besides other 40,000 people who gained their liveli-
hood by making nets, packing the fish, and in other indus-
tries depending upon the fishery. The power and security of
the country and much of its commerce rested on the fishery.
As for the complaint that the decay of English coast -towns
was caused by their fishing off the coast, it was explained
that they only fished there for herrings which were cured
on board, and that this industry had been discovered by
themselves, which gave them a prior claim to it. The English
were free to carry on the herring fishery themselves, though,
they dexterously added, it was a business that required much
experience, and it would be a long time before they succeeded,
especially as heavy losses sometimes occurred, which the Dutch

58, 91), and is not referred to by them in their Journal, where, however, they
say they put forward " other reasons " than those they recite (Muller, Mare
Clausum, 59). Van Meteren, whose work was published in 1614 (Historic der
Nederlandscher ende haerdcr Naburen Oorlogen, <tc., fol. 650), reports, however,
that there was a great dispute as to how far a country's limit might extend into
the open sea, and the brief note of Levinus seems to be the only record of it. ( " Sy
seyden mede, dat het een groote dispute ware, hoeverre elcx Laudts Custen ofte
Limiten inde groote wijde Zee Oceane mochte strecken.") The document is of
interest not only from the clear enunciation of the doctrine at so early a period,
but because there are grounds for thinking that the idea may have originated in
the fertile brain of Grotius. Competent Dutch authorities believe that Grotius
either himself drew up the instructions dealing with the fishery question or was
consulted in their preparation ; and the fact that the argument is not contained
in the official instructions scarcely weakens the supposition. It was of so drastic
and novel a character to be urged against the pretensions of King James that the
Dutch, anxious to conciliate him, may have followed a practice not uncommon in
diplomacy, and kept it in the background only to be made use of if a suitable
occasion arose. It is, moreover, known that Grotius had a close personal relation-
ship with Elias van Oldenbarnevelt, the envoy to whom the fishery negotiations
were specially entrusted.

158 THE SOVEREIGNTY OF THE SEA

were able to bear, since they lived cheaply and each of the
60,000 people mentioned were " adventurers," the losses being
thus spread over a great number. They suggested that the
English had given up the fishery because they had found a
more comfortable livelihood in other ways.1

On the other side, the English commissioners argued that
by the custom of nations the king had a right to the whole
of the seas around his coasts; and this right was exercised
by other countries, as Spain, France, Denmark, Sweden,
Venice, Genoa, and Russia, and generally by all maritime
states; and it was not opposed to the Roman law or the
teachings of the Civilians. They admitted that the sea was
free for navigation, but denied that it was free for fishing.
All the kings of England since Edgar had the adjoining
seas under their jurisdiction, and had always received " con-
sideration " for the fishing within them. The commissioners
evidently felt that the treaties offered the greatest difficulty
to the policy of James, and they contended that all the
Burgundy treaties had become obsolete for a variety of
reasons. The great treaty of 1496 had lost its effect, inas-
much as a later treaty in 1520 (which, however, dealt with
quite other things) did not confirm it. The treaties, more-
over, had been made with the House of Burgundy, and con-
cerned only the subjects of that house ; but there were now
no subjects of the Duke of Burgundy ; and the Dutch at least
could not found upon those treaties, because they had them-
selves broken and transgressed them. Even if those old
treaties could be supposed to be in force and provided liberty
of fishing without license, that could not mean without the
payment of the usual dues, customs, and taxes. Besides,
when the treaties were made the circumstances were different.
The fishing of the Netherlanders was not then so disagree-
able to this country as it was now; then about 100 vessels
came to fish, while now they sent 2000. The king was there-
fore not bound to tolerate them any longer.

1 Vreede, Vrijheid van Haringvaart en VisscJierij. Nota, in den Jare 1610, door
de Nederlandsche Gezanten aan de Enyelsche Rcgering ingediend (Bijdragen voor
Vaderlandsche Geschiedenis en Oudheidkunde, Derde Deel. Arnhem, 1842). Muller,
op. cit., 57 ; State Papers, Dom., xlvii. Ill ; Brit. Mus. Lansdowne MSS., 142, fol.
362. Vreede thinks it probable that the instructions were drawn up by Grotius ;
Muller believes that he was at all events consulted on the matter.

UNDER THE STUARTS: JAMES I. I A NEW POLICY 159

The negotiations between the English and Dutch commis-
sioners went on for a short time, the arguments on either side
being elaborated without much hope of agreement, when an
event occurred that brought them to a sudden end. This was
the assassination of King Henry IV. of France, the head of
the Protestant League, which made James anxious to retain
the goodwill and alliance of the Dutch Republic, in view of
his relations with Spain. On 14th May the ambassadors
were told by the Earl of Salisbury that while the king held
his right to forbid the Netherlander to fish on his coasts
to be indubitable, he, "out of his great love to the Low
Countries, would forbear to proceed according to the pro-
clamation." l At the farewell audience James used very kind
expressions. He made the remarkable but characteristic state-
ment to the ambassadors that he had issued the proclamation
owing to the just complaints of his subjects, not from the
solicitation of courtesans or courtiers.2 He assured them
of his affection towards them and the preservation of their
state, "which next unto his own he held most dear above
all other respects in the world." As for the business of the
fishing, he thought it was not fit now to spend more time
on it, but to refer it to some better season, and in the mean-
time, he said, things would remain as they were.3 This termi-
nation to the negotiations was naturally gratifying to the
Dutch. Barnevelt and the States -General had become some-
what anxious as to the issue, and the ambassadors had been
instructed to try to get the matter shelved for a little. Al-
though James had suspended the operation of the proclamation,
however, he had not withdrawn it. The question was merely
postponed to a more convenient season.

The failure to carry out the policy of exacting tribute from
the Dutch fishermen was fatal to the scheme of the London
merchants to form a Society of Fishing Merchants. Rainsford
wrote to Lord Salisbury in October 1609 expressing his fears
that the Earl disapproved of the project to raise a great

1 State Papers, Dom., xlvii. 111. Vreede, op. cit. Muller, op. cit. Brit. Mus.
Lansdowne MSS., 142, fol. 362. " Answers for prohibiting of strangers fishing
upon the English coastes without the King's license, 5th May 1610" — in the writ-
ing of Sir Julius Ctesar.

2 " Niet door sollicitatien van eenige courtisanen ofte hovelingen."
:f The Lords of the Council to Win wood, Memorials, iii. 166.

160 THE SOVEREIGNTY OF THE SEA

revenue to the king for the fishing in his seas;1 and in 1611
he again addressed a memorandum to the Earl, answering
various objections that had been raised to the scheme, and
renewing the offer for farming the tribute.

The plans to form a national herring fishery founded on
taxation of the Dutch having failed, others were brought
forward on the basis of receiving special privileges and im-
munities from the crown. One proceeded so far towards reali-
sation, that in December 1611 a corporation was formed,
consisting of a governor, deputy-governor, a treasurer, twenty-
four " consuls," with " searchers " (cure-masters), gaugers, and
other officials, in imitation of the Dutch system. The adminis-
tration was to be general " for matter of order, and particular
for matter of adventure," leaving every town at liberty to
venture for itself ; and laws and ordinances were drawn up
for the central body in London and the affiliated societies
throughout the country. Since the money necessary was
to be found by private individuals, a number of privileges
were asked from the Government. One of these, which made
it lawful for the corporation to carry their fish abroad and
to bring back commodities in exchange, " from all parts where-
soever, notwithstanding any former privileges to the contrary,"
was strenuously opposed by all the trading companies, and
in particular by the Merchant Adventurers, who objected
that it would be most injurious to their great trade in cloth.2
This opposition killed the " business of the busses," as the
fishing project was popularly called. Writing ten years later,
Gerard Malynes, a London merchant and author, who appears
to have been one of the promoters and to have spent both time
and money on it, deplored the failure of this society, which
he said was due to the opposition of the Merchant Adven-
turers, the Russia Company, and the East-land Merchants.3

Within a year or two another project came from an unex-
pected quarter. No less a personage than the queen became
a suppliant for a royal patent empowering her to compound

1 State Papers, Dom., xlviii. 92.

2 Sir Walter Cope to the king, State Papers, Dom., Ixxi. 89. See note, p. 128.

3 The Maintenance of Free Trade, 42 (1622). He mentions the reasons given by
the powerful companies for their action, but it was caused by their fears for their
monopolies.

UNDER THE STUARTS : JAMES I. : A NEW POLICY 161

with strangers for licenses to fish on the British coasts. The
arguments adduced from the point of view of benefit to the
nation were of the usual kind ; but others of a more or less
domestic nature were added, which must have appealed to
the heart of her consort. " It is desired by the Queene," pro-
ceeds the petition, " that the King's Majesty will be pleased to
graunt unto her a Pattent of theis fishings under his Majesty's
great Scales of England and Scotland, whereby her Majesty
may have power to graunt lycense and to compound with
these strangers for an yearly revenue to be paid unto her
-Majestie for theis fishings." By this means a great revenue
would be drawn into the country, which would be sufficient
to support and maintain her estate, "and so his Majesty's
coffers will be spared." She promised besides that she would
give him a full fifth of the amount she obtained ; and another
advantage would be that the king would be " royally invested
in possession of his undoubted right, which," she naively added,
" hath never ben yet obtayned by anie of his royall progenitors."
The petition was brought before the Privy Council, who decided
that the proposal was not feasible, as it depended upon " so
many points of question and circumstance between us and
the House of Burgundy in former times, and the States of
the Low Countries and us for the present." l

In her petition the queen referred to the proposal to build
a number of busses. While explaining that her project would
not prevent the king or any of his subjects from building
busses if they so desired, she questioned whether that plan
would be successful. Some men, indeed, of great judgment,
she said, were of opinion that the king would reap no benefit
at all in that way, for 1000 busses was "the least number
that could be thought to doe any good upon this fishing,"
and each would cost £1000 at least, while £100 a - year
would be required for repairs, and 20,000 men would be
needed to man them.

About this time several works were published giving details

1 State Papers, Dom., Ixxvii. 79. The Earl of Northampton to Sir Thomas Lake,
4th July 1613. Ibid., Ixxiv. 23. The queen, who was fond of the banquet and the
masque, was often in financial straits. Chamberlain wrote to Win wood in 1609
that she had been melancholy about her jointure, and that £3000 a-year had been
added to it out of the customs, with a gift of £20,000 to pay her debts. Memorials,
Hi. 117.

L

162 THE SOVEREIGNTY OF THE SEA

as to the cost and equipment of herring - busses,1 but little
was accomplished. The net result in 1614 was that one
Richard Godsdue, Esquire, of Bucknam Ferry, in Norfolk,
had five busses on the stocks at Yarmouth, and Sir William
Harvey had built a large one at Limehouse. But all the
efforts made in the reign of James, and indeed throughout
the whole century, to form a great national fishery on the
model of the Dutch completely failed. It required nearly
two centuries of experience, and the squandering of vast
sums of money, to teach the people that a great industry
could not be suddenly created in this way by servile imita-
tion of a system not suited to the natural circumstances of
the case. It was chiefly by the gradual evolution of the
Scottish herring - boat, and not by the building of busses,
that the herring industry was wrested from the Dutch.

James was doubtless privy to the queen's petition before
it was officially considered,2 and he appears not to have been
satisfied with the decision of the Council. At all events,
the question of the fisheries was still kept alive. In the
spring of 1614 we find Wotton writing from The Hague
to Secretary Win wood, saying that he still had his Majesty's
commission regarding the fishings, and that it was, as Win-
wood said, "a tender and dainty piece," adding that though
he had seen Mr Barnevelt on several occasions he had not
mentioned the matter to him, and was waiting for a suitable
time to speak of this " dainty and delicate business." 3 Later
in the year, the Keeper of the State Papers was requested
by the Lord Chancellor and the Archbishop of Canterbury
to search the records in his custody relating to the king's
jurisdiction on the sea and his right to the fishing. " Whereas,"
they said, "there is occasion for his Majesty's special service
to look out such precedents and records as concern his Majesty's
power, right, and sovereign jurisdiction of the seas and fishing
upon the coast; and that we are informed there are many

1 Gentleman, Englands Way to Win Wealth, <L-c. ; E. S. , Britaines Buss ; The
Trades Increase.

2 In 1609 Sir Nicholas Hales told the king that he had been informed " the
Hollanders were petitioners to the Queen to grant them a term of years in the
seas for the fishing of herring, cod, and ling." State Papers, Dom., xlv. 23.

3 Wotton to Sec. Winwood, Hague, 20th March 1614.

UNDER THE STUARTS: JAMES I. : A NEW POLICY 163

of that kind among the records in your custody, we do
hereby require you to make your personal repair hither to
seek out all such precedents and papers as are remaining
there and do any way concern that business," and to hold
them ready for inspection.1

This search was doubtless in connection with the subject
of the assize - herrings mentioned in the next chapter, but
that the queen's scheme had been revived is evident from
the action of Sir Noel Caron. As soon as he got wind
of it, he wrote hurriedly to the States -General stating that
the king had assigned to the queen for twenty-one years
the revenue to be derived from taxing the herring - busses,
and that no one would be allowed to fish on the coasts
of England or Scotland without her consent.2 This letter
was at once considered by the Dutch Government. A com-
mittee was appointed to look into the treaties bearing on
the question and the instructions which had been given to
the ambassadors in 1610, and to report as to what action
should be taken ; but it was finally resolved to await further
developments in England before interfering, and at the
beginning of November Caron was able to announce that
the danger had passed.3

At this period there were other disputes with England
that caused apprehension in Holland. One referred to the
trade in cloth, and in a proclamation which prohibited the
export of wool 4 James took the opportunity to extol the
commanding situation of the British Isles for navigation and
trade, and to draw a parallel between the commodities of
wool on land and fish in the sea, "which," he said, "are
the Adamants that draw and govern all other Trade and

1 Archbishop Abbot and Lord Chancellor Ellesmere to Thomas Wilson, 24th
August 1614. State Papers, Dom., Ixxvii. 80. It is endorsed, "The letter to me,
24th Aug. 1614, sending for me from Harford and for the transcribing an
abstract of all things out of my papers which might concern his Majesty's juris-
diction on the sea, which I did and delivered it to Mr Attorney-General, Sir
Francis Bacon, by the commandment of the Lord Chancellor and the Archbishop
of Canterbury."

2 Caron to States- General, ~r 1614. Brit. Mut. Add. MSS., 17,677, H.

3 Muller, op. eit., 91, 92.

4 26th September 1614.

164

THE SOVEREIGNTY OF THE SEA

Merchandizing " — language which led the Dutch to think
the proclamation anent unlicensed fishing was about to be
renewed. Another referred to the whale fishery at Spitz-
bergen, which was claimed both by the Dutch and the
British, and was regarded by James as being within his mari-
time dominion. It led, as shall be seen, to an interesting
contest for mare clausum in the Arctic Seas.

165

CHAPTER V.
JAMES i. — continued. DISPUTES WITH THE DUTCH.

IT would probably be too flattering to James to suppose that he
had any well-considered plan for extending his authority over
the foreign fishermen frequenting his coasts, or for extracting
from them a tribute for their liberty of fishing. But the exist-
ence of the tax of the assize-herrings in Scotland clearly
offered the best means for bringing that about if it was to be
brought about at all. It has been explained that in the nego-
tiations which followed the issue of the proclamation of 1609,
Sir Noel Caron laid his finger on a weak spot in the English
case, by pointing out that the assize-herring had never been
levied on the native fishermen who fished where the Dutch
fished at the North Isles. The special ambassadors in 1610
also mentioned that their fishermen had never been asked to
pay it, though they naturally did not lay stress on the point.
James resolved that those omissions should be remedied. In
1610 he granted the assize-herrings to Captain John Mason,
who was employed with two ships of war in that and in the
following year on the coast of Scotland. Mason accordingly
made strenuous efforts to collect the tribute. The fishermen
of Fifeshire, who carried on a herring fishery at Orkney and
Shetland, resisted the unaccustomed tax, and in 1612 raised an
action of absolvitor before the Lords of the Privy Council
and gained their case.1 The Lords of the Council decided that
the " adventure " of the fishermen at the Northern Isles was of

1 Records of the Convention of the Royal Burghs of Scotland, ii. 455. Anstruther
Easter, one of the Fife villages, asked that the costs (£400 Scots) should be
reimbursed to them for obtaining the decree against Mason " for exacting of thame
certane excyse hering and fishes at the fishing in Orknay and Zetland. "

166 THE SOVEREIGNTY OF THE SEA

the nature of a merchant voyage, and that the fishermen had
no right to pay any such assize, which had never been craved
of them before.1

Notwithstanding this decision of the Privy Council of Scotland,
James in 1614 again granted the assize-herrings of the North
Isles, on this occasion to the Duke of Lennox, who was his
Admiral in Scotland and one of the chief noblemen of the
time. In ordinary course the grant came before the Privy
Council for confirmation, and the Council at once informed the
Convention of Burghs, requesting them to make it known to
the burghs that the Duke of Lennox had obtained a gift from
the king of " ane excyse to be tayne of all heyring to be tayne
be north of Buqhan Nes" (Buchan Ness, Aberdeenshire), so
that they might lodge their defences. The commissioners for
Dundee, St Andrews, Dunbar, and the burghs on the coast of
Fife, were accordingly appointed to proceed to Edinburgh to
give reasons to the Council against the " gift." 2 After hearing
the representatives of the burghs and the agents of the Duke
(one of whom was " Maister Johnne Browne," the central figure
in the dramatic episode in 1617, referred to later), the Lords of
the Council indited a long letter to the king. They cited the
decision in Mason's case two years before, and the reasons for
it. They expatiated on the great decay which had occurred in
all trades and commerce in Scotland, and stated that the fish-
ings would also decay if the duty was levied. In plain words
they told the king that the fisheries should rather be encour-
aged— for the general welfare of the country, the increase of
customs, the inbringing of bullion, and providing work for the
poor. In face of the decree in Mason's case, the Duke's agents
had to admit that they could not levy the tax from the burghs,
but they craved leave to exact them from the native fishermen
of Orkney and Shetland, and from the foreign fishermen who
fished there. On the former point the opinion of the Council
was clear. They upheld the contention of the burghs that the
native fishermen were only their servants, since they paid
wages to them for their labour, and that the herrings, being
cured and barrelled on the sea, were exempt from assize duty,
which could be exacted only on herrings brought fresh and

1 State Papers and Correspondence of Thomas, Earl of Melros, i. 130.

2 Reg. Privy Council Scot., x. 231. Rec. Convent. Roy. Burghs Scot., ii. 540.

JAMES I. : DISPUTES WITH THE DUTCH 167

"green" to land.1 The Council evaded giving an opinion on
the point of chief importance, the proposal to levy the tax on
the foreign fishermen, all of whom cured their fish on board
their vessels. There were, they said, according to information
supplied by the burghs, " some strangers, especially of Holland,"
who claimed the liberty and privilege of fishing " by his Majesty's
patent granted in their favour to fish in his Majesty's waters " ;
but the tenour of this patent was obscure and not known to
them, and they had no record of it. They suggested that the
king should ask his ambassador at The Hague to procure an
authentic copy of it, to be sent to Scotland for inspection and
consideration.2

Evidently the Council in Scotland were at this time as
cautious as the Council in England in doing anything contrary
to the treaties with the Netherlands. Had they sanctioned
offhand the request of the Duke to exact the assize-herrings
from the Hollanders, they would have taken the responsibility,
without direct authority from the king, of an act which they
knew might have serious consequences. They had no sympathy
with the foreign fishermen, for complaints regarding them from
the burghs were frequent. In 1611 the city of Edinburgh
represented to them the " inconvenience " which was sustained

1 The Lords of the Council to the king, 17th May 1614. Melrose Papers, i.
130. " It wes fundin," wrote the Lords, "by vniforme voices and consent, without
ony kynd of contradictioun, that the assise dewytie aucht onlie to be payit for
the hering brought freshe and greene to land, and that the hering whilkis ar
maid, saltit, and barrellit vpoun the sea, and maid reddye for the transporte, hes
nevir bene in vse to pay ony dewytie."

2 Loc. cit. The "patent" was the treaty of 1594. See p. 81. It may be
mentioned that Mason, in his petition to Charles I. (see p. 153 note), stated that in
1611 he collected "some part" of the assize-herrings, but that upon the marriage
of the Princess Elizabeth (February 1613) "the States ambassador made suit
to the king for the remission of the said assize-herrings due by their nation, which
was granted." We have discovered no other evidence of this. Loose statements
were often made on the subject by English writers and certain foreign authors, as
Rapin (Hist. d'Anglet., vii. 58), and Wagenaar ( Vaderl. Hist., ix. 318) following him,
that the Dutch agreed to pay an annual sum for liberty to fish on the British
coasts. The error was elaborated by others, as by Lediard in his great work
(Naval History of England, i. 420), who says: "In the year 1608 (sic) King
James published a proclamation prohibiting all foreign nations to fish on the
coast of Great Britain. This prohibition, though general, was designed against
the Dutch ; and it occasioned the Treaty the year following whereby they engaged
to pay an annual sum for leave to fish — an evident acknowledgment of the English
Dominion of the Seas."

168 THE SOVEREIGNTY OF THE SEA

by the whole realm and by the merchants in particular through
the non-observance of the Act of 1581, "anent the comming of
schippis to burrowis in the west and north Isles be Flemings
and uther nations " ; and in the following year the " mater of
the fischeing of the Flemins in the West and North Isles " was
again brought up, and it was remitted to the burghs of Edin-
burgh and Dundee to draw up a supplication to the Privy
Council to have the fishing by the Flemings in those places
repressed.1

In view of the decision of the Privy Council, the Duke of
Lennox did not at this time attempt to collect the tribute from
the foreign fishermen at the North Isles. But two years later
the political relations between this country and the Nether-
lands having become strained, the opportunity was seized to
raise once more the question of the fishery and the exaction
of the assize-herrings. Serious disputes involving retaliatory
measures had broken out respecting the trade in cloth. In
England strong resentment was aroused by an edict of the
States prohibiting the importation of English dyed cloth.
Winwood, now Secretary of State, wrote to Sir Dudley Carle-
ton, who had taken his place at The Hague, that it was the
opinion of "every true-hearted Englishman" that the king
" ought to forbid all manner of intercourse between the King-
doms and the United Provinces, and forbid the Hollanders, by
a fresh reviving of former proclamations, to continue their
yearly fishing upon our coasts." 2 The influence of this feeling
was soon apparent. The Duke of Lennox was now instructed
by the king to levy the assize-herrings from foreigners fishing
at the North Isles, the grant, under the great seal of Scotland,
being dated in June 1616 ; and to render his task more easy he
obtained from Sir Noel Caron in the same month a letter of
recommendation (" aanbevelingsbrief ") to the captains of the
Dutch convoying-ships. This letter was innocently given by
Caron in the belief that it concerned the payment of dues on
land at Shetland, which the busses had been accustomed to

1 Rec. Conv. Roy. Burghs Scot., ii. 323, 350, 354, 374.

2 Winwood to Carleton, ^7 September 1616. Letters from and to Sir Dudhy

Carleton, Knt., during his Embassy in Holland ; from January 161f to December
1620, p. 52.

JAMES I. : DISPUTES WITH THE DUTCH 169

pay, and which were then payable to the Duke,1 but it was
made use of by the Duke's agent to cover the collection of the
assize-herrings. The duty of collecting the tax was assigned
to Mr John Brown, one of the Duke's deputies. The detailed
instructions he received in 1616 do not appear to have been
preserved, but they were probably similar to those issued a
year or two later (see Appendix G). He was to proceed to the
North Isles in one of the king's pinnaces and there to demand
the assize duty from the foreign fishermen.

At the end of July 1616 Brown, in one of the king's vessels,
appeared among the Dutch busses at work off the Scottish
coast, and began to carry out his instructions, offering a " quit-
tance or receipt " for the tax claimed. Probably to his surprise,
it was peaceably paid by the busses, amounting for each to one
angel or a barrel of herrings and twelve cod-fish. The fisher-
men were told that if they did not pay it the amount would be
doubled in the following year ; and that the king had a right
to levy this tax for a distance of 100 miles from the coast in
virtue of the agreement made with the States at the baptism of
Prince Henry.2 Although the toll was paid by most of the
busses, it was without the consent of the captains of the
convoying men-of-war. They came to Brown and demanded
to see his commission ; and it is said that he showed them the
letter which the Duke of Lennox had obtained from Sir Noel
Caron. Since no force had been used in collecting the tax, the

1 Caron to the States-General, ^^[: 1616. Brit. Mus. Add. MSS., 17,677,

J, fol. 152. In an account of the oppressions of Lord Robert Stewart in the
Orkneys and Shetlands in the sixteenth century, it is stated that that nobleman
laid heavy tolls upon the Dutch fishermen and the Norwegian traders. In 1575
the inhabitants complained that he compelled " the dogger boats and other fishers
of this realm to pay to him great toll and taxis bye auld use and wont, to wit, ilk
boat ane angel noble, ane hundreth fish, and twa bolls salt" (Oppressions of the
Sixteenth Century in the Islands of Orkney and Zetland, xlviii. 4). It appears
from a complaint of merchants of Bremen, in 1614, that it had been a custom
" past memory of man " for each ship arriving at the Orkneys to pay six angels
and one dollar for ground - leave and water-leave (Reg. Privy Counc. Scot., x.
247) ; and the Dutch are said to have given to the agent of the Earl of Orkney a
barrel of salt for his " oversight " of each ship, and to have offered the Earl for
each ship " an angell and ane barrell of birskate (biscuit) bread," while he demanded
"no less than ane double angell or ane Rose noble at the least" (MSS. Advoc.
Lib., 31. 2. 16).

2 See p. 81. The treaty did not contain any stipulation of the kind ; and,
moreover, the Scottish copy was then amissing.

170 THE SOVEREIGNTY OF THE SEA

States' officers contented themselves with forbidding any further
proceedings, and Brown then departed.1

The success of the mission was gratifying to James, and
the payment willingly made on this occasion by the Dutch
fishermen was often afterwards cited as an argument that they
had acknowledged the king's rights in the fishery. In the
United Provinces the matter was naturally viewed in another
light. The Dutch officers promptly reported the occurrence to
the directors of the Enkhuisen branch of the fishery ; the
authorities of the town complained to Barnevelt in energetic
terms, and the matter was brought before a meeting of the
States-General, who characterised the proceeding of Brown as
an " unheard of and intolerable innovation, contrary to the
existing treaties," and instructed their ambassador in London
to make a strong protest against it. Orders were, moreover,
issued to the commanders of the convoying ships of war to put
a stop to any further payments, and even to refuse to give
their names. Caron, who was indignant at the use to which
his friendly letter had been put, complained to the king and to
the Duke of Lennox. James explained that it was merely a
small tribute or tax which was levied in Scotland on all foreign
fishermen, and even on his own subjects, and had been leased to
the Duke of Lennox, who paid an annual rent for it into the
Exchequer. He had, he said, arranged that one of his ships of
war should be stationed on the fishing-ground for the security
of the fishermen and to protect them from pirates. Caron
declared that their High Mightinesses were exempt from all
imposts or taxes for their fishery, both by the treaties "and
otherwise," and he begged the king to give other instructions,
as the matter had occasioned great disquiet and alarm in
Holland. Lennox also tried to minimise the importance of
the measure. It was, he said, a small matter ; a mere " acknow-
ledgment" of a barrel of herrings or ten shillings from each
buss, which had to be paid thrice a year by all the king's
subjects who fished at the North Isles, and was willingly paid
by the English, French, German, and all other foreign fisher-
men. The ambassador says he was shown a printed book
in which it was stated that the Scottish Parliament had

1 Muller, Mare Clausum, 107. Brit. Mus. Add. MSS., 17,677, J, fol. 153 et
seq. Lansdowne MSS., 142, fol. 410. Reg. Privy Counc. Scot., xi. 605, 608.

JAMES I. : DISPUTES WITH THE DUTCH 171

decreed that the assize - herrings should be paid not only
by the native fishermen but by foreigners who came to fish
on their coasts.1 The latter were furthermore prohibited
from approaching the coast nearer than they could see the
land from the top of their masts, whereas of late they came
within ten, eight, six, and even four miles of the shore, which
had caused much murmuring in the country, particularly as in
that year between 1500 and 1000 of their busses were there in
June. Sir Noel Caron, however, continued to protest against
what he said was an unjust innovation, and he closed the
interview with the important declaration that, be the conse-
quences what they might, the States would not allow a single
herring to be paid in future, as it might be regarded as a
precedent for further demands.2

Notwithstanding this strong protest from the Dutch am-
bassador, and a request he made to the king to forbear the
right he claimed pending the appointment of a special embassy
to treat of the matter, Brown was again sent to the North Isles
in the next year to collect the king's dues from the herring
fishers. This he attempted to do as quietly and inoffensively
as possible, but his mission had an abrupt and dramatic ter-
mination. Immediately on his arrival among the busses,
Captain Andrees Tlieff, the commander of one of the convoying
ships from Rotterdam, formally refused the payment in the
name of all the Netherland fishermen, handing to Brown a dec-

* o

laration to that effect in writing. Brown professed himself
satisfied, and was about to leave Tlieff s vessel to proceed, as he
said, among the fishermen of other countries, when the captain
of the conveyer from Enkhuisen, Jan Albertsz by name, who
had spoken to Brown in the previous year, came on board. He
asked Brown if he was the person who had levied the tax in

1 By the Scots Act, 1 James I., May 1424, regarding the "custome of horse,
nolt, scheepe, had furth of the realm, and of herring," it was ordained that the
following should be paid : "of ilk thousand of fresche herring sauld, of the Sellar
oue penny, and of ilk last of herring, tane be Scottis-men barrelled, foure schil-
linges, of ilk last be strangeris taken, sexe schillinges. "

2 Caron to the States-General, ^-^f1, |f Sept., g Sept. 1616. Brit. Mus. Add.

MSS., 17,677, J, fol. 152-166. The statement of Lennox that the tax was a
barrel of herrings or ten shillings agrees with the statements of the Dutch skippers,
who, however, added twelve cod-fish ("Een tonne harinck van elcke buysse oft
een Angelott daervooren met twelff cabillauwen ").

172 THE SOVEREIGNTY OP THE SEA

the year before, and on receiving a reply in the affirmative he
at once arrested him, saying he had orders to that effect ; and
notwithstanding Brown's warning as to the consequences, and
the exhibition of his commission, he was made prisoner by the
irate Dutchman and carried off to Holland. Whether the
king's pinnace had on this occasion, as two years later, more
than "two small guns and ten muscattis" to represent the
power and majesty of the British navy, does not appear. But
Brown, meek and peaceful, was seemingly quite contented with
his position. He wrote from the Dutch ship to Captain Murray,
in charge of the king's pinnace, telling him of his arrest and
advising him to make no attempt at rescue, but to return to
Scotland and report the matter to the king.1

James received the news of the capture of Brown at Dum-
fries while on a visit to Scotland. He felt that the arrest of
an officer of the state, discharging business of the state and
with his Admiral's commission in his pocket, was an " insolent "
personal affront to himself. The members of the Privy Council
who were with him — and the Duke of Lennox was one of
them — immediately wrote to the Council in London requesting
them in the name of the king to arrest the masters of two or
three Dutch ships in the Thames by way of reprisal, and to
retain them as hostages ; to inform Sir Noel Caron that repara-
tion must be made by the States ; and to instruct the British
ambassador at The Hague to " demand satisfaction from them
for this insolence offered to his Majesty." Win wood at once
sent for Caron, and informed him of the " disgraceful affront "
which had been put upon the king while his Majesty himself
was in Scotland. The king, he said, was very sensible of their
"injurious and scornful carriage," and immediate satisfaction
and redress were demanded. Sir Dudley Carleton used even
stronger language in addressing the States - General at The
Hague. What, he asked, would the world say wThen they
knew that a public officer and Minister of the King of England
had been seized by them in Scotland, in sight of the ships of
other nations and while the king himself was in that country ?
That the outrage was committed by the orders of the States

1 Carleton, Letters, 156, 157. Muller, op. cit., 110. Brit. Mus. Add. MSS.,
17,677, J, fol. 2136. Lansdovme MSS., 142, fol. 410. State Papers, Dom.
Collection, Charles II., vol. 339.

JAMES I. : DISPUTES WITH THE DUTCH 173

he did not believe ; but the captains pretended they had, a
commission for what they did, and produced certain letters
patent containing, as they said, an express commission from
their masters. The ambassador concluded by requiring instant
reparation and satisfaction.1

Meanwhile Brown himself had, perhaps, little cause for
regret. He spent two days on board the Dutch man-of-war,
and was then landed at Enkhuisen. The authorities of the
town at once perceived the rashness of the step that had been
taken by Captain Albertsz. Brown was immediately liberated,
treated with the greatest courtesy, and conducted by one of
the chief magistrates, with profuse apologies, to the British
ambassador at The Hague. All his expenses were defrayed ;
he was presented with seventy "double Jacobus pieces" as a
personal gift, and he left for home on 13th September. Count
Maurice and Barnevelt promptly disavowed the act of Albertsz,
and when the matter was brought before the States-General
by Carleton, it fell to the lot of Grotius, in the absence of
Barnevelt, to express the regret of the assembly for the " acci-
dent," and to request the British ambassador to put the case
in writing for inquiry. In their reply later, the States-General
threw the whole blame on the captains, Albertsz and Tlieff,
who had, they said, acted without authority, and would be
punished on their return from the fishing. They renewed
their regrets, said that Brown had been immediately released,
and begged that the Dutch merchant captains who had been
thrown into prison in England and Scotland might be set free,
and their "ancient accustomed liberty of fishing maintained."
In preferring this request the States relied on their treaty with
James in 1594, and the gracious answer he had given to their
ambassadors in 1610 concerning the proclamation of the year
before.2

If the States-General thought they were to get so easily out
of the awkward position in which the precipitate action of their
officers had placed them, they were disappointed. James not

1 Carleton, Letters, 156. Caron to the States -General, jg Aug. 1617 ; Carleton

to the States-General, ^-^ Brit. Mus. Add. MSS., 17,677, J, fol. 210, 213.

Papers, Dorn. Collection, Charles II., vol. 339.
- Carleton, Letters, 168, 169, 172, 176, 186. Muller, op. cit., 111.

1*74 THE SOVEREIGNTY OF THE SEA

only refused to release the Dutch ships, but said their masters
would be detained in prison until the offending commanders
had been sent as prisoners to England, there to receive such
justice as their case merited. This request was most unpalat-
able to the States, and they raised various objections to it,
founded both on law and privilege; and although they were
assured by Carleton that the only punishment the offenders
would receive would be " the crossing and re-crossing the seas,"
they begged that some other means might be found of settling
the matter. James, however, who had submitted the case to
counsel as to the legality of his demand, remained obdurate.1
Finally, after much negotiation and debate, the States, in
February 1618, resolved to send over the two captains to
receive the personal rebuke of the king. Albertsz, the chief
offender, fell ill and died, but Tlieff did actually come to
England in April. Notwithstanding letters of recommenda-
tion from the States-General, Sir Noel Caron, and Sir Dudley
Carleton (with whom Grotius had interceded), he was "very

1 Brit. Mus. Lansdoionc MSS., 142, fol. 398, 400. "The State of the Case
between his Majesty and the States of the United Provinces, touching the re-
manding to his Majesty of a Delinquent," 19th November 1617. In Cresar's
handwriting. It describes the circumstances of Brown's capture. The counsel
whose opinion was obtained were " W. Byrde (? Sir Wm. Bird, Dean of the
Arches), H. Marten, and Hy. Styward." '' Brown, his Majesty's subject of the
Kingdom of Scotland, was by authority from that State sent in a pinnace of the
King to the subjects of the United Provinces, who were then fishing for herrings
upon the coasts of Scotland, to demand a certain acknowledgment claimed by his
Majesty, as due unto him in the right of that crown ; " that " while delivering his
errand he was arrested and carried prisoner to Holland by the Dutch commander,
who pretended he had warrant and commission from the Lords the States so to do ;
that his Majesty (having represented this indignity by his ambassador there to the
Lords the States, the latter disavowed the act of the captain) requireth the
offender there, to be remanded unto himself here to receive as to justice shall
appertain. The Question — Whether this offender ought to be sent herein to his
Majesty as is required. Answei — There are good authorities that if a subject of
one State commit a heinous crime within the territory of another State (though
against a private person), the subject so offending ought to be remitted to the
place where the crime was committed, if it be required." There were also opinions
to the contrary, but " two very particular circumstances about this offence seem
necessarily to enforce the remission of the Dutch captain to his Majesty (1) taken
from the person of Brown, who was a public messenger sent by the State of
Scotland on the affairs of the Prince, and ought to have been inviolable by the
Law of Nations, and therefore a wrong and abuse done to him was contra jus
gentium ; (2) taken from the manner of the wrong done, which was nomine publico
— viz., by a pretended commission from the Lords the States."

JAMES I. : DISPUTES WITH THE DUTCH 175

wrathf ully " received by James, who scolded and rebuked him
severely for the enormity of his offence, and then dismissed
him without further punishment.1 Thus ended an incident
in the claims to mare clausum which almost led to a rupture
between the two countries.

It would appear that James, though thus foiled in his
attempt to levy the assize-herrings from the Hollander fisher-
men in 1617, did not intend to let the matter rest in the
following season, and circumstances occurred which brought up
the question of the " land-kenning " in another quarter. Early
in 1618 the King of Denmark complained to him that Scottish
fishermen were in the habit of fishing " within the waters of
Faerb'e," which was part of the dominions of Denmark, and that
the native fishermen had been so much injured by their en-
croachments that they were unable to pay their dues and
taxes. Here was a complaint against Scottish fishermen like
that which they so commonly made against the Dutch. The
complaint was brought before the Privy Council of Scotland, who
summoned the burghs concerned2 to appear and explain their
conduct. They admitted that for some years they had gone to
the Faerb'e Isles to fish, but they said that they had been " driven
thereto upon necessity, and by the violence and oppression of
the Hollanders, who came yearly with two thousand sail and
above within his Majesty's waters, and within a mile of the
'continent' of Orkney and Shetland, and not contented with
the benefit that the liberty of their fishing within the said
bounds affords yearly unto them, they do very heavily oppress his
Majesty's poor subjects and fishers." They said that the Hol-
landers " stoppis thame, houndis and chaisis thame frome thair
fischeing, cuttis thair nettis, threatnis thair ly veis, and thairby
compellis thame, who ar a nomber of poore people haveing no
other trade quhairby to manteene thair families, to seeke thair
fischeing elsquhair and far frome thair awne coist, with grite
tormoyll, travell, trouble, and chargeis."3 The Lords of the
Council, however, held that the oppression committed by the
Hollanders on them was no warrant for their oppressing the

1 Carleton, Letters, 219-263. Muller, op. cit., 113.

2 Crail, Anstruther, and Pittenweem, in Fife, and Musselburgh and Fisherrow,
•on the opposite side of the Firth of Forth.

3 12th March 1618. Reg. Privy Counc. Scot., xi. 329.

176 THE SOVEREIGNTY OF THE SEA

subjects of other princes, and "that they ought not to have
fished in the said waters without some license and oversight."
A proclamation was thereupon issued by the king and Council
forbidding Scottish fishermen " to fish within sight of the land
of the Isle of Faeroe, but to reserve the [fishings there l] to the
inhabitants of the said Isle, and to other " subjects of the King
of Denmark, " conform to the law of nations," under a penalty
of confiscation of the ships, vessels, and goods of the persons
offending. At the same time the Council wrote to the king
acquainting him with the oppressions committed by the Hol-
landers on the Scottish fishermen, and suggesting that his am-
bassador at The Hague should demand reparation and " instant
prohibition " by the States to their people, " that they fish not
within sight of his Majesty's land, but reserve these bounds to
his Majesty's own subjects, conform to the law of nations." 2

Sir Dudley Carleton accordingly made a strong represent-
ation to the States - General on the subject in April. They
asked for particulars as to the persons who were alleged to
have been ill-treated in Scotland, and the nature of the wrongs
done to them ; while with respect to the limit proposed to be
set them in their fishery — namely, not to come within sight of
land — they said they had never heard of any such custom,
and did not understand how it could be put into practice.3
On reporting this home, Carleton was told by the king to
raise the question of the fishing again before he came away,
and he explained to him that the custom of the land-kenning
was that no stranger should fish either within the creeks of
the land or within a kenning of the land, " as seamen do take
a kenning." He asked Carleton to ascertain whether the
Dutch claimed to fish wherever they liked, or were willing
to accept reasonable bounds, adding that the resolution that
might be taken on the subject would depend largely on this.4

1 Record imperfect. 2 Reg. Privy Counc. Scot., xi. 328, 330.

3 Carleton, Letters, 259.

4 King James to Sir D. Carleton, 4th May 1618. "For the other part,
which is ye ancient custom alleadged by Or Subjects that they (the Dutch)
should not fish within Kenning of Land, of which they make shew to be
ignorant, and would understand what is meant by it : you may say that
Or Subjects do conceave that Custom to be that no strangers should fish either
within the Creeks of Or Land or within a Kenning of the Land as Seamen do take
a kenning, and insisting upon this interpretation of Or Subjects' meaning, you
shall observe curiously their reply, and what scope and liberty they do limit to

JAMES I. : DISPUTES WITH THE DUTCH 177

few months before this Carleton had brought similar com-
plaints to the notice of the States-General, declaring that the
Hollanders were daily guilty of "great outrages and insol-
encies on the Scottish fishermen." It was even said to be
the opinion in London that the prosecution of the herring
fishery by the Dutch under the protection of ships of war was
a direct challenge to and defiance of the king.1

The authorities in Scotland lost no time in preparing state-
ments recounting in detail the outrages and insolences com-
mitted by the Dutch fishermen ; but an impartial perusal of
the complaints leaves little doubt that they were greatly
exaggerated. The Dutch fishermen were accused of going
ashore in large numbers and chasing, taking, and slaying
sheep; they " intromitted " with growing timber, trod down
all the corn they could find, induced the best and ablest of the
native fishermen to join them, or even took them by force ;
entered the kirks, where they broke down the seats and
polluted the pulpits ; carved their names on the green pastures ;
took uninvited rides on the horses in the fields, " to the great
hurt of the owners " ; and made free with the eggs and young
of seafowl on the uninhabited isles, to the hurt of the pro-
prietors. In the long catalogue of their supposed outrages
on land, two were more important. It was alleged that
they gave refuge to thieves and malefactors, so that justice
could not reach them ; and that some years before they seized
an honest young woman who was selling stockings among
them and held her head-downwards on an eminence in sight
of the whole fleet, owing to which she died later. Among
their offences at sea they were charged with shooting at
native fishermen, "catching of their small netts and lynes

themselves in their fishing, and whether they understand that they may fish where
they list, near or far off, or that they may be confined to any reasonable bounds,
for thereupon will depend a great part of that resolution which may be taken
hereafter in a matter of so great moment as this is, and the answer you shall
receive you may either advertise by writing, or bring with you, as you shall find
Or fervice to require." State Papers, Dom. Collections, Chas. II., vol. 339. In a
later communication to the States-General Carleton described the land-kenning
thus : " Ce qui est une limite bien entendue par gens de Marine, et appellee en ces
quartiers la The Kenning of the Land, et icy de kermis vant landt." Dr P. P. C. Hoek
informs me that " het land verkennen " is even now the technical Dutch expression
when a sailor comes near the coast without knowing at what point he approaches it.
1 Muller, Mare Clausum, 114.

M

178 THE SOVEREIGNTY OF THE SEA

within those huge long netts " that they used, and which they
laid hard by the shore, " whereas before they approached not
nearer the coasts than fourty (sic) myles." By fishing near the
shore they had impoverished the whole trade of fishing ; before
they began to do so the herrings came close in, so that the
poorest fisherman could enrich himself, while the shoals were
now broken up and dispersed. So near did the busses come
in stormy weather that they fished "hard by gentlemen's
doors," where the fishing was "appropriate to the owners of
the land nearest adjacent for their own fishing in the time
of storms when they could not go to sea for the entertain-
ing of their houses." l

Since the States-General appeared to be tardy in admitting
the offences with which their fishermen were charged, the
king wished strong measures to be taken by the Council in
Scotland, and he instructed Lord Binning, his Secretary there,
to take steps " for interrupting and staying the Hollanders to
fish in his seas within sight of the land." The Council,
however, pointed out in a very humble tone that inasmuch as
it was a matter which concerned not only " thir Hollanders,
who ar your Maiesties confederatis, pretending thair awne
interes thairin, ather be right or lang possessioun," but also the
whole of the kingdom, it would be better if the king's proposals
were first imparted to the Privy Council in England. They
requested, further, that the ambassador in Holland should again
expostulate with the States as to the injuries caused to the
king's subjects by their "unjust usurpation to fish within sight
of his Majesty's land," and to urge them to issue a proclama-
tion to prohibit, under heavy penalties, their people from all
further fishing within his Majesty's seas, which, they said,
ought by the Law of Nations to be exclusively reserved for his
own subjects. They advised the king to make the States
clearly understand that if they continued any longer in their
" oppression," he would so provide for the maintenance of his
right and the freeing of his people as his honour and justice

1 Ane True Relatione of the Greifs and Wrangs qlks the Inhabitants of the Isles
of Orknay and Schetland and Others his Ma«es Subjects Fishars within ye King-
dome of Scotland sustains be the Hollanders and Hamburghgers and wha within
these few Zears are associat to the Hollanders in the Fishing within his Maties
Seas in Scotland." MSS. Advoc., 31. 2. 16. It may be noted that the custom
referred to in the last paragraph was of Scandinavian origin.

JAMES I. : DISPUTES WITH THE DUTCH 1*79

required ; and if the answer was not satisfactory he might then
resolve upon the " next expedient," and the Council would be
ready to obey whatever he should command.1

The States-General, while they did not go so far as the
Council desired in prohibiting their fishermen from approach-
ing near to the land, did all that they reasonably could do
to prevent injuries being committed on the Scottish people.
After an inquiry was made among those taking part in the
great herring fishery, without any evidence being forthcoming
in support of the Scottish complaints, they published an edict
forbidding their subjects, under pain of severe punishment "as
pirates and malefactors," from interfering with the Scottish
fishermen, with whom they were enjoined to maintain "true
friendship, neighbourliness, and good correspondence."2 In
forwarding a copy of this proclamation to the king, the States
said that they had issued it for his satisfaction, and had given
strict orders to their captains to apprehend any one who acted
contrary to it. But they expressed the hope that he would
not permit the fishermen of the United Provinces to be dis-
turbed or troubled in the liberty and freedom of taking herrings
throughout the whole sea, of which liberty they were in
immemorial possession, and it had been confirmed to them
by several treaties, in particular by that made in 1551 between
the king's predecessor and Charles V. The prosperity of their
country, it was added, depended on navigation, traffic, and
fisheries, and the freedom of these had been provided for in
treaties.3 James, however, was far from satisfied. He sent on
the missive to the Privy Council in Scotland, with the request
that the rolls and registers should be searched to see if any
record existed of any such treaty, whether "with the said
Emperor or any other potentate of the Low Countries." The
States, he said, had promised to send a copy of it, but they

1 The Council to the king, 4th April 1618. Melrose Papers, i. 306, 307.

2 5th June 1618, Groot Placaet-Boeck, inhoudende de Placaten ende Ordon-
nantien van de H.M. Heeren Staten Generael der Vereenighde Nederlanden, <tc.,
i. 707. In Eraser's Memorials of the Earls of ffaddington (ii. 66) there is printed
the copy which King James sent to Lord Binning. Sir Thomas Hamilton became
Lord Binning in 1613, the Earl of Melrose in 1619, and the Earl of Haddington
in 1627.

3 Answer by the States-General of the United Provinces to the Propositions of
the Ambassador of James VI. relative to the Herring Fishery on the Coast of
Scotland, 5th June 1618. Fraser, Memorials, ii. 65. Resol., St.-Gen., 5th, 6th June.
Muller, op. cit., 115.

180 THE SOVEREIGNTY OF THE SEA

had not done so, and in the meantime he would cause the rolls
in London to be searched.1

The negotiations with the States-General dragged on through-
out the summer without much result, and in August James
took the sudden resolution again to demand from the Dutch
fishermen the payment of the assize-herrings. This was doubt-
less caused by the receipt of a letter from Sir Dudley Carleton,
informing him that the herring-fishers had gone that year
to the coast of Scotland with extraordinary convoy, the number
of their men-of-war having been doubled, and expressing the
hope that notwithstanding this the king would send some
one to make the usual demand in a peaceable manner ; other-
wise, said Carleton, the Hollanders " will think his Majesty
has laid aside his pretension." 2 James accordingly wrote
hurriedly to the Council at Edinburgh, saying it was necessary
to make requisition of his duties from the Hollanders fishing
on the coasts of Orkney and Shetland, in order both to
keep possession of the fishing and to foil any plea from
the States-General that no such duties had been demanded
of them. He had intended, he said, to send a ship of war,
but those which were ready were otherwise engaged, and
there would not be time to equip a vessel in England before
the Hollanders returned from the fishing. The Council were
therefore instructed to fit out with all expedition either his
own pinnace or any other ship which could conveniently
be procured, and to send it to the North Isles with such
person as the deputy of the Duke of Lennox should choose,
who was to be instructed "in fair tearmes and calme and
peciable maner to crave oure said dewties, and accept of
any suche answer as they sail gif him, without making any
furder questioun or dispute in the mater." 3 Here was another
Brown mission over again; but James forgot, if indeed he
ever knew, that at that time of year the Dutch herring

1 The king to Lord Binning, llth June 1618. Eraser, Memorials, ii. 85. Nothing
seemed to be known of this treaty. James complained that the States were not
explicit. "This pointe" about the treaty, he wrote, "they leave obscure, seeing
they neyther expresse which of our predecessouris it was, neyther whether he were
our predecessour in Scotlande or Englande."

2 Carleton to Naunton, 19th August 1618.

8 The king to the Privy Council, 29th August 1618. Reg. Privy Counc. Scot.,
xi. 440.

JAMES I. : DISPUTKS WITH THE DUTCH

181

fishermen would be very far from the North Isles, and fish-
ing along the English coast.1 The fact was well known at
Edinburgh, but, for whatever reason, it was not pointed out
to the king; and the Council, urged to use "exceeding great
haste," chartered a Leith vessel, the Restore, put Mr Patrick
Bruce on board to demand the tax from the Hollanders, along
with a notary " to give instruments thereupon," and despatched
it on its bootless errand to the Shetlands. No Hollanders could
be discovered, and the Restore came back to Leith.

The reason of the king's action, as well as of Carleton's
advice, is doubtless to be sought in the desire to strengthen
the case against the Dutch in view of an expected special
embassy from The Hague, whose appointment was now mooted,
and which was designed to settle various differences between
the two countries that had become acute. Besides the herring
fishery, which was a never- failing subject of dispute, there was
the trade in cloth, the East Indies, and the " Greenland " whale
fishery, about which it is necessary to say something here.

Allusion has already been made to this phase of the con-
troversy respecting mare clausum which sprang up in the
Arctic seas, and was now mixed up with the question of
the liberty of fishing on the British coasts. Towards the
end of the previous century English whalers, for the most
part in the service of the Russia or Muscovy Company,
frequented the coasts of Greenland, and the northern seas
which had been opened up to English enterprise by the
voyages of Willoughby and Chancellor ; 2 and early in the
next century they also began to catch whales at Spitzbergen,
where they were found in enormous numbers.3 The whalers
of other nations followed in their wake, and in 1612 two
Dutch vessels arrived at Spitzbergen to take part in the
fishery, and although from their ignorance of the methods
they failed of success that year, a company (Noordsche
Cotnpagnie) was formed at Amsterdam to continue the venture
under better conditions.4 The Muscovy Company, whose

1 P. 131. 2 Hakluyt's Voyages, i. 246.

3 M'Pherson, Annals of Commerce, ii. 213.

4 Muller, op. cit., 118. In a memorandum drawn up by Sir John Coke in
1625, the Dutch are said to have first "intruded" in 1613. State Papers, Dom.,
Chas. I., dxxii. 136. See also Brit. Mus, Lansdoume MSS., 142, fol. 387 et seq.

182

THE SOVEREIGNTY OF THE SEA

whalers in 1612 got within nine degrees of the North Pole,
sighting 700 whales and bringing back 17,1 became jealous
of competitors. In 1613 they procured from King James
a charter by which they were entitled to exclude all others,
foreigners as well as subjects, from sailing to Spitzbergen;
and in that year they dispatched thither a fleet of seven
armed vessels to defend their rights by force as well as

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

to catch whales.2 In the seas at Spitzbergen they found
a number of other whalers from Spain and France, as well
as two Dutch ships which had returned to the fishery. The
English vessels immediately attacked them, and drove most

1 Earl of Northampton to King James, August 2, 1612. State Papers, Dom.,
Ixx. 23.

2 Chamberlain to Carleton, 27th October 1613. Ibid., Ixxiv. 89. M'Pherson,
Annals, ii. 273.

JAMES I.: DISPUTES WITH THE DUTCH 183

of the intruders away.1 The Englishmen then set up a
cross on the shore with the king's arms on it, and they
called the land "King James's Newland." It is noteworthy
as indicating the attitude and practice towards France through-
out almost the whole of the disputes about mare clausum,
that the French whalers were allowed to continue their oper-
ations, subject, however, to the payment of a tribute of
whales or train-oil, while the two Dutch ships were despoiled
of their catches and fishing-gear and were sent home empty.

)n their arrival at Amsterdam the ill-treatment to which
they had been subjected was naturally resented, and repre-
sentations to King James were made through the ordinary
channels, but without success. The Dutch founded their
partly on the general principle "that according to the
practice of all times and peoples, navigation, fishery, and

le use of the shore were free and common to all," and

irtly on the claim of prior discovery. Spitzbergen, they

lid, was discovered by Jakob van Heemskerk, a Dutchman,
1596 ; they had therefore at least as good a right as
the English or any other nation to the fisheries there. On
other hand, the powerful Muscovy Company argued
that Spitzbergen was discovered by Willoughby in 1553,
md accordingly belonged to England; and the king adopted

lis view, notwithstanding the elaborate case drawn up by
the famous cosmographer, Plancius, on the other side, which

ras submitted to him.2 The seas around Spitzbergen were
leld to pertain to the British seas, and to be under the

laritime dominion of the King of England, — a claim which

ielden attempted to vindicate later.

1 M'Pherson, Annals, ii. 274. Win wood, Memorials, iii. 480. M'Pherson speaks of
fteen Dutch, French, and Biscay whalers and four English "interlopers." Muller

(Mare Clausum, 120), quoting from a contemporary Dutch account, mentions three
Jiscayers, three Spaniards, two French, one Dunkirker, and two Hollanders. Both
be Spanish and French Governments protested against the action of the English
els. Digby wrote from Madrid (4th September 1613) that the English merchants
at St Sebastian were threatened in person and goods on the return of the Spanish
lips which had been prevented from fishing at " Greenland," and they were forced
remain indoors.

2 A Trew Declaration of the Discoverie of the mayne Landes, Islandes, Seas,
Ports, Havens, and Creekes, lyenge in the North-West, North, and North-East

artes of the World, State Papers, Dom., Ixxvi. 51. Muller, op. cit., 121, 123.
2arleton, Letters, 7.

184 THE SOVEREIGNTY OF THE SEA

Having failed by diplomacy to obtain recognition of what
they believed to be their plain rights, the States resolved
to oppose force by force. Early in 1614 a new Dutch com-
pany was formed, and exclusive privileges were conferred
on it "to navigate, trade, and fish, from the Netherlands
on or to the coasts of the lands between Nova Zembla and
Davis' Straits," including therefore Greenland and Spitz-
bergen.1 A tax of " last - money " was established, and in
the same year eighteen Dutch whalers, armed, and convoyed
by three States' men - of - war, left Holland for the Arctic
seas, prepared to maintain their right to freedom of fishery
by fighting for it if necessary. The English whalers did
not venture to attack so powerful a squadron, and as the
Hollanders came in 1615 and 1616 in even greater force,
they were for these three years enabled to carry on their
whale -fishing without molestation. In 1617, however, their
conveyers having been reduced in numbers, they were again
assailed by the English ; one of the Dutch vessels was despoiled,
and their "cookeries," or the buildings on shore in which
the oil was made, were destroyed. Then in 1618 the Dutch
reappeared, and in strength sufficient not only to maintain
the right they claimed, but to make reprisals. They attacked,
despoiled, and drove off thirteen English ships, most of which
returned to England empty, and the Muscovy Company
were loud in their complaints to the king. They put their
loss at £66,436, 15s., besides the spoiling of the ships and
the killing of the men.2

At this time, as we have seen, James was pressing more than
ever for the recognition of his claims to the herring fishery in
the British seas, and it may be easily imagined how he was
moved by the news of this fresh " outrage " at Spitzbergen.
At a meeting of the States-General in October, the British
ambassador used strong language in animadverting on these
"violencies, robberies, and murders" committed by the Dutch
on the king's subjects in the Arctic seas, on the injuries
inflicted on the English in the East Indies, and on other
matters in dispute; and he demanded that the embassy so

1 Groot Placact-Boeck, i. 670. Aitzema, Sakcn van Staet en Oorlogh, ii. 336.
State Papers, Dom., xcix. 36.

2 Ibid., xcix. 36-41. M'Pherson, Annals, ii. 287. Muller, op. cit., 131.

JAMES I. : DISPUTES WITH THE DUTCH 185

repeatedly promised by the States should be sent to England
without any further delay. The embassy in question had been
originally proposed by the Dutch with the view of arranging
the differences as to the trade in cloth and the herring fishery.
Their diplomacy through the ordinary channels had, however,
been so successful in preserving their freedom of fishing, not-
withstanding the harassing efforts of the king, whom they
invariably foiled, that they preferred to procrastinate, and the
proposed embassy had from time to time been put off. But
now the minatory demands of Sir Dudley Carleton were re-
inforced by the insistence of the Dutch East India Company,
for it had been proposed in England to arrest the vessels of
that company in the Channel in reprisal for the wrongs done
to the English in the East Indies, and one of their ships had
just narrowly escaped capture.1

The Dutch ambassadors arrived in England on 27th
November;2 but notwithstanding the earnest exhortations of
Carleton, their instructions were confined to the "Greenland"
(Spitzbergen) and East Indian questions, and did not contain
what the king most desired — full powers to treat on the
herring fishery.

James had been looking forward to this embassy as pro-
viding an opportunity for the final settlement of the fishery
dispute. Sir Dudley Carleton had informed the States-General
that the king wished to go into the matter of the treaties on
which their claim to liberty of fishing was in great measure
based, adding jesuitically that it was probably with the view
of confirming them. The king in reality felt that owing to
the dissensions in the Low Countries and the general political
state of Europe, the time was specially opportune for negoti-
ating a treaty in his favour.3 He had accordingly made

1 Carleton, Letters, 312.

a They were Johan van Goch, Ewout van der Dussen for Gelderland and
Holland, and Joachim Liens for Zealand. Holland had at first intended to send
Grotius. Ibid., 306.

3 Among the Csesar papers in the British Museum (Lansd. MSS., 142, fol. 383)
there is one dated 23rd December 1618, containing extracts "noted out of a book
called Mare Liberum give de Jure quod Batavia, <L-c., Lugd. Bat., 1609," together
with notes from Welwood's De Dominio Maris, answering the assertions in that
book. It was doubtless a memorandum to be used in the conferences with the
Dutch ambassadors ; and on the back of it are scrawled jottings difficult to
decipher, headed, "The Kinges Speeche touching the Dutchemen's fishing upon

186 THE SOVEREIGNTY OF THE SEA

considerable preparations to meet their arguments both with
reference to the treaties and the Law of Nations. Early in
November he wrote to the Council at Edinburgh, saying thai
the wrongs suffered by his Scottish subjects from the fishing o:
the Hollanders in the seas of Scotland had caused him to brin^
the matter before the States, and to acquaint them of his " re
solution to have them duly repaired." The States had signified
their desire to have their rights and the actions of their subjects
" orderly tried and determined," and they were therefore about
to send over commissioners " sufficiently authorised " for that
purpose. As commissioners to meet them, he had chosen the
Duke of Lennox, the Marquis of Hamilton, Lord Binning
(Secretary), and Sir George Hay (Clerk of Register), and he
asked the Council to expedite the issue of their commission
under the great seal. He also desired them to send him, in
writing, the most perfect information they could procure as to
his right to exclude the States from their pretended right or
alleged possession of the herring-fishing, with full particulars
of the wrongs committed by the Dutch on the Scottish people,
either by scattering the shoals of herrings or by " usurpation
of farder libertie to themselves nor hes bene formerlie granted
or tolerated be us or our prediceesoris to them." l

The commissioners named were accordingly authorised to
treat with the Dutch commissioners "anent the trial and
verification of the rights, immunities, and privileges alleged to
have been granted by his Majesty or any of his most noble
progenitors, Kings of Scotland, to the said States-General of the
United Provinces, or any others from whom they deduce and
derive their claim to fish in the seas of the said kingdom o:
Scotland, or any part or place thereof." They were furthe:
instructed to treat as to the redress required for the injuri

the coasts of Great Britain and Ireland," to the following effect : " 1. The treaty
never so opportune as now when they fearest it most and their State least settled ;
in ill terms with France and Spain. 2. In the East Indies we can match them,
and so in the north voyage (Greenland ?). The French King taketh part with
Barnevelt. The King of Spain prepareth against Venice. What the King of
Denmark, the Princes of the Union, the . . . and the rest of the Protestants
think of any falling out with the Low Countries." It may be noted that this
memorandum contains no reference to Selden's Mare Clausum, which the author
stated was submitted to the king this year (see p. 366).
1 The king to the Council, 7th November 1618. Rey. Privy Counc. Scot., xi. 631.

, JAMES I. : DISPUTES WITH THE DUTCH 187

committed by the Dutch fishermen, and for preventing in
future any unlawful proceeding by the States, "either by
fishing in his Majesty's Scottish seas" or by doing wrong to
the inhabitants. They were, moreover, "to concur" with the
English commissioners to Be appointed as to the "friendly
behaviour" of British subjects and the subjects of the United
Provinces in all other seas, fishings, voyages, and other foreign
intercourse, necessary for the continuance of peace and amity.1
The business of the herring fishery was thus placed in charge
of the Scottish commissioners, while the English had specially
to deal with the other subjects in dispute — the East Indian
trade, the whale fishery, the coinage, and the trade in cloth.
Towards the end of November Lord Binning informed the king
that the Council had sent off the commission, together with a
statement of the injury sustained by the whole kingdom by the
daily increase of the Dutch usurpation in his seas.2

With regard to the other matter about which James had
desired "the most perfect information," — his right to exclude
foreigners from fishing on his coasts, — the Council had the
greatest difficulty in discovering anything whatever pertaining
to it. It was the most important part of the question to come
before the commissioners, because the States had already issued
A strongly-worded edict forbidding their people from committing
Any wrongs upon the Scottish people (p. 179), and the king could
scarcely make out a just case for prohibiting the Hollanders
from fishing on this ground alone. He desired to show, what
lie no doubt fully believed, that his claims were supported by
historical precedents and the laws of Scotland, and that none of
the treaties on which the Dutch always relied in such negotia-
tions were contrary to his claims. In his letter to the Council
he therefore repeated the request that the public records should
be searched, and desired that Lords Lauderdale and Balmerino,

1 Reg. Privy Counc. Scot., xi. 462.

2 Lord Binning to the king, 27th November 1618. Melroae Papers, ii. 631.
The statement was to the same effect as that previously referred to. A Mr
Bruce of Shetland stated that while of old the Hollanders used to carry on the
greater part of their fishery forty miles and more from the land, yet they came
usually within fourteen miles before shooting their nets ; that in the time of the
late Earl of Orkney they came still nearer, within six or seven miles ; while now
they came so close that their nets were sometimes torn on the rocks. Sir Gideon
Murray to Lord Binning, 26th November 1618. MSS. Advoc., 31. 2. 16.

188 THE SOVEREIGNTY OF THE SEA

the Laird of Lundy, and others into whose hands such docu
ments might have come, "from their ancestors, Chancellor
secretaries, clerks of register, ambassadors, or councillors
state," should try to find any which bore upon the matter, an
to have them forwarded to him without delay. The terms c
the king's letter show plainly enough the confusion and impel
fection of the Scottish state records at that time ; and the Lords
of the Council sought high and low to discover copies of the
treaties or any other official papers relating to the subject, but
for a long time without any success. Copies of some of the
treaties were afterwards found, but nothing to establish the
king's right to exclude the Hollanders from the fishery. In
these circumstances the Council advised the commissioners " to
proceed warily," and to make the Dutch ambassadors produce
what they had to show for their claim to the fishing, and then
to answer that.1

But as things turned out, it was of no immediate importance
whether or not the Scottish commissioners were armed with
documentary proofs of the king's claims to the fishery. The
Dutch ambassadors, as has been said, came without any powers
to treat on that subject. In their private instructions, indeed,
they were enjoined to avoid carefully any discussion about the
herring fishery. If it was forced upon them, they were to point
out that the States had already issued a proclamation to prevent
wrongs being done to Scottish fishermen, which would be strictly
enforced. If this was not sufficient, they were to fall back o
general arguments as to the natural freedom of the sea, the

1 Earl of Dunfermline to Lord Binning, 27th November 1618. MSS. Ibid. "Co
cerning the Hollanders fishing in our seas," he said, "for all the search and tryj
I have made, whilk has been my uttermost, I can wryte or send to you little mo
nor before, in effect nothing." The Constable of Dundee searched all his recorc
the records of the Admiralty were explored, and all those in Edinburgh Castle ai
in the city archives, as well as many in the keeping of private persons, and ev<
one likely to know anything about the matter was communicated with ; bi
" nothing to the purpose" was found, "nor no recorde of any wryte made for the
Hollanders' use in 1594 or any other time." The "wryte" of 1594, it is to be
remembered, was a long treaty made by James himself. Copies were ultimately
discovered of the treaties of 1531 and 1541, but nothing to the point. Copies of
the treaty and of other documents referring to it were obtained, apparently from
Holland, in 1619, and were ordered to be preserved in his Majesty's Regis
in Edinburgh Castle (Reg. Privy Counc. Scot., xii. 22); but in 1630 and 16.
when they were again wanted, they could not be found. State Papers, Dm
Chas. I., ccvi. 46.

JAMES I. I DISPUTES WITH THE DUTCH 189

immemorial possession of the fishery and its paramount import-
ance to their country, and to plead for delay on account of the
confusion and difficulties of their home affairs.

On their arrival in London they were met by two high
Scottish personages, who had been awaiting their coming for
some weeks. They took this for a bad sign, concluding from
it that the king was resolved to raise the fishery question.
They had several interviews with the Council and the king.
On finding that their instructions limited them to the discussion
of the two points on which there was least anxiety in England,
the East India business and the whale -fishing, the Council
received them coldly, Bacon indeed rating them soundly for
coming without adequate powers. James himself was very
angry, and made no effort to conceal his disappointment. He
expressed astonishment that after all the complaints that had
been made, and after all the negotiations that had gone on
through the ambassadors at London and The Hague, they had
ventured to come unprepared to deal with the principal matter
in dispute. "The fishing," he told them, "on the coasts of
England, Scotland, and Ireland, as a regality and point of
sovereignty, was possessed by him alone, to the exclusion of
all others." Spain, he said, had asked leave to negotiate about
freedom of fishing, while France enjoyed the privilege only
under great limitations, a few small vessels being allowed to
fish for the use of the Court and the king's family.1 How little
becoming was it therefore, continued James with heat, that a
Republic which had only been recognised for a few years should
be the first to contest his sovereign rights ! It was useless for
them to plead unprofitable years and immemorial possession.
He was king of the greatest islands in the world, and he knew
very well the rights he had on the coasts of his three kingdoms.2
He further informed them that he was bound by oath at his
coronation to maintain the rights, liberties, and privileges of his
crown, and that he would rather lose all that he had than give

1 This referred to the licenses to certain French boats to fish on the Sowe in
the Channel. See p. 65.

2 " Zijne ma* was een coninck van de grootste insulen van de werelt ende
seer wel wiste het rechte dat hij hadde opte custen van sijne drij coninckrijcken."

24 D6C 1618
Commissioners to States-General, „, '" i«ia' Brit. Mus. Add. MSS., 17,677,

J, fol. 372.

190 THE SOVEREIGNTY OF THE SEA

up his right to the fishings.1 Declarations equally strong wei
expressed in despatches to the British ambassador at The Hagu
The king, it was said, would not be taught the laws of natioi
" by them nor their Grotius." 2 It would be to their advanta^
to ask the king's leave for the fishing and to acknowledge h
right as other princes had done, or it might well come to pa.
" that they that will needs bear all the world before them with
their Mare Liberum, may soon come to have neither Terram et
solum nor Rempublicam Liberam," — phrases which lead one to
think that James penned the missive himself.2 The Council
intimated to the ambassadors that the king declined to discuss
only the two points mentioned in their instructions, and that
they must get powers from the States-General to deal with the
question of the herring fishery.

Language of this kind from the king and Council disturb
and perplexed the envoys. They were anxious that the f rien
relations between the two countries should be strengthened, a
yet it appeared not unlikely that they would have to retu
home without having been heard on any of the matters
dispute. They began to think that after all it would be bet
if the fishery question were taken up and settled, and th
advised the States-General in that sense. The British am
sador at The Hague was using pressure with the same objec
But the Prince of Orange told him that in his opinion the
States of Holland would refuse to give authority for the fishery
question to be opened, "for fear of the people," because the
livelihood of 50,000 of the inhabitants of that province depended
on the herring -fishing, and they feared that the same thing
would happen with the tribute the king claimed as had happened
with the dues at the Sound, which had been gradually raised
until they had become an intolerable burden. He threw out
the suggestion at the same time that perhaps the freedom of
fishing might be purchased by a lump sum. A little later
Carleton proposed to the States-General that the three subjects
omitted from the ambassadors' instructions should also be
brought into the negotiations — viz., the trade in cloth, the
coinage, and especially the herring fishery. In a minatory

1 Note of Treatie with the Commissioners of the Estates annent the Fishir
Dec. 1618. MSS. Advoc., 31. 2. 16.

2 Naunton to Carleton, 21st December 1618.

JAMES I. : DISPUTES WITH THE DUTCH 191

speech he declared that the king, who had " a legitimate title
and the exclusive sovereign right and propriety to the fishery
011 the coasts of his three kingdoms," would not any longer
permit the subjects of the United Provinces to encroach on his
rights, which were recognised by all other princes and states.
The condition of affairs, he said, had been brought to extremities
by the extravagant discourses of one of their politicians and
the violent conduct of the commanders of their ships.1 Sweep-
ing aside the treaties and the claim to immemorial possession,
and using much the same language as the king had done as to
the hardihood of a young republic flouting the sovereign rights
of princes, he ended a long harangue by declaring that if there
was any further delay in dealing with the fishery question,
England would take measures to provide for her rights by
force of arms, "for such," he said, "was the demand of the
people, the advice of the Council, and the resolution of the
king."

But all those strong speeches and brave words came to noth-
ing. The leaders in the States knew the character and difficul-
ties of James, and felt that the warlike threats of a monarch
whose greatest desire was that he should be known as Rex
pacificus 2 were not likely to be carried to the extremity of the
sword. A little more delay brought about a change in the
English attitude. In the Privy Council there were signs of
wavering and evident hesitation to recommend extreme meas-
ures against an allied and Protestant state. In the political
condition of Europe — troubles in Bohemia, the King of Spain
threatening the overthrow of Venice, &c. — it was urged that
harsh measures might drive the Dutch to have recourse to
France, which supported Barnevelt, the king's enemy. Above
all, it was feared that the Protestants throughout the world
would be unable to understand how the king could attack the
Dutch at that critical time over so small a matter. On the
whole, " for the sake of the peace of Christendom," it might be
better to "continue" the question to another time, and thus
avoid an immediate rupture. The faltering in the Council
coincided with a humbler tone on the part of the Dutch

1 In apprehending Brown, p. 171. Grotius was then in prison, and known to be-
the author of Mare Liberum.

2 State Papers, Dom., xc. 65.

192 THE SOVEREIGNTY OF THE SEA

ambassadors. They strove to convince James that it was by
no means the desire of the States to refuse to treat of the fish-
ery, or absolutely to deny his right to regulate it on his own
coasts. All they asked was that the matter might be delayec
a little owing to the religious troubles which were raging in
the Netherlands, and because as all the provinces were con-
cerned and the records and treaties would have to be searched,
it would take some time before they would be in a position to
deal with it in an equitable way. The States-General used
language equally conciliatory to Sir Dudley Carleton, and
promised to send other ambassadors later, fully empowered to
treat of the herring fishery and the trade in cloth. James was
appeased and agreed to the delay, but he told the ambassadors
that unless the States gave an undertaking in writing to send
commissioners sufficiently authorised to settle the matter before
a year had expired, he would take it as " a plain and perpetual
declining of the treaty." l

Thus James was again baffled in his endeavour to force the
United Provinces to acknowledge his rights in the fishery.
But scarcely had the arrangement been completed when he
brought forward another proposal. Pending the conclusion of
the final treaty, he wished the States to issue a provisional
edict forbidding their fishermen from approaching within four-
teen miles of the British coasts, to which they had been coming
closer and closer in recent years, a proceeding which was the
principal cause of the complaints from Scotland.2 The distance
mentioned was that embodied in the Draft Treaty of Union in
1604, and was supposed to be equivalent to a " land-kenning." 3

29 Nov 17
1 The Dutch Commissioners to the States - General, - - ~ Dec. 1618

Jlf'S Jan'' f^. 1619' Brit' Mus' Add" MSS-> 17>677> J> foL 364> 367'
370, 374, 380. Muller, op. cit., 140, 147, 148, 153. Aitzema, Saken van Staet,
ii. 402. Carleton, Letters, 326. MSS. Advoc., 31. 2. 16. State Papers, Dom.
Collection, Chas. II., vol. 339, p. 351, 361, 369, &c.

2 The Dutch Commissioners to the States-General, 9-Fg"' 1619. Ibid., 387.
Naunton to Carleton, 21st January 1619. Carleton, Letters. Justice, A General
Treatise of the Dominion and Laics of the Sea, 179. The States were desired "to
cause proclamation to be made, prohibiting any of their subjects to fish within
fourteen miles of his Majesty's coasts this year, or in any time hereafter, until
order be taken by commissioners to be authorised on both sides, for a final
settling of the main business."

3 P. 223.

JAMES I. : DISPUTES WITH THE DUTCH 193

Carleton, however, thought the States would not immediately
agree to this, — their cumbersome system of government would
alone cause great delay, — and he counselled the king " to begin
with the fishers themselves," by publishing a proclamation fix-
ing the distance at which they would be permitted to fish.1
But the States were disposed to go so far to meet the wishes of
the king. They objected, indeed, that fourteen miles was a
greater distance than that at which a person could see the coast
from the sea, and thus exceeded a " land-kenning " or the range
of vision, but they promised to issue orders to their fishermen
to keep so far from the land as to be out of sight of people on
the shore, and to strongly prohibit them from going nearer.2

The business of the herring fishery having thus been shelved,
the negotiators took up the other matters in dispute. The East
Indian question was settled by a treaty,3 but the differences as
to the whale fishery were not so easily adjusted. The English
case was founded on the contention that Spitzbergen belonged
to King James, on their prior fishing in those seas, and on the
depredations committed by the Dutch in 1618 on English
vessels. The Dutch claimed a right to the fishery from their
discovery of the island, and they proposed three alternatives :
(1) that both nations should fish at Spitzbergen with an equal
number of ships, the bays to be divided by drawing lots ; 4 (2)
that fishing should be carried on by both parties everywhere
with an equal number of ships of equal size, disputes to be
settled by regulations ; (3) that the island should be divided by
an imaginary line into two equal parts, the Dutch to have one
part and the English the other. The English declined all these
proposals, and James informed the ambassadors that even if the
island had been discovered by their nation the English had the
right to the fishery because they were the first to practise it, —
an argument which, it may be remarked, if applied to the her-
ring fishery, would have been unfortunate for the king's claim
to it. But while maintaining his abstract right to the sea at

1 Carleton to the king, 6th February 1619.

2 Muller, op. cit., 156. "So verre van 't Lant souden blijven als men met
oogen konde afsien."

3 2nd June 1619. Dumout, Corps Diplomatique, V. ii. 333.

4 The English, who were the first to carry on the whale-fishing at Spitsbergen,
had taken possession of the best fishing-places : whales then abounded in the bays
close to the shore, where the " cookeries " were erected.

N

194 THE SOVEREIGNTY OF THE SEA

Spitzbergen, James gave way on the immediately practical
point, consenting that the Dutch should continue their fishery
at the island for three years longer.1

We have mentioned that late in 1618 James caused the Scot-
tish Council to send a vessel (the Restore) to the Shetlands to
demand the assize-herrings from the Dutchmen, and that it
arrived on the scene too late. Next year he resolved to be in
time, and while the Dutch ambassadors were still in London he
wrote to the Council saying it was necessary " for divers impera-
tive reasons " that the duties should still be craved, and request-
ing them to send a ship that summer with some discreet person
on board, " who in fair terms may require our duties of the said
Hollanders and report their answer"; and the Council were
desired to take special care that the business should not fail
through negligence.2 At a meeting of the Council at Holyrood
House on 29th June, arrangements were made to carry out the
king's wishes. Mr John Fenton was appointed "his Majesty's
commissioner" for "craving his Majesty's rent of assize and
teind from the Hollanders and other strangers fishing in his
Majesty's seas," and a Mr James Brown was instructed to
accompany him as notary.3 Fenton's commission, under the

1 Muller, op. cit., 160. State Papers, Dom., cv. 9. The Muscovy Company, now
supported by the East India Company, fitted out nine ships and two pinnaces
for the Spitzbergen fishery in 1619, but the voyage was unfortunate. After
carrying on the fishing for a few years longer the company abandoned it, though
it was carried on on a small scale by other English vessels, mostly from Hull.
The Dutch, on the other hand, prosecuted the fishing with great vigour and
success under the protection of men-of-war, and they rapidly made it one of the
most profitable industries of the Low Countries. A full account is given by
Zorgdrager, an old whaling captain, who wrote in the early part of the eighteenth
century (Bloeijende opkomst der aloude en hcdendaagsche Groeniandsche Visschcrij).
The Dutch factory on Amsterdam island grew to a village called Smeerenburg or
Oil-town, which was fortified in 1636. In those early years the whales were taken
by the ships' boats, which lay moored in the bays ; later, as the whales got scarce,
they were flensed at sea and the blubber carried home. This was the case before
F. Martens visited the island in 1671.

2 The king to the Privy Council of Scotland, 16th June 1619. Reg. Privy
Coune. Scot., xi. 607.

3 Since the records of the Scottish Council are silent as to the steps taken to
collect the assize -herrings in 1616 and 1617 and the capture of John Brown in the
latter year, while the Dutch and English records are equally mute as to the
proceedings in 1618 and 1619, it at first appeared that a mistake might have been
made in the dates of the former, a view that seemed to be supported by the
remark in the first letter of the king to the Council, " to the intent that the

JAMES I. : DISPUTES WITH THE DUTCH

195

great seal, commanded him to repair to the north seas, and there
"in his Majesty's name to ask, crave, receive, intromit with, and
uplift from those of Holland, Zealand, Hamburg, Embden, and
Rostock, and from all other strangers following the trade
of tishing in his Majesty's said seas this present year, his
Majesty's rent of assize arid teind of the whole fishes taken, or
to be taken by them in his Majesty's said seas and waters this
present year." The tribute levied by John Brown, in 1616, on
behalf of the Duke of Lennox, amounted to only one angel
(about ten shillings) or a barrel of herrings from each buss, or
twelve cod from a line-boat. But that claimed by the king
was now considerably greater. The " assize " was to be com-
muted at ten thousand herrings (which would be fully ten
barrels) for every buss that fished for herrings, and a last of
white fish for every buss that fished for white fish, that is to
say, cod and ling; or, if the fishermen preferred to pay in
money, they were to pay at the rate of £6, 13s. 4d. Scots for
every thousand of the assize-herrings, and at the rate of £50
for every last of the assize white fish ; and the same
equivalents were to be asked for each thousand "teind her-
rings," and for each last of " teind white fish," — a new duty now
irst mentioned, "teinds" being the Scottish term for ecclesi-
astical tithes. The value of the assize-herrings to be levied

rom each buss was thus about £5, lls. Id. sterling, and the
value of the assize white fish from each dogger about £4, 3s. 4d.
On the basis of two thousand Dutch herring vessels the total
duty would amount to the respectable sum of about £11,000,

rhile the dogger-boats would yield some £1500 additional,
receiving payment Fenton was to give an " aquittance and
discharge," which would be as valid and sufficient as if given

Estaitis may not alledge that no suche dewteis had bene demandit " — a curious
statement in face of the fact that Brown had been carried to Holland the year
before. But the late Professor Masson, who was the editor of the Register of the
Privy Council, obligingly informed me that the documents are the original Acta
ad not copies ; and among the English State Papers is a letter dated from
Holyrood House, on 10th July 1619, in which it is stated that Captain Murray
had been sent to claim the assize-herrings from the " Flemings " fishing in the
northern seas, and that he was well equipped to secure his safety if his demands
vere refused (Raith to Abercromby, State Papers, Dom., cix. 127). The phrase
the king's letter may be explained by the fact that the duty in 1616 and 1617
vas demanded by the Duke of Lennox, to whom the assize- herrings had been
anted.

196 THE SOVEREIGNTY OF THE SEA

by his Majesty's comptrollers or ordinary receivers of his
Majesty's rents.1

In the particular instructions given to Fenton,2 and which,
there are reasons for thinking, were essentially the same as
those previously given to Brown, he was enjoined to proceed
to the north seas in H.M.S. Charles, under the command of
Captain David Murray, and in the first place to inquire the
names of the admirals and vice-admirals of the Dutch fleet,
the names of their ships, to what towns and provinces they
belonged, and also the number of the convoys and busses sent
out to the fishing by every town, province, and state. This
having been done, he was " in fair and gentle terms and with
modesty and discretion " to demand from the admirals or vice-
admirals, and from two or three of the conveyers and busses
of each state, "his Majesty's rent of assize and teind" as speci-
fied. He was not to dispute with them as to the amount of
the duty. If they offered a smaller amount, " although it were
only an angel for every buss," he was to accept it, but not
less ; so also if he were offered fish instead of money. It was
left to his discretion to make a differential duty according to
the size of the busses, if that point was raised, and also to com-
pound with the admiral for the whole of the busses of a town,
state, or province. If payment of the duties were refused,
Fenton was merely "to take instruments upon the said re-
fusal without further contestation," and to report the result.
He was also to inform the Dutch of the oppressions made by
those landing from the fleet at Shetland, and to demand re-
dress and a promise that such conduct would not be repeated.3

A short time before this the Council, for the sake of economy,
had ordered the Charles to be disfurnished, but now, in view
of her important mission, they judged it to be " no ways meet
or expedient" that she should be made altogether empty of
her furniture and munitions of war, so that she might be able
to resist any sudden or secret onslaught by the Hollanders or
others. They therefore instructed that there should be left

1 Reg. Privy Counc. Scot., xi. 605, 608.

2 See Appendix G. Fenton was one of those who were on intimate terms with
Ben Jonson during the poet's visit to Scotland. Keg. Privy Counc. Scot., xi.
p. clxvii.

3 Op. cit., 606.

JAMES I. : DISPUTES WITH THE DUTCH

197

>n board "twa of the smallest pecceis of hir ordinance and
muscattis, with some few bullets ansuerable thairto, and
a litill quantitie of poulder, yf ony be within the schip."1
Orders were given for the manning of the vessel, which was
to be ready to sail before 1st July. It was with this scrimp
and penurious armament, and in this attorney-like manner, that
James prepared to obtain an acknowledgment from the Dutch
of his rights in his seas, whereas Charles I., as we shall see,
employed his great ship-money fleet for the same purpose.
But apparently the king would be almost as satisfied with a
refusal as with the payment of the tribute, either of which he
would be able to make use of in the negotiations for the " final
treaty" on which he had set his heart. It is therefore un-
fortunate that we can discover no further information as to the
expedition of Fenton. That the Charles left on its mission we
know,2 but the records are silent as to the result. It may
perhaps be inferred from this circumstance alone that the
diaries was no more successful than the Restore in the year
before.

Early in 1620 the States, which had taken no steps to re-
deem their promise to send another embassy to deal with the
question of the herring fishery, were reminded of it, and
Carleton urged this course as a point both of policy and
honour. But they were as reluctant as ever to handle the

latter. The increased duty which Fenton was commanded to
ask — of which very probably they had heard — was not likely
to make them more willing, and they continued to procrasti-
nate, alleging the unsettled state of their affairs at home and
the troubles in Bohemia and Germany as reasons for further
delay. Some prominent men in Holland indeed began now
to assume a firmer tone. Hints were thrown out to the British
ambassador that there was really little difference between forc-
ing on the matter and declaring war, since freedom of fishing
was of fundamental importance to the people of the United
Provinces. The Prince of Orange gave it as his opinion that
the seaport towns of Holland would never be brought to con-
sent to " any innovation " in the herring fishery, even if it were
urged at the cannon's mouth. Still more significant was the

;tion of the States in now voting large additional sums for
1 Op. cit., 593, 603. 2 Footnote, p. 195.

198 THE SOVEREIGNTY OF THE SEA

the equipment of a greater number of men-of-war to guard
the herring-busses from molestation.1

To all appearance, therefore, the Dutch had now stiffened
their backs and were prepared to fight for their liberty to fish
on the British coasts, as they had done at Spitzbergen, instead
of sending commissioners to London to haggle over it. But
their uncompromising attitude was soon modified owing to cer-
tain political events, which taught them the need of caution in
flouting the wishes of the King of England. In the autumn
of 1619, Frederick, the Elector Palatine, who had married
Elizabeth, the daughter of James, was offered and accepted
the crown of Bohemia under circumstances pregnant with
troubles. In consequence of this, Spain, in alliance with the
Emperor, attacked and took possession of the Palatinate. The
strengthening of the Spanish power in Germany was by itself
inimical to the United Provinces, and the sense of danger was
intensified when it was found that the occupation of the Lower
Palatinate was part of a plan for marching the Catholic troops
overland from Lombardy to the Spanish Netherlands. In view
of an impending conflict with their hereditary enemies, it be-
came a matter of grave anxiety to the States to retain the
goodwill of England. Accordingly, after many discussions, the
States-General at the end of 1620 appointed another embassy
to go to London ; but it was rather with the view of meeting
the political dangers with which they were threatened than
of dealing effectually with the subjects in dispute. The am-
bassadors' official instructions, which were most carefully con-
sidered, referred in general terms to the affairs of Germany
and the approaching expiry of the truce with Spain, and more
particularly to the cloth trade, the coinage, and the East Indies.
On the all-important subject of the herring fishery they were
mute. In their private instructions the envoys were enjoined
to avoid all discussion about it ; if pressed, they were to assure
the king that the States would be glad to consider it " later " ;
and in any discussion that did arise, they were to bear in mind
that they always had been in undisturbed possession of it,
and that the profit they derived from it had been greatly ex-

1 Carleton, Letters, 437, 447, 448, 451. Bosgoed, Bib. Pise., 352. The sum
voted in 1620 was 22,000 gulden ; in the following years it varied between 23,000
and 36,000 gulden.

JAMES I. : DISPUTES WITH THE DUTCH

199

aggerated and was far less than the king supposed — so little
indeed that they would be quite unable to carry it on if any
" innovation " were made.1

The embassy of six persons arrived in London towards the
jnd of January 1621. At their first audience with the king
bhey spoke only of the affairs in Germany and the seizure of
the Palatinate, desiring it to be understood that this was the
principal matter to be considered; and when they met the
Council they raised the question of a warlike alliance between
the two countries against Spain. But the herring fishery had
.not been forgotten by the English, and when the subject was
looted the Dutch begged that it might be allowed to rest for
time, pleading in particular that the expiry of the truce with
Spain would leave them face to face with a powerful foe. The
Council reminded them of the promise given, and James
Bluntly expressed the hope that they had come on this oc-
ision fully empowered to treat of the business of the fishery,
rhich had been suspended at the conferences two years before.
Vrhile disclaiming any wish to diminish their legitimate profits
rom the fishery, he warned them that the question touched
lis honour and sovereignty so closely that it could not be
ilways left undecided and in dispute ; and that he would only
igree to further delay when he was informed at what time it
ld suit the States to conclude an agreement both about the
shing on the coasts of Great Britain and at "Greenland."2
ifter many conferences and much negotiation it was arranged
that another embassy should be sent by the States before the
ipse of a year, and the Dutch commissioners quitted London
m 16th April.

In accordance with this understanding, still another embassy
ime to London, in November 1621. On this occasion the am-
issadors were provided with full powers to settle the East
tndian disputes, and with less ample authority to deal with the
Spitzbergen fishery question. But, astonishing as it appears,
ley were again sent without any power to negotiate any
reaty about the herring fishery. That the States, after so
lany delays and evasions, in the face of so many protests from
the king, should again break their promise, shows both the great

1 Muller, op. cit., 172, 173. Aitzema, Saken van Staet, i. 13, 17.

2 Muller, op. cit., 174, 178.

200 THE SOVEREIGNTY OF THE SEA

importance they attached to the matter and their belief that
James would not force on a quarrel about it. In their secret
instructions the old injunctions were repeated. They were to
beg that as a year had not yet elapsed a little further delay
might be granted; laying stress on the danger to the Protestant
cause, in view of the relations with Spain, if anything were
done to lessen the sea-power of the Netherlands, which depended
so much on tHeir fisheries. At this time the East Indian ques-
tion had become important and pressing in England, and the
early conferences were confined to it. But later the king
broached the subject of the herring-fishing ; and after listening
to the ambassadors for a while, he peevishly asked them to
make an end of their long harangue, called them leeches and
blood-suckers, who sucked the blood from his subjects and tried
to ruin him,1 and then treated them to the same sort of dis-
quisition as on former occasions. To the king's railing and
reproaches the ambassadors made such answer as they could,
and the upshot was that they were allowed to go on with
the conferences on the East Indian question. This embassy, at
the head of which was Fra^ois Van Aerssen, Lord of Som-
melsdijck, remained in England until the spring of 1623, engaged
in negotiations, often interrupted, on political affairs, and on
the East Indian and Greenland fishery questions. James did
not harass them further about the herring fishery. At the
farewell audience he spoke of it in a good-natured way. He
must, he said, resume his old song, veterem cantilenam, but
not at that time. But whenever the condition of the Nether-
lands was favourable, he would, he said, be glad to resume the
negotiations.2

During their long stay in England the ambassadors had an
opportunity of learning what was thought about the fishery
question. On their return to the Netherlands they earnestly
counselled the States-General to come to some agreement with
England both on the herring fishery on the British coasts and
the whale -fishing at Spitzbergen. These matters, they said,

1 "Ghy sijt sangsues, bloetsuygers van mijn rijck, ghy treckt het bloet van
mijne Ondersaeten ende souckt mij te ruineren."

2 Muller, op. cit., 191, 194, 203. Aiteema, i. 191, 193. Journal van de Ambassade
van den Heere van Sommelsdyck naer Engelant, 1621-1623, Brit. Mus. Add.
MSB., 22,866.

JAMES I. : DISPUTES WITH THE DUTCH 201

were close to the king's heart, and many people whom they
had met had shown much irritation in speaking of them, and
had even advised forcible measures against the Dutch. By this
time the Republic was again at war with Spain, while Prince
Charles and Buckingham had gone to Madrid to woo the
Infanta : it would be prudent to do all that could reasonably
be done to cultivate good relations with England. The States
therefore wrote to Sir Noel Caron telling him they had resolved
to take the fishery matter into serious consideration, and their
efforts were directed to the removal of all cause of complaint in
Scotland. Two edicts had already been issued — one, in 1618,
prohibiting any wrong from being committed on Scottish sub-
jects ; the other, in 1620, ordering their fishermen to refrain from
taking herrings within the rocks and reefs of Shetland, Ireland,
and Norway, on the ground that such herrings were inferior
in quality and unfit for curing.1 The technical reason given in
the latter for keeping away from the coast had some founda-
tion, but the real motive was probably to redeem the pledge
which the States had given in the year before (see p. 193).
What the States now did was to renew the edict of 1618, and,
after a conference between the ambassadors who had returned
from England and the College or Board of Fisheries, to issue
orders that the herring-busses were not to go too near the coast
of Scotland, which had, indeed, been agreed upon some years
earlier, so as to avoid causing inconvenience to the native
fishermen.2

There is evidence that the warning which the ambassadors
gave to the States-General as to the feeling in England was
well founded, and there occurred at this time, both in England
and Scotland, a revival of proposals aimed against the Hol-
landers. The Scottish burghs complained of the " heavie hurt "
they sustained owing to the English and the " Fleymings," who
had lately taken up the " trade of fishing " in the North and
West Isles, by which was probably meant the curing of herrings
and other fish. The Council accordingly ordained that the
Islesmen should "suffer no strangers to come within their

o

1 j2 May 1620. Verboth van Hariugh binnen de Rlippen van Yerlandt, Hitlandt,
oft Noorwegen te vangen. Groot Placaet-Soeck, i. 752.

2 ^ June 1623, Groot Placaet-Boeck, i. 708. Muller, op. cit., 206.

202 THE SOVEREIGNTY OF THE SEA

bounds to the fishing," and that none of the country people
should sell fish to them ; and they issued a proclamation
forbidding "all and sundry strangers" to "slay or take any
fish within the Isles, lochs and bays of the kingdom, and
that they buy no fish but salted and barrelled, and at free
burghs." l

In England fresh attempts were made to establish a great
national herring fishery which might rival that of the Dutch.
Within a month of the departure of the ambassadors, Lord
George Carew, Master of the Ordnance, was busy with a
project. Along with Lord Hervey and Sir William Monson — •
who was perhaps the prime mover in the matter — he had
several conferences with " skilful fishermen," and then he sent
for the city merchants to consider how the scheme might be
floated. To them he proposed that six busses and four doggers
should be bought or built at a cost not exceeding £10,000,
explaining, after the usual manner, how the return from the first
year's fishing would repay the whole of that sum and encourage
" all men " to adventure. The city merchants, one of whom was
Sir William Cockaine, were loud in their praises of the scheme,
— " it was the best work for the public and the most profitable
that the wit of man could imagine," — but as for the money
required, they were afraid that it could not be raised. Then
the promoters asked the Lord Mayor to propound the plan to
the Court of Aldermen. But the Lord Mayor curtly replied
that the Aldermen were engaged in other adventures, and were
"utterly unwilling" to enter into the project of building busses,
while the Merchant Companies were too much in debt to unde
take it. On a second appeal being made to him, he said th
Court of Aldermen "absolutely declined" to entertain eitlie
the general project for fishing -busses or the lesser scheme
building six busses and four doggers. They would hav
nothing to do with it ; 2 and this scheme was therefore nippe
in the bud.

Fresh proposals were now brought forward by others, bas

1 Rec. Convent. Roy. Burghs, iii. 142. Reg. Privy Counc. Scot., xiii. 308, 317.

2 George Lord Carew to the Secretary of State, Calvert, 8th March 1623
State Papers, Dom., cxxxix. 66. The Lord Mayor to Lords Grandison, Carew,
and Chichester, 27th March, 3rd April 1623. Ibid., cxl. 47, cxlii. 21.

JAMES I. : DISPUTES WITH THE DUTCH 203

on Government support, and a plan was propounded similar to
the old one of Hitchcock and Dee in the reign of Elizabeth, but
to be carried out under an Act of Parliament. Each city,
county, and seaport town was to be encouraged to equip
fishing-busses at their common charge and for their common
benefit, with power to employ their idle inhabitants in man-
ning them. For the security of the fishing fleet the king was
to provide twenty ships of war, five of which were to belong
to the royal navy, and they were to continue at sea from the
beginning of April till the end of September. To meet the
cost of this guard the king was to receive the tenth fish taken
both by English and foreign fishermen, the promoters think-
ing that the latter would be quite willing to be taxed when
the tax was demanded by an "Act of the King and King-
dom," and when they knew they would be protected by a
squadron of men-of-war.1 It was a pretty scheme, well-
intentioned, but innocent of information as to the actual state
of affairs.

Scarcely anything more was heard about the herring fishery
or the taxation of Dutch fishermen during the brief remainder
of James's reign. Another embassy came from the Netherlands
in 1624, but it was to conclude a defensive alliance against
Spain, and in the shadow of this new alliance the Dutch fisher-
men quietly reaped the harvest of the sea without fear of
English interference. James's policy of the assize - herring
had thus completely failed. All his efforts to induce or to
force the Netherlands' fishermen to acknowledge his right
were baffled by the superior diplomacy of the States, — their
"artificial delays, pretences, shifts, dilatory addresses, and
evasive answers." The only immediately practical result of
the king's policy was that the herring-busses kept for a time
farther from the coast of Scotland. But a new weapon had
been forged for the contest with the United Provinces for
supremacy at sea, and one which was to be used by his
! successors with much more skill, if with little greater ultimate
success.

1 A Project for the Encouragement of Fishing by passing an Act of Parliament
1 for Building fishing-vessels, to be protected by a Fleet Royall of 20 ships, the
i expense to be defrayed by a Tribute of every Tenth Fish. Ibid., clvii. 46.

204 THE SOVEREIGNTY OF THE SEA

Of one symbol of this sovereignty of the sea comparatively
little was heard during James's reign — namely, the salute o
homage to his flag. This traditional custom of the narrov
seas, while maintained on important occasions, was no
enforced with the vigour and arrogance which characterise
it later, perhaps less rigorously than under the Great Queen
"I myself remember," said Raleigh a few years before his
execution, " when one ship of her Majesty's would have made
forty Hollanders strike sail and come to anchor. They did
not then dispute de mari libero, but readily acknowledged
the English to be domini maris Britannici." l Sir William
Monson, too, who was Admiral of the Narrow Seas in the
earlier part of James's reign, tells us that the Hollanders were
very " stubborn " about striking their top-sails and performing
the duty due to the king's prerogative, and that he earned
their lasting ill-will by compelling them to do it.2

But the English commanders were punctilious in enforcing
the salute in the narrow seas on state occasions. A notable
instance occurred in 1603, when King Henry IV. of France
sent over the famous Sieur de Rosny, afterwards Duke of
Sully, to congratulate James on his accession to the throne
of England. With a numerous retinue he went on board an
English man-of-war at Calais, which then made sail for Dover
accompanied by a French warship under the command of
M. de Vic, the Vice-Admiral of France. The English captain
observed with displeasure that the French vessel bore the arms
of France at his top, "contrary to the custom of the narrow
seas"; but on account of the important personage on board
and the nature of his mission, he restrained himself fro:
challenging the " indignity " until they approached Dov
Road. Unable to brook the affront any longer, he fired at t'
French ship, and so " constrained her to strike her flag." T
shot did no harm, but M. de Vic at once turned round h
vessel and went back to France in high dudgeon. Ce
thought it necessary to send a despatch to the English am-
bassador at Paris explaining the circumstances, and while
saying that the English captain " rashly discharged " his gun,
he thought that if the matter was " well looked into, and the

1 A Discourse of the Invention of Ships. Collected Works, viii. 326.

2 Naval Tracts, in Churchill's Collection of Voyages, iii. 220, 224.

» JAMES I. : DISPUTES WITH THE DUTCH 205

former customs observed, there would be reason found for us
to stand upon." l

A somewhat similar incident happened two years later, when
Sir William Monson was bringing over an ambassador of the
Emperor from Calais to Dover. In Dover Road he found a
number of States' men-of-war, and their admiral, as Monson
drew near, struck his flag thrice, but then " advanced " it again
and kept it flying in the presence of the king's ship. Monson
believed the Dutch admiral had come in on purpose to put
this " affront " on him, so that the ambassador, as well as the
Spaniards then at Dover, might " spread it abroad throughout
all Europe " that the Dutch, " by their wearing their flags, might
be imputed kings of the sea as well as his Majesty," and so
lessen the esteem of the king's prerogative in the narrow seas.
Instead of firing upon the Dutch ship, he sent to invite the
admiral to dinner, and to tell him that he must take in his
flag. To this request the admiral demurred, saying that he
had struck it thrice, and that no former admirals of the narrow
seas had required more at his hands. Monson rejoined that
" times were altered " ; that when the mere striking of the flag
as he had done was sufficient, England and Holland were both
at war with Spain and it was tolerated; but now, since the
war was ended so far as England was concerned, his Majesty
required "such rights and duties as have formerly belonged
to his progenitors." On the Dutch admiral still refusing,
Monson threatened to weigh anchor and come near him, and
that the force of their ships should determine the question ;
"for," said the English admiral, "rather than I would suffer
his flag to be worn in view of so many nations as were
to behold it, I resolved to bury myself in the sea." The
flag was then struck, and the Dutch ships stood out to
sea. Monson tells us that he was congratulated by a
Spanish general who had been watching the proceedings,
who said that if the Hollanders had worn their flag times

o

had been strangely altered in England, since his old master
King Philip II. was shot at by the Lord Admiral of England

1 Cecil to Parry, 10th June 1603. Foreign Papers, France, vol. 129. It is
endorsed "Souverainty of ye Seas, 1603. Monsr. de Vicque beares ye armes of
franco in Dover road." See also Sully, Memoires des Sages et royales Oeconomies
d'Estat, ii. 173, and Kermaingant, Le Droit des Gens Maritim.es, 3.

206 THE SOVEREIGNTY OF THE SEA

for wearing his flag in the narrow seas when he came
marry Queen Mary.1

Sometimes, however, the zeal of the naval officers led then
too far in their resolution to compel the salute. Thus in 161 c
when the Count of Gondomar, the Spanish ambassador, was re
turning to England accompanied by two galleons, an English
man-of-war forced the Spanish ships to take in their flags off
Stokes Bay. The ambassador complained to the Lord Admiral
(the Earl of Nottingham), who decided that the captain had ex-
ceeded his authority, for the Spaniards were not bound to
strike their flag unless to the admiral of the narrow seas,
and the captain was neither admiral of the narrow seas nor
employed under his commission. The rules or etiquette re-
garding this ceremony were indeed somewhat complicated,
occasionally changed, and not always well understood, and as
a good deal will be heard of the striking of the flag in the
following chapters, it may be well to say something here
about the practice. It appears that it was customary from a
remote period for merchant vessels to lower their sails on meeting
a ship of war in seas under the dominion of the state to which
the latter belonged,2 but the ceremony only attained to inter-
national notoriety in connection with the claims of England
to the sovereignty of the narrow seas. The practice varied
at different times. Generally speaking, by the custom of the
narrow seas as interpreted in this country, any foreign man-of-
war meeting with an English man-of-war in those seas had to
take in her flag and strike her top-sails as soon as she came
within sight or within range of the English guns, and she had
to keep in the flag until she had passed out of range,
merchant vessel had to strike in the same way. Further, n
vessel in the narrow seas was to pass to windward of a:
English ship of war, but must " come by the lee " ; the inf erio
had to make way for the superior.3 In an English port or

1 Monson's Naval Tracts, ibid., 222. The Spaniards to whom Monson refers
were no doubt the troops which Don Louis Fajardo had attempted to carry t
Flanders when he was attacked by the Dutch and took refuge in Dover. Monsoi
it may be said, was in receipt of a secret pension of £350 per annum from Spair
Gardiner, Hist., i. 215.

a Loccenius, De Jure Maritimo ct Navcdi, 48.

3 Thus in the Earl of Warwick's voyage, in 1627, four vessels "stood with thei
forefoot and very earnestly " tried to weather the king's ships off Falmouth, amon

JAMES I. I DISPUTES WITH THE DUTCH 207

road no foreign ship or English merchant vessel could wear her
flag in the presence of a king's ship. This custom was also
sometimes enforced in foreign ports and roads, but usually only
when out of range of forts on shore. If a foreign vessel,
whether man-of-war or merchant ship, did not thus "do her
duty " or " perform the homage of the sea," the English ship
of war might hail her or send a boat to command her to
strike. Or they might at once, without any parley, fire a shot
across her bows, and after an interval another, also across her
bows or over her poop, and if this was ineffective, then a third
between her masts or at her flag. If the foreigner still refused
to strike, a broadside was usually poured in, and the vessel
might be carried into port and the offender punished. In the
reign of Charles II., Spaniards, Dunkirkers, Frenchmen, and
other foreigners, were not infrequently brought before the
courts and fined for refusing to strike. If a merchant vessel
refused to strike until she was shot at, she was compelled to
pay to the king's ship twice the value of the gunpowder and
shot expended.

In England the custom, no doubt, originated in the Channel,
probably in the time of the early Angevin kings, when the
opposite coasts were under the same rule; and it is most
probable, as formerly said, that it arose in connection with the
exercise of jurisdiction over pirates and for securing peaceful
commerce. In early times the utmost lawlessness prevailed
on the sea : it would be a common duty of the king's ships to
satisfy themselves as to the character of the vessels they en-
countered, and the lowering of the sails and the coming under
the lee, for " visit and search," might well be a relic of a duty
enforced for that purpose. With regard to ships of war, the

them being a French man-of-war. The English then shot at the latter, and "sou
brought him by ye lee " (State Papers, Dam. , Ixxix. 17). In 1637 Captain Straddling
explained how he compelled Dutch vessels to take in their flags, lower their top-
sails, and "lie by the lee" (Ibid., ccclxi. 41). In the historic encounters with
the Dutch in 1652 the same rule was shown. When Captain Young met the
Dutchmen on 12th May (see p. 402), their admiral came under his lee and took
down his flag, but their vice-admiral, "contrary to navigation with us in the
iiiin-ow sea*, came to the windward of us" (French Occurrences, Brit. Mus., E,
66f>, 6). So also when Blake met Tromp, he " fired two shots thwart Tromp's
forefoot for him to strike his flag and bear down to leeward, and he taking no
notice of it, the general ordered the third shot at Tromp's flag, which went through
his main top-sails" (Brit. Mus. Add. MSS., 11,684, fol. 56).

208 THE SOVEREIGNTY OF THE SEA

ceremony appears to have been first confined to the Channel,
and was held to be peculiarly a privilege of the admiral of the
narrow seas. Thus, when Captain Plumleigh was appointed
admiral of a squadron for service in Ireland in 1632, he was
ordered by the Admiralty if he met " in any part of the narrow
seas with the Convertive, in which Captain Pennington com-
mands as admiral of those seas," to take in his flag, and to
"continue it furled whilst in sight of that ship, it being an
ancient honour and privilege belonging only to that admiral to
carry the flag in the maintop in those seas." l Monson also
tells us, in referring to the decision of the Lord High Admiral •
in Gondomar's case, above alluded to, that every ship of the
king's serving under an admiral could not demand the strik-
ing of the flag when out of sight of the admiral ; but the
foreign ship, " be he admiral or no, is to strike his top-sail and
hoist it again, to any one ship of the king's that shall meet
him." He further states that any foreign ship or fleet arriving
in an English port, or passing by a fort or castle, had to take
in their flag three times, and advance it again, unless the
English admiral's ship was in the same harbour, in which case
they were to keep it in so long as the admiral was present ;
"but if any other ship of his Majesty's be there but the
admiral's, they are not bound to keep in their flag, but only
to strike it thrice as aforesaid." Monson added that he wished,
in these later times (the reign of Charles I.), " that his Majesty's
ships would take more authority upon them than is due," in
order to curb the insolence of the French and the Hollander —
a wish which, as we shall see, must have been fully gratified.
It was against the Dutch that the striking of the flag was most
thoroughly enforced, and one cannot but admire the patience
and restraint they exhibited under great provocation. The
French and Swedes avoided giving the salute as much as they
could. As the century wore on, the English exaction on this
point grew more outrageous. Foreign ships of war were forced
to strike on their own coast even to our royal yachts, and the
Hollanders were asked to strike not merely in the British
seas, but wherever they were encountered. To the old
sea - dogs all seas were " British " where their fleets were
strongest.

1 The Lords of the Admiralty to Plumleigh. State Papers, Dom., clvii. fol. 121.

209

CHAPTER VI.

CHARLES I. FISHERIES AND RESERVED WATERS.

IT was during the reign of Charles, into whose hands the
sceptre passed in the spring of 1625, that the English preten-
sions to the sovereignty of the sea attained their most extrava-
gant proportions, — a circumstance which was owing in great
measure to the condition of domestic affairs and the king's
assumption of personal government. James had been content
to limit his assertion of sovereignty to the question of the
rights of fishing and the preservation of the " King's Chambers "
from the hostile acts of belligerents. But Charles, while
vigorously pursuing this policy so long as he was able, com-
bined with it the most extreme claims to dominion on the
neighbouring seas that had ever been put forward by an
English king. The sovereign rights of jurisdiction over the
" Sea of England " which were supposed to have been exercised
by the early Plantagenets, were now roused from the slumber
of centuries and revived in their most aggressive form. The
King of England was to be lord of the surrounding seas, and to
rule over them as a part of his territory. A beneficent and
universal peace was to reign over the waters of the German
Ocean and the Channel, unbroken by the sound of an angry
shot. No other fleets or men-of-war — be they Spanish, or
Dutch, or French — were to be allowed " to keep any guard "
there, to offer any violence, to take prize or booty, or to search
the merchant vessels of other nations. The blockade of the
opposite coasts of the Continent by an enemy's fleet, as that of
Flanders by the Dutch or French, was to be interdicted, because
those coasts were washed by the British seas and blockading
was a warlike operation. On the other hand the king was to

o

210

THE SOVEREIGNTY OF THE SEA

protect the commerce and navigation of his friends and allies
Foreign merchantmen might go on their way in security, undia
turbed by fears of pirates or enemies, for " all men trading o
sailing within those his Majesty's seas do justly take themselve
to be in pace Domini Regis" — under the peace of our Lord the
King. And as an external symbol and acknowledgment of
this absolute dominion, foreign vessels were " to perform their
duty and homage" on meeting his Majesty's ships by striking
their flag and lowering their top-sails. If they refused to do so,
they were to be attacked and taken or sunk ; the vessel was
liable to forfeiture as "good prize," and the offenders carried
into port to be tried for their high contempt. Moreover — and
it looks but a small thing by comparison, — no foreigners were
to be permitted to fish in British waters without first receiving
the king's license so to do, and paying to him a tax in acknow-
ledgment of the permission. In this way Charles hoped to r
store the sovereignty of the King of England in the Briti
seas — that " fairest flower of the imperial crown," as he describ
it — to " its ancient style and lustre."

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

CHARLES I. I FISHERIES AND RESERVED WATERS 211

It may be supposed that the splendour of the role attributed
to the early kings of England as lords of the sea, would by
itself appeal to the narrow imagination of one so deeply imbued
as Charles was with a belief in the divine prerogative of kings ;
and the dominion of the seas was claimed as peculiarly a pre-
rogative of the crown. But there were other more practical
and less exalted inducements. The assumption of the role of
the Plantagenet kings was intimately related to the state of
home affairs and the means taken for the equipment of a fleet.
Parliament having refused supply and been dissolved, recourse
was ultimately had to the famous ship-money writs, by which
it was possible to obtain the necessary ships independently of
Parliament, as had been done by the early kings. To declare
that these measures were indispensable for the maintenance of
the sovereignty of the sea in its ancient style and lustre was
well adapted to lessen their unpopularity, if anything could. It
was a declaration " exactly calculated for the meridian of
England," 1 for the English people in all ages have been prone
to maritime glory and willing and anxious to make sacrifices
for the sake of the navy, upon which their national safety
depends.

It was in connection with the policy of the ship-money writs
that the old doctrine of the Plantagenets came again into
being. In the writs themselves the very words were copied that
Edward III. had used in 1336 in his mandate to the admirals ;
but some years before they were issued one may trace the growth
of the idea. In the period from 1631 to 1633 there was much
searching of records with the view of establishing the king's
rights in his seas. Negotiations had been proceeding with Scot-
land, described below, with reference to a great fishery scheme,
and the Scots had been very troublesome and persistent about
their " reserved waters," which the scheme threatened, the " land-
kenning," and the encroachments of the Dutch. They only
agreed to give up their exclusive claim to the " reserved waters "
for the benefit of the fishery association, provided that Charles
would free the Scottish seas of the Hollander busses. In the
long series of papers respecting the fishery project, mostly pre-
pared by the indefatigable Secretary Coke, the change referred
to may be perceived. In those of 1629 and 1630 there is no

1 Meadows, Observations concerning the Dominion and Sovereignly of the Seas, 2.

212 THE SOVEREIGNTY OF THE SEA

suggestion of the sovereignty of the seas, but in 1631 instance!
become numerous. Coke claims the sea fishings as belonging t(
the crown ; he begins to speak of the king's " undoubted righ
of sovereignty in all the seas of his dominions," and plainly say
it will be necessary to exclude foreign fishermen from th<
British seas once the fishing society is a success. In the nex
year he goes further. He begins a long and formal document
— also on fisheries — in the following words: "The greatnesse
and glorie of this Kingdom of Great Britaine consisteth not
so much in the extent of his Majesty's territories by land, as
in the souerantie and command of the seas. This command"
is in peace over trade and fishing : and for warre in the power
of his Majesty's Navie to incounter the sea-forces of anie foren
prince." And he goes on to say that while Spain alone used
to oppose it, it was now opposed by France and the Low
Countries.1 Still more to the point were the words of
Charles himself. A few months after the fishery negotiations
with Scotland were concluded, he wrote to the Clerk-Register
in Edinburgh saying that, as the fishing business was now
completed, he was desirous that it should be known abroad
by his neighbours through some " public writing," and asking
him to search the records of the kingdom for authentic evi-

o

dence to show his rights to the fishings, and to send such
evidence to him.2

At this time also the English records were being subjected to
search and scrutiny with the same object, but for other reason
The "homage" of the flag was being hotly enforced in th
Channel and disputed by France. Pennington, the Admiral o
the Narrow Seas, reported cases in which the French demande
the salute from English merchant vessels, and rumours that i
was the intention of the French admirals to wrest the regalit
of those seas from England on the ground that the Pope ha
given it to France.3 This news caused Viscount Dorchester-
the Sir Dudley Carleton who had represented King James at Th
Hague, now a peer and Secretary of State — to write to Boswel
Clerk of the Privy Council (soon also to be ambassador at Th
Hague) for some information, however little, concerning th

1 State Papers, Dom., Chas. I. ccxxix. 79.

2 17th October 1632. The Earl of Stirling's Register of Royal Letters, ii. 627.
'A State Papers, Dom., cxcix. 51.

CHARLES I. : FISHERIES AND RESERVED WATERS 213

King's admiralty in the narrow seas. Boswell sent a few brief
notes of little relevancy about the jurisdiction of the admiral
and the Cinque Ports ; but he added the interesting information
that he believed Sir John Boroughs, the Keeper of the Records
in the Tower, was able to produce an " original " concerning the
first institution of " La Rool d'Oleron " by Edward I., in which
the sovereignty of the kings of England in those seas appeared.
This, said Boswell, was therefore before the kings of France
could pretend to any sovereignty there, having " neither right
nor possession of any part, or part of Britany, Normandy, or
Aquitaine." 1 This, then, was the famous roll of 26 Edward I.
now brought to light, or at least into use in the sphere of prac-
tical affairs. The discovery of Boroughs led Nicholas, the
Secretary of the Admiralty, to draw up a note about the roll,
"by which," he said, "it is apparent that in those tymes ye
soueraignty of those (Narrow) Seas was acknowledged by
those princes (of Denmark, Sweden, &c., as mentioned in the
roll): and justly, though no man can be said to have ye
property of the sea, because a man cannot say this water is
myne which runs, yet it is manifest that ye Kings of England
have and had ye soueraignty and jurisdiction of those seas ;
that is, power to give laws and redresse injuries done on the
same." 2

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

It was, however, as we have already hinted, in connection
with the fisheries that Charles's first actions were concerned.
He earnestly believed in the common opinion of the age that
sea fisheries formed a principal means of developing commerce
and navigation and maintaining a powerful navy, and early in
his reign, before the new idea of maritime sovereignty dawned
upon his mind, he did what he could to promote and foster
them. The old laws for the preservation of the spawn and
brood of fish, which had fallen into disuse, were put into force ;
proclamations appeared prohibiting wasteful fishing ; a vigorous

1 State Papers, Dom., cc. 5. 2 Ibid., ccviii. 27.

214 THE SOVEREIGNTY OF THE SEA

effort was made to suppress the use of injurious appliances;
the strict observance of Lent was repeatedly enjoined. But
what proved most attractive was the notion which had haunted
men's minds since the time of the Great Queen, and had always
eluded realisation. Charles became convinced that the forma-
tion of a grand national fishery association would wrest from
the Dutch their predominance in the fisheries, drive their busses
from our seas, and transfer to the English people the herring-
fishing, with all the blessings which flowed from it — commerce,
wealth, and maritime power. The last attempt which had been
made in this direction, in 1623, had, as we saw, signally failed,
the Lord Mayor and the opulent aldermen of London
"absolutely refusing" to have anything to do with it. The
scheme was now, however, to be launched by the king himself,
who undertook to favour it with important privileges and im-
munities, and intended at a suitable time to aid it by pro-
hibiting foreigners from fishing on the British coasts.

Shortly after Charles began to reign, the old proposals to
tax the Dutch were renewed. In 1626 a petition was presented
to the House of Commons praying that a duty of 10 per cent
might be laid upon all Dutch or foreign ships fishing in the
narrow seas; with what result the records are silent. Two
years later the proposal got a step further, for in 1628 a Bill was
drafted to empower the king to levy two shillings in the pound
on all herrings or fish exported in foreign vessels, and the tenth
of the fish taken by foreigners in the British seas, the revenue
so obtained to be employed for the king's use. The latter sug-
gestion looks almost satirical in view of the failure of the many
attempts of James to get revenue from that source, and in the
midst, too, of the squabbles then occurring between Charles and
the Parliament, which refused supplies and was abruptly pro-
rogued ; especially as the House " humbly beseeched " him, " in
recompense of the great sums which your Commons have thus
cheerfully granted," " yearly to provide and maintain a strong
fleet of able ships upon the Narrow Seas."1

The original plan of the new fishery association was drawn

1 State Papers, Dom., dxxiii. 74, dxxix. 73. The proposal to utilise the tenth
herring for maintaining a navy had been long before put forward by Dr Dee.
See p. 101.

CHARLES I. : FISHERIES AND RESERVED WATERS 215

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

With respect to the second head, the prospect of obtaining
markets for the produce, Coke said that English fishermen did
not catch above 2000 lasts of herrings in a year, of which not
more than 1000 lasts were consumed in England;1 and he

1 The other half were exported as red-herrings.

216 THE SOVEREIGNTY OF THE SEA

calculated that the ten busses would catch another thousand
lasts, which he thought might be mostly exported to Prussia
and along the German coast. The first step in carrying out
the scheme was to form a company to raise a capital ol
about £11,000 or £12,000, and a committee was appointee
for the purpose.1

Coke's scheme, which, like all the others, was based upon
close imitation of the Dutch system, met with great favour
from the king and the court. Further consideration, moreover,
led the promoters to believe that the success of the enterprise
would be increased if operations were also undertaken at the.
Lewes instead of being confined to the east coast, and various
schemes were propounded with this end in view. The sug-
gestion appears to have emanated from Captain John Mason,
and it was made at a time when the island was a bone of con-
tention between the royal burghs of Scotland and the Earl of
Seaf orth, who had obtained from the king a charter to " erect "
Stornoway into a royal burgh.2 The burghs strenuously
resisted the confirmation of this charter and refused to give
effect to it, all the more since Seaforth had settled at Storno-
way a number of Dutch people who were engaged in the
fisheries there. From an interesting report by a Captain John
Dymes, who visited Lewis in 1630 at the request of certain
members of the Privy Council, and apparently in the interest of
the proposed fishery society, we learn that the Dutch had been
fishing there with great success. Their four busses, each with
twenty-five nets and a crew of sixteen men, caught 300 lasts
of herrings in three months, which were sold at Dantzic for 400
guilders or about £38 a last, which Dymes calculated would total
£11,400, showing, after charges had been met, a gain for the

1 State Papers, Dom., 1629, clii. 57.

2 Mason, who was intimately associated with the fishery scheme, proposed that
the island should be purchased by a company of naturalised Scotsmen, and fishing
stations established ; and later he recommended the purchase of the island by the
king, leaving complete freedom of fishery to all Scotsmen. Sir William Monson
urged that a "government" should be established in the island as well as in
Orkney and Shetland, and also a principal town ; and that the children of the
islanders should be taught English, and "correspondence" between the inhabit-
ants and the Highlanders hindered, "considering the danger of their too great
friendship." State Papers, Dom., 1629, clii. 66, 67, 68. The subject of the Earl
of Seaforth 's lease and the fishings is dealt with by Mackenzie, History of the Outer
Hebrides, 290 et seq-

CHARLES I. : FISHERIES AND RESERVED WATERS 217

three months' work of £7500.1 The Scottish burghs protested
against the introduction of the Hollanders, which they said
would ruin the whole trade and navigation of the kingdom and
completely destroy the native fisheries. They petitioned the
Privy Council to restrain strangers from resorting to the North
and West Isles, pointing out that from the numbers of the
Hollanders, their numerous ships and great commerce, they
would draw the whole trade of the country into their hands,
as they had done everywhere they had gone ; and in a petition
to the king they accused them of " great oppressions " in the
Isles and on the coasts of the kingdom, and declared that by a
" pretendit libertie obtenit of his father " they were " the over-
throwes of the haill fischeing of this cuntry." 2

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

1 State Papers, Dom., clii. 63, 71 ; clxxx. 97. Dymes' report is printed in full
by Mackenzie (op. cit., 591). The master of one of the Dutch busses, who trans-
ported Dymes from Lewis to the mainland, told him that the herrings were in
such great abundance that they were sometimes constrained to cast them into
the sea again, they having more in half their nets than they were able to save,
" and he was of opinion that if there had bene a thousand Busses more there was
fish enough for them all."

- Rec. Convent. Roy. Burghs Scot., iii. 257, 259, 291. The arguments against the
Dutch were elaborated in a long document, which concluded thus : " Lastly, theis
Netherlanders greatnes, strength, wealth, arts, and every happines doe originally
proceede from their fishing in his Majesty's seas of England, Scotland, and Ireland."

218 THE SOVEREIGNTY OF THE SEA

with a stock of £6743, 6s. 8d. a clear profit of £18,270 might
be earned in one year.

This alluring prospect was no doubt encouraging to Coke
and his friends ; but he learned from Hay some further infor-
mation which must have been disquieting. He was told
that the Scottish people would not permit any foreigners
to fish within twenty-eight miles of their coast, or within
the lochs, the fishings there being reserved for the natives;
that by the laws of Scotland any stranger found fishing
within these limits was liable to confiscation of goods and
loss of life, citing as an example the story of the barbarous
treatment by James V. of the Dutch fishermen who had
transgressed the "reserved waters" by fishing in the Firth
of Forth.1 This point about the reserved waters was indeed
the main difficulty which soon confronted the fishery scheme.
To be successful, the fishing must be carried on along the
Scottish coast and at the Isles, for it was there the great
shoals of herrings resorted, but the objections of the Scottish
Parliament, Council, and burghs had first to be overcome.2

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

1 P. 77.

2 State Papers, Dom., clii. 63 ; clxv. 201 ; clxxx. 100. Rec. Conv. Roy. Buryhs,
iii. 300 et seq.

CHARLES I. I FISHERIES AND RESERVED WATERS 219

"instructions" 011 the subject by his Secretary for Scotland,
Sir William Alexander.1

In his instructions the king, after a preamble reciting the
abundance of fish on our coasts, the benefit which was reaped
by strangers, " to the great disparagement and prejudice "
of his loving subjects, declared his "firm resolution" to set
up a "commoun fishing to be a nurserie of seamen and to
increase the shipping and trade in all parts of his dominions,"
and added — what must have been unwelcome news to the
Scottish burghs and people — that as it was to be a " common
benefit " to all the three kingdoms, so it could not be " dividedly
enjoyed" by any one nation in particular. The Council were
enjoined to take the matter into serious consideration, and
to give their advice and assistance in bringing it to a success-
ful issue ; and as it was necessary to raise a " great stock "
from adventurers, who would not be drawn into the scheme
except by hope of great and immediate gains, an estimate
of the outlays and profits was submitted to the Council, show-
ing that 200 busses would earn a clear profit of £165,414
in a single year, after paying all costs.2

1 A eta Parl. Scot., v. 2206. Captain John Mason, who was afterwards appointed
"Admiral" of the busses belonging to the society, was apparently originally in-
tended to lay the matter before the Council. The draft, in Coke's handwriting,
is entitled, " Instructions for Captain John Mason employed by his Majesty to
treat with the Lordes of the Privie Council of Scotland about the erection of a
general fishing," and is among the State Papers, Dom., clxxx. 101.

- Acta Parl. Scot., v. 221. This ambitious scheme included the building of 200
busses of from 30 to 50 tons each, "for a considerable beginning," besides the em-
ployment of the fishing vessels already engaged on the coast which were of suit-
able size. These were computed to number about 100 in Scotland and 200 in
England (employed at Newfoundland and the north seas), while at least 300
" coasters " from Berwick to the Thames might also be made available ; and it
\vas suggested that more might be built by the company "in every town," or
bought from the Dutch. It was estimated that the cost of building and equipping
the 200 busses, including casks, salt, wages, &c., would be £222,586, and that the
total return the first year would amount to £388,000, made up as follows :
(1) summer herring fishing, 20,000 lasts at £10, equal to £200,000; (2) winter
herring fishing, 12,000 lasts at £12, equal to £144,000 ; (3) cod and ling fishing
in spring, 1,200,000 fish at £30 a thousand, and 600 tuns of oil at £13, 6s. 8d.,
equal to £44,000. Several calculations were made about this time as to the cost
of equipping herring-busses, the profits to be derived from their use, and the loss
I" the realm by the transport of cured fish by the Dutch ; Monson put the latter
!'».- at £621,750 per annum. State Papers, Dom., clii. 70, clxxx. 99, ccvi. 52;
MS*. Advoc. Lib., 31. 2. 16 ; Brit. Mus. Sloane MSS., 26. The latter is a " Discourse
on the Hollanders' Trade of Fishing," by Sir Robert Mansel, of the usual type.

220 THE SOVEREIGNTY OF THE SEA

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

The king's proposals were brought before the Scottish
Parliament on 29th July 1630, and remitted to a large com-
mittee to report upon them.1 They were ill - received in
Scotland. The free burghs in particular opposed the scheme
with great energy. They had brought about the withdrawal
of the charter obtained by the Earl of Seaforth, and were
negotiating among themselves for the formation of a company
to carry on the fishing at the Lewes and establish a free
burgh there. But the charter of the Highland Earl was
a small thing to the scheme of the king. They saw in it
an invasion of their special rights and privileges in trading
and fish-curing, which had been conferred on them and con-
firmed by many Acts of Parliament, not merely at the Lewes
but throughout the country. The "reserved waters," more-

1 Acta Parl. Scot., v. 225. The committee consisted of fifteen peers, several
bishops, and a large number of commoners. Mason, who had accompanied Sir
William Alexander to Scotland, reported to Coke that the Council gathered in
the Lord Chancellor's chamber, " he lying sick of the gout," to hear the king's
letter read, and that Mr John Hay " violently opposed " the scheme and attacked
the Earl of Seaforth for bringing in the Hollanders. State Papers, Dom., clxxii. 19.

CHARLES I. : FISHERIES AND RESERVED WATERS 221

over, sacredly preserved for the industry and sustenance of
their own people, were to be thrown open to Englishmen
and Irish, whereby the nation would suffer greatly.1

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

Meantime a smaller committee which had been appointed

1 At this time the herring-fishing on the west coast of Scotland, which began
on 1st July and continued till Christmas, employed from 800 to 1500 fishing-
boats of from 5 to 6 tons each, besides about 200 "cooper" boats of about
12 tons, which carried casks and salt and brought back cured herrings to the
burghs : about 6000 " seamen " were employed in this industry. The herring-
fishing on the east coast was for the most part carried on at Dunbar — as many
as 20,000 people sometimes congregating there — and in the deep water where the
Dutch fished in July, August, and September. There was also an important
winter fishing for herrings in the Firth of Forth in November, and at the North
Isles from 1st October till Christmas. The "keeling" or cod-fishing at the mouth
of the Clyde in February, March, and April employed about 120 of the largest
boats ; on the east coast this method of fishing was carried on from 1st April till
24th June.

222

THE SOVEREIGNTY OF THE SEA

by Parliament, no doubt under the inspiration of the opposi-
tion of the burghs, reported against the association with
England in the fishings. Such a course, they said, would
be "verie inconvenient to the estait; and tuiching the land
fishing, whilk consists in fishing within loches and yles and
twenty aucht myles frome the land, and whilk is proper to
the natives, and whairof they have been in continuall posses-
sioun and neuer interrupted thairin be the Hollanders," — a
statement inconsistent with the frequent complaints made
by the burghs in the reign of James. The burghs, they
said, were able and content to undertake the "said land
fishing " by themselves, without " communicating " therein with
any other nation ; and as for the buss - fishing, to which the
king's proposals specially referred, they stated that the season
for it that year was passed, and that as it was a matter of
great importance, it required time for consideration. The
burghs reported to Parliament in the same sense.1

Thus Charles, in endeavouring to carry out his laudable
desire to create a great national fishery to oust the Hollander
from his seas, had suddenly raised against him a Scottish
claim of mare clausum, which he found very provoking.
Not only did the Scottish Parliament declare that a great
extent of the sea around Scotland pertained exclusively to
the natives so far as concerned fishing, but they coupled
this with the request that the king should exclude foreigners
from fishing within that area. It must be said that, apart al-

1 Acta Part. Scot., v. 226. Rec. Conv. Roy. Burghs, iii. 322, 323. The
Earl of Seaforth, writing to the Earl of Carlisle on August 17th, said that the
Lord Chancellor and the Lord Treasurer had left no argument unuttered which
might induce their countrymen, and especially the burghs, to concur in the king's
desire about the fishing. The burghs would not admit any association either with
countrymen or strangers; "they like not," he said, "that noblemen or gentry
.-should understand matters of industry," and they would do what they could to
move the king to delay. State Papers, Dom., clxxii. 78. In another account of
the proceedings of the Convention, it is said the burghs claimed as "absolutely
theirs " the fishing within bays and lochs, and at sea for a distance of " two
kennings" from the shore, and stated that they would admit no partners, either
natives or strangers ; that buss-fishing was distinguished by them to be " without
two kennings from the land"; and they would not "on any condition" allow
.any busses to participate in the " land fishing" within two kennings, or to land at
all, but only to "make" their fish (cure them) on shipboard, as the "Flemings"
did. It is added that those who would have hazarded some means in the project
•were " absolutely discouraged " by the attitude of the burghs. Ibid., ccvi. 45.

CHARLES I. : FISHERIES AND RESERVED WATERS 223

together from the unwritten law as to the "reserved" waters
pertaining to Scotland, the Scottish people had some ground
of complaint against the king for his sudden proposal to
open up the whole of their seas and lochs to the English ;
for it was well known that in the Draft Treaty of Union
which James had caused to be prepared in 1604, and which
would also have conferred important privileges on Scotland
in matters of trade, words had been inserted reserving to
each nation the fishings within all lochs, firths, and bays
within land and up to a distance of fourteen miles from
the coast. This treaty was drawn up by commissioners ap-
pointed by the respective Parliaments, the most active of
whom w,ere Secretary Lord Cecil (afterwards Earl of Salis-
bury) and the illustrious Sir Francis (afterwards Lord) Bacon
on the English side, and Lord President Fyvie and Sir Thomas
Hamilton (later Earls of Dunfermline and Haddington) on
the part of the Scots. It was signed by thirty -nine of the
forty-four English and by twenty-eight of the thirty Scottish
commissioners ; it was approved by the king and adopted
by the Scottish Parliament, and it was thus an instrument
of high authority with respect to the delimitation of the
waters of exclusive fishing. The clause in the treaty deal-
ing with freedom of commerce contained the reservation
referred to, which was as follows : " Exceptand also and
reserveand to Scottishmen thair trade of fisheing within
thair loches, ffirthis, and bayis within land, and in the seas
within fourtene mylis of the costis of the realme of Scotland,
wheir nather Englishmen nor ony stranger or forinaris haue
use to fishe, and soe reciprocally in the point of fisheing on
the behalfe of England."

Unfortunately, the treaty was never ratified by the English
Parliament, and therefore did not come into force. But
the objection of the English members was not in the least
degree founded upon the reservation of fishing rights,
but upon the nationalisation clauses, which caused them •
to dread the influx of an army of "hungry Scots" into
England, Scotsmen being at the time very unpopular in
London.1

1 Acta Parl. Scot., iv. 369. Statutes of the Realm, 1 Jac. I., c. 2. Reg. Privy
Counc. Scot., vi. Nat. MSS. of Scot., Hi. No. 85. State Papers, Dom., 1604, x.

224 THE SOVEREIGNTY OF THE SEA

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

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

The reply of the English commissioners was somewhat vague

No. 1. It is unfortunate that the reasonable delimitation of the territorial fishing
waters proposed in the treaty was not carried out, for there can be little doubt
that had it been it would have become recognised by other nations, and would
have continued to the present day.

CHARLES I. I FISHERIES AND RESERVED WATERS 225

and general. It was, however, made clear that the king's
intention was that every member, or "brother," of the com-
pany should be free to fish " in places near and remote, where
common fishing is, or may be, used by any of his people,"
this "mutual participation being the bond of union and sole
means to recover his Majesty's right and power at sea, and
to enrich all his subjects, and those chiefly where the great-
est fishings are." On the other points they said, in effect,
that the king would do what was best.

A letter from the king to the Parliament was also read,
expressing his desire that the business should be advanced,
as it would be " a worke of great consequence for the generall
good of our whole kingdome, and more particularlie for the
benefite of that our ancient kingdome" by the improvement
of its trade and shipping. So anxious was Charles for the
success of his enterprise, that he added a postscript in his
own hand, in which he said : " This is a worke of so great
good to both my kingdomes that I have thought good by
these few lynes of my owne hand seriouslie to recommend
it unto yow. The furthering or hindering of whiche will
ather oblige me or disoblige me more then anie one busi-
ness that hes happened in my tyme." He also sent a letter
to the burghs to mollify them, saying that it was in no
ways intended that they should be wronged in their ancient
privileges or benefits ; and he requested Parliament to appoint
•commissioners charged with absolute powers to settle the
matter with the English commissioners, so that there should
not be undue delay.1

The Parliament thereupon appointed commissioners, on llth
November 1630, to treat with those of England.2 Nomin-
ally they were given full powers to treat, but their instructions,
dated 23rd December, were so detailed and remarkable that it
must have been obvious to every one that rapid progress was
not intended. Nothing was to be done prejudicial or deroga-
tory to the liberties and privileges of the kingdom, the crown,

1 Acta Parl. Scot., v. 228, 230. The Earl of Stirling's Register of Royal Letters,
ii. 478.

2 The commissioners were the Earl of Morton (Lord High Treasurer), the Earl
of Monteith (President of the Privy Council), the Marquis of Hamilton, the Earls
•of Roxburgh and Carrick, Sir William Alexander, Mr John Hay, and Mr George
Fletcher.

P

226 THE SOVEREIGNTY OF THE SEA

or the laws of Scotland ; special care was to be taken that the
natives of Scotland were to be preferred in the choice of th«
best places for establishing "magazines" for the fishery, anc
that the places appointed for the English should be such as
would not prejudice the "land fishing" of the Scotch; the
Scottish members of the association were to have the same
privileges and immunities, with power to erect magazines, in
England and Ireland ; English members who settled in Scot-
land were to be debarred from fishing in the reserved waters,
or from buying fish from the natives, except for their own
sustenance, as well as from any trade or commerce, unless for
the same purpose ; they were to be prohibited from importing
or exporting commodities except fishes taken by their own
vessels, and they were to pay customs and other duties for th
fish they cured in Scotland and exported — and many other con
ditions were laid down which showed how little the Parliamen
had been moved by the personal appeal of the king.1

With respect to the fundamental question, the limits of th
territorial seas pertaining to Scotland, the demands of the
Parliament went much further than any previous claim. The
old principle of division by the mid-line, which was held by
some lawyers in the reign of Elizabeth, was now put for-
ward. The commissioners were instructed to take care that a
clause was inserted in the treaty to make it clear, "that the
seas foreanent the coasts of this kingdome and about the Yles
thairof and all that is interjected betuix thame and that mid-
lyne in the seas whilk is equallie distant and divyding frome
the opposite land, ar the Scotish Seas properlie belonging to'
the crowne of Scotland, and that the English hes no right nor
libertie to fishe thairin, nor in no part thairof, bot be vertew oi
the association and not otherwayes." But while these were
the Scottish seas ideally regarded, English members of the

1 Among other things, the commissioners were instructed to represent to the
king the prejudice which Scotland sustained by the use of the name " Great
Britain " in the royal patents, writs, and records relating to Scotland, for, they
reminded him, " there was no union as yet with England " ; and Charles was to be
requested to renew his seals under the terms Carolus Dei gratia Scotice, Anglice,
Francice, et Hibernice Rex. It must be remembered that at this time the Scottish
aristocracy were smarting under the defeat which the king had recently inflicted on
them in connection with the Act of Revocation, by which most of the church
property in the hands of laymen was re-annexed to the crown.

CHARLES I. : FISHERIES AND RESERVED WATERS 227

association were to be permitted to fish in them, except in the
waters which were reserved to the Scottish people in the Draft
Treaty of Union of 1604 — namely, bays, firths, and lochs within
land, and a belt of fourteen miles along the coast. These waters
were to be strictly preserved for the native fishermen.1

The instructions which the burghs gave to their representa-
tive, Mr John Hay, although less ample, were equally to the
point. He was to agree to the proposal for the establishment
of an English settlement at the Lewes, provided they did not
fish in the reserved waters, and had no magazines or settle-
ments in any of the other West or North Isles, or north of
Buchan Ness or Cromarty, and not at Aberdeen if they wished
any south of Buchan Ness ; and the burghs were also to have
the right to establish colonies at the Lewes. In " retribution,"
as they said, for these privileges to be granted to the English
in Scotland, they required the " liberty " of the pilchard-fishing
in England and Ireland, with equal privileges regarding it.
The king was also to remove the "Flemings" from the Isles,
and to prohibit them and all other strangers from fishing
within a " land-kenning " (that is, within a distance at which
the land was visible from the sea), and power was to be con-
ferred upon the burghs, with the assistance of the Sheriffs and
other officers to prevent their fishing nearer. " Hamburgers,
Bremeners," and all other strangers, were also to be removed
furth of Shetland, Orkney, Caithness, and other places.2

A week or two before the Scottish commissioners were
selected, Charles issued a commission appointing Lord Weston
(High Treasurer of England), the Earl of Arundel and Surrey
(Earl Marshal), the Earl of Pembroke (Lord Chamberlain), the
Earl of Suffolk (Lord Warden of the Cinque Ports), and eight
others as commissioners on behalf of England and Ireland.3
His object, he said, was to establish a "common" fishing, both
to be a nursery of seamen and for the increase of navigation,

1 Acta Parl. Scot., v. 232.

2 Rec. Conv. Roy. Burghs, iii. 325. The foreigners from Hamburg aiid Bremen
were chiefly engaged in trade and barter.

3 Fcedera, xix. 211. State Papers, Dom., clxxxvii. 46. The commission was
dated 8th December 1630, and the other commissioners were the Earls of
Salisbury, Dorset, and Carlisle, Viscounts Wimbledon and Wentworth, Sir John
Coke, Sir Francis Cottingham, and Sir William Alexander, who was Secretary for
Scotland.

228 THE SOVEREIGNTY OF THE SEA

and " to make the store of fish of all kinds, being a necessary
food for the people on fish-days, to be had at reasonable prices
and the overplus thereof to be a principal addition to the stapl
commodities of our kingdom for the increase of trade." Ir
order that this common fishing might be extended and freely
exercised in "all places by his subjects of each of the three
kingdoms," he appointed them " with full power and authority
to confer severally and jointly, and to consider, treat, propose,
determine and conclude what they concurrently found fit and
expedient for the ordering, establishing, and advancing of the
said common fishing." Power was also given to them to call
for any of the records in the Tower or elsewhere which might
bear upon their labours.

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

" Vpon the east side of Scotland, f rome Sanct Tabsheid [St Abb's
Head] in the shiredom of Beruick directlie north to the Keidhead in
Angus whiche comprehends the coast of the Merce, Lothiane, the
Firth, Fyfe and ane part of the coast of Angus, and 14 myles without
the course frome the said Sanct Tabsheid to the Reidheid. Frome
the Keidhead north north-east alongs the coast of Angus, Mern
Mar and Buchan to Buchannesse, northwards and be north to Dun

CHARLES I. : FISHERIES AND RESERVED WATERS 229

beyheid [Duncansby Head] in Caithnes, comprehending thairin the
coast of Bamf and Murrey upon the south side, Murrey firth and the
coast of Kosse, Sutherland and ane part of Caithnes vpon the north,
and fourtene myles without the course frome the said Buchannesse to
the said Dungisbiehead, and frome the same Dungsbie in Caithnes
west alongs the coast of Caithnes and Strathnauer to Farrayheid in
Stranauer [Cape Wrath], and fourteine myles aff the said coast, with
fourtene myles round about the yles of Orkney and Yetland. Frome
the Farrayheid alongs the coast of Stranauer to the head of Stoir of
Assint [Stoir Head] and 14 myles aff the said coast, and frome the
said heid of Stoir Assint directlie west north-west to the eastmost
point of the yle of the Lewes, comprehending thairin the haill seas
interjected betuixt the said heid of Stoir of Assint and eastmost point
of the said yle of the Lewes, with all the yles and loches within the
same, and 14 myles without the course frome the said heid of the
Stoir of Assint to the said east point of the Lewes ; frome the said
eastmost point of the Lewes south about the haill yles of the Lewes
to the westmost part of Barra, and 1 4 myles without the samine ;
frome the said westmost part of Barra n-west, south, south-east to
southmost part of the yle of Yla [Islay], frome the said southmost
part of yla south-east to the mull of Kintyre, frome the said mull of
Kintyre n-west, south-east, to the mull of Gallouay : Whiche bounds
frome the said heid of Stoir Assint west north-west to the eastmost
point of the Lewes and frome thence south to Bara be Yla, and mull
of Kintyre to the mull of Gallouay, comprehends the haill west yles
and loches within the samine with the loches vpon the mayne of
Stranauer, Tarbet, Lochaber, Kintyre, Argyle, Renfrew, Cuninghame,
Kyle, Carrick, Gallouay, Quhithorne ; alongs the coast of Gallouay
eastward to Solloway [Solway] sands and 14 myles aff the said coast.
Quhilk bounds above designed being so necessar both for the haill
lieges living vpon the saids coasts and yles, as if these sould be ex-
hausted be strangers of fishes, they sould be depryved of all benefite
of living and so be tyme bring ane vtter desolatioun vpon the land,
as lykeways so necessar for ws of the borrowes [burghs] as without
the said fishing the most part of our inhabitants sould be brought to
extreem miserie. Quhairfoir we of the burrowes doe humbelie beseeke
your Lordships to recommend the bounds abone designed to the saids
commissioners in suche maner as they give not way that strangers be
permitted to fishe within the saids bounds vpon anie conditioune." l

1 Ada Part. Scot., v. 235. Rec. Conv. Roy. Burghs, iv. 526. State Papers,
Lorn., clxxxviii. 72. In the record of the burghs the distance from the shore on
the east coast, at the Orkneys and Shetlands, and on the north coast, is given as
forty miles ; but as the original records of the Convention between 1631 and 1649
were lost, and that printed is from an abstract prepared in 1700, it appears that an
error was made in the transcribing.

230 THE SOVEREIGNTY OF THE SEA

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

When this report from the burghs was submitted to the Privy
Council, they professed to find it " to be of too large an extent " ;
and they therefore, as they said, "out of their desire to his
Majesty's contentment and for the advancement of the great
work," proceeded to " retrench and restrict the universality of
the exceptions" made by the burghs. The true spirit of the
Council was, however, shown by the fact that their alternative
scheme was practically the same. They rearranged the de-
scription of the lines at the Orkneys and Shetlands without
diminishing the extent of the enclosed sea, and they carried the
boundary down the east instead of the west side of the Hebrides,
and so on to Islay. They thus reduced the area of the waters
proposed to be reserved by omitting only the strip of fourteen
miles to the west of the Hebrides. The Council declared that
they had reserved an area of fourteen miles off such coasts as
were well peopled, and where the inhabitants lived mostly by
fishing, and could not possibly subsist and pay their rents and
duties without it. They also stated that if a buss-fishing had
been established in Scotland,1 the fishing would have been
reserved for the use and benefit of the country people, "see
ing it cannot be qualified that ever any Hollanders or othe
strangers fished in these waters."

In transmitting the two schemes to the commissioners ii
London, on 31st April 1631, the Council observed that at firs
the burghs had " stood very punctually " on the instructions a
first issued to the commissioners, saying there was no need ix
particularise the reserved waters, since they had been include*
in the Act of Union, but that they had been persuaded tx
abandon this attitude and condescend to particulars. If thii
was not a stroke of Scotch humour, it would indicate that th<

1 The Duke of Lennox had some time before this proposed the formation of i
fishery society for the purpose.

Fig- 9- — Showing the limits of the "Reserved Waters" claimed by Scotland.

232 THE SOVEREIGNTY OF THE SEA

measurement of the fourteen miles mentioned in the Draft
Treaty was to be understood as expressed in the report of the
burghs.1

This kind of zeal for the " great work " on the part of
the Scottish Council and burghs was naturally displeasing to
the king and the English commissioners. Coke fumed at the
obstacles raised by the Scottish commissioners against the
realisation of his pet scheme. They disclaim not the name of
association, he said, but they decline the only way of establish-
ing it ; we propound a government, and they say their laws are
against it ; we desire freedom to fish in all places where, by his
Majesty's license, it may be lawfully granted to us, and they
reply by the " reserved waters," which " would leave no more
scope to the company than strangers now enjoy." Nay, they
even propound a further limitation, and request that bounds
may now be set to the seas of England and Scotland ; " which
debates," he adds, "tending to division, we labour to avoid."
At this time the minds of English statesmen had not yet become
saturated with lofty ideas of the king's sovereign prerogative
in his seas, and Coke did not then, as he did a little later, make
use of high arguments of that kind. But he believed that the
opposition of Scotland would be prejudicial to the scheme, and
that further negotiations would be vain ; and he proposed that
an English company should be formed without waiting for the
concurrence of Scotland.2 But Charles was more patient. In
June he again sent Sir William Alexander, the Secretary for
Scotland, to Edinburgh, and despatched a letter to the burghs
assuring them that he would be careful to preserve their
privileges and liberties, and another to the Privy Council in
which he expressed his astonishment that they had reserved so
many places, and likewise " fyftene myles [sic] within the sea
distant frome everie shoarr, where it would seeme expedient

1 Acta Parl. Scot., v. 236. The Act referred to was passed in 1607 by the
Scottish Parliament, but it was to be inoperative until a corresponding Act was
passed by the Parliament of England, which was not done.

2 State Papers, Dom., cxci. 7. Memorandum, dated llth May 1631, by Secretary
Coke, on " Matters in difference betwixt the English and Scottish Commissioners
concerning the fishing." From this paper it appears that the Scottish com-
missioners made the most of points relating to naturalisation ; they objected to the
natives being employed as fishermen by the association, and they would say nothing
about the proportion of busses that might be set forth in Scotland.

CHARLES I. I FISHERIES AND RESERVED WATERS 233

that these of the association for this generall fishing, as they
have libertie to land in any place, paying the ordinarie dewteis,
sould lykewayes be free to fish where ever they ar to passe."
He plainly told the Council that while he was willing to reserve
for the natives all such fishings without which they could not
well subsist, and which they of themselves " have and doe f ullie
fishe," he would not allow anything to be reserved which might
hinder the general work which was so important for all the
kingdoms ; and he enjoined them to give their best attention to
everything that would conduce to the accomplishment of his
desire. In a later letter to the President of the Council, Charles
expressed his fears that if the places proposed were reserved
the great business of the fishing would be put in hazard.1 On
receipt of the king's letter, the Council, on 28th July, summoned
before them the representatives of the burghs, who on being
asked if they were yet resolved on their answer, said they were
not ; they were thereupon requested to consider the matter and
to report at the meeting on 21st September.

The resolute attitude of the king was not without its effect.
The burghs now modified their demands, but they still declared
that it was necessary to reserve the " Firth of Lothian " within
a line between St Abb's Head and Red Head ; the Moray Firth
within a line between Buchan Ness and Duncansby Head ; the
Firth of Clyde between the Mulls of Galloway and Cantyre,
and also the waters within fourteen miles along the coast
between Red Head and Buchan Ness. They further desired
that a space of fourteen miles outside the boundary lines of the
Firths should be reserved, but on this point they stated their
willingness to submit themselves to the king.2

The modified proposals of the burghs were submitted to the
Privy Council on 22nd September by certain noblemen, gentry,
and commissioners of the burghs, and an additional reason for
reserving the fourteen miles along the coast between Red Head
and Buchan Ness was now brought forward. If this space were
opened to buss-fishing, it would, they said, ruin the salmon-fish-

1 Stirling Letters, ii. 538, 544. Acta Part. Scot., v. 236. Charles, it will be
observed, mentions 15 miles. The miles stated in the Scottish documents were
Scots miles of 5929'5 imperial feet, 10 Scots miles being equal to nearly 11J
imperial miles ; the extent of the reserved waters was therefore very nearly 15f
imperial miles (1572).

2 Sec. Conv. Roy. Burghs, iv. 534.

234 THE SOVEREIGNTY OF THE SEA

ings of the Dee, Don, Ythan, and the two Esks, " to the great
prejudice of the whole kingdom." The question of the reserved
waters at the Isles and on the west coast had not been dealt
with by the burghs, and the Council asked them to report on
these. The burghs thereupon modified their original demands,
specifying certain places that should be reserved, where the
fishings had been continually carried on by Scottish fishermen
and merchants, who were able, they said, to undertake and fish
the same " to the full," and within which no stranger had ever
been admitted to fish. These places were as follows : (1) all
lochs on the mainland between Farryhead (Cape Wrath) and
the Kyle, together with Loch Hourn on the south side of Kyle ;

(2) the east side of Lewes, Uist, Barra, and " Muggersland "
(? Mull), and the lochs of the same, together with the Broad
Loch and the " Bybleheid " on the north-east part of the Lewes ;

(3) " Lochusherd " (? Loch Eishort) in Skye ; (4) between the
islands and the mainland, from " Farayhead " to the north-east
point of Lewis, and for fourteen miles without the line between
them it was " absolutely necessary," for the good of the fishings
in the lochs above mentioned, that no buss-fishing should be
permitted. All the salmon-fishings were to be wholly reserved
for the natives, and the burghs expressed the wish that fourteen
miles around the Orkneys and Shetlands should also be reserved,
but they referred this to the king. The question of the remain-
ing lochs on the mainland between the Kyle and the Mull of
Cantyre, and of the waters on the " backside " of Lewis, Uist,
Barra, " Muggersland," and Skye, except those previously men-
tioned, was to be "remitted" to the king's consideration.1

The Council forwarded these propositions to London, and
the burghs instructed their own commissioner in a like sense,
but with an important qualification as to the Hollanders fish-
ing on the coast of Scotland. The king was to be informed
of the great oppressions and wrongs suffered by his subjects
from the encroachment of the Dutch on the seas and coasts of
the kingdom, at Shetland and Orkney, and lately at the Lewes.
If these encroachments were allowed to continue, the burghs
declared that the rich fishings would be made quite unprofit-
able, and they appealed to the king " to free the seas of Scot-
land and the Isles of the busses of the said Northlands (Nether-.

1 Acta Part. Scot., v. 238.

CHARLES I. I FISHERIES AND RESERVED WATERS 235

lands)," and of other strangers, from Hamburg and Bremen,
resorting to Orkney and Shetland. At the very least, they
said, he ought to free the seas of the Dutch busses or fishing-
boats "for the space of twenty-eight or fourteen miles, and
to discharge them to have any fishing near the coasts of the
said mainland or isles." If the king would do this, the burghs
promised to further to the utmost of their power " his Majesty's
most royal work of fishing," to supply the proportional number
of busses that might fall to their part, and to consent that
liberty should be granted to Englishmen and Irishmen to fish in
all the waters around Scotland, except the Firths of Lothian,
Moray, and Clyde, and those reserved for salmon-fishing ; but
they would only agree to this on the condition stated and not
otherwise. They also asked that the buss-fishing should not
be allowed at the Lewes, that it should begin on the east coast
on 24th June and the fishing at the Isles on 1st September,
and that they should receive equal liberty to fish in the seas
of England and Ireland for pilchards and white fish.1

In the debates between the Scottish and English commis-
sioners in London, at most of which the king was present,2
Coke exerted himself to reconcile the differences that existed.
He adroitly pointed out that, as the complaints from Scotland
showed, strangers now possessed their fishings, and said they
would be able to oust them only by degrees and by making
the most of the natural advantages on the sea which both
nations had. And while claiming that all the fisheries in the
British seas (and even in America) belonged to the crown,
and that there could not therefore be, strictly considered, any
right to "reserve" certain of them, still the king, by the
undoubted right of sovereignty he had in all his seas, had
power to give license of fishing within them, either to subjects
or foreigners as he might think fit, and by his royal prerogative
alone he could establish the proposed company "whereby all
his subjects which are brethren thereof may enjoy that fishing
by right which strangers have by usurpation in our seas.3 By
this time the Scottish commissioners were becoming reconciled

1 Rec. Conv. Roy. Burghs, iv. 534, 535.

"Whereat we ourselff for the most part were present," — king to Council,
15th July 1632. Stirling Letters, ii. 604.
3 State Papers, Dom., ccvi. 46.

236 THE SOVEREIGNTY OF THE SEA

to the proposal of forming the society on very much the
original plan, and their opposition, perhaps partly from the
presence of Charles at the conferences, was beginning to give
way. They had been told, too, in answer to some of their
objections, that while it was the king's intention to maintain
existing rights, all their liberties depended wholly upon the
king's grace, and he had expressed his purpose that his Council
in both kingdoms should advise them in anything that required
further consideration. It was much to be desired, they were
told, that his Majesty's clear intentions should prevail with
them as they had done with the English commissioners, not
to question, but to advance and settle so needful a work.1

Charles himself came forward to help them with an alter-
native plan to that of the "reserved waters." The ground
upon which the claim to the latter was based had gradually
shifted. The initial argument that the surrounding seas per-
tained to Scotland as an independent kingdom — that they
were the "seas of Scotland" — had been disposed of by the
declaration that the right to the sea and to its fisheries was
a prerogative of the crown ; and it could not be denied that
though no union of the kingdoms had taken place, there
certainly had been union of the crowns. The question of the
prerogative was a thorny one, which the Scottish commissioners
had to avoid; and the claim to the reserved waters was now
made solely on behalf of the poor inhabitants of certain parts
of the coast, who subsisted mainly by their fishing in the sea,
and would, it was said, be reduced to poverty and indigence
unless these waters were reserved for their exclusive use. To
meet this objection, Coke proposed a resolution at one of the
meetings that the king should be asked to lay down a regula-
tion to guard against interference with the poor fishermen at
the places where the fishing of the company would be carried
on, and at the next meeting a draft in the king's handwriting,
perhaps laid on the table by Charles himself, was read as
follows : " The English commissioners desire to take away
all showes of wordes that may show diffidence between the
two nations, and hauing heard that the Scots commissioners
are to desire some places to be reserved from the company or
association, it is conceived this to be the fitter way : — That

1 State Papers, Dom. , ccvi. 50.

CHARLES I. I FISHERIES AND RESERVED WATERS 237

instead of those reservations, that the association should
appoint the same fishermen that now fishe in them, [so that
they] may continue as particular company of the said associa-
tion, and to be subject [to] the law of the same, and are willing
that no others should fish in those places, [unless] it be found
upon examination that those places may admit more fishermen
than those that now fish in them, and in that case the great
committee of the association shall add such to them as they
shall think fit, desiring them always to remember that the said
committee is compounded equally of both nations." l The king's
proposition was in keeping with the intention of Coke, " to bring
all private fishing vessels under the company," and though
it was obviously impracticable, it furnished a plausible argu-
ment against the claim to reserved waters.

After further conferences a number of articles were agreed
to : That an association should be established, with no joint-
stock except that received from those who voluntarily joined
the undertaking ; that a standing committee of the two nations
in equal numbers should be formed, some of whom were to be
appointed, also equally from both nations, to judge of contro-
versies amongst the busses according to regulations to be made,
with the right of appeal to the standing committee. Two hun-
dred busses were " propounded " for the first year ; " whereof,"
said the Scots commissioners, " wee gott to advise what number
we would undertake, but our answer was never yet sought;
always we intend, God willing, to sett out 100 busses." The
main point, in regard to the reserved waters or fishing-places,
was left for the king's consideration. Finally, the king was
to be asked to give order for drawing up the charter of
association.2

In July 1632 Charles was able to announce that the dif-
ficulties were overcome and the negotiations completed, to his
''great contentment," and with the mutual consent of both
parties. Desirous of removing as soon as possible the causes
of the complaints which had been made by the burghs, he
wrote to the Privy Council at Edinburgh about the great
wrongs done by the Dutch inhabiting the Lewes and fishing

1 State Papers, Dom., cciii. 53, 54, 19th November 1631. The draft appears to
have been prepared and altered entirely by the king himself.

2 State Papers, Dom., ccxxix. 78, 83, 87, 89.

238 THE SOVEREIGNTY OF THE SEA

there "against the laws of that our kingdom," instructing
them to put in force a decree which had been previously
issued at the request of the burghs, to prevent all strangers
from trading or fishing there or at Shetland.1 He also re-
quested the Council to prohibit unseasonable fishing for
herrings at Ballantrae Bank near the mouth of the Clyde,
which, he had been informed, was very injurious to the herring
fisheries on the west coast of Scotland, the Isles, and the
neighbouring coast of Ireland, by destroying the fry of herrings
at unseasonable times, which, he was informed, if they were
spared, might produce such plenty in all these coasts as might
very much advance the intended work of fishing. At the same
time he declared that it was necessary to establish settlements
for the fishings at the Isles, and the Council were asked to
take sureties from the landlords of the Isles, and of the lochs
of the mainland, against violations or oppressions on those of
the association engaged in fishing there, and from exacting
any duties or impositions from them. The Council was also
invited to take into serious consideration the Act of the
Scottish Parliament " of 4 James IV." respecting the building
of busses by the noblemen, and to use their best means to put
it into execution.2 The nobility and gentry of Scotland were
apparently expected to build forty busses for fishing on both
coasts, at an estimated cost of £10,960 ; and in addition to
equip them with nets, salt, casks, and victuals.3

On the all-important question of the reserved waters the
king did not grant the " irreducible minimum " of the burghs.

1 The king to the Council, 15th July 1632. Stirling Letters, ii. 605, 606, 617
Acta Part. Scot., v. 245.

2 The Act specified by the king was passed in 1491, but he seems rather to have
been referring to the Act 6 James III., c. 48. " That Lordes, Barrones and Burrowes
gar make Schippes, Busches, and greate Pinck-boates with Nettes," which was
passed in 1471, "for the common good of the realm and the great increase of
riches," to be brought from other countries in exchange for fish exported. The Act
of James IV., " Anent the makeing of Schippes and Busches on the quhilk all Idle
Men suld Laboure," was an early attempt to carry out the policy advocated by
English writers in the sixteenth, seventeenth, and eighteenth centuries. It enacted
that ships and busses, not under twenty tons burden, should be built in all the
burghs and towns of Scotland, provided with mariners and nets : and power was
given to compel " idle men " to man them.

3 State Papers, Dom., ccvi. 47. "What is required from the Lords and Gentry
of Scotland towards the fishing."

CHARLES I. : FISHERIES AND RESERVED WATERS 239

The condition which the burghs attached to their surrender
of everything except the three great Firths, that is, the ex-
clusion of the Hollanders from fishing on the coasts of Scot-
land, was in the meantime nominally met by the instructions
to the Council mentioned above. In two or three years, as
we shall see, when his naval power was greater, he would
attempt to carry out their desire in quite a forcible and
dramatic way. Charles would not concede the Moray Firth
as an exclusive preserve for the Scottish fishermen, but he
gave up to them the Firth of Lothian within a straight line
from St Abb's Head to Red Head in Forfarshire, and also the
Firth of Clyde within a line drawn between the Mulls of
Galloway and Cantyre ; because, as he said, the inhabitants of
the coasts of these parts were chiefly maintained by the fishing
within them and could not well subsist otherwise. These
waters were therefore to be reserved to Scottish fishermen,,
"according to ancient custom."1

Everything having been arranged to the king's satisfaction,
he issued a commission providing for the establishment of a
Fishery Society under the great seal of both kingdoms, which
was approved by the Scottish Parliament on 7th September
1632.2 The Society was to consist of twelve councillors ap-
pointed by the king, six of them to be English or Irish and
six to be Scots,3 and also a " commonalty " composed of a large
number of noblemen and other persons. They were em-
powered to appoint officers, to make laws, and to punish
transgressions. In every "province" of the kingdom and in
the towns most convenient, "judges" were to be elected by the
resident members to settle disputes and make regulations.
The members, their servants and fishermen, were favoured by
certain immunities and privileges ; they and their vessels were
exempt from impressment for the king's service and relieved

1 Acta Parl. Scot., v. 236.

2 State Papers, Dom., ccxxi. 1 ; Acta Parl. Scot., v. 239.

3 The councillors nominated by Charles were, for England and Ireland, Lord
Weston, the High Treasurer (created Earl of Portland in February of the
following year), the Earl of Arundel, the Earl of Pembroke, Viscount Savage,
Lord Cottingham, and Secretary Coke ; for Scotland, the Earl of Morton, the
High Treasurer, the Earl of Stratherne and Monteith, President of the Privy
Council, the Earl of Roxburgh, Viscount Stirling, Mr John Hay, and Mr George
Fletcher.

240 THE SOVEREIGNTY OF THE SEA

of certain civil obligations. They were to be free to fish for
sea-fish wherever they pleased " within his Majesty's seas " and
dominions, and at the isles pertaining thereto, as well as in
the "lochs, creeks, bays and estuaries" wherever herrings or
sea-fish were or might be taken, except in such creeks or firths
as might be reserved in a proclamation of the king. On the
trading side of the enterprise, they were to be at liberty to
carry the fish to any place within the kingdom, " as well with-
in free burghs as without them," to salt, dry, and barrel them,
to erect the necessary buildings and magazines, and to dispose
of the fish as they thought best, within the realm, or to export
them either in their own vessels or in others. Other clauses
prohibited any person not a member of the Society from ex-
porting, or causing to be exported, abroad any sea-fish taken
within, or brought within, his Majesty's dominions. Charles
and his advisers aimed at no less a thing than to bring the
whole of the sea fisheries and fish-curing industries of the
country, as well as the foreign exports, under the control of
the Council of the Society. The whole business was then to
be organised and developed in such a manner that the Dutch
fishermen would be driven from the British seas, and the nation
to which they belonged deprived of the commanding position
which, it was believed, their fisheries had been the chief means
of conferring.

But the patience and perseverance of Charles in wearing out
the opposition of Scotland to his scheme, and in giving it the
semblance of a national design, were most inadequately re-
warded. Like almost everything to which he put his hand,
the fishery association failed miserably. The Scottish burghs
promised to equip sixty busses for the fishing in the following
year, but in point of fact the Scottish people took scarcely any
part in the operations of the Society. The London merchants,
canvassed personally by Sir Thomas Roe and appealed to by
Pembroke, also held aloof. They gave "fair answers," but
kept their money. The subscriptions, or stock, came almost
exclusively from persons about the Court, from naval officers
and others desirous of preferment. The first meeting of the
Council was called for 24th January, but so few members
attended that the meeting had to be adjourned until 19th
February, when it took place in the Star Chamber. Oaths

CHARLES I. : FISHERIES AND RESERVED WATERS 241

were administered, two silver seals were ordered (and never
paid for) at a cost of £12, and Captain John Mason was
made "Admiral of their fleet" of busses. Differences of
opinion soon arose in the Council, and the Society split up
into two branches or associations, one under Weston (now Earl
of Portland), — that " man of big looks and of a mean and abject
spirit," as Clarendon describes him, — and after his death, under
the Earl of Arundel ; the other branch under the Earl of Pem-
broke, the Lord Chamberlain, who appears to have been almost
the only one, besides the king and Coke, who took a sincere
.personal interest in the Society. Portland's society had its
headquarters at Lewis, while Pembroke's was more particularly
designed to carry on operations at Shetland and the east coast,
but also had a station in the Lewes. The total amount of the
subscriptions to the Society up to 3rd February 1636 was
£22,682, 10s., of which only £9914, 10s. was paid up, and the
company had been forced to borrow £3550 at interest to set the
scheme afloat. The stock of Portland's association amounted
altogether to £16,975 up to and including the year 1637, while
the losses in the same period reached £21,071, 5s. 7d.

Ground was acquired and houses and magazines for salt and
casks erected at the Lewes,1 and several busses were purchased
in Holland by both associations, ready for fishing and manned
entirely by Dutchmen. Agents despatched to Shetland and
Lewis sent favourable reports of the prospects. " We hope,"
said the one at Lewis, "to furnish London with some plenty
against the hard times of winter " ; yet the total quantity of
herrings cured at the island in that the first year of the
Society's fishing was only 386 lasts, and the price obtained
for them was so low that the loss amounted to £4261. This,
according to the agents, was due to want of proper means of
curing them (salt, casks, hoops, &c.), otherwise they said they
might have obtained 1000 lasts or more. A great effort

1 Martin, who visited the Hebrides about the year 1695, saw the foundation of a
house, which, the natives told him, had been built by the Society as a store for salt
and casks, on Hermetra, a small island in the Sound of Harris ; and he saw a
similar relic on a small island called Vacksay, in Loch Maddy. He was informed
by the natives that " in the memory of some yet alive," as many as 400 sail had
been loaded with herrings in Loch Maddy in one season : at the time of his visit
the fishing had been abandoned, though herrings were plentiful. A Description of
ttie Wetterne Islands of Scotland, pp. 51, 54, 55.

Q

242

THE SOVEREIGNTY OF THE SEA

was therefore put forth in the following year. Preparations
were made to deal with 1500 lasts, and vessels were chartered
to carry them from Stornoway to various Continental markets.
But less than 443 lasts were cured in the second year; some
were sent to Dantzic and fetched "mean prices," the rest
reached London " when Lent was wellnigh over," and were
sent on to Dunkirk and Dantzic, the vessels coming back in
ballast, and the loss in this year was £8163, 19s. 4d.x In this
way the operations of the Society went on. The herrings then
failed to come into the lochs, and the Society turned its at-
tention to the salting and exportation of beef, salmon, cod,
and coal-fish, — a course fraught with less disastrous financial
results, but not well calculated to carry out the objects for
which it was founded.

Ill-fortune was encountered in other directions. Both th
islanders and the Scots from the east coast treated the Englis
adventurers badly. The Bishop of the Isles and the herito
insisted on their tithes and dues in spite of the king's charter.
The busses were attacked by bands of Highlanders, armed with
"swords and bows and arrows and other warlike weapons,"
who took various articles from them in lieu of dues. The
Lowlanders, under the leadership of "one Thomas Lindsay, a
fisherman of Crail," who pretended to be the deputy to th
deputy of the Vice-Admiral of Scotland, were still less con
siderate. Lindsay " villified " their certificates, declared tha
King Charles had nothing to do with the Lewes, and vow
that "he would be the death of every Englishman on th
island." He forcibly seized one of the vessels laden wit

1 Simon Smith, who was latterly Secretary to Pembroke's association, afterwarde
stated that the Society had attained to the proper cure of herrings, and was likelj
to have been ultimately successful. This opinion was not shared by Dutch writer
The author of The True Interest and Political Maxims of the Republic of Hollai
published under the name of De Witt, says the herrings the Society sent to Dantzic
in 1637 and 1638, though caught at the same time and place as the Hollander
herrings, were "esteemed naught to the very last barrel" ; and a contemporar
author, Meynert Semeyns, a skipper of Enkhuisen, in a work written in 1639 (Een
corte beschryvinge over de Haring-visscherye in Hollandt), says the same thing.
"The Dutch," he boasted, "catch more herrings and prepare them better than
any other nation ever will ; and the Lord has, by means of the herring, made
Holland an exchange and staple-market for the whole of Europe." No other
nation, he added, ever tried the industry but to their loss, and the example adduced
was the Society's herrings sent to Dantzic.

CHARLES I. : FISHERIES AND RESERVED WATERS 243

herrings which had gone ashore, on the ground that it was
wreck, and wreck belonged to the Admiral of Scotland, and
committed other hostile actions. The grievances of the Society
became so acute, and redress from the Privy Council and the
Admiralty Court so tardy and imperfect, that Charles in May
1635 appointed a commission, consisting of Archbishop Laud,
the Earl of Pembroke, Sir Thomas Edmonds, and Secretaries
Coke and Windebank, as judges, according to the charter, to
deal with cases as they thought fit.

Disasters at sea were even more injurious to the Society
than the troubles ashore. Again and again the busses were
taken by Dunkirk privateers, who threw the crews into prison
and held them for ransom. When those freebooters came
across a Dutch-built buss, with a Dutch crew on board, they
did not quite see why they should relinquish it because they
were told it belonged to an English society ; and the letters
of " denization " which were provided by the king did not
avail them much.1 Notwithstanding strong protests, prolonged
negotiations with the Cardinal Infanta, and reprisals made by
English men-of-war on Dunkirk shipping, the Society suffered
great loss in this way.

The misfortunes of the Society caused many of those who
had promised subscriptions to withhold them. Then followed
drastic measures : summonses before the Star Chamber, warrants
for apprehension, threats of imprisonment, and most of the
subscriptions were squeezed from the unwilling adventurers.
On the other hand, creditors sued the Society for goods supplied
and money lent ; seamen sued it for wages ; even the clerks had
to petition the king for theirs, appropriately suggesting that
they might be paid from the license-money that Northumber-
land's fleet had extorted from the Dutch herring-busses.2 As

1 In August and September 1633, before the Council had met (busses having
been purchased on the strength of subscriptions promised), two busses were taken
by Dutch men-of-war and one by a Dunkirker. The former captures were doubt-
less made because the Dutch fishermen were acting contrary to the fishery laws of
the United Provinces in taking service with aliens, and they were promptly dis-
avowed by the States-General and the busses restored. The Dunkirkers made
pri/.e of some of the busses (there were ten or twelve of them) almost every year :
one, the Salisbury, was taken twice, and in 1639 four were captured. Spain was
then at war with the United Provinces, and the Dutch buss was a natural prey of
the Dunkirk privateer.

2 P. 309.

244 THE SOVEREIGNTY OF THE SEA

Charles's domestic troubles thickened and his power on the sea
began to wane, Pembroke and his associates became more and
more importunate for help. Petitions were conveyed to him
and then " remonstrances." He was pointedly reminded that he
was the originator and " Protector " of the Society ; unless he
" really " helped them the work must stop. But Charles was
then unable either to compel the restitution of the captured
busses or to induce his subjects to subscribe to the Society's
funds. He did what he could. Pennington and the Warden of
the Cinque Ports were ordered to seize Dunkirk ships to be sold
for the benefit of the Society ; he granted them a standing lot-
tery, and issued a proclamation enjoining the strict observance
of Lent, which might possibly help them by increasing the con-
sumption of fish, and could at least do them no harm. Almost
his last act in connection with the fishery association was to
issue an Order in Council in which, somewhat irritably, he
blamed the Dutch for the failure, and remitted to an influential
committee to consider some means by which the fishery in the
north seas might be " advanced and settled," and particularly
whether the Dutch should not be deprived of English lampreyi
for bait, which were necessary for their cod-fishing.1 It was
a great fall for Charles as Lord of the Seas, with a policy as
sketched at the beginning of this chapter, to use the lamprey
of the Thames as a weapon against the Dutch rather than

1 State Papers, Dom., ccccxxix. 48. Order of the King in Council, 29th September
1639. " Taking into consideration of what great importance it is and may be to the
good of this kingdom to plant, increase and cherish the fishery in the North seas,
and understanding that the Dutch, who reap an annual great benefit thereby, have
and do not only privately underhand, but too manifestly also oppose the endeavours
of his Majesty's good subjects, who have of late years employed their industry tha
way," it was ordered that the Lord Treasurer, the Earl Marshal, the Lord Admiral
the Lord Chamberlain, the Earl of Dorset, and one of the Secretaries of State,
calling to their aid Sir Henry Marten (Judge of the Court of Admiralty), shoul
forthwith "consult and advise what fitting course may be taken to advance anu
settle the said fishery, and particularly to consider whether it may not be fit to
debar the exportation of lampreys, without which the Dutch cannot well, as is
informed, continue their fishing for cod and ling, until his Majesty's subjects be
quietly settled in the herring fishing." The Dutch obtained their lampreys for
bait almost exclusively from England, and chiefly from the Thames. The above
account of the proceedings of the Fishery Society is summarised (for the most
part) from numerous State Papers. It was stated by Simon Smith, who was
latterly Secretary to Pembroke's association, that £10,000 was lost through the
Dunkirkers.

CHARLES I. ! FISHERIES AND RESERVED WATERS 245

powerful armada. But by this time his power at sea had
vanished. The Dutch lorded it in the Channel.

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

246

CHAPTER VII.
CHARLES i. — continued. THE NAVY.

Charles had resolved to assert his claims to the sover-
eignty of the sea by force if necessary, it was obviously essen
tial that he should have a strong and capable fleet. Durin
the peaceful reign of James the navy had greatly deteriorate
from what it had been under Queen Elizabeth.1 The expeditio
to Cadiz in 1625, and that to Ehe* two years later, reveal
startling inefficiency and disorganisation, and efforts were soo:
made to bring it into a better state. When he assumed th
crown, his fleet consisted of thirty ships ; in 1633 it numbere
fifty, including the ten small vessels called the " Lion's Whelps " ;
and when the Civil War broke out there were forty -two, the
difference being due to the shedding of the smaller ones.2

There were many reasons why a strong fleet should be pro-
vided, apart from any question of enforcing a new political
sovereignty over the North Sea and the Channel. The mari-
time strength of the United Provinces was growing quickly,
and France, under the wise and energetic guidance of Richelie
was rapidly becoming a formidable naval power. Within th
space of about five years before 1631, as Charles knew, th
Cardinal had created a fleet of thirty-nine ships, of whic
eighteen were of 500 tons or over, and no less than twenty
seven had been built in French ports.3 These two states wer
drawing closer together, and while it was known that thei
alliance, which was then mooted and was soon realised, woul

1 Oppenheim, A History of the Administration of the Royal Navy, i. 21J
217, 221.

2 Ibid. ; Hannay, A Short History of the Royal

3 Oppenheim, op. cit., 265.

CHARLES I. : THE NAVY 247

chiefly directed against Spain, it was nevertheless a danger
to England unless she was strong enough to defend her rights
on the sea.

Other reasons were the insecurity of the seas from the prev-
alence of piracy, and the violation of the " King's Chambers,"
and even of English ports, by the Dunkirkers and the Dutch.
Moorish pirates swarmed in the Channel and made havoc
amongst English shipping. So bold and successful were they,
that in 1631 they seized and sacked Baltimore, on the coast of
Munster, and carried off over 200 English subjects into slavery.
Within a space of ten days they captured twenty-seven ships
and 200 men.1 The Dunkirkers played a corresponding r6le in
the North Sea. In a petition to the king in 1627, the ship-
owners of Ipswich complained that within a year the Dun-
kirkers had captured five of their ships, valued with their
cargoes at £5000, and carried the crews to Dunkirk. No ship,
they said, could go to sea, and the livelihood of seafaring men
was taken from them, and the king's service would thus suffer.
The Mayor and burgesses of King's Lynn put the losses of the
town at twenty-five ships, worth £9000, and complained that
they were unable to carry on the Iceland fishery. The Cinque
Ports also complained that the Dunkirkers had taken their
goods, imprisoned their mariners, and rifled and sunk their
ships on the English shore ; and they asked for a guard to
enable them to go to the fishing in the north and at Scar-
borough and Yarmouth. The alarm was general all along the
coast. In February 1629 the bailiffs of Yarmouth reported
that the sea was overrun with Dunkirkers, who had even rifled
and fired one of their ships close under the cliffs at Mundesley,
notwithstanding the efforts of the sheriff and posse of the
county ; they said 250 fishing vessels were ready to go to the
northern fishing and awaited convoy. In the next year they
and other towns of Norfolk and Suffolk stated their intention
of sending out two fishing fleets of " ships, barks, and crayers,"
— one of 160 sail to Iceland and Westmony, and the other of
230 sail for the north seas, — and they begged for ships of war to
guard them, as the livelihood or " utter ruin " of 10,000 people
and their families depended on these fleets. Two years later
they repeated their request to the Admiralty, saying they
1 Oppenheim, op. cit., 275.

248 THE SOVEREIGNTY OF THE SEA

usually sent out a fleet of about 300 sail, with 5000 persons, to
the fishings mentioned, but the fishermen were now so terrified
by the Dunkirkers that they refused to go. The Mayor of
Newcastle also informed the Council that they had been
despoiled to the extent of £7000 ; he said there were 300 sail
in port which dared not venture out; and the Council were
asked to take means to secure safe passage on the sea. At
this time there were said to be forty Dunkirk privateers
scouring the North Sea, many of them with English sailors on
board.1 We have already seen how successfully these free-
booters preyed upon the busses of the Fishery Society.

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

1 State Papers, Pom., Ivi. 66; Ixi. 81; Ixx. 8, 9; liv. 56; xc. 70, 119; clxii.
82, 45.

CHARLES I. : THE NAVY 249

to get an Order in Council to compel them.1 Provision of
a guard for the east coast generally was attempted by levy-
ing a duty of two and five shillings a ton on all coal laden
at Newcastle or Sunderland for English and foreign ports
respectively.2

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

1 State Papers, Dom., lix. 79; xci. 30, 45; xcii. 62; xciii. 82; xcv. 39;
clxiii. 65 ; clxxx. 94. In 1630 a Yarmouth fisherman, owner of one of the
Iceland smacks under convoy, petitioned the Council for relief from the pay-
ment of the twenty shillings, on the grounds that before the Order was made
he had paid £5 for the assurance of his boat during that season to the assur-
ance office in London, and that three boats belonging to him had been previously
taken by Dunkirkers.

2 Oppenheim, op. cit., 276.

250 THE SOVEREIGNTY OF THE SEA

her off, the crew escaping to shore, where they were promptly
arrested and lodged in Yarmouth jail.

A still more outrageous transgression of the neutrality of
an English port took place in the following year, at the
very time that Lindsey's fleet was cruising in the Channel.
A Dunkirker brought a Hollander buss into Scarborough
harbour, and she was followed by a States' man - of - war,
which opened fire, and a fight both with cannon and
muskets took place. The bullets, flying into the town, hit
several of the citizens, and some strangers on the sands
were also hurt, "to the amazement and discouragement of
the whole town." Twelve Dunkirkers were slain, and the
rest only saved themselves by swimming ashore, while the
man-of-war went off with both the privateer and the buss.
A fortnight later another privateer was chased into the
harbour by a Hollander man-of-war, which' landed three or
four score of men, armed with muskets and pikes, to set
upon the Dunkirkers when the ship lay dry ; and the Dutch
captain only consented to re-embark them, on condition that
the bailiffs of the town would themselves place a guard
of fifty men to watch the privateer, so as to prevent any
of the crew escaping.1

This glaring outrage on English soil caused the Council
to arrest a Dutch rnan-of-war, to be held until the one
that had committed the misdeed should be delivered up ;
for, said Windebank, it was a matter that concerned the
king himself in point of honour and the safety of the
kingdom, as an act of hostility, "little less than an inva-
sion," had been committed in landing armed men on his
Majesty's territories, "violating his imperial chamber anc
threatening his subjects." Nevertheless, in the next moiitl
a like offence was committed at Blyth, when a Dutch man
of-war not only attacked a Dunkirk privateer lying in the
harbour, but landed fifty men armed with muskets, who
marched in military order nearly half a mile, "to the great
terror of the inhabitants," and by seizing the fishing -boa
captured the Dunkirker and took her away. Not only
but thirty of the Hollanders, armed, and with trumpets,
pursued the crew of the privateer on land for a distance of

1 State Papers, Dom., cclxviii. 31, 88 ; cclxiv. fol. 20a ; ccxciii. 107 ; ccxciv. 46.

CHARLES I. : THE NAVY 251

two miles.1 There was a natural excuse for the violence of
the Hollanders in these proceedings. They were exasper-
ated by the immense havoc which the privateers had just
committed on their herring - busses, by sinking or burning
over 100 of them, the remainder of the fishing fleet escap-
ing into Scottish and English harbours.2

This insecurity of the sea and the open and daring viola-
tion of English ports remind one of the conditions that too
frequently prevailed in earlier centuries. The misdeeds must
have been galling to Charles, for only a short time before
.he had issued a public proclamation with the object of put-
ting a stop to them. In February 1633 Sir H. Marten,
Judge of the High Court of Admiralty, along with the
Attorney-General, had been instructed, in view of the war
between Spain and the United Provinces, to draw up a
regulation whereby " his Majesty's ancient rights, honours,
and sovereignty in the narrow seas and in the chambers
and ports may be preserved, and the trade of the king-
dom of England and Ireland secured."3 In this regulation
(which is printed in Appendix H) a claim to absolute dominion
>ver the Four Seas was made. The king spoke of "that
sovereignty and especial and peculiar interest and property
which he and his predecessors, time out of mind, have had
and enjoyed in the said seas, and so approved not only by
the fundamental laws of this his kingdom, but by the acknow-
ledgment and assent of the bordering princes and nations,
as appeareth by undoubted records" — language which seems
like an echo of Selden's Mare Clausum. Moreover, in
referring to the limits of the " King's Chambers," he contin-
ued : " Albeit his Majesty doth justly challenge sovereignty
and property in all those his seas, far beyond the limits
hereafter to be described, and might with like justice require

1 State Papers, Dom., ccxciii. 107; ccxciv. 46; ccxcv. 31, 69, 71; cclxiv.
fol. 164. Many of the crew of the man-of-war were English, Scottish, or
Irish. It was probably owing in part to the considerable numbers of British
subjects serving on the Dutch men-of-war that they were always favoured by
the country people.

'. 2 Ibid., ccxcvi. 5, 14, 30. Joachimi to States-General, 2,6aAuf', Brit. Mus. Add.

MSS., 17,677, 0, fol. 380.
3 Brit. Mus. Add. MSS., 30,221, fol. 436.

252 THE SOVEREIGNTY OF THE SEA

from all persons using those his seas a forbearance from
injuries and all hostile actions, yet (in and through all the
same) suddenly to tie the hands of his friends and allies
in open hostility each with other, is not for some reasons
held convenient at this time," and therefore he would cause
the bounds to be laid down within which he would yield
peace and security to his friends and neighbours.1

Clearly, however, something more than a proclamation
was required to ensure the security of the seas and the
neutrality of the chambers and ports. As early as 1627
official proposals had been made to build thirty ships of
a small class to guard the narrow seas, which might com-
pete in swiftness with the privateers and freebooters infest-
ing them, — a plan that was partly carried out by the building
of the ten "Lion's Whelps," which, however, proved complete
failures. An estimate was also procured for building eighteen
ships and two pinnaces, at a cost of about £43,000, the
estimated expense of the crews being £6100 per month.2
Various other schemes were considered, including one to
form a fleet of forty armed Newcastle colliers, to be employed
primarily in convoying the coal ships, but capable of being
called off at any time for the king's service. The want
of money was the great obstacle to the formation of a
strong fleet. The wages of the seamen and others employed
were always in arrear, — at the end of 1627 the arrears
amounted to £251,361, — and the victualling and furnishing
of the ships afloat were of the worst possible description.3
The necessity of a fleet to maintain the dominion of the
sea and defend the coasts was being constantly urged upon
the king. The Attorney - General, Heath, in 1632, called
attention to the truism that our strength and safety lay
" in our walls, which is our shipping," and he strongly recom-
mended that a powerful fleet should be maintained because
of the boldness of the Hollanders, and in order to preserve

1 Reglement for Preventing Abuses in and about the Narrow Seas and Ports,
March 1633. State Papers, Dom., cclx. 127, 128; cclxxix. 18. Brit. Mus. Add.
MSS., 30,221, fol. 44 (Pepys' collections). Copies exist in State Papers, Dom.,
vol. 515, Nos. 38, 39 (1647), extracted from Admiralty Book, Liber E, and in State
Papers, Dom., Jas. I., vol. 11, No. 40 (1604), wrongly calendered (see p. 119).

2 Ibid., liv. 9, 33. 3 Oppenheim, op. cit.

CHARLES I. : THE NAVY

253

the king's prerogative in the fisheries in the British seas,
as well as to secure the mastery of the narrow seas.1

Charles required no spur in a matter the importance of
which he thoroughly understood, and he had private and
personal reasons for wishing that a strong force should be
placed on the sea. It was the family policy as to the
restoration of the Palatinate that chiefly guided him. At
the end of 1633 he entered into negotiations with Spain
for an alliance against the Dutch, and in the following year
secret treaty was drafted and sent to Madrid (four days
jfore the issue of the first ship - money writs) in which
Charles undertook to provide a fleet, partly at the charge
)f the King of Spain, who was to advance a sum of £50,000
id help to recover the Palatinate for his nephew.2 It was
itended that the fleet should co-operate with the Spaniards
gainst the United Provinces ; the ports of Flanders were
be freed from the blockade maintained by the Dutch,
id Spanish vessels carrying soldiers and money for Dun-
;irk were to be protected by English ships; the mastery
the Dutch at sea was to be destroyed, the Republic
ras to be attacked and overthrown, and the country divided
stween the allies. The open avowal of such a policy
rould have been equivalent to making it almost impossible,.
)r an alliance with Catholic Spain against the Protestant
^public was in the highest degree unpopular in England,,
id the fleet, moreover, was to be created by means of the
lip -money writs. The negotiations had been carried on
dth the greatest secrecy ; only three members of the Council
'ortland, Cottington, and Windebank) were in the king's
mfidence, the others remaining in ignorance. It was thus,
lecessary to deceive them as well as the nation as to the
Dbject of equipping a fleet. The insecurity of the seas from
le prevalence of piracy and the violations of English
raters, referred to above, were put forward among the-
stensible reasons to justify it. "The pretext of this arm-
ig," it was distinctly stated in 1634, "shall be to secure
the coasts of Great Britain and Ireland, and to free them
3m pirates and others that commit hostilities and insol-

1 State Papers, Dom., Ixxxvi. 73, 75 ; ccxxix. 102.

2 Gardiner, Hist., vii. 349 et seq.

254 THE SOVEREIGNTY OF THE SEA

encies there."1 To deceive the people by fears of invasion,
owing to the "great preparations both by sea and land of
the neighbouring princes," orders were given to have the
beacons along the coast examined; to muster and make
ready the trained bands to join their colours at an hour's
warning; to enrol all untrained men between the ages of
sixteen and sixty, so that levies of them might be made
"on any sudden occasion."2

Another reason put prominently forward to cloak the
nefarious scheme was the need of maintaining the ancient
sovereignty of the sea. While the Spanish negotiations were
proceeding, Boroughs, as we shall see, had finished his treatise
on the rights of the crown in the adjoining seas, and Selden
was busy with his Mare Clausum. The language of the
ship-money writs, sent out in October 1634, and the charge
of Lord Coventry to the Judges, breathed the same spirit as
these treatises. In the writs, which were founded upon ex-
tracts made by Boroughs from records of the times of Edward
L, II., and III.,3 the king described how " thieves, pirates, and
robbers of the sea" were "taking by force and spoiling the
ships and goods and merchandises, not only of our subjects,
but also of the subjects of our friends in the sea which hath
been accustomed anciently to be defended by the English
nation," delivering the men into miserable captivity. The
pirates, he said, were daily preparing all manner of shipping
further to molest the merchants, unless a remedy was applied,
and that in view also of the dangers menacing the realm " in
these times of war," it was necessary to hasten the defence
of the sea and kingdom. Therefore, he continued, " We willing
by the help of God chiefly to provide for the defence of the
kingdom, safeguard of the sea, security of our subjects, safe
conduct of ships and merchandises to our kingdom of Eng-
land coming, and from the same kingdom to foreign parts
passing; forasmuch as we and our progenitors, Kings of Eng-
land, have been always heretofore masters of the aforesaid
sea, and it would be very irksome unto us if that princely
honour in our time should be lost or in anything diminished,"
it was necessary for the sea -coast towns to furnish ships or

1 Gardiner, op. cit., 368.

a State Papers, Dom., cclxxxvii. 55 ; ccxci. 14. 3 Ibid., cclxxvi. 65.

CHARLES I. : THE NAVY 255

an equivalent in money.1 In similar language Coventry told
the Judges in 1635 that the dominion of the sea, "as it was
an ancient and undoubted right of the crown of England,"
so was it the best security of the land, which was impregnable
so long as the sea was well guarded ; and that those subjects
"whose minds are most fixed upon the honour of the king
and country" would not endure that it should be either lost
or diminished. The safety of the realm, he said, required
the dominion of the sea to be kept and the sea guarded : " The
wooden- walls are the best walls of the kingdom ; and if the
riches and wealth of the kingdom be respected, for that cause
the dominion of the sea ought to be respected ; for else what
would become of our wool, lead, and the like, the price where-
of would fall to nothing if others should be masters of the
sea ? " If the dominion of the sea was lost, trade and commerce
would be lost by being placed at the mercy of the neighbouring
nations, and the whole kingdom would suffer.2

In carrying out his Spanish policy, Charles's first task was
to deceive his Council.3 For this purpose no better agent
could have been chosen than Coke, who, as we have seen,
was by this time enthusiastic about the sovereignty of the
seas, and was known to be hostile to Spain. He was accord-
ingly directed to prepare a report for the king on the un-
satisfactory relations between England and foreign countries,
and the need of providing a fleet. In the long statement he
drew up, Coke described how the credit of the country had
been lowered abroad, and innumerable wrongs and insolences
suffered in various parts of the world, because of the want
of a sufficient navy to make our name respected. "All free
trade," he wrote, " is interrupted " ; within the king's own
chambers squadrons of men-of-war from Biscay and Flanders
took not only Hollanders, but Frenchmen, Hamburgers, and
his Majesty's subjects. From £he Hollanders " we suffered
most by their intrusion on our fishings and pretence of Mare

1 Rushworth, Collections, ii. 257. State Papers, Dom., cclxxvi. 64. Compare the
language of Edward III. in 1336, p. 36.

2 Rushwortb, ii. 294, 353. Compare Windebank's notes of the speech, State
Papers, Dom., ccxc. 108 : "The Judges at the Assizes to let the people know his
Majesty's care to preserve the ancient dominion (of the seas)."

3 Gardiner, op. cit.

256 THE SOVEREIGNTY OF THE SEA

Libenim" and they pursued and took prizes in our ports
and rivers. But our trade and rights were injured every-
where,— from Constantinople and Morocco to Denmark and
Sweden, — and Coke recommended that the navy should be
reinforced in order that the king might obtain justice and
" recover his undoubted right of sovereignty in all his seas." 1
Coke read his report to the Council in June 1634; the ship-
money writs were issued in October; and in May next year
the first of the "ship-money fleets" was ready and was
placed under the command of the Earl of Lindsey, with
special instructions to maintain the king's sovereignty of
the sea.

On the Continent the naval preparations of England were
followed with close attention. As early as 1633, Joachimi,
the States' ambassador in London, informed his Government
that the English were putting forth pretensions to be sole
lords and masters of the narrow seas, and he earnestly ad-
vised the States to avoid everything which might give the
English offence in their excitable condition, on a matter which
they had so much at heart.2 An indication of the feeling
prevailing in England was observed by the ambassador early
in the year, for when he complained that Dutch vessels had
been fired on from Portland Castle and then detained, he
was told they had presumed to put up their flags in the
face of the king's colours flying on the walls.3 Next year
the repeated complaints from England as to the violation of
the King's Chambers by Dutch vessels of war, and the seizure
of one of them by the English in consequence of the attack
at Scarborough, did not lessen the apprehensions that began
to be entertained in Holland. Rumours circulated that the
English fleet was being prepared for the purpose of waging
war against the Republic, and the answer given by the
English ambassador at The Hague to inquiries as to the

1 State Papers, Dom., cclxix. 51.

Q

2 ResoL. States-General, -^ Nov. 1633 ; Muller, Mare Olausum : Bijdrage tot de
Oeschicdenis der Rivaliteit van Engeland en Nederland in de Zei'entiende Eeuw, 229.

8 State Papers, Dom., ccxxxiv. 87 ; Nicholas's Letter Book, Feb. 16, fol. 97.
Muller thinks it was this revival of feeling about the dominion of the sea that
caused the edition of Grotius' Mare Liberum to be published this year, with the
Magnus Intercursus appended.

CHARLES I. I THE NAVY 257

object of the fleet was not calculated to allay anxiety. In
the spring of 1635, a little before the Earl of Lindsey hoisted
his colours on the Merhonour, Coke wrote a long and re-
sounding despatch to Boswell, the English ambassador at
The Hague, explaining the reasons for the naval prepara-
tions. " First," he said, " we hold it a principle not to be
denied, that the King of Great Britain is a monarch at land
and sea to the full extent of his dominions, and that it con-
cerneth him as much to maintain his sovereignty in all the
British seas as within his three kingdoms; because without
that these cannot be kept safe, nor he preserve his honour
and due respect with other nations. But, commanding the
seas, he may cause his neighbours and all countries to stand
upon their guard whensoever he thinks fit. And this cannot
be doubted, that whosoever will encroach upon him by sea,
will do it by land also when they see their time. To such
presumption," he added, "Mare Liberum gave the first warn-
ing-piece, which must be answered with a defence of Mare
Clatisum: not so much by discourses, as by the louder lan-
guage of a powerful navy, to be better understood when
overstrained patience seeth no hope of preserving her right
by other means." The innuendo against the United Provinces
was still further developed. They had impeached the king's
dominion in his seas for a long course of years. They had
been permitted to gather wealth and strength in our ports
and on our coasts by trade and fishery, for which they had
" sued to King James for license," granted under the great
seal of Scotland ; and when they had possessed themselves
of our fishings "by leave or by connivance," and obtained a
great trade by our staple, they so increased their shipping
and naval power that now they would not endure to be
kept at any distance. "Nay," exclaimed Coke, "to such
confidence are they grown, that they keep guard upon our
seas," and prohibit us free commerce within them ; they take
our ships and goods unless we conform to their placarts. Be-
sides all which, "what insolencies and cruelties" they have
committed against us in the past, in Ireland, in Greenland,
in the Indies, as known to all the world ; care would be taken
to refresh their memories on these wrongs "as there should
be cause." After a preamble of this sort one might expect

R

258

THE SOVEREIGNTY OF THE SEA

a declaration of war to follow. But the fleet, Coke continued,
was neither for revenge nor for the execution of justice for
past wrongs. It was primarily to put a stop to the " violent
current of the presumption" of men-of-war and freebooters,
who had abused the freedom allowed by the king to friends
and allies to make use of his seas and ports, by assaulting
one another within his Majesty's chambers and in his rivers,
"to the scorn and contempt of his dominion and power."
The king intended no rupture with any prince or state ; he
was "resolved to continue and maintain that happy peace
wherewith God hath blessed his kingdom, and to which all
his actions and negotiations have hitherto tended." But that
peace must be maintained by the arm of power, " which only
keeps down war by keeping up dominion." Therefore the
king found it necessary, even for his own defence and safety,
"to re-assume and keep his ancient and undoubted right in
the dominion of these seas, and to suffer no other prince or
state to encroach upon him, thereby assuming to themselves
or their Admirals any sovereign command; but to force the
to perform due homage to his Admirals and ships, and to
pay them acknowledgments, as in former times they did. He
would also set open and protect the free trade both of his
subjects and allies, and give them such safe conduct and
convoy as they shall reasonably require. He will suffer no
other fleets or men-of-war to keep any guard upon these
seas, or there to offer violence, or take prizes or booties, or
to give interruption to any lawful intercourse. In a word,'*
Coke concluded, "his Majesty is resolved, as to do no wrong,
so to do justice, both to his subjects and friends within the
limits of his seas." l

The substance of this bombastic despatch, in which Charles
was fully displayed in his new figure as a Plantagenet, was
communicated by Boswell in a memoir to the States-General,
and their High Mightinesses must have rubbed their eyes as

1 Coke to Boswell, -^ April 1635. Needham, Additional Evidences concerning
the Right of Soveraigntie and Dominion of England in the Sea ; Justice, A General
Treatise of the Dominion and Laws of the Sea, 181 ; Entick, A New Naval History,
xvii. If, as is probable, the mention of discourses concerning Mare Clausum re-
ferred to Selden's work, it would show that the author was then known to be
engaged in writing it.

CHARLES I. I THE NAVY 259

they read it.1 But it at least removed their fears of immediate
Avar. Explanations of similar tenour, but couched in more
moderate language, were made to other Courts. The intentions
of the king were declared to be quite peaceful, and stress was
laid on the violations of the King's Chambers, "to the great
derogation of that dominion at sea which has always of right
belonged to the Imperial crown of this kingdom " ; the fleet
was to free his coasts and seas from such disturbances, to secure
free trade to his subjects and allies, and " to reduce his dominion
upon the British seas to the ancient style and lustre." 2

Let us now turn to the fleet which was to carry out this
grand programme and see what it actually accomplished. The
ships began to assemble in the Downs in May, the Earl of
Lindsey being appointed "Admiral, Gustos Maris, Captain-
General and Governor" of the fleet, with the veteran Sir
William Monson as Vice- Admiral, and Sir John Pennington as
Rear- Admiral. It consisted of nineteen of the king's ships and
five armed merchant vessels, making twenty-four in all ; 3 and
though other ten royal ships which were being prepared to
reinforce it were ultimately discharged, it was said by the com-
mon people that " never before had such a fleet been set out by
England." In the king's commission appointing the Earl of
Lindsey it was stated that he had thought fit, by the advice of
his Council, to set forth to sea a navy as well for the defence
and safety of his own territories and dominions as for the guard
and safe-keeping of his seas, and of the persons, ships, and goods
of his own subjects and of his friends and allies "trading by
sea to and fro our dominions for commerce and trade, and
other their just and necessary occasions, from those spoyles and

1 " Dessein de Sa Mate de la grande Bretagne p sa flotte prente," ^ May 1635.

Aitzema, Saken van Staet en Oorlogh, ii. 164 ; Muller, op. cit., 230. Boswell sup-
pressed the reference to the Dutch fisheries and to the old troubles at Greenland
and in the East Indies, and he toned down the part prohibiting the warships of
other nations from keeping guard in the British seas.

2 State Papers, Dom., cclxxxvi. 100.

8 They were as follow : Merhonour, admiral, 44 guns ; James, vice-admiral, 48
guns ; Swiftsure, rear-admiral, 42 guns ; St George, 42 guns ; St Andrew, 42 guns ;
Henrietta Maria, 42 guns ; Vanguard, 40 guns ; Rainbow, 40 guns ; Red Lion, 38
guns ; Constant Reformation, 42 guns ; Antelope, 34 guns ; Leopard, 34 guns ; Swallow,
34 guns ; Mary Rose, 26 guns ; Sonaventure, 34 guns ; and the First, Third, Eighth,
and Tenth Lion's Whelps, of 14 guns each. The merchant ships were the Sampson,
Freeman, Royal Exchange, William Thomas, and Pleiades.

260 THE SOVEREIGNTY OF THE SEA

depredations committed at sea . . . and for sundry reasons anc
considerations of state best known to ourselves." 1

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

The most remarkable part of the instructions issued to the
first ship-money fleet referred to the hostilities between the
ships of other nations, not merely in the King's Chambers, but
1 The king to the Earl of Linclsey, State Papers, Dom., cclxxxviii. 84.

CHARLES I. : THE NAVY 261

throughout the narrow seas. " In this your Lordship's employ-
ment," wrote the Lords of the Admiralty, " you are not to per-
mit or suffer any men-of-war to fight with each other, or men-
of-war with merchant, or merchant with merchant, in the
presence of his Majesty's ships in any part of the Narrow Seas.
But you are to do your best to keep peace in those seas for the
freer and better maintenance of trade and commerce through
the same, so that all men trading or sailing within those his
Majesty's seas do justly take themselves to be in pace Domini
•Regis. And therefore his Majesty in honour and justice is to
protect them from injury and violence."1

It is interesting to compare these instructions to Lindsey
with those given earlier to Pennington as admiral of the fleet
for the guard of the narrow seas. His private instructions
from the Lords of the Admiralty in 1631 contained a clause
regarding the homage of foreign vessels on meeting the king's
ships. He was to expect the admiral or chief, in acknowledg-
ment of the king's sovereignty in the narrow seas, " to strike
their toppe sayles in passing by," and if they refused he was to
force them to do so ; and in no wise suffer any dishonour to be
done to his Majesty, or derogation to his sovereign power in
those seas. At that time the efforts of Richelieu to create a
French navy had caused some disquiet in England, and Pen-
nington was also ordered to do his utmost, by spies and other-
wise, to discover whether any considerable preparations were
being made abroad.2 The instructions in 1631 appear to have
represented the English pretensions so far as they were under-
stood at the time. There was nothing about forbidding the
hostilities of belligerents, as in Lindsey 's instructions. On the
contrary, Pennington was told that if he saw any Hollanders
and Dunkirkers in fight at sea he was to take no part with
either, " but to pass by and leave them to their fortunes " ; and
he issued orders to his subordinates to that effect.3 In his

1 Instructions for our very good Lord, the Earle of Lindsey, Admirall of his
Majesties' fflete, in his Majesty's shippe the Mcrhonour, prepared for this present
Expedicon for Guard of the Narrow Seas. 2nd May 1635. State Papers, Dam.,
clvii. fol. 1356 et seq.

2 Ibid., cxcii. 3, 21st May 1631 ; clvii. fol. 1176. It was found that the French
had a fleet of thirty-nine men-of-war, and two additional ships were building.
Ibid., cxcviii. 84.

3 20th May 1631. Ibid., cxci. 80.

262 THE SOVEREIGNTY OF THE SEA

instructions in 1633 this clause was repeated, but in other
respects they resembled those of Lindsey.1 The same duties
were allotted to him in 1634, and he was specially charged to
free the narrow seas of pirates and sea-rovers, and to prevent
hostilities in the King's Chambers. "If," he was told, "any
man-of-war, or other, in any of his Majesty's roads, harbours,
or coasts, shall offer any violence by unduly taking out any
ships, vessels, goods or merchandise, of what nation soever, or
commit any other insolency, you shall do your best to recover
the same again from them, and reform the abuses, either by due
admonition, or (if that will not serve) by bringing the offender
to answer to justice, preserving by all means the honour of his
Majesty from such insolencies (as much as in you lieth), having
always a due regard to the amity between his Majesty, his
friends and allies."2

But a change took place, as we have seen, in the following
year. Among the suggestions made by Pennington to the king,
and repeated to the Admiralty, was one that any foreign ship
attacked by another foreigner in the narrow seas might put
herself under the protection of any of the king's ships by
coming under its lee, " in the same manner as under a castle on
shore." 3 It was certainly a proposal as bold as it was brilliant.
Ships of war have long been regarded by certain writers on
international law as being essentially an extension of the terri-
tory of the state to which they belong ; but no writer ever
suggested that the water around them on the high sea should
be looked upon as partaking of the same character. The sea
round a king's ship, within range of the guns on board, was
to be a sanctuary like the waters of the King's Chambers, — a
sort of territorial girdle which it carried about with it like an
aureole round the head of a saint. Pennington's suggestion
was considered by the Admiralty early in April 1634, and
Nicholas, the Secretary, was instructed to confer with Sir

1 State Papers, Dom., ccxxxvii. 1.

2 Ibid., clvii. fol. 132, 26th April 1634.

3 In the memorandum which Pennington submitted to the Admiralty, he said :
" Sixtly, that if any stranger bee oprest by another stranger yt is stronger than
hee, within the jurisdicion of ye Narrow Seas, and yt hee flyes for succor or
refuge to any of his Majesty's shippes imployed for the guard of the sayd Seas,
and come under his lee, and craves protection, whether his Majesty's ffloatinge
ffortes shall not have ye same privelege in succoringe and defendinge them as
ffortes a Land hath." Ibid., cclxv. 23.

CHARLES I. : THE NAVY 263

Henry Marten, the Judge of the Admiralty Court, with
regard to it. Nicholas summed up his own views oracularly
in the sentence, "If a merchant fly from men-of-war, it
concerns the king's ships to preserve trade." Sir Henry
Marten gave a clear opinion. "It is not fit," he said, "nor
honourable for the king's ships appointed to guard the Narrow
Seas to suffer any men-of-war to fight with each other, or men-
of-war with merchants, or merchant with merchant, in the
presence of the king's ships within the Narrow Seas, for that
the king's ships are set forth to keep peace in those seas
for the freer and better maintenance of trade and commerce
through the same : and all men trading or sailing within
the king's seas do justly take themselves to be in pace Domini
Regis ; and since such are in pace Domini Regis, it doth
concern the king in honour and justice to protect them from
injury and violence." The language of the first part of this
statement is the same as in the regulation prepared a little
before with respect to hostilities within the King's Chambers
(p. 251); but its purport went much further than the recom-
mendation of Pennington, and in effect extended the protection
afforded by the King's Chambers, and the regulation applying
to them, to the whole of the narrow seas.

The Admiralty approved of the opinion of Sir Henry
Marten, and Nicholas was directed to embody it in Penning-
ton's instructions. Before doing so, however, it was deemed
desirable to get the king's own opinion, and he was asked
by Windebank, at the instance of the Admiralty, whether
Pennington should be instructed not to permit any man-of-war
to fight in the narrow seas in the sight of his Majesty's ships,
while he commanded there as Admiral. Pennington had then
only two ships and two " Whelps " under his command, — a force
quite inadequate to enforce an innovation so revolutionary, —
and Charles apparently did not think the time or circumstances
fitting for it, for the Admiral's instructions in 1634 were
virtually the same as in 1633, except that the clause about
passing by Dutch and Dunkirkers in fight and leaving them
:to their fortunes was omitted at the special request of Lord
•Cottington.1 But next year, when the imposing ship-money

1 Windebank and Cottington were two of the three in the confidence of the king
as to the secret negotiations with Spain. State Papers, Dom., cclxv. 23; 25, 26,
41, 49, 78, 89 ; clvii. fol. 132.

264 THE SOVEREIGNTY OF THE SEA

fleet was ready, Sir H. Marten's memorandum was inserted,
almost verbatim, in the Earl of Lindsey's official instructions.
In addition to the official instructions, the Earl received
private commands from the king. In these the new doctrine
as to the sovereignty of the seas received a new gloss, corre-
sponding to the tenour of Coke's despatch to Boswell, and
they were clearly intended to embroil us with the Dutch
Republic, as well as with France, and thus enable Oharles to
carry out his clandestine agreement with Spain. He was not
to permit the warships of other states to keep guard, or
commit acts of hostility, or take spoil or booty, " within his
Majesty's seas " ; and it was also resolved that the fleet should
be employed in forcing the Dutch herring-busses to take the
king's licenses for permission to fish, or in interrupting them in
their fishing. It was a common practice for orders of this kind
given to naval officers to be expressed in general or indefinite
language, leaving to them the responsibility of applying them
to specific cases according to their judgment and discretion.
Both Pennington in the previous year, and the Earl of North-
umberland in the following year, had to ask for further and
more precise directions. So also did Lindsey now. He wrote
to Charles on receipt of the royal commands, asking a number
of questions. In the first place, he asked that the "bounds
of his Majesty's seas might be expressed" — a reasonable
request, and one frequently made by naval officers. He
was loftily told by Coke, who replied, that "his Majesty's
seas are all about his dominions, and to the largest extent
of those seas, " — an answer not very illuminating, and of
little use to the Admiral.1 His second question was whether
the ships of the King of France, or the Archduke, or th
Dutch States, might not "lie to and again" upon their ow

1 An equally obscure answer of Coke's is recorded in the collection of papers for
the ambassadors to Cologne in 1673 (State Papers, Dom., Chas. II., vol. 339, p. 513).
" 1636. Ea Leicester (sic) Query — What answer shall I give if I be asked what
I mean by the seas of ye King my master, or our seas ? The Answer returned by
Mr Secretary Coke in his own hand : By the King's or our seas you are not to
understand or condescend to any restrictive sense but to answer ye Brittish Seas :
and that the 4 seas mentioned in our laws are thereby meant, which you must not
otherwise circumscribe or limitt ; besides they are the same which in all antiquity
have been acknowledged to belong unto us, as is sufficiently proved by authentic
records."

CHARLES I. : THE NAVY 265

coasts, as they have anciently done ? " To this the reply
was that they might stay in their harbours or roads, or
pass "to and again for trade," but not otherwise. Then he
asked whether the Dutch men-of-war might not lie before
Dunkirk, " as they have been accustomed to do " ? (in block-
ading the port, which belonged to Spain). For answer, he
was curtly referred to his instructions. Then there was
another disturbing suggestion : If no men-of-war were to
be permitted "to lie in the King's seas," notice, he said,
•should be given of the fact by proclamation or otherwise.
He was told that this was already done — the remark having
reference, no doubt, to the despatches sent to foreign Govern-
ments. Finally, he inquired what he should "do with the
herring fishers." But the patience of Coke appears to have
been exhausted, and no answer at all was given.1

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

The fleet was ready at the beginning of June. Before
its setting off one or two incidents happened which might
have seemed ominous to the superstitious. A shot fired from
the Admiral's ship, in answer to the salutation of the rest
of the fleet as he sailed into the Downs, hit a poor woman
on shore and broke her leg; the same day, during musketry
exercise, a seaman nearly killed a master of the navy, — and
these, as it turned out, were the sole effective warlike opera-
tions of the fleet. On the very day of departure a couple
of Dunkirk privateers "were so insolent" as to set upon a
Dutch merchantman in Dover Road, under the Admiral's
nose and in sight of the fleet, battering the ship, slaying
the gunner, and wounding the men. As an offset, the fleet
captured a small prize from a Dunkirker, which was to be

1 State Papers, DOM.., cclxxxviii. 84, 85.

266 THE SOVEREIGNTY OF THE SEA

sold for the benefit of the Fishery Society. Then the Earl
himself had been snubbed by the Admiralty, and left with
a flea in his ear. He wanted a vessel to serve as a " kitchen "
to accompany the fleet, and a salary for a secretary; but
there being no precedents, the requests were refused. Then
he complained that he had not enough flags, and above all
that he lacked a standard, which made him "not a little
wonder, considering his commission gave him as much power
as a Lord Admiral of England — or rather more by being
General, who is always a representative person of his prince " ;
he said he was " a little maimed " without it.1

The fleet weighed anchor early on the morning of the
7th June, and steered down Channel on its mission. At
that time a combined Dutch and French squadron blockaded
Dunkirk — France, which in January had entered into a treaty
with the States for an invasion and partition of the Spanish
Netherlands, having declared war against Spain a month
before Lindsey left the Downs. There was thus every pros-
pect of a collision if the English Admiral carried out the
king's wishes, and both the Court and the capital were on
the tiptoe of expectation of stirring news. The fleet had
scarcely quitted its anchorage when London was full of
rumours. The Swallow got credit for having sent to the
bottom a Dutch man-of-war before she had even left Deptford.
A few days later it was reported that a fight had taken
place in the Channel, a violent cannonade having been heard
on the English coast, whereat Charles looked anxious and
moody.2 But it was only a peaceful salutation between the
English fleet and a Danish man-of-war, " who did their duty "
in passing by. On 12th June "certain news" arrived by
express from Dungeness that a great battle had been fought
off Calais, in which the Hollanders were totally defeated.
Authentic despatches from the fleet soon put an end to such
rumours. Very bad weather had been experienced, which

1 State Papers, Dom., cclxxxviii. 4; cclxxxix. 75. He had "no more than two
blue and two white flags with six pendants to each of them ; there are wanting
two red flags and six pendants, one blue flag and one white." The office of Lord
High Admiral was in commission from the death of the Duke of Buckingham in
1628 until the appointment of the Earl of Northumberland in 1638.

2 Gardiner, Hist., vii. 385.

CHARLES I. I THE NAVY 267

forced them to take shelter at the Isle of Wight ; thereafter
they sailed for Portland, having received intelligence that a
French squadron of fourteen sail and a Dutch one of the same
number were there, each flying its national flag.

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

Neither the impartial sentiments of the Admiral nor his
proceedings were approved at Court, where the king was getting
impatient. The summer was passing, and the opportunity of
forcing a conflict was passing with it. He soon learned how

268 THE SOVEREIGNTY OF THE SEA

his conduct was regarded from despatches from Coke. Since
the Earl went to sea, wrote the bustling Secretary, the account
he had been able to give the king out of his despatches had
been only of a fall from his coach, and of the stay his fleet had
made in the Downs, then near St Helens, and thence of his
plying along the coast to Plymouth, where the Mayor had
advised him he was on Sunday, five days earlier. All this,
he said, gave his Majesty little satisfaction, who expected to
hear the fame of his acts in the open sea, whereof he had
committed the custody to his trust. And though the civil
answer sent by the French Vice - Admiral to the Mayor of
Weymouth l had been well taken, yet it would have been more
for the king's honour and the Earl's also if this office had been
done with due homage to the Earl. And this all the more
because there was a common report that the French had forced
some English merchant vessels to strike sail to them, and that
the French and Dutch had visited English ships, — an act, said
Coke, of direct pretence to equal rights in our seas which the
Earl must not suffer; he must not allow English ships to be
visited by the men-of-war of any nation whatsoever, and he
must be careful to protect them from all wrongs. In par-
ticular— and the request should have opened his eyes, — if any
English merchant ships came from the Straits, Spain, or Por-
tugal, with Spanish coin or other commodities (for Dunkirk),
he must take care that no man go on board or interrupt them.
He should convoy English ships in the same way, and for the
honourable execution of his employment he should "strive to
keep the open sea." Coke concluded by telling him that he
" thus freely enlarged himself " chiefly by the direction of the
king, out of his own honour and interest. In another letter
to Viscount Conway, who was on board the Admiral's ship
and had written a note to Coke of their proceedings, he used
similar language. He did not want to hear of "misinfor-
mations," but of " noble effects " ; he had written to the Admiral
whereby he would "perceive that neither spending time in
harbour, nor at anchor, nor coasting along our shore, would

1 The inhabitants of the coast were apprehensive of the French fleet, and the
Admiral sent a message to the Mayor offering to show his orders from the King of
France, which bound him to honour and respect everything that belonged to his
Majesty of Great Britain. State Papers, Dom., ccxci. 23.

CHARLES I. : THE NAVY 269

answer the expectation they had of the fleet." "You must
command the seas or be commanded," said Coke in his pompous
vein. "Wisdom seeks not danger when with honour it may
be shunned; but where honour and dominion lie at stake,
brave men will set up their rests."1

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

Lindsey then stood to sea and plied about in the middle of
the Channel, off the coast between the Lizard and Plymouth,
and sometimes standing over to the coast of France, until the
beginning of August, without finding any trace of the French
and Dutch fleet, which was supposed — and rightly — to be to
the southward on the Biscay coast. No glimpse of the lilies of
France could be obtained; not even a pirate was seen, the
presence of the fleet no doubt having scared them from their
haunts in the Channel. On 3rd August Lindsey 's fleet re-

1 State Papers, Dom. , ccxci. 58, 59.

270 THE SOVEREIGNTY OF THE SEA

turned to the Downs for revictualling, what remained of the
victuals on board being very bad, — " the beef is so extremely
tainted," he had written on 21st July, "that when the shifter
stirs it, the scent over all the ship is enough to breed a con-
tagion." No sooner was he in the Downs than news came
that the French squadron had come back to the English coast,
twenty-six sail of them having been seen about the Lizard.
" They haunt us like a shadow," murmured the Admiral from
his anchorage, " flying when we pursue, and following when we
retreat."

Lindsey was not far wrong on this occasion, for the with-
drawal of the French ships from the narrow seas on the ap-
proach of the English fleet was due to the sagacious plan of
Richelieu. He appears to have been well aware of the pretext
and design of Charles, and endeavoured to outwit him. At war
with Spain, he desired to avert an open rupture with England.
At the same time, it was not fitting that he should break the
tradition of France, or check the maritime ambitions which
aimed at rivalling England on the seas, by lowering the French
flag to the English Admiral. While the Earl was still at the
Isle of Wight, Richelieu ordered the French Admiral to retire

o *

with three of his smallest vessels round Cape Finisterre to
Belle Isle, off the coast of Brittany and well out of the Chan-
nel, and to put the rest of the French squadron under the
command of the Dutch Admiral. The French ships left in the
narrow seas were to carry no flags at all, and therefore could
not strike them ; and if the combined fleet met the English, the
Admiral of the States would, in his accustomed manner, strike,
without the dignity of France being compromised or Charles
being given the rebuff for which he was seeking.1 When on
the following day Richelieu learned that the Spanish transports
for the relief of Dunkirk had entered that port, he ordered the

1 Gardiner, op. cit., 385 ; State Papers, Dom., ccxcv. 61. The English agent in
France reported in August that two squadrons under French admirals, and bearing
the French flag, were to ply, one along the coast of France from Belle Isle to
Bayonne, the other at the mouth of the Channel. The remainder of the fleet,
half French and half Hollander (which guarded the coast up to Calais and to the
north of it), bore the States' colours, and were under the command of the Hol-
lander Admiral, — "an expedient to avoid acknowledging his Majesty's right in the
Channel, in case this squadron should meet hia Majesty's fleet and be constrained
to vail the bonnet."

CHARLES I. I THE NAVY 271

combined fleet to withdraw altogether from the Channel, as
their further presence there was useless and might give occa-
sion for a conflict.1 Thus it was that Lindsey could not find
them. While Richelieu's strategy succeeded, the course adopted
was somewhat pusillanimous and not calculated to add to the
laurels of France. He therefore took advantage of an incident
to raise the question of the flag diplomatically with England, in
the hope of having the respective rights of the two nations
settled, and no doubt for other reasons. He complained to
Charles that the Earl of Lindsey — who denied the story — told
a Dutch captain of whom he inquired the whereabouts of the
French fleet, that he was "going to make them lower their
colours " ; 2 he inquired as to the intentions of the king, and he
proposed that in future the French should salute the English
on the coast of England, and, reciprocally, that the English
should salute the French on the coast of France; while if
the fleets were in the middle of the sea they should either
pass one another without saluting, or the weaker fleet should
first salute the stronger. If Charles did not like these pro-
posals, he was invited to suggest others.3 It appears indeed
that instructions of a similar tenour had been actually
given to the French Admiral, except that they might
strike to the, English when out of sight of the French
coast.4

Richelieu's proposals for equality and reciprocity in the
narrow seas were instantly rejected. Coke, in a despatch
to the English agents at Paris, the draft of which was revised
by the king, expressed astonishment that the French ambas-
sador, instead of the negotiation of a treaty for a confedera-
tion between England, France, and the States-General for the
restitution of the Elector Palatine, should raise " impertinent
questions " about the king's dominion at sea. The king could
enter into no such debate with the French ambassador. But
Coke had assured that personage that the instructions given to
the Earl of Lindsey were no other than had been given in
ett'ect in all former times, and " for near forty years within his

1 Gardiner, loc. tit.

2 It was from this Hollander, met off Beachy Head on 9th June, that Lindsey
learned that the French fleet was at Portland.

3 State Papers, Dom., ccxcf. 80, 27th June 1635. 4 Ibid., ccxcvi. 14.

272 THE SOVEREIGNTY OF THE SEA

own knowledge," — that the Admiral should defend and main-
tain the ancient known rights of the crown; guard the seas,
secure freedom of commerce, suppress pirates, and oppose
hostile acts in prejudice thereof; assist his Majesty's friends
and allies, attempt no innovation, nor do anything contrary
to his treaties, — and so he presumed that no one would do any-
thing to impeach his Majesty's ancient and undoubted rights.
But instead of being satisfied with this "fair answer," the
French ambassador put into Coke's hands a regulation he had
drawn up, prescribing to both kings " when and where the one
shall vail his bonnet to the other." Coke informed the agents
that it was hoped this proceeding would be disavowed : and he
instructed them, pending the arrival of the new English ambas-
sador (Lord Scudamore), to refrain from all discussion with the
French king or his Ministers as to the king's right to the
dominion of the sea, or about the extent thereof, and to say
nothing further as to the designs of the fleet.1 Richelieu, who
had quite enough to concern him in the failure of his attack
on the Spanish Netherlands, was content to leave alone
the dispute about the flag, and the French ambassador was
requested to say as little as possible concerning it.2

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

1 State Papers, Dom., ccxciii. 12. 2 Gardiner, op. cit., 386.

CHARLES I. : THE NAVY 273

had left behind him — " pressing after him," as he said — were of
more consideration. The king therefore ordered that when the
victualling was completed the fleet should again keep the sea
to the westward.1

This decision probably saved the Earl of Lindsey, as well as
the king, from further humiliation and disappointment. Even
had he at once sailed to the north, he would have found no
Dutch herring-busses to deal with, any more than he had found
the French fleet. For the Dunkirk privateers, swiftly taking
advantage of Richelieu's withdrawal of the blockading squadron
from their port, had made a bold dash into the North Sea and
overwhelmed the Hollanders off the coast of Northumberland.
More than 100 busses had been sunk or burnt, and 1000
fishermen carried prisoners to Flanders; the rest were in full
flight homewards or pent up in British ports, and the herring-
fishing was ruined for that year.2

The calamity soon brought over the Dutch fleet to protect
the remaining busses. Van Dorp, with fourteen French and
Dutch men-of-war, arrived in Calais Road about the middle of
August and sailed thence northwards, thirsting for vengeance
on the freebooters. Lindsey detached some of the ships from
his fleet, which lay victualling in the Downs, for convoys, as
well as to punish the " contempt " of the Dutch at Scarborough
(see p. 250), and a few of the smaller vessels were engaged in
looking for " picaroons " in the Straits of Dover." For during
the absence of the fleet, the post-boat between Dover and Dun-
kirk had been attacked and pillaged five times within seven

1 Lindsey to the king, 2nd August ; Coke to Lindsey, 4th August. State Papers,
-Dora. , ccxcv. 9, 42. The rumour that two of the king's ships were to go north to
the busses reached the ears of the States' ambassador. Brit. Mus. Add. MSS.,
17,677, 0, fol. 376.

2 State Papers, Dom., ccxcvi. 5, 14, 16, 30. Brit. Mus. Add. MSS., 17,677, 0,
fol. 380. Res. Holl., 7th September, Bosgoed, op. cit., p. 358. Twelve busses and
three of the convoys took refuge at Newcastle ; others in the Firth of Forth. The
skipper of a coasting vessel from Scotland to Scarborough saw seven busses in
flames ; the sky was red from the conflagration. The Leopard, one of Lindsey's
fleet, convoying merchantmen to Dunkirk, met eighteen of the privateers returning
in triumph. The Dutch busses were the natural prey of the Dunkirkers, and the
States were put to great expense and pains in guarding them. In 1625 a Spanish
agent, Egidio Ouwers, submitted to Cardinal de Ceva, at Brussels, an elaborate
plan for destroying the Dutch herring fishery, so as to "spoil their chiefest mine
by which they maintained their wars." State Papers, Dom., dxxi. 30.

S

274 THE SOVEREIGNTY OF THE SEA

weeks, and the packages containing the king's letters opened.1
A French man-of-war, too, had taken an English ship off Har-
wich and carried her off to Boulogne. Such occurrences, and
the presence of Van Dorp in the north, delayed Lindsey's
departure. But on 4th September he again left the Downs
with most of his ships, stood over to Calais and ranged the
French coast for some distance southwards, and then out to
sea. Heavy weather coming on, he had to run for shelter to
the Isle of Wight, where the fleet lay weather-bound, and with
much sickness on board, from the 12th till the 29th September.
The Admiral then made for the Downs, where he arrived on
4th October, and on the 8th he struck his flag.2

o

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

It was a fitting close to the first ship-money fleet. The
great armada by which Charles expected to recover the Palat-
inate, and restore his sovereignty of the seas to its ancient style
and lustre, upon which the eyes of Europe had been fixed,
accomplished practically nothing. It had snatched a petty
prize from a Dunkirk privateer and seized a Dutch man-of-
war in reparation for the " contempt " at Scarborough ; it had
convoyed a few vessels, English and Spanish, to Dunkirk, and
as its greatest achievement had caused the blockade of that
port to be raised. No wonder that that tough sea-dog, Sir
John Pennington, when he heard that a still stronger fleet was

1 State Papers, Dom., ccxcv. 44.

2 The facts as to the movements, &c., of the fleet are mostly taken from the
Earl of Lindsey's Journal, written for the king's information, and preserved in the
Record Office. " A Relation of the passages that daily happened in this late
expedition under my conduct, being by Your Majesty's gratious appointment
Admiral and General of your Majesty's ffleet sett forthe for guard of your Narrow
Seas, from the time that the ships mett all together in the Downes, 28° May, untill
the 8* of October following, I making my first entrance aboard yor Royall ship
the Merhonor) 16° May, in Tilbury Hope." Ibid., ccxcix. 28.

CHARLES I. : THE NAVY 275

preparing for the next year, should exclaim, " God grant they
may do more than the present fleet has done, or the money
were as well saved as spent."1 No doubt the fleet had a
moral value, if that term can be used about it, the naval
demonstration being an intimation to France and to the Dutch
Republic that Charles was resolved to assert command of the
sea. Whether England could have proved herself mistress of
the seas in 1635, had Lindsey's fleet been opposed, is problem-
atical. But, at all events, Charles attained none of his special
•objects. The sudden and successful uprising of the Spanish
Netherlands against the armies of France dispelled the fears of
Spain, and that power having no further immediate need of
England, the nearly completed alliance came to naught, and the
recovery of the Palatinate was further off than ever.2 On the
other hand, the Dutch were much irritated. Charles had
denied their right to blockade the Flemish ports against free
commerce,3 and it was through his action that the privateers
had been able to work such havoc and destruction among the
lerring-busses.

Something more must be said about one of the duties imposed
HI Lindsey, in regard to which it was expected the English
leet would shine — namely, the homage of the flag. Apart from
forcing a number of merchant vessels, English and foreign, to
lower their top-sails, and some Dutch men-of-war and Dun-
kirkers, and even one or two of the French (on the English
€oast) to strike their flag to the king's ships, nothing was
accomplished. The politic arrangement of Richelieu foiled
Lindsey and Charles alike, and the great spectacle of the
Admiral of France lowering his flag to the Admiral of England,

1 Pennington to Nicholas, 3rd August 1635. State Papers, Dom., ccxcv. 18.
Pennington, it may be said, lost no chance of sneering privately at the Earl of
Lindsey, especially in his correspondence with his friend, Nicholas, the Secretary
to the Admiralty. When Lindsey finally reached the Downs in October, and
Pennington was appointed to command the winter fleet, he told Nicholas that
lie had hoped that "they" who had had the "sweet of the summer should have
had a little of the sour sauce of the winter " ; he had spent " twice as much as he,
and more every way for the king's honour." Nicholas shared the feeling. On
hearing that Lindsey had appointed a French cook on board the Henrietta Maria
he refused to believe it, " as it was never since his time known that any Frenchman
was admitted scarce to go aboard, much less to be an officer in any of the king's
ships" ; and he foretold great evils from it. Ibid., ccxcix. 19 ; ccxci. 61.

- Gardiner, op. eit. 3 Brit. Mus. Add. MSS., 17,677, 0, fol. 364.

276 THE SOVEREIGNTY OF THE SEA

or giving battle and refusal, was not witnessed. The dis-
appointment at the English Court was all the more keen, inas-
much as France, in the treaty of confederation with the States-
General in the beginning of the year, had stipulated that the
Dutch men-of-war should salute the French flag in the same
way as they saluted the flag of England, thus " challenging a
dominion," as Sir Thomas Roe said, "where anciently they
durst not fish for gurnets without license."1

By this time the question of the striking of the flag had been
forced into great prominence : even the " footpads " of the
Channel, the humble picaroons and shallops, hailed the English
ketches which they pillaged with the cry of " Strike, you English
dogs ! " It has been shown in a previous chapter that though
the ceremony was enforced in the narrow seas in the reign of
James, it did not then become a burning political question, and
the same is true of the early part of the reign of Charles. The
English commanders were then satisfied with a moderate
acknowledgment of the " honour," and the Dutch at least rarely
ever contested it. That it was enforced in 1627 appears from
the narrative of the Earl of Warwick's voyage in that year,
when a French man-of-war was compelled off* Falmouth "to
come up by the lee," though nothing is said about the flag
itself.2 But when France openly aspired to become a great
naval Power, England began to force the salute with a high
hand. It is from the year 1631 that we may date the marked
development of this symbol, as it was claimed to be, of the
sovereignty of the sea. We have already seen Pennington's
instructions in that year, which, however, only mention the

1 State Papers, Dom., cclxxviii. 3. Roe's reference was to the fishings at the
Zowe or Sowe, where great numbers of gurnards were caught (see p. 65).
The stipulation of Richelieu concerned the allied squadrons which were to blockade
Dunkirk, as arranged by Article viii. of the treaty. Article xii., after providing
for the size of the squadrons, continues, " Et au cas que lesdites esquadres viennent
a s'assembler, comme il peut arriver qu'il sera necessaire pour le bien commun.
1' Admiral desdits Seigneurs les Estats abaissera a 1'abord son pavilion du grand
mast, et le saluera de son canon, et celui du Roi le resaluere comme de coustume,
et comme il en a este1 use par le Roi de la Grande Bretagne." Dumont, Corps
Diplomatique, 83 (?).

3 State Papers, Dom., Ixxix. 17. "Athwart ye opening of Falmouth four sailes
stood with their forefoot," and very earnestly tried to weather the English ships.
Among them was a French man-of-war of Rochelle, but they shot four or five
pieces of ordnance at him, and "soo brought him by ye lee." See p. 207.

CHARLES I. : THE NAVY

277

striking of the top-sail ; and although the omission of the flag
may have been only verbal, there are reasons for thinking that
the custom and etiquette of the ceremony were not well under-
stood at the Admiralty. Thus on Pennington reporting that
French men-of-war were trying to force English merchant
vessels to strike to the French flag,1 he was ordered by the
Admiralty " to see that no one presumes to carry the flag in
the Narrow Seas"; all the more since "some" pretended to
have an interest in the sovereignty of these seas.2 When
•Pennington pointed out that this "was more than ever was
done, for our own merchants' ships and all other nations ever
have and do wear their flags, till they come within shot of the
king's ships : if they take them in and keep them in till they
are out of shot again, it is as much as has ever been expected,"
— when he told the Admiralty this, he was informed that the
"Lords would not expect impossibilities" — the main business
he was to take care of was to see that no foreigner carried the
flag where his Majesty's ships were present in the Narrow
Seas.3 Then Captain Plumleigh in the Antelope reported that
on meeting two States' men-of-war guarding the herring-fishers
}ff Orfordness, the Admiral had "stood" with the Antelope

rith his flag aloft, and did not take it in till several shots had
3een fired at him ; and when requested to come on board and
explain his conduct, he refused. How, asked Plumleigh, was he
to comport himself in such cases ? The matter was brought

jfore the Admiralty, but no answer appears to have been

1 He reported, 16th September 1631, that two English merchantmen had met
ive French men-of-war, bearing the French king's colours on the main-top, and the

ilta colours on the poop, who saluted them with, " Amain, rogues, for the King
France " ; but as the English ships refused to strike and prepared to fight, the

ench sheered off. He added that he had learned, through an interview between
one of his lieutenants and one of the French commanders, that the latter had

commission to compel any English ships he could master to take in their flags
ind dowse their top-sails, and that three French admirals had been appointed for

gaining the regality of the Narrow Seas, because, as the French officer said, the
Pope had taken it from France and given it to England, but now that we had fallen

•om their religion it had been reassigned. Slate Papers, Dom., cxcix. 51.

2 Nicholas to Pennington, 29th September 1631. Ibid., cc. 45.

3 Pennington to Nicholas, 2nd October (ibid., cci. 7). Pennington, whose
nformation about the French trying to make the English strike had given the
Ldmiralty and the king "good content" (ibid., cc. 27), had been ordered westwards

retaliate, but " he hoped the Lords would not think that his two ships half*
launed were able to encounter with twenty well manned. Ibid., cci. 29.

278 THE SOVEREIGNTY OF THE SEA

then given.1 Two or three years later Pennington put the
same and other queries to the king. He had been appointed
in April 1633 Admiral of the Narrow Seas, with general
instructions already quoted (see p. 262), to preserve the king's
honour, coasts, and jurisdiction, and to compel homage to the
flag. Pennington asked whether, when a stranger refused to
take in his flag till forced, he should not be " brought in as a
delinquent " ; whether, if he met a foreign fleet of far greater
strength than his own, and they refused to take in their flags,
he, should fight with them about it "upon so great disadvan-
tage," or make " a fair retreat " ; whether on going into Calais,
Dunkirk, or the Briel — that is to say, ports in France, Flanders,
and Holland — and finding strangers riding there with their
flags aloft, he should force them to take them in ? 2 He also
wrote to the Admiralty in 1634 substantially repeating these
inquiries, and asking for a positive or negative expression in
regard to them in his instructions. The Admiralty remitted
Pennington's letter to Nicholas and Sir Henry Marten to frame
answers. The final opinion on the first point was that by the
law of the Admiralty both in England and France, the ships
were forfeited — that is to say, the same penalty applied as was
prescribed in King John's ordinance. It was, however, rarely,
if ever, carried into effect. The instructions on this matter
usually ran that punishment was to be inflicted at the place, or
the commander brought in to answer his contempt. When the
Earl of Northumberland asked a similar question in 1636, he
was told the offender should be " punished on the place." 3 In
Nicholas' opinion much more than the forfeiture of the ship
was required ; the offender, he thought, should be brought in as
a delinquent, and if he resisted he should be tried as a pirate ;
but this absurd interpretation was overruled.

On the other points it is not quite clear what the final
official answers were. Nicholas thought that when a superior
fleet was encountered, the English Admiral ought not to engage
rashly about the flag ; but if he once commanded the foreigners
to strike, then " the ships were better to be lost than his (the
king's) honour and sovereignty yielded." The opinion he gave
with regard to forcing foreign vessels to strike in foreign ports

. 1 14th October, 12th November 1631. State Papers, Dom., cci. 54 ; cciii. 32.
2 Ibid., cclxiii. 75. 3 Ibid., cccxvii. 102.

CHARLES I.:.. THE NAVY 279

was in these words: "For ye French roades," he said, "ye
king of England's ships should suffer none to wear ye flag but
themselves : but in other roades after salutes both may weare
ye flag without dishonour." The exceptional treatment pro-
posed for ships in French roads may have been in part owing
to the political circumstances of the time, but probably chiefly
had reference to ancient custom and the old claims of England
to the soil of France. Charles still styled himself King of
France ; and later Selden argued that though English dominion
. had been lost in France itself, it nevertheless extended over the
sea up to the very shores. It became the common practice to
enforce the homage on the coast of the Continent, but not
within harbours, ports, rivers, or within buoys, or at any place
under the command of the guns of forts or castles.1 The Earl
of Northumberland, on repeating Pennington's question in
1636 as to Calais, Dunkirk, and the Briel, was told that the
homage was to be exacted "in the roads out of command of
any forts."2

There was always some doubt as to the etiquette of the salu-
tation between ships and forts or castles. Dutch vessels were
fired on and detained at Portland Castle in 1633 for putting up
their flags in the presence of the king's colours, which were
flying on the walls ; and the act was justified to the States'
ambassador when he complained about it. In the year before,
the commanders of the Castles at Deal and Walmer fired upon
a French man-of-war that came in with his flag in the main-
top, because after taking it down when requested, he hoisted it
again on going away. " I gave him five shots," said the Captain
of Deal, " without hitting him," and he added that the Council
on a previous occasion approved of a like action against the
Dutch, who had never since offended, but he had never heard of
the French attempting it before. The Admiralty asked Penn-
ington's opinion as to the proper course, and he said he thought
that all the ships of his Majesty's subjects and of foreigners
and strangers should strike their flags and top-sails as they
passed by any of his Majesty's castles ; such, he said, was the
custom in all parts of Christendom, " which, being done, they
may ride under the castles with their colours flying abroad if
there be none of the king's own ships present." The king's

1 State Papers, Dom., cclxv. 23, 25, 41, 49. 2 Ibid., cccxvii. 102.

280 THE SOVEREIGNTY OF THE SEA

castles had thus not so high a status as the king's ship ; but the
military officers were not less zealous than those of the navy.
Pennington himself had an amusing illustration of their zeal,
for in 1631 Sir William Killigrew, the Captain of Pendennis
Castle, persisted in " spending the king's powder " in shooting
at the Bonaventure, Pennington's ship, for not striking its flag
to the castle, — "a thing," said the Admiral, "never used by a
king's ship, nor would he be the beginner of it." Fortunately,
the gunnery of the time was wild; but Killigrew had to be
summoned before the Admiralty, rebuked, and, " upon "submis-
sion, discharged with strict command never more to offend in
that kind," before the practice ceased. The Admiralty also
issued an order to the notorious Sir James Bagg, the Governor
of Plymouth and the Vice- Admiral for South Devon, strictly
forbidding that any castle or fort under his command should
fire upon the king's ship, even if passing near with their flags
on the top of any of their masts, " for," he was told, " they are
as absolutely his Majesty's castles or forts, though floating, as
that under your command." l

As was to be expected from the attempted maritime rivalry
openly displayed by France, and from English policy at the
time, our naval officers vied with one another in compelling
homage to the flag. The Dutch, both merchant vessels and
men-of-war, more particularly the latter, usually struck at once
to the English ships. If they showed reluctance, or hoisted
their flag again too soon, they were fired at. The English cap-
tains insisted on the right off Continental ports. Thus Captain
Richard Plumleigh, having gone to Calais in 1632 to bring over
the corpse of Sir Richard Walker, late British ambassador, in
his ship — well named the Assurance, — "bestowed some powder
on the French flags," and caused all the French shipping in
Calais Road to take in their colours, " at which," he said, " they
repined heavily." Some of the States' men-of-war also riding
in the Road took the side of the French, and sent to Plumleigh
to say that they knew no reason why he should demand super-
iority on that side of the sea, and " threatening " to wear their
flags there as well as he. But Plumleigh boldly returned a
message — what he called " a cooling card " — to their Admiral,
saying that if he showed a Dutch flag there, he " would sink

1 State Papers, Dom,, cci. 59; ccii. 17; ccciii. 71, 79 ; ccx. 58; ccxxxiv. 37;
ccxlviii. 81.

CHARLES I. I THE NAVY 281

him or be sunk by him," which caused him to keep his colours
close.1 In the following year, Captain Ketelby, of the Bonaven-
ture, was sent to Boulogne to bring over another ambassador
(Lord Weston), and finding the Admiral of Amsterdam in the
Road with his flag up, he " gave her a shot," when she struck it
and presently hoisted it again. Ketelby then sent his lieuten-
ant to command him to take in his flag or prepare to defend it.
The Dutch Admiral argued, and kept it up till Ketelby was pre-
paring to shoot again, when he took it in. Two days later
another Dutch admiral, this time the Admiral of Holland, came
into the Road with ten or twelve ships of war ; within a reason-
able distance he struck his flag: twice and saluted with seven

o

pieces, and then he also hoisted it again. Ketelby " conceived
this homage not sufficient," and notwithstanding the disparity
of force, sent him a command to take in his flag, which he did,
and kept it in till the Bonaventure departed. Such incidents
show both the domineering conduct of the English captains
and the forbearance and good sense of the Dutch, who acted
in obedience to the strict orders they had received to strike
to the English ships. But nearer home Ketelby had not so
much glory. On returning with the ambassador he met ten
sail of Hollanders on the English coast between Dover and
Folkestone, one, a States' man-of-war, bearing his flag on the
main-top, while a merchant vessel had his top-sails "a-trip."
Both were obdurate as to rendering the accustomed homage,
and in spite of the fact that Ketelby sent twenty shot "in
and through" the sides of the merchantman, she would not
lower her sails in the least.2

1 State Papers, Dom., ccxx. 25, 26.

2 Ibid., ccxxxiv. 5, 32. "The Ambassador and the other Lords being at dinner
in the great cabin, the gunner sent word that a Hollander was passing with his
top-sails a-trip, to whom he gave order to make a shot. The Lords and gentlemen
left the table to see the event, but the Hollander, neither for that shot nor two
or three others, would lower the same one foot ; whereupon he gave order to shoot
him through, which was done, with as much speed as they could bring ordnance
to bear, so as before she passed she had twenty shot in and through her sides,
which they heard to crash in the same. They could perceive but one piece she
had forth ; to that fire was given twice. The shot came not near, but they might
well hear the same. After her came the Admiral with his flag on the main-top."
Ketelby cleared for action and was giving orders for a broadside ; but the am-
bassador twice desired him to give over and stand for Dover, and he submitted.
If it had not been for his passengers, Ketelby did not doubt he would have brought
them in to answer the contempt.

THE SOVEREIGNTY OF THE SEA

In many instances peaceful merchant vessels suffered greatly
over this question of striking. During the cruise of Lindsey's
fleet, Dutch men-of-war, and also a Danish warship, struck
without hesitation, even at Calais. So also as a rule did the
merchant vessels ; but sometimes they transgressed the rule, it
might be from ignorance, and then they were exposed to harsh
treatment. Thus, three great ships of Amsterdam bound for
Pernambuco, on meeting the Constant Reformation off Ply-
mouth, did everything required of them ; but hoisting their sails
before they got clear of the Vanguard, the latter gave them
six pieces of ordnance, twice sending a cannon-ball through the
hull of one of them. Then for a similar reason, too great an
alacrity in re-hoisting her flag, another Hollander was shot
through with five pieces by the Rainbow. So anxious were
the English officers to compel the homage that they sometimes
demanded it at night. The Freeman, returning from convoying
merchant-ships to Dunkirk, met in the night-time a fleet of
Dutch merchantmen with one convoy accompanying them, and
shot to make them strike. In the darkness the traders took the
English ship for a Dunkirk privateer and made what haste
they could away. The States' man-of-war, coming up to the
rescue, approached so near the Freeman before she discovered
what she was (and then immediately struck) that a collision
occurred, the bowsprit of the English ship being broken, while
her anchor carried away the Dutchman's chains and stays.
The Dutch captain then came on board, humbly asked pardon
for what had happened, excused himself by the night and the
mistake, offered to go before the Lord Admiral, and paid for the
bowsprit and the shot.1

While the Dutch were thus forbearing, the Dunkirkers, the
proteges of Spain, for whom Charles was supposed to be
making sacrifices, were refractory. They refused to strike to
the Vanguard lying at anchor off Gravelines, although it fired
many times at them : before the anchor could be got up they
were off, and it was useless to follow. They sent a message
that they did not care for the English now, and would not
strike. On the other hand, just as Lindsey reached the Downs
at the beginning of October, Captain Stradling in the Swallow

1 State Papers, 'Dom., ccxcv. 13 ; ccxcvii. 28 ; ccxcviii. 16. It was the usual
practice to make the offender pay for the shot.

CHARLES I. : THE NAVY 283

let the French Admiral, for whom the Earl had been search-
ig all summer, off Falmouth with two ships. He immediately
lot at him, and he struck his top-sails and saluted. But this
on the English coast, and was not contrary to Richelieu's
structions. The French, 011 their part, a week or two after-
rards forced an English merchant vessel to strike "for the
:ing of France."1

Perhaps the worst offenders of all were the British merchant-
len. Again and again the naval commanders complained to
le Admiralty of their remissness or neglect to strike, which
ley said set a very bad example to foreigners. Pennington
sported to the king that they passed his ships in the narrow
not only without speaking, but even "presumptuously
rearing their flag at the topmast head" until forced to take
in; and he recommended the king to issue a proclamation
)mmanding all ships to speak with the king's ships and give
in account of themselves, or be subject to fine and punishment.
Pennington asked what he was to do if any of the king's sub-
jects were so stubborn as not to strike their flag and top-sails
in due time : " I meane," he said, " soe soone as they come
within distance of our ordynaunce." On this Sir Henry
Marten recommended that when an English ship did not strike
in time, the naval captain should complain to his Admiral or
to the Admiralty. He was strongly of opinion that too much
discretion should not be left to the naval officers in this matter.
It was, he said, too much to hazard an English ship being sunk
or English lives lost on a point on which a mistake might
easily be made.2 The official instruction given to the officers
was either to punish the offenders themselves or to report them
to the Admiral or to the Admiralty. Neglectful merchant
vessels were sometimes severely punished. In April 1632,
when Lady Strange and a large party of Lords, with a great
retinue, went on board Pennington's ship, the Convertive, lying
in Tilbury Hope, a merchant ship, the Matthew of London,
passed up the river "in an insolent manner," not striking his
flag until he had come up with the Convertive, and soon hoist-
ing it again notwithstanding the shots Pennington fired at
him. For this the master was lodged in jail, and was only
released on expressing his contrition to the Lords of the

1 State Papers, Dora., ccc. 43 ; ccci. 28 ; ccxcix. 21. 2 Ibid., cclxv. 49.

284 THE SOVEREIGNTY OF THE SEA

Admiralty. The Earl of Lindsey took a sharper course in a
similar case. On returning to the Downs, no doubt irritated
from his failure and smarting under Coke's gibes, he pounced
upon two English merchantmen who had presumed to wear
their flags within full view of the fleet, "almost within com-
mand of shot," and in the presence of nearly 200 sail of
British and foreign ships. The masters were at once seized,
brought on board and put in custody, and a day or two later,
a council of war having been called and Sir H. Marten con-
sulted, one of them, William Bushell of Limehouse, captain of
the Neptune, was fined £500, and the other, Thomas Scott of
Ratcliffe, was fined £100, for so gross a misdemeanour.1

From the foregoing it is evident that in those days peaceful
merchant vessels traversing the narrow seas had not a very
happy time. It must often have been irksome in the extreme
to the masters, probably not always understanding the minutiae
of the rules, — which, indeed, the naval captains themselves
sometimes failed fully to comprehend, — to render due and
proper homage to the English flag. To compel foreign men-
of-war to salute the king's ships was a different matter. It
flattered the national vanity and kept alive the national aspira-
tion for power on the sea, and it did not interfere with the
duties of the men-of-war which gave the salute. But to the
merchantman anxious for his voyage, often undermanned and
contending with turbulent seas, it must have been vexatious
to be called upon every now and again to lower his top-sails
to a king's ship, or take the risk of a shot through his sides
or a heavy fine. The inconvenience led later to a modification
in the practice, so far as concerned English vessels, it being
insisted on only "when it could be done without loss of the

1 Ketelby and Viscount Conway explained that it was necessary to punish them
in a public manner, since imprisonment in the bilboes and such corporal punish-
ments were not effective. Conway recommended Scott's fine to be remitted, owing
to his worth and poverty, as well as from the fact that he had recently been taken
captive by the "Turkish" pirates, and his ransom was not all paid. Bushell, as
we learn from a petition ' ' of divers poor men, women, and children, whose kindred
are now in slavery at Argier and Sallee," had redeemed and brought home thirty
of the captives ; and it is probable that neither of the fines was exacted. It is
doubtful if Lindsey's action was regular, for the vessels, according to his statement,
had not come within gunshot. The Neptune was one of the three ships fitted out
by London for Northumberland's fleet. State Papers, Dom., ccxv. 28, 65, 67 ;
cclxv. 50 ; cclxiii. 75 ; ccxcvi. 30, 34, 37 ; ccci. 31.

CHARLES I. : THE NAVY 285

voyage " ; l but it may be said here that the regulation with
regard to merchant vessels striking to a man-of-war was
always afterwards embodied in the Admiralty instructions,
offenders being reported to the Admiralty, and proceedings
often taken against them in the Admiralty Court.2

1 Molloy, De Jure Maritime et Navalis, 149.

2 Regulations and Instructions relating to his Majesty's Service at Sea, 1734, 1766,
1790, Art. xi. ; 1808, Art. xxiv. A case of the kind occurred in 1829. Phillimore,
Commentaries upon International Law, ii. 58.

286

CHAPTER VIII.
CHARLES I. NAVY — continued.

CONSIDERING the failure of his foreign policy and the in-
glorious fiasco of the first ship - money fleet, it might be
supposed that Charles would pause in the unusual method he
had adopted of wringing money from the country for empty
displays. While the Earl of Lindsey was still cruising at sea,
and before the issue of the second ship-money writs, he knew
that his schemes had miscarried. He was left drifting about
without any definite policy, but still clinging to the plan of
the restoration of his nephew to the Palatinate as the one
thing before him. He was equally ready to ally himself with
France against Spain, or with Spain against France, whichever
would be most likely to aid him in realising that object;1 and
as he had neither money nor troops to attract a Continental
alliance, his only pawn lay in the navy. In the summer of
1635, while Selden was busy in the Temple at his book, it was
resolved to equip a fleet far more formidable than Lindsey 's
for the following year. Coventry made his speech to the
Judges in June, and in August the second writs for ship-
money were sent out. In this case, as is well known, they
were addressed not only to the coast towns but to the whole of
England, with consequences notorious in English history. The
number of ships it was at first intended to set out was forty-
five, totalling 21,850 tons, and with 8650 men, the estimated
cost being £218,000.2 At the beginning of December the Ad-
miralty considered what number should be set out in the
spring ; and by an Order, of the King in Council on December

1 Gardiner, op. cit., viii. 84. 2 State Papers, Dom., ccxcvi. 69 ; cci. 26, 97.

CHARLES I. : THE NAVY 287

27th, it was decreed that twenty-four should be prepared
"for guarding the narrow seas," while ten other ships should
be got ready as a second fleet to reinforce the first, or to take
its place later.1

The second ship-money fleet was placed under the command
of the Earl of Northumberland, an able, accomplished, and
high-spirited young nobleman, much better fitted than Lindsey
was for the office of Admiral. This fleet is usually said to have
been the most powerful ever set out by England up to that
time.2 According to Northumberland's Journal, it consisted of
twenty-seven vessels, all of which were king's ships, except
three which had been fitted out by London. Sir John Pen-
nington was appointed Vice-Admiral and Sir Henry Mervin,
Rear- Admiral.3

But what was to be done with the fleet ? That was a
question put by Windebank in the autumn of the previous
year. The king had remitted to the Foreign Committee two
inquiries : what answer he should make to the French am-
bassador concerning "a nearer conjunction" with France; and
whether he should declare his neutrality. Windebank argued
against either a French alliance or a declaration of neutrality.
Against the former proposition he urged four reasons, one
being that the French "had challenged a joint sovereignty
on the sea with his Majesty " ; and against the latter that the
French and Hollanders would besiege Dunkirk or some part
of Flanders, and the king would have to sit still and suffer
it to be lost, or break his neutrality. " Besides," said Winde-

1 State Papers, Dom., ccciii. 74 ; cccv. 36, 38 ; cccxi. 1. The total number of
men in the first fleet, which included five of the " Whelps " and two pinnaces then
building, was to be 4580 ; in the second, in which were included two "Whelps," it
was to be 1890.

2 Hume (Hist. Eiv/1., ch. lii. an. 1636), following earlier writers, places the
number at sixty. Thus Fraukland (Annals of King James and King Charles the
First, 477 (1681)) speaks of "sixty gallant ships." Baker (A Chronicle of the Kings
of England, 455 (1679)) and others, including most of the naval historians of the
eighteenth century, give the same number.

3 Northumberland's Journal, State Papers, Dom., cccxliii. 72. Pennington, on
hearing of the appointment of the Earl of Northumberland, wrote in February
1636 to the Council expressing his satisfaction ; verily believed he would carry
himself like a general in all respects, unless led away, " as the last was, by such as
neither knew the honour of the place nor the way of managing the service for the
honour and safety of the kingdom."

288 THE SOVEREIGNTY OF THE SEA

bank, clinching his arguments, "what was to be done with
the fleet next year if his Majesty declared his neutrality ?
it must lie still and do nothing."1 Apparently the problem
of what was to be done with the fleet was not quite solved
until the February following, though there had been several
tolerably clear indications that one part of its duty at least
would be the suppression of unlicensed fishing on the British
coasts. Selden's Mare Clausum was issued from the press
in December 1635, and it was with great satisfaction that
Charles welcomed it (see p. 368). The idea of playing the
more distinguished role of Lord of the Sea was not therefore
likely to be abandoned because Lindsey's fleet had been able to
do nothing.

At the same time Charles thought he might get some money
as well as honour by means of his fleet, and he submitted two
propositions to the Lords of the Admiralty for their considera-
tion in employing the fleet " for his honour and profit " : first,
in "wafting and securing" foreign merchant vessels passing
through his seas; second, in protecting all such fishermen as
should fish under his license upon his seas and coasts. With
reference to the latter suggestion, Sir Henry Marten delivered
an elaborate opinion to the Admiralty. He recited how King
James, after long and mature deliberation, had satisfied himself
and resolved that the fishing " in his seas and upon the coasts
of his dominions, did justly appertain unto him as a right
incident to his crowns, " and had issued a proclamation declar-
ing his title and forbidding unlicensed fishing by foreigners.
He also explained that the United Provinces had then sent over
commissioners who alleged continued custom and • present
possession of the fishings, "mentioning withall some treaties
that had been heretofore between the Kings of England and
the Dukes of Burgundy " in favour of their liberty of fishing.
After hearing Sir Henry, the Admiralty expressed a unani-
mous opinion that " the right and royalty of that fishing upon
your Majesty's coasts doth undoubtedly belong unto your
Majesty by inheritance, so as you may justly prohibit or license
all strangers at your royal will and pleasure. " They further
declared that by reason of his strength at sea, the time was
then most fitting to put his claim into execution; and they
1 State Papers, Dom., ccxcviii. 63.

CHARLES I. : THE NAVY 289

recommended that the States' ambassador should be informed
that the king had not relinquished his right to the " royal fish-
ing, " but was " resolved to defend it as the hereditary right
and possession of any other of his dominions." This intima-
tion was to be wrapped up in sophistries, lest the Dutch should
think the king challenged it at a time when they had most
need of his favour and grace. James had offered them a bare
license for liberty to fish ; Charles was to offer them safety and
security as well, and the depredations which the Dunkirk priv-
ateers had committed on the herring-busses were to be used as
'an impressive argument to convince them of the benefits they
would receive from his protection. The privateers had driven
them from the fishing, even in sight of English harbours, by
which the king was prejudiced both in honour and interest;
but if they accepted his licenses he might feel justified in draw-
ing his sword in their defence, in spite of any league or treaty.
If, however, the Hollanders should be so wanting in discretion
as to refuse the royal licenses, the Lords of the Admiralty were
"all clear of opinion that his Majesty should renew and publish
the like proclamation to that of the King his father, and prose-
cute the settling of that his right as a thing so highly concern-
ing him in honour, dominion and profit."

As to the second proposition, the convoying of foreign mer-
chant vessels, the Admiralty were more guarded in their opinion.
They all agreed that the king was entitled to have profit by it,
but not by way of a general imposition on all ships passing
through his seas, as Charles, fresh from the perusal of Mare
Clausum, apparently had proposed. That, they said, would
loubtless " draw a just complaint and clamour " from the
leighbouring princes and their subjects. The best course, they
thought, was for a tribute to be taken from such vessels as
lesired convoy, in proportion to the value of the ship and the
length of the waftage. The King of England was thus to hire
)ut his ships of war when any foreign vessels were willing to
iy for their employment.1

The instructions to the Earl of Northumberland were issued
the Admiralty on 7th April, and they were substantially the

1 The Lords of the Admiralty to the king, 24th February 1636. State Papers,
»n. , cccxiii. 24, 25. The documents are in Windebank's writing ; the first is
endorsed "Fishing. Waftage. An excellent Piece." See Appendix I.

T

290 THE SOVEREIGNTY OF THE SEA.

same as those given to Lindsey in the previous year. In the
clause referring to hostilities in the presence of the king's ships,
the phrase, "in any part of the Narrow Seas," in Lindsey 's
instructions, was replaced by the words "in any part of his
Majesty's seas," — an alteration of some importance in view of
Coke's description of the extent of them ; and the same change
was made in the title of his instructions.1 The king also gave
the Earl private and verbal commands, particularly .as to the
operations to be conducted against the Dutch herring-busses.
The fleet mustered in the Downs, the Earl embarking in the
Triumph on 14th May. Leaving some of the ships to convoy
merchant vessels and guard the Straits of Dover, he hoisted
sails on the 20th, and stood away westwards in search of the
French fleet. It was known that a large number of ships had
been equipped by France and lay at Rochelle ; and Pennington
had reported at the end of February that twenty-four States'
men-of-war were at Amsterdam, ready to come out and join
the French, and that they were to wear French colours. It
was believed that the intention of the allies was to lay siege to
and blockade Dunkirk, and Northumberland was ordered to
keep a watch on them and to force them to strike. On leaving
the Downs he passed over to the French coast, sailing along it
within sight of Calais, Boulogne, and Dieppe, and then stood
over for the English coast. On 26th May he was at Portland ;,
thence he passed westwards to the Lizard, and cruised between
it and Ushant and within sight of the French coast till llth
June, when the fleet put into Plymouth. During all this time
they got no glimpse of the fleet for which they were seeking,
but they had frequent reports from passing vessels that it was
at the Isle de Rlie", and numbered between forty and fifty sail,
most of which were small and unprepared to put to sea. With-
in ten days of leaving the Downs, Northumberland had
apparently satisfied himself that they would see nothing of the
French that summer; he thereupon reminded the Admiralty
that the fishing season was approaching, and requested to know
the king's pleasure as to whether he should go northwards.
On the 14th, the Admiralty informed him that as the season

1 "Instructions for our very good Lord, the Earle of Northumberland, Admirall
of his Majesty's fflete in his Majesty's ship the Triumph, prepared for this present
Expedicion for guard of his Majesty's Seas." State Papers, Dmii., clvii. fol. 141.

CHARLES I. I THE NAVY 291

for fishing began about the 20th June, he was to repair to the
northwards as soon as his other business would permit.
Northumberland received this letter at Plymouth on the 22nd,
together with other information that the French fleet had
passed towards Dunkirk. He thereupon hurried eastwards,
arriving at the Downs on 24th June, and finding that the
report as to the movement of the French fleet was false, pre-
pared for the campaign against the Dutch fishermen.

The Channel cruise of Northumberland's fleet was thus as
barren of result as had been Lindsey's in the year before. He
fell in with a few Dunkirk privateers, far too nimble to be
caught up by the " great unwieldy " English ships. When in
Portland Road, a glimpse was got of eight large ships at a
great distance, which were thought to be States' men-of-war.
Northumberland stood towards them, but as soon as they per-
ceived the movement they tacked about and were speedily out
of sight. "They are so well built and fitted for sailing,"
remarked the Earl, "that I can never come near when they
have a mind to avoid, unless by chance." It has indeed been
well said that whether Charles was sovereign of the seas or
not, he could not build ships that would sail.1 For the same
reason the English vessels were unable to find the " Turkish "
pirates, which, when the Earl put into Plymouth, came out of the
Irish seas, and carried off about thirty English fishermen into
captivity. During Northumberland's cruise, Captain Carteret
with six ships was busily employed in convoying such trading
vessels "as desired it" from the English coast to Dunkirk or
Ostend, "taking an acknowledgment in money of strangers."2

But if Northumberland was foiled by the Fabian tactics
of Richelieu, as they had foiled Lindsey, with regard to the
striking of the flag, he succeeded in forcing the Dutch fisher-
men to take the king's license, a policy which Charles had
contemplated long before even the first ship-money fleet was
equipped. We have already seen how the Scottish burghs

1 Gardiner, viii. 157. The English ships were "clogged with timber," which,
however, served them well in the first Dutch war when they were pitted against
the slighter-built ships of the States. (Oppenheim, op. dt., 254.)

a State Papers, Dom., civil fol. 1416 ; ccxiv. 107. The Earl of Northumberland
to the Lords of the Admiralty, cccxxi. 44, 45, 65, 78, 87 ; cccxxii. 16, 40 ; cccxxv.
78, 79 ; cccxxvi. 16, 38 ; cccxxvii. 42, 73. The Lords of the Admiralty to North-
umberland, 14th June, cccxxvi. 32.

292

THE SOVEREIGNTY OF THE SEA

in the course of the negotiations about the Fishery Society, re-
peatedly insisted that the unwelcome Hollander should be driven
from their seas (see pp. 227, 234). As early indeed as 1630
rumours were rife in Paris that a fleet of fifteen English ships,
under the command of Sir Kenelm Digby, was to be equipped
for this purpose ; l and there were signs from other quarters
of what was impending. In 1634 Sir Nicholas Halse addressed
a treatise to the king on Dutch trade and fisheries, like those
so profusely bestowed on James, in which he drew a lively
picture of the ills which arose from their predominance. The
yearly profit derived by the Hollanders from their fishing in
the British seas he placed at £6,000,000 sterling, which enabled
them to maintain their wars ; and yet they were so ungrateful
as to say that England would never be well governed until
they had the governing of it. He recommended that the
Hollanders should be licensed to enjoy half the fishings, a
course which he said would make Charles the most powerful
sovereign in Christendom, — superlatives and hyperbole never
being stinted in such forecastings.2 Then a very influential
body, the Merchant Adventurers, exasperated by certain
measures taken by Holland and the States - General with
respect to their staple at Amsterdam, petitioned the Council
to retaliate, and among their retributory suggestions was the
prohibition of the Hollanders from fishing on the British coasts
or drying their nets on the English shore.3 It would appear
indeed that originally one of the principal ostensible objects
of the fleet of 1635 was to force licenses on the Dutch. Thus
Nicholas, the Secretary to the Admiralty, who was not in the
secret of the Spanish negotiations, in a memorandum drawn up
in that year, suggested that the duties of the fleet should be
the suppression of piracy about the mouth of the Straits, and
the establishment of the king's rights to the fishings in the
eastern and northern seas.4

The course upon which Charles had now embarked in refer-

1 Rowland Woodward to Francis Windebank, 16th December 1630. State Papers,
Dom., clxxvii. 13. The writer said he " much feared the event if it should be put
in execution."

2 Ibid., cclxxix. 67.

* Petition of the Governor, Assistants, and Fellowship of the Merchant Adven-
turers of England to the Council. Ibid., cclxxxix. 91.
4 Ibid., cclxxxv. 84.

CHARLES I. : THE NAVY 293

ence to foreign fishermen was a revival of the policy of the
"assize-herring" of James. No foreigner was to be allowed
to fish in the British seas without obtaining, and paying for,
a license from the king. James, as we have seen, demanded
his right in a pettifogging way, sending a scarcely-armed and
half -dismantled pinnace among the busses, with a lawyer on
board, to ask the tribute in fair and gentle words, and if refused
"to take out instruments upon the said refusal." Charles
sent his Admiral with a powerful fleet, and with instructions
to force the fishermen to take the licenses in spite of all
opposition. The first step was to issue a formal proclamation
like that issued by James in 1609, forbidding unlicensed
fishing by foreigners. The opinion of the Lords of the Admir-
alty and their legal adviser (to whom appertained the juris-
diction of the fisheries) being emphatically in favour of the
king's claims, the draft proclamation was drawn up and sub-
mitted to them on 3rd May.1 It was approved, and published
to the world on May 10th, four days before Northumberland
joined the fleet.

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

1 State Papers, Dom., cccviii. 48 ; cccxx. 14.

294 THE SOVEREIGNTY OP THE SEA

allies, who shall henceforth, by virtue of our license (to be first
obtained) endeavour to take the benefit of fishing upon our
coasts and seas, in the places accustomed."1

In connection with the proclamation several hundred licenses
were prepared, the precise form of which appears to have
occasioned some trouble.2 The duty of drawing them up had

1 A Proclamation for Restraint of Fishing upon His Maiesties Seas and Coasts
without License. State Papers, Dom., cccxx. 62. Fcedera, xx. 15.

2 The form annexed to the Earl of Northumberland's instructions, sent to him
on 14th June from Hampton Court, and which he received at Plymouth on the
22nd, is as follows : —

"CHARLES R.

" We are gratiously pleased by these Presents to grant Lycense to ... to fifeh
with the Men and Company belonging to a Ship or Vessel called the . . . being of
the Burthen of ... Tonnes, upon any of Our Coasts or Seas of Great Brittaine
and Ireland, and the rest of our Islands adjacent, where usually heretofore any
fishing hath been. And this Our Lycense to continue for one whole Year from
ye Date hereof : Willing and requiring as well all Our subjects as others of what
Nation, quality or condition soever that they give no Impeachment or molestation
to ye said ... or his company in the said Vessell in the Execution of this Our
Lycense, upon such Paines and Punishments, as are to be inflicted upon the
Violators of Our Royall Protection, and the wilful Breakers of Our Peace, in Our
aforesaid Dominions and Jurisdictions, further requiring and Commanding all Our
Admiralls, Vice-Admiralls, Rere-Admiralls and Captaines of Our Ships, Castles,
and Forts to protect and assist the said ... in ye quiet enjoying the benefit of
this Our Lycense."

Another form, dated in July, was as follows : —

"Charles by the Grace of God King of Great Brittaiue, France and Ireland,
Defender of the Faith, &c. To all his Admiralls, Vice-Admiralls, Rere-Admiralls,
and Captaines of oure Shippes, Castles and fforts, and to all and every other our
Officers, Ministers and subjects to whome it shall apperteyne, Greeting. Whereas
Wee are gratiously pleased by these presents to grant License to ... Master of a
Busse or Vessell called the . . . beinge of the burthen of ... Tonnes, To fishe
with the Men and Company belonging to the said Busse or Vessell upon anie of our
Coastes and Seas of Great Brittaine, Ireland and the rest of our Islands adiacent
where usually fishing hath bene, from the date hereof, to the last of December
next. These are to will and require as well Yow our said Officers and Subjects, as
others of what Nacion, quality, or condition soever That yow not onely give noe
impeachment or molestacion to the said ... or his Company in the said Vessell
in the Execucion of this Our License, upon such paynes and punishments, as are
to be inflicted upon the Violators of oure Royall Protecion and the wilfull Breakers
of our Peace in oure aforesaid dominions and jurisdictions : But that yow protect
and assist the said . . . and his Company in the quiet enioying the benefitt of
this oure License during the time before limitted : Given ..." Ibid., cccxxvi.
32 ; cccxxix. 77, 78, 79. It appears from copies without the names and particulars
filled in, which are preserved at The Hague, that the first form was used in July,
a certain Joost Bouwensz of Delfshaven having accepted one on the 24th (N.S.)
of that month.

CHARLES I. : THE NAVY

295

been remitted in April to Nicholas and Sir Henry Marten, and
)n June 14th 'a hundred of them were sent to Deal Castle for
le Earl of Northumberland, with instructions from the Lords
)f the Admiralty. The king, they said, had told them he had
already verbally given the Earl directions to charge the busses
which took the licenses at the rate of twelvepence a ton ; with re-
spect to such as might refuse to accept the license, he was " to
take order that they may not fish in the said seas ; and in case
they shall fish without license, he is to send their vessels and
•fish into some of his Majesty's ports till further order." The
Admiralty left to his own discretion what ships he should take
dth him, but they said he would require the bigger ships to
jpel such force as he might encounter, and the smaller ships
to apprehend the fisher-boats.

The fleet remained at the Downs, victualling, taking in
stores, and waiting for pilots acquainted with the northern
coasts, from 24th June to 19th July. The masters of
the ships were unwilling to risk the large vessels among
"the sands and flats" of the east coast, or where there were
no good harbours; and they were all of opinion that if they
went at all, they ought to leave before 12th July, in order
fall in with the herring fleet north of Buchan Ness. In
ly case they declined to go unless pilots were provided,
md these had to be obtained from the Cinque Ports and
Yarmouth. There was obviously much reluctance in the
leet to go on this expedition. The objections and difficulties
rere brought to the notice of the king, but Charles stood
rm, and expressed his "pleasure" that the northern voyage
lould be undertaken ; and Northumberland before leaving
rrote to Windebank to assure him that the fleet would
lecide the business they had in hand, for either the Dutch
fould take the licenses and pay the acknowledgment, or
jlse the fleet " would put an end to that work." There
)uld be no doubt of success, because the men, he assured
Tindebank, were full of resolution to do the king's service
ind gain credit to themselves. At the same time, he asked
for further instructions with regard to his stay among the
busses — those he had received, he said, being like oracles.1

1 State Papers, Dom., cccxix. 81 ; cccxxii. 40 ; cccxxvi. 32 ; cccxvii. 93 ; cccxxviii,
11, 41, 69.

296 THE SOVEREIGNTY OF THE SEA

On July 19 the English fleet weighed anchor and shaped
its course northwards in its expedition against the Dutch
herring-boats. It consisted of sixteen ships, one Whelp,
and a frigate; and both Vice-Admiral Sir John Pennington
and Rear-Admiral Sir Henry Mervin accompanied the Earl.
Contrary winds compelled them to come again to anchor,
but on the 22nd a fair breeze carried them to the north of
Cromer, on the Norfolk coast. On Sunday, 24th, when at
Tynemouth, the Admiral called all his captains together and
gave them precise instructions in the event of their meeting
with any considerable opposition from the States' men-of-war
guarding the busses. On the 25th, 26th, and 27th, foul and
misty weather caused them to ride at anchor ten leagues off
the coast. About noon on the 28th they descried sixteen
sail of herring-busses accompanied by one man-of-war; and
immediately the Dutch skippers observed the English fleet
they made off "with all the sails they could pack on."
Northumberland's unwieldy ships started in pursuit — "but
in vain," wrote the Earl, "for none of our ships could come
near them." The States' man-of-war was less fortunate or
more courageous. It was from the first far astern of the
busses, and it was soon overtaken by the Swan — which, it
may be noted, was a Dunkirk privateer that had been captured
and converted into an English warship. Northumberland
kept the Dutch captain on board his own ship, the Triumph,
all night, expecting, as he said, that the busses would not
go far without him — for of course they were liable to be
swooped upon by the privateers. But the fishermen now
feared the Dunkirkers less than they feared the English
fleet, and the Earl's ruse failed. After dark he sent off
four ships to try to surprise them at their nets, but "they
plied away all night without making any stop." l They
were well aware of the mission of the fleet, but they had
no mind either for the license or the protection of the King
of England. Next day Northumberland, finding that the
busses " trusted only to their good sailing " and did not return,
and that the convoying men-of-war were not likely to be

1 The herring-busses in ordinary course fished all night in fleets, with their
drift-nets floating in the water ; during the day the crews were employed in
curing and packing the herrings caught.

CHARLES I. : THE NAVY

ible to oppose him, — two or three "very meane ships only
ible to defend them from the Dunkirk frigates" accompany -

ig each fleet of busses, — and hearing, moreover, that the
)rincipal fishing was past and most of the busses gone
lome, resolved to divide his fleet into three squadrons, the

jtter to meet in with those which remained. Sir John
}ennington was sent to the north as far as Buchan Ness,

Fig. 10. — Dutch Herring-busses under sail. After Van der Meulen.

and Sir H. Mervin to the south as low down as Flamborough
Head, each with instructions to use his best endeavours to
get the Dutchmen to take the king's licenses, while the Earl
himself plied "to and again" between them. Next day —
Saturday, 30th July — being misty and calm, Northumberland's
squadron lay at anchor. About noon they espied four or
five sail at a distance, and as there was not a breath of

298 THE SOVEREIGNTY OF THE SEA

wind, the boats were ordered to take the frigate in tow and
go towards them ; but a breeze soon springing up, all the
ships weighed anchor and stood after them. On getting up
to them they proved to be a Hollander man-of-war and
a few busses; but the fog was so great that they were
unable that night to get more than three of the busses, the
skippers of which, as well as the commander of the man-
of-war, were brought on board the Triumph. On Sunday
four other busses were captured, and having been manned with
English sailors and threats made that their nets would be
taken from them, they at last consented to receive licenses
and pay the acknowledgment, and Northumberland sent
them away "very well satisfied."1

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

1 "Next day wee fetched in 4 more of them, and having caused their busses
to be manned with English, and threatened the takeing away their nettes, they
at last consented to take Licenses, and paying the acknowledgment I sent them
all away very well satisfied." These busses belonged to the Enkhuisen herring
fleet, which was convoyed by a warship under Captain Gerrit Claesz. Ruyter,
to whom Northumberland, after the licenses had been accepted, gave a written
certificate and safe-conduct for bringing in the busses. Muller, Mare Clausum,
269, 377.

2 These were the Delfshaven busses, the skipper of one being Joust Bouwensz,
previously referred to. According to the Dutch accounts, money was scarce on
the busses, but the English very willingly took herrings instead, a barrel of herrings
being reckoned at from four to four and a-half florins.

CHARLES I. : THE NAVY

299

back to port by reason of "divers desertes," which made
them unfit to keep the sea longer.1

Passing to the southward of the Firth of Forth on 10th

Fig. ii. — Dutch Herring-busses hauling their nets, with convoying ship-of-war.
After Van der Meulen.

August, the English squadron, before the day broke on the
llth, had the good luck to sail into a great fleet of about
two hundred busses, which were guarded by five States' men-
of-war. To thirty -five of these fishing -boats Rear- Admiral

1 These were the Victory, Repulse, and Swallow. From a report of the Officers
of the Navy to the Admiralty, on 20th August, we learn that the Repulse had a
great many sick on board — "some three or four having died within these two
days ; some thirty sick were landed at Margate and eight are ill on board. The
Burgeon is dead, as is said of the spotted fever, full of spots, and it is much doubted
that the pestilence is amongst them. " The plague in this and the following year
made great ravages in London and at the naval ports, partly from the want of
simple precautions — e.g., in this case the sick men were to be discharged "for fear
of infection (of the ship) and to cease a needlesse charge." State Paper*, Dom.,
cccxxx. 61.

300 THE SOVEREIGNTY OF THE SEA

Mervin, whose squadron was found here, had given licenses
on the previous day, and Northumberland now distributee
about a hundred more amongst them, and left the Convertive
the Bonaventure, and the Fifth Whelp to act as a guard tc
them on behalf of the King of England, with spare licenses
for any other busses that might require them. Next day
Northumberland disposed of a few more licenses and came
to anchor, lest the ships should damage the long drifting-nets
of the fishermen. But a heavy gale coming on and threat-
ening to increase, the Admiral fired a warning gun and
weighed at break of day on the 13th : so furious was the
wind and sea that two of the vessels broke loose, and others
had the greatest difficulty in getting up their anchors, and
the English fleet was dispersed. The Triumph made for
Scarborough, where it was joined during the next few days
by the rest of the fleet, and then they all left for the
Downs. On the morning of the 20th they descried twenty
sail of good ships, and on filling sails and standing to them
they found they were Dutch men-of-war, under Van Dorp,
who, as we shall see, had been sent by the States -General
to protect the busses and prevent the acceptance of the
English licenses. The Dutch ships, as the Earl carefully
recorded in his Journal, "tooke in all their flaggs, strucke
their topsails, and every ship one after another saluted us
with their guns, which we answered." Van Dorp went on
board the Triwmph to explain to the English Admiral the
reason of the presence there of the Hollander squadron, anc
when they departed they again saluted. On 22nd Augusl
the English fleet cast anchor in the Downs, and Van Dorp
having arrived too late to carry out the instructions of his
Government, returned to the Flemish coast.1

From the foregoing narrative it is clear that the Dutcl
fishermen evaded as much as they could the acceptance of
the king's licenses. They endeavoured to escape when escape
was possible, and only yielded when they were threatened
with the loss of their nets and the interruption of their
fishing; and it would have shown little wisdom for the

1 The account of the movements of Northumberland's fleet is extracted from his
"Journall of oure Summer's Voyage in the yeare 1636." State Papers, Dom.,
cccxliii. 72.

CHARLES I. : THE NAVY 301

few small men - of - war guarding them to have attempted
resistance to a force so superior. Northumberland, how-
ever, in his report, while explaining that from the lateness
of the season they had encountered fewer busses than they
expected, said that "those we could come to speak with,
when they were made to understand the business, have
been very willing to take licenses, and are most desirous
of the King's protection." About two hundred licenses, he
stated, had been distributed among the busses, and others
vtrre left with the ships he had appointed as their guard.1

As was to be expected, the revival in England of the
policy of James as to unlicensed fishing by foreigners on
the British coasts occasioned serious concern in the United
Provinces. Since Charles came to the throne the Dutch had
been careful to repress as much as they could any cause of
further complaints from Scotland. In 1628, when they were
informed of the continued " insolencies " of their fishermen,
the States-General renewed their previous edict (see p. 179),
and gave instructions that extracts from it should be sent
to the Chancellor of Scotland ; and they issued peremptory
orders to the captains of the convoying ships and the masters
of the busses and others to obey it strictly.2 When the
Fishery Society was instituted, the States were kept advised
by their ambassador in London of its progress and of the
measures proposed to be taken at the Hebrides and on the
east coast; and although they soon perceived that they had
very little to fear from it in the sphere of commercial com-
petition, they rightly suspected that the project foreshadowed
the revival of exclusive claims to the fishery, such as had
given them so much trouble under James.3 We have noted
also how anxiety was aroused in Holland over the equip-
ment of Lindsey's fleet, and that Joachimi, their ambassador,

1 Northumberland to Windebank, 16th August 1636 (from Scarborough). State
Papers, Dom., cccxxx. 41. About 400 licenses in all, each signed by the king,

! had been furnished to the Earl.

2 20th Dec. 1628. " Clachten van de insolentien van 't bootsvolk en de visschers
deser landen in Schotlandt." Muller, op. cit., 232.

3 The English Company and the king's relation to it were considered by the
States in January 1631, 25th Oct. 1632, 19th Nov. 1633, and 15th Sept. 1634.
(Bosgoed, Bib. Pise., 357. Oprichting eener Engelsche compagnie voor de Haring-
visscherij, Muller, op. cit., 235.)

302 THE SOVEREIGNTY OF THE SEA

had got wind of the intention to send some of the ship
northwards among the busses. But the proclamation o
10th May as to "restraint of fishing" removed any linger
ing doubts they had of the king's intentions, especially a
it appeared so soon after the publication of Mare Clausum
At that time the policy of the Dutch was earnestly directed
towards detaching England from the side of Spain and
bringing her into line with France and the Republic, and
a special ambassador, Van Beveren, was sent over to the
English Court to help Joachimi in bringing this about. He
arrived in London in March 1636, and in April Coke and
Windebank explained to him that the intention of the king
in setting forth the fleet was to preserve and maintain his
sovereignty and hereditary right over the sea, as well as
to furnish convoys for the protection of traffic; and further,
that no one could be allowed to fish in the British seas
without express license from the king, and the rendering
of a proper acknowledgment for the liberty. They told him
that the Dutch fishermen would find the king's protection
against the Dunkirk privateers both advantageous and profit-
able. On asking for a statement in writing of the king's
claims, the Dutch ambassadors were coldly referred to Selden's
Mare Clausum.

In notifying the States -General of this conversation, Van
Beveren asked for prompt and precise instructions how to
deal with what he described as an important, dangerous,
and far-reaching business. He was told by De Seneterre,
the French ambassador, that he had received a similar noti
fication, and that he had expressed the opinion that it w
inopportune to raise at that time a prickly question t
had been sleeping for five - and - twenty years, and whi
was equivalent to a tacit declaration of war against t
United Provinces. At an interview which Van Beveren had
with Charles on April 25th, he explained that the main
object of his coming was to arrange for open and combined
action against Spain and help to the young Elector to recover
the Palatinate; but the king in a few words put the pro-
posed alliance aside, and began to speak of the herring
fishery. The States-General, always anxious to burk dis-
cussion of this matter, had postponed giving Van Beveren
definite instructions about it, in the hope and expectation

CHARLES I. : THE NAVY 303

that it would be submerged in the more important busi-
ness of the alliance.1 There were other circumstances which
led them to think the king would not press his claim to
the fishery. One was that the publication of the proclama-
tion for restraint of fishing had been delayed, and even its
promulgation denied. It seems, indeed, that the opinions
of Charles as to his policy on this question were constantly
fluctuating, and that he could scarcely make up his mind
as to what it were best for him to do. Both the young
Elector, his nephew, whom Van Beveren had gained over
to his views, and his sister, the Elector's mother and Queen
of Bohemia, were against any interference with the Dutch
fishermen at that time. It was doubtless with some know-
ledge of the state of affairs, that the Earl of Northumber-
land inquired in May if the king was still desirous that
he should go north against the busses. But in June all
scruples had vanished : the instructions were sent to Nor-
thumberland and the proclamation was widely disseminated.
In the States of Holland the king's edict was discussed at
'the beginning of June, and it was remitted to a committee,
with Joachimi (then in Holland) and the Prince of Orange,
for consideration, and to report as to what measures should
be taken to protect the interests of the fishermen. The
States finally resolved to do two things — first, to endeavour
by all diplomatic means to get the proposed action of the
king delayed, and second, to equip a strong fleet to protect
the fishermen by force lest diplomacy failed.

In these anxious days Van Beveren kept a tireless eye on
the English fleet lying in the Downs, and reported to the
States-General from time to time anything he learned of its
movements or the rumours he heard concerning it.2 Twelve
days before it sailed for the north, he informed them that the
general opinion was that it would return to the westwards to
look for the French fleet. A few days later he discovered its
real destination, and at once demanded an audience of the king.
Charles received him very courteously at Windsor on the
17th July; assured him that he would treat the Dutch "as
friends " ; and explained that the measures to be taken by the
fleet were of a peaceful nature, and were intended to benefit

1 Verbaal van Beveren, 1636-37. Muller, op. cit,, 246.

2 Brit. Mus. Add. M8S., 17,677, P, fol. 67 et seq.

304

THE SOVEREIGNTY OF THE SEA

the fishermen by extending to them the protection of Englan
against the Dunkirk privateers, from whom they had suffer
so much in the previous year. The payment of a small
knowledgment would in reality, he said, be very profitable
them. Van Beveren had accordingly to content himself
well as he could with these assurances. He received the con
dolences of the French ambassador, with whom he had frequen
interviews, and who pointed out to him that the circumstanc
of the time were such that the wisest course would be to de-
prive the king of every pretext for open hostility. If the
matter could only be prolonged under the pretence of negotia-
tions until peace was concluded with Spain, then indeed France
— ay, and even Spain too, he added — would join with the
States in bringing the King of England speedily to reaso:
When Northumberland actually departed for the north, V;
Beveren immediately informed the States-General of the im
portant fact; but it was not long until the king was able
tell him that the fishermen had accepted the licenses and pai
the acknowledgment " with good contentment." 1

The ambassador's reports, and still more the accounts w
soon poured in from the busses and the convoys of their trea
ment by the English fleet, raised a storm of indignation in th<
United Provinces. Captain Ruyter sent on, for visual inspe
tion, the safe-conduct or passport which the Earl of Northmn
berland had forced upon him ; and Joost Bouwensz, and som
of the other skippers who had taken the licenses, were loud ii
their complaints. The unheard-of proceeding was discussed ii
every seaport town.

The ordinary ambassador, Joachimi, then in Holland, wai
hurried back to England — at such a pace, indeed, that two
the horses in his carriage dropped dead in one day from ex
haustion as he sped Londonwards. He was to express to th
king the regret of their High Mightinesses that he should sem
his powerful " armada " among the poor herring fishermen, who
had been so much scared and frightened that many had with-
drawn from the fishing altogether and returned home ; and the
king was to be urged to suspend further action until the matter

15

Van Beveren to the States-General, ^ Aug. MSS. Add., 17,677, P, fol. 88.
In his letter he says the tax on each ton was " twee sixpenningen," or an
English shilling. Others placed it at two shillings a last.

CHARLES I. : THE NAVY 305

been considered by commissioners to be appointed by both
sides.1 In his audience with Charles, Joachimi avoided the
mg juridical arguments which used to tire the patience of
ang James. He laid stress on the close connection of the
shery question, so dear to the United Provinces, and the res-
>ration of the Palatinate, in which the States might be able
afford valuable aid ; expatiated on the long and close f riend-
lip that had existed between England and the Netherlands ;
id depicted in moving terms the poverty and hard life of
le poor fishermen. But it was all in vain. Charles declared
that to ask him to abdicate his sovereignty of the sea was as
absurd as if Spain should ask him to give up Ireland ; and he
added — probably with the knowledge that the States-General
had commissioned Graswinckel to answer Selden (see p. 375) —
that the publication of books in France, Spain, and the Nether-
lands, contesting his rights, made it necessary for him to
vindicate his sovereignty with all the more strength. The
same attitude was maintained in a formal paper handed to
Joachimi a little later, in reply to his proposals and representa-
tions. In this Charles announced his firm intention to control
the fisheries in his own seas. He would only permit foreigners
to fish there if they accepted his license and " acknowledged "
his right, that is, paid tribute. The request for a conference of
commissioners to consider the question was rejected. The king
could not with honour, it was said, listen to such a proposal.
His right had already been publicly confirmed before the whole
world, and was sustained and recognised by all the great kings
in performing homage to the fleet at sea, as well as by the
Dutch themselves, who were very glad of the protection afforded
to them.2 Joachimi had to return to The Hague without hav-
ing accomplished anything.

By another channel influence was brought to bear on the
king to induce him to suspend the campaign against the Dutch
fishermen. Elizabeth, the widowed Queen of Bohemia and the
sister of Charles, resided at The Hague, patiently waiting for
some lucky turn in the wheel of fortune which might replace

1 Aitzema, Saken van Staet en Oorlogh, ii. 409* Muller, op. cit., 263.

2 Joachimi to the States-General, J-^Jjjf, ~g Sept. 1686* Brit. Mus. Add. MSS.,
17,677, P, fol. 99, 100. Verbael van Joachimi, 1636. Muller, op. cit., 264.

U

306 THE SOVEREIGNTY OF THE SEA

her son in possession of the Palatinate. She was led to believe
that the States would aid in this project, and in her corres-
pondence with Sir Thomas Roe and Archbishop Laud she often
murmured gently against her brother's policy. When Joachimi
was hustled back to London, she wrote to Roe that the Dutch
were in great alarm about the herring-busses, and she breathe
the wish that "all might be laid aside at that time" whe
they had so much need of the States; "the king," she sai
" might do it upon that consideration, and keep his claim still
good, to take it up again when he would." l Roe argued on
the other side. He thought it would show wisdom on the part
of Holland, and be greatly to her advantage, if, avoiding an
open breach with England, she acknowledged the right of the
king and accepted his protection for her fishermen. In this
way the States would reap all the advantages they already
had, and be relieved of the expense of maintaining a fleet to
protect the busses. The king, he felt sure, could not now re-
cede " without weakening or blemishing his right, or his power,
to all posterity " ; he was prepared to guard the Dutch fisher-
men and to fight for them as his own subjects ; and as for tin
"acknowledgment," that would be really only a small thi
and would not burden the fishing — which would never
thought of. " I doe confidently affirme to your Majesty," con
tinued Roe, " that this affair of ye king is a saf etye, an hono
an happines, and utility e to them, and will, if they know ho
to use it as a medicine, heale all ulcerations and disconten
that have beene bred, or aggravated, by enemies of our mutu
and necessarye amity e. . . . Therefore I beseech your Majesti
to inform the Prince of Orange clearely, there is noe other wa;
if they desire to reconcile, and to oblige the king at once ; and i
our amity be to them of any value, lett them beginn to doe righ
and honour to his Majestie," — and they would get more tha:
they hoped for in other things. At all events, he said, Joachimi
had failed to get any satisfaction of his request to have th
"execution" on the second fishing suspended, for a new com
mand had been sent to the Admiral to visit the busses again.2

This was indeed the case. Northumberland's success had
gratified the king, and yet it was felt it had fallen short oi

1 Elizabeth to Sir Thomas Roe, ^ Aug. 1636. State Papers, Dom., cccxxx. 38.

2 Roe to Elizabeth, 19th Aug., 20th Sept. Ibid., cccxxx. 50 ; cccxxxii. 1.

11

:

CHARLES I. : THE NAVY

307

what it might have been if they only had got among the
busses in time. It was therefore resolved to send the fleet
among the Dutch fishermen who came to the Yarmouth fishing
in September and October, and to continue the process of
forcing licenses upon them. The Earl of Northumberland left
the Downs for Yarmouth on 16th September, taking with him
eight ships and a pinnace; another ship was to follow later.
He felt that his task at Yarmouth would be more difficult than
his first had been. Then, the only advantage the busses had
was their good sailing ; now they would have others owing to
the season and the place — shoal waters; and if they avoided
the king's ships, he said, as they did in the north, it would be
impossible to bring any numbers of them into "conformity."
He also requested fresh licenses, because some words in those
he had would require to be blotted out, which " would not be
so handsome to be seen abroad." 1

The weather being stormy, they had to anchor one night off
the North Foreland and the next off Lowestoft, reaching Yar-
mouth Roads on the 18th, where they lay for a few days
getting pilots and gathering information about the Dutch
fishermen. Hearing that some Holland men-of-war were
cruising outside, the Earl guessed that the herring -boats
would not be far off, and the wind being fair, the fleet weighed
anchor on the morning of the 22nd and stood out to sea. When
clear of the sands they again anchored, and the ketch was sent
out during the night to discover the whereabouts of the busses,
but without success. Next day the fleet stood off farther to
sea, but failed to see or to hear anything of the Hollanders,
and being joined by a ninth ship, .the Swallow, the fleet lay at
anchor in " blowing weather " about ten leagues from the coast
until Monday, September 26. Two of the ships, the James
and the Nonsuch, had been driven out of sight by the gale ;
two, the pinnace and the Fortune pinck, had to run nearer
shore for fear of foundering; and the Admiral sent the two
London ships, the Jonas and the Neptune, into port, because
they were insufficiently victualled. On this day news was
brought from Yarmouth, received from a Scottish ship which
had arrived from Zealand, that the Dutch had forbidden any
more busses to go to the fishing that year, and the Earl advised

1 Northumberland to the Admiralty and to Secretary Coke, Sept. 16. State
Papers, Dom., cccxxxi. 55, 56.

308 THE SOVEREIGNTY OF THE SEA

Windebank to this effect.1 The rumour, however, was false, for
on the 28th a fleet of fifty sail of busses and two or three men-
of-war was descried to windward, but Northumberland was
able to speak to only three of them that "wanted licenses."
On the next day, as they were following the busses that " would
not come near them," they caught sight of another fleet of
about sixty sail, with three men-of-war, and the English ships
went amongst them and cast anchor, and made the convoyers
anchor also ; " then," said the Earl, " all the busses of both fleets
came about us ; most of them had formerly taken licenses, and
such as were unprovided were then furnished by us." Next
day, finding no more of the herring - boats " that wanted
licenses," the English squadron weighed anchor and shortly
afterwards perceived a third large fleet of busses, guarded this
time by ten men-of-war. To this fleet they gave chase, plying
up to windward all night, and on October 1, as the wind
prevented the boats being sent out, they anchored in sight of
them. All Sunday it also "overblew," but as the weather
grew calmer at night the squadron again got under way, and
by daybreak was among the busses, which were, no doubt,,
busily engaged in hauling their nets. Northumberland stayed
amongst them until October 5, the ships' boats being kept
occupied each day in distributing the licenses; but they
"found it a very troublesome business," as the busses dis-
persed, and it became difficult to distinguish those that had
taken licenses from those that had not. The weather growing
misty and unsettled, and the Admiral being " out of all hope to
give out any more licenses," the squadron quitted the herring
fleet and made for Yarmouth, where the Earl landed on October 9
and journeyed to the Court. Altogether, at the Yarmouth fish-
ing, more than 200 licenses were distributed among over 400
busses which were present, and no opposition was offered by
any of the fifteen men-of-war which were guarding them.
"The unwillingnesse of the busses to come neere us," wrote
Northumberland to the Admiralty, "hath found us intertaine-
ment for 8 dayes together in following them, but now we have
left verie few of them unprovided of his Majesty's licenses." 2

1 State Papers, Dom., cccxxxii. 39.

2 Northumberland's Journal, Ibid., cccxliii. 72 ; Northumberland to Nicholas,
6th October 1636. Ibid., cccxxxiii. 26. Dutch accounts vary somewhat from

CHARLES I. : THE NAVY 309

Thus ended the campaign against the Dutch herring-boats,
from which, as we have seen, Charles desired to reap profit as
well as honour. So far as the profit went, it did not amount
to much. Appended to the official journal of the voyage of
the fleet is a statement of the sums received for convoying
shipping, — which, in accordance with the advice of the Admir-
alty, was voluntary, — and also of the " acknowledgment money "
taken from the fishing-busses. The former amounted to £999,
nearly all of which was earned by the convoying of merchant-
men and small traders to Dunkirk and Ostend.1 Small as the
amount was, it greatly exceeded what was exacted from the
Dutch busses for king's license and protection, the total being
£501, 15s. 2d., collected in a variety of coins.2 The detailed
schedule is as follows : —

" In Kix Dollops 878 163 10 08

In halfe Crownes 145 018 02 06

In pieces of 3s 40 006 00 00

In Runnings Dollors 100 025 00 00

In Ryalls of 8 134£ 029 02 10

English money 018 12 08

English Gold 119 13 00

Dutch and Scotch Angells 015 15 00

Hungare Duckats 7 002 09 00

Dutch and French money 001 05 00

Dutch shillings 066 00 00

Double Stivers 030 00 06

Single Stivers 005 06 00

In Silver 000 18 00

501 15 02

that given by the Earl of Northumberland. According to them, seven English
men-of-war fell in with a hundred busses convoyed by five States' warships, and
the busses paid the tax and took the licenses. But when thirteen Dutch men-of-
war, convoying a great herring fleet, arrived on the scene and put themselves in
a position for battle, the English ships did not interfere any further and soon
sheered off.

1 An Accompt of the Convoy money, as it was delivered unto me by the Cap-
taines emploied in that Service, vizt. : Captain Carteret, £657, Captaine Lindsey,
£200, Captain Slingsby, £42, Captain Johnson, £20, Mr Skinner, £80.

2 An Account of the Acknowledgment Money taken of the Holland Fishermen.
The partiality for English gold is shown by the fact that £119, 13s. of the total
was thus paid.

310

THE SOVEREIGNTY OF THE SEA

t-t+rtttft
J~^rK£ fi

Fig. 12. — Facsimile of the official account of the monies received from
the Dutch herring fishermen for the king's licenses.

There is probably no circumstance connected with the Englis
claims to the sovereignty of the seas that has been more fre-
quently misrepresented by historians, pamphleteers, and writers

CHARLES I. : THE NAVY 311

on international law than the operations of Northumberland's
leet, and in particular the amount paid by the Dutch herring
shermen for the king's licenses ; and so far as appears, the
2count given here is the first that is authentic and correct.
Ithough Northumberland's Journal is preserved among the
lational records, only one author seems to have quoted from it,
lamely, Evelyn, and he deliberately misrepresented it. Under
le hands of various authors the sum of money gradually
scame swelled to £30,000, or even to £100,000, and it was
^presented as a rent paid by the Dutch for permission to fish,
md played an important part in all later controversies and
legotiations.1

The Dutch themselves appear to have acknowledged a payment of 20,000
florins (Muller, Mare Clausum, 274). Rap in (Hist. d'Angleterre, vii. 455) and
\Vagenaar ( Vaderlandsche Historic, xi. 260) placed it at 30,000 florins ; Larrey
(Hist. d'Angleterre, d'Ecossc et d'Mande, iv. 126) states that the Dutch concluded
treaty with Charles by which they agreed to pay him " dix mille ecus par an,"
which is equivalent to the same thing ; Hume (Hist, of England, ch. lii. an. 1636)
ays: "The Dutch were content to pay £30,000 for a license during this year."
lie error is found in the earlier English historical writers. Eushworth (Collec-
V. ii. 322) also states the sum as £30,000, and adds that the Dutch were
willing to pay a yearly tribute for a like liberty in future. Frankland (.4 nnals of King
James and King Charles the First, 477 (1681)) says that Northumberland with his
" sixty gallant ships " " commanded the Dutch busses to cease fishing until they had
obtained permission from the King, which they seeming not willing and ready to
do, he fired amongst them, sunk some and seized others, until they were forced
to fly into his Majesty's harbours, and desired the Lord Admiral to mediate to
lis Majesty for his leave for this summer, and they would pay unto his Majesty's
treasury therefor the sum of £30,000, which they did accordingly, and professed
their readiness to become suppliants to his Majesty for a grant, under the con-
iition of a yearly payment therefor for the future." This writer seems to have
onfused Northumberland's operations with those of Blake's fleet in 1652 (see p. 406)
with the onslaught of the Dunkirkers in 1635. Kennet (A Complete Hist, of
England, iii. 85 (1719)) repeats the mistake and puts the sum at £30,000, and so
vith almost all the historians, as well as the naval writers. Thus, Burchett (A
Complete Hist, of the Most Remarkable Transactions at Sea, 379 (1720)) and Lediard
(The Naval History of England, 526 (1735)) give the statement of Frankland ;
Sntick (A New Naval History, 438 (1757)) drops one of the ciphers and makes the
im £3000, but otherwise retains the false account. Admiral Colomb, in his
scent excellent work on Naval Warfare (p. 33), no doubt founding on these naval
ithors, also refers to the " non-payment of the £30,000 annually, which had been
fixed by Charles as license dues." The writers of minor books embellished the
error. In a mendacious treatise published in 1664 (The Dutch drawn to the Life,
146) it is said that Northumberland " sqoured the seas of the Dutch busses, seizing
some, sinking others, and enforcing the rest to flee ; so reducing all to the pre-
carious condition of entreating the favour of fishing by the King's commission,
which he was the readier to indulge them, because he looked upon them as the

312 THE SOVEREIGNTY OF THE SEA

The doings of Northumberland's fleet at the Yarmouth fishing
caused increased excitement in Holland. Van Beveren know-
ing, as he said, that the English ships had not gone jnorthwards
" to catch flies," immediately sent intelligence of its departure
to Admiral Van Dorp, so that he might extend his protection to
the Dutch fishermen. Early in August the Admiral had been
expressly instructed to guard the fishermen " from the Spanish
and all others inclined to molest them " ; and he had a fleet of
fifty-seven sail under his command for this purpose.1 But Van

most likely instruments for his nephew's restauration to the Palatinate." John
Smith, writing in 1670 (England's Improvement Revived, 257), said that " the
composition of the Hollanders (for liberty to fish) was an annual rent of £100,000,
and £100,000 in hand ; and never having been paid or brought into the Exchequer,
as I could hear of, there is an arrearages of above £2,500,000 ; an acceptable
sum," he adds, "and which would come very happily for the present occasions
of his Majesty " — Charles II. would have been very glad of much less ; he quite
failed to induce the Dutch to pay him £12,000 a-year for a like liberty. Evelyn
in 1674 (Navigation and Commerce) put the "arrears" at over half a million
sterling, and he said that in 1636 the Hollanders paid £1500, 15s. 2d. for licenses ;
but this was only, as he explained later, "the sophism of a mercenary pen," since
he slumped the convoy and the " acknowledgment " money together (having had
access to Northumberland's Journal), and eight years later he wrote to Pepys his
remarkable letter of recantation, in which he stated, " Nor did I find that any
rent (whereoff in my 108 page I calculate the arrears) for permission to fish was
ever fixed by both parties " (Diary and Correspondence, iii.)

The writers on international law have copied the erroneous statements from the
historians and from one another. Wharton (Hist, of the Law of Nations, 154)
says, "The exclusive rights to the fisheries within these seas (the Four Seas) and
near the coasts of the British Islands had been occasionally acknowledged by the
Dutch in the form of annual payments and taking out licenses to fish ; and was
again suspended by treaties between the sovereigns of England and the Princes
of the House of Burgundy." This statement, which outrages chronology as well
as fact, is repeated (without acknowledgment) by Phillimore (Commentaries upon
International Law, I., Part ii., c. vi. s. clxxxiv.), and by Travers Twiss (The Law of
Nations in Time of Peace, 254), Hall (Treatise on International Law, 145), and
others. Hall quotes Hume's statement that the Dutch had to pay £30,000 for
leave to remain, and a more recent author supposes that the great fishing of the
Dutch on our coasts originated in the reign of Elizabeth, and that, growing strong,
they refused to pay the " duties levied without question for generations within
the British Seas" (Walker, A History of the Law of Nations, i. 167). As has been
shown in the text, the Dutch herring-boats resisted the payment of the " acknow-
ledgment " money as far as they could ; the States-General equipped a fleet to
prevent by force their molestation by the English men-of-war, and they dismissed
their Admiral because he failed in 1636 to protect them.

1 Aitzema, op. cit., ii. 408. " Op de bewaringhe ende bescherminghe van de
groote ende kleyne Visscherij deser Landen tegen de Spaansche ende alien anderen

die hun souden willen beschadigen," August , 1636.

CHARLES I. : THE NAVY 313

Dorp was too late. As we have seen, he met the Earl of North-
umberland on the 20th August returning triumphantly to the
Downs. On asking the English Admiral why he was among
the busses, he was politely told " to protect the fishermen," and
when Northumberland asked the reason of the presence of the
Dutch fleet, he received the same answer, " to protect the fisher-
men." It was a perplexing position for Van Dorp. His instruc-
tions were to guard the busses from molestation, but they
contained no article which covered the case as it now presented
•itself, and to attack the English squadron under the circum-
stances would have been foolish. He therefore sailed back to
the coast of Flanders to watch the Spanish ships. He returned
to the English coast in September, and on the very day that
Northumberland left the Downs for Yarmouth the Dutch fleet
was actually lying at that port. Van Dorp again missed both
the English squadron and the herring-busses, and resumed
" plying to and again " between Dover and Calais.1 The States-
General were much incensed at this failure of their Admiral to
prevent the distribution of the licenses. As they well knew, it
furnished Charles with a precedent, and with the argument
that the Dutch fishermen desired his protection and were willing
to accept and pay for his licenses. When a suitable opportunity
occurred in the following year, they forced Van Dorp to resign
his office.2

As the herring-fishing was now over for the year, the States
had time to consider what they ought to do in the following
season if Charles persisted in his attempts. On two occasions
it was resolved to issue an edict forbidding the fishermen to
accept licenses from any foreign prince ; 3 and this would cer-
tainly have been done had Charles adhered to his policy. But
tin- States naturally hesitated, until it should be absolutely
necessary, to take a step which would at once have placed them
in direct antagonism to England in the eyes of the whole world,
and the publication of the edict was from time to time delayed.
This cautious conduct served their purpose much better, for
before the fishing season of 1637 arrived, the kaleidoscope of
Charles's foreign relations had taken another turn, and he was

1 State Papers, Dom.. cccxxxiii. 13. 2 Muller, op. cit., 273.

3 Res. HoU., 19th September; Res. St.-Gen., 8th November 1636 ; Bosgoed, Sib.
Pise., 360.

314 THE SOVEREIGNTY OF THE SEA

anxious to avoid further trouble with the Dutch. The Earl of
Arundel, who had been sent to Vienna on one of the king's
wild-goose missions, to negotiate a treaty with the Emperor for
the restoration of the Palatinate, returned unsuccessful to Eng-
land at the close of the year. He came back full of bitterness
at the perfidy of Spain, and persistently urged a French alliance,
even if it should lead to war with the former Power. The
strenuous arguments of Arundel, as well as the treatment of his
mission, caused Charles to turn again to France, the ally of the
Dutch Republic ; and Richelieu promptly proposed an alliance
against Spain and the Emperor, one result of which would have
been to range England and the States on the same side in a
maritime war.1

At such a conjuncture the promulgation of the edict of the
States -General would have been unfortunate, and Arundel
requested George Goring, who had gone to The Hague, to see
the Prince of Orange in order to get it suppressed. But the
Prince of Orange, while anxious enough to avoid further trouble
with England, desired, before he consented, to receive an assur-
ance that the king would cease from molesting the Dutch fisher-
men in the ensuing season. The Queen of Bohemia urged the
same course. She "humbly besought" her royal brother to
suspend further execution of his right, which, she said, he might
take up again when he would, without any prejudice, " as the
king, our father, did." Charles was loth to give an assurance
so wounding to his vanity, and so opposed to what he conceived
to be a chief prerogative of his crown. In the autumn Sir
Thomas Roe had declared that the difficulty in the way for the
benefit of the Prince Elector arose from the fishery dispute,
and that upon nothing was the will of the king more firmly
bent : if the Dutch did not yield, he feared " another procedure "
next season. Even in February, Archbishop Laud told Elizabeth
that the king was " so set to maintain the dominion of the sea "
that he durst not speak to him any more about it. At the same
time he gave a broad hint that nothing further would be at-
tempted against the Dutch fishermen in the approaching season.
He much wondered, he said, that the Prince of Orange and
the States should trouble themselves to gain an overt con-
cession from his Majesty to leave their fishing that year, since

1 Gardiner, Hist. England, viii. 160, 163, 202, 205.

CHARLES I. : THE NAVY 315

it was "more than manifest" there would be so much other
work for his navy that the business of the fishing must needs
fall asleep of itself. He would advise a silence on all hands in
regard to it, and not to interrupt "business with moving a
question about that which would necessarily do itself (sic) with-
out questioning." Sir Thomas Roe also sent the queen assur-
ances in the same sense. The king, he said, would never retract
his declaration of the dominion of the sea, but " only for this
year, and at the request of the Prince (her son) and in contem-
plation of concurrence expected with him, he will not trouble
their fishing." These assurances seemed so far satisfactory to
the States that the edicts were suppressed. They would be
well content, they informed Elizabeth, if the king "forgot it
and spoke no more of it," which she told them she was con-
fident he would not, having things of greater importance on
hand.1

The young Elector, Prince Charles Louis, took a considerable
part in the conversion of the king ; or rather, he was made use
of by the Dutch ambassador for this purpose. When Van
Beveren first arrived in London, he let it be known that the
States were desirous of doing something for the Prince; but

1 Roe to Ferentz, Oct. 15, 1636. State Papers, Dom., cccxxxiv. 15. Goring
to his father, Lord Goring, Feb. — , 1637. Ibid., cccxlvi. 33. Goffe to Archbishop

Laud, Feb. 2. Ibid., cccxlvi. 23. The Queen of Bohemia to Archbishop Laud,

4
Feb. — . Ibid., cccxlvi. 34. Laud to the Queen, Feb. 28. Ibid., cccxlviii. 62.

Roe to the Queen, Mar. 17. Ibid., cccl. 16. The Queen to Laud, ^^ 4- Ibid.,

cccli. 1. Goffe's letter to Laud was as follows: "Your Grace will receive intelli-
gence from other hands that certain edicts which were ready to be published by
the States against paying any acknowledgment for leave to fish are now suppressed
upon the hopes of his Majesty's relinquishing that business for the present. But
the Prince of Orange, not willing to content himself with probabilities, hath been
very pressing with the Queen of Bohemia to have some assurance given him that
the king would not interrupt their fishing this year. And if no other way might
be afforded, he is very urgent at least that the Elector (the son of Elizabeth) would
write to him and assure him so much. How much such an assurance would be
prejudicial to the honour of his sacred Majesty your Grace can best judge. But I
thought it my duty to add that though their edicts are suppressed, yet their book
in answer to Mr Selden's Mare Clausum is ready to come forth : and the author is
neither so modest nor discreet that the Elector should trust him [? the Prince of
Orange] with any written assurance in that kind. The Prince of Orange hath been
so much upon this that it hath given others cause to believe that the Elector will
be moved in it."

316 THE SOVEREIGNTY OF THE SEA

his hint was not then taken up, since hopes were entertainec
that Arundel's mission to Vienna would make other aic
unnecessary.1 Arundel was recalled in September; it was
known that his mission had failed, and early in October Var
Beveren saw his opportunity. Through a trustworthy friend
the suggestion was made to the Elector that if some arrange
ment could be come to about the fishery question, negotiations
might be begun for a treaty between the States and England
relating to the recovery of the Palatinate. The ambassador
learned that the Prince had already taken steps in the same
direction. Through the intermediary of Laud, the proposal
had been made to Charles that the Dutch, instead of paying
license-money for liberty to fish in the British seas, should
place at the disposal of the Elector some ships and soldie
the king's proclamation for restraint of fishing being mean
while suspended. Charles would not agree to this. The am
bassador, he said, had offered assistance when he arriv
without any hope of an equivalent on his part, and he coul
not give up his claim to an acknowledgment of his righ
Van Beveren, on the other hand, informed his confidant th
it was a question of principle with the States, and that i
would be better to break off all negotiations if the " acknow
ledgment " was insisted on. Nevertheless, these private neg
tiations continued, and finally a draft treaty was prepar
embodying two proposals. The first agreed well enough wit
Van Beveren's instructions. It was to the effect that a fle
should be equipped to which England should contribute thirt
ships and 8000 men, and the States fifteen ships and
men; and France was to be asked to furnish the same fo:
as England. The combined fleet was to attack Spain by s
and effect a landing. The second proposal related to the fishe:
and it provided that while these operations were going o:
the Dutch herring fishermen would be allowed to fish free!
and in security, as they had always done from the time
Queen Elizabeth and King Jaines, approaching the o
near enough to carry on their fishing profitably, and to

1 Roe to Ferentz. State Papers, Dom., cccxxxiv. 15.

2 The " confident vrundt " was probably Roe, who was the confidential adviser
of Elizabeth, and at this time had interviews with the Dutch ambassador in the
Prince's interests, which he "feared would come to nothing." Ibid.

CHARLES I. : THE NAVY 317

their nets on shore, without the king interfering with them in
any way.1

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

But Charles, although unwilling to risk the success of the
treaty with France, from which great things were expected,
by openly insisting upon the acceptance of his licenses by the
Dutch fishermen, was reluctant to abandon his policy. From
the readiness with which the fishermen had taken the licenses
after they "understood" them (as Northumberland reported),
he was apparently led to believe that they really desired his
protection, and that the only obstacle in his way was the
opposition of the States' Government. He therefore decided
that instead of trying — or at least before trying — to enforce
the licenses by means of the fleet in the ensuing summer, the
attempt might be made secretly to induce the fishermen to
accept them in Holland before they left for the fishing. Bos-
well, the English ambassador at The Hague, was instructed
to try what could be done in this way, and so anxious was
Charles for such acknowledgment of his sovereignty of the
sea as acceptance of the licenses implied, that the ambassador
was authorised to reinforce his persuasion by bribing those
who were most influential among the fishermen. The fisher-
men, according to Boswell, were not averse to the proposal, but
they very naturally wished to know, first of all, how the licenses
of the King of England would protect them from the Dunkirk

" Que durant le mSme temps lea Pescheurs et preueurs d'hareng, subjects de
leurs Seigneuries, pescheront librement et franchement, come ils ont tousiours
faict du temps de la Royne Elysabeth et du grand Roy Jacques tous deux de tres-
glorieuse memoire, s'approchants si pres des bords de mer, et rivages des royaulmes,
terres et ysles de sa Mate, qUe leur mestier, la course de poisson et hareng, et leur
proffit portera, voire jusques a seicher leurs filets sur terre, sans que sa Ma^ directe-
ment ou indirectement leur fera ou fera faire aucun dommage, destourbier, ou
empeschement en cela." Verbaal van Beveren. Muller, op. tit., 279.

318 THE SOVEREIGNTY OF THE SEA

privateers. If the Government at Brussels would acknowledg
the validity of the licenses, or if the Cardinal Infant agree
to back them with passports of his own, the offer, they sak
would be worth considering; but they could scarcely depen
on the protection of the English fleet alone. As a sign that
they were in earnest, they offered to place £2000 at Boswell's
disposal if he could get the matter settled in this way. This
sum, with the king's approval, was forwarded to the English
representative at Brussels, to be used in gaining over the
Spanish authorities.1 The Dutch fishermen were a practical
race of men. They cared little for abstract questions about
the sovereignty of the sea. But they suffered much from
the Dunkirk privateers, and the burden of maintaining convoys
was a heavy one. Any reasonable scheme which promise
to free them from the attacks of their relentless enemy
small cost was bound to be attractive. That the proposal was
seriously considered was also shown by a spontaneous applica-
tion made to the Secretary of the English Admiralty on behalf
of the fishermen of Schiedam. The agent in London, Mr
Brames, who supplied them with lampreys for bait, wro'
to Nicholas for a copy of the license granted in the previo
year, with a statement of the rates charged. If the fisherm
were pleased with the license and the price, they would,
said, come themselves for them. Charles instructed Nicho
to give the information wanted, but only " as from himself." 2
An unexpected obstacle intervened to prevent the plan bei
carried out. Gerbier, the British agent at Brussels, chie:
by bribing the mistress of the Cardinal Infant, had secured
promise that the passports would be granted ; but the Spani
Admiral absolutely refused to be bound by them. He decla
he would not spare a single herring-boat, even if the Cardi
went down on his knees to him. He would pay attention
no passport that did not come direct from Madrid.3 Thereupo
the Dutch fishermen refused to have anything to do with th
licenses which had been sent to Boswell "under the King
hand and signet." 4

1 Gardiner, op. cit., 218. State Papers, Holland, Jan., Feb. 1637.

2 March 19, 1637. State Papers, Dom., cccl. 34.

3 Gardiner, op. cit. State Papers, Holland, Flanders.

4 Windebank to Northumberland, July 3. State Papers, Dom., ccclxiii.

( CHARLES I. : THE NAVY 319

Still, the peculiar resources of Charles were not exhausted.
He might yet, he thought, be able to distribute the licenses
among the fishermen when they came to fish off the British
coast, without employing his fleet for the purpose, or running
tlu1 risk of war with the Republic. The third ship-money
fleet had assembled in the Downs in April and May; it con-
sisted of twenty-eight ships, of which nine were merchant
vessels, and the Earl of Northumberland was again appointed
Admiral, his instructions, dated 15th April, being identical
with those of the previous year.1 The state of the negotiations
with France, and other causes, prevented the king from renew-
ing his enterprise against either the French for the honour
of the flag or the Dutch in connection with the fishery. The
fleet, therefore, to the wonder and discontentment of the
officers, was kept for the most part lying at anchor, ships
being occasionally detached for special purposes.

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

1 State Papers, Dow., clvii. 151&.

320 THE SOVEREIGNTY OF THE SEA

the Spanish Ministers had also been informed, and did not
well relish it.1

This despatch, sent by express messenger, appears to have
somewhat surprised the Earl. His clear intelligence must
have told him that a tortuous and fatuous proceeding of this
kind could only end by making the king ridiculous. He
apparently wished Charles to reconsider the matter, and askec
for further directions. Ignoring part of Windebank's letter, he
inquired how Captain Fielding, whom he intended to send,
should behave himself if the fishermen proved obstinate anc
refused the licenses ; and he pointed out that if they accepted
them and the king resolved they should be convoyed home, it
would need a large number of ships, as the busses returned in
small fleets.2 Windebank two days later repeated the instruc-
tion that, if they refused, the fact was to be immediately noti-
fied, when the king would take further resolution. " The trutl
is," he said, "his Majesty in this present conjuncture is not
willing to proceed so roundly with them as he hath done here-
tofore, and therefore thinks fit to hold this way of inviting
them fairly to acknowledge his right without sending his
whole fleet, which would be a manifest engagement and obligs
tion to him in honour to perfect the work upon any conditions
and notwithstanding any opposition whatsoever, and might
of dangerous consequence, and destructive to the present condi-
tion of his affairs. And therefore he chooses rather to attempt
it with as little noise as may be, that if the business take not
in this way it may receive the less blow, and in case of their
refusal he may have time deliberately to consider what resol-
ution to settle. " 3

At this time Charles was very anxious to be on good terms
with the States. Van Beveren, the special Dutch ambassador,
who was returning home, was very cordially received by him
on taking his leave on 16th July. The king then insisted on
the States entering the alliance, and he expressed his pleasure
at the courtesies which had been shown to the Prince Elector.
Besides the usual gifts on such occasions, Van Beveren tells us

1 Windebank to the Earl of Northumberland, 3rd July 1637. State PaA
Dom., ccclxiii. 21.

2 Northumberland to Windebank, 4th Julyv Ibid., ccclxiii. 28.

3 Windebank to Northumberland, 6th July. Ibid., ccclxiii. 41.

CHARLES I. I THE NAVY 321

he sent him a few days later a handsome diamond ring.1 But
even if Charles had been moved by no special desire to concil-
iate the Republic, the preparations which were being made in
Holland to guard the fishermen from molestation might have
given pause to the attempt to repeat the operations of the
year before. The Dutch Government were perfectly aware of
Boswell's intrigues about the licenses, and they put little faith
in the assurances received through the Queen of Bohemia.
They resolved to err on the safe side by equipping a powerful
fleet to protect the busses. In April and May, Pennington re-
ported to the Admiralty that Van Dorp (not yet cashiered) was
cruising between the Downs and Dunkirk with twenty sail of
stout men-of-war, and that he heard that six French warships
were bound for the north to aid in guarding the fishermen.2

Fielding departed on his mission in the Unicorn, one of the
ships furnished by London, and on the morning of 18th July
he came among the busses fishing off Buchan Ness, Aberdeen-
shire. They numbered between six and seven hundred, and
were convoyed by twenty-three men-of-war. Fielding, accord-
ing to his account, " found the busses very willing " to take the
licenses, and two did so. Then one of the Dutch warships
came up and lay by him, and the captain asked him to speak to
his Admiral before sending for the busses; "but it blew hard
that day and the next, so that no boat could pass." On the
20th he spoke with the Admiral of South Holland and the
Commander of North Holland, and explained his mission ; but
they would not then give their answer. On the following day
all the commanders of North and South Holland and of Zea-
land, with three other captains, told him "that they durst not
let his boat pass among the busses to give out his Majesty's
licenses before they had orders from their Masters." This was
their answer, but they declined to give it in writing. The
Unicorn then made sail for England to report the rebuff.3

The result of his manoeuvre was mortifying to the king.
Fielding, sailor -like, did not conceal the outcome of his
mission in diplomatic reserve. The story soon spread through-

1 " Diamentenring van tamelijcke groote," Verbaal van Beveren. Muller,
op. cit., 297.

2 State Papers, Dom., cccliv. 16 ; ccclv. 22.

3 Report of Fielding, 24th July. Ibid., ccclxiv. 45.

X

322 THE SOVEREIGNTY OP THE SEA

out the fleet, and occasioned both hilarity and indignation.
When Fielding left, Pennington expressed the opinion to
his friend Nicholas that the attempt would fail and would
bring greater inconveniences in its train. On his return,
Northumberland said it would have been much better if
the king had absolutely forborne his request to the Dutch
than have demanded it in the manner he did. After the
successful campaign of the year before, Charles was now
practically warned off his own seas, "as he is pleased," said
Pennington, " to call them." l It was a pitiful position for
the Sovereign of the Seas, with a great armada lying idle
at the Downs and his bombastic declarations still echoing
in the ears of Europe.

As soon as it was known at Court that the story had got
out, Windebank was commanded to take such measures as
he could to contradict it. To duplicity was added mendacity.
Fielding in his report had described an occurrence he wit-
nessed on returning along the coast to Scarborough. Thirteen
Dunkirkers had attacked a Dutch man-of-war, and as the
Unicorn came upon the scene the latter sank, and the
English captain unsuccessfully endeavoured to save the
drowning men. Windebank seized upon this incident. He
wrote to Captain Fogg, who was in command of the ships
in the Downs in the absence of the Admiral, that the repo
spread about that the Hollanders had refused his Majesty's
licenses to fish in his seas was "utterly mistaken." Fieldin
had not been sent to offer licenses to the busses, but
tender the king's protection. His Majesty, hearing "tha
the Dunkirkers had prepared a great strength to intercept
them in their return from the fishing," had sent Fielding,
"in love to them," to give them notice of it, and to offer
them safe - conduct. " This," said Windebank, " you are
publicly to advow whensoever there shall be occasion, and
to cry down the other discourse as scandalous and derogatory
to his Majesty's honour."2 Similar directions were sent to
the Earl of Northumberland.

1 Pennington to Nicholas, 10th July, State Papers, Dom., ccclxiii. 99 ;
Northumberland to Sir Thomas Roe, 6th August, ibid., ccclxv. 28 ; Pennington
to Northumberland, 20th May, ibid., ccclvii. 15, ii.

2 Windebank to Fogg, Aug. 10. Ibid., ccclxv. 51. With reference to this letter
of Windebank's, the following note by Secretary Williamson was made on the copy

CHARLES I. I THE NAVY 323

At the beginning of August 1637, Charles, conscious of the
ridicule that would ensue if the third ship-money fleet lay
at anchor all the year, and yet having nothing for it to do,
sent it to the west — "to make one turn in an honourable
procession, to continue the boundaries of our master's dominion
in the sea," as Roe, with gentle sarcasm, described it. It got
as far as the Land's End, and returned to the Downs on
5th September, having "scarce seen a ship stirring on the
sea, except the poor fishers that dwell upon the shore."1
Windebank told Northumberland that the king was "very
sensible " of the story which was being told about the licenses,
and that he had been specially commanded to give the
refutation of it in charge of the Earl, "and that you should
do it in the same way that I have directed him (Fogg),
namely, that his being sent to the busses was to give them
notice of the forces prepared by the Dunkirkers to intercept
them in their return, and to offer them his Majesty's
protection, but no licenses; that of the licenses to be cried
down and the other to be advowed and reported through
the whole fleet." Fielding was to be admonished to be more
reserved in future "in such great services," and in the
meantime to "make reparation by divulging this and sup-
pressing the former report."2 Captain Fogg readily agreed
to suppress "the false report," as he called it; but what
Northumberland's answer was does not appear. He seems
to have received the king's commands only on returning
to the Downs, and he left the Triumph a few days thereafter.
What he thought is not doubtful : he was getting disgusted

in the volume prepared for the ambassadors going to Cologne in 1673 (State Papers,
Dom., Chas. II., 339, p. 519) : "This mentioned report appears by other letters and
passages of that time to have been really the truth, but of that disadvantage to his
Matys right and title, as it was thought fitt by all means to stiffle it, and give out
Captain Fielding went to ye Holland Busses onely w*h notice of ye Dunquerqrs
preparations to intercept them in their return and to offer his Maties protection."

1 Windebank to Northumberland, 1st Aug., State Papers, Dom., Chas. I.,
ccclxv. 5 ; Roe to Countess of Northumberland, 20th July, ibid., ccclxiv. 22 ;
Northumberland to Windebank, 1st Sept., ibid., ccclxviii. 1 ; Same to Admiralty,
6th Sept., ibid., ccclxviii. 43.

2 Aug. 10. Ibid., ccclxv. 53. The king's real feelings were shown in the instruc-
tions given to the Earl when he was ordered to the west on 1st August. "If any
of the fishers of Holland which have refused his Majesty's licenses shall be assaulted
by the Dunkirkers, his Majesty will in no wise that you protect them." find.,
ccclxv. 5.

324 THE SOVEREIGNTY OF THE SEA

at his employment. "No man," he wrote to Roe, "was
ever more desirous of a charge than I am to be quit of
mine, being in a condition where I see I can neither do
service nor gain credit." 1

There is clear evidence indeed that by this time the naval
officers, as well as the people generally, were becoming tired
of the king's great pretensions and small performance.
Even Pennington, a simple, loyal, unimaginative man, always
ready to obey orders, had begun to joke, as we have seen,
at the king's seas, "as he is pleased to call them." Through-
out the country discontent was deepening. The opposition
to the collection of ship-money was growing formidable, and
the declaration of the Judges in favour of the king's right
to levy it only postponed the inevitable for a little.2 In
his letter to the Judges, Charles based his case on the necessity
of maintaining his sovereignty of the sea. The honour and
safety of the realm of England, he said, "was and is now
more neerely concerned then in late former tyiries, as well
by divers councells and attempts to take from Us the dominion
of the seas (of which we are sole Lord, and rightfull owner
and proprietour, and the losse whereof would bee of greatest
danger and perill to this kingdome and other our Domynkms)
as many other waies." 3

The king's dominion on the sea was rapidly waning.
Fielding's ignoble mission was the last attempt that fate
permitted Charles to make in actively asserting it. The
shadow of the coming revolution was already upon him. The
trial of Hampden for refusing to pay the ship-money focussed
the attention of England, and it was followed by complaints
of other grievances arising from the personal government of
the king. The popular tumult in Edinburgh in the summer
about the new Liturgy had as a sequence the National

1 Aug. 6. State Papers, Dom., ccclxv. 28.

2 An example of the feeling is to be found in an incident of this summer. One,
Richard Rose, a justice of the peace, on hearing that the fleet was going forth to
maintain the king's title of being Lord of the Narrow Seas, exclaimed : " What a
foolery is this ; that the country in general shall be thus much taxed with great
sums to maintain the king's titles and honours ! For my part, I am £10 the
worse for it already." When information of this remark was laid before the
Council, the Lords "thought it not fit to question these words." Ibid., ccclxx. 1.

3 The king to the Twelve Judges, 2nd Feb. 1637. Ibid., ccclxvi. 11.

.SP

326 THE SOVEREIGNTY OF THE SEA

Covenant and insurrection. Charles found another use for
his fleet than the enforcement of his sovereignty of the sea
in the expedition to Scotland to subdue his rebellious subjects ;
and the British seas, even the King's Chambers, were soon
again the scenes of flagrant acts in violation of his authority.
By a strange irony it was at this time that the king's " Great
Ship," the famous Sovereign of the Seas, whose praises
were sung by Thomas Heywood, the dramatist, was launched
at Woolwich. Its construction had been under consideration
for several years ; it was begun in January 1636 and launched
early in October 1637. Charles took a keen personal interest
in his great ship, and supervised its details. He selected a
scutcheon and motto to be engraved on each of its 102 brass
guns — the rose and crown, sceptre and trident, and anchor
and cable, with the inscription, Carolus Edgari sceptrum
stabilivit aquarum — Charles established the dominion of
Edgar over the seas; and on the "beak-head" sat the effigy
of King Edgar, trampling on seven kings.1 As its name
implied, it was meant to be a symbol as well as an instrument
of the king's sovereignty of the seas; and it was symbolical
of it in a sense undreamt of by Charles. It was costly,
highly decorated and begilt, but useless until it was cut
down and made serviceable under the Commonwealth. He
inserted it in the list of ships to serve in the fleet that

1 The Sovereign of the Seas was the largest ship hitherto built for the navy ;
it was 127 feet long in the keel, 46£ feet in breadth (inside measurement), and 19
feet 4 inches in depth ; the tonnage was by the "new rule" 1552 tons, by the
"old rule" 1823 tons. She was also by far the most expensive. Her cost was
£40,833, 8s. l^d., besides her guns, which were estimated to cost, with engraving,
£25,059, 8s. 8d. State Papers, Dom., ccclxi. 71 ; ccclxix. 44; ccclxxiv. 30;
ccclxxxvii. 87. See also Oppenheim, Hist. Administration Royal Navy, 260.
In 1637 a " description " of the ship was published by Thomas Heywood, dedicated
to the king, and with a frontispiece representation of it : " A True description of
his Majestic' t Royall Ship Built this yeare 1637 at Wool-witch in Kent. To the
great glory of our English Nation and not paraleld in the whole Christian World.
Published by Authoritie, London, 1637." The description, apart from the verse,
occupies a few pages at the end, the work dealing chiefly with the ships of the
ancients. A second edition was published in 1638: "A True Discription of his
Majestie's royall and most stately ship called the Soveraign of the Seas, built at Wol-
loitch in Kent 1637 with the names of all the prime officers in her," &c. Prynne
(Brief Animadversions, &c., p. 123) says that Charles claimed and maintained the
dominion of the seas by increasing the navy, &c., and " by giving the name of the
Edgar (with this motto engraven on it, Ego ab Edgaro quatuor maria vendico) and
of the Soveraign of the Sea to the Admiral of his fleet."

CHARLES I. : THE NAVY 327

jmbled in the Downs in 1638, but it was not ready
join.
This fleet consisted of twenty-four king's ships and seven

lerchant vessels, and, owing to the illness of the Earl of

[orthumberland, it was placed under the command of Sir
lohn Pennington.1 It did still less than the fleet of the
previous year. Two ships were sent to the westwards on an
ilarm that "Turkish" pirates were in the Channel; it con-
voyed two vessels laden with gunpowder into Dunkirk, not-
withstanding the blockade by the Dutch, and returned to the
Downs; and two ships were despatched to the north to in-

srcept supplies of arms and munitions of war from Rotterdam
md Bremen to the Scots. There was not even the " one turn
in an honourable procession" to the westwards as in the
srevious year, and the fleet rode idly at its anchorage.

The question of the " homage of the flag " had by this time
also fallen somewhat into the background. In the two pre-
ceding years it had been enforced with much zeal. In 1636,
when Northumberland's fleet was among the herring-busses,

Captain Carteret, in the Happy Entrance, forced a Spanish
fleet of twenty-six sail to strike to him off Calais, though they
tried their best to avoid it. A Dunkirker was also made to
strike and " lie by the lee " off Nieuport by Captain Slingsby.
But the French still refused to lower their flag when on the
:>ther side of the Narrow Sea. Sir Henry Mervin, on meeting
bwo French men-of-war off Gravelines with their colours in
the main-top, fired some twenty shots at them without causing
them to strike. In the Mediterranean the French retaliated.
An English vessel on the coast of Barbary was forced to lower
its flag to French ships of war, and because the captain refused
go on board them when requested, the ship was attacked
d captured. In the following year Captain Straddling of
the Dreadnought used drastic measures against some Hol-
lander merchant-ships. Falling in with four of them off the
Lizard, homeward bound from Brazil, with their flags abroad,
he commanded them to strike. One refused till many shots
were fired, excusing himself afterwards by saying he thought
the English ships were Dunkirkers. Straddling took him into
custody, and lodged him in Plymouth fort "to answer his

1 State Papers, Dom., ccclxxx. 61 ; ccclxxxix. 86 ; cccxc. 39.

328

THE SOVEREIGNTY OF THE SEA

insolence and contempt of his Majesty's regality in these seas,
and he remained a prisoner there for a fortnight before he was
released by order of the Admiralty.1 But in 1638 there were
few incidents of this kind, probably because of the fleet lying
at anchor so long, though it may be supposed that the general
condition of public affairs did not whet the zeal of the naval
officers.

It was not long before advantage was taken abroad of
Charles's troubles in Scotland. In the early part of 1638
Pennington reported that there were many Hollander, French,
and Dunkirk ships at sea, and that they were pillaging English
vessels ; 2 but the king was unable to protect even the herring-
busses of the Fishery Society that he had taken under his
peculiar care. The Dunkirkers, emboldened by immunity,
took four of them in 1639, and then daringly anchored in
the Downs. The Dutch men-of-war became bold, and then
insolent. They began by protecting a Calais vessel that had
rifled an English ship, their Admiral refusing to surrender
her. Soon their fleets visited the English coasts in menacing
strength, and although they "performed their duty" in the
matter of the flag, they insisted on their right to stop and
search English vessels, even in the King's Chambers. "The
Hollanders' ships," wrote Northumberland's secretary to Pen-
nington in June 1639, "begin to be very bold in our seas,
and lie about Portland with fifty sail, examining and search-
ing all English ships and others which pass by them, so that
in effect they command where the King challenges sovereignty."
The English merchants, he said, made great complaint tha
their trade was likely to be destroyed ; they were " much per
plexed, and called to mind tonnage and poundage, for whi
his Majesty was pleased to promise thirty sail of his ships
secure trade in the Narrow Sea." 3

The truth was that English ships had been engaged i
transporting Spanish troops and bullion to Dunkirk, and that
the Dutch were merely exercising their rights as belligerents.
Their action was nevertheless a plain flouting of the high

1 State Papers, Dom., cccxxv. 21 ; cccxxxviii. 15 ; cccxli. 6 ; ccclxi. 41 ; cccliii
fol. 34. Brit. Mus. Add. MSS., 17,677, 0, fol. 364.

2 State Papers, Dom. , ccclxxxii. 44 ; ccclxxxiii. 29.

* Smith to Pennington, 8th June 1639. Ibid., ccccxxiii. fi6.

CHARLES I. : THE NAVY 329

pretensions of the king, and it was the more disagreeable
because Charles had now again veered round to the side of
Spain. He was much moved at the " insolencies " of the
Hollanders, which "concerned his honour" and "put his sov-
ereignty in hazard " ; and the Earl of Northumberland, who
had been created Lord High Admiral in the preceding year,
also expressed himself as much afflicted that such affronts were
put on the nation in his time. It was, said Windebank, a
very high disorder that any of the king's neighbours should
presume to lie with a fleet in his Majesty's Channel, near his
ports, and where he justly claimed sovereignty, and arrest
and search English ships, taking out of them "such persons,
being passengers, as they please " ; " especially " — and this no
doubt was a potent reason of the king's displeasure — " since
the merchants and others took occasion by such pretences of
interruption of their trade to make difficulty to pay their ship-
money, which his Majesty is resolved to maintain." The king
therefore commanded Pennington to put a stop to these affronts
and to preserve the sovereignty of the narrow seas, so "that
trade may be free and open, as well to his Majesty's subjects as
to others in league and amity with his Majesty, and that peace be
kept and the merchants secured according to his Majesty's pro-
clamations and declarations published heretofore to that effect." l
It was one thing to indite imperious commands in London
as to the necessity of maintaining the king's sovereignty of the
seas; it was quite another thing to carry them out in the
Channel in the presence of a powerful Dutch fleet under the
new Admiral, Maarten Harpentz Tromp. Pennington, conscious
of his impotency, tried at first to justify, or at least to ex-
tenuate, the action of the Dutch men-of-war. They only took
out of the English ships the Spanish soldiers, he said, who were
being carried to Flanders ; they were most civil and courteous
while doing so ; in reality, it was the English captains who had
committed the greater insolency. At all events, before attempt-
ing any reparation, it would be only prudent to have an over-
mastering force, lest greater loss and dishonour should happen,
because, he said, the Dutch were in great strength, and it was

1 Windebank to Pennington, 10th, 15th, 16th July, State Papers, Dom.,
ccccxxv. 45, 72, 81 ; Northumberland to Pennington, ibid., ccccxxv. 76 ; Winde-
bank to Hopton, 16th August, Clarendon State Papers, i. 1283.

330 THE SOVEREIGNTY OF THE SEA

reported that the French fleet was about to put to sea. Pen-
nington was nevertheless ordered to prevent the affronts as
best he could. He then said he would do his best ; but he hac
only four ships available, and he asked for express orders ho\\
far he should proceed if he were resisted with overmastering
strength.1

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

At the end of August a large Spanish fleet, consisting o:
some thirty great galleons and thirty -six transports wit
troops for Flanders, set sail from Corunna. On 6th Septembe
it was attacked in the Channel by a Dutch squadron of seven-
teen ships, and a running fight was kept up, the Spaniards
passing eastwards off the English coast. Tromp, engaged in
blockading Dunkirk, heard the cannonading, and on the 8t'
he joined the Dutch squadron with fifteen sail, when a fie
battle took place in the Straits of Dover.2 The Spanis
Admiral, Don Antonio de Oquendo, having expended all hi
powder, took refuge with his shattered galleons in the Dow
on 9th September, whither Tromp followed him. Great anxiet;
was felt in London, first of all lest the powerful foreign flee
should refuse to strike to the small English squadron unde
Sir John Pennington, and then lest they should begin hostilities
in the King's Chamber. On the former point doubts were soo;
set at rest. Tromp at once took in his flag in the presence
the English ships, a " civility " with which Charles was please
So also did the proud Spaniard, but only after preliminary
refusal and demur; and Pennington's insistence that th

1 Pennington to Windebank, 13th July. State Papers, Dom., ccccxxv. 61, 68.

2 Gardiner, Hist., ix. 69 ; State Papers, Dom., ccccxxviii. 52.

CHARLES I. I THE NAVY 331

standard of Spain should be lowered was made a subject of
complaint at Madrid.1 Anxiety on the second point was pro-
tracted, and it was not diminished by the reports that were
received that the French fleet was coming to reinforce their
allies the Dutch. Pennington, in the most emphatic manner,
had forbidden hostilities within the King's Chambers, and he
assigned the northern part of the anchorage to the Spaniards
and the southern part to the Dutch. For several weeks the
belligerent squadrons remained in the Downs facing one
another. The Spanish Admiral, a few days after his arrival,
succeeded under cover of night in despatching to Dunkirk some
of his smaller vessels laden with soldiers. Tromp and Oquendo
appealed to Charles through their respective ambassadors, " and
then ensued an auction, the strangest in the annals of diplomacy,
in which Charles's protection was offered as a prize to the
highest bidder."2 On the one hand, he demanded £150,000
from Spain, and better treatment in the business of the Palat-
inate, as the price of securing the safety of the Spanish fleet.3
On the other hand, he declared himself ready to abandon
the Spaniards to Tromp, if France would come under a
binding promise to place Charles Louis at the head of the
army which had been commanded by Bernard of Weimar — as
a means, of course, to recover the Palatinate.4

While waiting the highest bid from one or the other, the
king's commands regarding the fleet were puzzling and contra-
dictory. Smith, Northumberland's secretary, who carried on
a confidential correspondence with Pennington, wrote to him
that the king, when the difficult situation of the English fleet
was explained to him and he was asked for explicit instructions
as to how the Admiral should act, "would not give any ex-
press declaration." " I earnestly pressed his Lordship [the Earl
of Northumberland] to prevail with his Majesty," he said,
"that you might have some justifiable instructions how you

1 Northumberland to Pennington, 12th September, State Papers, Dom., ccccxxviii.
92 ; Windebank to Hopton, 29th September, Clarendon State Papers, ii. 71 ; Hopton

to Windebank, October i|, Col. Clar. State Papers, i. 1311.

2 Gardiner, op. cit., 61.

8 Windebank to Colonel Gage and Count Leslie, 2f n***''- Gal. Clar. State Papers,

o v/Cti.

i. 1296.
* Gardiner, op. cit., 63.

THE SOVEREIGNTY OF THE SEA

should demean yourself. ... To all this he told me that
had often pressed his Majesty to declare his resolution, bu
never could get any." Smith privately advised Penniiigton tx
make a show of assisting the Spaniards if there was a fight
but not to run himself or the king's ships into danger when
there was no hope of victory and "the only expectation wa
hard blows and hazard." l

Desperate efforts were hurriedly made to strengthen the
English fleet. Ten additional ships were being got ready, and
Northumberland intended to take command himself as soon
as they reached the Downs, but of the 3000 men which the
Admiralty were "labouring" to procure for them, only 300
could be obtained ; they did not join Pennington till some days
after the battle. Pennington had been ordered to press into
his service all English ships he could lay his hands on, and
to employ them " in any warlike manner against any that
shall presume to affront his Majesty, or derogate from his
sovereignty in these parts." 2 Ten vessels were thus pressed ;
but it was impossible to find seamen to man them properly,
and by command of the king some of them were dispensed
with. In presence of the powerful States' fleet, to say nothing
of the Spaniards, Pennington's instructions to the masters of
the merchantmen must have sounded somewhat ironical. If
either of the " great fleets," he said, should presume to attempt
anything in the King's Chambers "contrary to the laws and
customs of nations and to the dishonour of our king am
kingdom, you are to fall upon the assailants, and to do yo
best to take, sink, or destroy them." Moreover, if any shi
of the hostile fleets assembled, " or any others that may come,
should put out a flag, they were to cause them to be taken in
if refused, they were to do their best to sink the offending
ship.3 The " any others " meant the French, who were expected
daily in the Downs, and whose arrival there was regarded with
apprehension. The general opinion was that they would re-
fuse to strike when they came, and, in that event, what would
happen ? " That," said Smith, " will set us all in combustion,

1 Smith to Pennington, 30th Sept. State Papers, Dom., ccccxxix. 70.

2 Northumberland to Pennington, 16th September. Ibid., ccccxxviii. 92.

3 Pennington to the Master of the Luke, of London, 23rd Sept. Ibic
ccccxxix. 15.

CHAELES I. I THE NAVY 333

for then we must strike them, although peradventure to our
own prejudice. But this punctilio of honour," added the
secretary to the Lord High Admiral, with prophetic instinct,
" will one day cause more blood to be drawn than ere it will
bring profit or honour to our king." l

Meanwhile Tromp and his resolute men were getting im-
patient. Since they had cooped up the hated Spaniard in
the English roadstead, they had been reinforced from Hol-
land, so that the Dutch fleet was soon in the overwhelming
strength of a hundred sail. Tromp also knew that Charles
had arranged (for a substantial consideration) to supply the
Spanish Admiral with gunpowder, of which he stood in dire
need, and that thirty Dunkirk sloops had succeeded in joining
Oquendo. Above all, he had in his pocket the express orders,
just issued by the States-General, " to destroy the Spanish fleet,
without paying any regard to the harbours, roads, or bays of
the kingdom where it might be found." 2 He promptly seized
an opportunity to carry out his orders. Information reached
London on 8th and 9th October that the Dutch were preparing
to attack. Commands were at once sent to warn them to
desist, and they were informed that the king was going to fix
. a short period for the departure of both fleets' and this
message was conveyed to the Dutch Admiral. On the evening
of the 10th, the gunpowder for the Spanish fleet came along-
side, and the accidental discharge of a gun on one of the
Spanish ships killed a Dutch sailor. This was enough. Be-
fore the fog lifted next morning Tromp's fleet was under sail ;
the roar of cannon announced that the attack had begun ; and
within a few hours the Spanish galleons were driven ashore,
burnt, sunk, or in flight for Flanders, with Tromp in hot
pursuit. The English Admiral acted on the prudent advice
which had been given to him by Smith. He made a show of
resenting the violation of the King's Chambers by firing at
the Dutch. In Madrid it was afterwards said he had fired
his guns into the air, but Pennington himself tells us that

1 Smith to Pennington, 19th Sept. State Papers, Dom., ccccxxviii. 111.

2 " De Spaansche Vloot te vernielen sender eenige aanschouw of reguard te
nemen op de Havenen, Reeden, of Baayen van de Coningryken, waar de zelve

zoude zyn te bekomen." Resol. Stat.-Oen., rr, ^ Sept. 1639. Aitzema, Saken van
Statt en Owlogh. Bynkershoek, Qiuestiones Juris Publici, lib. i.

334 THE SOVEREIGNTY OF THE SEA

(although he affected to believe the Spaniards had begun th
combat) he "chased and shot at the Hollanders" until the
were all beyond the South Foreland ; but the Hollanders too
no notice of him. On the morning of the battle Tromp sen
a letter to Pennington which was more than tinged with iron
Since the Spaniards, he said, had infringed the conditio
fixed by firing at him first, the English Admiral should assist
him in fighting them, " according to his Majesty's orders." At
all events he — Tromp — was resolved, by instructions from his
masters, to fall upon his enemies, and to defend themselves
"against those that shall resist them." The Dutch would
rather die as soldiers, he said, "with his Majesty's leave in
clearing his Majesty's Road," than fail to carry out their
orders; and he hoped that this would be "acceptable to his
Majesty, but if his Majesty should take any distaste we hope
he will graciously forgive us."

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

Charles was very naturally highly incensed at this oper
flouting of his authority. It was an ugly blot on the lustre
of his ancient prerogative, and a painful proof of the contemp
in which his much-vaunted naval power was held by th

1 Northumberland to Pennington, 8th Oct., State Papers, Dom., ccccxxx. 47;
Same to Windebank. 9th Oct., ibid., ccccxxx. 55; Pennington to Northumberland,
llth Oct., ibid., 77 ; Suffolk to Windebank, llth Oct., ibid., 66, 68 ; Pennington's
report, llth Oct., ibid., 74 ; Hopton to Windebank, ^ Nov., Col. Clar. State Papers,

|T

i. 1323 ; Tromp to Pennington, 5- Oct., State Papers, Dom., ibid., 80 (translation
in Windebank's writing) ; ibid., ccccxxxi. 4.

CHARLES I. : THE NAVY 335

Dutch Republic, and — what perhaps he felt quite as much at
the time — it robbed him of all chance of blackmailing Spain.
When that Power was asked to pay the great sum above
mentioned, the Cardinal Infant put the proposal aside, con-
sidering that it was the king's own interest to protect the
Spanish fleet; and when Tromp's precipitation broke in on
the negotiations, it was decided to withhold any payment at
all until it was seen how Charles would resent the injury done
to Spain.1 At first he resolved to punish the affront. Pen-
nington was ordered to cause the Dutch fleet, which had re-
turned to the Downs, and was suspected of meditating further
"'insolency" by falling upon the stranded galleons, to im-
mediately quit the road. The king, he was told, had made up
his mind not to allow them the liberty of his ports or roads
"until he shall have received satisfaction for the insolency
already committed." If they refused to leave, Pennington,
immediately the other ten ships had reinforced him, was to
drive them out with all his power and strength, or answer
the contrary at his uttermost peril. Before these orders could
be executed, Tromp voluntarily departed.'2 Copies of the
letter to Pennington were sent to Brussels and Madrid to
show the Spaniards that the king was full of resolution.
They were told he was very sensible of the affront and in-
solence of the Hollanders, and "would make such demonstra-
tion of it, and demand and expect such reparation as in
honour he is obliged." But he was quite unable to carry out
his good intention. It was in vain that he was urged from
Madrid to take strong measures against the Dutch; to seize
their property ; even to invade Normandy as a punishment to
their ally.3 He had no fleet and no money to enable him to
cope with the Dutch Republic, even if the condition of home
affairs had permitted the attempt. On the contrary, to such
a level had he fallen by his stubborn ineptitude that the
English Minister at The Hague was ordered to avoid even a

1 Leslie to Windebank, llth Oct. ; Gage to Windebank, ™ Oct. Col. Clar. State

Papers, i. 1309, 1313.

2 Northumberland to Pennington, 15th Oct. Stale Papers, Dom., ccccxxxi. 18, 30 ;
Col. Clar. State Papers, i. 1324.

* Windebank to Gerbier, 18th Oct. State Papers, Dom., ccccxxxi. 35. Gage to

Windebank, ^ Nov. Paper delivered by Hopton to King of Spain, 24th Nov. Cat.
Clar. State Papers, i. 1321, 1324.

336 THE SOVEREIGNTY OF THE SEA

remonstrance about Tromp's high-handed action in the Downs
If the States-General mentioned the matter to him, he was t(
say that he had received no instructions, "and so to refus<
any conference on that particular.1

The Dutch Government had expected that Charles would raise
loud complaints, and they decided to take a bold attitude. On
the day that they received news of Tromp's victory the proposal
was made to send over an ambassador, and Aerssen Van
Sommelsdijck, who was chosen for the mission, reached London
early in November. There was to be no attempt made on this
occasion to appease the king with soft phrases and show of sub-
mission. Aerssen was to complain of the action which England
had for a long time taken in favouring the Spaniards. The
violation of the King's Chamber was to be passed over, and the
battle in the Downs represented as having been merely a con-
tinuation of the first fight in the Channel, which forced the
Spaniards to take refuge in the English roadstead. But the
pains taken by the States - General were hardly necessary.
Charles in his perplexity did not know to which side to lean.
He received the Dutch ambassador in a very friendly way, and
began to speak again of an alliance with the Republic.2 In
another direction he was flouted by the Dutch. On the Is
October, while the belligerent fleets were at anchor in th
Downs, his representative at the conference at Hamburg p
posed that if the Republic joined the projected alliance wit!
France, Charles would grant them liberty to carry on their her
ring fishery in the narrow seas. At the very time that Trom
was battering the Spanish galleons in the King's Chamber, th
States-General were engaged in passing the resolution "th
they did not intend to ask for the right of fishing in the Nort
Sea from any one." 3

A year later, the Long Parliament began its sittings at West

I LI '

1 State Papers, Dom., dxxxviii. 106. The paper is endorsed "Soverainty of the
Seas : the Dutch attempt on the Spaniards in the Downs. "

2 Resol. St.-Gen., 53, gr Oct., 5 Noy' 1639. Instructie van Sommelsdijck, Muller,
Mare Clausum, 309; Aitzema, Saken van Staet, ii. 618.

3 Secrete Resol. St.-Oen., ^j Oct., "Dat hunne meeninge gantsch niet was, het

recht van Visscherie in de Noortzee van ijemant te stipuleren, versoecken ofte
reveleren." Muller, op. cit., 312. In the following year Vice-Admiral De With
refused to lower his flag to an English ship-of-war off Hellevoetsluis.

CHARLES I. : THE NAVY 337

minster, and Charles was rapidly stripped of sovereign power
within his own kingdom. The Dutch, conscious that they and
not the King of England were the real masters of the sea,
became overbearing in their conduct. More than ever their
fishermen indulged in the bad treatment of British subjects,
which this country was unable to prevent. But their triumph
was short-lived. A decade later they were smitten by the heavy
hand of Cromwell, who resumed the sovereignty of the sea. It
is to the period beginning about this time that the Dutch
trace the decadence which set in in their great fisheries as
well as the decline of their trade. It is, however, a satisfaction
to think that the part played by this country in causing the
misfortunes of Holland — a country to which civilisation is
indebted for immense advances, both material and intellectual
—was comparatively small. From about the middle of the
seventeenth century to the peace of Utrecht, in 17 13, the
Dutch Republic was involved in almost constant wars with its
Continental neighbours, and the herring-fishery and the trade
in general suffered severely, and never afterwards regained the
prosperity they formerly enjoyed.

338

CHAPTER IX.

THE JURIDICAL CONTROVERSIES.

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

It is noteworthy that the birth of modern international
was associated with the origin of these juridical controversies
as to the freedom of the sea.1 It was the appearance of Mare
Liberum in 1609 that heralded the dawn of the new epoch.
The little book of Grotius was at once a reasoned appeal for
the freedom of the seas in the general interest of mankind, and
the source from which the principles of the Law of Nations
have come. The main reasons why the controversy broke out at

1 Maine, International Law, 13, 75. Phillimore, Commentaries upon International
Law, I. xxi. Wheaton, History of the Law of Nations, 54.

THE JURIDICAL' CONTROVERSIES

339

iafc time and the pleas of Grotius had so much success are not
lifficult to discover. The period was characterised by a great
expansion of commercial enterprise. The Western Powers of
Europe, and above all the United Provinces, were pushing into
sea for the sake of traffic and gain. In some directions
le trading adventurers found their way barred by claims to
ire clausum and monopoly of trade ; in other directions it
ras open to them only under heavy burdens and aggravating
sstrictions. The northern seas, in theory at least, were closed
the whaling vessels engaged in what was then a most valu-
ible business ; and commerce and fishing within them were per-
litted only under irksome conditions. The passage through
le Sound into the Baltic was subjected to high dues by Den-
lark; Venice claimed dominion in the Adriatic and levied
iposts for the right of navigation there, and Genoa followed
ler example in the Ligurian Sea. But it was not so much the
claim of Denmark to the sovereignty of the northern seas, or
rights asserted by Venice in the Adriatic, that led to the
outburst for the freedom of the sea and of commercial inter-
>urse at the beginning of the seventeenth century. Except
nth regard to English traffic with Iceland and Norway and the
shing there, more or less regulated by treaties, the Scan-
lavian claim at this time was not of great practical import-
ice; and the dominion of Venice over the Adriatic was
merally regarded as beneficial on the whole, by interposing a
>werful barrier to the further extension of the Turkish empire
Europe, and by facilitating the suppression of pirates and
iracens.1 It was the extravagant pretensions of Spain and
Dortugal to a monopoly of navigation and commerce with the
Tew World and the East Indies that constituted the great
obstacle to the new spirit of commercial enterprise. Founding
leir title on the Bulls of the Pope, and the right of discovery,
mquest, and prior occupation, they arrogated to themselves
le exclusive sovereignty of the great oceans which were the
ithways to these immense regions, — the Atlantic, the Indian
;ean, and parts of the Pacific. Thus, as Grotius remarked,
le whole Ocean except a little was to remain under the control
two nations, and all the other nations of the earth were to
content themselves with the remnant.

1 Meadows, Observations, p. 3. Raleigh, A Discourse on the Invention of Ships.

340 THE SOVEREIGNTY OF THE SEA

The commerce with the East Indies was of special value and
importance. The discovery of the Cape route by Vasco di
Gama, in 1497, led to the great stream of traffic between Europe
and the East being diverted in the next century from its olc
channel in the Mediterranean and Levant to the Atlantic. The
lucrative trade with the Indies was transferred from the Vene-
tians and the Italian Republics to the Portuguese, who then
became for a time the chief trading people of the world,1 anc
strove to keep it entirely in their own hands. It was particu-
larly with reference to this monopoly that the disputes about
the freedom of the sea began. The Mare Liberwm of
Grotius was specially directed against the prohibition by the
Portuguese for any other nation to navigate round the Cape of
Good Hope or to trade with the Indies. It has been Well said
by Calvo that the historical antecedents of the controversy
about mare clausum are to be found in the voyages of
Columbus and Vasco di Gama.2

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

1 Cunningham, The Growth of English Industry and Commerce during the Early
and Middle Ages, p. 418.

2 Le Droit International, i. 20.

THE JURIDICAL CONTROVERSIES

341

3k, which, we are told, he performed " with uncommon
ibility."

This charge cannot be made against the two authors whose
voices were raised in opposition to the prevailing opinions as
the appropriation of the sea before the work of Grotius
ippeared, and of whose writings he made considerable use.
)ne of these was a Spanish monk, Francis Alphonso de Castro,
rho wrote about the middle of the sixteenth century, protest-
ig against the Genoese and Venetians prohibiting other
jples from freely navigating the Ligurian and Adriatic Seas,
being contrary to the imperial law, the primitive right of
mnkind, and the law of nature ; and also against the Spanish
id Portuguese claims for exclusive rights to the navigation to
le East and West Indies.1 The other author, also a Spaniard,
ras Ferdinand Vasquez or Vasquius, who expressed the same
>pinions as de Castro, and for the same reasons. He held that
the sea could not be appropriated, but had remained common
mankind since the beginning of the world ; that the claim
}f the Portuguese to forbid to others the navigation to the East
idies, and that of the Spaniards to a similar prohibition to
lil through "the spacious and immense sea" to the West
Indies, were no less vain and foolish (non minus insance) than
pretensions of the Venetians and Genoese. The law of pre-
jription, he said, was purely civil, and could have no force in
mtroversies between princes and peoples who acknowledged
10 superior, because the peculiar civil laws of any country were
no more value with respect to foreign nations than as if
they did not exist ; to decide such controversies recourse must
had to the law of nations, primitive or secondary, which it
ras evident could never admit of such a usurpation of a title
the sea. With regard to the right of fishery, Vasquius drew
distinction between fishing in the sea and in rivers or lakes,
[e held that the sea had been from the first, and still remained,
:>y the primitive right of mankind, free both for navigation
id fishing, and that its use could not be exhausted by fishing,
rhile lakes and rivers may be so exhausted.2

1 De Potettate Legit Pcenalis, lib. ii. c. 14. Quoted by Nys, Let Origines du
rit International, p. 382, and by Grotius, Mare Liberum, c. vii.

2 D. Fernandus Vasquius, Controversice lUustres, Venice, 1564, lib. ii. c. Ixxxix.
30 (p. 356, ed. Frankfurt, 1668).

342 THE SOVEREIGNTY OF THE SEA

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

The Mare Liberum of Grotius was published anonymously
at Leyden, Holland, in March 1609.1 As the title declares, the
author's object was to assert the right of the Dutch to trade
with the Indies, and to combat the pretensions of the Portu-
guese to a monopoly of navigation and commerce in those
regions; but the genesis of the book has only been recently
made known. At the end of the sixteenth century, when the
commerce of the United Provinces was expanding in all direc-
tions, the Dutch merchants resolved to share in the lucrative

1 Mare Libervm sive de Jvre qvod Batavis compctit ad Indicana Commercia Dis-
sertatio. Lugdvni Batauorvm. Ex officina Ludovici Elzevirij Anno 1609. The
name of Grotius did not appear on the title-page until the second edition in 1618
(Hvgonii Groti Mare Libervm sive , . . vltima editio. Lvgdvni Batavorum, anno
1618), the year in which he was arrested ; and that he was not generally known
to be the author until this time is shown by Welwood referring to Mare Liberum
in 1613 as written by "an unknown author," and by an English State Paper, pre-
pared for the negotiations with the Dutch ambassadors in 1618, which contains
excerpts "out of a book called Mare Liberum (Brit. Mus. MSS. Lansd., 142,
fol. 383). Grotius was then one of the most prominent men in Holland. Another
edition was published, also at Leyden, in 1633, together with Paul Merula's Dis-
scrtatio de Maribus and Boxhorn's Apologia pro Navigationibus Hollandorum ad-
versus Pontem Hevtervm, under the title, Hugo Grotius, De Mare Libero. It wa
also included in Hagemeier's De Imperio Maria, variorum Dissertationes, publishe
in 1663. A translation in the vernacular appeared at Haarlem in 1636, — no doubt
in consequence of the publication of Selden's Mare Clausum, — H. Groti, Vrye
Zeevacrt, ofte £e^oys van het Recht dat de Inghesetenen deser gheunieerde Landen
toekomt over de Oost ende West- Indische Koophandel. Hugo de Groot was born at
Delft in 1583 ; he was appointed Advocate-General before he was twenty-four
years of age, and settled at Rotterdam in 1613, where he became Pensionary of
that town ; he was sent to England as one of the Dutch envoys in that year. In
1618 he was arrested in connection with the Barnevelt troubles, and in the follow-
ing year condemned to perpetual imprisonment ; but he escaped to Paris, where
he lived for eleven years, and then entering the service of the Queen of Sweden,
he was employed as her ambassador at the Court of France. He died at Rostock
in 1645. Some of his works were translated into almost all European languages,
and even into Persian, Greek, and Arabic.

THE JURIDICAL CONTROVERSIES 343

trade with the far east. Having failed to open up a passage to
the Indies by the north-east, they boldly sailed thither by the
Cape of Good Hope, in 1595, through the seas and to the
regions which Portugal claimed for herself. Encouraged by
success, other trading voyages by the same route were under-
taken almost every year. A United Dutch East India Company
was formed in 1602, and the States-General decided to maintain
their rights to the trade by force. The disputes and conflicts
with the Portuguese which followed were soon brought to a
head by the action of the redoubtable Jacob van Heemskerk in
attacking and seizing Portuguese ships.1 The valuable booty
taken from the Portuguese was brought to Holland in 1604 and
1605, and caused much searching of heart among the share-
holders of the company. Many were gratified by the spoil, but
others of much influence, moved by conscientious scruples or
good policy, refused to share in it, and they threatened to
separate themselves from the company and form a rival asso-
ciation to carry on peaceful trade under the protection of the
King of France. It was about this time that Grotius, incited
by the condition of affairs, began to write a treatise with the
object of encouraging his countrymen to resist the claims of
the Portuguese by force. In a tract written about 1614 to
vindicate Mare Liberum against the attack of the Scotch
lawyer, Welwood — which was not published, and the existence
of which was unknown till about forty years ago — he says
that some years earlier, perceiving the great importance of the
East Indian trade for the Netherlands, and that it could only
be made secure by armed resistance to the Portuguese, he had
written a book in which he explained the law of war and
spoil ; and in order to rouse the popular mind he gave an
account of the ill-treatment of the Dutch in the East Indies at
the hands of the Portuguese.2 Grotius was then only a little

1 Tiele, Opkomst van het Nederlandsch Gezag in Oost- Indie ; Fruin, Een onuit-
geyeven uxrk van Hugo de Groot, in De Gids, Derde ser. zesde Jaargang, 1868,
vierde del ; M'Pherson, AnnaJ,s of Commerce, ii. 209, 226.

"Ante annos aliquot, cum viderem ingentis esse momenti ad patriae securi-
tatem Indite qua; Orientalis dicitur commercium, id vero commercium satis
appareret obsistentibus per vim atque insidias Lusitanis sine armis retineri non
posse, operam dedi ut ad tuenda fortiter quae tarn feliciter coopissent nostrorum
animos inflammarem, proposita ob oculos causae ipsius iustitia et aequitate, unde
nasci rb ftt\iri recte a ueteribus traditum existimabam. Igitur et uuiversa belli

344 THE SOVEREIGNTY OF THE SEA

over twenty years of age, and it enhances our sense of the
precocity and fertility of his genius to learn that Mare Liberum
was only one chapter (the twelfth) of this treatise. The treatise
itself was not published by Grotius ; but in 1608, during the
negotiations with Spain which ended in the truce of Antwerp,

on ~^jf9~> 1609, the Spaniards demanded that the Dutch
should relinquish the trade with the West Indies and also
with the East Indies (Portugal being then united to Spain),
and, probably at the request of the directors of the East India
Company, Grotius then detached the part of his work which
dealt with the freedom of commerce and navigation and
published it in March 1609, under the title of Mare Liberum.
In dealing with his theme Grotius attacked in succession
all the arguments put forward by the Portuguese to justify
their claim. Their titles from prior discovery of the Cape
route, under Papal Bulls, by the right of war or conquest,
or from occupancy and prescription, were all, he maintained,
invalid; by the Law of Nations navigation and commerce
were free to all mankind. The action of the Portuguese
in attempting to restrain the trade with India furnished a
just cause of war; and the Dutch were resolved to assert
their rights by force. But Mare Liberum was much moi
than a pleading in a particular case. An earnest and
powerful appeal was made to the civilised world for complete
freedom of the high seas for the innocent use and mutual
benefit of all. Grotius spoke in the name of humanity as
against the selfish interests of a few ; and while he made
full use of arguments founded on Roman law, on the law of
nature and of nations, it was principally the lofty moral

prsedaeque iura, et historiam eorum quse Lusitani in nostros sseue atque crude-
liter perpetrassent, multaque alia ad hoc argumentum pertiiientia eram persecutus
amplo satis commentario, quern edere hactenus supersedi." Hugonis Orotii De-
fensio Capitis quinti Maris liberi oppugnati a Gulielmo Welwodo luris Civilis pro-
fessor e capite XXVII. eius libri scripti Anglico serrnone cui titulum fecit Com-
pendium legum Maritimaram. This manuscript of Grotius was discovered in
1864, along with the work De Jure Prcedce, to which he refers, in a collection of
MSS. brought to auction, which belonged to the family of Cornets de Groot of
Bergen-op-Zoom, who had descended in a direct line from the great publicist
(Fruin, op. cit.) It was printed by Muller in 1872 (Mare Clausum, p. 331). The
greater work, edited by Hamaker, was published in 1868, Hugo Grotius de Jure
Pradce Commentariut.

THE JURIDICAL CONTROVERSIES 345

ideas which inspired his work that gave it its reputation
and charm. He entered into a subtle and learned disquisition
as to the origin of the idea of property from the primitive
times when all things were held in common; the conditions
under which private property is possible or lawful, and
the distinction between what is private, what is public, and
what is common. Much of the argument appears to us
now to be of the nature of hair-splitting and word-play;
but inasmuch as it was made use of subsequently in the
numerous controversies regarding the freedom or the
sovereignty of the sea, as well as in diplomatic negotiations,
It is necessary to summarise it here. All property, he says,
is based upon possession or occupation (occupatio), which
requires that all movable things shall be seized and all
immovable things enclosed; things that can neither be seized
nor enclosed cannot become property : they are common to
all, and their use pertains not to any particular people but
to the whole human race. The distinction is also made
between things which are exhausted by promiscuous use and
those which are not : the latter are common, and their free
use belongs to all men. Thus the air is common, because
it cannot be occupied and because it cannot be exhausted by
promiscuous use ; it therefore belongs to all mankind. And
in the same way the sea is common to all; it is clearly so
infinite that it is not capable of being possessed, and is
fitted for the use of all both for navigation and fishing.1
It is also among those things which cannot be bought and
sold — that is, which cannot be lawfully acquired; whence
it is, strictly speaking, impossible to look upon any part of
it as belonging to the territory of a people. The sea is
under no one's dominion except God's; it cannot by its
very nature be appropriated; it is common to all, and its
use, by the general consent of mankind, is common, and
what belongs to all cannot be appropriated by one ; nor
can prescription or custom justify any claim of the kind,

" Hujus generis eat Aer, duplici ratione, turn quia occupari non potest, turn
quia usum promiscuum hominibus debet. Et eiadem de causis commune est
omnium Maris Elementum, infinitum scilicet ita, ut possideri non queat, et
omnium usibus accommodatum : sive navigationem respicimus, sive etiam pisca-
turum." Cap. v.

346 THE SOVEREIGNTY OF THE SEA

because no one has power to grant a privilege adverse to
mankind in general.

Grotius places navigation and fishing in the sea on the
same footing, or rather he looked upon interference with
the freedom of fishing as a greater offence than interference
with navigation. With regard to imposing tribute or
fishermen, he said that such as are reckoned among the
Regalia are imposed not on the thing, that is the sea and
the fishing, but on the person ; and while it may be levied by
a prince on his own subjects, it is not to be levied on foreigners,
for the right of fishing everywhere should be free to foreigners,
lest a servitude be imposed on the sea which it cannot bear.
An action of this kind would be worse than the prohibition of
navigation ; it would be barbarous and inhuman. If any one,
says Grotius, claimed jurisdiction and sovereignty on the
great seas for himself alone against promiscuous use, he would
be looked upon as one who was aiming at extravagant
dominion; if any one was to keep others from fishing, he
would not escape the brand of insane cupidity.1

It is hardly possible to escape the suspicion, which was
apparently shared by King James, as it was by many othen
that Grotius in these sentences was aiming obliquely a
England. Such strength of language about the right of fr<
fishing in the sea was scarcely pertinent to his theme,
neither the Portuguese nor the Spaniards contested tha
right, and the Dutch did not fish in waters under thei
control. It would, on the other hand, be explicable
Grotius had got a hint of James's intention with regard
the "assize-herring" (see p. 152), and we know that as early
the beginning of 1606 proposals were made for the formatio:
of an English fishery society, with taxation of foreigr

1 Cap. v. " Sitniliter reditus qui in piscationes rnaritimas constituti Regalium
nutnero censenter, non rem, hoc est mare, aut piscationem, sed personas non
obligant. Quare subditi, in quos legem fereudi potestas Reipublicae aut Princip
ex consensu competit, ad ouera ista compelli forte poterunt : sed exteris jus pis-
candi ubique immune esse debet, ne servitus imponatur mari quod servire non
potest. . . . Quod in aliis difficile videtur, in hac omnino fieri non potest : quod
in aliis iniquum judicamus, in hac summe barbarum est, atque inhumanum. . . .
In tanto mari si quis usu promiscuo solum sibi imperium et ditionem exciperet,
tamen immodicse dominationis affectator haberetur : si quis piscatu arceret alios,
insanse cupiditatis no tain non effugeret."

THE JURIDICAL CONTROVERSIES 347

fishermen, and that in the beginning of 1608 negotiations
were on foot between the English Government and the Dutch
Ambassador as to the " assize-herring." 1

It is important to note — what many of his followers too often
forgot — that Grotius restricts the application of his general
argument for mare liberum to the open sea. He does not, he
says, deal with an inland sea (mare interiore} which, sur-
rounded on all sides by land, did not exceed the breadth of
a river ; the question concerned the ocean, which the ancients
called immense, infinite, the parent of things, co-terminous
with the air. The controversy, he continues, was not about
a bay or a strait in this ocean, nor concerning so rnuck of
it as might be seen from the shore: the Portuguese claim
for themselves whatever lies between the two worlds.2 Again,
referring to the Italian publicists, he says their opinion
cannot be applied to the matter in question, for they speak
of the Mediterranean, he of the ocean ; they of bays or
gulfs, he of the vast sea, which differ very much in respect
of occupation.3

The opinions and reasonings of Grotius in Mare Liberum
as to the free use of the sea were repeated more concisely
and with some modification in his greatest work, The Rights
of War and Peace, which was published in 1625.4 No one,
he affirmed, can have property in the sea, either as to the
whole or its principal parts; and as some people admit this
in respect to private persons but not in regard to countries
or states, he proceeds to prove its truth by both a "moral

1 Not improbably James had Mare Liberum in view in the following sentence in
his Proclamation of 1609 : " Finding that our connivance therein hath not only
given occasion of over great encroachment upon our regalities, or rather question-
ing for our right." That it was believed in England that Grotius had James in
view is shown by the following precis contained in the volume of official records
prepared for the ambassadors to the Congress at Cologne in 1673 : " K. James
coming in, the Dutch put out Mare Liberum, made as if aimed at mortifying the
Spaniards' usurpation in the W. and E. Indyes, but indeed at England. K. James
resents it, bids his Ambr Sr D. Carleton complaine of it." State Papers, Dom.,
cccxxxix. p. 99. Chas. II., 1673-75.

2 Cap. v. p. 29. "In hoc autem Oceano non de sinu aut fretu, nee de omni
quidem eo quod e littore conspici potest controversia est. Vindicant sibi Lusitani
quicquid duos Orbes interjacet."

3 Cap. vii.

4 Hvgonie Grotii De Ivre Belli ac Pacis, Libri Tres.

348 THE SOVEREIGNTY OF THE SEA

reason and a natural reason." The moral reason is the vas
extent and inexhaustibility of the sea, whether for navigatioi
or fishing; the natural reason is that it cannot be occupiet
or possessed because of its fluidity, since liquids having n<
bounds of their own cannot be possessed unless enclosed by
something else, as a river by its banks; but the sea is not
contained in the earth, as it is equal to it or even greater.1
Grotius, however, admits that his argument that rivers and
lakes may be appropriated because their banks could be
appropriated, may be logically applied also to certain parts
of the sea. From the example of rivers he says, "It appears
that the sea may be occupied by him who is in possession
of the lands on both sides, although it be open either above,
as a bay or gulf, or both above and below, as a strait, pro-
vided that it be not so great a part of the sea that when
compared with the lands on each side it cannot be supposed
to be some part of them"; and what is lawful to one king
or people may be also lawful to two or three, if they have
a mind to take possession of the sea thus enclosed within
their land.2 He also admits by another train of reasoning
— concerning property in the marine vivaria of the Romans
— that if it is not repugnant to the law of nature for
private person to appropriate a small enclosed part of th
sea, one or more nations possessing the shores might i
like manner appropriate a part of the sea, if it be sma
compared with the land; and that might happen althougl
the sea was not enclosed on all sides. But this admissior
that the law of nature does not preclude appropriation o
a relatively small part of the sea by the neighbouring
state, he qualifies in a general way by saying that the
are many things tolerated by the law of nature which th
law of nations, by common consent, might prohibit ; an
where this law of nations was in force and is not repealed

n

'd

nd

1 Lib. ii. cap. ii. s. iii. 1, 2.

2 Lib. ii. cap. iii. e. viii. " Ad hoc exemplum videtur et mare occupari potuisse
ab eo qui terras ad latua utrumque possideat, etiamsi aut supra pateat ut sinus,
aut supra et infra ut fretum, dummodo non ita magna sit pars maris ut non cum
terris comparata portio earum videri possit. Et quod uni populo aut Regi licet,
idem licere videtur et duobus aut tribus, si pariter mare intersitum occupare
voluerint, nam sic flumina quae duos populos interluunt ab utroque occupata sunt,
ac deinde divisa."

THE JURIDICAL CONTROVERSIES 349

by ^common consent, the most inconsiderable part of the sea,
although almost enclosed by the shores, can never be the
property of a particular people. And in places where the
law of nations was not received, or was afterwards abolished,
it does not follow that the people merely because they possess
the lands also possess the sea enclosed by them : the taking
possession must be made by an overt act, and signified and
made known. And if the possession thus gained by the
right of prior occupation is afterwards abandoned, the sea
returns to its original nature — namely, to the common use
of "mankind. Further, he who possesses any part of the sea
cannot lawfully hinder unarmed ships, giving no room to
apprehend danger, from sailing there, in the same way that
he cannot justly prohibit innocent passage through his lands.
Grotius goes on to explain that it is more easy to take
possession of the jurisdiction (imperium) alone over part
of the sea than of the right of property, and that it is not
contradicted by the law of nations ; and he points to a
number of instances among the ancients.1 He admits that
sovereignty or jurisdiction may be acquired on the sea either
in regard to persons or in regard to territory (ratione per-
soiiarum et ratione territorii), — in regard to persons, as when
a fleet, which is a maritime army, is maintained in any
part of the sea; in regard to territory, as when those who
sail along the coasts may be compelled from the land, as
if they were actually on the land.2

The latter statement of Grotius contains the germ of the
idea subsequently adopted by almost all the writers on inter-
national law, that the extent of the adjoining sea over which
the neighbouring state is entitled to exercise dominion is
limited by the range of guns from the land. Grotius does
not mention the means by which compulsion was to be
made effective, but there is little or no doubt of what was

1 Lib. ii. cap. iii. ss. ix. -xii.

2 Lib. ii. cap. iii. s. xiii. 2. " Videtur autein imperium in maris portionem
eadem ratione acquiri qua imperia alia, id eat, ut supra diximus, ratione person-
arum et ratione territorii. Ratione personarum, ut si classis, qui maritimus est
exercitus, aliquo in loco maris se habeat : ratione territorii, quatenus ex terra cogi
possunt qui in proxima maris parte versantur, nee minus quam si in ipsa terra
reperirentur."

350 THE SOVEREIGNTY OF THE SEA

in his mind.1 It remained for Bynkershoek, at the beginnin
of the next century, to give the doctrine precise expression.

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

The immediate object for which Mare Liberum was publish
— the recognition of the right of the Dutch to sail to th
East Indies and to trade there — was achieved by the treat
of Antwerp in the month following its appearance,2 an
no reply from the Portuguese or Spaniards to the ar,
ments of Grotius was published till sixteen years late
Grotius tells us that a work in refutation of Mare Liberu<
had been prepared by a scholar of Salamanca, but it wa
suppressed by Philip III. ; 3 but in 1625, when Philip
was on the throne, an elaborate defence of the rights
Portugal in the Indies and a reply to Grotius was pub
lished by Franciscus Seraphinus de Freiras, a Spaniard, wh
dedicated his book to the king.4 The Venetians also, whos
power had by this time declined, began to defend with th
pen their rights in the Adriatic. These rights had been

1 Calvo, Le Droit Intemat., i. 348 ; Ortolan, Ragles Internationales et Dif

de In Mer, i. c. v. See p. 156 referring to a State Paper of 1610, which seems
be misdated "August 1609."

2 Dumont, Corps Diplomatique, vol. V. ii. p. 99. The treaty was signed on -^
1609.

3 Defensio, 332 (circa 1614) ; Letter to his brother, 1st April 1617. Epistolce,
759.

4 De Justolmperio Lusitanorum Asiatico advertus Orotii Mare Liberum.

THE JURIDICAL CONTROVERSIES 351

indirectly assailed by the general argument of Mare Liberum,
and directly in the writings of de Castro and Vasquius,
from which Grotius had quoted liberally; and now at the
beginning of the seventeenth century they were actively
contested by other Powers, and in particular by Spain. Hence
quite a number of works defending the claims of Venice
appeared at this period, the best of which was that of Pacius,
who relied on the opinions of numerous early jurists, as
Bartolus, Baldus, and Angelus ; on immemorial possession
and prescription, and stated that the rights of the Venetians
consisted in jurisdiction, the imposition of taxes, the pro-
hibition or regulation of navigation, the protection of subjects,
and the suppression of pirates.1

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

1 Ivlii Pacii De Dominio Maris Hadriatici Disceptatio, Lvgdvni M.D.C.XIX.
Other works were Angelus Mattheacius, De Jure Venetorum et Jurisdictione Maris
Adriatici, Venezia, 1617 ; Cornelio Francipane, Alegazi&n in Jure, per U Dominio,
della Republica Veneta, del suo Oolfo, contra alcune Scritture di Napolitani, 1618 ;
Franciscus de Ingenuis, Epistola de Jurisdictione Venetce Reipublicce in Mare
Adriaticum, 1619 ; P. Zambono, Del Dominio del Mare Adriatico overo Oolfo
di Venezia, Venice, 1620.

352 THE SOVEREIGNTY OF THE SEA

The task of replying to Grotius was taken up by a Scottish
lawyer, William Welwod or Wei wood, a professor of the civil
law. Welwood was Professor of Mathematics at St Andrews
University, but exchanged the Mathematical for the Juridical
Chair about the year 1587 ; at the royal visitation in 1597 he
was deprived of his office, on the ground that the profession of
the law was in no wise necessary at that time in the Univer-
sity, but probably because his profession as a teacher of juris-
prudence was obnoxious in the eyes of James.1 In 1590 he
had published at Edinburgh a treatise on the Sea Laws of
Scotland, which is believed to be the earliest regular work on
maritime jurisprudence printed in Britain, and which was
dedicated to James ; 2 but it contains nothing bearing on the
question of the fishery or "assize-herring." In 1613 he
published at London a new and enlarged edition of his early
work, and in one of the chapters on "The Community and
Proprietie of the Seas," he endeavoured to refute the argu-
ments advanced in Mare Liberum, which he seems to have
looked upon as a reply to James's proclamation of 1609.3 This

1 M'Crie, Life of Andrew Melville, 206, &c. Selden describes him as Juriscon-
avltus Scotus; and Prynne "A Scot, Professor of the Civil Law " (Animadversion*,
113).

2 There is a copy in the Library of the University, Cambridge (Aldis, A List oj
Books printed in Scotland before 1700 ; Dickson and Edmond, Annals of Scottish
Printing, 415), and I have found a MS. copy among the State Papers, entitle
" The Sea Law of Scotland, shortly gathered and plainly dressed for the read]
vse of all seafaring, men. Dedicated to James VI. of Scotland by William
Welvod. At Edinborough, A° 1590, by Robert Walgrave." (State Papers, Dom.,
Jas. I., ccviii. No. xvi.) It was printed at Edinburgh by Waldegrave in 1590.
There are fifteen chapters dealing with the freighting of ships, the powers anc
duties of the master, the relations between the master and the merchants,

In his preface to the Abridgement, Welwood refers to this earlier work as follows :
"It pleased your M. some yeeres past most graciously to accept of this birth, in
the great weaknes and infancie thereof. Therefore it is, that now being strong,
and by all warrants inarmed, it most thankefully returnes, offring seruice to your
M. euen for all the coasts of your Highnes dominions, vpon hope to merit your
former grace." His last work is dated 1622. It is probable that, like so many of
his countrymen, he followed King James to London, where all his later works were
published. He was of an ingenious mind, and, while teaching mathematics at
St Andrews, obtained a patent for a new mode of raising water from wells, &c.,
on the principle of the syphon. M'Crie, op. cit.

3 An Abridgement of all Sea-Lawes, gathered forth of all Writings and Monu-
ments, which are to be found among any people or Nation vpon the coasts of the
greate Ocean and Mediterranean Sea : And specially ordered and disposed for the
v$e and benefit of all beneuolent Sea-farers, within his Maiesties Dominions of Great

I

1C.

THE JURIDICAL CONTROVERSIES 353

work was also dedicated to the king, and in a prefatory ad-
dress to the three High Admirals — the Duke of Lennox, the
Earl of Northampton, and the Earl of Nottingham — he im-
pressed upon them the importance of the " conservacie " of the
sea, especially for the fisheries, and urged that strangers should
be stayed from scattering and breaking the shoals of fish on
the coast of Scotland, a duty on which some of his Majesty's
ships might well be employed.

Welwood was scarcely fitted either by knowledge or capacity
to be a formidable antagonist to a giant like Grotius; and
although his writings contain quite a number of arguments
which were later used and expanded by Selden, it can hardly
be said that they had a great influence on the controversy. He
looked upon Mare Liberum as an attack on the rights of King
James and his subjects to the fisheries "on this side the seas,"
veiled under the pretext of asserting the liberty to sail to the
Indies. As befitted his nationality and his time, many of his
arguments were drawn from Holy Writ, and he had no diffi-
culty in placing Providence on the side of James and in opposi-
tion to the Dutch. Others were more pertinent. He urged
that the injunctions of the Roman law applied only to the
subjects of Rome, and not internationally as between state and
state, — an opinion also pressed, as we have seen, by Vasquius ;
that the fluidity of the sea was no bar to its occupation, and
that it could be, and had been in certain cases, divided up into
marches and boundaries, by the ordinary methods used by
navigators, " so f arre as is expedient for the certain reach and
bounds of seas, properlie pertaining to any prince or people,"
— what these bounds are or should be he does not say, though
he quotes the Italian limit of 100 miles with approval. He
held that the liberty of navigation was beyond all controversy,
and agreed to the principle of the complete freedom of the
sea so far as concerned the " main Sea or great Ocean," which
was "farre removed from the just and due bounds above
mentioned properlie perteyning to the neerest Lands of euerie

Britanne, Ireland, and the adiacent Isles thereof. London, 1613. Tit. xxvii. deals
with the "community" of seas. He refers to the work of Grotius as "averie
learned, but a subtle Treatise (incerto authore) intituled Mare Liberum. " Welwood's
Abridgement was republished in 1636, without alteration ; also in the edition of
1686 of Malyne's Consuetudo vd Lex Mercatoria, but without his name.

Z

354 THE SOVEREIGNTY OF THE SEA

Nation." To Grotius' statement that it was worse to prohibit
promiscuous fishing than to forbid navigation, Wei wood justly
replied that if the free use of the sea is interfered with fo
any purpose, it ought to be chiefly for the sake of the fishings,
if the fishes become exhausted and scarce, as he says was the
condition at that time on the east coast of Scotland, from the
" neere and dailie approaching of the busse fishers " scattering
and breaking the shoals, so that no fish " worthy of anie paines
and travels " could now be found.

Two years later Welwood returned to the theme, and pub-
lished a formal little book on the dominion of the seas.1 It
was dedicated to Queen Anne, who had just been endeavouring
to set up a fishery society with power to tax foreign fishermen
(p. 161), and, as explained in the dedication, the book was
specially directed against the freedom unlawfully usurped by
foreigners of fishing in the British seas. It may be regarded
as an amplification of his chapter in the Abridgement, but is
much superior and more logically arranged ; and being written
in Latin, it attained, if not a reputation, at least considerable
recognition on the Continent. He urges strongly that the sea
as well as the land is capable of distinction and dominion, both
by human and by divine law, and explains the contrary
opinion of many publicists, poets, and orators (so copious!
quoted by Grotius) by saying they were ignorant of th
true law of nature, and had infected the minds of later gener
tions with "a preposterous notion concerning some universal
community of things." The adjacent sea is claimed for the
neighbouring state, because it is as necessary there as it is on
land that some one should have jurisdiction, and this juris-
diction ought to be exercised by the neighbouring prince, so
that both the land and the sea should be under the same
sovereignty. The part of the sea next the land is, moreover,
so joined to and, as it were, incorporated with it, that the ruler
of the land is not permitted to alienate either a part of it, or
the use of it, or to let it out (locare) any more than his king-
dom or the patrimony of his kingdom. He held that it was
incontestable that the vast and boundless waters beyond the

1 J)e Dominio Marts Ivribvsque ad Dominivm praecipve spectantibvs Assertio
brevis et methodica. Cosmopoli, 16th January 1615. It was republished at The
Hague in 1653, and replied to by Graswinckel. See p. 412.

THE JURIDICAL CONTROVERSIES 355

ire proximum were open to all nations indifferently for all
ises, but that in the adjacent sea the neighbouring prince had
particular two primary rights besides jurisdiction — namely,
le right of navigation and the right of fishing, with the power
impose taxes for either. He maintained that fishing in the
3a was for the most part appropriated, and for a clear reason.
Srod had appointed the fishes (herrings) to swarm along the
sts of Britain and the surrounding isles at seasons and
)laces which He had pre-arranged, and for the benefit of the
ihabitants : why, then, should the people be hindered from
assessing as their own this benefit which God had granted
lem ? He would be unwilling to deny the communication of
lis natural advantage to other nations, "but only by the
ime law by which they possess their own, that is by a just
)rice." Yet, notwithstanding this special blessing which had
sen granted to the British people, they were despoiled of it
id of their just rights, owing to their seas being taken pos-
sion of, as it were, by a continual inundation of foreign
fishermen, so that the shoals were scattered and the fishery ex-
hausted. Welwood then refers to the alleged old agreement
between the Scotch and the Dutch, whereby the latter were
not to fish within eighty miles of the coast of Scotland (p. 84),
but which they of late totally disregarded, fishing close to the
shore, in front of the houses. And while they were permitted
to carry away their fish from our seas without paying any
tribute, the poor Scottish fishermen had to pay tithes to the
Church and the assize-herring to the crown, as well as having
their livelihood damaged by the action of the foreigners.

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

356 THE SOVEREIGNTY OF THE SEA

But they will be remembered in the history of international
law for another reason. The first of them called forth from
Grotius the only reply he ever vouchsafed to the numerous
writers who attacked Mare Liberum. In the year in which
the work was published, he was in London as one of the
Dutch ambassadors, engaged in the somewhat ironical task
of defending a Dutch mare clausum in the East Indies, and
probably the book then fell into his hands. In his Defensio
(see p. 344) Grotius reaffirmed the position he took in Mare
Liberum, with the old arguments, and with some new ones to
meet the criticism of Welwood, and not without some of the
customary logic-chopping and wire-drawn reasoning. He held
that the Roman law as to the sea being common applied not
merely among the citizens of one state, but among mankind
in general, because communis was a different thing from
publicus.1 While admitting the possibility of marking out
the sea by imaginary lines, he said this was not relevant
to the question of appropriation, since appropriation could
not take place without possession, and possession cannot be
established merely by the mind or intellect, but requires a
corporeal act; otherwise the astronomer might lay claim to
the heavens or the geometrician to the earth. Concerning
the rights of fishery, with which the Defensio largely deals,
he asserts that as the use of the sea is common to all, no
one can prohibit fishing in it or justly impose taxes on it.
With respect to the right of the Dutch to fish on the British
coasts, he cites the Burgundy treaties and uses the same
arguments as the Dutch ambassadors did in 1610 (p. 155).
They had the right by treaties, immemorial usage, prescription,
and the Law of Nations. It is noteworthy that in the Defensio,
Grotius, no doubt owing to the polemical spirit inciting
him above all to refute the arguments of Welwood concerning
the mare proxirmurm, as well as to demolish the claims of
King James, denies the existence of sovereignty or property
in any part of the sea, whereas it appears to be allowed
by implication in Mare Liberum, and is expressly admitted
in his later and larger work. Here he says, and more

1 In Roman law a distinction was made between the sea and rivers in regard
to propriety. The sea is " communis omnium naturali jure, " but the rivers are
"publicce res, quarum proprietas est populi vel reipublicce."

THE JURIDICAL CONTROVERSIES 357

logically, that whatever applies to the whole sea applies to
all its parts, even to a diverticulum, and he allows no
exception for the sea washing a coast: a conclusion, how-
ever, at variance with the general practice of the time.
This tract, as already stated, was not published by the
author, probably because it was likely to excite still more
the ire of James at finding his "rights" again "questioned."1
In contrast with the writings of Welwood may be cited
the opinions of another and more eminent Scottish lawyer,
Sir Thomas Craig, who touched upon the subject of maritime
jurisdiction in a non-controversial work published before
the juridical controversy had arisen.2 He states that the
sea is common to all for navigation, but that property and
jurisdiction in the adjacent sea pertains to the neighbouring
territory according to the current opinion — the sea washing
the coast of France, England, Scotland, Ireland, &c., to the
respective countries. No limits or bounds are laid down
by Craig as to the partitioning of the sea in this way, but
when dealing with the theoretical question of islands arising
in the sea, he follows Bartolus in assigning a space of 100
miles from the coast. He admits that certain seas may
be prescribed, as the Adriatic, which Venice, though not
possessing the shores, claimed by prescription. With respect
to fisheries, the Scottish author, as might have been expected,
holds that those in the adjoining sea belong to the bordering
state : they are prescribed, and fishing there may be permitted
or prohibited according to custom ; and he says that it was
not without great injury to us that the Dutch carry on their
fishery around our islands.3

1 Welwood's De Dominio Maria is not mentioned by Grotius, whose tract
appears to have been written before it was published.

2 Jus Feudole, Tribus Libris Comprehensum, lib. i., Diegesis 13, p. 103. Edin-
burgh, 1603 and 1655. The treatise was dedicated to King James. Craig was
born in 1538 and died in 1608.

3 " Quod ad mare attinet, licet adhuc ita omnium commune sit, ut in eo navigari
possit. Proprietas tamen ejus ad eos pertinere hodie creditur, ad quos proximus
continens adeo ut mare Gallicum id dicatur quod littus Gallise alluit, aut ei
propius est, quam ulli alii continenti. Sic Anglicum, Scoticum, et Hybernicum,
quod propius Anglise, Scotise, et Hybernise est. Ita ut reges inter se, quasi maria
omnia diviserint, et quasi ex mutua partitione alterius id mare censeatur, quod
alteri propinquius et commodius est ; in quo si delictum aliquod commisum fuerit,
ejus sit, jurisdictio qui proximum continentem possideat. Isque suum illud mare

358 THE SOVEREIGNTY OF THE SEA

In the period that elapsed between the appearance of the
works of Grotius and Welwood and the publication of
Selden's Mare Clausum, a number of other books were
issued which dealt with the question of the freedom of the
seas and the extent to which they might be appropriated.
Gerard Malynes, in treatises on commerce which had a wide
circulation, re - echoed the opinions of Welwood, and of
Gentleman and Keymer. The " main great seas," he said,
were common to all nations for navigation and fishing, but
the bordering sea was under the dominion of the prince of
the adjoining country, and foreigners could only fish in it
by obtaining permission and paying for the privilege ; within
this sea navigation was free unless it interfered with the
fishings. Malynes said that this was the practice in Russia,
Denmark, Sweden, and Italy; and he ascribed the decay
of English fisheries and trade to the admission of foreigners
to fish in "his Majesty's streames" without paying for
the liberty.1 Two other authors, each celebrated in his
respective sphere, touched upon the king's dominion in the
seas, and they may be regarded as representing two different
aspects of the subject, both of which bocame of great
importance — namely, the limits of neutral waters, and the
rights of the crown by the Common Law of England to
the propriety of the sea and its bed. One was Alberico
Gentilis and the other Serjeant Callis.

Gentili, or Gentilis, who was a forerunner of Grotius
in shaping the Law of Nations,2 was an Italian of the school
of Perugia, domiciled in England, where he held the Regius
Professorship of Civil Law at Oxford. In 1605, after the
conclusion of peace with Spain, he was appointed advocate
for the Spanish embassy in London, and was frequently
employed in the Admiralty Court in cases where the legality

vocat. . . . Piscationes vero quso in proximo inari fiunt, proculdubio eorum sunt
qui proximum continentem possident. Itaque non sine summa injuria nostra
Belgse circa nostras insulas piscantur. Nam licet piscationes in mari non pro-
hibeantur, tamen et hae pnescribuntur, et traduntur permissae aut prohibits
secundum consuetudinem."

1 The Maintenance of Free Trade, p. 42 et seq. Consuetudo vel Lex Mercatoria.
The latter contains chapters on Navigation and Community of Seas, and The
Distinct Dominions of the Seas. Many editions were published.

2 Wheaton, Hist., 51, 153 ; Phillimore, Commentaries, I. xxxix.

THE JURIDICAL CONTROVERSIES 359

of the capture of Spanish vessels by the Dutch had to be
determined. His pleadings and the decisions in these and
similar cases were collected and published in 1613, after
his death, and they form, according to Wheaton, the earliest
reports of judicial decisions on maritime law published in
Europe.1

In discharging his duties in the English Prize Courts, it often
fell to the lot of Gentilis to deal with the jurisdiction of
England in the seas, for while he held office war existed
between Spain and the United Provinces, and Spanish ships
were frequently taken by the Dutch in the neighbourhood of
the British coasts. Of course, captures made in the King's
Chambers after the proclamation of 1604 (see p. 119) were not
good prize, and were restored.2 But when a Spanish vessel
was seized clearly outside the limits of the King's Chambers,
Gentilis argued that it was not good prize, because, first, the
treaty of peace 3 between Spain and England provided that the
subjects of either were to be protected in all places throughout
the dominions of the other ; and, second, the dominion of the
King of England extended far into the neighbouring seas.
He seemed to stretch the joint sovereignty of Spain and England
as far as America, pointing out that the southern coasts of
Ireland were opposite to Spain, and the western coasts were

1 Alberici Gentilis Juriscons. Hispanicce Advocationis, Libri Duo, Hanovise, 1613.
Gentilis was bora in 1551 and died, like Craig, in 1608. His most important works
were De Jure Belli (1588) and De Legationibus. Professor Holland has given an
account of his life and works in An Inaugural Lecture on Albericus Gentilis,
delivered at All Souls College, 1874. See also Alessandro de Giorgi, Delia Vita e
delle opere di Alberico Gentili, Parma, 1876.

2 In a letter from the Earl of Salisbury to Sir Thomas Lake in 1606, referring
to a dispute between the Dutch and Spanish ambassadors about prizes taken in the
Narrow Sea, it is said that the king, in putting in force his proclamation about the
recall of subjects in foreign service (p. 119), dealt as follows : if a prize had been
taken and brought into the English limits (chambers), and Englishmen were aboard
the ta.ker, he dealt with them as having offended against his proclamation, and also
released the ship as not being good prize. Even more, proceeds the Earl, " although
there be no English but all Flemings, the king takes all from them and restores
it [the ship] wherein, tho' in effect it undoes the end of the States warr by sea,
because they have no way to come home but by the narrow seas, where the least
wind that can blow them can hardly keepe themself from the English coasts,
and so a partiall jugement of \ a mile more or less in a wyde sea looseth or
winneth their right." State Papers, Dom., xviii. 22.

3 In 1604, between King James and Philip III. and the Archdukes. Dumont
Corps Diplomatique, V. ii. 34.

360 THE SOVEREIGNTY OF THE SEA

bounded by the Indies belonging to Spain, while the northern
coasts of Britain, having no countries lying against them, were
washed by an immense and open sea. He held that the pro-
clamation of 1604, fixing the limits of the chambers in con-
nection with acts of hostilities between the Spaniards and the
Hollanders, ought not to prevail against the provisions of the
treaty, for the proclamation was subsequent to the treaty, and
it would be unjust to allow it to lessen the extent of the ter-
ritory (sea) over which protection was to be afforded by the
terms of the contract. It was not a valid argument, Gentilis
continued, to say that the boundaries expressed in the proclam-
ation— that is, the King's Chambers — had been observed long
before by common usage in relation to similar cases.1

There is no doubt, however, that although Gentilis as an
advocate took this line of pleading, the boundaries of the
King's Chambers from headland to headland, as defined by
James in his " plat," were received as settled law in regard to
neutrality both in the English courts and on the Continent.2
Gentilis further urged that the limit fixed by the Italian jurists
for the extent of jurisdiction — viz., 100 miles from the coast,
unless the proximity of another state interfered with its
application — also was in force off the British coasts, a viei
which the court declined to accept.

Yet, although this principle of extending and limiting th«
territorial jurisdiction to 100 miles was not accepted in the
English Courts, we find it made use of in the diplomatic
correspondence of the time. The Earl of Salisbury in
letter to Cornwallis, the English ambassador at Madrid, ex-
planatory of James's proclamation in 1609 forbidding un-
licensed fishing, did not seek to defend the action of th«
king by reason of any intrinsic right of the crown of
England to sovereignty in the neighbouring sea, but rather
upon what he alleged was the practice of the civil law. A
sovereign prince or state, he said, was Mundi Dominus, Lex
Maris, both because of the protection afforded to navigation
in the adjacent sea and from prescription : the adjoining sea,
as Baldus said, pertained to the territory of the neighbouring

1 " Etiam non nocet, quod objicitur et longe antehac longo usu servatos in
hujusmodi qusestionibus hos ease fines qui express! nunc sunt Edicto," p. 30.

2 Gryphiander, De Insvlis Tractatus, Frankfort, 1623, cap. 14, 8. 46.

THE JURIDICAL CONTROVERSIES 361

state, and thus the Venetians, as lords of the Adriatic, could
impose taxes and penalties on navigation. " In respect of
both which titles," continued the Earl, "the Kings and
Princes in general fronting upon the seas, as Spayne, France,
Denmark, &c., have upon occasion offered, not only made
ordinances and published edicts for the ruling and better
ordering of the seas, but also have put them in execution ; as
well civilly for deciding of contracts, as criminally for trans-
gressions ; and have raised taxes and gabells in the seas as on
the land to their best benefit, as part of their regalities properly
belonging unto them, in sign of their sovereignty." As to the
distance to which this sovereignty extended, he said it was
" generally received to be about one hundred miles at the least
into the seas," unless in narrow seas only, in which case the
limits are divided by the channel, "except the princes of the
one shore have prescribed the whole, as it falleth out in his
Majesty's narrow seas between England and France, where
the whole appertayneth to him in right, and so hath been
possessed tyme out of mind by his progenitors."

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

362 THE SOVEREIGNTY OF THE SEA

was prima facie vested in the crown in virtue of the roya
prerogative.1

Along with the development . of this idea came another,
which was ultimately likewise engrafted on English law—
that the crown had the exclusive right of property in the sea
and in the soil beneath it. The origin of the idea is to be
found in a treatise written in 1569 by Thomas Digges.2 He
argued that as many things — as wrecks, treasure-trove, waifs
and strays, which were originally common by the law of
nature — now belonged to the Prince, so also should the sea,
which was the chief of all waters, and could not by the civil
law become the property of a subject. He held that just as
the owners of the soil had the property in a river and its banks,
the king had the interest and property in the " great salt river "
environing the island, and in its shores and bottom; and he
speaks of the sea as the "King's river," the "King's streme,"
and the "King's water," in which he had also jurisdiction.
Digges also claimed that the fishings in the sea belonged to
the crown, for "although the Kings of England have benne
content to suffer fishermen Jure gentium to enjoy to theire
owen use such fishe as by theire charges travill and adventure
they can in the Englishe Seas take, Yet haue the Kings of
England for remembrance of this theire favoure that the
memorie of theire propertie in the Seas shoulde not be extin
guished, alwaie reserved to them selves the cheif fishe a;
Sturgeon, Whale, &c."3

The contention that the crown had the right of property ir
the sea and its bed, denied by Plowden, received in the reigi
of James much fuller amplification at the hands of Serjeanl

1 Moore, A History of the Foreshore and the Law relating thereto, 1888.

'- " Arguments prooving the Queenes Maties propertye in the Sea Landes, am
salt shores thereof, and that no subiect cann lawfully hould eny parte thereof but
by the Kinges especiall graunte." It is printed by Moore (op. cit., 185) from
Lansdowne MSS., No. 100. Various copies exist ; one in Lansd. MSS., No. 105
belonged to Lord Burghley, and is endorsed by him " Mr Digges. The Case
Lands left by ye Seas." A copy is in State Papers, Dom., cccxxxix. 1.

3 It may be said that this claim to "royal fish," made also by Bracton, was not
peculiar to the English crown. It was made on the Continent from an early period,
as is shown by the ancient laws of Jutland and of Scania, and the practice in many
parts of France and among the Normans. It may have been introduced into
England by William the Conqueror, who granted Dengey Marsh to Battle Abbey,
with the right to wreck and royal fish.

THE JURIDICAL CONTROVERSIES 363

Callis, whose well-known lectures on the Statute of Sewers
were delivered in 1622.1 Callis argued that in "our Mare
Anglicanum the king had, by the common law of England,
four " powers and properties " : sovereignty (imperium regale),
legal jurisdiction for the administration of justice, property in
the soil under the sea and in the water, and possession and
profits both real and persdnal. He cites in proof a number of
authorities, legal and historical, such as were cited later by
Selden. The statement in a case decided in the reign of
. Richard II. (1377-99), that "the sea is within the legiance of
the king as of his crown of England"; the charter of the
Admiral giving him power in maritime cases throughout the
realm of England ; the phrases in certain statutes ; the right to
wreck and royal fishes, and so forth, "proved the King full
Lord and owner of the seas, and that the seas be within the
realm of England." The king rules on the sea, he held, " by
the laws imperial" as by the Roole d'Oleron and others, but
only in the case of shipping and for merchants and mariners ;
his rights of property in the bed and waters of the sea, and the
personal profits (wreck, flotsam, &c.) accruing, were his by the
common law. Callis did not deal with fishing, nor attempt to
define the bounds of " the seas of England " in which the king
had property and jurisdiction.

The interpretation of the law as to the rights of the crown
in the seas, as propounded by Callis, was followed by Selden
and Hale, and generally by the lawyers who came after him.
Lord Chief -Justice Coke, in his First Institute, which was
published in 1628, explains the old phrase "within the four
seas " (infra quatuor maria) as meaning within the kingdom
and dominions of England ; for if a man be upon the sea of
England he is " within the kingdom or realm of England, and
within the ligeance of the king of England, as of his crown of
England." In his Fourth Institute, which was not published,
however, till 1644, ten years after his death, when treating of
the Admiralty Court, Coke entered more fully into the question
of the rights of the crown in the seas of England; and, as
already mentioned, he looked upon the roll of Edward I., De

1 The Reading of the famous and learned Robert Callis, Esqr., upon the Statute of
Sewers, 23 Hen. VIII., c. 5, as it was delivered by him at Gray's Inn in August
1622. 4th ed., 1824.

364 THE SOVEREIGNTY OF THE SEA

Superioritate Maris, as proving that the king's right
dominion over the sea had been expressly acknowledged b;
neighbouring nations.

But none of the works on the rights of England in t
adjoining seas, which had appeared when the new policy o:
Charles began to be fashioned, was sufficiently profound or
authoritative to furnish reasonable justification for that policy
in the eyes of the world. The king in 1632, as we have seen,
desired to demonstrate his rights by means of "some public
writing," founded upon the historical records of the realm, — a
demonstration which was to precede the revival of the English
pretension to the dominion of the seas in what Secretary Coke
called its ancient style and lustre. As a result of the search
made amongst the records in the Tower and elsewhere for
evidence and precedents to establish the claim, several treatises
and collections were compiled. Most of these were of little
account,1 but one of them attained an authority and celebrity
only second to the great work of Selden. Before Charles
wrote to the Clerk-Register in Edinburgh for Scottish docu-
ments to substantiate his claims (p. 212), it seems that Sir John
Boroughs, the Keeper of his Majesty's Records in the Tower,
had been commissioned by the king to prepare the "public
writing " to which he referred. We have already seen that in
1631 Boroughs brought forward the important roll of Edward
I. ; he tells us in his preface that his work was composed a
the request of " a great person " ; it was written in Latin, th
language which fitted it for foreign Courts ; and it deals ver;
largely with the Dutch and English fisheries, even recommenc
ing the construction of 250 busses for the fishery associatioi
Boroughs' treatise, entitled "The Soveraignty of the Britis
Seas, proved by Records, History and the Municipall Lawes c

1 Such as " A Collection of divers particulars touching the King's Dominion
Soveraignty in the Fishings, as well in Scotland as in the British Ocean,"
Captain John Mason. (Stale Papers, Dom., 1590. Admiralty, Eliz., Jac. '.
Car. I., No. 37, fol. 131.) A superior compilation, dealing with the opinions
the Civilians, as well as with the Dutch and native fisheries, and founded larg
on Dee, Hitchcock, Gentleman, and Keymer, is entitled " The King's Interest
the Sea and the Commodities thereof" (ibid., ccv. 92). Another treatise, als<
dealing with the opinions of the Civilians, the jurisdiction of the Admiral, an<
the rights of the crown of England to the dominion of the narrow seas, is
State Papers, Dom., ccviii., No. x., fol. 402.

THE JURIDICAL CONTROVERSIES 365

this Kingdome," was completed in 1633, but it was not pub-
lished until 1651, when the question of maritime rights had
been again raised between England and the United Provinces.1
It is probable that the king discarded it for Mare Clausum,
the incomparably superior treatise by Selden, of the existence
of which he was probably made aware as early at least as 1634.
Nevertheless, Boroughs' work was the first successful attempt
to bring together a great array of historical facts in favour of
the English claims to the dominion of the seas. Like Selden,
he begins with the Eoman occupation of Britain in order to
show that from the first the " British nation had the supreme
power of command of their own seas " ; and, moreover, he
gives all the more important documents to be found in Mare
Clausum, — the ordinance of John, the rolls of Edward I. and
Edward III., the charter of Edgar, the Laws of Oleron, com-
missions to the admirals, safe-conducts, and extracts from the
Burgundy treaties. He is very emphatic as to the king's right
to the dominion of the seas and the fisheries. " That princes,"
he says, " may have an exclusive property in the soveraigntie
of the severall parts of the sea, and in the navigation, fishing
and shores thereof, is so evidently true by way of fact, as no
man that is not desperately impudent can deny it " ; and — no
doubt for the benefit of the Dutch — he adds that "if any
nation usurp our rights, the king has a good sword to defend
them." He asserts that the kings of England in succession
had the " sovereign guard " of the seas ; had imposed taxes and
tributes upon all ships navigating or fishing in them ; and had
closed and opened the passage through them to strangers, as
they saw cause. The sovereignty of the sea he calls "the
most precious jewel of his Majesty's crown, next (after God)
the principal means of our wealth and safety." A considerable

1 The original Latin copy bearing the date 1633 (confirmed by internal evidence)
is in the British Museum (Harleian MSS., 4314). It is entitled Dominium Maris
Britannici assertum ex Archiuis Historiis et Municipalibus Regni Legibus, per
D. Johannem de Burgo, 1633 ; it is dedicated to the king. Other MS. copies in
the British Museum are Sari., 1323 ; Lansdowne, 806, f. 40 ; Sloane, 1696 ; and
Harl., 4626, the latter being very imperfect. There is also a fine copy in English
i among the State Papers, dated 1637, with this addition to the title: "Also a
Perticuler Relation concerning the Inastimable Riches and Commodities of the
British Seas" (State Papers, Dom., ccclxxvi. 68). It was republished in the third
edition of Malyne's Consuetudo vel Lex Mercatoria, in 1686.

366 THE SOVEREIGNTY OF THE SEA

part of the treatise is taken up with the fisheries, the infc
mation being almost wholly derived from previous writer
the usual comparisons are drawn of the flourishing state of tl
fisheries of Holland and the poor condition of those of Englanc
and the usual statements made as to the benefits that woulc
accrue to the kingdom if the fisheries were developed.

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

Fortunately for Charles, Selden now came upon the scene
to vindicate and glorify his prerogative in the surrounding seas.
The distinguished author tells us that his great work, Mare
Clausum, was begun long before at the desire of King James,
and had been lying in an incomplete and imperfect form fc
fully sixteen years.1 It was presented to James in 1618, bi
several reasons prevented its publication, one of the chief beii
that the king was afraid that some passages it contained migl
give offence to the King of Denmark, from whom he was the
endeavouring to obtain a loan of money.2 At the request
Charles, Selden now recast his treatise, added to it, and coi
pleted it. It was dedicated to the king and published by
"express commands," as he explained a little later, "for tl
manifesting of the right and Dominion of Us and our Roy«

1 Mare Clausum, in dedication to King Charles, " Divi parentis tui jussu tentat
olim aduinbrataque, inter schedas sive neglectas sive disjectas per annos amplii
sedecim mecum latuit ; ut iinperfecta nimis sic etiam ceu intermortua."

2 Vindicice Maris Clausi, p. 25. This was the explanation which Selden gav
when, in 1652, he was taunted by a Dutch writer, Graswinckel, with having writt
his work to get out of prison. It is surprising that James, who was loquacious
fond of displaying his knowledge, never lectured the Dutch ambassadors on tl
themes in Mare Clausum — as from the rolls of the Edwards ; nor was any us
made of its facts and arguments throughout the protracted negotiations in
reign.

THE JURIDICAL CONTROVERSIES 367

Progenitors in the seas which encompass these our Realms and
Dominions of Great Britain and Ireland." l

Selden, as is well known, had taken a prominent part in the
Parliament of 1629, in the majority which resisted the king's
wishes, and was for a time imprisoned in consequence of his
share in the historic disturbances with which it had ended,
when the Speaker was held down in the chair. He was
released on bail under sureties for good behaviour, and he was
bound to present himself, on the motion of the Attorney-General,
in the Court of King's Bench, on the first day of each term, as
a person under surveillance.2 Selden was not of the stuff of
which martyrs are made. After his release, we find him among
the lawyers of the Inns of Court arranging for the masque
which was performed before the Court, at Whitehall in Feb-
ruary 1634, as a token of the detestation in which they held
Prynne's innuendo concerning the queen in his Histriomastix*
Towards the end of the same year, in a humble petition to
the king ("prostrating myself at the feet of your sacred
Majesty"), he begged that the royal displeasure might be
removed and the bail discharged, assuring Charles of his
readiness to serve him with gladness and affection. In
February 1635 the king forwarded to the Judges of the Court
of King's Bench a mandate, the draft of which had been
prepared by Selden himself, instructing them to discharge
him of their recognisances;4 in August we find the Dutch
ambassador writing to The Hague that the book was being
printed;5 and in December of that year it was given to the
world.6 There is little doubt that Selden's petition to the

1 A Proclamation concerning a book intituled Mare Clausum, 15th April 1636.
Padera, xx. 12.
3 State Papers, Dom. , cclxxiii. 30 ; cclxxvi. 58.

3 Gardiner, Hist., vii. 330. Poor Prynne, who lost both his ears on this
occasion, and had his books burned under him in the pillory, became later an
ardent defender of the king's dominion in the seas in the reign of Charles II.,
when he held the office of Keeper of the Records.

4 State Papers, Dom., cclxxvi. 58 ; cclxxxiii. 96-98.

5 Brit. Mus. Add. MSS., 17,677, 0, fol. 367. Joachimi to the States-General,

j5 Aug. 1635. " Het boeck Seldeni getituleert, soo ich hoore, mare clausum, is
onder den druck deur ordre van den Coningh."

' Joannis Seldeni Mare Clausum seu de Dominio Maris, Libri Duo. Primo,
Mare, ex Jure Naturce seu Gentium, omnium hominum non esse Commune, sed

368 THE SOVEREIGNTY OF THE SEA

king and its favourable reception covered the negotiatio
concerning the completion and publication of Mare Clausu'
which were carried on under the auspices of certain emine
personages at Court, and probably of Laud.1 He tells us th
the early work was very imperfect, and required to be com
pletely reconstructed, and that he was able to devote some
months of leisure to the task. But even Selden's extraordinary
erudition and great industry could not have produced such a
book without prolonged labour; and it may be guessed that,
observing the trend of the king's policy and becoming desirous
of royal favour, he began to reconstruct his treatise very soon
after leaving prison.

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

Charles did what he could to emphasise the importance o
the book. When a pirated edition appeared within a fe\
months at Amsterdam, bearing the name of the king's printer
and the word London in imitation of the original edition, an
with a print of the great Burgundy treaty, the Intercursu
Magnus, and a tract appended by way of antidote, he com

Dominii privata seu Proprietatis capax, pariter ac Tellurem, ease demonstratu
Secundo, Serenissimum Magnse Britannise Regem Maris circumflui, ut individua
atque perpetuse Imperii Britannici appendicis, Dominum esse, asseritur. Pontu?
quoque Serviet Illi. Londini, excudebat Will. Stanesbeius, pro Richardo Meighea
MDCXXXV. The Preface is dated at the Temple, 4th November 1635.
1 Vindicice, "proceres apud regem prsepollentes."

THE JURIDICAL CONTROVERSIES 369

plained to the Dutch ambassador, and issued a proclamation
declaring that Mare Clausum had been published by his
express commands, denouncing those who had produced the
pirated copy, and banning it from the realm.1 On 26th March,
as the following record shows, he brought it before the Privy
Council with high eulogy, and for a definite purpose : " His
Majesty this day in Council took into consideration a book
lately published by John Selden, Esquire, intituled Mare
Clausum, seu de Dominio Maris, written by the king's com-
mand, which he had done with great industry, learning and
judgment, and hath asserted the right of the Crown of England
to the Dominion of the British seas. The King requires one
of the said books to be kept in the Council- Chest, another in
the Court of Exchequer, and a third in the Court of Admiralty,
as faithful and strong evidence of the Dominion of the British
seas." 2

There was good reason for the king's eulogy of Selden's
treatise. From the point of view of his policy nothing that
the pen can do could have been better done. It is an elaborate
and masterly exposition of the case for the sovereignty of the
crown of England in the British seas, which throws into the shade
all the other numerous works which were written on that side
of the question. One of the most eminent lawyers of his time,
a scholar, an antiquary, an historian, the author brought to his
task a keen intellect, an immense erudition, and the ability of

1 Proclamation, 15th April 1636.

2 Rush worth, Historical Collections, ii. 320. Frankland, The Annals of King
James and King Charles the First, 476. In the Exchequer Order Book, under date
5th May, the following entry occurs : " Whereas Sr William Beecher, Kt, one of
the clerks of his Mats most honorable pryvy councill, did this daye deliver in Court
to the Lord Treasurer, Chauncillor, and Barons of the Courte, a booke lately pub-
lished by John Selden, Esqr., entituled Mare Clausum seu de dominio maris, to be
kept in this Courte as a faithfull and stronge evidence for the undoubted right of
the Crowne of England to the Dominion of the Bryttishe seas, which saide booke
the said Clerke of the Councill did deliver according to an order in that behalfe
made by the King's most excellent Matte and the Lords of His Highness privy
councell at Whitehall, the third of Aprill last past, a coppie of which said order is
alsoe delivered with the said booke : It is, therefore, nowe ordered by the said
Lord Treasurer, Chauncillor, and Barons that the said booke bee receaved by his
Maties Remembrancer of this Courte, and by him kypt of record amonge the
Records of the Courte as his Maties evidence. And as well the said order of the
third of Aprill before mentioned as this present order to bee inrolled upon Record."
Charles I. Decrees and Orders, Series iii., No. 19, fol. 36.

2 A

370

THE SOVEREIGNTY OF THE SEA

disposing his material and arguments to the best advanta^
In learning at least he far surpassed Grotius, and he was nc
inferior to his illustrious contemporary in ingenuity of reasoi
ing. It was Selden's misfortune that the cause he champione
was moribund, and opposed to the growing spirit of freedor
throughout the world. At the same time it must be said that
apart from its extreme doctrines as to the sovereignty
England in the seas, it more correctly represented what ai
now the admitted principles as to the appropriation of the
adjacent sea than did most of the works written on the othei
side, not excepting even those of Grotius.

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

In the first book the author endeavours to prove th«
the sea is not everywhere common, but is capable
appropriation, and has been in fact in numerous
appropriated. The objections to that opinion are classifi*
in three groups : first, that it is contrary to the law
nature and the law of nations to forbid free commeix
and navigation; second, that the physical nature of tl
sea, its fluidity and fluxion, renders it incapable of occi
pation; third, the opinions of certain learned men. Ht
argued that the ancient law as to the community of thin|
had become modified in certain particulars, and that tl
received practice and custom of many nations, ancient

THE JURIDICAL CONTROVERSIES 371

modern, showed that the sea was capable of private dominion,
and that such dominion or appropriation was therefore not
contrary either to the law of nature or the law of nations.
In support of his argument Selden drew freely upon the
vast stores of his erudition. He began, like Welwood, by
quoting Scriptures to show that the divine law (jus divinum)
allowed private dominion in the sea, and that according to
the opinion of those learned in the Jewish law, a great
part of the sea washing the west coast of the Holy Land
had been annexed to the land of Israel by the appointment
of God. Among almost all the nations of antiquity, he
said, it was the custom to admit private dominion in the
sea, and many of them exercised maritime sovereignty.1
Among modern nations, sovereignty was exercised by the
Venetians in the Adriatic, by the Genoese in the Ligurian
Sea, by the Tuscans and Pisans in the Tyrrhenian Sea,
and by the Pope over a part of the sea called Mare Ecclesice.
Then the sovereignty claimed by the Spaniards and Portuguese,
and the maritime dominion of the Danes and Norwegians,
were notorious. Even the Poles and the Turks possessed
sovereignty in the Baltic and the Black Sea respectively.

How then could it be denied, with all these examples,
ancient and modern, that the sea could not be appropriated ?
Selden indeed agreed with Grotius in repudiating the
sovereignty claimed by Spain and Portugal in the great
oceans, — not, however, because it was opposed to reason and
nature, but because it was founded on no legitimate title,
and these nations had not a sufficient naval force to assert
and maintain it.2

As to the free use of the sea, Selden admits that to
prohibit innocent navigation would be contrary to the
dictates of humanity ; 3 but he held that the permitting of
such innocent navigation does not derogate from the dominion

1 Besides the Romans and the Carthaginians, he mentions as among these the
Cretans, Lydiaus, Thracians, Phoenicians, Egyptians, Lacedemonians, and a great
many more ; but in most cases the evidence adduced shows merely that naval
power was exercised.

2 Lib. i. cap. xvii.

3 Lib. i. cap. xx. " Quod ad genus primum attinet (commerce, travelling, navi-
gation) ; humanitatis quidem officia exigunt, ut hospitio excipiantur peregrini
etiam ut innoxius non negetur transitus." . .

372 THE SOVEREIGNTY OF THE SEA

of the sea — it is comparable to the free passage on a
across another's land — and it cannot always be claimed
a right. With respect to the argument that the sea cann
be appropriated because of its physical properties, he poin
to the example of rivers and springs, which even by Roman
law may be appropriated, as well as of lakes. It is not
true that the sea has no banks or limits : it is clearly
bounded by the shores; some seas, as the Caspian, are
completely enclosed, and the Mediterranean is so every-
where except at the Straits of Gibraltar. Elsewhere there
are islands, rocks, promontories, by which boundaries may
be determined; and limits may be set in the open sea by
nautical science, as in the fixing of latitude and longitude;
and that was shown by the Bull of Pope Alexander VI.,
and the hundred-mile limit of the Italians. Selden denies
that the sea is inexhaustible from promiscuous use. On
the contrary he says a sea may be made worse for him
that owns it by reason of other men's fishing, navigation,
and commerce, and less profit accrue from it, as where pearls,
corals, and other things of that kind are produced. In
such cases the abundance may be diminished by promiscuous
use just as readily as in the case of metals and suchlike
on land; and the same argument applies to all kinds of
fishing.1

It was, however, the second book of Mare Clausum which
gave it its chief political importance. It was appropriate
and necessary that the claims of Charles should be justitie
in the domain of law and custom ; it was still more necessari
that they should be supported by weighty precedent
existing in the history of England — that some of hi
predecessors had been styled Lords of the Sea, and ha<
exercised sovereign jurisdiction over foreigners even on
their own coasts. After partially defining the British
seas (see p. 19), Selden, as mentioned in a former chapter.

1 Lib. i. cap. xxii. "Sed vero ex aliorum piscatione, navigatione, commerciit
ipsum mare deterius Domino cseterisque ejus jure gaudentibus fieri non raro
videmus. Scilicet minui, quod alias inde percipi posset, commodum. Quod
manifestius cernitur in marium usu, quorum fructus sunt uniones, corallium, id
genus csetera. Etiam minuitur in horas marium hujusmodi abundantia, non aliter
ac sive metalli fodinarum ac lapicidinarum, sive hortorum, quando fructus eorum
auferuntur. . . . Et similis sane ratio qualiscunque piscationis. "

THE JURIDICAL CONTROVERSIES 373

labours to show that maritime sovereignty had been con-
tinuously exercised within them by the ancient Britons,
the Romans, and the Anglo-Saxons in succession, and then
by the Norman and later kings. He strove to prove by a
multitude of citations from records that the kings of England
had perpetually enjoyed exclusive dominion and jurisdiction in
the surrounding seas as part of their territory, and were hence
styled Lords of the Sea; that they had always preserved the
right to forbid fishing and even navigation by foreigners
within the British seas, or to exact tribute for that liberty;
that the rights of the crown in the seas, asserted both by
kings and Parliaments, were in conformity with the common
law of England, and had been in several important respects
acknowledged by other nations. A great deal of the evidence
adduced is, as has been said, irrelevant. The long recital of
facts connected with the guarding of the sea, the disposition
of fleets, the office and jurisdiction of the admirals, the rais-
ing of special taxes — as the Danegeld — for defensive purposes
or the equipment of ships of war, might have been paralleled
in the records of other maritime states, as France or Flanders.

The maritime sovereignty claimed by Selden for the kings of
England was of the most absolute kind. Speaking particularly
of the eastern and southern parts of the English sea, lying
between England and the shores of France and Germany, —
in which Charles was especially interested, — he declared that
the powers exercised by the kings of England from the
time of the Norman Conquest were as follows : (1) the custody,
government, and admiralty, as if it were a territory or province
of the king ; (2) leave of passage granted to foreigners at their
request; (3) liberty of fishing in them conceded to foreigners,
and protection afforded to their fishermen ; (4) the prescribing
of laws and limits to foreigners in hostility with one another as
to the taking of prizes.1 It is to be noted that Selden in
expounding his case expressly rejected the principle of the
mid-line, the limits laid down by the Italian writers, and
those prescribed by King James in defining the King's
Chambers; and he disclaimed the arguments used by the
English commissioners at the Bremen Conference in 1602, as
to the freedom of the seas, as being contrary to English

1 Lib. ii. cap. xiii.

374 THE SOVEREIGNTY OF THE SEA

rights. He concludes his famous book in the following words
"It is certainly true, according to the mass of evidence se
forth above, that the very shores or ports of the neighbourin
sovereigns on the other side of the sea are the bounds of
the maritime dominion of Britain, to the southwards and
eastwards; but in the open and vast ocean to the north and
west they are to be placed at the farthest extent of the
most spacious seas which are possessed by the English, Scots,
and Irish."

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

As was natural, the appearance of Selden's book created
anxiety in Holland. Its very title was a challenge to the
much-cherished principles in Mare Liberum, and the circum-
stances connected with its birth heightened its political im-
portance. It was felt to be almost equivalent to a declaration
of the king himself. The simultaneous measures for the
formation of an English fleet of unexampled strength made
the Dutch fear for even more than their herring fishery.
Their interest in the book was shown by the fact that within
a year of its publication no less than three editions were
brought out in Holland.1 It was promptly brought before
the States of Holland, on llth December 1635, and remitted

1 (1) loannis Seldeni Mare Clavsvm sev de Dominio Maris Libris Dvo. Quorum
argumentum pagind versd. Juxta exemplar Londinense. Will. Stanesbeii pro
Richardo Meighen, ClQlQcxxxvi. (12°); (2) with the same title and the follow-
ing addition : Accedunt Marci Z-oerii Boxhornii Apologia pro navigationibus
HoUandorum adversus Pontvm Hevtervm et Tractatvs Mvtvi commercii et naviga-
tionis inter Henricvm VII. Regem Anglice et Philippvm Archidvcem Austria:.
Londini, juxta exemplar Will. Stanesbeii pro Richardo Meighen, MDCxxxvi. (8°) ;
(3) with the title as in the original London edition, and Lvgdvni Batavorvm apud
Joannem et Theodorvm Maire, 1636 (4°). The original London edition was a
small folio. In all the Dutch editions the plates are badly copied. No. 1 is
sometimes referred to by English writers as the original edition. No. 2 is the
one alluded to by Charles in his proclamation of 15th April 1636.

THE JURIDICAL CONTROVERSIES

to one Professor Petrus Cungeus for examination and report.1
His report was read on 31st March 1636, and the States of
Holland, after hearing it, resolved to look upon Mare Clausum
merely as the work of a private person, which did not require
any special procedure on their part.2 The States-General, how-
ever, took another view of the book, and decided that it should
be formally refuted, since they had learned that King Charles
would attempt to establish his pretended rights over the so-
called four seas by arguments borrowed from Mare Clausum.
Xo doubt at this juncture the thoughts of men in Holland
were turned towards Grotius, the one above all others most
worthy of the task of refuting Selden. But Grotius was then
the Swedish ambassador in France, and did not wish to offend
his royal mistress by publicly opposing claims not dissimilar
to those she herself made in the Baltic.3 If we can trust Sir
Kenelm Digby, Grotius was even pleased to see his works
refuted. In a letter from Paris about Selden's book, which
was "much esteemed" there, Digby said Selden was not to
expect a reply from Grotius, "who wrote, he says, as a
Hollander, and is exceeding glad to see the contrary proved." 4
The official refutation of Mare Clausum, was, by a resolu-
tion of the States-General on 28th April 1636, entrusted to a
lawyer of Delft, called Dirck Graswinckel, who does not appear
to have been very well fitted for so onerous a duty. His
treatise in reply to Selden was not submitted to the States-
General until 13th April in the following year, and by that
time much had happened to alter the political complexion of
affairs. The States-General had then reason to believe that
the campaign which Charles had been carrying on against the
Dutch herring-busses would be suspended (p. 315), and probably
never resumed; and after remitting Graswinckel's work to a
committee, it was finally set aside and was never published,

1 Resol. Holl., 2, Dec. 1635. Quoted by Areiidt, Algemeene Geschiedenis des
Vadcrlands, iii., stuck 5, p. 8.

2 Resol. Holl., ^p^' 1636. Muller, Mare Clausum, 283.

"Ego, cum Suecia," he wrote to his brother on January 14, 1636, " multum
teneat orse maritimse, quid aliud prsestare possum quam silentium ? " Qrotii,
Epistolce, 864.

M

* Digby to Jx>rd Conway, January 31, 1636. State Papers, Dom., cccxliv. 58.

376 THE SOVEREIGNTY OF THE SEA

while the author was soothed by the substantial pension
500 gulden a-year for his pains.1

But another Dutchman in this year assumed the task which
Graswinckel had fruitlessly essayed. This was Pontanus,
Professor of Philosophy and History in the College of Harder-
wyck in Guelderland, who also occupied the office of Historio-
grapher to the King of Denmark. He had thus, like Grotius,
to be cautious in his refutation of Selden's general arguments
upon the appropriation and dominion of seas, because the
claims of Denmark to such property and dominion were
notorious. But he was free to contest the particular rights
of England, which he did with zest. He subjected Selden's
chapters, almost seriatim, to a rigorous criticism, beginning
with the Romans and the Anglo-Saxons. He made the most
of the declarations of Elizabeth as to the freedom of the seas
for navigation and fishing, and of her State Paper of 1602
(see p. 110); and he dealt specially with the sovereignty over
the northern seas — the Mare Caledonium and those flowing
between the Scandinavian countries and Iceland and Greenland
— which he asserted were not, and never had been, under the
dominion of England, but always appertained to the Scandi-
navian nations. Pontanus entered very fully into the negotia-
tions which had taken place between England and Scotland
on the one hand, and Norway and Denmark on the other,
concerning those seas and the rights of navigating and fishing
at Iceland and Greenland — subjects on which, from his official
position, he had special knowledge.2 In the same year another
author, and he a Frenchman, entered the field in defence of the
appropriation and dominion of seas,3 while a somewhat virulent

1 The treatise was entitled, Th. Graswinckelii, Jurisc. Delph. Maris Lileri
Vindicice adv. virum clarissimum Johannem Seldenum. Arendt, loc. cit. ; Muller,
loc. cit. Goffe, writing from Holland to Archbishop Laud on 2nd February 1637,
stated that the book in answer to Selden's Mare Clausum was ' ' ready to come
forth, and the author is neither so modest nor discreet that the Elector should
trust him with any written assurance in that kind," — that Charles would not
interrupt the Dutch fishery that year (State Papers, Dom., cccxlvi. 23). We
shall again find Graswinckel in the thick of the controversy during the first Dutch
war, p. 411.

2 Joh. Isacii Pontani Discvssionvm Historicarvm Libri .Duo, quibus pnecipuk
quatenus et quodnam mare liberum vel non liberum clausumque accipiendum dis-
picitur expenditurque, <0c., Harderwick, 1637.

3 Jacobi Gothofredi De Imperio Maris, in Hagemeier, I>e Imperio Maris
Variorum Dissertationes.

THE JURIDICAL CONTROVERSIES 377

controversy broke out between Poland and Denmark as to the
sovereignty of the Baltic Sea, which was claimed by each, as
it had been shortly before by Sweden, and formed, indeed, one
of the causes of the war by Gustavus Adolphus against
Germany.1

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

..s

-1 Mare Baltivum (aBon.), 1638 ; Ante-Mare JBalticum, scilicet, an ad Reges Dan .
an ad Reyes Polonice, pertineat (anon.), 1639 ; Azuni, Sy sterna del Principii
Diritto Maritimo. >

S

378

cl CHAPTER X.

Of THE PARLIAMENT, THE COMMONWEALTH, AND THE

che • PROTECTORATE.

W) THE FIRST DUTCH WAR.

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

At first, as might have been expected from the actions
of the king with regard to the ship-money collections, little
sympathy was shown by the Parliament for the claim to

THE FIRST DUTCH WAR 379

the sovereignty of the sea. The necessity of maintaining
that sovereignty had always been put forward as a prin-
cipal argument for levying the money, and on that ground
it was objectionable to many of those opposed to the king.
/In a work said to have been presented to the Parliament
at its first meeting, forcible opinions were expressed against
the pretension. It was doubtful, it was said, whether the
sea really belonged to the crown, as the king claimed. Even
if it did, it was not apparent that the fate of the land
depended upon the dominion of the sea. That dominion
might be considered as a right, an honour, or a profit. As
a right it was a theme "fitter for scholars to fret their
wits upon than for Christians to fight and spill blood about " ;
as an honour, by making others strike sails to our ships
as they passed, it was " a glory fitter for women and children
to wonder at than for statesmen to contend about"; as a
matter of profit, to fence and enclose the sea, it was of
moment, but not more to us than to other nations : by too
insolent contentions about it we might provoke God and
dishonour ourselves, and rather incense our friends than
quell our enemies.1 If such sentiments reflected the feel-
ing of the Parliament at the beginning of their labours,
they were not of long duration. Within a few years a
change was wrought, which was probably in large measure
due to the part taken by the fleet in the struggle with
the king, as well as to the abiding spirit of the people for
predominant power on the sea.

From an early stage in the conflict the control of the
fleet passed into the hands of the Parliament. In the
summer of 1642, when the Earl of Northumberland, the
Lord High Admiral, was laid aside by illness, the Parliament
succeeded, with his connivance and assistance, in placing the
Earl of Warwick in actual command ; Sir John Penning-
ton, the nominee of Charles, having to stand aside.2 Under
the management of its new masters the navy rapidly became
a powerful and efficient instrument for the defence of the

1 The Case of Ship-Money briefly discussed, according to the Grounds of Law,
Policy, and Conscience. Presented to the Parliament, November 3, 1640. Stubbe,
A Further Justification of the Present War against the United Netherlands, 76.

2 Gardiner, Hist. Engl.t x. 208. Clarendon, iii. 113.

380 THE SOVEREIGNTY OF THE SEA

realm, as was shown at the opening of the Dutch war. The
general instructions given by the Parliament to its nav
officers respecting the honour of the flag and the sovereignt
of the sea were almost identical with those which had bee
issued to the Earls of Lindsey and Northumberland, bu
the phraseology was sometimes a little varied. On 5th Apri
1643 the Parliament, in view of the attempt organised b
Queen Henrietta Maria to smuggle into England militar
supplies from the Netherlands for the use of the royalists,
ordered the Earl of Warwick, if he met with "any foreign
forces, ships, or vessels, as Spaniards, French, Danes, Dun-
kirkers, or any other whatsoever, making towards the coasts
of England, Ireland, or any other of his Majesty's dominions,"
to command them, "according to the usual manner, to strike
their flags or top-sails," and cause them to be examined and
searched for soldiers or munitions of war. If they refused
to strike, he was "to compel them thereunto by force of
arms and surprise, and to take all such ships and vessels,
or otherwise to burn, sink, or destroy them." l In the follow-
ing year the Committee for the Admiralty instructed Vice-
Admiral Batten, who was in command of the fleet, "upon
all occasions, as you shall be able, to maintain the Kingdoms
sovereignty and regality in the seas." 2

In the spring of 1647, the Committee of the Admiralty,
for - some reason or other, appears to have devoted special
attention to the question of the flag and the sovereignty
of the sea. Collections were made from the Admiralty archives
of precedents showing that all ships refusing to strike ir
English waters were to be reputed enemies, and were liable
to forfeiture, — the examples beginning with the Ordinance
of King John and ending with the instructions issued b)
Charles.3 These collections were probably made in connectior
with the instructions which the Committee drew up
this time for the guidance of the captains and officers o
the navy, and which were essentially similar to those giver

1 Rush worth,' Collections, v. 312.

2 Penn, Memorials of the Professional Life and Times of Sir William Penn, Knt.
from 1640 to 1670, i. 224.

3 State Papers, Dom., dxv. i. 37, 38, 39. There is also in one of the collections
a quotation from Selden's Mare Clausum, that it was treason not to acknowledge
the King of England's dominion in his own seas by striking sails.

by

THE FIRST DUTCH WAR 381

\y Charles to his ship - money fleets. " It must be your
principal care," they ran, "to preserve the honour of this
kingdom, and the coasts, jurisdictions, territories, and sub-
jects thereof, being in amity with the Parliament, and within
the extent of your employment, as much as in you lieth;
that no nation or people whatsoever intrude thereon or injure
any of them. And if you chance to meet in any of the
seas that are under the jurisdiction of England, Scotland,
and Ireland, with any ships or fleets belonging to any foreign
prince or state, you must expect that they, in acknowledg-
ment of this kingdom's sovereignty there, shall perform their
duty and homage in passing by, in striking their top-sails
and taking in their flags." If they refused they were to be
forced to do so in the usual way. It will be noticed that
the region within which foreigners were to be compelled
to strike was greatly extended by the Parliament. Up to
and including the reign of James the " acknowledgment "
was confined to the narrow seas, in which it had been
exacted for centuries ; Charles in 1635 ordered Lindsey to
compel it " in his Majesty's seas," and now the Parliament
extended it specifically to all the seas under the jurisdiction
of England, Scotland, and Ireland. From a clause in the in-
structions it is clear that the seas, over which the Parliament
claimed sovereignty reached to the coasts of the Continent;
but a territorial limit was excepted on foreign coasts. The
clause in question enjoined the naval officers "to be very
careful not to meddle with any ships within the harbours,
or ports, or under the command of any of the castles of
any foreign prince or state, or within any buoys (Buoyes)
or rivers, that they may have no just cause of offence."
Another feature of these instructions is of interest. The
clause which was inserted in the instructions to Lindsey
and Northumberland in 1635, 1636, and 1637, commanding
them to prevent all hostilities between men-of-war or mer-
chant vessels in the presence of the king's ships, was repeated.1

1 Instructions given by the Committee of Lords and Commons for the Admir-
alty and Cinque Ports, to be observed by all captains, officers, and common men
respectively in this fleet, provided to the glory of God, the honour and service of
the Parliament, and the safety of the three Kingdoms, March 30, 1647. Ibid.,
dxv. 40.

382 THE SOVEREIGNTY OF THE SEA

The Parliament clearly intended to abate no jot of the prf
tensions which had been put forward by the king.

An opportunity soon came for putting the instructions
regarding the flag into force. In May of the same year a
Swedish fleet of fifteen sail, consisting of ten merchantmen
bound for the Mediterranean and five ships of war convoying
them, was met by Captain Owen in the Henrietta Maria off
the Isle of Wight. On being called upon to strike, the Swedes
refused, declaring that they had been commanded by the
Queen of Sweden "not to strike to any whatsoever." Owen,
reinforced by Batten, thereupon attacked them, the fight con-
tinuing till night. The Swedes suffered much loss ; the colours
of their vice-admiral and rear-admiral were shot away, a " great
breach " was made in the vice-admiral's ship, and their vessels
were captured and taken into Portsmouth. They were after-
wards released, but the Admiralty Committee expressed the
opinion that the proceedings of their officers " in order to the
maintenance of the kingdom's sovereignty at sea " were to be
commended, and this resolution was reported to both Houses of
Parliament.1 The question of the salute between ships of war
of different nations had been brought to the front in most
other maritime countries by the forcible measures taken b
Charles in 1633 and later. Two years before the encounte
with the Swedes in the Channel, Denmark and Sweden ha<
regulated the ceremony, as affecting their own ships of war, i]
the treaty of peace then concluded between them.2

From this time until shortly before the war with the Dutc
there is little to record about the claims to the dominion of th
sea. In 1649, the instructions issued to Popham, Blake, an<
Dean, the commanders of the fleet, included the guarding o
the North Sea and the mackerel-fishing, as well as the main
tenance " of the sovereignty of the Commonwealth in the sea,
all in the prescribed form.3 In the following year the Counci
of State issued express commands to Blake on the subjec
when he was ordered to proceed against Prince Rupert and tin
revolted ships at Lisbon. The dominion of " these seas," thej
said, had anciently and time out of mind belonged to the Eng

1 Rushworth's Collections ; Penn, op. cit., i. 242.

2 Loccenius, De Jure Maritime, x. s. 10.
* State Papers, Dum., 27th Feb. 1649.

THE FIRST DUTCH WAR 383

$h nation, and the ships of all other nations in acknowledgment
of that dominion had been accustomed to take down their flags
" upon sight " of the Admiral of England, and not to bear them
in his presence. Blake was therefore, to the best of his powers,
and " as he found himself and the fleet of strength and ability,"
to do his utmost endeavours to preserve the dominion of the
sea, and to cause the ships of all other nations to strike their
flags and keep them in in his presence, and to compel such as
were refractory, by seizing their ships and sending them into
port, to be punished according to the " laws of the sea," unless
they submitted and made such reparation as he required. At
the same time, although the dominion of the sea was so ancient
and indubitable, and it concerned the honour and reputation
of the nation to uphold it, Blake was not to imperil his fleet
over it in the expedition on which he was employed. If he
was opposed in the question of the flag by a force so consider-
able as to prove dangerous, he was not to press it, but to note
who they were that refused, so that they might be forced to
strike at some better opportunity.1

Such were the instructions of the Government to the English
naval commanders, and they were soon to bear bitter fruit.
At this period the Dutch men-of-war apparently did not
show unwillingness to salute the English flag, even sometimes
in distant seas. Peiin notes in his journal, on 13th September
1651, that on meeting with the Dutch Admiral with his vice-
and rear-admirals between Cape Trafalgar and Cape Sprat,
they struck their flags to him and saluted; but they then
hoisted them, which would have been contrary to the custom
in the narrow sea, and Penn thereupon called his captains
together for advice, but they said the Dutch " had done enough."
A little later he records that young Tromp, convoying thirteen
merchantmen, came into Gibraltar Road, where Penn was
lying, with his flag in the main-top. The English Admiral,
however, did nothing, since Tromp was in a port of the King
of Spain. Shortly afterwards in the same place eight sail of
Hollanders, four of which were men-of-war, all struck their
flags and saluted the English fleet.2

The claims of England to the sovereignty of the seas were

1 17th January 1650. A Collection of the State Papers of John Thurloe, i. 134.

2 Penn, Memorials, i. 365, 379.

384

THE SOVEREIGNTY OF THE SEA

now about to enter on a new phase, which culminated in th
first Dutch war. So long as the ambitious and energetic Prin
William II. of Orange was alive, the relations between th
United Provinces and the Parliament were strained and me
acing. The States-General, under Orange influence, refused
enter into diplomatic communication with the English Gover
ment, or to admit their ambassador, Strickland, to audience. T
execution of Charles I. had raised strong feelings of repro-
bation and horror in the Netherlands, even amongst the
Hollanders and Zealanders, who sympathised with the Puri-
tans; and it was believed in England that the Prince of
Orange was contemplating war against them for the restora-
tion of his brother-in-law, Charles II., to the throne. The
death of the Prince, on 27th October 1650, produced a great
change. It was followed by a political revolution in the
United Provinces, the chief outcome of which was the pre-
dominance of the States of Holland and of the party opposed
to the Orange faction, and most favourably inclined to maintain
good relations with the English Commonwealth.1 It was
therefore agreed at The Hague to send back Joachimi, who
had been dismissed by the Parliament in the previous year,
with credentials as ambassador from the States-General to
the Parliament.

In London the accession to power of the republican party in
the Netherlands had been watched with keen interest. The
time, it was believed, was come for a close alliance betweer
the two great Protestant Republics for safeguarding theii
religious and political liberties; perhaps, it was thought bj
some, for even a closer union than was implied in the stricter
alliance known to diplomacy. The Parliament accordingly
lost no time in opening negotiations with the States-General
On 17th March, 1651, Lord Chief-Justice St John and Walter
Strickland entered The Hague with great pomp and splendour
as ambassadors from the Commonwealth, attended by
imposing retinue of 246 persons. They were greeted in th
street with insulting cries from Orange partisans and royalist
refugees. On the following days their suite only ventured
abroad in parties, and with their rapiers in their hands. The

1 Geddes, History of the Administration of John de Witt, i. 102, 106, 150-157.
Gardiner, History of the Commonwealth and Protectorate, i. 353, 356.

THE FIRST DUTCH WAR 385

ambassadors themselves were openly jeered at, and threatened
hy Prince Edward, son of Elizabeth, Queen of Bohemia; and
though the States - General received them with ostentatious
courtesy, and prompt measures were taken to suppress the
disorders and insults, the conditions of their surroundings
produced irritation and impatience in their minds, with import-
ant results in the sequel.1 The principal object of the Parlia-
ment was to make use of the Dutch Republic to help them to
maintain the Commonwealth, and to resist any attempt to
place Charles II. on the throne. In return they were willing
to aid the Republic against the House of Orange or any other
inclined to disturb it.

St John had with him two series of propositions, — one relat-
ing to a strict alliance and union ; the other, private and never
fully disclosed, included a novel scheme for the coalescence and
fusion of the two states and peoples, on the lines propounded
by the Council of State in the following year. He brought
out his propositions one by one, requiring categorical accept-
ance of each before dealing with the next, the design being
to lead step by step to the proposals for coalescence and fusion.
His first proposition was in substance for "a more strict and
intimate alliance and union " than any before, by which there
might be "a more intrinsical and mutual interest of each in
other" for the good of both.2 After some fencing and much
hesitation and delay — the Dutch preferring a qualified accept-
ance, which the ambassadors rejected — a guarded assent was

1 Geddes, op. cit., 157, 159, 165. Gardiner, op. cit., 359. The Nicholas Papers,
i. 230.

" Wee doe tender the ffriendshipp of the Coffionwealth of England unto the
High and Mighty Lords the States Generall of the Vnited Provinces, and doe pro-
pound that the Amitye, and good Correspondency which hath aunciently beene
betweene the English Nation and the Vnited Provinces, be not only renewed, and
preserved inviolably, But that a more strict, and intimate Allyance, and Vnion,
be entred into by them, whereby there may be a more intrinsicall, and mutuall
interest of each in other then hath hitherto beene for the good of both." Sub-
mitted -g-^ — rr-. " A brief e Narrative of the Treatie at the Hague betweene the

honoble Oliver St John, Lord Chiefe Justice of the Court of Coffion Pleas, and Walter
Strickland, Esq., Embassadors extraordinary of the Parliament of the Cofnonwealth
of England, to the great Assembly of the States Generall of the Vnited Provinces
begun upon the 20th of March 1651 and continued vntill the 20th of June 1651 and
then broke of re infectd." State Papers, Foreign, Treaty Papers (Holland), No. 46,
1651.

2B

386

THE SOVEREIGNTY OF THE SEA

given. St John, though not satisfied, thinking the "mann
of penning the answer was dark and doubtful," "determin
to proceed into some further thing which might come nearer
to make a discovery of their temper and inclination in point
of their neutrality, than stay any longer upon general terms,"
and he accordingly at the same meeting submitted another
proposition requiring the confederation of the two states for
the defence and preservation of the freedom and liberty of the
people of each against all that might attempt to disturb them,
or that were declared to be enemies to the freedom and liberty
of the people living under either Government.1 The Dutch
commissioners, however, declared that this was a general pro-
position, and they insisted on a request they had made from
the first, to be furnished with the "particulars" — they wan
the particulars, simul et semel, that were intended to be insis
upon.

The negotiations had been protracted. By this time a mon
had elapsed since the ambassadors arrived, and St John, no
conscious that his mission for coalescence would fail, and
irritated by the indignities to which he had been subject'
obtained an order from the Parliament for his recall. At t
urgent entreaty of the States of Holland the Parliame
allowed their ambassadors to stay for other forty days,
also gave them authority to treat on the basis of the old Inte
cursus Magnus of 1496, which the Dutch had suddenly p
posed. The States, in truth, had totally different aims fro
the Commonwealth. They were thinking about their co:
merce, their navigation, and their fisheries, rather than abo
the repression of " rebels " ; and they desired that their allian
with England should confirm and extend the benefits conferr
upon them in these respects by the old treaty. The Intel
cursus Magnus had for generations been the sheet-anchor
Dutch policy towards England. It gave them the utmos
freedom of commercial intercourse, and complete liberty

1 "We propound, That the two Cofnonwealths may be confederated frien
ioyned, and allyed togeather for the defence and Preservation of the Libertyes,
and ffredomes of the people of each, against all whomsoever that shall attempt
the disturbance of either State, by Sea or Land, or be declared enemyes to the
freedome and Libertie of the people liveing under either of the said Governments."
Submitted, 17th April. Ibid., p. 7.

THE FIRST DUTCH WAR 387

fishing on the English coasts. But it contained other clauses
appropriate in spirit to the political conditions of 1651. The
treaty had been concluded by Henry VII. in the year in which
apprehensions were entertained that Perkin Warbeck would
effect a landing in England; it provided for mutual military
aid against the enemies of either country, and the expulsion
of rebels and fugitives from the territories of the other. St
John naturally took the clauses embodying these stipulations
as the basis of his new draft articles, which he submitted to
the Dutch commissioners on 10th May. They were seven in
number. The first required that the proposition made on
17th April for mutual defence of the freedom and liberty of
each people should be an article of the treaty. The second
provided that neither party should afford any aid or favour
to any one whomsoever to the injury or prejudice of the
other, but should expressly oppose "and really hinder all
whomsoever," abiding in either commonwealth or under its
power, that should do or attempt anything against the other ;
and the remaining articles were of similar tenour, relating
to " rebels " and enemies. They were, in short, political articles
of the most comprehensive scope, aimed against the royalists ;
so comprehensive and thorough that the English Common-
wealth might, by declaring the Prince of Orange himself
its enemy, demand his expulsion from the Provinces.1 St
John's articles were by no means to the liking of the Dutch ;
and though he pointed out that they were " but a translation
of the old treaty, only enlarged for the better assurance of
performance," — the treaty which they themselves had proposed
as the basis for the new one, — they insisted on sending the
articles to the various Provinces for their opinion. For a
full month the English ambassadors waited without an answer
to their articles — a delay which they believed was meant " to
spin out the treaty until the Scotch mist was over " and the
result of the struggle in Scotland apparent. But the
Dutch, though slow, had not been idle. On 14th June, when

1 Narrative of the Ambassadors (ibid.) Geddes, op. cit., 157, 159, 165, 171.
Gardiner, op. cit., 359, 362, 363. Tideman, De Zee Betwist : Oeschiedenis der
"nilfrkandelingen over de Zeeheerschappij tusschen de Engelsche Republiek en de
Vereeniyde Provincien v66r den ersten Zee-Oorlog, 39-47. Thurloe's Collections,
i. 176, 179, 181-186, 188, 193. Aitzema, Saken van Staet en Oorlogh, 657-660.

388

THE SOVEREIGNTY OF THE SEA.

only four of the forty days allotted by the Parliament
mained, the Dutch produced counter-proposals in the foi
of draft articles, thirty-six in number, which were paraphrc
from the Intercursus Magnus, the treaty with King James
of Scotland in 1594, the treaty of Southampton with Chark
in 1625, and the marine treaty with Spain in 1650.

These articles had been submitted by Holland to the coi
vocation of the States-General on 15th May, and were unde
the consideration of the provincial states for nearly a montl
They provided for a "perpetual friendship, unity, correspond-
ence, and a further and nearer alliance, confederation, and
union" against all who should attempt anything derogatory
to the liberties of the two peoples, their commerce, and common
interests ; mutual defence and mutual assistance with men and
ships against " notorious or known " enemies of the other, and
the prohibition of assisting rebels. But there was no article
under which the royalists could be expelled from the United
Provinces, or which prevented the House of Orange from aiding
or harbouring declared rebels of England ; and it was expressly
stipulated that the States should in no way be drawn into tl
disputes and war between Scotland and the Parliament. Havii
thus whittled down the proposals of the Parliament for a ck
alliance directed against the royalists, the Dutch propounde
a whole series of articles providing for the freest commerci*
intercourse between the two countries, for freedom of na"\
gation and of fishing. The trade to Virginia and the Caril
bean Islands, which had been closed by the Parliament, wt
to be thrown open to both nations; ships were to be free
anchor without seizure of goods ; the subjects of one state wei
not to be taxed higher in the territories of the other than tl
natives, and they were to be free to carry on their busine
or profession with the same liberty. A number of article
dealt with questions relative to the sovereignty of the seas, in
such a way as to show clearly that the design of the Dutch was
to render harmless a pretension which had caused them so much
trouble. They had not forgotten the declarations of Charles
sixteen years before, or the forceful operations of Northumber-
land against their herring -busses. With regard to fishing,
they wished the subjects of either state to be at liberty to go
to any part of the sea to fish for herrings and all other kinds

THE FIRST DUTCH WAR 389

of fish, great or small, without any license or pass being
required. If the fishermen were forced by storms, pirates,
enemies, or any other cause, to go to land, they desired that
they should be courteously received and well treated in the
ports of either country, and permitted to depart with their
ships and cargoes, and if they had not broken their cargoes,
without paying any customs or dues.1 These stipulations
paraphrased corresponding provisions in the Intercursus Mag-
nus, and rather more favourably to the Dutch. If they had
been accepted, they would have destroyed the English policy
which had been pursued, though fitfully, from 1609 to the
outbreak of the Civil War, of requiring foreigners to pay
tribute and take out licenses for fishing on the British coasts.

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

Among other proposals were that men-of-war, but only in
small numbers, should be allowed freely into the ports and
havens of the other, and were not to be subjected to visitation
and search, the showing of the commission to be sufficient; and
that no sea-rovers were to be tolerated in harbours, and no

1 See Appendix K. Narrative of the Ambassadors, p. 23. Aitzema, op. cit.,
iii. 698-700. MS. of Duke of Portland in Hist. MSS. Com. Thirteenth Report,
App. I., 605. Tideman, op. cit., 47, 48, 49. Geddes op. cit. 178.

390 THE SOVEREIGNTY OF THE SEA

ships with letters of marque allowed to leave without first p
viding security that they would not exceed their commissio
One of the provisions went much further, and seems to sm
of Dutch humour, when we think of the action of Jain
and Charles. For the sake of liberty, both peoples were to use
their fleets, not only against pirates, but against all and sundry,
whomsoever they might be, who should attempt to molest,
hinder, or — "against the right of all peoples" — impose exac-
tions on their commerce, navigation, or their fishery. In such
an event, if amicable remonstrances failed, the whole sea forces
of each nation were to attack the depredators and wage w;ir
against them until complete satisfaction had been obtained.1

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

With the foregoing proposals before him, it is not to
wondered at that St John was dissatisfied, and longed m
than ever to get away from The Hague. The Commonweal
had asked for a strict and close alliance at the very 1
for the security of religious and political liberty and t
common interests of both Republics, but in reality and abo
all for aid against the royalists. The Dutch also desi
security for liberty, but it was chiefly for the liberty
commerce, navigation, and fishing; and they were anxio
if they could, to get rid of the troublesome English pretensi
to a sovereignty of the sea. The proposals of the two si
were incompatible, and St John left The Hague a few da;

1 Articles 17-33, Narrative of the Ambassadors. These articles are given in
Appendix K. Tideman, op. cit., 50. Aitzema, op. cit., iii. 695.

2 " Over het strijken van vlaggen ende andere Ceremonieen daeruy t meenichmael

differentien in zee coomen te ontstaen." Resol. der Groote Veryadering, ^ ^ay
1651. Tideman, op. cit., 52.

THE FIRST DUTCH WAR 391

later with the unuttered plan for the fusion of the nations
in his pocket and with bitterness in his heart. His disappoint-
ment was to cost the Dutch dear. Within a few months of
his return the Navigation Act was passed, mainly by his
impulse, and it dealt a serious blow to the commerce of the
United Provinces.1 It was the retort of the English Common-
wealth to the rebuff of the States. If the Dutch put their
commerce and fisheries above everything else, the Parliament
would show them how they could injure them and at the
same time foster English shipping and fisheries.

But much more than the Navigation Act, some other pro-
ceedings of the Parliament increased the tension between the
two countries. In November they renewed certain letters
of reprisal against the Dutch, under which a few of their
vessels were captured. More serious were the actions of English
inen-of-war and of some privateers who held letters of reprisal
against the French. An informal maritime war with France
began in 1649 and continued till 1655, and though there
was nominally peace, the English captured French vessels,
and vice versa. They then began to seize Dutch ships, sus-
pected of having French goods on board, and brought them
into English ports for trial in the Admiralty Court. This
was an interference with freedom of commerce which the
States could not tolerate, and an embassy to England, which
had been decided upon after St John left The Hague, was
despatched thither.2 The three ambassadors, Cats, Schaep, and
van de Perre, arrived in London on 15th December 1651.

1 St John and Strickland left The Hague on 20th June, and the Act was recom-
mended to the Parliament by the Council of State on 5th August, and passed on
9th October (Gardiner, op. cit., ii. 82). The essence of the Act was to prohibit
the importation of extra-European commodities into any territory of the Common-
wealth except in English vessels, or from Europe unless in English vessels or vessels
belonging to the country in which the commodities were manufactured or produced.
The importation of salt-fish or fish-oil, and the exportation of salted fish, were to
be permitted only in English vessels, but the importation of fresh fish was not
forbidden. Early in the next year two Dutch doggers, driven into Yarmouth by
contrary winds, exposed their cod and haddocks for sale and were seized by the
bailiffs ; their release was ordered by the Council of State.

2 Qeddes, op. cit., 192, 193. Tideman, op. cit., 89, 96. Gardiner, op. cit., ii.

Gardiner, Letters and Papers relating to the First Dutch War, 1653-1654,
Navy Records Society. In the third volume (1906) of this valuable work the
papers are brought down to 10th February 1653.

392 THE SOVEREIGNTY OF THE SEA

They were instructed to renew negotiations for a treaty
the basis of the thirty -six articles, to endeavour to get tl
Navigation Act repealed, the captured vessels released, ai
the letters of reprisal withdrawn, with compensation for tl
losses suffered by reason of them. The question of adding
another article to their instructions, about the striking
the flag, which had been omitted from the thirty-six article
had again been considered. But, for the same reason as befoi
it was withheld. "The carrying or striking of the flags
the one side or the other" was judged to be "very delicate"
and it was decided (on 10th November 1651) that the State
General should deliberate further on the matter, and senc
later to the ambassadors such instructions " as should be found
suitable for the removal of misunderstandings and hostilities." 1
We thus see that in 1651 the Government of the Unitec
Provinces was fully alive to the risks and difficulties aboi
the flag. But from their proceedings at this time it woulc
seem that they were unwilling to acknowledge unreservedly
the claim of the Commonwealth to the salute, which was
looked upon as a symbol of England's sovereignty of the
sea. The question was only rendered "delicate" because of
certain qualifications and conditions of reciprocity which the
desired to attach to it, and for which they struggled hai
with Cromwell during the subsequent negotiations for pe£
The ambassadors had an audience with the Parliament
19th December, — Cats treating the members to a long ai
flowery oration in Latin, — and with the Council of Stat
on 1st January 1652 ; but it was not until the 16th ths
commissioners were appointed to deal with them. The Englis
commissioners2 showed no anxiety to facilitate the negot
ations. The spirit with which they were animated wt
evident from their eagerness to bring forward all imaginabl
reasons for dispute, — the interest taken by the Dutch in tl
fate of Charles I. ; the partiality of some of their ambassador
at foreign Courts ; their refusal to receive Strickland ; and so
forth. In the end, the Dutch ambassadors failed to get what
they wanted. The English refused to cancel or modify the
Navigation Act, to release the captured ships before the cases

1 Tideman, op. cit., 96. Aitzetna, op. cit., iii. 696.

2 They were Whitelocke, John Lisle, Bond, Scott, Viscount Lisle, and Purefoy.

THE FIRST DUTCH WAR 393

had been tried in the Admiralty Court, or to make repara-
tion. They suspended the letters of direct reprisal against
the Dutch, but not those against the French, which were by
far the more important.

It was felt in Holland that such interference with their
trade could not be endured. There were loud complaints about
the seizure of the ships, and the opinion was growing in the
Netherlands that it was the intention of the Commonwealth
to force a war upon them. As a precautionary measure the
States -General decided on 22nd February to add 150 ships
to the existing fleet, "for the security of the sea and the
preservation of the shipping and commerce of the United
Provinces " ; and the ambassadors were requested to inform
the English Council of their intention, which was done on
5th March, with the explanation that it was not with the
object of doing the slightest harm to any nation, and least
of all to England, that the increase in the fleet was to be
made, but only to preserve their freedom of navigation.1 As
this extraordinary addition to the navy of the Dutch Republic
would raise it to the formidable number of 226 ships, it is
not surprising that the proceeding was viewed in England
as a preparation for war. The Council, on their part, put
forward a series of more or less provoking claims. They
demanded reparation for wrongs and losses suffered by the
English at the hands of the Dutch at "Greenland" in 1618,
in the East Indies since 1619, and at Brazil; and they com-
plained of various other wrongs and affronts they had suffered.
But pending an answer from the States - General to their
complaints and requests, they agreed, on 3rd May, to discuss
with the ambassadors the thirty-six articles.

These articles had been previously considered by the Council
of State, which had prepared a commentary on them ; and now
both documents were taken up together. On the proposals
concerning the sovereignty of the sea many differences arose.
With regard to the right of the English to visit and search
vessels, men-of-war as well as merchantmen, the ambassadors
referred to the edicts of the States forbidding warships to take
merchandise on board, and to the certificates of their Admiralty
to the same effect; but it was argued on the other side that

1 Cats' Verbael. Tideman, 94-108. Geddes, 198.

394 THE SOVEREIGNTY OF THE SEA

these measures had not stopped the abuse, and that the visita-
tion was not prejudicial ; and no agreement on this clause was
reached. The commentary of the Council on the fishery
article (see p. 388) was that, saving and asserting the righl
of the Commonwealth, they would be willing to proceed to
such an agreement as should be found fit and reasonable
while the Dutch took their stand on the provision in the
Intercursus Magnus, and urged that it would be unjust to
deviate from an agreement which had endured for a century
and a half. It was admitted by the English commissioners
that the treaty gave liberty of fishing, but they asserted that
long before the time of Henry VII. the right to the fisheries
and to the sovereignty of the sea belonged to England. It had,
moreover, been impeached by succeeding kings and especially
by James, to whom, as King of Scotland, the right to the
fishery pertained ; while after the union of the crowns he
pursued the same policy as King of England, and now that
Scotland had been brought under the dominion of the English
Republic, it was thought that the best course was to make a
new treaty about the fisheries.1 The ambassadors could obtain
no definite information as to the nature of the treaty proposed,
but it would not be difficult for them to comprehend its genei
tenour, for they had to listen to the recital of the " evidences "
that England had constantly made use of her rights in the
fishery, and of the care she ha4 always exercised as to the
sovereignty of the sea. The Dutch endeavoured to avoic
mixing up these two questions, pleading that the fishery
concerned the lives of a multitude of poor fishermen ; but the
commissioners retorted that it was a very valuable industry
the right to which belonged to England, and this, they said, hs
been acknowledged by neighbouring nations paying taxes for
liberty to fish in their seas, adding that all peoples had been
accustomed to recognise in them the masters of the sea by
striking the flag to them, and that the Dutch themselves li;u
earlier instructed their naval officers to salute English ships
" cum debita reverentia," and it was also expressly ordered in
the commissions issued by Prince William and Maurice. From

i The conferences on the articles were on 3rd, 5th, 6th, 10th, and 13th May.
The incorporation and union of Scotland with England was proclaimed at Edin-
burgh on the 21st of the preceding month.

THE FIRST DUTCH WAR 395

the language of the English commissioners, it appears probable
that they were acquainted with the proceedings of the States-
General as to the proposed article on the striking of the flag,
and with the debates in the previous year concerning Tromp's
instructions (see p. 398). The negotiations on the fishery
question were not carried further at this stage.

With regard to the article relating to the equipment of a
fleet by each nation for the protection of commerce, the com-
mentary of the Council of State was that " the Commonwealth
of England shall take such care for the guard of their seas and
defence of the freedom of trade and commerce therein as shall
be fit " ; and with respect to the next, which stipulated that
both countries should protect commerce and fisheries from
molestation or impositions, the reply was equally uncompro-
mising. " If any person," it was said, " shall, within those seas,
trouble, hinder, or unlawfully burthen any in the exercise of
that freedom of trade which belongs of right unto them, this
Commonwealth will use all means just and honourable to re-
store and preserve freedom to all lawful commerce in those seas
as aforesaid." 1 The meaning of this language was unmistak-
able. The Commonwealth intended to adhere to the old claim
to the dominion of the seas, which had been revived by Charles.
And this exclusive sovereign jurisdiction, it was explained,
would be of advantage to the Dutch, since they would bear no
part of the cost ; they must be content with freedom of naviga-
tion and commerce, and leave to the English the duty of main-
taining the security of " their seas." On inquiring what means
the Commonwealth proposed to take for this purpose, the
ambassadors were told that the intention of the Council was
" to defend the sea in their own right," and that any further
explanation would be given by the Council if they applied
to it.

At this stage of the proceedings William Nieuport, a member
of the States-General, came to London with fresh instructions
tor the ambassadors. That body had been considering the
English demands for reparation, above alluded to, and also the
commentary of the Council on the thirty-six articles ; but the
refusal to liberate the captured ships, or to stop the operations
of privateers against Dutch vessels, made them obdurate. The

1 Cats' Verbael, App., 21. Tideman, op. cit., 117.

396 THE SOVEREIGNTY OF THE SEA

ambassadors were now told to insist on the articles relating to
visitation and search as an essential part of the treaty. No
Dutch vessel was to be visited, whether it was on the sea, in
harbour, or in a roadstead. The principle of "free ship, free
goods," was to be strictly enforced, and no investigation o1
the cargo of a merchant vessel was to be permitted ; still less
should they agree to the visitation of a man-of-war. The
ambassadors were specially requested to avoid discussion as to
any claim on the part of England to exclusive right in any
portion of the sea ; in any case, they were not to admit that
such right existed, but were to treat only about the liberty and
security of the fishery on both sides.1 If the English protested
that they would not allow themselves to be prejudiced in any
of their " pretended rights," the ambassadors were then to make
a formal declaration that they, on their part, could not allow
the freedom of navigation and of fishery, or the free use of the
sea, to be called in question, nor could they recognise the special
claims of any one over the sea which might prejudice those
rights. In order to avoid, if possible, directly raising the
question of the dominion of the sea, they were requested when
dealing with the crucial articles to speak only of commerce and
fishery, and not of the "purging" of the sea of pirates; and
they were also to abandon the proposal for a division of the
sea into districts.2

So passed, peacefully enough, the early weeks of May at the
conferences in London. The States' ambassadors, on the one
hand, demanding freedom of navigation and fishery; above
all, that the visitation and seizure of their vessels should
cease. The English commissioners, on their part, putting
forward incompatible claims to the sovereignty of the British
seas : the right of exclusive jurisdiction, of guardianship, the
right to the fishery. Whether the negotiations would have
reached a happy conclusion, as the ambassadors, and appar-
ently also the States-General, believed they would, may only

1 " De dispuyte over 't recht hetwelck de Engelsche pretenderen privative over
eenigh ghedeelte van de Zee te hebben, ende in alien ghevalle aan deselve geeu
soodanigh recht in eenigher wijse toe te staen, ende alleen te handelen over d
vryheijdt ende seeckerheijdt van wederzijts visscherije. " Tideman, op. cit., 119
Aitzema, op. cit., iii. 708.

2 Cats' Verbael. Tideman, 118.

THE FIEST DUTCH WAR 397

be conjectured. For an event of momentous importance
now occurred which swept their labours away and embroiled
the two nations in war. On the 19th May, at the very
moment when the Dutch ambassadors were conveying their
iit'\v instructions to the English commissioners, Tromp and
Blake were engaged in furious battle in the Straits of Dover
about that very matter which the States-General had found
to be " so delicate " — the striking of the flag. The long-
impending struggle engendered by years of mutual jealousy
and commercial rivalry had now come suddenly. The claim
of England to the sovereignty of the sea was to be decided,
in the words of Sir Philip Meadows, by a longer weapon
than a pen.

Tromp had put to sea early in May, 1652, with a fleet of
forty-two sail, and bearing instructions to prevent the search-
ing of Dutch merchantmen, to protect them against any who
interfered with them, and to free them, by force if necessary,
if they were captured. He was further told to refrain as
far as possible from going on the English coast.1 On one
important point his instructions were defective. He received
no definite orders as to how he should act if the fleet of the
Commonwealth called upon him to strike his flag. The sub-
ject of the salute had been much discussed in the Netherlands,
and an opinion was widely held that while their ships would
suffer no loss of dignity in striking to a fleet belonging to
a crowned head, it was doubtful whether the same homage
should be rendered to the ships of a republic like themselves.
The question had been definitely raised and fully discussed
early in the previous year in connection with Tromp's expedi-

1 Aitzema, iii. 713. Tideman, 124, 130, 132. The draft instructions were
dated ^*" 1Q > and were approved on May jg. A translation of the 7th Article is

as follows : " The superior officers and captains either already in command of the
aforesaid squadrons or hereafter appointed, are to be charged to free the ships of
this country from all search by any one whatever, and to defend them against all
who try to do them injury, and to release them to the uttermost of their power
from every one who may have captured them, and further to do whatever their
ordinary instructions in their commission requires in a sailor-like fashion for the
service of the country." By the 5th Article, fifteen men-of-war were to be sent for
the protection of the " great " (herring) fishery, " which is of so great importance
to the State," along with the ordinary national convoy-ships, and the ships which
the towns of Enkhuizen, Delft, Rotterdam, and Schiedam were accustomed to
add. Gardiner, Letters and Papers, i. 155.

398

THE SOVEREIGNTY OF THE SEA

tion to the Scilly Isles, in view of the likelihood of his falling
in with the English fleet, — its consideration, indeed, delaye
his departure, — but the Government hesitated in coming to
decision, and a general wish was expressed to hear Trornp's
own opinion first. He accordingly prepared a memorandui
describing what the States' ships had done in the past
He said that whenever their men-of-war met at sea a shij
of the King of England carrying the flag of an admiral
vice-admiral, or rear-admiral, they struck their admiral's fla£
lowered top-sails, and fired nine, seven, or five guns, the
English answering with a like number, and the States' fla£
remained struck until the ships separated, when three or
one adieu-shots were fired, and the flag was then hoist
On meeting a single king's ship, he said, they did not strike
their flag, but only exchanged guns ; but it sometimes happens
that an English ship of little power tried to compel them
strike, out of pride ("uyt hooghmoet"), but when they fire
back and showed their teeth, and the English ship found it
had not power to force them, it went on its way with derision :
in such cases striking was a matter of discretion. When th
entered a harbour or came before a castle they fired a salut
which was returned; the flag was taken in and a pennant
run up in its place, and kept flying so long as they wei
there, particularly if a king's ship, carrying the king's
was present. If no king's ship was present, the governc
sometimes gave his permission, out of courtesy, for the admin
to wear his flag until his departure, when it was again strucl
and a salute exchanged.1

The substance of Tromp's report was communicated to the
States of Holland by De Witt on j^g March 1651, stress appar
ently being laid on the point that it had been the custom ii

Tromp's memorandum was dated

28

1651. The original is apparent

9 March

lost (Tideman, De Zee Betwist, 68) ; but an account of it is given by his center
porary, Aitzema (iii. 731), and is printed in Appendix L. Tromp, in his Hescrif

of JT October 1652, justifying and explaining his conduct with regard to the meet
ing with Blake, refers to a memorandum on the subject of the flag which he p«
sented to a committee of the States on "Jan. — Tesi'" anc^ wmcn they consider

,. - .. Feb. 21 1650., ,„. ,.

in arranging his instructions of March 3' 1651 (Gardiner, Letters and Papers, i.

422). The dates here are those given by Tideman.

THE FIRST DUTCH WAR 399

earlier times for the States' ships, "particularly when they
were weakest," l to salute with guns and strike their flag on
meeting the English fleet.2 The Government, however, thought
that the conditions had changed ; but they failed to give the
admiral definite directions one way or the other as to how
he should act if he met the fleet of the Parliament. He was
merely told in general terms that he must so manage matters, if
he met with the English fleet, that the state should suffer no
affront (" geen cleynicheyt "), — a decision which left everything
to his own discretion. There was the more risk in this course
as the English at this time were said to be jealous of Tromp,
owing to his reluctance to strike his flag to them.3

Later in the same year, the question was again raised by
Vice- Admiral Jan Evertsen, who was placed in command of a
squadron to cruise between Cape Ortegal, the Scillies, and
Ushant. Before his departure he endeavoured to obtain pre-
cise orders as to how he should comport himself if called
upon to strike, so that no " inconvenience " might be caused.
The States thereupon merely renewed the instructions they
had given to Tromp in March, and they ordered that copies
of Tromp's memorandum should be distributed to the other
commanders.4

No further directions on the matter were given to Tromp when
he took command of the fleet in 1652, though it ought to have
been evident to the States that in the delicate position of
affairs with England, and from the nature of the duties they
had laid upon their admiral, the risk of misunderstanding and
collision with the English fleet was great and imminent. They
hesitated to give decided orders to strike, apparently lest such
action might be construed into an acknowledgment of the
inferiority of the Dutch Republic to the English Common-
wealth, especially at a time when they believed themselves
to be superior to it in naval power;5 and though alive to
the importance of the matter, they were very reluctant to

1 "Sonderlinge de swackste sijnde,"

2 Tideman, op. cit., 68. Resol. Hott., — March 1651.

3 Hollantsche Mercurius, April 1651, p. 49 : "Seer jalours, omdat hij niet ter-

1 gereedt was voor haar te strijcken."

4 Re$d. St. Gen., ^, ^ Oct. 1651. Aitzema, iii. 731. Tideman, 68, 92.

5 Add. MSS. Brit. Mus., 11,684, fol. 30,

400 THE SOVEREIGNTY OF THE SEA

have it discussed in the negotiations in London. But if t
Dutch had no clear idea as to what they were to do abo
the flag on meeting the English fleet, the English commande
had no doubt about their own line of action. Their instructio:
were explicit. They were, by force if necessary, to com
the ships of all nations to this acknowledgment of Englan
sovereignty of the sea.

Tromp proceeded to his cruising station off the coast o:
Flanders, between Dunkirk and Nieuport, and while riding
at anchor there a strong north-east gale set in, which damaged
some of his vessels, and on the evening of the 18th May he
crossed over to the English coast for shelter and repairs.
At this time Bourne was lying in the Downs with eight
Parliamentary ships, and Tromp sent two of his captains to
him to explain the accidental cause of his coming, the ships
conveying them saluting Bourne's flag. One of the officers,
according to Bourne's account, said that Tromp himself
would have gone into the Downs "but that he was not
willing to breed any difference about his flag, forasmuch
as he had not orders to take it down " ; to which Bourne
replied that he "presumed there would be no new thing
required of them, and neither more nor less would be ex-
pected from them but what they knew to be the ancient
right of this nation " ; and he added that the reality of the
explanation given for their presence "would best appear
their speedy drawing off from this place." l According t
Tromp's account of the interview, Bourne merely thanke<
him courteously for the message.2

At all events, the Dutch fleet passed along the Englia
coast in all its bravery, the admiral's ship with his flag on th
main-top-mast head, the rest with "jacks and ancients" flying
and about seven in the evening they cast anchor oft' Dover,
within little more than gunshot of the castle. Here they
remained till the following afternoon with all their flags dii

1 Bourne's letter in The Answer of the Parliament of the Commonwealth of
land to three Papers delivered to the Council of State by the Lords Ambassadors
Extraordinary of the States- General of the United Provinces : and also a Narrative

517 k 15
of the Late Engagement, &c., Brit. Mus., — '-^ — ' p. 12.

2 Letter to States-General, May 30. Hdlantschc Mercurius, May 1652. Tht
Answer of the Parliament. Geddes, 209. Tideman, 130.

THE FIRST DUTCH WAR 401

played, and without saluting. Three times a gun was fired from
Dover Castle, according to the usual practice, warning the Dutch
admiral to strike his flag ; but Tromp — strictly within his right
if beyond gunshot — took no heed. He had probably purposely
selected an anchorage beyond the range of cannon in order
to avoid striking to the English flag. Not only did he not
strike, but he exercised his raw musketeers in discharging
volleys of small - shot for many hours together, in a way
that must have been provoking to the English. On the
afternoon of the 19th, Blake, who had been lying at
anchor in Rye Bay a little to the westward, and who had
received intimation from Bourne of the presence of the
Dutch fleet, came upon the scene with fifteen ships. As he
approached Tromp weighed anchor and stood off to sea
towards Calais, — a movement which Blake thought to be due
to a desire to avoid " the dispute of the flag." 1 So far Tromp
had carried out his instructions. He had indeed, through
stress of weather, gone upon the English coast, which he
had been requested to avoid as far as possible. But he had
preserved the States from suffering any "indignity" about
the flag. Obviously there was great tension between the
fleets as to the question of striking. Not unnaturally, Tromp's
proceedings were regarded by the English as an attempt to
brave them upon their own coast; and the English admirals,
who were vigilantly watching, would not be slow to challenge
any infraction of the custom of the narrow seas. They too
had to take care that their country suffered no dishonour,
as they understood it.

When Tromp was on his way to Calais, and about half
seas over, a small Dutch vessel fired a gun and came up
to him, and communicated the intelligence that a week earlier
a Dutch convoy had been attacked by the English for not
striking their flags ; and, above all, that the seven homeward-
bound merchant vessels which had been under their charge,
with valuable cargoes on board, were at that moment lying
at anchor off the English coast, and, it was believed, in
danger from the English fleet.2 The occurrence referred to
took place on 12th May. Captain Young, in the President,

1 Blake's letter, The Answer of the Parliament, p. 8.

2 Tideman, 128, 129. Geddes, 210, 211.

2c

402 THE SOVEREIGNTY OF THE SEA

while off the Start, accompanied by two other English men-o:
war, fell in with seven Dutch merchantmen from Genoa an
Leghorn, convoyed by three men-of-war, with their fla
displayed. Young sent a boat to their admiral to request
him to strike his flag "before any blood was shed in the
controversy," which he did. But the vice-admiral, contrary
to the custom in the narrow sea, came to the windward of
Young, and refused to strike, telling him to come "on board
and strike the flag himself. The President then poured a
broadside into the Dutch ship, together with a volley of small-
shot, and several broadsides were exchanged before the vice-
admiral struck, and then the rear-admiral did the same. On
Young demanding the vice-admiral or his ship to carry
into port to make good the damage done, he was told by
the admiral that he himself had not interfered so long as
it was only a question of striking the flag, but if he attempted
to seize the ship he would resist him ; and the matter was
carried no further. " I do believe," said Young, " I gave him
his bellyful of it, for he sent me word he had order from
the State that if he struck he should lose his head." x It is
probable that the Dutch vessels encountered the north-east
gale that forced Tromp from his anchorage; at all events,
they were brought by their conveyers along the English
coast to Fairlight,2 between Hastings and Winchelsea, where
they cast anchor; then the Dutch captain who had been
attacked, Joris van der Saen, went in search of Tromp to
tell him of their plight.

On hearing his story, Tromp instantly turned about and
made straight for the English coast, which he had left only
a few hours before. In this case, at all events, his instnr
tions were explicit. He had been ordered to prevent Dutc
vessels from being visited or searched, and to recover the

1 Young's despatch, 14th May 1652, in The Answer of the Parliament, p. 20.
Penn's Memorials, i. 419. Tideman, 197. Gardiner, Letters and Papers relating
to the First Dutch War, i. 178. The French Occurrences, he., Brit. Mus., E,

6. It may be noted that Tromp, in his Rescript to the States -General (see no
p. 398), mentioned that Huyrluyt and van der Saen had received instructions
strike only to royal squadrons.

2 In the Dutch writings the place was described as "Fairle," "Fayrleigh,"
"Virly," "Vierly," &c. Its position is shown, as Fairlee, in the reproduction of
the chart from Selden in this book (Fig. 3, p. 121).

THE FIRST DUTCH WAR 403

if captured. Blake, on seeing the Dutch fleet returning,
stood off to meet it. He did not know the real reason that
had made Tromp alter his course : he had passed the merchant-
ships a few days after their meeting with Young, and had
done nothing to them. He believed that Tromp was seeking
an occasion of quarrel, and watching for an advantage to
brave them on their own coast. The Dutch admiral came
on with his flag at the main-top, and when he was well within
range, Blake fired a gun across his bows to make him strike,
and after an interval a second, and yet again a third at his
flag; the ball going through the main-sail and killing a man
on deck. Tromp then, still with the States' colours aloft,
fired a single gun at Blake's flag, ran up a red flag, — the
prearranged signal for battle, — and poured a broadside into
Blake's ship, and the two fleets entered into a fierce encounter.1
The fight lasted from four or five o'clock until nine, Blake
being assisted by Bourne, who came from the Downs with
his small squadron and assailed Tromp in the rear. The
Dutch fleet, with the loss of two ships, gradually drew off
towards the French coast, and Blake kept his position all
night and anchored some leagues off Dimgeness.

This was the first great fight over the striking of the flag,
and it occasioned immediate war between the two countries.
Encounters on a small scale had been not infrequent before,
but no foreign fleet had hitherto ventured to challenge an
English fleet in this way off the English coast. Tromp himself,
thirteen years before, when he possessed an overwhelming
force, readily struck his flag to Pennington's small squadron
in the Downs. After the battle attempts were made to
justify Tromp's action, but not at all on the ground that the
demand for him to strike his flag to the English admiral
was unjust or contrary to custom. Blake was accused of
having precipitated the battle. Tromp, it was said, had men
aloft ready to strike the top-sails, or had already done so ; he

1 The Answer of the Parliament. Gibson, Collections of Naval Affairs, Add.
AfSS., 11,684, fol. 5b. Geddes, op. cit., 212. Gardiner, op. cit., ii. 118 ; Letters
and Papers, i. 172. Tideman, op. cit., 135. The Dutch accounts, which vary in
certain particulars from the English and from one another, are unanimous in say-
ing that the first broadside came from Blake's ship, the James, which would have
been according to custom, since Tromp did not lower his flag after the third shot.

404

THE SOVEREIGNTY OF THE SEA

had sent a man up to strike his flag ; he was preparing to send
his boat to Blake after the second gun was fired to ask him
the reason of his firing, and so forth. But the Dutch admiral
well knew the custom of the narrow sea, and had no n«
to ask Blake the reason of his firing across his bows.1
When the nature of his instructions with reference to salut-
ing is considered, along with his memorandum and the dis-
cussions connected with it, his action before Dover Castle
on the day before, and the variation in his own subsequent
accounts of his intentions and proceedings, the inference is
strong that he had resolved not to strike to the weaker
fleet of the Commonwealth.

In London the news of the battle aroused intense indigna-
tion. It was everywhere believed that Tromp had deliberately
attacked the English fleet, — an opinion confirmed by the com-
missioners, of whom Cromwell was one, sent to Dover to
inquire into the facts. The meeting of Joris van der Saen
with Tromp, which had been seen from the English fleet, was
viewed in a sinister light. The little Dutch ship was thought
to have carried instructions from the States for Tromp to make
the attack. The Parliament thought so also : " They found too
much cause," they said, " to believe that the Lords the States-
General of the United Provinces have an intention by force to
usurp the known rights of England in the seas, to destroy the
fleets that are, under God, their walls and bulwarks, and there-

1 See his memorandum, p. 398. Tromp wrote to Blake from Calais four days
afterwards ( ay), saying he had intended to salute him, and asking for the

restoration of a ship taken. In reply Blake accused him of having sought out the
English fleet, and " instead of performing those usual respects which of right
belong unto them, and which yourself have often done," had attacked him. In
The Ansioer of the Parliament, p. 11, it is said that one of the Dutch captains who
had been taken prisoner stated that when he struck to some English men-of-war
at Calais a few weeks before, Tromp asked him "why he did strike sail to them,"
saying, " Were you not as strong as they ? And being so, why were you afraid ? "
As the above-mentioned letter from Tromp to Blake is given by Gardiner (Letters
and Papers, i. 216) only as "translated from a Dutch translation of the French
original," an authenticated copy of the French original is given in Appendix M,
from Tideman (De Zee Setwist, App. C, p. 202). It is from the archives at The
Hague (Lias Engeland, 1652 (Copie)), and is endorsed by Job. Corn. Rhees, and
again by N. Ruysch, as identical with the authentic copy. The original of Blake's
reply is also given. It is printed by Gardiner as " retranslated from the Dutch
translation" (ibid., i. 257), and differs in some points from the original.

THE FIRST DUTCH WAR 405

by expose this Commonwealth to invasion at their pleasure." l
It was in vain that the States disowned responsibility for
Tromp's action and sent over a copy of their instructions to
him, showing that he had been commanded to avoid the
English coast. The ambassadors appealed to the Council to
hold their hand until the States-General had made an inquiry.
Tromp was cautioned to use the greatest circumspection, so
that while preserving the reputation of his country, nothing
further should be done to widen the breach with England. And
now, when too late, the Dutch Government came to a definite
decision as to the striking of the flag. Tromp was expressly
ordered to strike his flag on meeting the English fleet, accord-
ing to the manner that had been customary when England was
under its kings ; and not to attack them, but only to defend
himself if assailed.2

The States also sent over a special ambassador, Adrian Pauw,
the Grand Pensionary of Holland, and the most venerable and
influential personage in the Republic, to assure the Parliament
of their pacific intentions, and to strive to maintain peace. He
urged that the encounter of the fleets should be looked upon as
an " accident," and that a joint inquiry should be made and
the admiral found to have been in fault duly punished. He
proposed, further, that regulations should be drawn up for the
fleets, so that in future such disputes might be avoided, — not,
he said, that it was the wish of the States to dispute the
honour and the dignity of the English Republic, which they
esteemed the first and greatest in Europe.3 But the Parliament
insisted that the States should first pay them the costs and
compensate them for the injuries they had sustained by the
Dutch naval preparations and Tromp's attack, and give
security for an alliance between the two countries. Mean-
while, the Parliament had been seizing Dutch vessels and
preparing for war, while in the United Provinces feeling was

1 The Answer of the Parliament, p. 4.

2 Resol. St.-Gen., fj^, j| June 1652. Tideman, De Zee Betivist, 164. Ar-

ticulen van Vreede ende Confederatie, &c. Brit. Mus., 8122, ee. 12 — "Dat hij
aengaen het voeren ofte strijcken van vlagge in de Rencontre mette Engelsche
Vlooten of Schepen hem bij provisie respectively ck sal hebben te gedragen en te
reguleren in sulcker voegen als bij tijden van voorgaende Coningen van Groot-
Britaignen is gedaan ende gepractiseert geweest."
8 Tideman, 171.

406 THE SOVEREIGNTY OF THE SEA

rising steadily and angrily against England. The ambassado
were recalled and the naval preparations on both sides pushe
on with energy.

It was well understood that the most vulnerable part of the
States lay in their shipping and fishery. A day or two after
the news of Blake's encounter with Tromp reached London, the
Council issued instructions to Major-General Dean, who com-
manded the troops in Scotland, that in view of the fishery
carried on every year by the Dutch about Orkney and Shet-
land, the forces there should be increased.1 A month later, 01
26th June, before the ambassadors had left London, Blake
himself sailed northwards with a fleet of about sixty ships,
with a double object of putting a stop to the Dutch herring
fishery and intercepting their homeward-bound East-Indiamen,
which were expected to return to Holland by way of the Shet-
lands.2 On 12th July he sent forward in advance eight
frigates to discover the Dutch convoying men-of-war, which
they soon fell in with, guarding the herring-busses, to the
north of Buchan Ness. They were twelve in number, and
after a stubborn fight of over three hours' duration, towards
the end of which the English frigates were reinforced by other
five, they were all taken, before the main fleet came up. The
English wounded were sent in three of the captured ships to
Inverness ; other three ships were so much shattered that they
were sunk. While the fight went on, most of the herring-
busses escaped and made their way homewards with all speed,
but about thirty were taken by the English. Blake dealt with
them very leniently. He took from them " a taste and toll " of
herrings, and then sent them home with this " lesson," that they
" fish no more in those seas without leave from the Republick oi
England."3 For this humane action Blake was subsequently

1 State Papers, Dom., xxiv. 15.

2 Cats, Schaep, and van de Perre to the States- General, 27th June 1652. Add.
MSS., 17,677, U, fol. 162. Pauw was officially informed by the Council of State
that the fleet had put to sea "to execute its designs." Geddes, op. cit., 223.
Gardiner, Letters and Papers, i. 301. The number of Blake's fleet was variously
stated as 60, 64, 66, 68, 72 vessels : 60 were counted passing Dunbar.

3 Letter from Leyden, ^ August 1652. Mercurius Politicus, Brit. Mus., E,

673, 1. The accounts vary somewhat. SeveraU Proceedings in Parliament, Brit
Mus., E, 796, 11. A Perfect Diurnall, E, 796, 14. French Occurrences, E, 669, 6. On-

stclde-Zee, p. 34, ' ee' . ffollantsche Mercurius, 1652, p. 70. Gibson in his

THE FIRST DUTCH WAR 407

blamed, on the ground that the busses might have been made
use of in establishing a native fishery, while the detention of
their crews would have helped to cripple the resources of the
Dutch in manning their fleets.1 The same generous spirit was
shown towards the French boats that fished in the Channel,
which were excepted from the general seizure of French ship-
ping, unless they acted improperly.2 In the course of the war,
however, it became the rule for both the Dutch and the Eng-
lish vessels to bring into port all the fishing-boats captured
from the enemy.

After Blake dispersed the Dutch busses, the States of Holland
at first thought of calling home the rest of the herring fleet
(only about 600 or 700 had returned), and for that year to put
a stop to the fishing, which kad just begun ; but it was finally
decided to continue it with twenty-four armed busses and six
men-of-war as a guard, — a conclusion, no doubt, helped by the
gentle way in which the English admiral had dealt with the
busses that fell into his hands. When English herring-boats
were seized and taken to the Netherlands, Holland, which had
the greatest stake in the fishery, tried to induce the States-
General to release them, and to issue orders that British fisher-
men were not to be molested, in the hope that such forbearance
would be imitated in England. But the policy failed, and
orders were given to do the English fishermen all harm
possible. In the following year the States - General forbade
the whaling - ships sailing for Greenland, but they did not
prohibit the herring fishery, though the greater number of
the busses were kept at home by the prudence of their owners.
Many were captured by English cruisers. More than fifty
were taken by the English fleet on the Dutch coast in May
1(>53, most of them being brought into Aberdeen and there
sold. Some of those seized in the course of the war were
handed over by the Council of State to the London Corpora-
tion for the Poor, to be used in fishing on the English coast.

narrative (supra) says he was on board one of the ships (the Assurance) that
attacked the busses, and that they found them " northwards of the Dogger
Bank " ; but there is no doubt that the locality was far north of the Dogger, off
Buchan Ness, Brit. Mus. Add. MSS. 11,684.

1 Memoirs of Edward Ludlow, 420.

2 Proc. Council of State, 20th July 1652.

408 THE SOVEREIGNTY OF THE SEA

On the other hand, the English fishermen suffered greatlj
The Iceland and North Sea fishing came almost to a stop, an
men-of-war had to guard the herring and mackerel boats. I
September 1653 the Council sent a force of men and thre
"fit and nimble" ships to the Shetlands to ply about th
islands, to intercept the enemy's trade of fishing, with what
results do not appear.1

But the operations against the enemy's fisheries played only
a small part in the war. The struggle for the command of
the sea was concentrated in many fierce battles between the
contending fleets in 1652 and 1653. The exploits of Blake,
Dean, Monk, and Penn on the one side, and of Tromp, De
Ruyter, Evertsen, and De With on the other, are famous in
the naval history of the two countries; and although victory
finally rested with England, there were times when the actual
control of the British seas was in the hands of the Dutch.
It was on one of those occasions that the Dutch admiral was
said to have hoisted a broom at his mainmast-top as a sign
that he would sweep the seas of all Englishmen. Tromp
unexpectedly appeared in force in the Channel in the winter
of 1652, and on 30th November he defeated Blake off Dunge-
ness. From that date till the end of February in the follow-
ing year no English fleet was able to oppose him. The Dutch
were "lords and masters" of the sea, and English commerce
suffered severely. But the popular story about the broom
seems to have uncertain foundation. It was first set afloat
in two English newspapers, published on 9th March 1653, after
the decisive "three days' battle." In one it was said that
Tromp had set forth " a flag (or standard) of Broom ; and being
demanded what he meant by it, reply 'd, That he was once
more going to sweep the Narrow Seas of all Englishmen."
The other paper gave a letter from the Nonsuch frigate at
Portsmouth, stating that the Hollanders had probably gone
home after the battle, and that " their gallant Mr Trump when
he was in France (we understand) wore a flagg of Broom, and
being demanded what he meant by it, replied that he was going

1 Resol. ffoll., 1652, pp. 343, 364, 387. Hollantsche Mercurius, 1652, p.
Beaujon, Hist. Dutch Fisheries, 363. Groot Placaet-Boeck, ii. 506. Aitzema,
Saken van Staet, iii. 810. Penn's Memorials, i. 526, 527. State Papers, Dom.,
xxv. 25 ; xxxii. 15 ; xxxvi. 15, 29, 55 ; xxxviii. 116 ; xxxix. 73 ; xli.

THE FIRST DUTCH WAR 409

to sweep the narrow seas of all English men." The story is not
mentioned by Dutch authorities, and is now generally dis-
credited, but in an earlier century the broom had been used
in this way by a Dutch admiral to signalise a victory in the
Baltic;1 and it is said that after the two days' battle in the
following summer, when the Dutch had been driven from the
sea, the English fleet rode triumphant off the Texel with a
broom displayed at their mast-heads, perhaps in ironical parody
of Tromp.

While the fleets were contending for actual dominion over
the sea, the Parliament took care to keep alive the historic
claims to maritime sovereignty and to place them well before
the people. As early as 25th June 1652 — the day before Blake
sailed away to the north in quest of the herring-busses — they
passed a resolution : " That it be referred to the Council of
State to prepare a declaration to assert the right of this
Commonwealth to the Sovereignty of the Seas, and to the
fishery ; to be made use of when the Parliament shall see
cause."2 No time was lost, for on the same day the Council
remitted the instruction of the Parliament to the Committee
for Law and Examinations, with the request that they should
bring the declaration to the Council with all speed, and
Bradshaw was desired to see that this was done.3 Apparently,
for the use of the Committee in drawing up this declaration,
Mr William Ryley, the Keeper of the Records in the Tower,
made transcripts of several of the records in his charge refer-
ring to the sovereignty of the sea, as the ordinance of King
John, Edgar's charter, the mandate of Edward I. to the Bailiffs
of Yarmouth, the rolls of the same king concerning Grimbald,
and of Edward III. on the laws of the sea, and some others.4

1 The Declaration and Speech of the Lord Admiral Vantrump, and his setting
up a great Standard of Broom for the States of Holland, for the Cleering of the
Narrow Seas of all Englishmen : New Broom sweepes clean, p. 4. Brit. Mus., E,
689, 13. A Perfect Account of the Daily Intelligencer, Brit. Mus., E, 689, 14.
Gardiner, Hist, of Commonwealth, ii. 151. Geddes, op. cit., 270, 319.

2 Journals of the House of Commons, vii. 145.

3 State Papers, Dom., Interregnum, xxix. 42-47.

4 This collection is in a treatise in the British Museum (Harleian MSS., 4314),
entitled " The Sovereignty of the English seas vindicated and proved by some few
Records (amongst many others of that kynd) remayning in the Tower of London,"
Collected by William Ryley, senior. Among the State Papers (Dom. , xxxv. 35) ia
a copy of the ordinance of Johu, in Latin, French, and English, endorsed by Brad-

410 THE SOVEREIGNTY OF THE SEA

It was soon apparent to the Council that the task of again
attempting formally to vindicate the claims of England to the
sovereignty of the seas, while Selden's Mare Clausum was at
their disposal, would be like painting the lily. They therefore
instructed the Committee for Foreign Affairs "to take order
for printing the book called Mare Clausum and Mr Dugard
to print it.1 But simply to reprint Selden's work, with its
fulsome dedication to Charles II., and in the Latin tongue,
would not have served the purpose in view, and it was then
resolved to translate it. This task was assigned to Marcha-
'mont Needham, who had deserted the royalist cause and
placed his pen at the service of the Commonwealth, writing
the Mercurius Politicus, in which he had latterly the assist-
ance of Milton.2 The translation was rapidly made, and the
work was published later in the year.3 And just as the
original had been dedicated to the king, so now the trans-
lation was dedicated to " the Supreme Authority of the Nation,
the Parliament of the Commonwealth of England"; and
so pleased were the Council of State with it that they, on
8th November, ordered two hundred copies for their own use,
and paid Needham £200 for his labours, as the book, they
said, " learnedly asserted the rights and interests of the Com-
monwealth in the adjacent seas, and would be of good use for
these and future times." 4

The "additional evidences" brought forward by Needham

shaw, "A transcript of a record in the time of King John touching the striking of
sail ; brought in by Mr Ryley, Keeper of the Records in the Tower, by order of
the Council of State." It contains the following note by Ryley, referring, presum-
ably, to the Black Book of the Admiralty : "The French is in a very ancient and
fair MS. book amongst the rest of the maritime laws, and undoubtedly was a
record of the Admiralty Court, then in the possession of the registrar of that Court,
the names of the Lord Admiral and registrar being written at the beginning of the
book, which is now remaining with Mr Selden, and is of no less authority than
antiquity."

1 State Papers, Dom., Interregnum, xxix. 48.

2 Masson, Life of Milton, iv. 149, 226.

3 Of the Dominion or Ownership of the Sea, written at first in Latin and entitulcd
Mare Clausum seu De Dominio Maris by John Selden, Esqr : translated into Eng-
lish and set forth with some Additional Evidences and Discourses by Marchamont
Needham. Published by special Command, London, 1652. Another edition, by
"J. H. Gent," was published in 1663, "perfected and restored." It is, however,
so far as Selden's text is concerned, merely Needham's translation, careful inspec-
tion showing that it was printed from the same type.

4 State Papers, Dom., Interregnum, xxxiv. 31-49; vol. 33, No. 14. The copy
belonging to Cromwell, and bearing his autograph, was sold in 1908.

THE FIRST DUTCH WAR 411

comprised the proclamation of James in 1609, and of Charles
in 1636, forbidding unlicensed fishing; some of the letters that
passed between the English Government and their ambassadors
at The Hague ; extracts from Sir John Boroughs' Sovereignty
of the British Seas, which was first published in the previous
year ; and a few other papers of little importance. The purpose
of the book was better served by Needham's bitter if rather
frothy invective against the Dutch, and by his ranting appeals
to English patriotism to conquer the foe and establish our
interests on the sea beyond the possibility of future question.1
Selden was still alive, and the translation was doubtless
made with his concurrence, whatever he may have thought
of it. He was himself soon drawn into the controversy which
the book evoked. Graswinckel, the Dutch lawyer who had
been chosen by the States-General in 1636 to reply to Selden's
Mare Clausum, and whose neglected treatise had ever since
being lying in the secret archives at The Hague, again entered
the lists. His shaft was ostensibly directed against a certain
Italian writer, P. B. Burgus, who had published a work eleven
years before in support of the right of Genoa to the dominion
of the Ligurian Sea.2 There was no apparent reason why
the Dutch lawyer should be at the pains to attempt to refute
a claim so remote and after so long an interval; but Burgus
quoted largely from Mare Clausum, and Graswinckel seized
upon the opportunity to attack Selden, and to gratify his
feelings by making use of his early abortive treatise, under
the guise of replying to the Italian author. And his attack
on Selden was very bitter.3 On the main question, the familiar
arguments were adduced against the appropriation of seas,

1 In some dedicatory verses Neptune thus addresses the Great Commonwealth
of England : —

" Go on (great State !) and make it known
Thou never wilt forsake thine own,

Nor from thy purpose start :
But that thou wilt thy power dilate,
Since Narrow Seas are found too straight

For thy capacious heart.

So shall thy rule, and mine, have large extent :
Yet not so large, as just, and permanent."

The work appeared when Tromp was lord of the narrow seas ; the preface is dated
19th November, the day before Blake's defeat.

'* De Dominio Serenissimce Genvensis Reipublicce in Mari Ligustico. Rome, 1641.

3 Marts Liberi vindicice adversus Petrum liaptistam Burgum Ligustici Maritimi
Dominii Assertorcm. Hagae Comitum, 1652.

412 THE SOVEREIGNTY OF THE SEA

with the usual seasoning of Scriptural and classical quotations ;
the historical claims of England to the sovereignty of the sea
were treated in a sarcastic and bantering spirit, and the
authenticity of some of the records cited by Selden was
questioned ; while he said that in many respects the Hollanders
were the real lords of the British seas. But he made a personal
attack on Selden, accusing him of having written Mare
Clausum in order to get out of prison.1 Selden made a strong
reply, explaining the circumstances under which his treatise
was written, and entering into a minute description of the
documents which Graswinckel suggested he had invented;
but on the controversy as to .the dominion of the seas he
contributed nothing new.2

Stimulated by the war and the dispute which had pre-
cipitated it, a number of works were now published in Holland
in defence of the freedom of the seas and the liberty of fishing,
and opposing the claims of England to any special maritime
jurisdiction. Among them was another dissertation by
Graswinckel, published before he was aware of Selden's
reply to his attack, and apparently containing further extracts
from his stillborn treatise. This time the earlier Scottish
lawyer, Welwood, was assailed, and his book, De Dominio
Maris, was republished in Holland in order to serve,
apparently, as a theme and target. Graswinckel was
especially severe against any claim to interfere with the
herring fishery or to impose tribute on the fishermen.3 The
controversy continued to rage on both sides of the North Sea,
but in England it fell for the most part into the incompetent
hands of ignorant pamphleteers, who vilified the Dutch in

1 Cap. vi. p. 118. See supra, p. 367.

2 Joannis Seldeni vindicice secundum integritatem existimationis suce, per
vitium de Scriptione Maris Clausi, petulantissimum mendacissimumque insolentius
lessee in Vindiciis Maris Liberi adversus Petrum Baptistam Burgum, Ligustici
Maritimi Dominii assertorem. Hagce Comitumjam nunc emissis. London, 1653.

3 Maris Liberi Vindicate adversus Gulielmum Welwodum Britannici Maritimi
Dominii assertorem. Hagse Comitum, 1653. Other works were Mord. von der
Reck, Disputatio juridica de Piscatione, 1652 ; Martin Schook, Imperium Mari-
timum, Amsterdam, 1653 ; Stephen S. Burman, Mare Belli Anglicani injustissime
Belgis Ulata, Helena, 1652. The latter contains a pretty full account of the old
" Burgundy " treaties, and of others concluded by England with various countries
in the seventeenth century, in which, as the author points out, no claim was made
to the sovereignty of the seas.

THE FIRST DUTCH WAR 413

pious but intemperate language without shedding much light
upon the question.

But if there was a dearth of competent pens in England able
to carry on a juridical controversy about the sovereignty
of the sea, it was not for lack of belief in the importance of
the matter. At no previous time in English history had
popular feeling been more aroused or was the general resolu-
tion stronger to maintain the rights of the country in the seas.
The traditional sentiment of the nation, which Charles had
in large measure alienated by his ship-money exactions and
his. bungling and fruitless attempts to maintain those rights,
was revived in full force, and it was greatly strengthened
by other considerations relating to commerce and trade.
Though English commerce and shipping had greatly developed
since the earlier part of the century, by far the larger part
of oversea traffic was still in the hands of the Dutch. It
was against this predominance that the Navigation Act was
aimed. The pre-eminence of the Dutch excited the emulation
of the nation to outvie and outdo them, and success in this
policy was believed to be closely bound up with the assertion
of the sovereignty of the sea. Before the war began, the
authors of works on commerce and navigation had urged
the Parliament to enforce these claims, even in the
Mediterranean against France, and for the same reasons
that were formerly used by Sir Walter Raleigh.1 To the
national sentiment and commercial ambitions was added
the zeal of religious fanaticism. The godly Barebones
Parliament of 1653, who looked askance at the Dutch as
carnal and worldly politicians, held it necessary that the seas
should be secured and preserved as peaceable as the land,
in order to prepare for the coming of Christ and the personal
reign.2

1 For example, Robinson, Brief e Considerations concerning the Advancement of
Trade and Navigation, 1649.

2 Stubbe, A Further Justification, 91.

414

CHAPTER XI.

THE PARLIAMENT, THE COMMONWEALTH, AND THE

PROTECTORATE — continued.

THE PEACE NEGOTIATIONS.

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

1 Geddes, i. 282, 289, 292. Gardiner, ii. 128, 183, 329. Aitzema, iii. 804.

THE PEACE NEGOTIATIONS 415

In order to find some more satisfactory basis for the
negotiations, the States - General in June 1653, immediately
ifter the two days' battle, and when the English fleet was
blockading the Dutch ports, sent four deputies to London.
One of them, Hieronymus van Beverning, a trusty friend
of De Witt's and a representative of the States of Holland,
came on in advance, reaching London on June 17 ; the
others, Nieuport, van de Perre, and Jongestal, following a
few days later.1 The deputies arrived at a time when
Cromwell, having dissolved the Long Parliament and the old
Council of State, was dictator, and the new Council was
composed of his own nominees; and Cromwell, as is well
known, had been against the war and was favourable to
peace.2 Nevertheless, a stiff attitude was adopted towards
the envoys. To their request that negotiations might be
resumed on the basis of the thirty-six articles the Council
turned a deaf ear, putting forward the demands for reparation
and security, and refusing to proceed with the negotiations
until they had received a satisfactory answer.3 Cromwell,
however, sent a private message to Nieuport, on 30th June,
that the Council would not insist on satisfaction and security.
He suggested that Tromp should be suspended for a few
months; that a binding treaty and alliance should be con-
cluded; and that for security two or three Englishmen
should sit in the States-General or Council of State in the
Netherlands, and the same number of Dutchmen in the
English Council. If these conditions were agreed to, little
difficulty would be made about the thirty-six articles, the
Dutch would be allowed to carry on their herring fishery
in the British seas, and a truce probably granted.4 But by
the next day Cromwell, after discussion with the Council,
had changed his mind, and the debate went on about re-
paration and security. The deputies were told that the

1 Geddes, i. 315. Gardiner, ii. 340. Verbael gehouden door de ffeeren H. van
Severningk, W. Nieuport, J. van de Perre, en A. P. Jongestal, als Gedeputeerden
en Extraordinaris Ambassadeurs van de ffeeren Staetcn Generael der Vereenigde
Nederlanden, aen de Republyck van Engelandt, i. 7, 12.

2 Clarendon, The History of the Rebellion and Civil Wars, vi. 607. Gardiner,
op. cit., ii. 111.

3 Verbael of the Ambassadors, 10, 21, 35.

4 Ibid., 84. Thurloe's State Papers, i. 394.

416 THE SOVEREIGNTY OF THE SEA

Council did not ask for a great sum, but that the " security "
meant "uniting both states together in such manner as
they may become one people and Commonwealth, for the
good of both,"1 — a scheme apparently much the same as
St John had taken with him to The Hague.

This extraordinary proposal for a union, closer even than
that which existed among the seven United Provinces them-
selves, astonished the envoys of the many-headed Government.
They pretended at first not to understand it, and went on
talking of "alliance" and the Intercursus Magnus; but the
Council pointedly declared that what they meant was not the
mere " establishing of a league and union between two sover-
eign states and neighbours, but the making of two sovereign
states one," under a joint Government, all the subjects to possess
equal privileges and freedom in either country " in respect of
habitations, possessions, trade, ports, fishing, and all other ad-
vantages whatsoever." 2 The deputies considered such a scheme
"absurd," — nothing of the kind had ever been heard of in
history; it was opposed to the constitution of the United
Provinces and was impossible; and they hinted that if the
proposal was pressed they would have to return home. They
thought it was far better to take as a basis for the negotiations
the treaty of 1496, which was a perfect, true, and sincere
alliance, league, and confederation by land and sea. To this
the Council replied that they had desired a coalescence of the
two countries as the best security for the future of both, and
especially of the United Provinces; and that the deputies
offered nothing more than they did at first, by which they
demanded free trade to the English colonies and the suspension
of the Navigation Act ; " nay," the Council continued, " they do
in effect demand to share with this state in the sovereignty of
the narrow seas, and in their right of fishing," whereas these
advantages could only be obtained by such a coalescence as
had been proposed.3

The negotiations had now come to such a pass that the
Dutch commissioners judged it to be necessary to report verb-

1 21st July 1653. Verbad, 53.

2 25th July, Verbad, 56, 59, 62. Geddes, i. 341. Thurloe, i. 382.

3 The Deputies to the Council, fl^jj^; reply of the Council, ^ August.
Verbad, 64, 66, 70.

THE PEACE NEGOTIATIONS 417

ally to the States, and Nieuport and Jongestal left for home
with this object on 3rd August. They did not return until the
end of October; and while the official conferences with the
Council were suspended in the interval, the two deputies
who remained in London carried on important private nego-
tiations with Cromwell, mostly through an intermediary. At
first Cromwell descanted on the advantages to the United
Provinces of the proposed coalescence, including the complete
liberty they would have of fishing on the British coasts. Later
he put forward the extraordinary schemes which remind one
of the dreams of Napoleon — a confederation of the Protestant
states of Europe for the propagation of the Gospel; the par-
tition of the rest of the world, Asia to fall to the share of the
Dutch and America to England; a war of conquest against
Spain and Portugal, and then there would be complete freedom
of commerce and of fishery in all seas, without molestation or
disturbance.1 A less extravagant alternative offered was an
alliance of the Protestant states, without the partition of the
globe or the war of conquest ; but this smaller scheme was not
to carry with it either freedom of commerce or liberty of fish-
ing. And now, for the first time since the negotiations began,
a formal stipulation was asked that all ships of war of the
Dutch Republic, on meeting "on the sea" with the ships of
war of the Commonwealth, should show them the same respect
and do them the same honour as had been practised in any
former time.2

The two deputies in London could do nothing with these
proposals until the States - General had decided about the
original project of coalition, with reference to which Nieuport
and Jongestal had gone to The Hague. But they expressed
their own opinion on the twelve articles which had been sub-
mitted to them ; and with regard to the striking of the flag,
they thought the word "respect" conveyed the impression of
too great a sovereignty on one side and of submission on the

1 Verbad, 75, 142, 143, 150. Thurloe, i. 370, 417, 418. Geddes, i. 362.
Gardiner, ii. 350.

2 Verbad, 155. "7. Dat alle schepeii onder het ressort van haer Ho. Mog.
t' buys behoorende, in alle rencontres in de Zee, aen Oorloghschepen van de
Republyck van Engelandt sullen draegen het selvige respect, ende deselve eere
doen, als sy ooit voor desen syn gewoon geweest te doeu."

2D

418 THE SOVEREIGNTY OF THE SEA

other, but they agreed that another word might be chosen and
a " good regulation " made. The objection was curious, because
during the negotiations of 1673 the envoys of the States — and
the same able Beverning was the chief of them — themselves
proposed that the striking of the flag should be done " by way
of respect " ; and when that word, respect, was inserted in the
treaty of 1674, it was said in England that the Dutch had
scored a great diplomatic victory, since to show respect was
not to acknowledge sovereignty.

When the two absent deputies returned to London they
brought back with them the old instructions for a " close
alliance and strict union," nothing being said about the pro-
posal to fuse the two nations into one. Their memorandum
was submitted to the new Council of State, on which Cromwell
had a working majority ; the only coalition suggested was a
"coalition of interests," and a "brotherhood" of the peoples.
Cromwell at once called it a mutilated coalition, and some of
the Council are said to have expressed strong opinions as to
the " contumelious " tactics of the Dutch. If they refused real
coalition, it was our duty, they said, to make them and keep
them our inferiors, so that they might never attempt this nation
again ; they must pay for liberty to fish on our coasts ; render
the usual submission at sea ; give up their own waf ters and pay
us for convoys, since we were the proper guardians of the British
sea ; they must not equip many great ships, without explaining
their intentions and asking leave to pass through our seas ; and
they must pay the costs of the war. Such were the opinions
attributed to the Council by a well-informed author who wrote
a little later,1 and they indicate tolerably well the demands
which were subsequently made. The Council then prepared
draft articles for a treaty on the lines the Dutch desired, and
Cromwell informed them that since they were averse to a
coalition which would have made the privileges of both coun-
tries equal, it would be necessary first of all to define clearly
their respective rights, so that disputes might be avoided in
future. And in the first place, he said, they must settle their
right and dominion in the narrow sea and the question of the

1 Stubbe, A Further Justification, 92. Stubbe says he had an account of part
of the proceedings from one of the English commissioners ; he had also the use of
official manuscripts.

THE PEACE NEGOTIATIONS 419

fishery, remarking that if these points were adjusted the work
in hand would be much facilitated.1

In putting the question of the sovereignty of the sea and
the fishery in the foreground of the negotiations, Cromwell
placed the envoys in a difficulty. In conformity with their
traditional policy on like occasions, the States -General had
expressly instructed their representatives to avoid discussion
on these thorny subjects, — a circumstance no doubt well known
to Cromwell. They therefore fenced with them. With regard
to the "honour of the sea," they had never desired to dispute
with the Parliament of the Republic of England any honour
or dignity which had been rendered to former Governments,
and they declared their willingness to pay the same "honour
and respect" to the English flag as had been previously
shown to it. They thought it would be better to defer con-
sideration of the fishery question until the articles of a " strict
union" had been adjusted, when the whole business of
commerce, fishery, and the immunities on both sides might
be dealt with. But Cromwell was not to be turned from
his purpose. On the following day, after a long and remark-
able speech on the advantages of coalition — which the Dutch
once more put aside, — he again declared that the matter of
the sea and the fishery must be first of all settled ; and he
ended the discussion by handing to the deputies the draft
articles which the Council had prepared.2 The articles were
twenty - seven in number. Some of them provided for a
defensive alliance and arranged details of peace. Freedom of
trade was to be allowed, provided the laws in force — the
Navigation Act — were observed; the rebels of the one were
not to be assisted by the other, and so forth. But the Dutch
were to pay a sum to be agreed upon, by way of reparation,
and there were several articles dealing with the sovereignty
of the sea and the fisheries.

The article 3 on the fishery was framed on the model of the

1 Verbael, 189. "Syn Excellencie . . . gesyt . . . dat sy daerom voor af
rneenden, dat moeste vaststellen haer Reght ende Dominie in de naeuwe Zee, ende
het stuck van haere Visscherye, ende . . . eyndelyck besluytende dat die pointen
van de Zee ende Visscherye geadjusteert synde, het vordere werck seer soudeu
faciliteren."

2 Verbael, 189, 190, 196, 198, 214. 3 Art. xviii. Verbael, 203.

420 THE SOVEREIGNTY OF THE SEA

proclamations of James and Charles relating to unlicensed
fishing. It was as follows : " The people and inhabitants of
the said United Provinces, of what condition or quality so-
ever they be, shall with their busses and other vessels fitted
to that purpose, have liberty from time to time, for the term of
one and twenty years, next coming, to sail and fish as well for
herrings, as all other sort of fish, great and small, upon any
of the coasts or seas of Great Britain and Ireland and the
rest of the Isles adjacent, where and in such manner as
they have been formerly permitted to fish. In considera-
tion whereof, the States-General of the United Provinces shall
during that term pay into the public treasury of this Common-
wealth at the City of London the sum of ... at two
equal payments upon every 24 day of June and 24 day of
December ; the first payment to begin on the 24 day of June
next." When it is remembered that the Dutch in the reign
of James, and again in the reign of Charles, were prepared
to go to war with England rather than surrender their
liberty of fishing, the objectionable nature of this article is
apparent. No glimpse is obtained throughout the negotia-
tions of the sum that was to be asked for the liberty of
fishing, possibly because it was never definitely fixed by the
Council. It is, however, stated by Stubbe, who had special
sources of information, that it was the intention of the Council
to demand £100,000, as well as payment for constant wafters
or convoys,1 — a statement which is credible only on the sup-
position that it was desired utterly to ruin the Dutch herring
fishery.

Some of the other articles were equally or even more
objectionable. That concerning the striking of the flag,2
though not feasible in its original form, was capable of adjust-
ment. It provided "that the ships and vessels of the said
United Provinces, as • well men-of-war as others, be they
single ships or in fleets, meeting at sea with any of the ships
of war of the State of England, or in their service, and
wearing their flag, shall strike their flag and lower their
top-sail, until they be passed by, and shall likewise submit
themselves to be visited, if thereto required, and perform
all other respects due to the said Commonwealth of England,

1 Stubbe, A Further Justification, 62. 2 Art. xv.

THE PEACE NEGOTIATIONS 421

to whom the dominion and sovereignty of the British sea
belong." By this article the whole of the Dutch fleet would
be bound to strike to a single ship in the English service
anywhere on the sea, and, what was a far more serious
matter, to submit to be visited and searched. A stipulation
of that kind was unacceptable. Tromp's fleet had been
fitted out before the war expressly to prevent the visitation
and search of merchant vessels ; if no conflict had occurred
with Blake about the flag, it would almost certainly have
happened on this other point.1 And now the States were
asked to confirm in a formal treaty the right claimed by
England ; and above all to make it applicable to their ships
of war. Another article with reference to the measures to
be taken against pirates embodied the old doctrine attributed to
the Plantagenets. The Commonwealth of England, it stated,
had declared their resolution "to put upon these seas a con-
venient number of armed ships, for the defence and safeguard
thereof, and to maintain ,and preserve all lawful navigation,
trade, and commerce therein, against pirates and sea-rovers." 2
Another article which raised the strongest objections provided
that the Dutch fleet passing through the British seas should
be limited to a certain number, to be agreed upon in the
treaty, and that if the States had occasion for a larger number
to pass than that agreed to, they should first give the Common-
wealth three months' notice and obtain their consent. The
article also provided that Dutch merchant vessels should be
allowed freely to navigate the British seas, as if the right of
permitting or forbidding navigation there belonged to England.2

1 Gardiner, Letters and Papers, i. 49, 170. 2 Art. xvi. Verbael, 203.

3 Art. xiv. " That the inhabitants and subjects of the United Provinces may,
with their ships and vessels, furnished as merchantmen, freely use their navigation,
sail, pass and repass in the seas of Great Britain and Ireland, and the Isles within
the same, (commonly called the British Seas) without any wrong or injury to be
offered to them, by the ships or people of this Commonwealth, but on the contrary
shall be treated with all love and friendly offices ; And may likewise with their
men of war not exceeding such a number as shall be agreed upon in this treaty,
sail, pass and repass through the said seas, to and from the countries and parts
beyond them : but in case the States-General shall have occasion to pass the said
seas with a greater number of ships of war, they shall give three months before
notice of their intentions to the said Commonwealth, and obtain their consent for
the passing of such fleet, before they put them forth upon these seas, for prevent-
ing all jealousies and misunderstandings between the States by means thereof."
Verbael, 202.

422 THE SOVEREIGNTY OF THE SEA

Such conditions could only have been imposed on a nation
hopelessly vanquished. They were conditions, the ambassadors
declared, which would not be demanded from rebels or slaves.
On the English side there was a strong feeling that since
coalition had been rejected, the "security" for the future
ought to be rigorous and complete. It was still firmly be-
lieved by the mass of men, and doubtless by many in the
Council, that Tromp had attacked Blake in overwhelming
force in order to destroy the English fleet; and that too by
the implicit or express orders of the States. There was doubt-
less also a desire to cripple Dutch commerce and power as far
as was possible. Commercial jealousy had long been simmer-
ing, and now that the English thought they had the power
they were resolved to use it to their own advantage.1

The Dutch deputies were astonished and indignant at the
English demands, which, as they sarcastically noted in their
journal, they could scarcely reconcile with the professions of
friendship and the pious words of Cromwell. Had they com-
municated them to the States-General all thoughts of peace
would have been at an end, for it had required the most
adroit diplomacy of John de Witt to induce that body to
allow the negotiations to be set agoing. They therefore sent
home only an imperfect official account of them, pleading
that Cromwell had tied them down to the utmost secrecy,2
and then proceeded to consider the articles themselves. Those
dealing with reparation, the Prince of Orange, the visitation
of ships, and the fishery, they decided absolutely to reject
as inadmissible, for reasons to be given later. The one which
proposed to limit their naval power in the adjacent seas
they resolved indignantly to refuse, and to break off the
negotiations rather than to agree even to discuss it, believing
that it was a matter in which all Christian princes in Europe

1 Sir H. Vane, who was the chief director of the war, is reported to have said
that the interests of the two countries " were as irreconcilable as those of rivals,
trade being to both nations what a mistress is unto lovers ; that there never could
intervene any durable peace, except both nations did unite by coalition, or the
English subjugate the others and reduce them into a province, or by strict con-
ditions and contrivances ensure themselves against the growth and future puissance
of the Dutch." Stubbe, op. cit., 119.

2 The Ambassadors to the States - General, 2g November. Verbael, 215.
Geddes, i. 372.

THE PEACE NEGOTIATIONS 423

' were also interested, who would condemn the English Govern-
ment for their extravagant claims to special maritime rights
and to the fishery. Their conclusions were embodied in a
paper which was submitted to the Council of State on 22nd
November. In this they said that the visiting and searching
of merchant vessels and ships of war was contrary to the
practice of the United Provinces, was subject to innumerable
disorders and disputes, and was injurious in point of sover-
eignty, since it was not reciprocal. As to the fishery, they
declared that they had been in immemorial possession of
complete liberty of fishing. They denounced the article
concerning the limitation of the number of their ships of
war, which they said they could hardly persuade themselves
had been put forward seriously, since it struck at the root
of their existence as an independent sovereign state, and
they declined to discuss it.1

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

1 Verbael, 216, 219.

424 THE SOVEREIGNTY OF THE SEA

This concession facilitated the negotiations. Frequent con-
ferences were held in the following week, Cromwell and his
Council strongly asserting the right of the Commonwealth to
the fisheries and the dominion of the sea. At this period
there were four subjects chiefly in dispute — the arrangements
relating to the striking of the flag, the visitation of ships of
war, the preliminary part of the sixteenth article as to the
guarding of the seas, and the fishery. On none of these was
Cromwell inclined as yet to give way. The deputies repeated
their offer as to the flag, and requested that a joint commission
of old and experienced naval officers should be appointed to
draw up regulations for the guidance of both sides in future.
To this Cromwell replied that such a commission was unneces-
sary, their rights and the custom being well understood and
clearly expressed in the article. There was, however, uncer-
tainty as to the places where the right could be claimed,
and the Dutch deputies said they wished to make it clear
in what seas and on what coasts the flag ought to be
struck, urging that it was better to be guided by a regulation
than to compel it by force. But Cromwell was inflexible.
To yield would be to admit that the claim was doubtful in
point of right or mode, and it would stultify their whole
action ; he may also have thought it would open a door
for some form of reciprocity. The article was therefore
postponed, as was also the sixteenth article, the deputies
insisting on the deletion of the introductory sentence as to
a fleet 'to be put forth to guard the sea, which Cromwell
refused to do.1

The keenest dispute at this time was about the herring
fishery. There were two principles in the article, Cromwell
said, which required attention : first, the recognition of
England's right to the fishery; secondly, compensation for
allowing the use of it. Unable to avoid the discussion, the
envoys pleaded their immemorial possession and their treaties,
and said that their liberty of fishing had never been disputed ;
besides, they asked, was it a friendly thing to make a proposal
of the kind when they were about to conclude a strict and
close alliance between the two countries ? Cromwell, who had
obviously been well posted up in the arguments in Mare

1 Verbad, 229, 230, 236.

THE PEACE NEGOTIATIONS 425

Clausum, then entered upon a lengthy disquisition on the
subject. He said the English could prove by authentic docu-
ments that they had had possession of the fishery from all
time, and that other nations sought their permission to fish ;
that the clause in the treaty of 1496 (the Intercursus Magnus)
upon which the Dutch relied, was omitted in later treaties ;
and that the treaties had expired owing to the subsequent
wars between Queen Elizabeth and Spain, and had never been
since renewed; they were not the same people with whom
the treaties had been made, since they were now alienated
from the House of Burgundy. And they could not establish
their right by prescription, for by the civil law it required
a hundred years for a just prescription, and the States had not
existed so long as an independent nation. Moreover, long
before the treaty of 1496, licenses for fishing had been sought
and granted. Even King Philip II. in Queen Mary's time had
asked permission to fish for twenty-one years, and had paid
£1000 a-year for the privilege. King James, too, had issued
a proclamation in 1610 (sic) forbidding unlicensed fishing,
while King Charles had demanded and received through the
Earl of Northumberland an acknowledgment from their
herring-busses.

To this long argument the deputies replied with arguments
as long. With respect to the treaties, they said that the treaty
of 1496 was not between prince and prince, but between states
and towns, as specified in it ; and that the article which pro-
vided for mutual liberty of fishing had been confirmed in later
treaties, notably in the treaty of Binche, in 1541, between the
Emperor Charles and the King of Scotland; in that of 1550
with Queen Mary of Scotland ; and in that between the United
Provinces and King James of Scotland in 1594.1 Moreover,
in the treaty between England and Spain in 1630, there were
certain words which confirmed the ancient treaties of inter-
course and commerce.'2 They expressed the opinion that Crom-
well had not been well informed in saying that licenses for
fishing had been granted before the Intercursus Magnus was
concluded, because it was doubtful if the invention of the

1 See pp. 78-81.

2 Art. xviii. "Antiqui intercursus et commercii tractatus, provisionaliter pris-
tinam viin et auctoritatem obtineant."

426

THE SOVEREIGNTY OF THE SEA

salting and casking of herrings was much before that date.1
As to the alleged lease of the fishings by King Philip, there
was nothing to compel him to take such a lease, and they saw
no reason why he should have done so; while the proclamation
of James, so far from being an argument against them, was
entirely in their favour, because, as they could prove from
papers in their hands, it was never put into execution, but was
suspended on the representations of the States. The action of
the Earl of Northumberland they described as simple extortion,
since he had compelled a few defenceless fishermen, without
the knowledge of the States, to pay him some money. The
deputies concluded their arguments by saying they had no
further instructions on the matter, and that if the Council
pressed the article, they would require to return and report
to their Government : there was, they said, a high and mighty
Lord in heaven who knew the hearts and rights of all, and He

o

would judge. Cromwell assured them that the article had
not been inserted in the draft treaty with the object of break-
ing off the negotiations, but only that they might maintain
their just rights. Why, he asked, should the States object to
acknowledge the right of the Commonwealth to the fisheries,
when other Powers like France and Sweden, who had as much
claim to liberty as they, had not scrupled to acknowledge it ? 2

As Cromwell was immovable, and the deputies equally ob-
durate, the negotiations came to a stop, and the latter on 5th
December formally requested their passports to return to The
Hague. In the interval they asked the French ambassador if
France had requested permission from England to fish in the
sea, as Cromwell averred. He told them nothing had been
said to him on the matter since he came to England, but that
his papers showed that the Duke of Guise had formerly asked
that certain fishermen of Treport should not be molested in
their fishing.3 They also learned that the Swedish ambassador
had sought to obtain from England free commerce in general,

1 Beukelsz, who invented the modern method of pickling herrings, is said by
some to have died in 1347, by others in 1397, and by a few in 1401. Stubbe says
the deputies assigned the year 1414 to the discovery, but no year is mentioned in
their report.

2 Verbael, 237, 238, 240-243. Stubbe, op. cit., 64.

3 The statement referred to the licenses for fishing on the Zowe. See p. 65.

THE PEACE NEGOTIATIONS 427

free fishery, and freedom of trading to the Barbadoes. It was
indeed the case that Sweden had made such proposals. In the
negotiations for a treaty with the Commonwealth, the queen
expressed her desire to obtain liberty for her subjects to fish
for herrings in the British seas,1 and in the preceding August
the Council of State, at the request of her ambassador, had
actually issued a license to four Swedish vessels to fish in the
narrow seas and upon the British coasts.2 In a treaty con-
cluded in 1656 between the King of Sweden and the Lord
Protector, the privilege, it may be said, was carried much
further. The treaty provided that Swedish subjects should
be free to fish for herrings and other fish in the seas and
on the coasts under the dominion of the Republic, provided
the number of ships so employed did not exceed a thousand ;
and no charges (such as the assize-herring) were to be de-
manded of the Swedish fishermen, who were to be treated
courteously and amicably, allowed to dry their nets on the
shore, and to purchase necessaries at a fair price.3

It may be noted as remarkable that, throughout the long dis-
cussions with Cromwell about the fishery, the Dutch deputies
never made use of the argument, so frequently employed by
their predecessors at the Court of James, that the English
claims were opposed to the law of nations. They probably
shrank from using an argument of that kind to the great
dictator who had ruthlessly trampled on the laws of England ;
perhaps they were deterred by the abrupt intimation made
earlier, that the Council had not come to listen to scholastic
subtleties, but to consider the real legal rights of England.
The obstinacy of Cromwell in refusing at this stage to modify
the fishery article is also noteworthy. No doubt he was

1 Whitelock to Thurloe, 10th March 1654. Thurloe's Collection, ii. 158.

2 Council of State Order Book, 6th Aug. 1653. State Papers, Dom., Interregnum.

3 Dumont, Corps Diplomatique, VI. ii. 125. " X. Subditie Serenissimi Regis
Suecite liberum erit, per Maria atque Littora, quae in Ditione hujus Reipublicse
sunt, piscari, atque Haleces, aliosque Pisces capere ; dummodo mille Navium
numerum piscautes non excedant. Neque inter piscantes ullum iis impedi-
mentum, aut molestia asseratur Neque a Navibus prscsidiariis hujus Reipublicae,
neque ab iis quibus Diplomate permissum est, res suas privatim suo marte repetere,
nee a piscantibus in Boreali plaga Britannise, piscatiouis nomine onera aliqua exi-
gantur, immo omnes humaniter atque amice tractentur, usque retia in Littore
siccare, quemque opus est cornmeaturn ab eorum Locorum Incolis, justo pretio
comparare sibi licebit."

428 THE SOVEREIGNTY OF THE SEA.

moved by a sincere desire to benefit England. The belief
was still prevalent that the herring fishery which the Dutch
carried on along the British coasts was the foundation of
their commerce, wealth, and naval power. It, moreover, pro-
vided them with a great "seminary of seamen" to recruit
their fleets — a consideration which must have had a special
force at a time when we had only the ships in the coal
trade between Newcastle and London to draw upon for ours,
and when the most rigorous system of pressing failed to
provide sufficient men for the navy.1 But Cromwell had
other reasons for insisting on the English claims, even to the
point of rupture of the negotiations. It was by this time
obvious that the Barebones or nominated Parliament had
only a short life before it, and it was desirable that its
dissolution should be free from violence and as far as possible
voluntary. The majority of the members were strongly
opposed to the Dutch, and to the conclusion of peace except
on humiliating terms to the enemy; and it is probable that
Cromwell's insistence was partly due to his desire to con-
ciliate them. He was now about to put on the mantle of
the Lord Protector of the Commonwealth of England.

When the Dutch envoys wrote to the Council for their
passports, they received no answer. On repeating their re-
quest two days later, they got a hint of what was impending, —
that the Parliament which was against them would soon be
dissolved, and the management of affairs placed in the hands
of a council of ten or twelve.2 Then on the 9th December
they were asked by Viscount Lisle, in the name of the Council,
to delay their departure, as commissioners would soon be
appointed to treat with them and conclude the treaty. Crom-
well took the oath as Lord Protector on the 16th ; the new
Council of State met on the 19th; and the conferences on the
treaty were resumed four days later.3

1 Stubbe, op. cit., 68. Robinson, England's Safety in Trades Encrease, 1641.
Ibid., Considerations Concerning the Advancement of Trade and Navigation, 1649.

2 The Deputies to the States-General, ^ December 1653. Verbael, 246.

3 It may be noted that Philip Meadows now became Latin Secretary to the
Council in place of Milton. He was afterwards an extremely able opponent of
the English claims to the sovereignty of the sea, and wrote the best book against
them. See p. 524.

THE PEACE NEGOTIATIONS 429

Cromwell did not now attend the conferences, the negotia-
tions being entrusted to four members of the Council — Viscount
Lisle, Sir Charles Wolseley, Sir Anthony Ashley Cooper, and
Walter Strickland, who had accompanied St John to The
Hague in 1651. The discussions on the questions affecting
the claim to the sovereignty of the sea were continued: the
striking of the flag, the visitation of ships, and the declaration
that the dominion of the sea belonged to England. The
former arguments on both sides were repeated, and the Dutch
proposed the following article with reference to the flag:
"That the ships and vessels of the United Provinces, as well
men - of - war as others, meeting with any of the ships of
war of the State of England shall honour and dignify them
with the striking of the flag and lowering the top-sail, in
such a manner as ever under any form of government in
times past they have been honoured and dignified; and to
prevent all quarrels for the future the particulars thereof
shall be regulated by the advice of the generals and com-
manders." l The English commissioners reiterated the objections
previously made, but now stated that they had been referring
only to the narrow seas ; 2 and it was agreed to refer the points
in dispute to the Lord Protector.

Another difficulty arose on the third article, which fixed
the dates on which the peace should take effect on the sea,
after which dates the capture of prizes would be illegal.
The part was as follows: "Excepting such depredations as
shall be committed in the British Seas (Maria Britannica)
after the space of twelve days, and betwixt the British Seas
and the Line after the space of ten weeks," &c. At the
first, the phrase "British Seas" had caught the eye of the
envoys; but, thinking it was merely an ordinary appellation
such as might appear on a chart, and that no deep design
lurked beneath it, they decided that it would not be desirable
to raise "the business of the sea" on such a point.3 They
now took exception to these words, and suggested that it would
be better to begin, "in the narrow sea, which was called the
British Sea " after twelve days, from there to Cape St Vincent

1 Verbad, 260, 261. MS. Commentary, Stubbe, op. cit., 60.

2 "Ende dat sy alleenlyck spraecken van de naeuwe Zee."

3 Verbad, 231.

430 THE SOVEREIGNTY OF THE SEA

after six weeks, &c. This matter also was referred to the
Protector.

Cromwell, who was now settled in his new dignity, gave
close attention to the peace negotiations. On 26th December
the deputies were handed a paper in his name, in which he
gave up the demand for a money payment in reparation for
the war ; agreed to the stipulation about the exclusion of the
Prince of Orange — which was the corner-stone of the treaty
—being put in a secret article; agreed to some new articles
which the Dutch had proposed, after slight modifications ; and at
the same time introduced a new element of trouble and debate
by formulating three additional articles requiring justice to be
done for the " murder " of the English at Amboyna in 1623, and
concerning the settlement of disputes and wrongs committed
in the East Indies, Brazil, and Greenland. Important conces-
sions were at the same time made on the maritime question.
The article respecting the fishery was dropped. "Concerning
the fishing," wrote the Protector, "the Lords Deputies having
by their former papers desired that freedom of fishing in these
seas might be declared in this treaty, the 17 article was
thereupon propounded, whereby license is granted to the
people of the United Provinces to fish freely in these seas
upon the terms therein expressed, notwithstanding as in their
Lordships' power either to accept or refuse, but it cannot be
admitted that anything should be inserted in this treaty that
may prejudice the right of this state in their fishery.''" l The
Dutch thus again scored a diplomatic victory and preserved
their liberty of fishing on the British coasts, just as they had
done in the reigns of James and Charles. They did not
succeed in getting the clause in the Intercursus Magnus
inserted or confirmed, as they desired, but it still remained
in force. Later writers accused Cromwell of having surren-
dered the rights to the fishery, and much else, as a quid pro
quo for the stipulation regarding the exclusion of the Orange
family in the Netherlands, which was his main object;2 but

1 Verbael, 272.

2 Stubbe, op. cit. Geddes has shown that Beverning, acting secretly with De
Witt, had clandestine communications with Cromwell as early as 8th December,
clearly with reference to the exclusion of the Prince of Orange. Op. cit.,
i. 385.

THE PEACE NEGOTIATIONS 431

there is no doubt at all that the States-General would never
have agreed to the English proposal.

Concessions were also made as to the striking of the flag,
"The 15 article," said Cromwell, "to be as following: that the
ships and vessels of the United Provinces, as well men-of-
war as others, meeting at sea with any of the ships of war of
the State of England, shall strike their flag and lower their
top-sail, and perform the other respects due to this State until
they be passed by " ; but the request that a naval commission
should draw up a " regulation " on the subject was not acceded
to. On the other hand, the clauses which stipulated for a
right of visitation of Dutch ships at sea, and the declaration
that the dominion and sovereignty of the sea belonged to
England, were entirely withdrawn ; but the Protector would
not yet part with the clause which provided for an English
fleet to guard the seas and protect commerce. Surely, he said
in effect, since the article limiting the number of warships has
been withdrawn, you will not contest our dominion of the sea
in this ? — and at this stage it was retained, with the remark,
" this article is insisted on." One of the new clauses provided
that not more than eight men-of-war at a time were to enter

o

any port of the other Power, unless constrained by force of
tempest, without having obtained consent to do so ; and when
compelled to enter by danger of the sea, they were immediately
to signify to the chief magistrate the cause of their coming, and
to leave when he required them to depart.1

On the subject of striking the flag, the deputies were not
yet satisfied. They still continued to urge that a " regulation "
should be prepared ; and they now raised a new point. Crom-
well had always used the words " at sea," which might mean
any sea or any part of the sea. They now desired that the
ceremony should be restricted to the narrow seas, "which,"
they said, "are called the British seas."2 To this proposal
Cromwell assented in so far that the words "in the British
seas" were inserted later. It is curious to notice how the

1 Verbael, 273.

2 Ad. 15. ut ad angustum mare (quod Britannicum vocant) ibique ad certaa
regulas cum distmctione locorum et littorum ita restringatur, ut idem ille honor
eademque dignitas, qua) vexilli supremi et veli dimissione unquam delati aut
observati fuerunt, in posterum adhuc deferantur, et observentur. Verbael, 275,

432 THE SOVEREIGNTY OF THE SEA

meaning of the term "British Sea1" thus became confused
even within the compass of a single treaty. In reference to
this article, the Protector made the important admission that
the narrow seas and the British seas were synonymous.1 In
the third article, as we have seen, the same term was used,
and it was natural for the Dutch to suppose that it there had
the same significance and meant the narrow seas or Channel.
Since the clause dealt with a matter of great practical import-
ance, namely, the restitution of vessels that might be captured
after a specified date, and the term " British seas " appeared
to be restricted to the Channel, they wished specifically to
include in it the North Sea and the East Sea (or Baltic), both
regions of great traffic. The envoys were accordingly instructed
later by the States-General to have these words added, so that
the clause would read, " excepting such depredations as shall be
committed in the British Sea, the East Sea, and the North
Sea."2 By this addition, moreover, the objectionable phrase
" the British seas " would be formally restricted to the narrow
seas or Channel, with the consent of England. The proposed
change was instantly rejected. When Beverning brought it
forward, Thurloe resisted it with great warmth,3 and the
qualifying words confining the term British seas to the
narrow seas, which the Dutch had inserted, were also deleted.4
When it was verbally agreed that the striking of the flag
should be restricted to the narrow sea,5 the deputies made a
new proposal. It was to the effect that Dutch ships, without
any distinction, not only in the narrow seas but throughout the
whole world, on meeting English men-of-war should give them
the first salute by striking the flag and top-sails and firing
guns, provided that the English ships immediately returned

1 "Ende met eenen voortgaende tot het 15 Artikel raekende het stryken van
de Vlagge, &c., syn wederom gerepeteert alle de argumenten ende redenen, die in
voorige Conferentien syn geallegeert geweest, ende wierdt ten uytersten by den
Heer Generael daer in gepersisteert, alleenlyck, dat hy die explicatie byvoeghde op
haere laetste antwoorde, daer sonder eenige distinctie van de rencontres in zee
gesprooken wordt, dat sy dat verstonden van de naeuwe Zeen die de Britannische

j » IT i i OTO 27 December 1653
Zeen genoemt worden." Verbaei, 278, 4 January 1654 •

2 Secrete Resol. St. Generael, ^ Feb. 1654. Verbad, 300.

3 "Met seer scherpe woorden, ende hatelycke illatien tegensprack." Ibid., 307.

4 Ibid., 320. " Angustum mare, quod vulgo Britannicum mare appellatur."
6 "Tot de naeuwe Zee expresselyck gerestringeert." Ibid., 288.

THE PEACE NEGOTIATIONS 433

ie salute in precisely the same manner. This, doubtless, was
proposition which lurked behind the reiterated suggestion
"regulation"; but the English commissioners would not
to any form of reciprocity. The Dutch again raised
objections to the part of the sixteenth clause concerning
tirates, on the ground that it contained an implication of the
slaim to the dominion of the seas, which they had constantly
opposed, and they cited the treaties with Elizabeth in 1585,
and with Charles in 1625, as having assigned to them the
protection of the sea off the Flemish coast and neighbouring
3ts. They declared they would prefer it to be dropped
altogether unless it was amended or made reciprocal.1

The differences as to the sovereignty of the sea or the phra-
seology of the maritime articles were now, however, of little
actual importance. The progress of the negotiations, secret and
otherwise, had narrowed the real ground of contention to two
crucial points — the exclusion of the Prince of Orange from
office, and the inclusion of Denmark in the treaty. The former
had been secretly agreed upon by Cromwell and Beverning,
the latter acting in conjunction with De Witt ; 2 but the Pro-
tector was obdurate as to the inclusion of Denmark, and the
deputies decided to return home to report the state of the
negotiations. They left London on 3rd (13th) January, and
though a message from Cromwell overtook them at Gravesend
conceding the point in dispute as to Denmark, they thought
it better to continue their homeward journey. The treaty,
so far as it had been officially arranged and made known,
was received with approbation in Holland, the vital stipu-
lation respecting the exclusion of the Prince of Orange being-
concealed. Beverning carne back to London on 25th January,
but was refused audience by the Protector until he had ob-
tained proper credentials recognising the new Government.
He was joined by Nieuport and Jongestal a month later,
but it was not till 15th March that the conferences were
resumed.3

By this time the Protector had in substance conceded almost
everything concerning the dominion of the seas that the

1 Verbael, 283, 285, 289. 2 Geddes, op. cit., i. 380.

3 Ibid., 290, 293, 311, 319. Geddes, i. 378-393. Gardiner, op. cit., ii. 368,
369.

2E

434 THE SOVEREIGNTY OF THE SEA

Dutch had asked for, and the ambassadors — they had re-
turned with the title of extraordinary ambassadors — were
anxious to avoid any more discussion about it. For this
reason Beverning disapproved of the resolution of the States-
General, above referred to, for the amendment of the third
article by specifying the North Sea and Baltic, and after
his first interview with Cromwell he wrote to them expressing
his opinion that it would occasion new disputes about the
fisheries and the sovereignty of the sea. We have seen how
it was received by Thurloe ; and from what followed it would
appear that Cromwell had either heard of the rumours going
about that he had sacrificed the rights of England to the
sovereignty of the seas in order to gain the exclusion of
the Orange family, or that he was determined to keep the
matter open until the secret arrangement for that exclusion
had been officially accepted in the United Provinces — a task
in which De Witt was struggling against enormous difficulties.
At all events, after the treaty had been signed by the negoti-
ators and ratified by the States-General, and when Cromwell
was on the point of ratifying it, he suddenly reopened the
question as to the extent of the British seas. Thurloe began
by asking the ambassadors what was meant by the distinction
drawn in the third article between the British seas and Cape
St Vincent. Such a distinction seemed to prejudice the limits
of the British seas, and might besides give rise to disputes later
as to the seizure of vessels. He then treated the ambassadors
to a discourse on the extent of the British seas, the particulars
of which are, unfortunately, not recorded. They were, how-
ever, told that they extended to and along the coast of France,
"Xaintonge" (Saintonge, an old French province) and round
about there. It had not been thought, he said, to limit or
define any seas in stating the districts, and he asked them for
a declaration on the subject. They suspected that the design
was to extract from them an explicit statement as to the
southward limit of the British seas, and they said they had
now no power either to alter the article or even to interpret it.
The treaty had been signed on both sides and ratified by
the States - General, and their instructions and commission
were at an end. The proposal to alter it, they now alleged,
came from themselves alone, without instructions from the

THE PEACE NEGOTIATIONS 435

States-General, and they had willingly and immediately with-
drawn it when objection was made. Cromwell then asked
if it had ever been their intention to define in any way the
limits of the seas by that article. They replied that they
believed not, and added that they had never thought of
yielding anything with regard to right or jurisdiction or
limits of the seas; and they failed to see what prejudice his
Highness could suffer from the extension of the article, unless
it was to be maintained that the whole of the French and
Portuguese coasts to Cape St Vincent were within the narrow
seas, as they had defined in the fourteenth article, which
was withdrawn.1 Cromwell then angrily told them that he
would not exchange the ratification of the treaty unless he
got the explanation and interpretation requested.2 It was
only, the ambassadors reported home, by their earnest in-
sistence to the Protector that the articles had been signed
with perfect knowledge on both sides of their contents, that
he passed from the point. Whatever the object may have
been in thus raising a discussion at the last moment as to
the extent of the British seas, there is little doubt that the
circumstance would prove useful to De Witt in his difficult
and manifold manceuvres to get the Act of exclusion of the
House of Orange adopted.

The treaty of peace, which had been signed by the plenipo-
tentiaries on 5th April, was ratified by the Protector on 19th
April, and proclaimed with due solemnity on the 26th May.
It was received with rejoicing both in this country and the
Netherlands.3

1 " Gelyk sy in 't 14 van de 27 Artikelen haere Brittannische Zen selver gede-
finieerfc hadden." Vcrbael, 396.

a "Daer op syne Hoogheyt in colere seyde, dat sender de versoghte elucidatie
ende interpretatie, hy de Ratificatie niet konde uytwisselen." Ibid., 397.

3 Next day Cromwell entertained the Dutch ambassadors and their wives to a
sumptuous banquet, and after dinner he passed them a paper with the remark,
" We have hitherto exchanged many papers, but in my opinion this is the best."
It was the first verse of Psalm cxxxiii., which they all then sang together solemnly —

" Behold, how good a thing it is,

And how becoming well,
Together such as brethren are
In unity to dwell."

Verbad, 419. Aitzema, iii. 927. Geddes, i. 422.

436

THE SOVEREIGNTY OF THE SEA

Comparison of the treaty as completed1 with the original
draft shows how thoroughly the Dutch plenipotentiaries had
eviscerated the parts dealing with the sovereignty of the sea,
and stripped it of almost all the phraseology which might
imply such sovereignty. The articles imposing tribute for
the liberty of fishing ; stipulating for the visitation and search
of vessels ; restricting the number of their men-of-war in the
British seas ; the Plantagenet claim for the guarding of the
sea; the declaration that the dominion of the British seas
belonged to England, — all had been wiped out. Cromwell
indeed succeeded in retaining the term "British seas" in its
original ambiguity; but both he and his commissioners ad-
mitted (verbally) that it meant, in reference to the salute,
only the narrow sea — a statement which was in contradiction
to the instructions issued to the naval officers, and to the
practice both before and afterwards. The clause providing
for the striking of the flag was saved, but only in a mutilated
form. It ran as follows : " That the ships and vessels of the
said United Provinces, as well those of war as others which
shall meet any of the men-of-war of this Commonwealth in
the British Seas, shall strike their flag and lower the top-sail,
in such manner as the same has ever been observed at any
time heretofore under any other form of government."2

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

After the conclusion of peace, the English naval commanders
took pleasure in vigorously enforcing their right to the " honour
of the flag," and, as above stated, notwithstanding the verbal
limitation made by Cromwell and Thurloe, they did not confine
the demand to the narrow sea. Within a few weeks of the
proclamation of the treaty, and before its details were known

1 Dumont, Corps Diplomatique, VI. ii. 75. Vcrbael of the Ambassadors, 356.

2 XIII. Item, quod naves et navigia dictarum Fccderatarum Provinciaruni,
tarn bellica et ad hostium vim propulsandam instructa, quam alia, quae alicui e
navibus bellicis hujus Reipublicso in maribus Britannicis obviam dederint, vexillum
suum e mali vertice detrahent, et supremum velum demittent, eo modo, quo ullis
retro teinporibus, sub quocunque anteriori regimine, unquam observatam fuit.

THE PEACE NEGOTIATIONS 437

to the fleet, Vice- Admiral Lawson encountered the " bellicose "
De With oil' the north coast of Scotland. The Dutch admiral
with three men-of-war was convoying seventy sail bound for
Greenland, and he at once struck his flag and fired a salute,
which the English returned. He also " submitted to a search,"
though stating that it was not customary for men-of-war to
do so. " De With," wrote Lawson, " begins to know his duty,
being very submissive, acknowledging the sovereignty of Eng-
land in the seas, and yielding as much as could have been
required of any merchant ships."1

•In the south the Dutch were not always so compliant, and
disputes with the English officers sometimes arose as to whether
the place where the striking of the flag was demanded was or
was not within the British seas. Thus, Captain Cockraine, in
the Old Warwick, met a fleet of Holland merchantmen under
convoy of a man-of-war between the Lizard and Ushant.
The merchant vessels struck their top-sails, but the man-of-war
refused to strike, on the ground that he was not in the British
but in the Spanish seas. Cockraine refrained from firing, as
the ship was surrounded by others and there was "much
wind." Instead, he wrote to the Admiralty. "I want to
know," he said, "how far is intended by the British Seas,
and how far our power reaches, so that we may make no
unnecessary broils." There is nothing to show what answer
he got; but a week later he encountered twenty-six Dutch
merchant vessels bound for the Mediterranean, who refused
to strike, and he had to fire thirty guns among them before
they submitted.2 About the same time, a States' man-of-war
convoying a fleet of Hollander merchantmen met Captain
Heaton, in the Sapphire, and did not strike until a shot
was fired. Heaton sent a message to the commander saying
that he had not fulfilled the articles of peace, and that the
keeping of his flag and top-sail aloft when within shot of
one of the ships of the State of England was a great abuse,
and a gross affront by the States of Holland to the Common-
wealth. To which the Dutch captain replied that if he had shot
back at the Sapphire he would have been quite justified, as,

1 Lawson, from the Fairfax, at Aberdeen, to the Admiralty Committee, 13th
May 1654. Same to Blackburn, 13th May. State Papers, Dom., Ixxi. 78, 79.

2 Cockraine to the Admiralty Committee, llth Aug. 1654. Ibid., Ixxiv. 39.

438 THE SOVEREIGNTY OF THE SEA

being on his own coast, he was not bound to strike, and had
done so not out of duty, but from "brotherly love," and he
then re - hoisted his top - sails and flag. Heaton deliberated
whether or not he should fight the Dutchman for doing this,
but refrained. He, too, wrote to the Admiralty asking how
he should act in similar cases in future.1

The authorities at the Admiralty were always sparing in
advice on such matters. They showed the same reticence
as the Government in defining the extent of the British seas,
and for the same reason — that they did not know themselves.
This reluctance was shown, and a partial glimpse afforded,
in a letter to General Montague (afterwards Earl of Sand-
wich) which Richard, Cromwell's son, wrote during his brief
tenure of the Protectorate. Telling him to demand "the
flag" of such foreign ships of war as he might encounter in
the British seas, he remarked that there had been "some
doubt " as to how far the British seas extend. Not unnaturally,
"Tumble -down Dick" shrank from plunging into a matter
which had puzzled the great Oliver and every one else.
"Not being willing," he said, "to determine that in our in-
structions, we rather put in general terms the 'British Seas'
only. We judge there is no question of all the sea on
this side the Shagenriffe ; 2 on the other side [the Baltic] you
have need be tender, and to avoid all disputes of this nature,
if it be possible, because war and peace depend on it." 3

Disputes about the flag were not the only differences that
arose on the sea. At the end of September 1654 complaints
came from Yarmouth that the English fishermen were being
molested by the Dutch in the herring fishery there. They
had come, it was alleged, with a multitude of busses, " far
above a thousand sail," and, contrary to the custom before
the war, "and against the laws of this nation," shot their
nets so close to the sands that the English were crowded

1 Heaton to the Admiralty Committee, 15th Aug. 1654. State Papers, Dom.,
Ixxiv. 61, 62.

2 The Skagerreef or Scaw, the north point of Jutland, Denmark. The ships
were going to the north in connection with the war between Denmark and Sweden.

3 Richard Cromwell, the Protector, to General Montague, 18th March 1659.
Thurloe's Collections, vii. 633.

THE PEACE NEGOTIATIONS

439

out and hindered in their usual fishing. The Dutch busses
jupied a space of more than forty miles adjacent to the
st, and the English fishermen were afraid to use their nets
they lost them. When they remonstrated with the
foreigners for coming so near the shore, they were vilified, and
muskets and " great guns " were shot at them.1 By the direc-
tion of Cromwell and the Council, the complaints were trans-
mitted to the ambassadors, who were still in London, and they
requested the States -General and the commanders of the ships
guarding the busses to make every effort to avoid giving
cause for complaint. In the inquiry which followed, the
Dutch fishermen denied the charges against them, and in
turn accused some of the Englishmen of shooting at them,
cutting their ropes, and calling them dogs, rogues, and devils.
They stated that they had carried on the fishing in the old
accustomed way, the English usually fishing peacefully along
with them.2

Under the Commonwealth and Protectorate very little was
heard of schemes for establishing fishery societies, such as
appeared and disappeared so frequently in the preceding
reigns and afterwards. That the Puritan spirit was not an-
tagonistic to projects of the kind was shown by proposals
made in 1649. One of these contemplated the employment
of Dutchmen to establish "a fishing trade" in England. It
was referred by the Council of State to Sir Henry Vane and
Alderman Wilson, with what result does not appear. Another,
briefly described, was to set up a fishing trade for the English
nation;3 and about this time the attention of some writers
on commercial matters was directed to the same end. The
only thing apparently effected was the gift to the Corpora-
tion of the Poor in London of some of the Dutch busses
captured in the war, to be used in fishing on the English
at. During this period of our history the Government

1 The Information of William Gunnell, and others, of Great Yarmouth, 25th
September 1654. Verbael of the Ambassadors, 600, 601.

2 Ibid., 612, 614, 646, 689, 711. From the sworn depositions made before the
Burgomasters of Enkhuisen, it appears that that town had at least 246 busses at
the Yarmouth fishing in 1654.

1 Brit. Mus. MSS. Stowe, 152, fol. 135.

440

THE SOVEREIGNTY OF THE SEA

had other things to think about than the launching of fishery
schemes. Cromwell, however, at the conclusion of the war,
renewed the licenses to the fishermen of Dieppe and Calais
to fish in the seas between England and France, at the usual
times and places.1

1 Proc. Council of State, 9th June 1654. Vice- Admiral Lawson, in transmitting
to the Admiralty the request from the Governor of Calais, said it had been the
practice for the French and Spanish men-of-war to suffer the fishermen of each
nation to fish freely, although the war between these Powers had lasted so long.
State Papers, Dom., xcviii. 13.

441

CHAPTER XII.

CHARLES II.
THE SECOND DUTCH WAR.

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

As in the reign of Charles I., it was therefore towards the
development of British fisheries that efforts were first directed.
The means taken with this view were twofold : the taxation of
imported fish which had been caught by foreigners, and the
creation of great fishery associations like those which had been
established earlier in the century. The Navigation Act, which
was passed a few months after the Restoration, while more
oppressive to Dutch commerce and shipping than the Act of
1651, was less stringent in this particular. The measure of the
Rump Parliament prohibited the importation or exportation of

442 THE SOVEREIGNTY OF THE SEA

fish, or its carriage coastways, unless such fish had been caught
by subjects. This prohibition was ineffective,1 and it was now
replaced by the imposition of double customs on all kinds of
dried or salted fish imported, if caught or brought by vessels
other than English.2 Three years later, the importation of
fresh herrings, cod, haddocks, and coal-fish was absolutely pro-
hibited unless they had been taken and imported in vessels
certified to be English.3 With the view of still further pro-
moting the fisheries, the same prohibition was afterwards ex-
tended to cured fish and certain other fresh fish,4 which
practically restored the provision of the first Act of 1651.
To a large extent these variations were due to the trade
rivalries that existed in England, the party which was
uppermost at the time forcing the measures that were most
in its interest.

Besides protective duties and monopolies, more direct means
of encouraging the fisheries were tried. The always attractive
idea was revived of establishing a great national fishery society,
which, on the one hand, would enrich those who supported
it with their purse, and on the other hand would increase the
prosperity and the power of the country. Simon Smith, who
had been the agent of the Royal Fishery Society in the reign
of Charles I., lost no time in presenting to the king his two
books on the subject, along with a petition in which he dwelt
upon the advantages that would accrue to the nation from the
labours of such an association.5 Smith recommended that all
the corporations and county towns in the kingdom should con-

1 Bills to repeal it were introduced into the Commons in 1656, 1657, and 1658.
Commons' Journals, vii. 451, &c.

2 An Act for the Encouraging and Increasing of Shipping and Navigation, 12
Car. II., c. 18, cl. v. 1660.

8 An Act for the Encouragement of Trade, 15 Car. II., c. 7, ss. xiii., xiv. 1663.

4 An Act against importing Cattle from Ireland and other parts beyond the Seas,
and Fish taken by Foreigners, 18 & 19 Car. II., c. 2, s. ii. Any ling, herring,
cod, pilchard, fresh or salted, dried or bloated, or any salmon, eels, or conger,
taken by aliens and brought into the realm, were liable to be seized by any person
for his own benefit and the benefit of the poor of the parish. The prohibition to
import stockfish and live eels was withdrawn by 32 Car. II., c. 2, 1680.

5 "To the High and Mighty Monarch Charles ye Second, &c., the humble
petition of Simon Smith, late agent for the Royall Fishing," MS. prefixed in a
copy of The Herring-Bvsse Trade, and A True Narration of the Royall Fishings of
Great Brittaine and Ireland, bound together in vellum, elaborately ornamented in
gold, and bearing the royal arms and the letters C. R. on both sides.

THE SECOND DUTCH WAR 443

jointly raise a stock to buy hemp and other materials to equip
busses, which were to be built at the seaports nearest to them
and sent to the fishing at Shetland; and he calculated, after
the usual fashion, that each buss would maintain twenty
families in work, " breed country youths to be mariners," and
cause many ships to be employed in exporting the herrings
and bringing back commodities.

Charles was apparently impressed by Smith's arguments.
Within two months of the Restoration he caused a letter to be
written to the Lord Mayor of London, referring to the good
done by the Society formed in 1632, "as by the book called the
Royal Herring Busse Fishing (sic) presented to him, plainly
appeared " ; requesting particulars to be obtained of all the poor
inhabitants within each ward who were in want of employ-
ment; requesting that the Lord Mayor and Aldermen should
raise a stock by a free subscription to fit out a buss or fishing
vessel for each ward ; and that storehouses should be built in
suitable places about the river Thames, provided with nets,
casks, salt, and all things in readiness. The busses were to
attend the fishing at Shetland, according to the "prescribed
orders in the aforesaid book," and the king declared he would
recommend the same course to all the cities and towns through-
out the kingdom, so as to make it a national employment.1

The assistance of Parliament was also called in. On 8th Nov-
ember 1660 the House of Commons remitted "the consideration
of the fisheries " to the Committee for Trade and Navigation,
who were asked to inform the House "what they thought
necessary for the regulation and advancement of that trade." 2
The Committee's report does not appear to have been preserved,
but on 8th December a " Bill for Encouraging the Fisheries of
this Kingdom" was introduced. It was remitted to a large
committee, including the members for the seaport towns, and

1 Sir Edward Nicholas to the Lord Mayor, 23rd July 1660. Remcmbrancia,
p. 143. There is an undated copy among the State Papers (Domestic) erroneously
calendared under September 1662 (vol. lix. 6 : compare vol. xli. 19, under date
September 1661). The original is in the Guildhall. Simon Smith was employed
in the preliminary work connected with the Society, and in 1662 rendered an
account of his disbursements, amounting to £456, including £150 "for setting the
poor to work so as to breed up teachers for making nets, &c." State Papers, Dom.,
liv. 77.

8 Commons' Journals, via. 179. State Papers, Dom., Charles II., xxi. 27.

444 THE SOVEREIGNTY OF THE SEA

being read a third time on 27th December, was sent up to the
Lords.1 It was, to a large extent, directed against fishing by
foreigners on the British coasts and the use of destructive
methods of fishing. One of its clauses prohibited trawling,
whether by subjects or foreigners, within eight miles of certain
parts of the coast. The fate of this important measure
was unfortunate. The Parliament was dissolved two days
after it reached the Lords, and nothing further was heard
of it.2

In the following year a measure dealing with the fisheries
was passed by the Scottish Parliament.3 The preamble con-
tained the common declarations as to the value of the fisheries
to shipping and commerce, to the navy, in the employment of
the poor, and as furnishing the materials for a great native
export. The Act provided for the formation of societies and
companies of free-born Scotsmen, each member to supply at
least 500 merks Scots as stock, and they were to receive various

1 Commons' Journals, viii. 203, 215, 222, 228. Lords' Journals, xi. 2286.
According to the Dutch ambassador, the Bill was nob passed without much debate
and opposition (De Witt's Brieven, iv. 68), no doubt principally owing to the
provisions concerning fish-days. An amendment was carried limiting Wednesday
to be a fish-day in all inns, taverns, and victualling houses.

2 Lords' Journals, xi. 239. De Witt's Brieven, iv. 66. The preamble was of
the usual kind : that the honour and greatness of the king and the power and
wealth of the kingdom depended upon shipping and commerce, the fisheries being
one of the greatest means thereto ; and it proceeded to say that the kingdom was
specially suited for fishery by reason of the number of harbours, and the sea from
which foreign nations took such great wealth, set their people on work, and made
their towns populous and prosperous. The foreigners were not content with a
temperate and moderate exercise of the liberty of fishing on our coasts, which was
permitted to them by favour of the king, but fished with illegal instruments which
served to destroy the brood of fish in some places, causing the greatest poverty ;
and in other places they came with whole fleets among the nets and boats of
subjects, to the great damage and hindrance of their lawful business. The king
was therefore most humbly beseeched to establish completely and vigorously and
maintain the rights of his crown over the seas, and to give such orders and instruc-
tions to the admirals and commanders at sea as might be necessary to this effect.
The first clause prohibited trawling, whether by subjects or foreigners, within eight
miles of the coast of Sussex and the coast to the westwards, and other clauses
prohibited the use of set-nets or other nets with small meshes on the coast " or
within half seas over," or the use of seines by foreigners within ten miles of any
part of the coast to the hindering of subjects in their fishing. Offenders were to
be brought in as prize. These provisions were in part aimed against the French.

3 Act for the Fishings and Erecting of Companies for promoting the same, 12th
June 1661. Ada Parl. Scot., vii. 259.

THE SECOND DUTCH WAR 445

privileges and immunities, including power to erect houses for
the fishing trade wherever it was most convenient, a "limited

o

allowance " to be paid for the ground. An absolute monopoly
of the export of fish, fresh or cured, was granted to the com-
panies; foreigners were prohibited from curing herrings or
white fish on land, or erecting booths for the purpose, — a pro-
vision aimed against the German merchants at Shetland, — but
encouragement was given to foreign fishermen to settle and
become naturalised in Scotland, and even to become burgesses,
and they were to be exempt from taxation for seven years.
The importation of everything required for the fishery, in-
cluding "Holland nets," was to be free of custom dues; the
exports were to be similarly exempted, and the "teind" and
"assize" herrings were to be remitted for nine years.

The provisions of this Act differed essentially from the
scheme proposed by Charles I. in 1630, which aroused so much
opposition, inasmuch as the companies were to be composed
solely of Scotsmen. The question of the territorial or
"reserved" waters belonging to Scotland was thus avoided.
It appears, indeed, that the Act was due to the representations
of the Royal Burghs, for in the preceding autumn they ex-
pressed a desire for the "erection of the fishing trade in
Scotland," and resolved to bring the subject before the next
Parliament.1 Little was done in Scotland under this Act.
A company was formed, which, however, seemed more desirous
of misusing its privileges than of fostering the fisheries, if we
may judge from a petition of the burghs to the Lords of the
Exchequer, praying that the company might be restricted to
import nothing but what was necessary for the fishing trade.
The town of Musselburgh also was empowered to equip busses,
and various towns in Fife applied for and received permission
to fish in the northern seas. The Scottish society became an
incubus, and in 1690, when its function seems to have shrunk
to the mechanical exaction of a tax of £6 Scots per last

1 Records Convent. Roy. Burghs, Hi. 523, 15th September 1660. The commis-
sioners, taking into consideration how advantageous it would be to the increase
of trade and the common weal of the whole burghs and kingdom "that the
fisching tread be erected within the samyn, and wnderstanding by thair registeris
and wther paperis in thair clarkis handis that the said tread hes bein endevoured
in former tymes but not takin full effect," instructed that the records be searched,
and the matter represented to Parliament.

446 THE SOVEREIGNTY OF THE SEA

of herrings exported from Scotland, the Act under which it
had been formed was repealed.1

In England the efforts to establish a fishery association met
with but little more success, although the king showed an
active interest in its promotion. On 22nd August he issued
a commission under the great seal, appointing his brother,
the Duke of York, and twenty-nine noblemen, including all
the great officers of the Court, with six others, as the " Council
of the Royal Fishery of Great Britain and Ireland," to which
he assigned various privileges and monopolies. To encourage
the building of busses, the king "requested" that wharfs,
docks, and storehouses should be built on the Thames and
in all the ports of the kingdom for their accommodation
and use ; all the " returns " or commodities brought back

* o

from foreign lands for the fish exported were exempted from
customs for seven years; all victuallers, inns, alehouses,
taverns, coffee-houses, and the like, were to be bound to take
from one to four, or more, barrels of herrings from the society
yearly at thirty shillings a-barrel, " until foreign vent be
attained to perfection " ; each barrel of pickled herrings or
cod-fish brought into the realm by the Flemings, or others,
was to be taxed half-a-crown, the tax to be paid into the
coffers of the society, and the protection of the State was
to be given to their fishing vessels and the vessels employed
in exporting fish. It was further provided that the money
necessary for the scheme should be obtained by a lottery,
to be set up for three years, and by a collection in every
parish in the kingdom.

A few days later, Charles issued letters-patent saying that he
had requested a bountiful subscription from London to fit out
fishing vessels, which should belong to the wards, and recom-
mending the same to the whole country, as the Hollanders had
,so engrossed the fisheries that the fishing towns were greatly
decayed ; the local officers were to see to the collections being
made, the monies to be paid to the high-sheriff and by him
remitted to the Earl of Pembroke, who was appointed treasurer.
Those who subscribed to the stock were to pay their money
in three instalments to Mr Thomas King, a London merchant

1 Rcc. Conv. Roy. Burghs, iii. 626. Acta Parl. Scot., vii. 64, 103, 195, &c.
Ibid., William and Mary, c. 103.

THE SECOND DUTCH WAR

and member of Parliament, who became the moving spirit
in the project ; and the adventurers were to have the option of
withdrawing after three years, on giving six months' notice.1
Literary puffs were not neglected. A highly-coloured account
of the value of the Dutch fisheries (founded mainly on the
Raleigh tract) and of the rosy prospects of the society was
published "by command." The cost of a buss, equipped
and provisioned for four months, was set down at £835 ; the
herrings caught in that time were calculated to fetch a round
£1000, giving an immediate profit of £165 after meeting all
expenses.2

Notwithstanding the active support of the Court and the
energy of many agents, subscriptions to the fishery society
filtered in but slowly. The sum collected for it in the London
churches in the year 1661 amounted to the paltry total of
£818, 6s. 4£d. — scarcely enough to set forth one buss, — and in
the autumn of 1664 it was reported that the amount collected
throughout England and Ireland was only £1076. The lottery,
too, from which a great deal was hoped, gave rise to much
corruption, confusion, and dispute, without notably enriching
the society.3 In these depressing circumstances recourse was
again had to Parliament. On 5th March 1662 a "Bill to
confirm his Majesty's letters patent concerning the fishing
trade" was introduced into the House of Commons and re-
mitted to a committee; but it ultimately became transformed
into a mere local Act dealing with pilchard-fishing.4 The
king was not yet discouraged. The Masters of the Trinity
House were consulted in July as to the cost of ten busses
he had resolved to build, and the amount required — £9000 —
was actually handed over to Mr Thomas King. Charles
further offered to pay £200 to every person who had a new

1 State Papers, Dom., xli. 20.

2 IX0VO0HPA, or the Royal Trade of Fishing, Discovering the inestimable Profit
the Hollanders have made thereof, with the vast Emoluments and Advantages that
will redound to his Sacred Majesty and his three Kingdoms by the Improvement of it.
Now seasonably published by Command for the Benefit of the Nation. London, 1662.

3 State Papers, Dom., 1663, Ixxiii. 56 ; Ixxxvi. 104, 105, 106 ; xci. 53 ; ciii. 130 ;
cix. 2. " But Lord ! " says Pepys, " to see how superficially things are done in the
business of the Lottery, which will be the disgrace of the fishery, and without
profit." Diary, iv. 369 (ed. 1893).

4 Commons' Journals, viii. 378, 383. 14 Car. II., c. 28.

448 THE SOVEREIGNTY OF THE SEA

English-built fishing-buss ready for the fishing before the
middle of the following year.1 To facilitate the success of
the society on the foreign markets, an Act was passed in
1663, after considerable discussion, to make the use of the
Dutch system of curing and packing herrings compulsory,
so as to avoid abuses, and bring the English-cured herrings
into repute.2

At a meeting of the Privy Council a few months later,
Sir William Batten, Sir Richard Chaterton, and Sir William
Ryder were appointed to formulate proposals for the organ-
isation of the Royal Herring Fishery, and, after consultation
with Simon Smith and Mr Thomas King, it was resolved to
adopt the Dutch system and regulations and to go on with
the scheme.3 The next step was the issue by the king in the
spring of 1664 of another commission under the great seal, by
which the Duke of York and thirty-six assistants were incor-
porated as Governors and Company of the Royal Fishery of
Great Britain and Ireland ; the Lord Mayor and the Chamber-
lain of the City of London were appointed treasurers.4

In spite of all efforts, such as they were, extremely little
was done by the society before the outbreak of the second
Dutch war. The slovenly way in which the business was
managed and the corruption in regard to the finances were
notorious. Pepys, who was a member of the council of the
society, and had grave misgivings as to the issue of their
labours, gives amusing glimpses of the proceedings in his
Diary. He examined the accounts, and declared that "the
loose and base manner that monies so collected are disposed
of in, would make a man never part with a penny in that
manner." The Duke of York and the members did not
even meet to read the king's commission until July, and

1 Lord Southampton to the Masters of the Trinity House, 31st July 1662. The
Masters to the Lord Treasurer, 23rd August. The Lord Treasurer to the king,
2nd Sept. State Papers, Dom., lix. 7 ; Entry Book, vii. 258. Pepys' Diary, ii.
403, 404.

2 Commons' Journals, viii. 497, &c. Lords' Journals, xi. 555, &c. 15 Car. II.,
c. 16. All herrings, white or red, were to be " justly and truly packed, and of one
time of taking, salting, saving, or drying, and equally well packed in the midst and
every part of the barrel." This was to be done by a sworn packer, and the barrel
branded after the Dutch method.

3 John Collins, Salt and Fishery, 2. 1682.

4 State Papers, Dom., ciii. 130.

THE SECOND DUTCH WAR 449

the later meetings were often futile from the want of a
quorum. "A sad thing it is to see," says Pepys, "so great
a work so ill followed, for at this pace it can come to
nothing but disgrace to us all."1

The failure of the attempt to establish a great national
fishery to expel the foreigner from the British seas, after five
years' endeavour, was very agreeable to the Dutch, who had
watched the proceedings with close attention, and had tried,
openly and secretly, to hinder success whenever they had an
opportunity. Immediately after the Restoration, the States-
General, anxious to come to a good understanding with Charles,
sent special ambassadors to London to arrange a treaty of
friendship and alliance, and to renew previous treaties.2 The
negotiations which ensued dealt, among other things, with the
fisheries, the flag, and the sovereignty of the sea. The object
of De Witt, the great Dutch Minister, was the usual one of
his countrymen on similar occasions — viz., to secure as far as
possible the commercial and other privileges which had been
granted by the Intercursus Magnus. Charles, on the other
hand, wished at the very least to retain all the concessions
that Cromwell had secured by the treaty of 1654.3

When the Dutch ambassadors arrived, or at all events when
they began negotiations in London, the House of Commons
had already taken up the question of the fisheries. Action of
this kind always occasioned the Dutch anxiety. They knew
it was directed against their predominance in a vital industry,
and that it was usually followed by troublesome claims to
the sovereignty of the sea and to an exclusive fishing on
the British coasts. Here were all those questions raised in
threatening fashion in the Bill passed by the Commons and

1 Diary, vol. iv. 177, 192, 233, 263, &c.

2 The ambassadors were Van Beverwaert (Louis of Nassau), Simon van Hoorn,
the burgomaster of Amsterdam, Michael van Gogh, and Joachim Ripperda. Pon-
talis, John de Witt, i. 263. Brieven, geschreven ende ge^visselt tusschen de Heer
Johan de Witt, Raedt-Pensionaris en Oroot-Segelbewaerder van Hottandt en West-
Vriedandt, ende de Gevolmaghtigden van den Staedt der Vereenigde Nederlanden,
&c., iv. 1, 46.

3 De Witt's Brieven, iv. 109, 119. Clarendon's Memoirs, iii. 434. There are
numerous papers referring to these negotiations and the subsequent treaty, includ-
ing "the articles which the States' Ambassadors Extraordinary are to procure
from his Majesty of Great Britain," among State Papers, Foreign Treaty Papers
(Holland), 1651-1665, Bdl. 46.

2 F

450 THE SOVEREIGNTY OF THE SEA

sent up to the Lords. Moreover, English privateers, sailing
under Swedish colours, had lately been seizing Dutch herring-
busses, and though protests were made by the ambassadors, no
redress was obtained.1 The debates and proceedings in the
House of Commons attracted immediate attention in Holland.2
De Witt at once took up a firm attitude. He declared that
the new pretension of England to the dominion of the seas and
for the ruin of the Great Fishery would meet with the most
determined resistance of the Republic; and, while consoling
himself with the thought that reason had always prevailed
against it in the past, he urged the ambassadors to use every
means in their power with the Peers and the king in order
to frustrate it. The Marquis of Ormonde, who was an intimate
friend of Beverwaert's and one of Charles's Ministers, was bribed
to use his influence to the same end. This nobleman informed
the ambassador that when he was asked to favour the fishery
project, he had answered that while he desired the advantage
of the nation as much as any man, it would be first necessary
to prepare for war, as it was in reality an affair of state ; and
he took credit with his Dutch friend for having induced many
members of Parliament to oppose the Bill.3 Whether these
intrigues had any influence in causing the fishery question to
be so frequently "laid aside" in Parliament can only be surmised.
So much concerned were the States-General about the pro-
visions of the Bill, that they despatched a special letter to be
presented to the king, in the hope, as De Witt said, that the
resolution of the Commons might be suspended and its execu-
tion prevented.4 But when it became known in Holland that

1 Res. Hott., 13th Sept. 1659, 261. Ibid., 1660, p. 749 ; 1661, p. 181.

2 Hollantsche Mercurius, 1661, pp. 9, 10. De Witt's Brieven, iv. 48, 61, 68, &c.

3 De Witt to Van Beuningen. . ,ece — ; the same to Van Beverwaert and

6 January lobl

Van Hoorn, ^ Jan. 1661 ; Van Beverwaert to De Witt, ^, ^ Jan. 1661. Brieven,

i. 344 ; iv. 65, 66, 68. Pontalis, John De Witt, i. 267.

4 " Dutch Ambrs Memoriall desiring the Act of Parliament about fishing may
not pass," 17th Dec. 1660. Copy in S. P., Dom. Collection, Chas. II., vol. 339,
p. 581. It is to the effect that the extraordinary ambassadors were informed that
a Bill had been introduced into the Lower Chamber regarding the herring fishery,
in which foreigners were to be prohibited from fishing within eight or ten
"leagues" ("huietou dix lieue's") from the coast, and praying the king to pre-
vent the said Bill from becoming an Act of Parliament. It contains the usual
arguments as to immemorial possession, treaty rights, &c.

THE SECOND DUTCH WAR 451

the Bill had been shelved by the dissolution of Parliament, and
that Charles was unlikely to summon another Parliament for
a long time, the ambassadors were told to withhold it, but at
the same time to make its substance known to the Ministers,
so that the king might learn of it indirectly. They were also
warned to say nothing, in the negotiations for the treaty on
which they were engaged, that might allow it to be supposed
that the right of the Dutch to fish in the seas around the coast
of England was derived from any treaty or compact, or from
any concession on the part of England. On the contrary, it
arose jure proprio from the law of nature and the law of
nations, the stipulation in the treaty of 1495 merely expressing
this mutual right of free fishery with the view of preventing
violence on either side.

The negotiations dragged on slowly. The English com-
missioners showed no anxiety to discuss the questions of the
fishery, commerce, or navigation, about which the Dutch were
most concerned. Taking their stand on the Navigation Act,
which Parliament had recently passed, they declined to listen
to any proposal for free fishing on the English coast. The
Dutch ambassadors grew hopeless of being able to conclude a
treaty satisfactory to the States, and this feeling was strength-
ened by the jealousy and resentment which the English began
to manifest concerning the simultaneous negotiations that were
going on between Paris and The Hague.1 Foreseeing the
difficulties likely to arise with England over the fishery ques-
tion, De Witt had made a dexterous move. In the negotiations
with France for a treaty between the two countries, he proposed
that an article should be inserted reciprocally guaranteeing the
right of free fishing in the sea to the subjects of each nation
against any that might endeavour to interfere with it. A
similar proposal had been made to France in 1653, but was
rejected owing to the desire of the French Government to avoid
irritating Cromwell.2 Even now, when international conditions
were more favourable for its acceptance, the French looked
askance at it, and asked the States to define precisely their
position as to the right of fishery. They said in reply that

1 Brieven, i. 344 ; iv. 66, 69, 81, 87, 89, 105, 109.

2 Boreel to De Witt, *?£**' 1653. fbid., i. 54.

O JJ6C.

452 THE SOVEREIGNTY OF THE SEA

they claimed the right of fishing in the open sea by the law
of nations ; that it was a right independent of any treaties,
which merely illustrated and explained it, and was like the
liberty of commerce and navigation — free and open to all.
The two countries should therefore, it was urged, agree
mutually to support one another in the free exercise of this
common right. In substance this was clearly a demand that
France should combine with them to resist the English pre-
tension to the sovereignty of the sea, on the point in which
it chiefly affected the United Provinces — namely, the fishery.
The French met it by suggesting that, as a quid pro quo, the
States should guarantee them in the same way against the
claim of the English to make French ships lower their flag to
them in the narrow seas. France, as we have seen, was not
troubled by England about the fishery, although many French
vessels fished off the English coast. On the other hand, the
Dutch had formally agreed to strike to English ships by the
treaty of 1654, — a ceremony that France declined to render,
and avoided as far as possible. De Witt saw that if the States
gave the guarantee desired, it would place in the hands of the
French the power to compel them to take up arms against
England at any time they chose, and he instructed the Dutch
ambassadors, if they could not evade the proposal altogether,
to request a declaration, in writing, of the precise claims con-
cerning the striking of the flag which the King of France put
forward as against the King of England. He said the obliga-
tion of the States to strike was indisputable ; but it was not
a recognition of England's pretended dominion of the sea, but
merely a formal deference that republics had always shown to
monarchies. De Witt privately expressed the opinion that the
French would hesitate to formulate in writing any claim of
that kind, and the result proved his foresight. The French
ambassador in London made certain overtures to Charles with-
out receiving a satisfactory reply, and the French proposal for
a guarantee about the flag was dropped.

A diplomatic tussle then took place as to whether the word
"fishery" should appear in the treaty. The French were
anxious to keep it out, and the Dutch as desirous that it
should be expressly included. Later, De Witt seemed disposed
to concede the point, provided other words could be found

THE SECOND DUTCH WAR 453

which would " clearly stipulate, in express terms, that if their
subjects were molested in their fishery the French would carry
out against those who molested them the guarantee promised."
At this stage, however, — March 1662, — the Dutch towns insisted
on the fishery guarantee being absolutely explicit. The states
most concerned — Holland and West Friesland — unanimously
passed a resolution that if France refused to agree to the word
" fishery " being inserted, the negotiations should be broken off
and the ambassadors recalled. Louis XIV. then gave way.
" I must admit," he wrote to his ambassador in London, " that
I ' have the same interest in this guarantee as the Dutch, since
the right of fishing may just as well be refused by England to
my subjects as to those of the States-General.1 The treaty was
signed on 27th April 1662, and in the fourth article the two
contracting Powers mutually agreed to assist one another in
protecting their fishermen from those who might molest them.2
The stipulation in the treaty with France was a notable
triumph for De Witt. For the first time in their history
the Dutch had succeeded in formally binding another Power
to help them in resisting the English claims to the sover-
eignty of the sea, so far as concerned the liberty of fishing.
Should Charles II. wish to emulate the exploits of his father
by sending a fleet to force licenses on the Dutch herring-
busses, he would now have to reckon on the combined opposi-
tion of France and the United Provinces. The triumph was,

1 Letters from Van Beuningen to De Witt, ^ Feb. 1661 to |^|^ 1662 ; from
De Witt to Van Beuningen, ^ Oct. 1661 to || March 1662. Brieven, i. 432-514.

Secreete Resolution van de Stouten van Holland en West- Vriesland, ii. 246. Pon-
talis, John de Witt, i. 276. Pontalis scarcely grasps the question of the fishery
when he says : " The free right of fishing still more directly concerned the States-
General ; they could not prevail in England to allow them the enjoyment of it,
so long as it had not been accorded to them by France, and they therefore made it
a condition of their treaty with Louis XIV."

2 Dumont, Corps Diplomatique, VI. ii. 412. Aitzema, Saken van Staet en Oor-
logh, x. 305. The article was as follows : " IV. L'obligation reciproque de
s'entr'aider et deffendre, s'entend aussi pour estre Sa Majeste" et lesdits Seigneurs
Estats Generaux, leurs Pays et Sujets, conservez et maintenus en tous leurs Droits,
Possessions, Immunitez et Libertez, tant de Navigation, que de Commerce et
Peche, et autres quelconques par Mer et par Terre, qui se trouveront leur appar-
tenir par le Droit commun, ou estre acquis par des Traitez faits ou a faire, en la
maniere susdite, envers et contre tous Roys, Princes, Republiques, ou autres Estats
Souverains," &c.

454 THE SOVEREIGNTY OF THE SEA

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

1 " Herr Downingh de voorsz. antwoorde begonde te justificeren, door de gepre-
tendeerde Souverainiteyt van de Engelschen op de Zee, . . . ende hebbe ick rondt
uyt verklaert, dat eer wy die imaginaire Souverainiteyt souden erkennen, ofte by

THE SECOND DUTCH WAR

455

The inflexible attitude of De Witt, and the actual con-
clusion of the treaty with France, extinguished for a time
the hope of compelling the Dutch to acknowledge the right
of England to the exclusive fishing along her coasts, and
the proposal was not pressed upon the ambassadors in London
during the dilatory negotiations for the Anglo-Dutch treaty.
With regard to the striking of the flag, Charles received
more satisfaction. The tenth article of the treaty, which
was signed at Whitehall on ^ September 1662, stipulated

that Dutch ships, whether men - of - war or others, should
strike their flag and lower their top-sails on meeting an Eng-
lish man-of-war on the British seas. It was indeed precisely
the same clause as that contained in Cromwell's treaty of
1654, except that certain verbal alterations were made in
accordance with the change in the form of the English
government.1

In the earlier years of the reign of Charles II., compara-
tively little was heard of disputes about the flag, which
afterwards became so frequent and important. One instance
occurred in 1662, when a Dutch vessel that was in Yarmouth
Roads without a commission was taken to the Downs for
refusing to lower her sails to a king's ship.2 A case of much
greater interest happened in the previous year, when Captain
R. Holmes, in command of the Royal Charles, allowed the
ship of the Swedish ambassador to pass him on the Thames
without compelling it to strike. As the English Admiralty
were always punctilious in enforcing the salute on state occa-
sions, as when a foreign ambassador was concerned, Holmes

maniere van concessie van de Engelschen ontfangen, die vryheydt tot het bevaeren
ende bevisschen van de Zee, die ons van de nature, eiide nae 't Volckeren-reght
competeerde, wy alle den laetsten druppel bloedt daer by souden laeten." De

Witt to Van Beverwaert and Van Hoorn, ^ June 1661 (Brieven, iv. 144) ; the
same to Van Beuningen, — Dec. 1661 (ibid., i. 471).

1 bunion t, op. cit., VI. ii. 424. "X. Item, quod naves et navigia dictarum
Fccderatarum Provinciaruin, tarn bellica et ad hostium vim propulsandam in-
structa, quam alia, quae alicui e navibus bellicis dicti Domini Regis Magnse
Britannise in maribus Britannicis obviam dederint, vexillum suum e mali vertice
detrahent, et supremum velum demittent, eo niodo quo ullis retro temporibus,
unquam observatam fuit."

8 State Papers, Dom., Iv. 14.

456 THE SOVEREIGNTY OF THE SEA

for his remissness was deprived of his command.1 The case
of Holmes had some interesting consequences. It revealed
once more the want of precise knowledge at the Admiralty
as to the rules which should be followed in making foreign
ships strike their flag. The Duke of York, who was the
Lord High Admiral, was himself ignorant on the point, and
he asked the principal officials about it — Sir George Carteret,
the treasurer ; Coventry, his own secretary ; Sir William Batten
and Sir William Penn, commissioners of the navy and experi-
enced naval officers ; and lastly Mr Pepys, who was the clerk
to the navy. It appears, however, that though they all
" did do as much as they could," the information they possessed
was of the scantiest kind. Pepys tells us that he knew
nothing about it himself, and was forced "to study a lie"
by fathering an improbable story on Selden, on the spur
of the moment; but on the same evening the genial diarist
bought a copy of Selden's Mare Clausum and sat up at
nights diligently studying it, with the view of writing a
treatise "about the business of striking sail" to present to
the Duke. After nearly six weeks' inquiry and cogitation
the Admiralty officials "agreed upon some things to answer
to the Duke about the practice of striking of the flags,"
which encouraged Pepys to persevere with his treatise, but
it was never completed.2

A case of greater international importance occurred in the
Mediterranean in the following year. Vice- Admiral Sir John
Lawson was co-operating with De Ruyter against the Algerine
pirates, and when the fleets met, the Dutch admiral saluted
the English flag with guns and by lowering his own flag.
Lawson returned the guns, but he did not strike his flag, as
was the custom in distant seas, and De Ruyter, indignant at
the slight, resolved not to strike his flag in future either, on

1 State Papers, Dom., xliv. 64. Pepys' Diary, ii. 135, 151. According to Rugge
(Brit. Mus. Add. MSS., 10, 116), quoted by Lord Braybrooke, Holmes insisted
upon the Swede's lowering his flag, and had even fired a shot to enforce the
observance ; but the ambassador sent a message to the English frigate to assure
the captain, on the word of honour of an ambassador, that the king by a verbal
order had given him leave and a dispensation, and upon this false representation
he was allowed to proceed. The Swedes, it may be added, were always disinclined
to strike to English ships.

2 Pepys' Diary, ii. 145, 146, 148, &c.

THE SECOND DUTCH WAR 457

the ground that he was not in British waters, and that he
had verbal orders which authorised him in refusing. When
De Witt heard of his intentions, he immediately sent instruc-
tions in the name of the States of Holland strictly to observe
the treaty, and declaring that the lowering of the flag must
not be confined to British waters, since that might be inter-
preted into subjection to English dominion of the seas. If the
English admiral again declined to lower his flag in return,
De Ruyter was merely to report the fact to the States.1
The action of De Witt was not designed simply to avoid
a- quarrel. As will be seen later, it expressed his settled con-
viction and the fixed policy of the Republic on this thorny
subject.

All such questions as to the flag and the fisheries were
soon submerged in the second Dutch war. The causes
which brought it about were at root the same as those
which had led up to the first. Commercial jealousy was
always a smouldering flame, ready to burst into a great
conflagration. The English believed that the Dutch had
juggled them out of their trade and trading rights in several
quarters of the globe, and with some reason. But probably
the real motive was succinctly stated by Monk, now Duke
of Albemarle, when he said that the essential cause of the
quarrels between the two nations was that the English wanted
a larger share of the trade of the Dutch. Charles himself,
like his great Minister, the Chancellor Clarendon, seems to
have been disinclined to the war, which, however, was advo-
cated strongly by the Duke of York, who supported the
contention of the merchants that it would benefit English
commerce. Accusations were levelled against the Dutch of hav-
ing by fraud and stratagem driven English trade almost entirely
from the East and West Indies, and greatly reduced it in
the Mediterranean and in Africa. These complaints were
echoed in Parliament, and in April 1664 a resolution was
passed by the two Houses declaring that the wrongs and

1 Pontalis, op. cit., i. 313. It would appear that on a previous occasion Lawson
had returned the salute with the flag, for in the controversy with France on the
striking of the flag a few years later, the Dutch stated, as an instance of the
custom with England, that Lawson had shown this courtesy to De Ruyter off
Tangiers. De Witt's Brieven, ii. 474.

458

outrages committed by the Dutch on our merchants in India,
Africa, and elsewhere were "the greatest obstruction of our
foreign trade," and that the king should be asked to "take
some speedy course for redress." John de Witt fruitlessly
endeavoured by all honourable means to avert hostilities.
The warlike and marauding expedition of Holmes (now
restored to favour) against the Dutch settlements on the
west coast of Africa and in America was followed, as it
was bound to be, by the retaliatory expedition of De Ruyter,
which gave the English the pretext for declaring war in
the spring of 1665.1

The war was exceedingly popular in England, and large
sums were willingly voted by the House of Commons. Pepys
tells us that the Court were "mad" for it, and another con-
temporary writer says it was the universal wish of the people.2
Thus no appeal to the national passion of Englishmen about
the sovereignty of the sea was required on this occasion, and
such references as were made to the subject were of a formal
kind. One of the accusations which the Parliament flung
at the Dutch was that they had " proclaimed themselves Lords
of the South Sea; and, in contempt, shot at and use other
indignities to our royall flag, thereby affronting his Majesty
and this nation." Then, in the preamble of the Act granting
money for the equipment of a fleet, it was declared to be " for
the preservation of his Majesty's ancient and undoubted sov-
ereignty and dominion in the seas";3 and in his instructions
to the Duke of York as Lord High Admiral, the king said
the great fleet he had prepared was "to assert his right to
the dominion of the Narrow Seas," and for the mastery of
the sea and the security of navigation.4 But these phrases
were to be expected. For the same reason, popular literature
on England's dominion of the seas was on this occasion scanty,

1 Commons' Journals, viii. 548, 553 ; Lords' Journals, xi. 599, 614 ; Parlt. Hist.,
iv. 291, 308 ; Clarendon's Memoirs, ii. 235-237, 288 ; Hume, Hist, of England,
Ixiv. ; Pepys' Diary, iv. 31, 42, &c. ; Pontalis, John de Witt, i. 309.

2 The Dutch Drawn to the Life, 1664. " Never was anything so unanimously
applauded by men of all persuasions and interest as a Dutch Warre, which is the
universal Wish of the people."

:) 16 & 17 Car. II.

4 The king to the Duke of York, 22nd March 1665. State Papers, Dom.,
cxv. 76.

THE SECOND DUTCH WAR 459

though some attempts were made to excite national animosity
by the familiar arguments.1

The general course of the war, in which France, and then
Denmark, combined with the United Provinces against England,
does not concern us here.2 It did not add fresh laurels to the
brow of Charles II. as Sovereign of the Sea. Three great
sea-fights took place — off Lowestoft, on 13th June 1665 ; in
the Straits of Dover, from llth to 14th June 1666 (the Four
Days' Battle) ; and off the North Foreland, on 4th August in the
same year. In the first and last the English were successful ;
in' the Four Days' Battle the advantage lay with the Dutch;
but the war ended in naval disaster and national humiliation
for England. In June 1667, when the plenipotentiaries were
quietly sitting at Breda leisurely engaged in arranging terms
of peace, De Ruyter, with Cornelius the brother of John de
Witt, suddenly appeared in the mouth of the Thames, and
sent up a squadron which seized Sheerness and Chatham, and
might have gone to London Bridge for all the king could
have done to prevent it. They burned the best ships of
the great fleet which was to have " asserted England's domin-
ion of the sea " ; London was paralysed with consternation
and amazement, — Pepys locked his father and wife in a bed-
room to save them from the perils of a sack, — and while
Monk, the one stout heart among them, posted down to
Gravesend "in his shirt," the libertine monarch was engaged
with his mistresses in pursuing " a poor moth " about the
supper-room ! For many weeks afterwards, until the peace
of Breda, De Ruyter rode triumphant in the narrow seas, and
England was in terror of a French invasion, not knowing of
the ignoble intrigue in which Louis and Charles were now
engaged.

Passing from these notorious blots on English history, and
before considering the relevant business in the negotiations

1 The author of The Dutch Draion to the Life expatiated on the inestimable
benefit the Dutch derived from the British seas by encroaching on our fisheries, and
asserted that the only way to keep them under was " by commanding the narrow
sea, their coast and ours," — the narrow sea, according to this writer's view, or at
least the "right and dominion of England," extending as far as the Mediterranean
(p. 75).

- See Mahan, The Influence of Sea, Power upon History ; Colomb, Naval Warfare ;
Pontalis, op. cit. ; Clarendon's Memoirs, ii. 111.

460

THE SOVEREIGNTY OF THE SEA

for peace, a word or two must be said of some of the minor
events and consequences of the war. During its continuance
the fisheries of England, and still more those of the United
Provinces, suffered severely. In January 1665, before war
was declared, but when it was obvious it might break out
at any moment, the States-General laid an embargo on the
fisheries and on all shipping, — a measure which, it was re-
ported in England, furnished them with 30,000 men for their
navy. The stoppage of the fishing was a heavy blow to
those dependent on it, and advantage was taken of the fact
by the English, who tempted the Dutch fishermen by offer-
ing licenses, for a nominal payment, which would enable
them to fish notwithstanding the war. The States of Holland,
however, forbade the acceptance of the obnoxious licenses, " con-
sidering that it might be of very dangerous consequence, as
making the inhabitants of these countries indirectly tributary
to the King of England"; and the treasurer of the herring
fishery at Maassluis, who had purchased some of them, was
severely censured and forbidden to make use of them. Not-
withstanding this patriotic resolution, it appears that private
cupidity in some cases prevailed, and a few licenses were
accepted in the following year. One of these, dated 21st
November 1666, was granted on the petition of one, Gisbert
Petersen, of "Scheveling" (Scheveningen), the captain of
the " sailing waggons " of the Prince of Orange, who " wafted "
the king on board his fleet at the Restoration. It gave him
authority, in his vessel, the Young Prince of Orange, "to
fish in any part of our seas, not being within . . . leagues
of land," and to carry the fish which were caught to Holland ;
and in certain circumstances he was to have the freedom of
English ports. The Scandinavian name of the recipient, and
the circumstances recited, throw doubt on the genuineness of
< the case. The license was renewed on 7th June 1667.1

A much more interesting concession for fishing in all parts
of the British seas, irrespective of distance from shore, was
granted by Charles in the same year, though not to subjects

1 Groot Placaet-Boeck, inhoudende de Placaten cnde Ordonnantien van de H. M.
Heeren Staten Generael der Vereenighde Nederlanden, iii. 291-293. Resol. Holl.,
IC85, 24, 59, 78, 210, 383. State Papers, Dom., cxiv. 104. Ibid., Warrant Book,
18, p. 213 ; 23, pp. 283, 475. Ibid., clxxviii. 172.

THE SECOND DUTCH WAR

461

of the United Provinces. The citizens of Bruges, in Flanders,
where the king had received friendly treatment when in exile,
petitioned him to allow all the sworn burgers and citizens
of that city to fish " freely and frankly " at all times, to the
number of fifty busses or other vessels fit for fishing, on the
seas and coasts of his kingdoms; to enter the ports and
rivers to buy necessaries, for shelter, and to dry their nets,
and to depart without molestation, on giving security not
to sell fish to his enemies.1 Charles granted them a charter
under the great seals of England and Scotland, giving them
liberty to fish with fifty vessels at a time for herrings or any
kind of fish in the British seas, up to the coasts or shores,
with the privilege of drying their nets on land, and using
English or Scottish ports in security. The Duke of Lennox
and Richmond, the High Admiral of Scotland, and others
concerned were commanded to treat the vessels of Bruges
with friendship, "in whatever part of the sea, whether near
the shores, in rivers, or ports " they might be.2 The fishermen
of Bruges continued to fish near our shores, in terms of this
charter, and even from our harbours, until 1850, and the
charter was regarded by the English authorities as spurious.3
By granting this charter, it is not unlikely that Charles
also hoped to strike a blow at the fisheries of the Dutch
Republic. While refusing to allow their subjects to accept
any compromising English license or concession for fishing,
the States-General tried to bring about a mutual and equit-
able arrangement. Early in 1665 they issued instructions
that English fishermen should not be attacked till further
orders; and in October of the same year — that is, when, in
peaceful times, Dutch fishermen would have been taking
part in the profitable fishing at Yarmouth — one of their

1 S. P., Dom. Collection, Chas. II., vol. 339, p. 591. It is a copy in English.
The petition was from the " Burgomasters, Eschevins, Counsellors, and the rest of
the body of Citizens."

2 ' ' Warrant to ye Lord Chancellor for affixing ye great seale to an instrument
containing a grant of fishinge in these seas for a certain number of boates belong-
ing to ye City of Bruges, yearely," July 17, 1666. State Papers, Warrant Book, 23,
p. 27. " Patent in favour of the Citie of Bruges in fflanders for a libertie of fishing
in the British Seas with 50 saill of ships," 29th August 1666. Advoc. MSS., 25. 3. 4.
The draft or copy of the Royal Letter which followed upon the Warrant is given
in Appendix N.

3 See p. 617.

462

THE SOVEREIGNTY OF THE SEA

naval officers delivered an official letter to the Bailiffs of that
town, intimating that orders had been given to all their
admirals, commanders, and captains at sea that no English
fisherman was to be molested, and expressing a hope that
a similar Christian forbearance (medelijdentkeyt) might be
shown to Dutch fishermen on the part of England. No
answer was returned, but an emphatic response was made
a week or two later when the Sapphire seized several Dutch
fishing vessels and brought them into port, — a circumstance
which also shows that the embargo had not been strictly
observed.1 In the following year the embargo was officially
continued, the " small " or fresh - herring fishery carried on
along the coast being excepted;2 but after the defeat of the
English fleet in the beginning of June, the deep-sea fishing
appears to have been partially resumed. Early in August
reports reached London from Yarmouth and Whitby that the
Holland busses and doggers were fishing off the land, and had
been seen by our fishermen. They were said to number 400
and to be guarded by eight conveyers, and it was rumoured
the English fleet had gone in pursuit and sunk eighty busses ;
and a few doggers were in reality brought in. It was again
reported later that a fleet of busses was fishing off the coast
of Suffolk, attended by seventeen ships of war.3 If the
retaliation of the Dutch was less effective, it was because the
English fishermen carried on their industry close to their
own ports; to which, moreover, they were often confined by
fear of the Dutch privateers, which boldly hovered about
the coast, and the sight of a sail was enough to frighten them
back.4 After Van Ghent had burned the English ships in

1 Resd. Hdl., ^ Jan. 1665, p. 54. HMantsche Mercurius, 15th Oct. 1665, p. 143.

State Papers, Dom., 4th Nov. 1665, cxxxvi. 35.

2 Oroot Placaet-Boeck, iii. 295, 296.

3 State Papers, Dom., clxvi. 8, 46, 77, 100 ; clxvii. 148 ; clxxv. 146 ; clxxxi. 113.

4 Ibid., clxxi. 30 ; clxxii. 7, 41. At the Yarmouth fishing this year (1666) " the
sea was fuller of herrings than was ever known " ; no sooner were the nets in the
water than they were full of fish, and many herrings had to be thrown overboard,
so that it was locally rhymed, " twelve herrings a penny fills many a hungry belly."
The exceptional abundance was attributed by the fishermen to the war having
practically put a stop to the Dutch fishing off our coast, so that the shoals came to
the inshore grounds in a body and not broken up. The herring fishing was also
unusually successful during the third Dutch war. In 1666, however, the herring
fishing in Ireland was likewise uncommonly productive. Ibid., clxxiv. 52, 100,
129, 156 ; clxxv. 49.

THE SECOND DUTCH WAR

463

the Thames and the Dutch were supreme at sea, the States
of Holland withdrew the embargo on the Great Fishery, and
when peace was proclaimed the schuyts again took part in
the autumn fishing at Yarmouth.1

It has been already mentioned that France, which had bound
itself by the recent treaty to aid the United Provinces, declared
war against England in January 1666, but Louis showed great
reluctance to begin actual hostilities ; and one of the diplomatic
obstacles which served to delay the junction of the French
and Dutch fleets referred to the striking of the flag. A French
squadron of thirty sail had been equipped under the Duke
de Beaufort, and Louis required that the Dutch admiral should
salute not only the Admiral of France, but the vice- and rear-
admirals; and further, that the French admiral should not
be required to lower his flag in returning the salute of the
Dutch. The States -General were willing that their admiral
should strike to De Beaufort first, but they demanded that
the latter should return the salute in a similar manner. The
French, who were apparently anxious to be placed in the
same position as England with respect to this ceremony, argued
that the English did not re-salute the Dutch fleet by striking
the flag, but only returned the guns, citing the treaty of 1662
and the actual practice ; and they proudly boasted that the flag
of the Admiral of France had never at any time been lowered
to that of any nation. To this De Witt replied that they were
willing to give the same respect to the French as they did to
the English; that the re-salute was not expressly mentioned
in the treaty because it was a well-understood custom on their
own coast; and that in point of fact the English did return
the salute, as had been done by Admiral Montague (the Earl of
Sandwich) in 1661 and by Vice- Admiral Lawson on meeting
De Ruyter. If on some occasions it was omitted by the Eng-
lish, it was on the seas they called "British," and was to be
attributed to the claim they pretended to the dominion of
the seas — a claim which France and the Republic had solemnly
agreed by treaty to resist. If a similar claim was now ad-
vanced by France, it would argue a like pretension to maritime
sovereignty by a nation which had engaged itself to preserve
the liberty of the sea. Moreover, the salute at sea between

1 Resol. Hott., ?* June 1667, p. 210. State Papers, Dom., ccxvi. 143 ; ccxvii. 77.

464 THE SOVEREIGNTY OF THE SEA

the fleets of two sovereign states was not an act of submission
of an inferior to a superior, but one of civility, honour, and
respect, and should therefore be mutual and equal. They,
as a republic, offered to strike first, and to keep their flag
lowered until the French admiral had struck and re -hoisted
his flag. This discussion about the re -salute was prolonged,
extending from June 1666 to July 1667, for De Witt was
not a man lightly to agree to diminish the dignity of his
country; and after the peace conference met at Breda, and
De Ruyter was master of the sea, the Dutch roundly de-
clared they would not strike to the French admiral at all,
unless he agreed to return the salute by dipping his flag,
but would only salute him with guns.1

At the conferences at Breda Charles had little right to expect
that he would gain much, in view of the inglorious events at
the end of the war. He retained New Amsterdam (re-named
New York), which Holmes had taken in 1664, but he lost
Poleroon and Surinam, and relinquished the claims which
had been put forward to justify the war. An important con-
cession was made to the Dutch by a modification of the Navi-
gation Act, for a repeal of which they pressed, by a stipulation,
in separate articles, that they might import into England in
Dutch vessels all commodities produced or manufactured in
Germany or Flanders, for which, it was claimed, the United
Provinces were the natural outlet to the sea; and all the
essential articles of the commercial treaty of 1662 wrere
confirmed.2 All pretensions to exclusive fishing off the
British coasts were withdrawn; the old stipulations of the
Burgundy treaties were not, however, renewed.

With regard to the "honour of the flag," De Witt, in the
preliminary negotiations, strove to come to an arrangement
with France and Denmark, who were also parties to the
treaty, to compel England to relinquish her claim to pre-

12 18

1 De Witt to Van Beuningen, ^ July 1666 to ^ July 1667 ; Van Beuningen to

De Witt, y-jj^r 1666 to ^ July 1667' " R^80118 par lesquelles il paroit, que le
contre-salut du Pavilion, aux rencontres des Flotes de Sa Majeste Tres-Chretienne
et des Etats Ge'ne'raux, est d'une justice toute Evident." De Witt's Brieven, ii.
473, &c. Pontalis, op. cit., i. 353.

01

2 Articles touching Navigation and Commerce, concluded at Breda, ^ July 1667.

THE SECOND DUTCH WAR

465

eminence in this matter, especially by insisting that English
vessels should return the salute by lowering their flag.1
Charles was saved from this humiliation by the good offices
of Louis, and the article in the treaty of 1662 was simply
repeated in precisely the same words.2 Another of the mari-
time articles gave less contentment in England. We have
already seen how persistently the Dutch had struggled in
deliberating on the terms of the treaty of 1654 to restrict
the application of the term "British Sea" to the Channel.
What they were then unable to accomplish was now con-
ceded to them. In the usual article about the cessation of
hostilities on the sea, it was specified that restitution of
prizes should not be made if they were taken " in the Chan-
nel or British Sea within the space of twelve days, and the
same in the North Sea ; and within the space of six weeks
from the mouth of the Channel unto the Cape of St Vincent." 3
In the treaty with France, signed at Breda on the same
day, the French plenipotentiaries took care that the terms
English Channel or British Sea in the corresponding clause
were omitted, the neutral if indefinite phrase "the neighbour-
ing seas " (maria proximo) being substituted.4 In the similar
treaty with Denmark, the phraseology was even less tender
to English susceptibilities — namely, "in the Northern Ocean

1 " Dat de scheepen van oorlois (sic) van den Coninck van Groot Brittannien door
die van desen staet met het strijcken van de vlagge gesalveert werdende, van haere
sijde vervolgens met het strijcken van haere vlagge contra salueren sullen." Extract
from Secret Resolution, States- General, llth May 1667, Instructions to Ambassadors.
Treaty Papers (Breda), 1667, Bdl. 73.

2 Art. xix. See p. 455. Van Beuningen to De Witt, ^ April 1667. De Witt
to Van Beuningen, g April, |? June, ^^ 1667. Brieven, ii. 483, 487, 528, 533.

3 Treaty of Breda, Art. vii. It may have been in connection with the interpre-
tation of this clause that the High Court of Admiralty asked the Trinity House
their opinion as to the end of the English Channel westwards, and got the following
answer: "We shall not presume," said the Masters, on 2nd January 1668, "to
determine matters that have for some ages past been controverted, and for any-
thing that we at present know have not had a full resolution or any precedent for
deciding questions relating thereunto ; " but the opinion of " the past and present
age," with which they concurred, was that when any commander brought Scilly
N.N.W. he had entered "the Channel of England." Brit. Mus. Add. MSS..
30,221.

4 Treaty of Peace and Alliance between Charles I. and Louis XIV., concluded at

Breda, ' July 1667. Article xvii.

2 G ,>"' *5,

'•? ffiSfci <

466 THE SOVEREIGNTY OF THE SEA

and in the Baltic Sea and the Channel, &C."1 However
trifling such points may appear to us now, they had a real
importance in the seventeenth century, and the phraseology
cited caused some heart-burning in England as being dero-
gatory to our rights to the dominion of the British seas.2

For some years after the conclusion of peace at Breda,
and indeed up to the opening of the third Dutch war, the
question of the salute was a frequent subject of international
discussion. Dutch statesmen had always wished to come to
a definite arrangement with England about it, for they saw
that to leave it in ambiguity while the English looked upon
it as touching their national honour, was fraught with danger.
A whole series of points was in doubt, any one of which
might furnish occasion for war unless clearly defined and
mutually understood. Was a whole fleet or squadron of the
States to strike to a single English ship of war ? Were they
to strike to a frigate, or to a still smaller ship, such as a
ketch, or only to ships carrying the flag of an admiral, vice-
admiral, or rear-admiral ? Was the salute to be returned by
the English in the same way, by dipping the flag and lowering
the top-sails as well as by guns ? Within what parts of the
sea was the salute to be enforced, or differentiated, or the
re -salute given ? English statesmen purposely left many of
these points undefined, in order to gain as wide a recognition

1 Treaty of Peace and Alliance betiveen Charles II. and Frederick III., concluded
at Breda, ^ July 1667. Art. ii.

2 In the negotiation of subsequent treaties, controversy was usually occasioned
about the wording of these articles relating to the date of cessation of hostilities
on the sea, the United Provinces or France pointing to the treaty of Breda as a
precedent, while the English took their stand on Cromwell's treaty of 1654. In
the treaty of Ryswick in 1697, between the United Provinces and France, the
term " British Channel " was employed in conjunction with the Baltic and North
Sea (Art. ii.) ; and in the treaty between William III. and Louis, signed at Ryswick
on the same day, the words were "in the British and North Seas, as far as the
Cape St Vincent" (Art. x.) In the negotiation with France in 1712 for a sus-
pension of hostilities, the French insisted on the words, " the seas which surround
the British Isles," citing the treaty of Breda, while the British were equally
obstinate to have the term in maribus Britannicis inserted, as in the treaty of
1654, arguing that the "error" of Breda had been rectified in the later treaty of
Ryswick ; the result being that in one article " the Channel, the British Sea, and
the North Sea" were specified, and in another the phrase was "in the Channel and
North Sea." Dumont, Corps Diplomatique, VIII. i. 306. Burchett, A Complete
History of the Most Remarkable Transactions at Sea, &c,, p. 38.

THE SECOND DUTCH WAR

467

of the ceremony as was possible, and when disputes did arise
with other Powers, to enable them to avoid war or to make
war as circumstances and policy might determine. They held
that England, and England alone, was the rightful interpreter
of what was due to her flag by ancient custom. On the other
hand, the Dutch Republic looked upon the whole business
as a troublesome affair ; and as the greatest commercial nation
of the time, whose chief interest was peace, they naturally
desired that the dubious points about the salute should be
permanently settled.

• Immediately after the conclusion of the Triple Alliance
against France, at the beginning of 1668,1 De Witt, taking
advantage of the good feeling existing between England and
the Netherlands, and especially of the presence of Sir William
Temple as English ambassador at The Hague, proposed that a
formal settlement should be made of the doubtful points
concerning the striking of the flag. Temple, who was a
staunch friend of the Dutch and was on intimate terms with
De Witt, shared this opinion. He thought that by a slight
concession, or by a definite agreement, England might count
with some confidence on the support of the States-General in
any future quarrel with other nations about the flag. The
subject was formally raised by De Witt on a proposal for a
union of the Dutch and English fleets, in certain contingencies,
against France. He offered to give the same honour to the
king's ships at sea as their ambassadors gave to his Majesty's
person, " to uncover first and cover last " ; but stipulated that
any agreement about the flag must not be regarded as an
acknowledgment of England's pretension to the sovereignty of
the sea, which the Dutch would " die rather than do." Know-
ing that it was a " delicate " subject to broach with the King
of England, he thought the negotiations might be opened by
the States-General sending a polite letter to Charles, laying
stress on the good relations between the two nations, and
intimating that in order to prevent sinister encounters which
any new sourness might occasion, they had issued orders to
all their naval officers to strike their flag with every mark of
civility on meeting with the royal flag of England. The king
was then (according to the scheme) to inform the States-

1 See p. 474.

468 THE SOVEREIGNTY OF THE SEA

General that he had received this mark of deference to his
royal dignity with singular satisfaction, and that he on his
part would order his admirals and commanders to re-salute the
States' flag. Temple thought the matter was so "ticklish,"
that it ought to be first broached verbally at a fitting oppor-
tunity; and De Witt, in advising the Dutch ambassadors in
London to this effect, reminded them that the salute was
merely a mark of honour and respect, and that if anything
was put into writing this should be expressed. He added
that he had never been able to understand how it could be
conceived that the free element of the sea, or dominion over
it, could belong to England or to any nation, and that in
Holland the common right of sovereignty of all nations over
it was held to be incontestable.

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

It is interesting to note, in view of the antecedents of the
next war, that the ambassadors were instructed to say that the

THE SECOND DUTCH WAR 469

States' fleet would not strike, even in the Channel, to a frigate
or ketch, which did not customarily carry the royal flag in the
main-top, but only to an admiral's ship, or one carrying the
royal flag. This contention was promptly set aside by the
Duke of York and Lord Arlington (the Secretary for State) ;
but De Witt, still clinging to the hope that a "regulation"
might be arranged, asked the ambassadors to find out the
instructions which were actually issued to the English captains
serving in the Downs, the Channel, the North Sea, the Mediter-
ranean, and the Ocean, as it was generally believed in Holland
that outside the Channel neither side should strike the flag or
lower the sails to the other, but that the States' ships should
first salute with guns alone, and the English answer with guns
also. In any case, if the principal fleets of the two countries
were combined for any purpose, or jointly brought into action,
it was to be first arranged that they should salute one another
with guns only, or at all events in an equal and reciprocal
manner, the Dutch always giving the salute first; and the
ambassadors were to insist earnestly and finally for a settlement.
The ambassadors informed De Witt that, as was shown in
the copy of the instructions found on board the Charity, an
English man-of-war taken by the Dutch in the battle of Lowes-
toft, in 1665, and which was published by Aitzema, the com-
mander of an English man-of-war was to compel every foreign
ship, or ships, to strike their flag in the British seas, and that
in these seas no English king's ship was to strike to any foreign
ship. In all other seas the English ship was never to strike to
a foreigner unless the latter struck first or at the same time.
According to this, they said, a single English man-of-war
could compel a whole fleet to strike their flags and lower
their top-sails in the so-called British seas, and it was for-
bidden for it to strike in return. In all other seas, if the
foreign ship did not strike, the English would not strike, and
no salute would be exchanged. They said this was well
known to be the regular formula in England, and no distinc-
tion was drawn between the Channel and other "pretended
English seas." The " British seas," they said, according to the
Admiralty instructions, extended to Cape Finisterre, in Galicia,
and westwards, according to Selden, to America. It would
be an excellent thing, they thought, if they could succeed in

470 THE SOVEREIGNTY OF THE SEA

drawing a distinction between the Channel and the other seas,
since their fisheries, the main object of solicitude, were carried
on, not in the Channel, but in the North Sea. But as the
whole subject was very delicate, they advised De Witt to pass
from it for the time and to allow things to remain on their
old footing ; and to show the spirit in which the matter was
regarded in England, they sent him specimens of the coin issued
by Charles a few years before, which bore the king's effigy on
one side with the inscription Carolus a Carolo, and on the
obverse the figure of Britannia, with the proud words, Quatuor
Maria Vindico.1 De Witt, who had just arranged with
Temple that the matter should be brought to the notice of the
king, acquiesced, but with reluctance. He expressed satis-
faction that they now at least knew more about the English
pretension, so that fresh hostility and war could be avoided
on that point; but that an English frigate or ketch should
claim to compel a whole fleet to strike was, he said, intolerable.
And it was this very thing that Charles selected to force war
upon the United Provinces a few years later.2

It was not only with the Dutch that discussions arose at
this time as to the rights of the English to demand the salute.
The astute Dutch statesman, as was his wont, began to pull
diplomatic wires at other Courts in orqler to have the subject
raised by them. The King of Denmark in the following year

1 This was the farthing known later as the "Lucas farthing," from the gibes of
Lord Lucas in his attack on the king's policy made in the debate on the Subsidy
Bill in the House of Lords in 1670. Speaking of the scarcity of money in the
kingdom, he said : " What supply is preparing for it, my Lords ? I hear of none,
unless it be of copper farthings ; and this is the metal that is to indicate, according
to the inscription on it, 'The Dominion of the Four Seas.' " Parl. Hist., iv. 473.

2 " Omtrent het point van de Vlagge, saegen wy alhier seer gaerne lets eeeckers
gedetermineert, ten minsten dat wy moghten weten waer mede men buyten nieuwe
feytelyckheydt ende Oorloge konde verblyven ; dat een Fregatje ofte een Kitsje
een gantsche Oorloghs - Vloote soude doeu strycken, is notoirlyck intolerabel."

12 29 Fob 3 7

De Witt to Meerman, ^ June 1668. The same to the same, -T-JJ — ^-, — , — April,

££ •' Al ft iv li la If

' 1668' De Witt to Meerman and Boree1' March, 2 1668.

Meerman to De Witt, 2® ah, June 1668. De Witt's Brieven, iv. Sir William

2 6

Temple to Lord Arlington, — Feb., — March 1668 ; the same to the Lord-Keeper

2
—

Bridgeman, 1668. Works, iii. 134, 199, 348. State Papers, Dom., 1668,

ccxxxv. 49, 62 ; ibid., 1665, cxxiii. 67. Aitzema, Saken vanStaet en Oorlogh, v. 390.

THE SECOND DUTCH WAR

471

proposed to Charles that new regulations should be arranged
with respect to the " salutes and civilities " at sea between the
men-of-war of the two nations. Charles declined the invitation.
He did not think it fit, he said, to make any new regulation on
the salutes at sea, "since there has never been any question
made of the constant practice in that matter, which we shall
always observe." l

A renewed attempt to convince the French that it was to
their interest to curtail the English claim to the sovereignty
of the sea had consequences little dreamt of by De Witt. The
Dutch Minister, clinging to his principle, urged at Paris that
Charles, who wished to be the supreme ruler of the sea, ought
to be forced to modify his pretension and to give the salute
in return. It had indeed been rumoured in London that the
French king had decided to forbid his naval commanders to
strike to the English, and even to compel both English and
Dutch to strike to his own flag.'2 Louis certainly raised the
question at the Court of St James's, but in a different way.
Colbert, his ambassador there, secretly revealed to Charles
the confidential negotiations which the States -General had
opened at Paris, in the hope that this mark of confidence would
make more easy his policy of detaching the King of England
from the Triple Alliance.3 By this time Charles and Louis
were drawing closer together, and in order to prevent chance
disputes about the flag, a verbal arrangement was made through
Colbert, in the summer of 1669, that no salutes should be
exchanged between English and French men-of-war in the
Mediterranean, nor should the ship of one be expected to go
to leeward of the other. Instructions of this tenour were
given to Sir Thomas Allin, who was on the point of leaving
with a squadron to chastise the Barbary pirates.4

About this time the Duke of York and the officials of the

1 The king to the Duke of York, 31st Oct. 1669. State Papers, Entry Book,
31, fol. 37.

2 Pepys' Diat-y, 20th Dec. 1668, via. 184.

3 Pontalis, op. cit., ii. 24.

4 The king to the Duke of York, 26th June 1669. State Papers, Entry Book,
31, fol. 29. Instructions by the Duke of York to Sir Thomas Allin, 6th July
1669. Ibid., cclxii. 120. A marginal memorandum on the latter document says,
" This rule was adjusted with Colbert, the French Ambassador here, but nothing
passed in writing but this. "

472 THE SOVEREIGNTY OF THE SEA

navy began to devote close attention to the rules regulating
the salute and the striking of the flag, and a number of mem-
oranda were prepared which described recent precedents, and
dealt with other points. With reference to recent practice,
it was stated that the Earl of Sandwich had struck in return
to De Ruyter in 1661 or 1662; that Sir John Lawson declared
he would strike to none, and kept his flag aloft in Toulon
harbour; while Sir William Berkeley, serving under Lawson,
refused even to fire a gun on meeting De Beaufort, the Admiral
of France, until he was assured that the report attributed to
him that he would force the English to strike was unfounded.
A statement was compiled of the number of guns fired in salute
to English vessels arriving in various foreign ports, and rules
were formulated with respect to the salutation of forts and on
other points. The general custom was that "the sea should
salute the land" — that is, the vessel first saluted the forts,
except on extraordinary occasions, as when a prince or an
important foreign embassy arrived. No foreign man-of-war
was to be allowed to pass above the ports at Gravesend and
Sheerness, or at any other harbour, without special permission
from the Lord High Admiral or the governor of the fort ; all
vessels were to keep in their flag as long as they were in sight
of the fort, and if they refused they were to be forced to
comply ; salutes of foreign flagships were to be answered gun
for gun, and of other foreign ships with two guns less. As for
the striking of the flag, the Earl of Sandwich and other naval
authorities who were consulted intimated that the matter was
too important for them to decide upon, and should be left to
the king — a plain acknowledgment of its political character.
The Duke of York, however, the Lord High Admiral, stated
that the rule was that English ships were everywhere to be
saluted first, and were not to strike in return, but only
to answer with guns; but if a single English ship met a
foreign fleet out of the British seas, it was to salute first with
guns, but neither was to strike the flag.1

This activity at the English Admiralty may not have been

wholly unconnected with the circumstances which ushered in

the next war, but it was more probably due to the general

revival of punctiliousness regarding the salute and similar

1 State Papers, Dom., 1669, cclxi. 82-87.

THE SECOND DUTCH WAR

473

naval ceremonies which took place at this time throughout
Europe. Even the petty states in the Mediterranean became
infected with the spirit of their powerful neighbours, and
followed their example. At Genoa and Leghorn frequent dis-
putes, and sometimes sanguinary encounters, occurred between
the authorities and Dutch and English men-of-war as to the
number of guns that should be fired, or the striking of the
flag. French and Dutch men-of-war lying in the Tagus were
only prevented by the governor of the castle from putting
to the arbitrament of force the question whether the latter
should strike to the former. At Civita Vecchia, at Gliick-
stadt, at Dover, at Dieppe, at Kronberg, similar incidents took
place. The Earl of Essex, going on a special embassy to the
King of Denmark, and on board the king's yacht, had a sharp
dispute with the Governor of Kronberg, in the Sound, as to
lowering his flag, which the Danish officer requested him to
do. But Essex was well primed with precedents before he
left England, and was able to maintain his refusal.1 Though
Dutch men-of-war engaged with spirit in such quarrels about
the salute in foreign ports, their action was not countenanced
by the policy of the States-General. On 16th May 1670 they
instructed that the fort of Kronberg should be saluted by
Dutch vessels in such manner as the King of Denmark might
require ; and on 3rd February next year the States of Holland
issued a general order that their men-of-war should salute
those of other sovereigns on their coasts, within the reach of
the guns of batteries or forts, in the precise manner that the
Government of the country might demand, leaving it entirely
to the discretion of that Government to return the salute or
not, just as they pleased. Every foreign Government, they
added, was sovereign within its own jurisdiction, and every
foreigner was a subject there.2

1 State Papers, Dom., 1668, ccli. 191 ; 1670, cclxxiv. 157 ; cclxxv. 43 ; cclxxvi.
206 ; cclxxxi. 15 ; 1671, ccxc. 5, &c. Temple's Memoirs, iii. 433. Justice,
Dominion and Laws of the Sea, 298.

2 Bynkershoek, De Dominio Maris, cap. ii. iv. As elsewhere explained (p. 557),
it was this custom which helped to prepare the way for the acceptance of the
principle that now determines the extent of the territorial sea on an open coast
— viz., the range of guns.

474

CHAPTER XIII.

CHARLES II. — continued.

THE THIRD DUTCH WAR.

THE " honour of the flag " and the sovereignty of the sea were
now about to gain a shameful notoriety in connection with
the third Dutch war, which Charles, from the basest personal
motives and in the most treacherous manner, suddenly sprang
upon the Republic. At that time, and for long afterwards,
European policy turned upon the ambitious designs of
Louis XIV. Laying claim to the Spanish dominions, he over-
ran the Low Countries in 1667 with an army of 40,000 men.
The rapidity of the conquest and the display of formidable
military power filled Europe with alarm; and the United
Provinces, which lay nearest the scene of danger, were thrown
into apprehension as to their own safety. In England popular
feeling was very hostile to France, and Charles, after some
hesitation, despatched Sir William Temple to The Hague to
conclude an alliance against France, which he succeeded in
accomplishing in a few days — in January 1668, — and it was
adhered to by Sweden. The Triple Alliance thus formed
was hailed with enthusiasm in England, and it abruptly and
effectually checked Louis in the execution of his plans. Deeply
mortified, the French king bent his energies and talents to
detach Charles from the League, in order to wreak his vengeance
on the Dutch Republic, and he succeeded even better than he
expected. Charles was deeply in debt, and the expenses of his
Court were heavy. His relations with the Parliament were
becoming strained and difficult. Mistrust was growing up

THE THIRD DUTCH WAR 475

between him and his subjects, and, mindful of the fate of his
father, he thought it prudent to secure in secret a wealthy
and powerful ally lest rebellion again broke out in England.
Within a year of the signing of the Triple Alliance Charles
was gained over by France, and the compact was sealed in
the disgraceful secret treaty of Dover in May 1670. Under
the treaty Charles was to receive a large yearly pension from
Louis, and aid in case of insurrection; he was to avow and
re-establish the Roman Catholic religion in England when it
could be done with safety ; and he was to begin hostilities
against the Dutch Republic when Louis required him by fur-
nishing 4000 men and fifty ships of war, for which he was
to receive a subsidy of £120,000, and to gain as his share of
the spoils of conquest Walcheren, Sluys, and Cadsand. Louis
crowned the dishonourable compact with the appropriate gift
of a new mistress to his royal ally — Mademoiselle de Kerouaille,
afterwards the Duchess of Portsmouth, who well served the
interests of France.1

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

1 Hume, Hist, of England, c. Ixv. Temple's Memoirs and Letters. Pontalis,
John de Witt. Macaulay, Hist., i. c. ii.

476 THE SOVEREIGNTY OF THE SEA

at the recent journey of Louis to Flanders and the naval
preparations in France, voted a sum of £800,000. l

It was also indispensable to foment ill-feeling against the
Dutch, and to devise disputes with them so as to prepare
the way for a rupture. Some time before this, at Genoa,
a Dutch commander, Captain Braeckel, who had led the attack
on the English ships at Chatham in 1667, had hoisted under
the Dutch colours some English flags which he had taken on
that occasion, in derision of the English in the port. Charles
demanded reparation and the punishment of Braeckel; and
the States-General ultimately ordered the trophies to be given
up, and sent them to London.2 Later, the king complained that
the States - General had allowed him and the English people
to be insulted by lampoons, medals, &c., commemorating the
exploits of the Dutch fleet in the Thames in 1667, the king
suing for peace at Breda, and so forth. The States-General,
when the king continued to press these complaints, seized
all copies of certain lampoons and destroyed the dies of
several of the medals. Charles then boldly accused the
Grand Pensionary De Witt of having carried on a confiden-
tial correspondence with France with the object of inducing
that Power to take up arms against England. The accusa-
tion was meant to prejudice the Dutch in the eyes of the
Parliament; and the States, to prove their sincerity, sent
fresh proposals for an alliance, to which Charles replied that
they should first have offered him sudsidies. The apprehen-
sion of the States that the king was inclined to force a quarrel
on them was not lessened by intelligence they received that he
had abandoned the Triple Alliance, and especially by the recall
of Sir William Temple from The Hague in 1670, — a step that
followed the seizure of Lorraine by Louis.

Affairs were ripening to the wished-for crisis, and Charles
now sought for a decisive pretext, which, while making war
inevitable, would lessen its unpopularity in England. Such
a pretext was to be found in the "honour of the flag." No
cry was more likely to rouse resentment in the people than
that the flag had been insulted and the sovereignty of the

1 Part. Hist., iv. 456. Hume, op. cit.

2 De Witt's Brieven, iv. 837. Pontalis, op. cit., ii. 122.

THE THIRD DUTCH WAR

477

sea threatened. To insult the flag was to insult the nation.
The king was well aware from the repeated declarations of
the States-General that they would never willingly acknowledge
England's sovereignty of the sea : they had said they would
" rather die first." He was also doubtless fully acquainted with
the fixed opinion of the Grand Pensionary that to claim that the
whole Dutch fleet should strike to a single frigate or a ketch was
"intolerable." He contrived his measures accordingly, and
decided to send one of his yachts to pass through the States'
fleet, on their own coast, and to fire upon them if they did
not strike their flags in the accustomed manner. The matter
was deliberately considered. The clause in the treaty of Breda
was not very clear as to whether a yacht, or even a man-of-war,
could compel the whole Dutch fleet to strike, and on the
Dutch coast. Just about the time Temple returned from
The Hague, Sir Leoline Jenkins, Judge of the High Court
of Admiralty, wrote a confidential letter to Sir Thomas Allin,
the commander of the Blue, asking him to find out secretly, " as
if for his own satisfaction," whether there were any "ancient
seamen" at Trinity House or elsewhere who were on board
the Happy Entrance when it carried the Earl of Arundel
to Holland in 1636, and if so, whether they remembered
that on entering the road of Goeree, in Holland, Admiral
Tromp, who was at anchor there, struck his flag to it; and
similar information was asked in regard to other cases of
like import in 1637 and later. The question was also put
to Sir Thomas, "How far the British Sea, or British Ocean,
does in common reputation extend itself ; and whether all that
which washes the coasts of the Low Countries, as well as
that which runs upon the French coast, has been anciently
deemed and reputed to be British Sea ? " Jenkins explained
that he had been desired by the king to obtain proof of the
striking of the flag as secretly as possible; and the two
chief points were, (1) "Had not the French and the Dutch
always struck to the king's flag even on their own coasts ?
and (2) that a single ship of ours, if commissioned for war,
though never so inconsiderable in its strength, did make
whole squadrons and fleets of the neighbouring nations to
strike, and particularly the Spaniards near the Spanish Nether-

478 THE SOVEREIGNTY OF THE SEA

lands and the subjects of the United Provinces near their
coasts ? " l

The reference to the French and Spaniards was no doubt
meant to conceal the real significance of the inquiry. The
reply of the admiral seems not to have been preserved,
but a later memorandum of Jenkins answers the questions
as to the striking of the flag at Goeree, and in the other cases,
in the affirmative. The Trinity House, whose opinion was
also asked, said that it had been commonly received by them
from their predecessors that the British seas " extend to Cape
Finisterre, or the North Cape" (sic), and that the sea which
washes the coast of the Low Countries and France had
been always reputed part of the British seas. "To know
how far it does extend northwards," they ingenuously added,
" we desire you will please to consult those authors who have
treated on that subject, it not being known to a certain
by us."2 They had been unable to meet with any persons
who knew about the alleged cases of striking, so that Jenkins
must have obtained the information about them from other
sources.

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

Thus fortified in law and precedent, the way was clear for
Charles to pick a quarrel with the States about the striking
of the flag, and he despatched, not a man-of-war, nor even a
frigate, but his yacht, the Merlin, for the purpose. Osten-
sibly it was sent to bring over Lady Temple, who had, by
his wish, remained in Holland since her husband's departure,
but with orders to pass through the Dutch fleet then cruising
in the Channel, and to fire at them until they struck their
flags or fired back at the Merlin. As the French ambassador,

1 Sir Leoline Jenkins to Sir Thomas Allin, Admiral of the Blue Flag, 8th Oct.
1670. Life of Sir Leoline Jenkins, ii. 699.

2 Brit. Mus. Add. MSS., 30,221, ff. 466, 486.

THE THIRD DUTCH WAR 479

who was in the secret, tersely put it to his Court, " the captain
is to use all his powder, so as to give good cause for a quarrel."
The Merlin on her way to Holland passed through the
Dutch fleet, but owing to a heavy gale she could not get
near enough to execute the king's commands. She appears,
however, to have met two Dutch men-of-war convoying the
herring - busses, who exchanged guns with her but did
not strike their flag.1 But in returning, early in August,
with Lady Temple on board, the Merlin, with the royal
standard flying, came upon the States' fleet lying at anchor
beyond the Goodwins, six leagues from the coast of Zealand
and sixteen leagues from England. The little yacht, while
still at a distance, began to fire at the Dutch flagship. De
Ruyter did not reply at once, but the Lieutenant -Admiral,
Van Ghent, thinking that it was merely a question of the
salute, returned the guns in the usual manner, and was not
a little surprised to receive for his pains a discharge of cannon-
balls. He sent an officer on board the yacht for an explana-
tion, and Captain Crow, the commander of the Merlin, in-
formed him that he had been sent to bring the English
ambassadress with her family from Holland, and had orders
to make the Dutch fleet lower their colours wherever he met
with it. On hearing this, Van Ghent, on the pretext of pay-
ing a compliment to Lady Temple, whom he had frequently
met at The Hague, went himself on board the Merlin. He
told Captain Crow that the point he had raised was one on
which he had received no orders from the States, and that
he could not concede the claim without express commands.
He declared his willingness to pay due respect to the English
flag according to the former practice, but he thought it
could scarcely be contended that the admiral and the whole
fleet should strike on their own coast to a single vessel, and
that vessel a yacht, which was only a pleasure-boat, or at
least served only for a passage, and could not pass for a

1 Brit. Mus. Add. MSS., 30,221, fol. 476. The affidavits of three English
sailors who witnessed the meeting of the Merlin and the two Dutch conveyers
off Flamborough. The sailors swore "that they exchanged guns but did not
strike their flags, but went away with their flags abroad." This evidence was
obtained to magnify the offence; the position assigned, "off the Flamborough,"
makes its value doubtful.

480 THE SOVEREIGNTY OF THE SEA

man-of-war. It was at all events, he said, a question which
should first be submitted to inquiry by the two Governments.

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

Meanwhile, Sir Leoline Jenkins was requested to inquire into
the case of the Merlin, presumably to see what could be made
of it. He examined Lady Temple and others, and drew up a
memorandum embodying the information he had received as to
the extent of the British seas and the precedents of striking to
the English flag off foreign coasts.1 After citing the precedents
at Goeree and elsewhere, he expressed an opinion against call-
ing witnesses in such cases " for fear of chicane," declaring that
we had " a constant uninterrupted possession of the prerogative,

1 " A Draft made by Sir Leoline Jenkins about the King's Sovereignty in the
British Seas." Brit. Mus. Add. MSS., 30,221, fol. 466. Undated, but probably
referring to this case.

THE THIRD DUTCH WAR 481

with the highest notoriety that public immemorial reputation
can give, in the British seas, and that the onus of making proof
as to the non-use and enjoyment of it in some certain places or
rencounters, as for instance the Dutch coast, or when a small
sail of ours met a fleet of theirs, was cast by the law and by
reason upon our opposers." l The English Government did not
make any immediate protest to the States-General about Van
Ghent's refusal to strike to the yacht, possibly lest they might
proffer satisfaction and dispose of the episode ; but Charles
boldly told the Dutch ambassadors that he thought the conduct
of their admiral had been premeditated.

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

1 Sir William Temple to Sir John Temple, 14th Sept. 1671. Works, iii. 501.
Pontalis, John de Witt, 126, 127. Hume, Hist, of England, cap. Ixv. State
Papers, Dom., 1671, ccxcii. 45, 77, 78, 81, 215. Evelyn's Diary (ed. 1850), ii. 69.
Brit. Mus. Add. MSS., 30,221.

2H

482 THE SOVEREIGNTY OF THE SEA

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

While Downing was away on his explosive mission, Boreel,
the Dutch ambassador in London, was beguiled with smooth
words in order to lull the States-General into a feeling of
security. On the eve of his departure, Downing told him he
was going to The Hague with the object of strengthening the
good understanding between the two countries, and Charles
treated the ambassador with the most friendly courtesy. The
ease with which the Dutch were being hoodwinked caused
much amusement in Paris. But Charles was not yet quite
ready. He needed a great deal more money than what was
left of the £800,000 which the House of Commons had voted.

THE THIRD DDTCH WAR

483

Afraid to summon Parliament again, or to levy taxes under the
prerogative as Charles I. had levied the ship-money, he had
recourse to the daring expedient of closing the Exchequer, by
which he robbed the public creditors of some £1,200,000, caus-
ing widespread ruin and commercial panic. A little later, on
21st January 1672, the first quarterly instalment of the sub-
sidy of three million livres from Louis was landed at Rye, and
escorted to the Tower by forty men of the Guards and a trum-
peter. Now in possession of ample supplies, Charles hastened
to throw aside the mask. Downing played his arrogant part
•at The Hague, refusing to allow any debate as to the justice of
his demands. When he suddenly called for his passports, the
States-General began to awaken to a truer sense of their posi-
tion, menaced as they also were by imminent peril from France.
Adopting the advice of the deluded Boreel, that by yielding on
the question of the flag they would remove any inclination the
English people had for war with them, since England really
cherished enmity against France, the States-General agreed to
comply with the claims of Charles respecting the salute. The
concession was still joined with the offensive proviso that they
gave it only as a mark of respect to a powerful monarch : it
was, moreover, to be conditional on the maintenance of the
Triple Alliance. Downing told them the offer came too late, and
slunk away home, reaching London on 6th February, where
the king, displeased with his management of the affair, sent
him to the Tower "for not having obeyed the orders sent
him."

The flight of Downing threw the States-General into con-
sternation. Meerman, previously their ambassador at the
English Court, was despatched in haste to London to renew
the offer about the flag, to agree to the dismissal of Van
Ghent, and to tender large subsidies for the king's privy
purse. At the audience with Meerman and Boreel, Charles
skilfully evaded their proposals and expressed surprise that
they had not submitted a formal signed paper. This they
made haste to do, and they were then informed that it was
ambiguous and obscure, but in what particulars they could
not learn. They next submitted a draft to Arlington and
Lauderdale, the English commissioners appointed to treat with
them, with the request that they might amend it as they

484 THE SOVEREIGNTY OF THE SEA

thought fit, but they were haughtily told that it was none
of their business to draw up papers for the Dutch. Finally,
they signed a written engagement to give satisfaction about
the flag, but at the conference appointed for its reception
the English refused to consider it, saying the time for nego-
tiations was now past.1

The time was now obviously ripe for a declaration of war ;
but Charles before taking this step had resolved on an auda-
cious and treacherous stroke, by which he hoped to gain
much plunder for himself while diminishing the resources
of the Dutch. In spite of the solemn obligations of treaties
for the temporary security of their shipping even if war
broke out, it was decided to attack and capture Dutch mer-
chant vessels in time of peace. Here also a ready excuse
might be found by contriving disputes about the striking
of the flag. As early as 26th January, Sir Robert Holmes
sent an express to Arlington recommending the seizure of
a Dutch fleet laden with salt and wine, which lay wind-
bound at the Isle of Wight, under the convoy of three or
four States' men -of -war. He said that in Holland there
was a great scarcity of salt, and that without it they could
not carry on their fishery or provide for their garrisons ;

1 Pontalis, op. cit., ii. 130, 134. Hume, op, cit., cap. xlv. Sir William Temple
to his brother, 23rd May 1672. Works, iii. 505. Clarendon's Memoirs, ii. 289.
England's Appeal, p. 22. State Papers, Entry Book, 24, fol. 54. Ibid., Dom.,
1671, ccxciv. 127 ; 1672, cccii. 55, 112, 233; ccciii. 206. Entry Book, 34, f. 147.
It was in connection with the offers of the Dutch on this occasion or a little later
in the year that Sir Leoline Jenkins made the following pronouncement as to
the king's rights to the dominion of the seas. He was asked by Secretary
Coventry " what his Majesty, his heirs and successors, Kings of England, may
reasonably pretend to be signified by these words, en la pleine et entiere jou-
issance du droit de pavilion" ? Jenkins replied (1) that the King of England for
the time being was Lord of these seas, where he had the right of his flag acknow-
ledged, and that these seas were, as much as that watery element is capable of
being so in its nature, no less a domain of the Crown than the Honour of
Greenwich or the Manor of Eltham ; (2) that the droits souveraines of the king
in his seas against strangers had all the legal requisites of a prescription beyond
the memory of man, and did not consist in one individual point, as for instance
in having the flag struck to, or in having the liberty of fishing acknowledged by
yearly sums of money ; but in all the several rights, honours, and perquisites that
a sovereignty is capable of producing, and have been enjoyed by former kings of
England, with this difference from all seigneuries that move from a mesnc Lord,
or Lord Paramount, that our kings hold this as they do their crown, from God
alone, and by their sword. Life, ii. 697.

THE THIRD DUTCH WAR 485

the capture of the salt fleet would thus overwhelm them in
ruin even greater than would the loss of their East Indian
fleet. But ships were apparently not ready for this venture —
and, besides, it was not salt that Charles wanted. On 18th
February orders were sent to the Mediterranean to take and
sell, or to destroy, all Dutch shipping. On 5th March Charles
wrote to the Duke of York commanding that, as he had
received many indignities from the States-General, and his
demand for reparation against one of their subjects who
refused to strike his flag remained unanswered, such men-

o

-of -war as were ready at Portsmouth should immediately put
to sea and seize and bring into port, with their cargoes intact,
any Dutch vessels they met with, and destroy those that
resisted. Another royal command on the following day
included Hamburg vessels in the piratical order, since Dutch
ships often sailed under that flag; and in this missive, as
a sort of moral salve, the king announced that he had resolved
to make war on the States-General.

The first capture was made on 8th March, and when Boreel
demanded restitution, he was told, boldly but incautiously,
that the Dutch ships would be seized everywhere. The
Cadiz fleet returning to the United Provinces had a very
narrow escape, having passed up Channel on the day Holmes
received his instructions. On the next day. 13th March, off
the Isle of Wight, he fell in with the Smyrna fleet of fifty-
six merchant vessels returning home from the Mediterranean
with rich cargoes of silks, plate, cochineal, gums, &c., esti-
mated to be worth over a million pounds. It was upon
this fleet that Charles had been counting. Eleven States'
men-of-war acted as convoy to the merchantmen, many of
which were also heavily armed as fighting ships. To deal
with this formidable force Holmes at first had only five ships,
having failed to effect a junction with Spragge's squadron,
from the selfish design, it was alleged, of keeping the prize-
money among as few as possible. The Dutch fleet, which
had been warned of their danger by Boreel, were on the
alert. On the approach of the English the armed vessels
moved into line to protect the defenceless merchantmen.
Lord Ossory, in the Resolution, bore up to the Dutch vice-
admiral and gave him a " warning piece " to strike his flag,

486 THE SOVEREIGNTY OF THE SEA

and as he took no notice of it, Ossory gave him another
and " placed it in him." Sir Robert Holmes, in the St Michael,
treated Captain Adrian de Haas, who commanded the convoy,
in the same way, and when the latter sent his lieutenant
on board the St Michael to ascertain the cause of shooting,
he was promptly clapped into the hold, "having, it seems,"
as the English official account says, " given some saucy language
to Sir Robert."1 The St Michael then poured in a broad-
side and the fight began. It continued until night, and was
resumed on the following day, when Holmes was reinforced
by three other ships, and on the day after that, as the Dutch
fleet made its way up the Channel, defending itself with
the greatest valour. The English were hopelessly outnumbered.
They sank one Dutch man - of - war and captured another,
with four or five of the merchant vessels, but all the others
safely reached port. The English ships which were beaten
off were so terribly battered and cut up that they could
scarcely make their way back to the Downs. On the St
Michael alone thirty -four men were killed and fifty -six
wounded, as well as "a great many" missing.

Charles was deeply disappointed at losing the booty on
which he had calculated. He was further annoyed when
he found he could not confiscate the whole of the cargoes
actually taken, and which Holmes with vainglorious exagger-
ation boasted "would give him credit for £200,000 at least."
When the question came to be decided whether the captured
ships were lawfully good prize, Holmes and his officers showed
the greatest reluctance to be examined. Included in the
cargoes were goods belonging to Spaniards and subjects of
other nations, but notwithstanding this the Council wished
to confiscate everything. Sir Leoline Jenkins, Judge of the
High Court of Admiralty, opposed this design with great
energy. The confiscation of Dutch ships and property in
time of peace might be colourably made under the pretence
that the owners refused to strike their flag and were the
aggressors. But to condemn neutral goods on board as lawful
prize would be, Sir Leoline said, to introduce "a new law
of war, not so honourable for us to endure from others when

1 The account was brought to Court by Lieutenant Churchill, afterwards the
great Duke of Marlborough, who was serving under Lord Ossory.

THE THIRD DUTCH WAR 487

his Majesty shall be at peace and his neighbours at war."
He declared that no hostile act of the Dutch, supposing them
the aggressors, could involve a stranger not party to it, before
a public declaration of war; and as he threatened to resign
his office if the course was persisted in, the Council gave
way, and restitution was made of the property of neutrals.1

The iniquity of this shameful and deliberate attack on Dutch
shipping in time of peace was not extenuated or obscured by
the plea of the English Ministry that it had been caused by the
obstinacy of the Dutch in refusing to strike the flag. The
opinion of Europe was expressed in the remark of a French
diplomatist at one of the German Courts, that " when the king,
his master, made war on the States-General, he would not do
so like a pirate." An immediate result of the onslaught on the
Smyrna fleet was to convince not only the States-General, but
the French Court, that Charles was in earnest, and the formal
declaration of war could not be longer delayed. On 17th March
1672, the day after Churchill brought the tidings to London,
an Order in Council was issued to print and publish the declara-
tion of war against the States-General. In this long, verbose,
and rhetorical document of eight pages Charles tried hard to
justify his flagrant violation of treaties. The real reason of
the war could not be avowed, but every complaint that had
at any time been levelled against the Dutch was now dragged
forth, accusation being piled on accusation. The accumulated
charges connected with the East Indies, the West Indies, and
Surinam were revived and aggravated ; the safety of trade,
upon which the wealth and prosperity of the English people
depended, was in danger ; the king and nation were declared to
have been insulted by lampoons and caricatures. But, as was
to be expected from the antecedents, a principal ground of
rupture was found in the flouting by the Dutch of the right
of England to the honour of the flag and the sovereignty of
the sea. "The right of the flag," the king declared, "is so
ancient that it was one of the first prerogatives of our royal
predecessors, and ought to be the last from which this kingdom
should ever depart. It was never questioned, and it was

1 Pontalis, op. cit., ii. 239. Hume, loc. cit. State Papers, Horn., Entry Book,
24, f. 57; ibid., 34, f. 164; cccii. 130; ccciii. 26, 72, 211-218; ccciv. 9, 11, 20,
21, 25, 36 ; cccvii. 169 ; Foreign Entry Book, 21, ff. 1, 9.

488 THE SOVEREIGNTY OP THE SEA

expressly acknowledged in the treaty of Breda; and yet this
last summer it was not only violated by their commanders at
sea, and that violation afterwards justified at The Hague, but it
was also represented by them in most Courts of Christendom
as ridiculous for us to demand. An ungratef ul insolence !
That they should contend with us about the dominion of these
seas, who, even in the reign of our royal father, thought it an
obligation to be permitted to fish in them, by taking of licenses
and for a tribute." Notwithstanding all these provocations, the
king continued, he had patiently waited expecting satisfaction.
To the memorials sent to them they had at last replied to this
effect: "That in this conjuncture they would condescend to
strike to us, if we would assist them against the French ; but
upon condition that it should never be taken for a precedent
hereafter to their prejudice." The concluding negotiations were
mendaciously summarised by saying that after the return of
Downing the States-General sent over an extraordinary ambas-
sador, who declared he could give no satisfaction till he had
consulted his masters. " Wherefore," said the king, " despairing
now of any good effect of further treaty, we are compelled to
take up arms in defence of an ancient prerogative of our crown,
and the glory and safety of our kingdoms."

Louis' declaration of war, of fewer words and greater dignity,
followed; arrangements were completed for the union of the
English and French fleets, and no difficulty was made about the
salute. Charles, while taking so high and imperial a tone in
the declaration of war about the ancient and sacred rights of
the English flag, immediately relinquished them to his royal
ally and paymaster. For the first time in history the French
fleet was put on an equality with the English in the British
seas. Orders were issued that if an English squadron under
a vice-admiral was sent to the Mediterranean to be commanded
by a French admiral, the latter was to be saluted in the same
manner as he was saluted by French vice-admirals. When an
English frigate was sent to Brest with a despatch for the
Comte d'Estre*es, the Vice -Admiral of France, it was ordered
if it met the French squadron appointed to join the English
fleet to salute them as if they were English ships, and to treat
the French Vice- Admiral as if he were English. Charles sent
similar commands to the Governors of Portsmouth, Dartmouth,

THE THIRD DUTCH WAR

489

Dover, and other places — that the French ships were to be
saluted as if they were English. Thus not only in the Medi-
terranean, but in the Channel and in English ports, the English
flag was to be lowered to that of France — a proposition that
might have made the old sea-dogs turn in their graves.1

The junction of the allied fleets was followed, on 28th May,
by the fierce and sanguinary battle of Solebay. The victory
was indecisive, but the advantage lay rather with the Dutch.
De Ruyter withdrew to his own coast, and the English were
too much crippled to follow.2 No other great sea-fight took
place in 1672, but in September Sir Edward Spragge employed
his squadron against the Dutch fishermen. Just before the
declaration of war the States-General laid an embargo on their
fishing vessels ; but they removed it in September,3 and towards
the end of the month it was reported that a hundred Dutch
busses, convoyed by twenty frigates, were fishing off the Nor-
folk coast. On the 22nd Spragge's squadron, showing no
colours, appeared off Yarmouth, and greatly frightened the
English herring fishermen, who thought the Dutch fleet was
upon them. By noon on the 24th he had captured eleven
Dutch doggers and 117 prisoners; two of the doggers had
licenses from the English Government, and were released
later. By the end of the month the prizes numbered about
thirty doggers, one buss, and a privateer, with over 300
prisoners, — not a very large haul, — while about 200 others
had been chased home, and many nets, which the fishermen
had cut and left in the water, were destroyed. Spragge having
thus, as he reported, "cleared these seas of fishermen except
our own," returned to the Thames.4

While the Dutch maintained the contest at sea with honour
and success, they were overwhelmed on land. A great French
army, under Turenne, Conde", and other celebrated generals of

1 Hume, loc. cit. Pontalis, loc. cit. Temple's Works, i. 175 ; iii. 505. Parl.
Hist., iv. 512. HoUantsche Mercurius, 1672, p. 50. Dumont, Corps Diplomatique,
VII. i. 163. State Papers, Dom., cccii. 210 ; ccciv. 21, 22 ; cccvi. 27 ; Entry Book,
31, f. 90. Ibid., 34, f. 157.

2 Mahan, op. cit. Colomb, op. cit.

3 jjj March, ^ Sept. 1672. Groot Placact-Boeck, iii. 292, 298. The embargo was

renewed in the next year.

4 State Papers, Dom., cccxv. 108, &c. ; cccxvi. 43

490 THE SOVEREIGNTY OF THE SEA

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

THE THIRD DUTCH WAR

491

sum of £10,000 a-year for permission which the king would
grant them to fish for herrings on the coasts of England, Scot-
land, and Ireland.1

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

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

1 Dumont, Corps Diplomatique, VII. i. 206. Hume, op. cit., c. Ixv. In State
Papers, Foreign, Treaty Papers (Breda), 1667, Bdl. 73 (as at present arranged),
are a number of papers belonging to these negotiations and the later ones at
Cologne in 1673, consisting mostly of draft articles, with copious notes by the
plenipotentiaries. In one, marked "1st project as framed," Art. xiv. refers to
the flag as follows, the words in brackets being inserted here from a second copy :
" That the ships and vessells of the United Provinces, as well men-of-war as others,
be they single ships or in Fleets how great soever, meeting in any part within ye
Brittish seas, with any one of ye ships of war (yatchs) or other vessells w' soever
of ye said K. of Gr. Brittain, or in his service and wearing his flagg, colours (or
Jack) shall strike their flaggs and lower their Topsailes untill they be passed by,
as a Ancient and undoubted Right belonging to the said K., and which hath been
payd and performed to his RU progenitors in all times." The fishery article (xxiv.)
was as follows, the words within brackets being taken from another copy, to fill up
a blank : " And the said States acknowledging his said Majts ancient and undoubted
Right in the Brittish Seas, as they do hereby own and acknowledge ye same, Doe
further promise and agree, that they and their successors will from henceforth pay
to his said Maj. his Heirs and successors, for euer, at the Receipt of his Exchequer,
a yearly sum of ... (lOmte — as likewise ye yearly summe of 2mt sterling by ye
yeare at ye Receipt of his Matys Treasury of his Kingdom of Scotland) . . . ster-
ling by the year, in consideraCon of his Majts license and permission to them and
their subjts to fish in the said seas and upon his Matys coasts." Another article
(xxv.) provided for the payment of £1,000,000 for the charges of the war, £400,000
in the following October, and the remainder later.

492 THE SOVEREIGNTY OF THE SEA

courage of the Prince of Orange and the growing alarm at
the designs of France at last brought allies to the States.
Spain and both branches of the house of Austria espoused
their cause, and German troops came marching to the Rhine.

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

At first, while avoiding the least approbation of the war,
Parliament passed a resolution that they would grant eighteen

THE THIRD DUTCH WAR

493

months' assessments, at the rate of £70,000 a-month, for the
king's " extraordinary occasions " ; but this was designed
merely to allow them time to deal with the Declaration of
Indulgence before Charles could afford to dismiss them. The
contest with the king on this question ended in victory for
the Parliament, which then passed the Test Act, disqualifying
Catholics for all offices under the crown. The king was
still resolved to pursue the war. The money voted by Par-
liament served to equip a fleet; and as the Duke of York
was made ineligible owing to the Test Act, Prince Rupert
took his place as admiral. In May 1673 the combined naval
forces of France and England sought out De Ruyter on his
own coast, and three battles were fought in the summer, — on
28th May, 4th June, and llth August, — both sides claiming
victory; but the Dutch prevented the projected landing of
English troops, and compelled the allies to retire to their
own coasts.1

By this time, however, the king saw he could not with
safety continue to carry on the war much longer. Spain,
which had already declared war against France, threatened
to do the same against England unless peace was made, and
this would destroy the lucrative English trade with that
country. The war was intensely unpopular in England, and
the seamen fought without heart. The timid conduct of the
French squadrons in the various battles excited deep and
widespread resentment. It was on all sides rumoured that
Charles had sold his country in order to carry out the selfish
designs of Louis. The subsidies, moreover, were soon exhausted,
and it would be necessary to ask Parliament again for more
money. It was clear that the appeal which Charles had
made to the spirit or vanity of the nation with respect to
the honour of the flag and the sovereignty of the sea had
thoroughly failed, although inspired and mercenary pens did
what they could to arouse enthusiasm. These efforts were
indeed a measure of the unpopularity of the third Dutch
war. Before it broke out certain authors had handled the
theme. The learned Prynne, who lost his ears for opposing

1 Hume, loc. cit. Temple's Memoirs, i. 166. State Papers, Dom., cccxi. 75, 82,
206 ; cccxiii. 233. Commons' Journals, ix. 246. Dumont, op. cit., VII. i. 206.
ffollantsche Mercurius, 1672, p. 265.

494 THE SOVEREIGNTY OF THE SEA

Charles I., became a subservient supporter of his son ; and,
as Keeper of the Records in the Tower, he published an erudite,
but confused, book in which the absolute right of the King
of England to the dominion of the surrounding seas was
maintained.1 In a very different kind of book, one Captain
John Smith repeated current arguments and misstatements
on the same topic, especially with reference to the fisheries,
for he had been one of the agents of the Fishery Society of
Charles I. He makes a statement that must have caused
the king, if he saw it, some surprise at his modesty in asking
only £10,000 or £12,000 from the Dutch. He had heard, he
says, that the "composition" of the Hollanders for leave to
fish on our coasts was an annual rent of £100,000 and
£100,000 "in hand"; and as none of it had been paid into
the Exchequer, he computed the arrears then to be over
£2,500,000, a sum which, he very truly remarked, — and it
is the sole truth in the statement, — " would come very happily
for the present occasions of his Majesty." Like many others
before him and after him, he advocated the building of a
fleet of busses and the prohibition of the Hollanders from
fishing in the British seas.2 Still other writers laid stress
on the close connection between the sovereignty of the sea
and trade, commerce, and navigation;3 and after the war
broke out more pointed attacks were made against the Dutch.
They were accused of invading our fisheries without license
from the king, refusing to strike sail, disputing our dominion
of the seas, and by artifice supplanting us in trade and
commerce.4

None of those works was of much account, and the Ministry
felt the need of obtaining the services of an able writer to
stimulate ill-feeling against the Dutch, and in particular to
answer a well-reasoned pamphlet which the Dutch had widely
circulated in refutation of the reasons for the war given in

1 Brief Animadversions on, Amendments of, and Additional Explanatory Records
to the Fourth Part of the Institutes of the Lrnoes of England, concerning the Juris-
diction of Courts, compiled by the late famous Lawyer, Sir Edward Coke, Knight,
cC-c., 1669.

2 England's Improvement Revived: Digested into Six Books, 1670.

3 Roger Coke, A Discourse of Trade, 1670.

* William de Britaine, The Dutch Usurpation, or a Brief View of the Behaviour of
the States- General of the United Prwinces towards the King of England, 1672.

THE THIRD DUTCH WAR

495

the king's declaration. The States-General did not reply to
that document, but Wicquefort did so in the pamphlet referred
to, which was entitled "Considerations on the Present State
of the United Netherlands." The tone of his reply was ex-
tremely temperate. The writer insisted on the difference
between the striking of the flag and the sovereignty of the
sea; the former was merely a ceremony of respect which all
republics paid to monarchies, and not in the least a sign of
subjection or an acknowledgment of sovereignty, and as such
it had been regulated in the treaty of Breda. The States
had always resisted the claim that a whole fleet of theirs
should strike to a single English ship. In 1654 Cromwell
had abandoned a similar claim on their objecting; and as
the article in the treaty of Breda was the same as the one
agreed to in 1654, it was unjust to construe it now in the
sense of the article which Cromwell had withdrawn. On
that ground alone, therefore, it could not be maintained that
Van Ghent and the whole Dutch fleet were bound to strike
to the king's yacht. Moreover, the article applied only to
the British seas, and the writer argued that that meant the
Channel and not the North Sea, citing the seventh article of
the treaty of Breda as to the cessation of hostilities. Since
the Dutch fleet were lying at anchor off their own coast
when the king's yacht passed, they were not obliged to strike,
because they were in the North Sea, and not in the British
seas at all. The conclusion was drawn, and as we have seen
justly, that the king had sent his yacht for the deliberate
purpose of getting a ground of quarrel. As for the sovereignty
of the sea, the States attributed to God alone such dominion
as the king usurped to himself. They therefore refused
Downing's demands, which had been put forward to give
the king a pretext for war. To admit them would ruin the
United Provinces, which lived by commerce and the liberty
of the sea. As for the fisheries, they had never asked for
permission to fish from the King of England; and though
in 1636 licenses were forced upon some of their defenceless
fishermen by English men-of-war, that was an act of violence
from which no right or title could be derived, and the attempt
was relinquished at the demand of the States-General, and
had not been repeated.

496

THE SOVEREIGNTY OF THE SEA

The cogent arguments of the Dutch writer were well fitted
to confirm the general opinion in England as to the cause of the
war, and the Court promptly secured the services of Henry
Stubbe, a clever, versatile, and prolific writer, to refute them.
His answer to Wicquefort was considered by the private
committee on 15th May 1672,1 and it was published anony-
mously in the following month.2 The spirit in which Stubbe
entered into his task is revealed in a letter he wrote to
Secretary Williamson. " The rule I go by," he said, " is this :
that no nation is more zealous for their honour than the
English ; that if they are put into a great passion they forget
their particular interests and animosities."3 He therefore
tried as much as he could to inflame the public mind.

The Justification, though rabid in tone, is in many respects
an able book. It differs from many of the controversial works
of the day in that the author, however oblique may be his
inferences from them, does not, so far as we have observed,
pervert and misquote the documents he cites. It is unnecessary
to particularise his arguments on the sovereignty of the sea.
They were drawn mainly from Selden, Welwood, and other
authors, and partly from certain State Papers which the
Ministry placed at his disposal. The striking of the flag by
foreigners was, of course, declared to be a regality, and " para-
mount to all treaties"; it was a "fundamental of the crown
and dignity of the King of England." The attack on the
Smyrna fleet, which Wicquefort denounced and made the
most of, was justified by their refusal to strike their flags,
the instructions issued to the admirals of England for four
hundred years compelling them to seize all ships which re-
fused. The universal dominion which the king possessed
over the British seas was thus formulated: (1) the regality
of fishing for pearl, coral, amber (!), &c., and the "direction

1 State Papers, Dom., cccviii. 143.

2 A Justification of the Present War against the United Netherlands, wherein the
Declaration of his Majesty is vindicated, and the War proved to be Just. Honourable,
and Necessary ; the Dominion of the Sea explained, and his Majesty's Rights there-
unto asserted, ; the Obligations of the Dutch to England, and their continual In-
gratitude: Illustrated with Sculptures. In Answer to a Dutch Treatise entitled,
Considerations upon the Present State of the United Netherlands. By an English
Man, 1672.

:! 8th July 1872. State Papers, Dom., cccxii. 166.

THE THIRD DUTCH WAR

497

and disposal" of all fishes "as they shall seem to deserve
the regards of the public" — a somewhat cryptic claim; (2)
the prescribing of the laws of navigation to foreigners as well
as to the king's own subjects; (3) the power of imposing
customs and taxes upon those navigating or fishing in them;
(4) jurisdiction in regard to maritime delinquencies ; (5) the
duty of foreign ships to strike their flags and lower their
top-sails to the king's "floating castles," the ships of war, by
which "submission they are put in remembrance that they
have come into a territory wherein they are to own a sov-
ereign power and jurisdiction, and receive protection from it."
It was admitted that the sea was free for commerce and
innocent passage; but both might be refused if there was
suspicion of danger, and that the imposition of tribute for
fishing, convoy, or the maintenance of lights and beacons
did not infringe the liberty of commerce.

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

2i

498

THE SOVEREIGNTY OF THE SEA

duce it, until a warrant issued by Lord Clifford compelled
him to give it up.1

The second work was published in 1673, and Stubbe did
all that he promised to do, copiously illustrating it with
figures of the objectionable medals and pictures, and greatly
abusing the Dutch.2

But all such efforts to stir up animosity against the Dutch
and to convince the public and Parliament of the justness of
the war completely failed, and Charles was forced to enter
into negotiations for peace. Immediately after the battle
of the Texel, in August 1673, a congress of the Powers which
had assembled at Cologne began its deliberations to arrange
terms of peace, under the mediation of Sweden. The English
plenipotentiaries were Sir Leoline Jenkins and Sir Joseph
Williamson, and the instructions given to them by Charles
included the following : — " The principal points we shall insist
upon," said the king, "beyond the particular ones relating
to general amity, commerce, &c., are these following: First,
To have the honour for the future paid to the flagg of England,
which hath been practised and acknowledged by them in all
former times. Secondly, A million of pounds sterling to re-
imburse us in some part the expenses we have been at in
making the war. Thirdly, Ten thousand pounds per annum
as an honorary acknowledgment for the great benefit that
Republic reaps for the fishing on our coasts, and two thousand
pounds more for the like liberty they enjoy upon the coast
of our kingdom of Scotland." 3

1 Benson to Williamson, 28th June, 9th July 1672. Stubbe to Williamson, 8th
July. State Papers, Dom., cccxii. 45, 166, 184. The warrant was to Mr Thurloe
and Mr Bish of Lincoln's Inn. Stubbe made considerable use of the book, citing
it as "MSS. Commentary of the Treaty and Articles betwixt the English and the
Dutch in 1653."

2 A Further Justification of the Present War against the United Netherlands,
illustrated with several Sculptures, By Henry Stubbe, a lover of the Honour and
Welfare of Old England, &c., 1673. Unfortunately for Stubbe, he tried his hand
on another line, and was arrested and imprisoned in the same year for denouncing,
in his " Paris Gazette," the Duke of York's marriage with Princess Mary of Modena.

3 Life of Sir Leoline Jenkins, i. 3. For the use of the plenipotentiaries a volume
of transcripts of documents, mostly State Papers, and chiefly in the handwriting
of Williamson's clerks, was prepared, dealing with the claims to the sovereignty of
the sea in its various phases. It comprised 613 folio pages, and forms volume
339 of the Domestic series of Charles II. There is a long memorandum in regard
to the striking of the flag, consisting for the most part of brief paragraphs reciting

THE THIRD DUTCH WAR 499

The terms of peace now offered, it will be observed, were
much less exacting than those demanded in the previous year,
and the request for an express acknowledgment of the king's
sovereignty of the sea was dropped. The Dutch plenipoten-
tiaries at the outset of the proceedings said little difficulty
would be raised about the question of the flag, but they de-
murred to the demand to pay tribute for liberty of fishing.1
This thorny subject was threshed out on either side with all
the old arguments which were used in the times of James and
Cromwell. The Dutch pled possession, prescription, treaties ;
the English replied that the treaties had expired in subsequent
wars, and were abrogated by the separation of the Provinces
from the House of Burgundy, with whom the treaties were
made. A new point was raised to show that no right could

precedents (and many of them are omitted), and arranged under the following
heads : (1) Strikeing in Geuerall ; (2) Whole Fleets to Single Ships and a Greater
Number to a Lesser ; (3) Till they be passed by to keepe downe their Flag in sight
of ye English ; (4) Within the Brittish Seas, What the Brittish Seas are, &c., where
done, &c. What Places esteemed according to this Practice to be within ye
Brittish Seas ; (5) This done as a Duty and Right and not only as a Civillity.
Some of the papers have notes on them, apparently penned by the ambassadors
at Cologne.

1 In one of the papers in the volume provided for the use of the ambassadors,
containing a copy of the fishery article put forward by Cromwell in 1653 and after-
wards withdrawn, is the following, with a sidenote referring to the " king's in-
structions to the special ambassadors " : " Lastly, that ye subiects of ye States
generall shall for ye future abstayne from fisheiug vpon ye Countreys and shores
of any of his Matyes Dominions wthout leaue and Passeports first obtayned. One
thing more I must obserue to you relating to those six propositions particularly
that of ye fishery. In his Matyes former Instructions to you vpon that Point you
were bid to consent to ye leauing out that Article in case ye Dutch should be
obstinate vpon it. But his Maty by progress of tyme finding that his Subiects
seem fonder thereof, bids me now to direct you to insist vpon that, as vpon
ye rest and to frame it as neare as you can according to ye Words set down in
yc Reply." Then after Cromwell's article is the following: "Ye Art. of the
Fishery as contained in ye Project, 1673." It is the same as that given in the
previous year (note, p. 491), — the part referring to the contribution of £2000 for
Scotland being interpolated, — except that it concludes with this sentence, "In
wch fisheing ye said States shall oblidge themselues that their Subiects shall not
come wtbin one league of ye shoares of England and Scotland," which is the first
mention of a three-mile limit that has been discovered. Sir Arnold Braems sug-
gested to Arlington, in August 1673, that the king should insist in the treaty for
an annual payment of £10,000 or £12,000 for their free fishing on his coasts, and
that £3000 of this should be devoted to the bringing over of Dutch families and
fishing-busses to England, a project which was then being tried by more or less
surreptitious methods. State Papers, Dom., vol. 336, No. 295.

500 THE SOVEREIGNTY OF THE SEA

now be claimed under the Burgundy treaties. If they were
still in force, why had the citizens of Bruges in the Spanish
Netherlands, subjects of the King of Spain, who was the
successor and descendant of the Dukes of Burgundy, and the
very people in whose favour the Magnus Intercursus was
made, petitioned the King of England as lately as 1666
for a license to fish in the British seas, a privilege which
had been granted to them ? l To this the Dutch replied
that the right to the fishery did not spring from the treaty
of 1495, which had been made merely to avoid contests that
previously occurred. As the result of conferences with the
Dutch representatives, the Swedish mediators informed Jenkins
and Williamson that the States-General would not consent to
an annual payment for the right of fishery, but they suggested,
as the Prince of Orange had done once before, that the matter
might be compromised by the payment of a lump sum.
Charles declined this proposal, but he reduced the amount of
the yearly payment he asked by half — to £5000 for the English
fishery and £1000 for the Scottish. The conference was at
the same time informed that it was then, and always would
be, the "passion" both of king and subject in England to
assert and preserve the great royalty of the fishery.

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

1 See p. 461.

THE THIRD DUTCH WAR 501

example of the kings of Denmark in dealing with the dues at
the Sound — that is, in gradually raising the amount.1

Passing from this subject to the question of the flag, it was
soon apparent that the Dutch had been too sanguine in think-
ing there would be little difficulty in dealing with it. The
mediators, in drawing up a protocol of the English demands,
had modified the article put in concerning the flag. The Eng-
lish had confined themselves to the bare words "the right of
the flag " (" le droit du pavilion "), to which the Swedes added,
"in the manner your Excellencies (the Dutch ambassadors)
•projected." The Dutch, in short, had expanded the meaning
of the nineteenth article of the treaty of Breda so as to omit
the troublesome and objectionable words "the British seas,"
their proposed article being " that ships of the United Provinces
meeting British ships at sea should lower the top-sail and the
flag, in such manner as the same had ever been previously
observed." Jenkins and Williamson strongly opposed the
omission of the phrase " the British seas." They declared that
the King of England had a special right and immemorial pre-
rogative in those particular seas, but if he grasped at the same
honour in all places, not only the Dutch but all the world
besides would have reason to dispute it with him. They said
further that the king wished that yachts, by name, and all
vessels whatsoever in his service and carrying his colours, flag,
or jack, should have the same honour paid to them. They
also objected to the clause "in such manner as," &c., as being
vague and open to misunderstanding, and insisted that it
should be set down clearly what the Dutch were to do and
how they were to do it in the future. They wished, in short,
to bind the Dutch by an express stipulation to the view that
the meaning of the clause in the previous treaties was that
whole fleets should strike to any single vessel in the king's
service in the British seas, while leaving "the British seas"
undetermined ; and they tabled an article to that effect. Both
the Dutch and the mediators objected to this clause as assert-
ing positively that to have been the custom in former times, and
saying that to admit it would be to condemn themselves in what

1 The ambassadors to the Earl of Arlington, £ Aug., ~f , g Sept.,

IB

Oct. 1673. Life of Mr Ledine Jenkins, i. 68, 86, 87. 10P, 126, 133.

502 THE SOVEREIGNTY OF THE SEA

they had done in regard to the Merlin. They were quite
willing, they said, to do the thing for the future, but it was
unreasonable to ask them to avow so openly that they had
been in the wrong in not doing it hitherto. To this the
English replied that it was most certainly and notoriously an
ancient right of the crown of England, of which they had
proofs in all ages, and that to omit the words would be to
accept of the ceremony as a courtesy and not as a right.

At this stage, however, the king sent them a new article
about the flag, defining in part the limits within which the
Dutch were to be asked to strike, and these were from Cape
Finisterre to the North Cape in Norway. These surprising
boundaries had been suggested a year or two before as the
limits of the British seas by the Masters of the Trinity House
(p. 478), and no doubt Charles meant them to be so considered.
They were derived primarily from Selden's Mare Clausum,
and the southern limit, Cape Finisterre, had been for some time
incorporated in the Admiralty instructions.1 The Dutch were
thus to be asked to strike to English ships along almost
the whole extent of the western coasts of Europe, a distance
exceeding two thousand miles.

The English plenipotentiaries did not like this article. They
informed Lord Arlington that when they were preparing the
one they had already submitted, they had wished there had
been means to ascertain the bounds of our seas as well as there
was for clearing up the point regarding whole fleets striking to
a single ship; but they had concluded that the king and
the Lords of the Committee (for foreign affairs) looked upon
it as a thing so invidious and difficult as not to be attempted
at that juncture. They explained that they would receive no
assistance from the French ambassador or the mediators, all of
whom, they clearly perceived, had difficulty in containing them-
selves from disputing the right of striking at all. As long as
they confined the claim to the British seas they were not afraid
of opposition, since they had overwhelming evidence as to the

1 Perm was in error in supposing that " Finisterre " in the subsequent treaty
was finis terrce, and meant the Land's End in England (Granville Penn, Memorials
of the Professional Life and Times of Sir William Penn, ii. 255). It was de-
scribed as "Finisterre, in Galicia," by the Dutch ambassadors in 1668. See
p. 469.

THE THIRD DUTCH WAR 503

usage. But if they insisted on the limits of Cape Finisterre
and the North Cape, and supported their contention with
arguments from geography or tradition, or if they were asked
to produce proofs or instances as to " the matter of fact " near
those limits, they foresaw that objections would be raised which
they were not sufficiently instructed to answer. No doubt,
they continued, it might be advantageous to fix some limits in
order to lessen the chance of disputes, but even if mathematical
lines could be laid down and agreed upon, it would not remove
all ground of quarrel. Besides, to fix definite bounds would
place upon themselves a burden which properly lay upon their
adversaries ; for when the king's right of the flag was estab-
lished as incontrovertible within the British seas, if any one
who was called upon to strike declared he was not in the
British seas, he would have to prove it. This long disquisition
failed to convince the king. He insisted that the previous
article, in which the term " British seas " alone occurred, should
be withdrawn and the new article with the specified limits
substituted.1

The influence of certain important changes in political affairs
which had taken place since the congress met now made itself
strongly felt at the deliberations. The position and the
prospects of the United Provinces had greatly improved. The
States-General had succeeded in entering into alliances with the
Emperor, the King of Spain, and the Dukes of Brandenburg
and Lunenburg. In the field the movements of the Prince of
Orange and his allies caused Louis to abandon his conquests
with even greater rapidity than he had made them. The
English Parliament, too, from which the Dutch had reason to
hope for much, was about to assemble. It was thus natural
that the Dutch ambassadors and the representatives of their
allies at the congress should take a higher tone in dealing
with the peace proposals. Some of the conditions which had
been put forward by France and England were now declared to
mean " utter ruin " to the Dutch, or their " eternal servitude " ;
and among them was the demand of Charles for a payment
for liberty of fishing, which it was asserted would make them

' The ambassadors to Arlington, fJ, 1 » Sept., ', Oct. 1673.

Life of Sir Ledine Jenkins, i. 91, 95, 109, 117, 120, 125, 133.

504 THE SOVEREIGNTY OF THE SEA

tributary to England. The English plenipotentiaries employed
all the arguments they could discover in Selden's Mare
Clausum and other similar works, and in the volume of
State Papers with which they were provided, to convince
the congress that fisheries might be "appropriated" on the
high seas as well as in rivers and lakes, and that the King of
England had the exclusive right to the fisheries off his own
coasts. They cited the example of Genoa with the tunny
fishery, the treaties between England and Denmark concerning
the fisheries on the Norwegian coast and at Iceland, the
licenses of the kings of Denmark, the English licenses to
French fishermen and the grant to Bruges, the Act of
Richard II., and the licenses forced by the Earl of Northumber-
land on the Hollander busses in 1636. They even displayed
the original documents showing King James's expostulations
with the Dutch in 1618, and the charter granted to Bruges.
It was all in vain. The times had changed. The Dutch
ambassadors could now afford to pass the matter off with a
raillery. They told Jenkins and Williamson that they " would
bait the herrings, as men do carps, to come and feed upon their
coasts, and then they would be in possession of a liberty to
fish " ; adding that they would then allow the English to fish
upon the Dutch coast without fear of molestation. More
seriously, they said that since no similar stipulation had been
allowed in any previous treaty, the States-General trusted
to the goodness of the king to pass over the article on that
occasion ; and Beverning, who was one of the Dutch represent-
atives, recalled how he had discussed the whole matter with
Cromwell in 1653, who had withdrawn the claim to the fishery.

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

The English ambassadors were forced to tell the king that
they had no hope of obtaining consent to the article about the
fishery, unless indeed the Parliament (which had by this time

THE THIRD DUTCH WAR 505

strongly and boldly shown its sympathy with Holland) " should
happen to stand vigorously by his Majesty in this demand
which he is pleased to make." They suggested — almost, one
may think, with a touch of irony — that the Dutch might be
offered, as an alternative, "a Bill," like the proclamation of
James in 1609, or the Act of 2 Richard II. that laid an impost
of sixpence a ton on our own fishing vessels, " wherein," they
added, " if strangers be not intended (as we humbly conceive
they are), they may be more expressly taken in."1

Although it was on the fishery article that the negotiations
stuck most, difficulties also continued to arise about the one on/
the flag. The Dutch said they were willing to do any thin f™
that had been done in former times by way of respect to tus
crown of England ; they could not do it as a right, nor coi ^a
they do anything that might be construed to be an acknowleS W1
ment of the king's claim to the dominion of the British >
They were unable to admit, without proof, that it was"6^
former practice for a whole fleet of theirs to strike to a s-^omE
English ship ; and while again affirming their willingness11
this to be done in future, they declined to make any expres?6
recognition of it as a right in the treaty, saying that it would '
be "abundant courtesy" if they admitted the words Maria
Sritannica, as in all their other treaties ; it was a term, more-
over, which the French could not be brought to admit into their
treaty of Breda, insisting on the term maria proxima instead.
The English representatives would not condescend to adduce
proofs as to the past usage. The king, they said, would not
allow an observance so ancient and notorious to be questioned
as a matter of fact, any more than that England was an ancient
monarchy ; and they did not ask for a fuller stipulation than
in the article proposed by Cromwell. On the other side, it
was pointed out that Cromwell had given up all the points
raised, especially the striking of a whole fleet ; and, moreover,
they could not allow that all the tract of sea between the
North Cape and Cape Finisterre was the British Ocean, and
they hinted they were willing to strike all the world over
without any limitation of places. The English ambassadors

The same to the same, , », Nov. 1673, , Jan., Feb.

1674. Ibid., i. 151, 170, 171, 223, 235, 237, 279.

506 THE SOVEREIGNTY OF THE SEA

wrote to Arlington that although they had not been instructed

to claim as British the sea between the limits named, yet,

if these limits were adhered to, the Dutch would not fail to

alarm the Dane and the Swede, the French and the Spaniard.

They were justly suspicious of the too generous offer of the

Dutch to strike in all seas. They saw in it the design to make

the special right possessed in the British seas, in virtue of the

king's sovereignty there, less certain and evident in future ages,

and to transform it into a mere mark of civility. Charles gave

t way to a slight degree. In February 1674 he sent on another

li^ article, in which the northern limit was brought down from

Frthe North Cape to the middle point of the Land-van-otaten

Ricl Norway.1

land By this time, however, negotiations for a separate peace
the Oween England and the United Provinces had been begun
with tendon, and the sluggish congress at Cologne, slowly evolv-
It was a general peace, broke up and dispersed. Charles was
ambassin to negotiate separately by the action of the Parliament,
raillerv,n financial necessities had forced him to summon in
bait etober, and which lost little time in showing its ill-humour
co'with his policy. In his opening speech he stated that he
had hoped to be able to announce the conclusion of an honour-
able peace, but the Dutch, he said, had treated his ambassadors
at Cologne " with the contempt of conquerors," and had other
thoughts than peace; and he asked for supplies. Shaftes-
bury, as usual, filled in the picture. The king, he said, had
expected to meet them with the olive-branch of peace, but the
obstinacy of the Dutch had foiled the negotiations, although
his Majesty's concessions had been so great. " He could not,"
he continued, "be King of Great Britain without securing
the dominion and property of his own seas: the first, by
an article clear, and not elusory, of the flag; the other, by

1 The same to the same, ~ Oct. 1673 to .^ Feb. 1674. Ibid., i. 139, &c. State

'20 10

Papers, Foreign, Treaty Papers (Breda, sic), Bdle. 73. There were prolonged
discussions as to the extent of the British seas both in regard to the article on
the flag and that on the cessation of hostilities on the sea, as shown by the very
numerous notes on the draft articles. The ambassadors were of opinion with
regard to the latter article that St George's Channel and the sea between England,
Ireland, and Scotland were comprehended in the term "the Channel," a point
which was left for the opinion of the king.

THE THIRD DUTCH WAR 50

an article that preserved the right of the fishing, but gave
the Dutch permission, as tenants, under a small rent, to enjoy
and continue that gainful trade upon his coasts." But the
Dutch, he said, would not agree to any article on the flag
that was clear or plain, and they refused any article about
the fishery except such a one as might convey to them the
right of inheritance for an inconsiderable sum of money,
" though it be a Royalty so inherent in the crown of England,
that I may say (with his Majesty's pardon for the expres-
sion) he cannot sell it." " There is not," continued the Chan-
cellor, "so lawful or commendable a jealousy in the world,
as an Englishman's of the growing greatness of any Prince
at sea. If you permit the sea, our British wife, to be ravished,
an eternal mark of infamy will stick upon us." It was
therefore the duty of Parliament to provide the king with
more money.1

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

Shortly afterwards the king found it necessary to summon
Parliament again, and, changing his attitude, he condescended
to submit to them, for their opinion, certain propositions for

1 Commons' Journals, ix. 282. Lords' Journals, xii. 588.

>08

THE SOVEREIGNTY OF THE SEA

peace which the States - General had communicated through
the Spanish ambassador. At the same time he sent privately
for John Evelyn, who had been for some time engaged on
a history of the second Dutch war, and asked him to write
something "against the Hollanders about the duty of the
flag and fishery," no doubt with the intention and object
of influencing the opinion of Parliament.1 Parliament acted
with promptitude. They passed a resolution, on 27th January
1674, recommending the king to make a speedy peace. Louis,
who saw how things were tending with the Parliament, having
advised the same course, Sir William Temple was summoned
from his orchards a few days later and requested to proceed
to The Hague to conclude the treaty. On the eve of his
departure, the Marquis de Frezno, the Spanish ambassador,
announced that he had received full powers from the States
to treat and conclude a peace. The negotiations were there-
upon conducted in London between Sir William Temple and
the Marquis, and they went on so smoothly and speedily that
the treaty was signed at Westminster on 9th February. The
two points that caused the greatest difficulty were the flag and
the recalling of the English troops from the French service : the
claim for tribute for liberty to fish was dropped altogether.2

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

" The said States-General of the United Provinces, duly acknow-
ledging, on their part, the right of the above-mentioned most serene
prince, the King of Great Britain, to have honour paid to his flag in the
seas to be hereafter named, will and do declare and agree, that all and
singular the ships and vessels belonging to the said United Provinces,
whether ships of war or others, whether single ships or in squadrons,
which shall meet with any ships or vessels whatsoever belonging to the
most serene prince, the King of Great Britain, whether one orinore,
carrying his Britannic Majesty's ensign, or flag called the Jack, in any
of the seas from the Cape called Finisterre, to the middle point of the
land called van Staten, in Norway, the foresaid ships or vessels of the
United Provinces shall strike their flag and lower their topsail, in the
same manner and with the like testimony of respect, as hath been

1 P. 513.

2 Hume, loc. cit. Commons' Journals, ix. 299. Temple's Memoirs, i. 167-169.
Temple to the Prince of Orange, Feb. 1674. The same to the Duke of Florence,
llth Feb. 1674. Works, iv. 13, 16.

THE THIRD DUTCH WAR 509

customary in any time or place heretofore, by any ships of the States-
General or their predecessors to any ships of his Britannic Majesty or
his predecessors."1

Most writers who have dealt with the subject have followed
Temple in thinking that this article was a great triumph for
English diplomacy. "The point of the flag," said Temple,
"was carried to all the height his Majesty could wish; and
thereby a claim of the crown, the acknowledgment of its
dominion in the narrow seas, allowed by treaty from the
most powerful of our neighbours at sea, which had never
yet been yielded to by the weakest of them, that I can
remember, in the whole course of our pretence; and had
served hitherto but for an occasion of quarrel, whenever we
or they had a mind to it, upon other reasons or conjectures."2

1 Prsedicti Ordines Generales Unitarum Provincial-Una debite, ex parte sua ag-
noscentes jus supramemorati Serenissimi Domini Magnse Britanniae Regis, ut
vexillo suo in maribus infra nominandis honos habeatur, declarabunt et declarant,
concordabunt et concordant, quod qusecunque naves et navigia ad preefatas
Unitas Provincias spectantia, sive naves bellicse, sive alite, ea;que vel singulae vel
in classibus junctse, in aliis maribus a Promontorio Finis Terrce dicto usque
ad medium punctum terrse van Staten dictse in Norwegia, quibuslibet navibus
aut navigiis ad Serenissimum Dominum Magnse Britannia) Regem spectantibus,
obviam dederint, sive illse naves singulae sint, vel in numero majori, si majestatis
Britannicse sive aplustrum, sive vexillum Jack appelatum gerant, pnedictse Uni-
tarum Provinciarum naves aut navigia vexillum suum e mali vertice detrahent
et supremum velum demittent, eodem modo parique honoris testimonio, quo ullo
unquatn tempore aut in alio loco antehac usitatum fuit, versus ullas Majestatis suse
Britannicte aut antecessorum suorum naves ab ullis Ordinum Generalium suorumque
antecessorum navibus." Art. iv. Dumont, op. cii., VII. i. 253. The land van
Staten (which is a Dutch expression) is the peninsula of Stadtland in N. Berghus,
in 62° 5' N. latitude. It is probable that the English Ministers took the advice
of the Trinity House (p. 478) to consult the authors who had written on the
northern boundary of the British seas, and that the substitution of van Staten
for the North Cape, first made at the congress of Cologne (see p. 506), was based
upon Selden's plate showing the British seas (Mare Clausum, lib. ii., cap. i.,
p. 122), and which is reproduced in the frontispiece of this book. Selden's plate
was much less liberal to the British seas than was his text. The Dutch appellation
may have been extracted from a Dutch map.

2 Memoirs, i. 170. Temple added: "Nothing, I confess, had ever given me a
greater pleasure, in the greatest public affairs I had run through, than this success ;
as having been a point I ever had at heart, and in my endeavours to gain, upon
my first negotiations in Holland, but found Monsieur De Witt ever inflexible,
though he agreed with me it would be a rock upon which our firmest alliances
would be in danger to strike, and to split, whenever other circumstances fell in to
make either of the parties content to alter the measures we had entered into upon
the triple alliance."

I

510 THE SOVEREIGNTY OF THE SEA

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

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

1 Brit. Mua. Add. MSS., 30,221, fol. 59. Some writers on international law
erroneously describe the boundaries mentioned in the article as the boundaries of
the British seas.

511

be clearly defined; and Charles was entirely satisfied with
the article.1

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

1 Temple to the Duke of Ormonde, Oct. 1673. The same to the Duke of
Florence, llth Feb. 1674. Works, ii. 91 ; iv. 19.

512 THE SOVEREIGNTY OF THE SEA

took in its flag, and the incident ended.1 In the following
year Sir Leoline Jenkins was again a passenger on board
one of the royal yachts, the Charles; on reaching the Maes
a Holland man-of-war saluted with five guns, but kept its
pennant flying, and only took it in and repeated the guns after
two shots had been fired at it by the Charles; the men-of-
war at the Briel also saluted with their pennants struck.2

In the spring of the same year Captain Herbert in the
Cambridge encountered six French ships off Dungeness which
refused to strike, and returned the fire, their admiral saying
it was the King of France's ship, and did not strike. They
outsailed the Cambridge, said Herbert, which was no match
for them. A few weeks later a French privateer in the same
locality refused to strike to the Garland ; and the tables were
turned on the English by a Dutch privateer, which fired on
a Whitby merchant vessel for not striking quick enough,
and fined the master six shillings and eightpence for each shot
expended, as well as beating and abusing him.3 A case of
quite a different kind, unique indeed, as it appears, occurred
at the end of 1675. On the return of the Quaker ketch to
England the officers charged the commander, Captain Joseph
Harris, with having lowered his top-sails to a Spanish man-of-
war, supposed to be an Ostend privateer, in the Bay of Biscay,
to the great dishonour of the king. He was tried by a court-
martial, found guilty, and condemned to be shot to death at
such time and place as the Lords Commissioners of the
Admiralty should appoint.4 He was, however, reprieved and
then pardoned.5

1 Life of Sir Leoline Jenkins, ii. 697. 2 State Papers, Dom., vol. ccclxxvi. 46.

3 State Papers, Dom., ccclxx. 238, 245, 252.

4 State Papers, Dom., ccclxxvi. 92 ; ccclxxix. 9. The incident occurred on llth
November 1675, between 46 and 47 degrees latitude. The Spanish ship "required
him to strike for the King of Spaine, and the said Capn Harris haueing seuerell
times refused to doe it, and required the said Ostender to strike for his Maty of
Greate Brittain ; yet neuerthelesse he, Cap* Jos. Harris, in the time of their con-
vention (sic) about this matter, did order the Topsaile of the said Ketch to be
Lowered, wch was accordingly done, and is proued by the depositions vpon Oath
taken in Court," &c. The court found that by lowering his top-sails he struck to
a foreigner in his Majesty's seas, " a great derogadon from his Maties Honour, con-
trary to the 32th Article of the General Instrucc&ns and punishable by the Eleventh
Article of War."

6 H. 0. Warrant Book, i. 126, 144.

THE THIRD DUTCH WAR 513

Difficulties not infrequently occurred with merchant vessels,
and even with fishing-boats, over this matter of the flag. We
find Pepys writing to Captain Binning of the Swan, at Yar-
mouth, telling him that while he should take care that the
Dutch "do their parts of civility towards his Majesty's
flag," he ought not to impose upon them any "innovation,"
the reference being to the taking of twelve barrels of herrings
from each of the offenders in lieu of carrying them into port.1
Foreign merchant vessels, especially Spanish and French, were
sometimes brought into port and their masters tried before
the High Court of Admiralty for refusing to strike to English
men-of-war. By the strict law of the Admiralty such vessels
might have been forfeited, but this extreme course was appar-
ently rarely or never taken, the usual punishment inflicted
being fine and imprisonment. Cases of this kind were naturally
apt to raise unpleasant questions with foreign Powers, and they
had to be dealt with cautiously. In 1675, when two Frenchmen
were brought before the court for this offence, the judge, Sir
Thomas Exton, appealed for advice to Sir Leoline Jenkins,
then at the Congress of Nimeguen, and was warned by him
to be very careful how he dealt with the case. He advised
him to meddle as little as possible with the French edicts
of 1555 and 1584 (see p. 117), under which the French
Admiralty claimed similar rights, and to " stick to the terms
of the indictment of the Spanish Captain at the Old Bailey,"
adding that although much might be said plausibly on the
subject of striking, that indictment had never been attacked ;
and he argued against the seizure and forfeiture of the ship.2

After the third Dutch war several works appeared in which
the claims of England to the salute and to the sovereignty
of the sea were maintained. It has been already mentioned
that at the beginning of 1674, when the Dutch offers of
peace were received in London, the king asked Evelyn to
write something against the Dutch about the flag and fishery.
As the occasion was pressing, Evelyn extracted the introductory
part of his work on the second Dutch war (a work which was

1 8th Oct. 1674. Tanner, Catalogue of Naval MSS. in Pepysian Library,
No. 1838.

2 Life, ii. 716. Various other indictments are referred to in Brit. Mus. Add.
MSS., 30,221, fol. 626.

2 K

514 THE SOVEREIGNTY OF THE SEA

never completed), and after submitting it to the king, published
it under a rather misleading title.1 Notwithstanding the haste
shown, the book appeared too late. Peace had been concluded,
and the Dutch ambassador complained about it to the king.
Charles ordered it to be recalled, but with characteristic artifice
he instructed that the copies which were seized publicly to
pacify the ambassador should be immediately restored to the
printer, by which means the sales at least were much increased.2
About the book itself little need be said. It is an ill-digested
and unveracious account of England's claim to the sovereignty
of the sea and the fishery, founded on Selden, Boroughs, and
less reputable writers. The author computed the arrears of
" rent " due by the Dutch, and which he said they had engaged
to pay for liberty of fishing, at over £500,000 ; and he falsified
the amount of "license -money" received by Northumberland
in 1636, although the Earl's journals, and many other docu-
ments, were placed at his disposal. The most severe criticism
of the work was made by the author himself, in a long and
remarkable letter which he sent to Pepys a few years later,
in which he repudiated, seriatim, all the "evidences" he
had adduced in favour of the English pretension.3

Another book of more influence than Evelyn's, because it
was for a long time considered the standard work on the
maritime law of England, and went through many editions,
was published by Molloy two years later; and in it the
English pretension received perhaps its most arrogant expres-
sion.4 Notwithstanding the terms of the treaty of 1674, the
author declared that the striking of the flag was not a mere

1 Navigation and Commerce ; their Original and Progress, 1674.

2 Evelyn's Diary and Correspondence, ii. 90, 91 (ed. 1850).

3 Evelyn to Pepys, 19th Sept. 1682. "To speake plaine truth," he says, "when
I writ that Treatise, rather as a philological exercise, and to gratifie the present
circumstances, I could not clearly satisfie myself in sundry of those particulars, nor
find realy that euer the Dutch did pay toll or tooke license to fish in Scotland after
the contest (with Spain) from any solid proofs. ... I think they neuer payd a
peny for it ... nor did I find that any rent (wheroff in my 108 page I calculate
the arrears) for permission to fish, was euer fixed by both parties."

4 De Jure Maritimo et Navali, or a Treatise of Affaires Maritime and of Com-
merce, London, 1676. Editions were published in 1682, 1690, 1744, 1769, &c. It
is still quoted by writers on international law. Molloy was the author of a work
attacking the Dutch during the second Dutch war — Holland's Ingratitude, or a
Serious Expostulation ivith the Dutch, <L-c., 1666.

THE THIRD DUTCH WAR 515

ceremony of respect, but an absolute acknowledgment of
England's sovereignty of the seas, the king granting foreigners
a general license to pass through his seas, " paying that obeis-
ance and duty, like the services when Lords grant out estates,
reserving a rose or peppercorn, the value of which is not
regarded, but the remembrance and acknowledging their
benefactor's right and dominion." Molloy held that by the
treaty of 1674 the dominion of the British seas was "ascer-
tained" to extend from Cape Finisterre to Van Staten, in
Norway, and similar opinions on this and on the subject
generally were expressed by other writers on naval matters,
as by Godolphin *• and Zouch,2 and by most writers on Admir-
alty affairs during the remainder of the century and well into
the next.

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

Various efforts were made, openly and surreptitiously, to
induce Dutchmen to settle at Yarmouth and Dover ; the king
even issued a declaration to encourage this in June 1672.
But the schemes failed, and Sir Arnold Braems suggested that
£3000 of the amount expected to be paid by the Dutch for
the liberty of fishing should be devoted to bringing over

1 A View of the Admiral Jurisdiction, <L-c., London, 1661 ; 2nd edition,
1685.

2 The Jurisdiction of the Admiralty of England Asserted, London, 1686.

516

THE SOVEREIGNTY OF THE SEA

busses and men.1 Early in 1675 a detailed scheme was laid
before Charles for the setting up of a fishery company with
forty busses and a capital of £40,000, the estimated profit in
the first year being placed at £31,463.2 Among the objections
urged to the setting up of the fishery by the king were the
want of seamen and experienced curers; the acquaintance
of the Dutch with the markets and their spare living, which
would enable them to undersell us ; and the laziness of English
seamen. These objections were apparently answered satis-
factorily,3 and in 1677 Charles issued a commission to the
Duke of York, the Earl of Danby, and others for a new society,
to be called " The Company of the Royal Fishery of England,"
granting a number of privileges and £20 per annum from
the customs of the port of London for each buss or dogger.
Stock was subscribed to the amount of about £12,500, which
was spent in purchasing busses; but as they were Dutch-
built and manned by Dutchmen, the French, then at war
with the United Provinces, seized six of the seven belonging
to the company and brought the work to a stop. Although
the company was reconstructed later, and an attempt to
raise £60,000 to carry it on made with some success, the
death of the king and the troubles which followed caused
the enterprise to be suspended. Thus the endeavours of
Charles II. to create a great national fishery in England
were no more successful than those of Charles I.

1 England's Great Interest, 38. State Papers, Dom., cccxi. 86 ; cccxv. 196 ;
cccxxxvi. 295.

2 State Papers, Dom. , ccclxix. 263. It is endorsed by Williamson, " Herring
Fishery : Given me by ye King to keepe. Sunday, 24 Ap. 75," and is unsigned.
Each buss was to be of 70 tons, with a master, mate, pilot, and 12 seamen, to
be all paid partly by results. The whole charge for the first year was put at
£58,537, and the earnings at £90,000, on the assumption that each buss would
catch 100 lasts of herrings, 15,000 cod, and 10,000 ling.

3 State Papers, Dom., ibid., 264, 265.

517

CHAPTER XIV.

JAMES II. AND AFTER.

IN the short and troubled reign of James II. little was heard
of the claims of England to the sovereignty of the sea. Bad
king as James was, he rescued the navy from the deplorable
condition into which it had sunk in the later years of Charles, —
of which Pepys has left so graphic a picture,1 — and the naval
officers continued to enforce the routine duty of the flag ; but
the domestic troubles with which he was surrounded prevented
him from turning it to account against any of his neighbours,
even if he had been so inclined. And with the Revolution of
1688 the whole aspect of the question was changed. The
English pretension, as we have seen, had been specially
directed against the United Provinces, but when the Prince of
Orange was called to the English throne as William III., and
was thus the ruler in both countries, it was not to be expected
that he would show much zeal in continuing the policy of the
Stuarts against his own countrymen.

It is true that in the treaty which was concluded between
England and the Dutch Republic in 1689, the article on the
flag in the treaty of Westminster was repeated and confirmed.
This, however, was very much a matter of routine and formal-
ity, though it must be said the Dutch ambassadors in London
complained that William was as obstinate and punctilious about
the question of the flag as any purely English sovereign could
have been.2 But from this time until well on in the next
century England and the United Provinces were united as

1 Mcmoires relating to the State of the Royal Navy of England for Ten Years,
determin'd December 1688. London, 1690.

3 Dumont, Corps Diplomatique, VII. ii. 236. Wagenaar, Vaderlandsche ffistorie,
c. Ixi.

518

allies in the great wars with France. There was thus little
room for serious disputes with them about the flag, the right to
the herring fishery, or the sovereignty of the sea, even if the
desire had existed. Against France, however, William made
use of the customary language as to the English sovereignty of
the sea. In the spring of 1689, after William had been pro-
claimed King of England, Louis XIV. foresaw the formidable
coalition that would be formed against him, and h& boldly
issued what was virtually a challenge to England on the
subject. He published an ordinance on 15th April in which he
not only prohibited his officers from giving the first salute to
ships of other nations carrying flags of equal rank to their
own, but ordered them to demand the salute from foreign
vessels on whatever seas or coasts they might encounter them,
and to compel them by force if they refused.1 That this
challenge of Louis to dispute the sovereignty of the sea was
not too presumptuous was shown in the following year, when
the combined fleets of England and Holland were defeated by
the French off Beachy Head. In the declaration of war
against France, in May 1689, the ordinance of Louis was made
one of the reasons for hostilities. "The right of the flag,"
said William, "inherent in the crown of England, has been
disputed by his orders, in violation of our sovereignty of the
Narrow Seas, which in all ages has been asserted by our
predecessors, and which we are resolved to maintain, for the
honour of our crown and of the English nation." 2 They were
strange words to come from the mouth of one who was Prince
of Orange as well as King of England, but the times were
changing and such phrases were soon to become merely empty
forms.

With respect to this ceremony of the flag, which the English
professed to regard as an acknowledgment of their sovereignty
on the sea, it may be said that from this time on it ceased to
have much importance in international affairs. The instructions
issued by the Admiralty to the naval officers continued to be
explicit enough, and they indeed suffered but little change for
another century. The commander of one of his Majesty's ships,
on meeting with any ship or ships belonging to any foreign
prince or state within his Majesty's seas (which, it was explained,

1 Valin, Nouveau Commentairc sur I'Ordonnance de la Marine, <L-c., ii. 689.

2 Dumont, op. cit., VII. ii. 230.

JAMES II. AND AFTER 519

extended to Cape Finisterre, Van Staten not being mentioned),
was to " expect " such ship or ships to strike their top-sail and
take in their flag, " in acknowledgment of his Majesty's sover-
eignty of those seas," and if they refused or offered to resist,
they were to be compelled to do so. Within his Majesty's seas
his Majesty's ships were in no wise to strike to any ; and in
other parts only if the foreign ship struck first or at the same
time, except in a foreign harbour or in a road within gunshot
of a fort or castle, in which case a salute with guns was to be
given if the commander of the fort agreed to answer gun for
-gun. If any British ship was so far forgetful of its duty as
not to salute the king's ship by striking the top-sail as it passed
by, when it might be done without loss of the voyage, they
were to be " brought to the Flag " to answer their contempt, or
reported to the Admiralty for proceedings to be taken.1 Sim-

1 " Upon your meeting with any ship or ships within his Majestie's Seas, (which
for your better guidance herein, you are to take notice that they extend to Cape
Finisterre) belonging to any foreign Prince or State, you are to expect them in
their passage by you, to strike their topsail and take in their flag, in acknowledg-
ment of his Majestie's Sovereignty in these Seas ; and if any shall refuse, or offer
to resist, you are to use your utmost endeavour to compel them therto, and in no
wise to suffer any dishonour to be done to his Majesty ; and in case any of his
Majestie's subjects shall be so far forgetful of their duty, as to omit striking their
topsail as they pass by you, when it may be done without the loss of the voyage,
you are to bring them to the Flag to answer their contempt, or otherwise to return
the name of the ship and of the master to the Secretary of the Admiralty, or the
Lord High Admiral of England, or the Commissioners for executing the office of
Lord High Admiral for the time being, as also the place whence and the port to
which he shall be bound. And you are to make the master of such ship pay the
charge of what shot you shall make at her. And you are further to take notice
that in his Majestie's Seas his Majestie's ships are in no wise to strike to any ; and
that in other parts no ship of his Majestie's is to strike her flag or topsail to any
foreigner, unless such foreign ship shall have first struck, or at the same time strike,
her flag or topsail to his Majestie's ship, except in the harbour of some foreign
Prince, or in the road within shot of cannon of some fort or castle, where you are
to send on shore to inform yourself what return they will make to your salute.
And in case you have good assurance you shall be answered gun for gun, you are
then to salute the port as is usual ; but if you shall not be well assured that you
shall have an equal number of guns returned you, you are in no wise to salute that
place. And in case the ship in which you now command shall at the same time
carry his Majestie's flag, you are, before you salute the place, carefully to inform
yourself how flags of the same quality with that you carry, of other Princes, have
been saluted there, and you are to insist on it being saluted with as great respect
and advantage as any flag of the same quality with yours, of any other Prince, hath
been saluted in that place, from which you are in no wise to depart." Art. xxxv.
1691. State Papers, Dom., H. 0. Admiralty, 1, No. 14. Justice, A General
Treatise of the Dominion and Laws of the Sea, 595.

520 THE SOVEREIGNTY OF THE SEA

ilar instructions were issued in succeeding reigns, the injunction
to compel by force those who refused to strike being limited to
flag officers and commanders.1

Disputes as to striking appear to have been much less
common in the latter part of the seventeenth and in the
eighteenth century than they were previously, but they some-
times occurred ; and the ceremony seems to have been enforced
on Dutch ships, though they were allied with the English fleet
at the time. At all events, the Lords of the Admiralty in 1694
wrote to the Duke of Shrewsbury saying that the instructions
required the respect of the flag from all nations whatsoever,
without any distinction, and that Sir Cloudesley Shovel had
been advised to that effect.2 At this period, as indeed always,
the Danes were very punctilious as to Kronberg Castle on the
Sound being saluted with proper respect by foreign ships, and
in 1694 Shrewsbury advised the Admiralty that the king had
signified his pleasure that all ships of war sent to the Sound
should salute Kronberg with three guns only, upon assurance
that their salute would be returned by the castle with a like
number of guns.3

Early in the reign of Anne, in 1704, a sanguinary encounter
took place with reference to the striking of the flag that
equalled if it did not surpass in brutality any case that
happened under Charles. An English squadron under the
command of Admiral Whestone fell in with a Swedish man-
of-war convoying some merchant vessels. The Swedish com-
mander refused to strike to the English admiral, on the ground
that he had received strict injunctions not to do so to any flag
whatever, even in the Channel, and thereupon the English
proceeded to compel him by force. After about 150 Swedes
had been killed or wounded, as well as many English, the un-
lucky man-of-war, with all the merchantmen, was brought into
Yarmouth Roads.4 Another case of a different kind happened
in 1728, early in the reign of George II. A French man-of-war,
the Gironde, under the command of Mons. de Joyeux, on going

1 Regulations and Instructions relating to His Majesty's Service at Sea. Estab-
lished by His Majesty in Council. 2nd edition, 1734, Art. xi. Ibid., 10th edition,
1766. Ibid., 13th edition, 1790.

2 State Papers, Dom., H. 0. Admiralty, 5, 1108, October 19.

3 State Papers, Dom., Petition Entry Book, 3, 90. 4 Justice, op. cit., 193.

JAMES II. AND AFTER 521

into Plymouth Sound on 23rd November, was hailed by an
English frigate, which demanded that he should salute the
fortress and the frigate. The Frenchman replied that the
bad weather had prevented his sending an officer to the
governor to agree about a salute, but that he owed none to
the frigate, which carried a pennant only, it being usual to
salute none but flags; and he passed quickly into the port,
where the captain of another frigate sent to ask him if he
would not salute the commodore, who carried a bare pendant,
and he returned the same answer. On coming out again on
the 29th the frigate called upon him to strike his pennant,
and on his refusal threatened to fire upon him. M. de Joyeux,
feeling that it was by no means proper to hazard his ship
under the cannon of the castle and the batteries, then complied,
and also saluted the fort with eleven guns, as previously
arranged. This "insult" was made the subject of complaint
by France, and when all the papers had been submitted to the
king he instructed that the officer responsible, Lieutenant
Thomas Smith of the Gosport, should be forthwith dismissed
the service as having in this particular exceeded his instructions.1
In the writings of the naval historians of last century one
may find expressed the views which were then prevalent in
naval circles as to the striking of the flag and the sovereignty
of the sea generally. They claimed for the crown of England
an exclusive propriety and dominion in the British seas, both
as to the right of passage and the right of fishing, and the
widest limits were assigned to those seas. Thus Burchett,
who was Secretary to the Admiralty, defined them as follows
in 1720 : On the east they extended to the shores of Norway,
Denmark, Germany, and the Netherlands, so as to include
the North Sea ; on the south they were bounded by the shores
of France and Spain to Cape Finisterre, and by a line from
that Cape westwards to meet the western boundary, thus
comprising the Channel, the Bay of Biscay, and part of the
Atlantic Ocean; on the west they extended to an imaginary
line in the Atlantic in longitude 23 degrees west from London,

1 State Papers, Dom., Naval, 1769, 45. Copies of the various papers sent from
the Admiralty to the Under-Secretary of State. Professor Laughton states that
Lieutenant Smith was reinstated to a higher rank next day. Fortnightly Review,
Aug. 1866, p. 721.

522 THE SOVEREIGNTY OF THE SEA

passing from the southern boundary to latitude 63 degrees
north ; and on the north they were bounded by this parallel
to the middle point of Van Staten. These were declared to
be the British seas proper, in which the crown had the most
absolute dominion and the right to the honour of the flag from
all other nations; but in addition, it was stated that on the
north and west as far as America and Greenland the crown
had also " most ample rights " in virtue of first discovery and
occupation.1

No doubt much of the claim put forward by these writers on
behalf of the maritime dominion of England was stereotyped,
and had more form than substance. Entick, indeed, in 1757,
although asserting the right of Great Britain to an absolute
sovereignty of the sea, and to the striking of the flag as an
acknowledgment of it, himself described this duty as " but an
indifferent honorary ceremony." The changed point of view in
which the matter was regarded was shown also in the declara-
tion of war by Great Britain against the United Provinces in
1780, because they had joined the Armed Neutrality. It
contained nothing referring either to the flag or to the sover-
eignty of the sea; and it was doubtless as a mere matter of
form and precedent that a brief article relating to the striking
of the flag was inserted among the preliminary articles of
peace, drawn up at Paris in 1783, and in the definitive treaty
of peace concluded with the United Provinces in the next
year.2 The time was approaching when this ceremony was to
pass away altogether as a symbol of our maritime sovereignty,
even in the eyes of Englishmen. There was little need of

1 A Complete History of the Most Remarkable Transactions at Sea, <£c. By Josiah
Burchett, Secretary to the Admiralty, ] 720. Burchett's account and definitions
were adopted by later writers, as Lediard, The Naval History of England, 1735 ;
Colliber, Columna Rostrata ; or a History of the English Sea Affairs, 1727 ; Entick,
A New Naval History or Compleat View of the British Marine, <0e., 1757 ; Campbell,
Lives of the Admirals and other Eminent British Seamen, 1742-44. Entick claimed
for the crown the right to all the fisheries in the British seas, the right to impose
tribute on all merchant ships navigating them, the execution of justice for all
crimes committed within them, the permitting or denial of free passage through
them to foreign ships of war, and the striking of the flag.

2 In both it was as follows : " Art. ii. A 1'egard des honneurs du pavilion, et
du salut en mer, par les vaisseaux de la Re"publique vis-a-vis de ceux de Sa Maj.
Britannique, il en sera use1 respectivement de la meme maniere qui a e'te' pratiqude
avant le commencement de la guerre qui vient de finir." Martens, Recue.il de
Traites, iii. 514, 561.

JAMES II. AND AFTER 523

claiming it as an acknowledgment of our actual naval suprem-
acy during the greater part of the eighteenth century, for
it was obvious to all the world that British sea-power was
supreme. From the reign of Anne onwards the naval force of
Great Britain was overwhelming, and formed a determining
factor in the history of Europe. This country was undisputed
mistress of the seas, — or tyrant of the seas, as our enemies
preferred to put it, — and our old rival, the Netherlands, was
left far behind in the race for naval power as well as in
commerce.1 Nor was it longer necessary to insist on the
honour of the flag in order to stimulate the valour of our
seamen, to keep alive the spirit of maritime glory in the
nation, or to evoke the reverence of foreign peoples. The
forcing of all foreign ships to strike in the British seas be-
came a political encumbrance unsuited to the times. It was
allowed to fall into disuse when its inconvenience had long
outgrown any utility it had possessed, and the battle of Tra-
falgar, in 1805, gave the opportunity of departing from the
ancient claim. The naval power of France and Spain having
been humbled, it was thought a convenient time spontaneously
to abandon a pretension which " could not probably have been
maintained much longer except at the cannon's mouth." 2 The
Admiralty, with the approbation of the Government, accord-
ingly omitted the arbitrary article from their instructions for
the fleet.3

In the closing years of the seventeenth century and the
earlier part of the next there were many signs that the era of
claiming an exclusive sovereignty over extensive regions of
the sea was passing away ; and that, on the other hand, the
policy of fixing exact boundaries for special purposes, either by
international treaties or national laws, was taking its place.
Such signs may be observed in the writings of public men, as
in the letter of recantation which Evelyn indited to Pepys in

1 Maban, The Influence of Sea Power upon History, 209, 225, 510, &c.

2 The Life of Richard, Earl Howe, 200 (1838).

3 In the Regulations and Instructions issued in 1808, the article is as follows :
" XXIV. Within his Majesty's seas his ships are not on any account to strike their
topsails, nor take in their flags ; nor in any way to salute any foreign ship what-
ever ; nor are they, in any other seas, to strike their topsails, or take in their
flags, to any foreign ships, unless such foreign ships shall have first struck, or shall
at the same time strike, their flags and topsails to his Majesty's ships."

524 THE SOVEREIGNTY OF THE SEA

1682 (see p. 514), which included a long reasoned argument
against the English pretensions. Still more to the point was
the appearance of an extremely able work by Sir Philip
Meadows in 1689, immediately after the Revolution, in which
these pretensions were subjected to the most destructive criti-
cism.1 Meadows had considerable experience of public affairs.
As Latin Secretary to Cromwell's Council — an office to which
he was appointed in 1653 in order to relieve the poet Milton,
whose blindness interfered with his duties — he was conversant
with the negotiations then proceeding with the Dutch; and
later, as ambassador to Denmark and then to Sweden, he had
opportunities of acquainting himself with the claims to mari-
time sovereignty put forward by those countries. The keynote
of Meadows' work was, that as the dominion of the seas was
apt to become a specious pretence to a war between England
and Holland, while the real causes of such a war were hidden
and remote, nothing would conduce more effectually to preserve
a lasting peace than a true knowledge and right understanding
of the matter. If the claim of England as expounded by
Selden was to be considered the proper standard of right and
wrong between us and other nations, " if what was well written
must be fought for too, not being to be gained but by a longer
tool than a pen," then the King of England would be cast upon
this hard dilemma — either of being involved in endless and
dangerous quarrels with all his neighbours abroad, or of having
his honour and reputation prostituted at home, as tamely
suffering "the best jewel of his crown to be ravished from it."
The English pretension, he pointed out, differed from that of
Venice, inasmuch as it related not to a bay or gulf, but to a
sea open on both sides which formed the passage of communi-

1 Observations concerning the Dominion and Sovereignty of the Seas : being an
Abstract of the Marine Affairs of England. In his preface the author says the
work was presented in manuscript to Charles II., "and well accepted by him." In
a letter from W. Bridgeman to Sir J. Williamson, dated from Whitehall, 13th May
1673, there was enclosed "a paper drawne up as I remember about the beginning
of this Warre by Sr Philip Meadowes, which I find amongst other papers, and
showing it to My Lord he directed mee to send it to you." The enclosure is
endorsed, " Soveraignity and Fishery by Sr Phil. Meadowes, 1674," the proper date
being probably 1672. It is evidently a draft of the later work, essentially the same
in substance and tone. (State Papers, Dom., Chas. II., vol. 335, Part II., No. 168.)
Later he sent a copy to Pepys, dated January 2, 1686. Brit. Mus. Add. MSS.,
30,221, ff. 13-43.

JAMES II. AND AFTER 525

cation for the northern and southern nations of Europe. Per-
sistence in the pretension would therefore result in war between
the island and the Continent, as to whether the island should
have the sea to herself, or whether the Continent should have
a share of it with her. No nation had ever acknowledged the
claim of England, which, moreover, was not enforced, because
if one foreigner did violence to another, outside the King's
Chambers, but in the Channel or any part of the so-called
British sea, he did not come under the jurisdiction of the King
of England but under that of his own state.

While strenuously opposing the pretensions to the sovereignty
of the sea, Meadows agreed with all other authors in holding
that every country had an exclusive right to certain parts of
the sea adjoining its coasts: the difficulty was to fix the
bounds. " If there is no certain standard in nature," he says,
" whereby to ascertain the precise boundaries of that peculiar
Marine Territory I am now speaking to, which belongs to
every prince in right of his land, yet, by treaty and agreement,
they may easily be reduced to certainty. For, as to the judg-
ment and opinion of private persons, we cannot fetch from
thence any true measure ; for though they all agree unani-
mously that there is something due of right, yet they vary in
the quantum, or how much. Therefore the surest way is to
prescribe the limits of fishing betwixt neighbouring nations by
contract, and not by the less certain measure of territory. For,
if no bounds be fixed, how many inconveniencies, and what a
licentious extravagance, may such a liberty run into ? " The
Dutch, he said, unless boundaries were fixed, might dredge for
oysters on the coast of Essex, as they did formerly; or fish
within the mouth of the Thames, or in our creeks, havens, and
rivers ; and it was unreasonable not to draw a distinction as to
fishing between natives and aliens. Meadows therefore, fore-
shadowing modern practice, urged that the boundaries of ex-
clusive fishing should be determined by treaty, and he prepared
a draft article for the consideration of those concerned.1

1 Op. cit., pp. 44-46. The draft article was as follows : "To maintain a due dis-
tinction betwixt natives and foreigners fishing upon the coasts of their respective
sovereigns ; and to prevent the manifold inconveniences which occasionally arise
by a promiscuous and unlimited fishing ; "Tis mutually covenanted, concluded, and
agreed, That the people and subjects of the United Netherlands shall henceforth

526 THE SOVEREIGNTY OF THE SEA

In a later unpublished treatise he advocated much the same
method of mutual agreement with France, with respect to the
striking of the flag, as had been formerly proposed by Richelieu
— that in our half of the Channel they should strike to us, and
that in the half next France we should strike to them.1

Whether or not the writings of Meadows had any influence
upon the practice, or, what is more likely, merely reflected
the change in opinion that had begun, it is from about this
time that we find instances of definite boundaries being fixed,
usually in connection with the rights of fishery, instead of
the vague claims that commonly prevailed. The first case
of the kind happened indeed a few years earlier. In a treaty
between James II. and Louis XIV., which was concluded in
1686, concerning the rights of trading and fishing in the
British and French possessions in America, it was agreed
that the subjects of each were to abstain from fishing or
trading "in the havens, bays, creeks, roads, shoals or places"
belonging to the other, and the liberty of innocent navigation
was not to be disturbed.2 Though no definite limit was laid
down in this treaty, the meaning of the terms used was well
understood; they were practically the same as those used
in the proclamations as to neutral waters in 1668 and 1683.

abstain from fishing within any the rivers, fryths, havens, or bays of Great Britain
and Ireland, or within a distance of leagues from any point of land thereof,

or of any the isles thereto belonging ; under a penalty and forfeiture of all the fish
that shall be found aboard any vessel doing to the contrary, and of all the nets,
utensils and other instruments of fishing. The like distances, and under the same
penalties, to be kept and preserved by the subjects of His Majesty of Great Britain
and Ireland, from any of the coasts belonging to the United Netherlands. But
beyond these precincts and limits, that the people and subjects on both sides be at
freedom to use and exercise fishing, where they please, without asking or taking
licenses or safe-conducts for so doing, and without the let, hindrance, or molestation
one of another. Saving always the ancient rights of the crown of England, and that
nothing herein contained be interpreted or extended to any diminution or impeach-
ment thereof, But that they remain in the same force and vertue, as before this
agreement.'' Meadows does not suggest the number of leagues within which fishing
ehould be reserved, but he quotes with approval the proposal of James, in 1618, to
fix a limit of fourteen miles — that is, one " land-kenning " of the Scotch.

1 "Reflections upon a Passage in Sr William Temple's Memoirs, printed 1692,
relating to the Right of Dominion on the British Seas." Brit. Mus. Add. MSS.,
30,221, fol. 55. It is dated 1693.

2 A Treaty of Peace, Good Correspondence and Neutrality in America, &c., 16th
November 1686, Art. v. By Article xvi. French subjects were to be at liberty to
fish for turtles in the islands of Cayman.

JAMES II. AND AFTER 527

They are interesting as being the first definitions of the kind
which apply to the coasts of America, and they do not mate-
rially differ from the terms used in the treaty of 1818, the
interpretation of which has given rise to so much dispute.
Another example for a different purpose is to be found in a
convention between France and Algeria in 1689, which estab-
lished a limit of ten leagues along the Mediterranean coasts
of France in connection with the operations of the Barbary
corsairs.1

In the treaty above referred to, between Great Britain and
•France, the rights of trading and fishing went together. This
was a very common thing in those times, particularly in
remote seas, where the two pursuits were often combined,
and it was especially the case in the northern seas which
were supposed to be under the sway of the King of Den-
mark. The disputes which occurred between Denmark and
the United Provinces of the Netherlands are of interest in this
regard, since they reveal the methods and the stages by which
a defined boundary was eventually substituted for a general
claim to maritime dominion. They show, moreover, that at
the end of the disputes Great Britain stood by the side of
Holland in opposing the Danish pretension to mare clausum,
and was altogether in favour of the free sea. It was ap-
parently the assertion of James I. to a monopoly of the whale-
fishing at Spitzbergen (see p. 181) that induced Denmark to
put forward a similar pretension with regard to Greenland,
As early as 1615 a Danish man-of-war demanded a contribution
from Dutch whalers for liberty to fish there, and the King
of Denmark complained to the States - General that their
subjects were carrying on the fishery without his license and
contrary to his rights. The Dutch opposed this claim and
sent armed ships to the scene, which kept the Danes from
active interference. A little later, in 1623, Denmark raised
fresh complaints in connection with the fishing at Jan Mayen,
an island discovered by the Dutch, and which, therefore,
according to the charter of the Dutch Arctic Company, be-
longed to them. In 1639 Danish men-of-war again interfered
with Dutch whalers, this time at Spitzbergen, in virtue of
a decree prohibiting fishing without a license from the King
1 Rayneval, Institutions du Drait de la Nature et des Gens, i. c. x.

528 THE SOVEREIGNTY OF THE SEA

of Denmark ; but the firm attitude of the States -General,
whose fleets were then all-powerful, cooled the ardour of
the Danes. Denmark also raised difficulties in connection
with the cod-fishing in the northern seas. In 1616 foreigners
were prohibited from fishing either at Fseroe, Iceland, or on
the coast of Norway, an injunction renewed in 1636 and
1639, and various limits were assigned with respect to the
cod-fishing at Iceland. In 1636 the Norwegian Government
declared that the exclusive right of fishing pertained to
subjects within a distance of four to six Scandinavian leagues
from the coast, which is equal to from sixteen to twenty-four
geographical miles. The Danish claim to mare clausum also
included a monopoly of trade in those remote regions, and
the Hanseatic towns as well as the Dutch were forbidden
to carry on traffic with the natives. But the efforts of Den-
mark to preserve a monopoly of fishing and trading in the
Arctic seas were intermittent and ineffectual. The great
Dutch Arctic Company (Noordsche Compagnie), by their
charter granted in 1614, were entitled not only to the ex-
clusive right, so far as concerned Dutchmen, "to trade and
fish from the United Provinces on or to the coasts of the
lands between Nova Zembla and Davis' Strait," including
Spitzbergen, Barent's Island, and Greenland, but also to the
possession and fishery of any islands they might discover in
those seas. The rights granted to this powerful company
were thus directly opposed to the Danish claim to mare
clausum, and owing to the preponderating naval force of
the United Provinces, which was behind them, they eventually
prevailed. In February 1691, after the defeat by the French
of the allied British and Dutch fleets off Beachy Head and
the suspension of the Dutch whale -fishing by reason of the
war, King Christian V. issued another decree prohibiting whale-
fishing at Greenland to all but Danish subjects; and in the
following year Hamburg was forced to conclude a treaty
with Denmark to enable her citizens to carry on fishing
and navigation in Davis' Strait.

It was at this time, nevertheless, that Denmark substituted
a fixed limit at other parts of her dominions for her previous
vague and general claim to maritime sovereignty. By a
decree of 26th June 1691, the sea between the south coast

JAMES II. AND AFTER 529

of Norway and the coast of Jutland, within a straight line
drawn from Cape Lindesnaes to Harboore in Rinkjobing, a
distance of over a hundred geographical miles, was declared
to belong to Denmark; and it was further ordained that in
places where the king possessed only one of the coasts, the
sea was under his dominion up to the distance at which the
land was lost sight of — i.e., within the range of vision. At
the end of the following year (3rd December 1692) another
edict was issued declaring that no one without royal authority
would be allowed to carry on whale -fishing within ten Nor-
wegian leagues, or forty geographical miles, of the coast.1
This tendency of Denmark to formulate defined boundaries
in the seas along her coasts was carried further, as we shall
see, in the eighteenth century.

Within the areas above mentioned, Denmark enforced her
authority with considerable vigour. In 1698 a Dutch ship
was seized and confiscated for fishing at the Faeroes; and in
the period 1738-1740 great energy was displayed in repress-
ing violations of the Danish decrees. Several Dutch ships
were fired on by Danish men-of-war for trading at Greenland ;
the crews were turned adrift in open boats, and the vessels
taken to Copenhagen, where they were condemned as prize
in the Admiralty Court. In retaliation, a Danish ship was
seized at Amsterdam, and then Danish men-of-war fell upon
the Dutch doggers fishing around Iceland, about a hundred
in number, captured four, and dispersed the others without,
it was alleged, offering to molest the British and French
smacks fishing along with them. While bringing the captured
doggers to Denmark, one of them managed to escape, and
carried off to Holland the prize crew on board, consisting of
a Danish midshipman and three seamen — an episode that
recalls John Brown's experience in 1617. These occurrences
were naturally followed by diplomatic controversies. Denmark
at first based her action in seizing the doggers on a decree
of 1733, reserving to her own subjects the exclusive right

1 Resol. van de Staten-Generael, April, May, June 1616. Resol. d. Stat. van Hott.,
March, April 1616. Ibid., 15th Dec. 1623; March, May 1635; 19th May 1637 ;
Dec. 1639, Res. St.-Oen., 18th June 1639. Res. ffoU., 13th April 1691. Linde-
M i. '11111, Die Arktische Fischerei der Deutschen Seestadte, p. 8. Oroot Placaet-Boeck,
iv. 235, 237. Auber, Annuaire de Vlnstitut de Droit International, xi. 144.

2L

5130 THE SOVEREIGNTY OF THE SEA

of fishing and navigating within four leagues of the coast
of all Danish possessions in the Arctic seas ; and the Dutch
were accused of carrying on an extensive illicit trade at
Iceland, under cover of fishing. The States - General used
the familiar arguments about the freedom of the seas for
fishing and navigation, urged long -continued possession, and
cited an old treaty of 1447 which gave the Dutch the right
to navigate "usque ad Borese oras." Then Denmark placed
her case on its ancient basis, declaring that the kings of
Denmark and Norway had enjoyed from time immemorial
the dominion of the northern seas, and were therefore en-
titled, even according to the teaching of Grotius, to the
exclusive fishing. They denied that the Dutch had ever
possessed the right of fishery in these seas, alleging that
clandestine acts, punished as soon as discovered, could not
be construed into possession. This revival of dominium
maris called forth an energetic protest from the States-General,
and affairs took a bellicose turn. Denmark sent a squadron
north to maintain her claims, and Holland provided an armed
convoy for her whalers and Iceland cod -smacks, "to defend
themselves against the pretensions of the Danes." Hostilities
were averted by the intercession of Sweden, and of the British
and French Ministers at Copenhagen, in favour of the Dutch
Republic and the freedom of the seas.

Occasional disputes of the same kind occurred between
Denmark and the United Provinces later in the century. In
1757 a Dutch ship was arrested — it was said in the open
sea — on the ground that it had been trading in Davis' Strait,
and the matter was adjusted a few years later by an under-
taking that the Dutch vessels would refrain from trading
within the precincts of the Danish possessions. The States-
General in 1762 issued a placard to this effect, and they also
sent a ship of war to enforce it. In 1776 an English brigan-
tine and two Dutch vessels were seized for trading at Green-
land, and condemned by the Danish Admiralty Court, and
although on the protests of the British and Dutch Govern-
ments the vessels were released, compensation for detention
was refused.1

1 Resd. St.-Gen., Nov., Dec. 1698, 1740, 1741. Jtesol. Holl., July 1699 ; Jan.,
March, April, Sept., Dec. 1739 ; Jan., March, May 1740, 1741 ; Oct. 1757 ; Jan.

JAMES II. AND AFTER 531

Other and later examples of the tendency alluded to, of
fixing definite limits for the rights of the state in the seas
washing its territories, may be found in the international
treaties, which were concluded during the eighteenth century,
concerning the rights of fishery on the coasts and islands of
the British possessions in North America, a region of the world
which has furnished numerous examples of agreements of
the kind. One of these, in 1686, has been already mentioned.
By the great treaty of Utrecht in 1713, following Marl-
borough's successful campaigns on the Continent, France ceded
•Newfoundland and Nova Scotia to Great Britain ; but cer-
tain concessions were made to French fishermen, who, of
course, previously enjoyed the right of fishing there, which
subsequently for a long period formed a fertile source of
trouble and dispute. In addition to certain privileges as to
landing and drying fish, French subjects were to be free to
fish in the seas, bays, and other places to thirty leagues from
the south-east coast of Nova Scotia.1 Half a century later,
by the treaty of Paris in 1763, at the conclusion of the seven
years' war, Canada was ceded to Great Britain, and the con-
cessions to French fishermen at Newfoundland were confirmed,
with some modifications. Liberty of fishing was also granted
to them in the Gulf of St Lawrence, subject to the condition
that they did "not exercise the said fishery, except at a
distance of three leagues from all the coasts belonging to
Great Britain, as well those of the continent as those of
the islands situated in the said Gulf of St Lawrence." On
the coasts of the island of Cape Breton, outwith the Gulf,
they were not to fish within fifteen leagues of the shore.2
These provisions concerning the fishery in the Gulf of St
Lawrence and at Cape Breton were confirmed twenty years

1758 ; Aug. 1761 ; April 1762. Martens, Causes Calibres, i. 359-398 ; ii. 122-131.
Beaujon, Hist. Dutch Fisheries, 479. A full account of the proceedings in 1738-40
is said by Beaujon to be contained in the memorials of Mauricius, who was the
Dutch ambassador at Hamburg at the time, and was closely connected with the
negotiations ; they are contained in the Koninklijke Bibliotheek at The Hague.

1 Art. xii. " D'exercer la peche dans lesd. mers, bayes, et autres endroits a treute
lieues pres des costes de la nouvelle Ecosse au sudest, en coinmencant depuis 1'isle
.appellee vulgairement de Sable," &c. Dumout, Corps Diplomatique, VIII. i. 341.

2 Treaty of Paris, 10th February 1763, Art. v. Hertslet, Collection, i. 274.
Martens, Recueil, i. 109.

532

THE SOVEREIGNTY OF THE SEA

later by the treaty of Versailles in 1783, the article regarding
Newfoundland being at the same time modified.1

In these various treaties the fisheries were dealt with in a
special and exceptional manner, in connection with the cession
of the adjacent territories by France to Great Britain. The
French fishermen had always enjoyed the right of fishing in these
seas in virtue of the ownership of the land; and though full
sovereignty over the latter was acquired by Great Britain, the
liberty of fishing, under certain restrictions, was continued not-
withstanding the transference of territory. The fisheries of
Newfoundland and Canada were of great importance. They
were highly valued by France as forming nurseries of seamen
for her navy, and for this reason the preliminary treaty of
1762 was severely criticised by the Opposition in the British
Parliament, and especially by Pitt, who perceived that the
concessions with respect to the fisheries would enable France
to revive her naval power.2

A concession still more extensive, on the same principle, was
granted by Great Britain to the newly - established United
States of America in the treaty of 1783, by which their inde-
pendence was recognised. The question of the rights of fishery
was very fully discussed in the negotiations which preceded the
treaty; and though Great Britain did not deny the right of
American citizens to fish on the Great Banks of Newfoundland,
or in the Gulf of St Lawrence, or elsewhere in the open sea,
she denied their right to fish in British waters, or to land on
British territory for the purpose of drying or curing their fish.
A compromise was arrived at, and the treaty provided that the
people of the United States should continue to enjoy, unmolested,
the right to take fish of all kinds on the Newfoundland Banks,
in the Gulf of St Lawrence, and at " all other places in the sea
where the inhabitants of both countries used at any time here-
tofore to fish " ; also on such parts of the coast of Newfoundland
as British fishermen should use, and " on the coasts, bays, and
creeks" of all other parts of the British- American dominions.
They were further permitted to dry and cure their fish on

1 Treaty of Versailles, 3rd Sept. 1783, Arts, v., vi., and Declaration attached.
Hertslet, i. 246. Martens, iii. 522.

2 Part. Hist., xv. 1063, 1261-1263. In the negotiations for peace in 1761, Pitt,
who was then in office, most wisely insisted on an exclusive fishery.

JAMES II. AND AFTER 533

unsettled parts of the coast of Nova Scotia, the Magdalen
Islands, and Labrador, so long as these parts remained unsettled.1
It will be observed that by this treaty the liberty of fishing in
the territorial waters of the British possessions in America was
conceded to the citizens of the United States, who had exer-
cised the fishery before their independence was declared. They
continued to enjoy the right which they had had as British
subjects after they had ceased to be British subjects, and they
did so until the war of 1812.

With regard to the fisheries at home, in whose interest James I.
had originally raised the question of the sovereignty of the sea,
the clamour against the Dutch gradually died out, or was only
heard at intervals and received but scant attention. Pamphlet-
eers continued to denounce the liberty allowed to foreigners to
fish along the British coasts, and drew the usual picture of the
great national advantage that would flow from the creation of
native fisheries to rival those of the Dutch.2 Under James II.,
William, Anne, and the Georges, the policy of fostering the
fisheries by protective legislation and by means of organised
societies or associations was continued, with but little good
result. The most serious attempt was made in the middle
of the eighteenth century, when an Act was passed3 for the
incorporation of "The Society of the Free British Fishery,"
giving power to raise a stock of £500,000, and guaranteeing
3 per cent interest on the sum raised within eighteen months,
— which amounted to £104,509, — as well as conferring various
privileges and immunities, including a tonnage bounty to
encourage the equipment of busses. This society, which was
incorporated in the autumn of 1750, with the Prince of Wales
as Governor, had a chequered career. Its headquarters were
pitched at Southwold, Suffolk, where docks were built and

1 Treaty of Peace between Great Britain and the United States of America, signed
at Paris, 3rd Sept. 1783, Art. viii. Martens, Recueil, Hi. 556.

2 Gander, A Vindication of a National Fishery, wherein is asserted that the Glory,
Wealth, Strength, Safety, and Happiness of this Kingdom . . . doth depend (wider
God) upon a National Fishery . . . to which is added the Sovereignty of the British
Seas, 1699. Puckle, England's Way to Wealth and Honour, 1699. A Discourse
concerning the Fishery, 1695. The British Fishery recommended to Parliament,
1734. The Wealth of Great Britain in the Ocean Exemplified, 1749, &c., &c.

3 23 Geo. II., c. 24, 1750. An Act for the Encouragement of the British White
Herring Fishery.

534

THE SOVEREIGNTY OF THE SEA

buildings erected. In 1756 it possessed thirty busses and six
"yagers" to carry the pickled herrings to Hamburg and
Bremen, the masters of the busses being Dutch or Danish,
and the crews chiefly from Orkney, the fishing being carried
on at the Shetlands and down the coast to Yarmouth. Finan-
cial and other difficulties were encountered, some of the vessels
being taken by French privateers, and all the remaining busses
and effects were sold in 1772 for £6391. Half a century later,
the relics of some of the discarded busses were dug out of the
mud at Southwold.

The Act above referred to was the parent of many others
designed to encourage the fisheries, chiefly by providing
bounties; but probably more effective than such measures in
stimulating the native industry was the decay which overtook
the fisheries of the Dutch. This decay was no doubt due to
several causes, but among the chief must be reckoned the
frequent maritime wars of the eighteenth century in which
the United Provinces were engaged. Their herring -busses
were often captured or destroyed, sometimes in large numbers
at a time, as in 1703, when a French squadron fell upon them
at Shetland and burned many of them — variously stated at
from 150 to 400.1 Not infrequently their herring fishery was
entirely suspended, it might be for a series of years, owing to
the inability of the States-General to protect the fishing vessels
from the French or the British cruisers ; and such interruptions
told seriously upon a business which depended so largely on
the export trade of the cured herrings. From these repeated
blows the Dutch fisheries never recovered, and the fleets of
busses gradually dwindled. In 1703, 500 of them fished
at the Shetlands and southwards along the coast; half a
century afterwards there were but little over 200; and in
the later years of the century the number sank as low as
120, which scarcely exceeded the vessels from Denmark, Prussia
(Emden), and Belgium. Thus the part of the pretension to the
sovereignty of the sea which related to the fisheries along the
British coasts was gradually solved, the British fisheries, now
the greatest in the world, rising on the ruins of the Dutch.

1 Gifford, Historical Description of the Zetland Isles ; Edmondston, A View of
the Ancient and Present State of the Shetland Isles ; Europische Mcrcurius, 1703,
ii. 107.

SECTION IT.

CHAPTER I.

THE HISTORICAL EVOLUTION OF THE TERRITORIAL SEA.

FROM what has been said in previous chapters, it is apparent
that the extensive claims which were formerly made to the
dominion of the English or British seas were practically
abandoned in the eighteenth century, and the pretensions of
other states to a similar and more effective dominion in par-
ticular seas long ago shared the same fate. It is now settled
as indisputable, both by the usage of nations and the principles
of international law, that the open ocean cannot be appro- ^
priated by any one Power. But it is also as firmly established
that all states possess sovereign rights in those parts of the
sea which wash their shores, although there is not, and has
never been, universal agreement as to the precise nature of
those rights, or as to the extent of the sea that may be thus-1
appropriated. While the general movement of opinion and
practice in modern times has thus been from the mare clausum
to the 'mare liberum — from the sea held to be appropriated
by particular nations to the sea under no sovereignty, but free
and open to all for all purposes, — there has been another move-
ment in the opposite direction, by which the exclusive rights
of maritime states in the waters immediately adjoining their
coasts have come to be more clearly recognised and definitely
incorporated in international law. To this extent all maritime
countries now possess a sovereignty of the sea.

It is desirable to trace the evolution of this limited
sovereignty over what is now known as the territorial waters
or territorial sea (also named the neighbouring, proximal, ad-
jacent, or littoral sea — mare proximum, mare vicinum, mer
territoriale, ndchstangrenzendes Meer), and to consider in

538

THE SOVEREIGNTY OF THE SEA

particular the two main aspects it presents, — first, the actual
practice of nations on the one hand, and, second, the opinions
of the accredited writers on international law.

The sovereignty over the so-called territorial sea has some-
times been regarded as the direct remnant of a sovereignty
which was previously asserted by particular nations over
whole seas or large parts of them.1 This is true in a general
sense, but in tracing the historical evolution of the territorial
waters it is found that the steps by which the transference
was effected varied in different cases. The pretensions of
Denmark, for example, to a wide dominion over the Norwegian
Sea and the North Atlantic, were slowly curtailed by gradual
concessions to the opposition of other Powers, so that the ex-
tensive territorial waters at present pertaining to Norway may
be looked upon as the residuum of the ancient claim. The
exclusive rights have persisted, while the area over which they
are exercised has dwindled. In like manner, the equally ex-
tensive territorial waters of Sweden may be regarded as an
abridgment of her old claims in the Baltic. The same process
may have operated in the case of Spain and Portugal, both of
which Powers now claim maritime sovereignty to a distance
of six miles from their coasts; but here the successive stages
of contraction are not obvious. The territorial sea now held
to pertain to Great Britain, so far as it has been defined, did
not originate in this way, by direct descent from the old
claim to the dominion of the British seas. /NThat claim simply
died out and vanished in the lapse of time, without apparently
leaving a single juridical or international right behind it. The
British territorial waters, as usually defined, are of modern
origin, and were derived from the international jurisprudence
of the Continent, and especially from the doctrine of Bynkers-
hoek, to be referred to later. V

Even during the time when some nations were asserting a
wide maritime dominion, and other nations were opposing such
pretensions, there was a general recognition that every mari-
time state was entitled to exercise jurisdiction over some extent
of the neighbouring sea. This was admitted by the most
thoroughgoing advocates of the mare liberum, as by Grotius
himself, and it was acknowledged by the common usage of
1 Maine, International Law, 77.

HISTORICAL EVOLUTION OF THE TERRITORIAL SEA 539

nations. The rights exercised by the crown of England, for
instance, in the so-called King's Chambers in the seventeenth
century were apparently not challenged by foreign Powers. But
while the sovereign rights of a state over a part of the adjacent
sea were recognised by the usage of nations and the opinions of
publicists, there was no agreement as to the extent which might
be appropriated, and various limits or boundaries have from time
to time been proposed or adopted, by which the sea pertaining
to a state might be divided off from that which was open
and free to all. From an early date attempts were made by
jurists to discover some general principle or to lay down rules
which might be applied in all such cases. Some of these
rules were of such a nature as to assign to states an extent

o

of sea almost as great as any comprised under the widest
claims to maritime sovereignty, and none of them received a
general assent. The early English lawyers of the twelfth and
thirteenth centuries, Glanville, Bracton, Britton, and "Fleta,"
merely followed the Roman law with regard to the sea — that
is to say, they held that it is by its nature common, like the
air, and they did not suggest any limit within which the prince
of the adjoining state had exclusive jurisdiction or dominion
(see p. 66).

It is in the writings of the early Italian jurists, who lived
after the time when Venice by force of arms had established
her sovereignty over the Adriatic, that we first meet with
proposals to assign legal limits to the maritime jurisdiction
of the neighbouring state. Bartolus of Saxo-Ferrato, a great
Perugian jurist who died in 1357, and whose authority in
the middle ages was very great, declared the law to be that
jurisdiction extended to a distance of one hundred miles from
the coast, or less than two days' journey from it. Within this
space the ruler had power to apprehend and punish delinquents
just as he had on land.1 Baldus Ubaldus, another eminent
Italian jurist, who was a pupil of Bartolus and died in 1400,

1 Tyberiadis, D. Bartoli de Saxoferrato, Jtirisconsultorum omnium facile principit,
Tractatus de Fluminibus, <L-c., Bononiic, 1576, p. 55. " Jurisdictionern habens in
territorio mari cohserenti habet etiam jurisdictionem in mari usque ad centum
milliaria, . . . sicut praeses provinciao debet purgare provinciam malis hominibus
per terrain, ita etiam per aquam. . . . Constat autem quod centum miliaria per
mare minus est duabus dietia. "

540

THE SOVEREIGNTY OF THE SEA

also allotted a wide limit to the maritime rights of the prince
of the adjoining territory ; but he reduced the space from one
hundred to sixty miles, a distance which was supposed to be
equal to one day's journey from the coast.1 The boundaries
assigned by these jurists, or sometimes the equivalent of one
or two days' voyage from the coast, were very generally ac-
cepted by civilians later, although frequently with qualification,
more particularly as to the nature of the rights to be exercised.2
Bartolus confined the rights of the prince to jurisdiction and
the appropriation of islands, and since the distance prescribed
included the space within which navigation in those times was
almost entirely restricted, it is probable that the primary idea
was the maintenance of order and the suppression of piracy.
The underlying principle was the range of navigation from the
coast or from a port, just as later it was the range of guns.

Baldus seems to have gone a step further than Bartolus by
including sovereignty (potestas) as well as jurisdiction (juris-
dictio) among the rights of the neighbouring prince, and he
declared that the proximal sea pertained to the territory of
the adjoining state, which, as in the case of Venice, had power
to impose taxes for the use of it.3 Much the same opinion was
expressed by Bodin, a French lawyer who wrote about the
middle of the sixteenth century. When speaking of the taxes
or tolls that might be imposed by a state, he said that though
the sea was incapable of appropriation, it was in a measure
accepted that for a distance of sixty miles from the shore the
prince of the adjoining country could impose law on those who
approached the coast, and that it had been so adjudged in the
case of the Duke of Savoy.4 Gentilis, writing at the beginning
of the next century, stated that it was laid down by the
civilians that not only jurisdiction, but dominion, pertained to

1 Commentaria ad Institutiones, Pandectas et Codicem, iii. 79. Venice, 1577.

2 Bodinus, De Repvblica, lib. i. c. x. § 170, Frankfort, 1591 ; Pacius, De Dominio
Maria Hodriotici Disceptotio, c. i., Leyden, 1619 ; Welwood, De Dominio Maris,
c. i. p. 5, 1615 ; Dee, General and Rare Memorials, p. 21, 1577 ; Gryphiander,
De Instilis Tractatus, c. xiv., 1623 ; Gentilis, Advocatio ffispanica, c. viii. de
marina territorio tuendo, 1613 ; Gothofredus, DC Imperio Maris, 1637.

3 " Mare dicitur esse de territorio illius civitatis cui magis appropinquat et ideo
Veneti quia domini sunt maris Adriatici possunt imponere navigantibus vectigalia,
et adversus contra facientus poenam adjicere."

4 Loc. cit.

HISTORICAL EVOLUTION OF THE TERRITORIAL SEA 541

the neighbouring state as far as one hundred miles from the
coast, and even further unless the proximity of another state
interfered.1

It is thus clear that long before the beginning of the seven-
teenth century, the original simplicity of the Roman law re-
garding the appropriation of the sea had undergone a change
at the hands of its commentators, and that the doctrine of
sovereignty or dominion over a very considerable maritime
zone was widely held by jurists. But there is no evidence
that either of the boundaries prescribed by Bartolus or Baldus
was sanctioned by the general usage of nations. They do not
appear ever to have been adopted by any state of northern
or western Europe as the limits of its territorial sea or maritime
sovereignty; although they were occasionally used in argu-
ments in State Papers, as when the Earl of Salisbury justified
to the Spanish Court King James's proclamation of 1609
against unlicensed fishing, on the ground that maritime juris-
diction was " generally received to be about one hundred miles
at the least into the seas." The actual application of these
large boundaries appears to have been confined to parts of
the Mediterranean, where the doctrine took its rise, and where
it survived till the eighteenth century.2 A more recent and
a curious survival of the old boundary of Bartolus is to be
found in the abortive Russian Ukase of 1821, by which
foreigners were prohibited from navigating in Behring Sea
within one hundred Italian miles of the coast, a claim which
was revived by the United States as late as 189 1.3

Another general principle for the demarcation of the seas
belonging to a state had even wider currency than the above.
It consisted in the transference to the sea of the principle of
the mid -channel, or thalweg, as applied to rivers in appor-
tioning the waters pertaining to either bank, — a doctrine laid
down in Roman law and in vogue among the Anglo-Saxons as

1 "Et dicunt doctores, quod domini Veneti, et Genuenses, et alii habentes
portum, dicuntur habere jurisdictionem, et imperium in toto mari sibi propinquo
per centum miliaria, vel etiam ultra, si non propinquant alteri provincise. " Loc. cit.

2 Azuni, Systema, Universale dei Principii del Diritto Maritime dett' Europa,
i. 58, 1798. Jurisdiction was conferred within certain boundaries on land, "et
intus mare centum milliaria."

3 Parl. Papers, U.S., No. I., 1893. Behring Sea Arbitration, British Case,
37, 133.

542

THE SOVEREIGNTY OF THE SEA

early at least as the seventh century.1 The thalweg or mid-
channel was not infrequently a boundary between contiguous
states, and it was not a great step to transfer its application
in theory from wide rivers and estuaries to intervening seas.
In this way the mid-line in the sea lying between the coasts
of two states was held to be the boundary of their respective
maritime jurisdiction or sovereignty. The whole extent of a
sea stretching between territories belonging to the same- state,
however far apart these territories might be, was looked upon
as being under the sovereignty of that state. This principle,
therefore, covered most extensive claims to maritime dominion,
since it left hardly any part of the sea unappropriated. The
mid -line as an international boundary was in the case of
narrow seas logically derived from the tenets of the Italian
lawyers, but there are grounds for believing that it may have
"been much older. An ancient example of its use in a limited
way is to be found in King Cnut's charter, in 1023, granting
the port of Sandwich, in Kent, to the Church at Canterbury,
by which certain rights of wreck up to the middle of the sea
were conferred on the monks. After mentioning "the great
sea without the port," it provided that half of whatever was
found " on this side of the middle of the sea," and brought to
Sandwich, should belong to the monks and half to the finder.2
Cnut's charter cannot be taken as expressing any direct claim
to jurisdiction to the middle line, but as wreck was a prerog-
ative of the crown — and this is the first grant of it — the limit
assigned seems to imply a differentiation of authority. More
pertinent is the statement in the Mirror of Justice, a law-book
written about the end of the thirteenth century, and attributed
to Andrew Horn, who was Chamberlain of London in the reign
of Edward II., that the king's sovereign jurisdiction extended
as far as the middle line of the sea surrounding the land.3

1 In the definitions of the boundaries of lands and fisheries in Anglo-Saxon
charters such descriptions occur as "up midne streame," "ut on Temese oS midne
stream," "up midne streame by halfen streame," &c. Birch, Cartularium Saxonicum.

2. " Quicquid etiam ex hac parte medietatis maris inventum et dilatum ad Sand-
.wic fuerit sive sit vestinientum sive rete arma ferrum aurum argentum, medietas
monachorum erit, alia pars remanebit inventoribus." Kemble, Codex Diplomaticus
jEvi Saxonici, iv. 21.

3 Le Mirroir des Justices, c. iii., "la sovereine seignurie de tote la terre jeqes
el miluieu fil de la meer environ la terre."

HISTORICAL EVOLUTION OF THE TERRITORIAL SEA 543

Plowden, the Elizabethan lawyer, believed that this work
contained the law as it existed before the Norman Conquest,
but it is now declared to contain much that is spurious.
Whether that be so or not, there is no doubt that this principle
of maritime delimitation was adopted by many of the lawyers
and scholars of Elizabeth's time, as Dee and Plowden.1 Even
well on in the next century no less a personage than Lord
Chief -Justice Hale, in an early unpublished treatise on the
law of the customs and seaports, maintained that the king
had "right of jurisdiction or dominion of so much at lest of
the sea as adjoines to the British coast nearer then to any
forren coast."2 From internal evidence this tract appears to
have been written about 1636, and the influence of Selden's
Mare Clausum, which was published at this time, and in which
the mid -line was repudiated as a boundary of the British
seas, was shown in Hale's later treatise. In it the mid-line
was abandoned, and the " narrow sea, adjoining to the coast of
England," was declared to be " part of the waste and demesnes
and dominions of the King of England," who had in it the
double right of jurisdiction and property or ownership, " Master
Selden " being referred to as authority.3

There is no evidence that the principle of the mid-channel
as applied to the sea was ever homologated by an English
sovereign or Government. Notwithstanding its currency in
the reign of Elizabeth, we know that it was explicitly dis-
avowed by the queen herself in diplomatic controversy with
the King of Denmark, who, in virtue of it, claimed the whole
of the sea between Norway and Iceland. Still earlier the
English Parliament vainly petitioned the victorious Henry V.,
fresh from his conquests in France, to impose tribute on vessels
passing through the Channel, on the ground that he possessed
both shores, and therefore had a legal title to the intervening
sea.4 But although the mid-line appears never to have been
clearly adopted, there are two circumstances, both referring
like Cnut's charter to the Channel, which may point to its ancient
usage there. One is that an important fishing-bank, the Zowe

„ 1 See p. 102.

2 Brit. Mus. HargravesMSS., No. 98 ; printed by Moore, Hist, of the Foreshore,
362. . .

3 A Treatise relating to the Maritime Law of England, 10. * See p. 35.

544

THE SOVEREIGNTY OF THE SEA

or Sow, extending about one-third across the Channel between
Rye and Dieppe, was recognised by France as within the
English jurisdiction, and French fishermen for a very long
period were in the habit of procuring licenses from the Warden
of the Cinque Ports for permission to fish there (see p. 65).
The other is that when the question was raised as to how
far the jurisdiction of the Cinque Ports extended into the
sea — in connection apparently with complaints against French
fishermen towards the end of the reign of Charles II. — the
Trinity House, while avowing their own ignorance, stated
that the Sergeant of the Admiralty within the Cinque Ports
claimed to exercise his authority " half seas over or further." 1
The methods of delimitation hitherto mentioned consisted
in drawing imaginary lines in the sea, usually at a considerable
distance from the coast. Another principle, which probably
originated among seafaring men and was capable of being
made use of in a rough-and-ready fashion, depended on the
range of vision on a fair day, seawards from the shore, or
usually from the sea to the land. The space of sea between the
coast and the horizon, or vice versa, was regarded as belong-
ing to the adjoining state. This was the principle adopted
in Scotland, but it was not confined to that country. It was
employed in olden times in England to determine whether a
bay or arm of the sea was within the body of a county, inter
fauces terrce, and therefore under common law, or part of
the high sea and under the jurisdiction of the Admiral.2 An
early instance of its adoption as a boundary of international
jurisdiction is to be found in the nautical laws prescribed for
the Netherlands in 1563 by Philip II. of Spain, by which it

1 Brit. Mui. Add. MSS., 30,221, fol. 50. The opinion of the Trinity House
was given in November 1686. In 1677 the Privy Council, on a petition of the
fishermen of Hastings complaining of the French fishing on the coast, sent to the
Cinque Ports for an account "of the old limitations used to be put upon the
French and others in their proceedings in that fishing," and also ordered two ships
to be sent " to forbid the French to fish on the coast as having no license thereto,
and to drive them away from thence" (ibid.) On the other hand, Jeakes, in his
Charters of the Cinque Ports, written in 1678, states with reference to the powers
" by land and sea" conferred on the Ports by various charters, that per mare did
not mean altum mare, the high sea, where the Admiral had jurisdiction, but only
the "havens, creeks, and arms of the sea, so far as can be judged in a county,
where the land is on both sides," p. 69.

2 See p. 547.

HISTORICAL EVOLUTION OF THE TERRITORIAL SEA 545

was forbidden, on pain of death, for any violence to be done by
reason of war, or for any other cause, to his subjects or allies,
or to foreigners, on the sea within sight of the land.1 Grotius
also referred to the range of vision as a boundary, when he
said that the controversy respecting the freedom of the sea
was not about bays or straits, or " so much of the sea as might
be seen from the shore." 2 We have already seen that in Scot-
land the fisheries within sight of the coast, or a " land-kenning,"
were claimed as belonging exclusively to the Scottish people.
In this case the range of vision, was from the sea to the land,
and it was to be determined from the main-top of the fishing
smack.3 The extent of a land-kenning was stated to be four-
teen miles, and this was the distance expressed in the Draft
Treaty of Union in 1604, and pressed upon the Dutch by King
James in 1618 ; but sometimes twenty-eight miles, or two land-
kennings, was claimed ; and it is to be noted that in the case
of bays and firths the distance was measured from a base-line
drawn between headland and headland. The range of vision,
or land-kenning, as the boundary of the reserved fishing waters,
was embodied in Scottish law as well as claimed against other
nations by the Privy Council, the Parliament, and the king.4

It was also conceded to Denmark, for in 1618 the Privy
Council prohibited Scottish fishermen from fishing within
sight of land at the Faeroe Isles. The King of Denmark,
indeed, assigned the same limit in a decree of 1691 with
regard to places where he did not possess the opposite coasts.0

1 31st Oct. 1563, tit. i. par. 27, " Ne qua in mari vis fierit vel suis subditis, vel
sociis, vel peregrinis, sive belli, sive alterius rei causa intra conspectum a terra vel
portu." Bynkershoek, Qiwtstioncs Juris Publici, lib. i. cap. viii. De Domini
Marls, c. ii.

- Mare Liberum, c. v. See p. 347.

3 Foreigners were not to fish "nerer the land nor nor yai mycht see the shoir
out of yair main toppis. "

4 Stair, The Institutions of the Law of Scotland, bk. ii. tit. i. 5 (1681). "The
vast ocean is common to all mankind as to navigation and fishing, which are the
only uses therof, because it is not capable of bounds ; but where the sea is
enclosed, in bays, creeks, or otherwise is capable of any bounds or meiths, as
within the points of such lands, or within the view of such shores, there it may
become proper, but with the reservation of passage for commerce, as in the land.
So fishing without these bounds is common to all, and within them also, except
as to certain kinds of fish, such as herrings, &c." The qualification and the
''etcetera" are peculiar.

5 See p. 528.

2 M

546

THE SOVEREIGNTY OF THE SEA

Although the principle was not formally acknowledged by
the Dutch in determining their fishing on the British coasts,
they agreed to adhere to it (see p. 193) ; and there is evidence
to show that the British cruisers caused them to respect
this limit, at all events in connection with the herring-fishing
at Yarmouth.1 A later example of the adoption of this limit
is to be found in a treaty concluded in 1740 between the
Porte and the King of Naples, by which it was stipulated
that neither party would permit vessels to be pursued or
molested on their coasts within a distance at which ships
could discern the land.2

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

Still less definite was another principle, if such it can be
called, which was proposed as a guide in allotting the space
of sea within which exclusive rights of fishing should belong
to the adjacent state. Wei wood, Selden, and many others,
held, in opposition to Grotius and his school, that the fisheries
along a coast might be exhausted or injured by promiscuous

1 Captain George St Lo, England's Safety, or a Bridle to the French King, 1693.
"During the time I was convoy to our fishing there, as aforesaid (1685-6), my
business was to see that no foreigner should fish in sight of the shore, because the
fish draw thither to spawn ; the best draughts are there."

2 Azuni, Sistema universal* dei Principj del Diritto marittimo, i. 78.

HISTORICAL EVOLUTION OF THE TERRITORIAL SEA 547

fishing, and that the inhabitants of the coast had a primary
right to the fructus of the adjacent sea, as against the intrusion
of foreigners — a principle which lay at the root of the Scottish
claims to the "reserved waters." Sarpi, an Italian author of
the early part of the seventeenth century, in a work defending
the claims of Venice, formulated the opinion that the extent
of territorial sea should not be fixed everywhere in an absolute
manner, but should be made proportionate to the requirements
of the adjoining state, without violating the just rights of
other peoples. Thus a country or city which possessed large
and fertile territories that provided adequate subsistence for
the inhabitants, would have little need of the fisheries in the
neighbouring sea, while one with small territories that drew
a large part of its subsistence from the sea ought to have a
much greater extent of sea for its exclusive use.1 This doctrine,
though obviously difficult of application internationally, has
much to recommend it on grounds of reason and justice. It
is one of the fundamental principles on which Norway claims
at the present day an unusually large extent of territorial sea.

With regard to bays, straits, and arms of the sea, the
general usage from the earliest times has included them within
the jurisdiction of the neighbouring state. They have been
always regarded as differing from the sea on an open coast,
the only disputes about them referring to the size of such
areas that might justly be looked upon as territorial. By
the old common law of England, which Hale dates as far
back at least as the reign of Edward II. (1307-1327), bays,
gulfs, or estuaries, of which one shore could be "reasonably
discerned " from the other shore, were regarded as inter fauces
terrce, and within the body of the adjacent county or counties,
so that offences committed there were triable at common law.
But along the coast, on the open sea, the jurisdiction of the
common law extended no farther than to low- water mark ;
beyond that it was high sea, or altum mare, and under the
jurisdiction of the Admiral.2 Here we see a sharp distinction

1 Dominio del Mar' Adriatico e sue Raggione per il Jus Belli delta Serenissima
Rcpvblica di Venetia, Venezia, 1686.

2 Hale, A Treatise relating to the Maritime Law of England, c. iv. Coke's
Fourth Institute, c. xxii. p. 140 (ed. 1797). Blackstone, Commentaries, \, 110.
Hale, Pleas of the Crovm, ii. 54. An early authority is in Fitzherbert's La Grande

548

THE SOVEREIGNTY OF THE SEA

drawn between bays and the open coast, the former being
included within the realm as part of the territory. It seems
reasonable on many grounds that the waters lying in view
between two parts of the same continuous territory should
have been regarded as pertaining to that territory, and it
may be noted that in early times the navigation of a vessel
along a coast was conducted from headland to headland, and
thus a distinction was likely to arise between the open sea
lying outside a line joining the headlands, as a waterway
common to all, and the sea inside the headlands as an access
to the territory. The distinction was maintained from an
early period with regard to international relations. Reference
has already been made to the treaty arranged by Cardinal
Wolsey in 1521, in which it was stipulated that English
harbours, bays, rivers, and roads should be exempt from hos-
tilities between belligerents, and to the proclamations of King
James in 1604, and of succeeding sovereigns, defining the
extent of the King's Chambers, or bays, according to ancient
custom, for purposes of neutrality.1 It is interesting to note
that the rights exercised within the King's Chambers, or bays,
on the coasts of England referred only to neutrality and had
nothing to do with fishing, while in Scotland it was exactly
the opposite. The large bays and firths on the Scottish coast
were reserved for fishing, without any specific reference to the
rights or obligations of neutrals. The differentiation of bays
and arms of the sea from the territorial belt on open coasts
has persisted to the present day, both in the writings of
publicists and in the practice of nations, although the in-

Abridgment (1565), Corone et Plees de Corone, fol. 259, placit 399, "Nota p.
Stanton justic q ceo nest pas satice demere ou hoe puit veier ceo q"est fait del
ou part del ewe et del aut, coe a rier de lun terr tanq a laut q le cozon viendr' en
ceo cas et fra son offic auri coe auent a vyent en vu brau del mer la ou home puit
vier de lun parte tanque a lauter del auer que en eel lieu auient puyt paiis auer
conisaus." There are some words in this passage difficult to translate, but the
following has been given as its rendering : " Nota per Stanton Justice, that that
is not sance [which Lord Coke translates ' part '] of the sea where a man can see
what is done from one part of the water and the other, so as to see from one land
to the other ; that the coroner shall come in such case and perform his office, as
well as coming and going in an arm of the sea, there where a man can see from
one part to the other of the [word undeciphered], that in such a place the country
can have conusance."
1 See p. 119.

549

troduction of another principle of delimitation has tended to
keep the claims to bays within moderate bounds.

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

This principle was of slow growth. It did not even receive
definite expression among jurists until the beginning of the
eighteenth century ; but as previously stated (see p. 156), the
Dutch ambassadors who came to London in 1610, to endeavour
to induce King James to withdraw his proclamation against
unlicensed fishing, made use of it in their conferences with
the English Ministers, not improbably at the instigation of
Grotius. But whether or not Grotius was the person who
enunciated the principle in 1610, it is in his writings that
we first meet with it, although in a veiled form. It is not
mentioned in Mare Liberum, but in his greater work, the
Law of War and Peace, which was published in 1625, he
said that a state might acquire sovereignty over parts of
the sea, in regard to persons by an armed fleet, and "in
regard to territory, as when those who sail on the coasts of
a country may be compelled from the land, just as if they
were on the land."1 The principle of compulsion from the
land is clearly enough expressed, and though Grotius did
not define the nature of the compulsion to be exercised,
modern writers have generally held that what he meant was
compulsion by artillery. If Grotius was the author of the
dictum of 1610, he must have had reasons for expressing it

1 Lib. ii. cap. iii. s. xiii. 2, " Ratione territorii, quatenus ex terra cogi possum
qui in proxima maris parte versantur, nee minus quam si in ipsa terra reperi-
rentur." See p. 349.

550

THE SOVEREIGNTY OF THE SEA

in a less definite form in 1625, — perhaps owing to his employ-
ment at that time by the Queen of Sweden, to whom the
naked doctrine would have been no more attractive than to
James.

For a long time, however, the doctrine was equally neglected
by publicists and statesmen. This may have been partly due
to the somewhat obscure and incidental way in which it was
advanced, but probably mainly to the fact that the time was
not ripe for its acceptance. It represented much too stringent
a limitation of the territorial sea to receive general assent.
Selden does not refer to it, and it was passed over by the
authors, such as Pontanus,1 Burgus,2 Shookius,3 Conringius,4
and Strauchius,5 who favoured more or less extensive claims
to maritime dominion, while even writers who opposed such
claims, as Stypmannusf) and Graswinckel,7 do not adopt it.

The opinions of Grotius with respect to the appropriation
of the sea had, indeed, comparatively little influence among
jurists in the seventeenth century. The views which prevailed
in the latter part of the period are rather represented in the
works of two of the writers whose reputation was greatest,
Loccenius and Puffendorf. Loccenius, a Swedish author who
wrote about the middle of the century and is still quoted as an
authority, declared that while a nation could not acquire a
universal dominion over the sea, it might possess sovereignty in
a particular sea as far as it was under its power or dominion,
subject to the rights of innocent passage and navigation by
others ; and he cited as examples Sweden and Denmark, which
exercised sovereignty in the Baltic.8 As a general rule, how-
ever, Loccenius held that states had jurisdiction only in the
waters adjacent to their coasts, for the preservation of peaceful
navigation; but no attempt is made by him to lay down any
fixed rule or limit as to the extent of such jurisdiction. He
merely contrasts the opinions of those, as Baldus and Bodin,
who contended for a wide limit of sixty miles, or two days'

1 Discussiones Historicce de Mari Libero, 1637.

2 De Dominio Seven. Genuensis Jteipub. in Mari Liyustico, 1641.

:i Imperium Maritimum, 1654. 4 Dissertatio de Imperio Maris, 1676.

5 De Imperio Maris. 6 Jus Maritimum, 1652.

7 Maris Libert Vind. adv. P. B. Burgum, 1652 ; Maris Liberi Vind. adv.
0. Welwodum, 1633.

8 De Jure Maritimo et Navali, lib. i. c. iv. Ed. 1652.

HISTORICAL EVOLUTION OF THE TERRITORIAL SEA 551

journey, with those who argue for a narrow but undefined
space in the neighbouring sea.

The celebrated Puffendorf, whose authority later was only
second to that of Grotius, dealt with the question in his great
work on the Law of Nature and Nations, and with even less
precision than Loccenius.1 On the general question of the
appropriation of the sea he discarded the objection that its
fluidity rendered it incapable of possession, but held that it
would be morally impossible for one nation to possess the ocean.
He also set aside the moral objection in the absolute form in
which it was put forward by Grotius, that the use of the sea
was inexhaustible. On the contrary, he held with Selden and
Welwood that fisheries in the sea might be exhausted by
promiscuous use. " If all nations," he said, " should desire such
a right and liberty (of fishing) near the coasts of any particular
country, that country must be very much prejudiced in this
respect ; especially since it is very usual that some particular
kind of fish, or perhaps some more precious • commodity, as
pearls, coral, amber, or the like, are to be found 'only in one
part of the sea, and that of no considerable extent. In this
case there is no reason why the bordering people should not
rather challenge to themselves this happiness of a wealthy shore
or sea, than those who are situated at a distance from it." 2 On
this ground, the right of exclusive fishing, and also for the
security and defence of the state, a nation was justified in
claiming dominion in the neighbouring sea. The extent of
this territorial sea, he says, cannot in general be accurately
determined ; but it is clear that he thought it might be very
considerable. We had the power to abridge others of the use
of the sea by forts on shore, in narrow creeks and straits, or by
armed fleets; but it would, he thought, show unreasonable
jealousy to claim "some hundreds of leagues." The true
bounds could only be discovered either from "the right of
possession " of a state, or from its treaties with its neighbours.
Gulfs, channels, or arms of the sea, on the other hand, were
"according to the regular course" supposed to belong to the
state which had possession of the shores. If the shores
belonged to several peoples, the sovereignty was distributed
to the middle line, unless treaties directed otherwise, or one

1 De Jure Naturte et Gentium, 1672. a Lib. iv. c. v. s. vii.

552

THE SOVEREIGNTY OF THE SEA

people had obtained the exclusive sovereignty by convention,
conquest, or prescription.

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

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

With regard to the extent of neutral waters, it would appear
that the boundaries were as a rule vague, and that general
considerations determined jurisdiction in particular cases. In
connection with the declaration of war by the United Provinces
against France in 1689, a placard was issued by the States-
General in which both Dutch and foreign vessels were exhorted
to keep out on the high seas; and it was declared that any
vessels suspected of having contraband goods on board and
found " on the coast of France, or of other countries, islands, and
places under the dominion of the King of France, and particu-
larly in the bays and gulfs on the coast of the said kingdom,"
would be seized and brought to trial.1 On the English coast the
1 7th March, 1689, Art iv.

HISTORICAL EVOLUTION OF THE TERRITORIAL SEA 553

limits of jurisdiction were better defined, but still, in many
cases, without precision. Within the King's Chambers, as
specified by James I. in 1604, "or other places of our dominion,
or so near to any of our said ports, or havens, as may be reason-
ably construed to be within that title, limit, or precinct," the
hostile acts of belligerents, captures of the enemy's vessels, and
the hovering of foreign ships of war were forbidden. The
injunction with respect to the neutral waters was renewed in
1633, 1668, and 1683, and it was in no case confined strictly
to the "chambers." In the proclamations of 1668 and 1683,
which were drawn up by Sir Leoline Jenkins, the definition
was merely " within our ports, havens, roads, and creeks, as also
in every other place or tract at sea that may be reasonably
construed to be within any of these denominations, limits, or
precincts." l These limits were upheld by the decisions of the
High Court of Admiralty during the greater part of the century.
Sir Leoline Jenkins, it may be noted, although in questions of
international policy advocating the most extreme pretensions
of the English crown to the sovereignty of the seas, was careful
in his judicial decisions to restrict jurisdiction within the terms
of the royal proclamations. If a capture was made in one of
the chambers or beyond them by a foreign privateer which had
issued from an English port and had been hovering in the
neighbourhood, the vessel was ordered to be restored. So also
if the prize was taken, in any case, outside a chamber, but near
enough the coast to be " reasonably construed " to be within the
king's jurisdiction. This usually happened on the east coast,
where the chambers were small. In one such case the vessel
was taken between half a league and one league off Orfordness
(the headland of a chamber) ; in another instance the vessel
was seized eight leagues at sea off Harwich, and presumably
four leagues from the boundary of the nearest chamber.2

1 State Papers, Dom., Chas. II., ccxxxiv. 112, 113, 8th Feb. 166g. Brit. Mu*.
Add. MSS., 30,221, fol. 64, 12th March 1683.

2 Wynne, Life of Sir Leoline Jenkins, ii. 727, 732, 755, 780, 783. In reporting
to the king in one case, in which he found the capture was made in the Channel
beyond the limits of a chamber, Jenkins says : " However the truth be as to the
chamber, 'tis certain the seizure was made in your Majesty's seas : but so it is,
that notwithstanding your Majesty's undoubted right of dominion and protec-
tion in these seas, strangers do hold themselves, if not permitted, yet excused for
such hostilities, when they are acted at a due distance from your Majesty's ports,

554

THE SOVEREIGNTY OF THE SEA

At the end of the seventeenth century, while the old pre-
tensions of various nations to the appropriation of particular
seas had not been withdrawn, they had in many cases become
by the force of circumstances to a large extent nominal or
were in abeyance. There was moreover a tendency, as we
have seen (p. 526), to substitute fixed boundaries in place of a
wide and vague sovereignty, and to arrange by treaty defined
limits for special purposes. In the historical retrospect we
can now perceive the main influences which led to the modifi-
cation of the claims and practice in the century that followed.
The juridical controversies on the subject between the writers
of various nations were doubtless not without effect. The
repeated decisions of the High Court of Admiralty in this
country, going counter to the English pretension even in the
Channel, and fixing limits for neutrality, must also have had
an important influence. But the chief causes were probably
twofold. One was the moral and material victory of the
Dutch Republic in its long and persistent struggle against
the exorbitant claims to maritime dominion, first, of Spain
and Portugal, and then of England and Denmark. The other
was the great extension of commerce and navigation, in which
England secured an ever-increasing share, so that in the next
century we find her taking the part of Holland in opposing
the Danish claims to mare clausum. As maritime commerce

harbours, and chambers ; grounding themselves upon what was done and observed
in that long war between Spain and the Netherlands." The preamble of the
proclamation of 12th March 1683 was as follows: "Whereas the safeguard and
protection we owe to such of our own subjects, and to all others in league and
amity with us, as pass and repass the seas belonging to these our kingdoms, has
been always a principal part of our royal care and concern, and we, finding that
the freedom and security of our navigation and commerce to and from our ports
in time of hostility between our neighbouring princes has been much disturbed,
nay, the reverence due to our ports, harbours, and other places under our imme-
diate protection has been violated by the partial practices, depredations, and
insolencies of private men-of-war and others pretending commissions for the
present hostilities : We have thought fit, by the advice of our Privy Council, after
an exact view first taken of the rules, ordinances, and provisions made on the like
occasions by our royal progenitors and ourself, to revive, establish, ratify and
publish to ail the world these rules and ordinances following." The rules are
similar to those in the regulations of 1633 and 1668 ; but it is noteworthy that
the " King's Chambers " are not specifically mentioned, nor is any reference made
to a "platt," and the claim to the dominion of the seas, so prominent in 1633, is
omitted.

HISTORICAL EVOLUTION OF THE TERRITORIAL SEA 555

extended and the security of the sea became established, it was
felt more and more that claims to a hampering sovereignty
and jurisdiction were incompatible with the general welfare
of nations; and as the states interested in this commerce
had the greatest power, the assertion of a wide dominion
wras gradually abandoned, surviving only in remote regions
or in enclosed seas, like the Baltic.

At the beginning of the eighteenth century the question
of the appropriation of the sea was placed on another footing.
The principle of delimiting the territorial sea which is now
generally accepted was first expounded in 1703 by a dis-
tinguished publicist, Cornelius van Bynkershoek, who, like
Grotius, was a Dutchman, and held the office of Judge in
the Supreme Court of Appeal of Holland, Zealand, and West
Friesland. In his early work on the dominion of the sea,1
and in a later treatise published in 1737,2 he dealt with the
subject with much acumen. With respect to the general
question as to the capability of appropriation, he agreed with
Puffendorf rather than with Grotius. While holding that
the open ocean could not be wrholly brought under dominion,
he admitted, with Selden, not only that large parts of the sea
are susceptible of appropriation, but that various nations had
at different times enjoyed such dominion : the fluidity of the
sea was not a bar to its occupation, and by taking possession
of it the same right was acquired as by taking possession
of the land. But he declared there was no instance at the
time he wrote of any ruler possessing maritime dominion
of that kind, unless when the surrounding territory belonged
to him, and that the general freedom of the seas for naviga-
tion had been established both by usage and by various treaties.
He denied that England had the dominion of the so-called
British seas, mainly on the ground of the want of uninter-
rupted possession, pointing out that all the neighbouring
nations freely navigated them without paying any tribute
or requiring any permission.

It was, however, with regard to the delimitation of the
territorial sea immediately adjacent to the coast that Bynkers-
hoek's teaching had its chief results. He showed how un-

1 De Dominio Maris Dissertatio. Hagse-Batavorum, 1703.

2 Quatstiones Juris Publici. Lugduni-Batavorum, 1737.

556

THE SOVEREIGNTY OF THE SEA

certain and unsatisfactory were the limits previously proposed,
and, following Grotius, he laid down the principle that the
dominion of a state extended over the neighbouring sea as
far, and only as far, as it was able to command and control
it from the land. But he went further and showed how the
principle was to be carried into practice. The dominion of
the territory extended as far as projectiles could be thrown
from the shore by artillery, so that exclusive possession might
be taken of the part so commanded : " the dominion of the
land ends where the power of arms terminates."1 Thus
Bynkershoek assigned the dominion of the adjacent sea (mare
proximum) to the neighbouring state, within the range of
a cannon-shot from the shore. Besides the general reasoning
on which the limit was based, he cited in support of it an
Act of state. He was apparently unaware of the clear dec-
laration made by the Dutch ambassadors a century earlier;
but he referred to an edict of the States - General in 1671,
which enjoined that the commanders of their ships should
give the salute on the coasts of a foreign Power when they
were within the range of the guns of a town or fort, in
such manner as the Government of the country should re-
quire, leaving to its discretion the return of the salute, and
adding that every Government was sovereign within its own
jurisdiction and every foreigner a subject there.2

This decree could not, of course, as Bynkershoek admitted,
bind other Powers to the same opinion. Nevertheless it may
be said that the almost universal practice which had grown
up, regulating the salute of a vessel coming within range of
a battery on a foreign coast, had prepared the way for the
acceptance of the doctrine. It was a recognition that the
vessel had passed within the sphere of territorial authority

1 " Unde dominium inaris proximi non ultra concedimus, quam e terra illi im-
perari potest, et tamen eo usque ; nulla siquidem sit ratio, cur mare, quod in ali-
cujus imperio est et potestate, minus ejusdem esse dicamus, quam fossam in ejus
territorio. . . . Quare omnino videtur rectius, eo potestatem terrse extendi,
quousque tormenta exploduntur, eatenus quippe cum imperare, turn possidere
videmur. Loquor autem de his temporilms, quibus illis machinis utimur : alio-
quin.generaliter dicendum esset, potestatem terrse finiri, ubi finitur armorum vis;
etenim hscc, ut diximus, possessionem tuetur." De Dom. Maris, cap. ii. In the
Qucestiones the phrase is "imperium terra) finitur, ubi finitur armorum potestas,"
and " terrae dominium finitur ubi finitur armorum vis."

2 Ibid., cap. ii.

HISTORICAL EVOLUTION OF THE TERRITORIAL SEA 557

of the particular state. It was the rule, in England at
least, that "the sea should salute the land," and the range
of guns determined the limit within which the salute ought
to be rendered. Beyond the reach of cannon no salute was
expected; within it usage, international courtesy, or the law,
required it. No foreign ship with its flag aloft could come
within range of an English fort or castle without exposing
itself to the risk of a shot. It is indeed a curious circum-
stance, that it was largely through the action of England
with regard to the salute that the acceptance of the cannon-
range limit was facilitated. The relation of the ceremony
to the sovereignty of a state was forced by her prominently
into international politics. Before the time of Selden and
Charles I. jurists paid little attention to the matter, but
afterwards they dealt with it as a department of international
law : Loccenius and Bynkershoek, for example, each devotes
a chapter to it. Even when the English were most actively
asserting "the honour of the flag," they recognised the rights
of foreign states within the actual range of guns on their
shore. In 1636 the Earl of Northumberland was instructed
by the Admiralty not to enforce the salute within the command
of the guns of forts on foreign coasts, — an order which was
repeated by the Parliament in 1647,1 and became the rule in
the service. Molloy, a vehement supporter of the most extreme
claims of England to the sovereignty of the seas, stated in
1676 that English men-of-war entering a foreign harbour, or
"the road within shot of cannon of some fort or castle,"
were to pay such respect as was usually there expected.2 •
The gunshot limit had been long established in connection
with another international relationship — namely, the right of
visitation of neutral vessels in the open sea. Many treaties
had been made which stipulated that the visiting ship was
not to approach nearer than within cannon-shot, and was
then to send one of its boats with a few men to conduct the
examination necessary. It is, moreover, extremely probable
that with respect to what was in those times the principal
attribute of the territorial waters — viz., the rights and obliga-
tions of neutrals — the gunshot limit, at the least, was recognised
where guns were actually in position. In view of the general

1 See p. 381. 2 De Jure Maritimo, p. 150.

558

THE SOVEREIGNTY OF THE SEA

practice, as shown for instance in the decisions of the English
Admiralty Court, and the usage in connection with the salute,
it can scarcely be supposed that a capture made under the
guns of a neutral fortress would be held as good prize; at
all events, it was not so held in the Admiralty Court in
1760. But the merit of Bynkershoek's doctrine was, that it
transferred in theory to all parts of a coast this decisive
property of compulsion and dominion which, strictly speak-
ing, only existed where forts or batteries were placed. The
doctrine, justly enough, has been called fictitious, because there
are various coasts and districts where it would be impractic-
able to maintain dominion over the territorial sea by means
of artillery on shore; and because in point of fact such
dominion, unless in the neighbourhood of forts, is actually
maintained by other means, as by coastguards and naval
vessels. Nevertheless the principle, though resting largely
on hypothesis, had much to recommend it, and it gradually
became incorporated into international law as the rule for
fixing the boundary of the territorial waters. Apart from its
intrinsic merits, its acceptance was perhaps not a little facili-
tated by the felicity with which it was expressed. Bynkers-
hoek gave it the form almost of an aphorism, and the phrase,
terrce dominium finitur ubi finitur armorum vis, has been
quoted by almost all later writers.

But although the doctrine of Bynkershoek was attractive,
and was eventually accepted almost everywhere, it did not
command immediate assent. The publicists who came after
Bynkershoek in the eighteenth century, while usually referring
to the cannon-range limit, or adopting it with respect to ques-
tions of prize, did not as a rule adhere to it as the sole principle
for delimiting the territorial belt. The earliest notice of it
after the Qucestiones appeared seems to have been by Casaregi,
an Italian writer of authority, who was judge in the Court of
the Grand Duke of Tuscany, in a work which appeared in
1740, and referred more especially to the practice in the
Mediterranean.1 Foreign ships, he said, were under the pro-
tection of the prince whose seas they sail through, when they
are in his ports, or in the sea so near as to be within the

1 Discursus Legates de Commercio, Venice, 1740, D, 136. 174, 211, torn. 2. Aii
earlier edition was published at Florence in 1719.

HISTORICAL EVOLUTION OF THE TERRITORIAL SEA 559

range of guns on shore; if seized by the enemy there, they
require to be restored.1 This was the ordinary rule in regard
to neutrality; but with regard to the question of sovereignty
in the neighbouring sea, Casaregi followed preceding Italian
jurists in assigning a space of one hundred miles from the
coast for civil and criminal jurisdiction, with the power of
levying tolls and dues from passing ships, and even of pro-
hibiting or permitting navigation.

A little later a Spanish writer, Abreu y Bertodano, in a
work on the law of maritime prize,2 held that it was unlawful
for cruisers to attack the enemy's vessels in the seas adjacent
to the coast of a neutral within a distance of two leagues from
the shore, or within the reach of a cannon-shot from it. He
stated that no European Power had asserted the dominion of
the sea with more heat and boldness than Great Britain, and
yet by Act of Parliament the visitation of ships by the coast-
guard was restricted to two leagues from the coast, which was
as much as could reasonably be -claimed.3 But this author also
followed the Italian rule that jurisdiction, including the levy-
ing of tolls, &c., was not limited to the coast waters, but
extended for at least a hundred miles from the shore, and
said that this was in agreement with the teaching of the
lawyers of all nations.4

Wolff', who wrote on the law of nations about the same time,
appears rather to have followed the opinions of Puffendorf . He
argued that the use of the sea next the shore, for fishing and
the collection of things that grow on it, was not inexhaustible,
nor its use for navigation always innocuous ; and since it
served as a protection for the adjoining state, it was reasonable
that it should be under the dominion of that state. The
inhabitants of the shores had therefore the right to occupy

1 " Naves extene dicuntur esse sub protections illius principis, cujus mare navi-
gant, quando reperiuntur intra portus illius, aut in mari, ita vicino, ut illuc tor-
menta, bellica adigi possent. Et si depraedentur ab inimicis, de jure restituendse
sunt."

2 Tratado jurldico-politico, sobrc prcssas de mar, y calidades, que deben concurrir
para hacerse legitimamente d C'orso, Part I. c. v. Cadiz, 1746.

3 " No podra con razon pretender mas extension de sus Costas, que las dos
leguas."

4 " Y circunda en el espacio & lo menos de cien millas en recto : lo qual es una
infalible, y conforme tradicion de los Letradoa de todas las Naciones."

560

THE SOVEREIGNTY OF THE SEA

it " so far as they can maintain their dominion over it " ; and
the same was true of straits and bays.1

Some ten years later Vattel, the pupil and follower of
Wolff, published a work on the law of nations, which is still
of authority, and in which much the same opinions as those
of Puffendorf and Wolff are expressed.2 On the general
question of the appropriation of the sea the usual statement
was made ; but Vattel held that a nation might acquire
exclusive rights of navigation and fishery in the open sea
by treaties, but not by prescription, unless in virtue of the
consent or tacit agreement of other nations. Thus "when a
nation that is in possession of the navigation and fishery in
certain tracts of the sea claims an exclusive right of them, and
forbids all participation on the part of other nations, if the
others obey that prohibition with sufficient marks of acquiesc-
ence, they tacitly renounce their own right in favour of that
nation, and establish for her a new right, which she may
afterwards lawfully maintain against them, especially when it
is confirmed by long use." On the other hand, Vattel states
that the uses of the sea near the coast render it very sus-
ceptible of appropriation : it supplies fish, shells, pearls, and
other things, and with respect to all these its use is not
inexhaustible. A maritime people may therefore appropriate
and convert to their own profit "an advantage which nature
has placed within their reach as to enable them conveniently
to take possession of it, in the same mariner as they possessed
themselves of the dominion of the land they inhabit." Vattel
does not state his opinion as to the distance from the coast
within which the fisheries may be appropriated, but from the
examples he cites it is evident that the space might extend
considerably beyond the range of guns. " Who can doubt," he
asks, "that the pearl fisheries of Bahrem and Ceylon may
lawfully become property ? " And the same principle may
be applied to floating fish, which appear less liable to be
exhausted. If a people, he says, have on their coast a par-
ticular and profitable fishery of which they can become

1 Jus Gentium, Halse Magdeburgicrc, 1749, cap. i. as. 120-132, pp. 99-107.
" Partes maris a gentibus, qua; idem accolunt, occupari possunt, quousque dom-
inium in iisdem tueri possunt."

2 Le Droit des Gens, Liv. i. c. xxiii. 5, 279-295, 1758.

HISTORICAL EVOLUTION OF THE TERRITORIAL SEA 561

masters, shall they not be permitted to appropriate that
bounteous gift of nature as an appendage to the country they
possess, and to reserve to themselves the great advantages
which their commerce may thence derive, if there is sufficient
abundance of fish to furnish neighbouring nations ? Thus,
Vattel states, the herring fishery on the British coasts might
have been appropriated by the English if they had originally
taken exclusive possession of it, instead of allowing other
nations to take part in it. Another reason for the extension
of territorial dominion over the adjoining sea, "as far as a
nation is able to protect its right," is the security and welfare
of the state ; but the author says it is not easy to fix upon
any precise distance. Between nation and nation, "all that
can reasonably be said is that, in general, the dominion of
the state over the neighbouring sea extends as far as her
safety renders it necessary and her power is able to assert
it." At the time he wrote, "the whole extent of the sea which
is within cannon-shot of the coast is considered as forming part
of the territory ; and for that reason a vessel taken under the
cannon of a neutral fortress is not a lawful prize." The prin-
ciple that applied to the adjacent sea applied with much greater
force to roads, bays, and straits, since they were more capable
of being possessed, and were of greater importance to the
safety of the country. But such areas must be "of small
extent," and not great tracts of sea — as Hudson's Bay and
the Straits of Magellan : a bay " whose entrance can be
defended " might clearly be appropriated.

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

In the writings of other international jurists later in the
century, the tendency to narrow the extent of the territorial

2N

562 THE SOVEKEIGNTY OF THE SEA

sea in accordance with Bynkershoek'n teaching becomes more
manifest, particularly in those which treat specially of the rights
of neutrals. Hiibner, who was assessor in the Consistorial Court
at Copenhagen, treating of this subject, said with reference to
Bynkershoek's doctrine that it was evident the parts of the
adjacent sea belonged to the master of the country, as accessory
to the land, — first, " because it is in his power to take possession
and to maintain it by means of forts and batteries which he is
able to erect on the shore " ; and, secondly, because the waters
serve as a rampart to the land.1

Valin, a French writer of authority, introduced another
principle in combination with that of the range of guns.
In his commentary on the marine ordinance of Louis XIV.,
first published in 1760, he stated that the rule that the
adjacent sea within the reach of guns from the coast is
under the dominion of the neighbouring state was univer-
sally recognised, the alternative distance which he gave being
two leagues — the same as given by Abreu. But he thought
that the depth of the water ought also to be taken into
account, and that the sea up to the point at which the bottom
ceased to be reached by a sounding-line pertained to the adjoin-
ing coast — an idea vague and impracticable.2

In 1778, Moser, a councillor of state in Denmark, adopted
Bynkershoek's doctrine, declaring that the sea adjacent to
the coast of a country was, according to the law of nations,

1 De la Saisie des Bdtimens Neutres, La Haye, 1759, toin. i. Part I. c. iii. s. 5,
p. 57.

2 Nouveau Commentairc sur I'Ordonnance de la Marine du mois d'Aotit 1681,
Hochelle, 1766, t. ii. Liv. v. tit. i. pp. 687, 688. "Jusqu'a la distance de deux
lieues, et avec cette restriction encore, la mer est done du domaine du souverain
de la cote voisine ; et cela que 1'on puisse y prendre fond avec la sonde, ou non. II
est juste au reste d'user de cette me'thode en faveur des Etats dont lea cotes sont
si escarpe'es, que des le bord on ne peut trouver le fond ; mais cela n'empeche pas
que le domaine de la mer, quant h, la jurisdiction et a la peche, ne puisse s'etendre
au delh, ; soit en vertu des traites de navigation et de commerce, soit par la regie
ci-dessus e"tablie qui continue le domaine jusq'ou la sonde peut preudre fond, ou
jusqu'a la portde du canon, ce qui est aujourd'hui la regie uriiversellemeut re-
connue." Lawrence, in his annotated edition of Whe&toris. Elements of Interna-
tional Law, Part II. c. iv. s. 6 (1864), makes a curious blunder in regard to the
limit proposed by Valin, who, he says, " proposed to fix it according to the sound
of a cannon, or as far as the ball would reach." The authority Valin gives for the
statement that the rule was universally recognised is Journal de Commerce, Mai
1759, p. 40.

HISTORICAL EVOLUTION OF THE TERRITORIAL SEA 563

indisputably under the sovereignty of the neighbouring terri-
tory, as far as a cannon-ball could reach.1 On the other
hand, Lampredi, Professor of Public Law in the University
of Pisa, writing at the same time, while allowing to a state
the right of property in the adjacent sea, makes the limit
of its dominion depend, not on cannon range, but upon con-
siderations of general convenience.2 Another contemporary
Italian, Galiani, who was Sicilian Secretary of Legation at
Paris, and was employed by his master, the King of the Two
Sicilies, to write a book in defence of his adhesion to the
Russian League of Armed Neutrality, expressed somewhat
varying opinions as to the limits of the territorial sea.3 Admit-
ting as a received doctrine that the belt of sea washing
the coasts of a country belonged to it as a part of its terri-
tory, he at first seems to extend it, in accordance with
the Italian principles, as far as the authorities can cause
their jurisdiction to be enforced. Later, he advances the
gunshot limit for certain purposes, as the imposition of tolls
and the regulation of navigation ; and finally, with regard
to the observance of neutrality he considers the boundary
should be two leagues, or twice the distance of cannon range,
and he appears to have been the first to fix upon three
miles as equivalent to the range of guns.4

G. F. von Martens, one of the greatest authorities on inter-
national law, writing a little later, more definitely adopted
the principle of the range of guns; but he gave the equi-
valent distance as "three leagues," and moreover admitted

1 Versuch dcs Neuesten Europaischen Volkerrechts in Friedens- und Kriegs-zeiten,
Bd. v. 486, Frankfort, 1778. "Das an die Kiisten eines Landes stossende Meer
stehet nach dem Volkerrecht unter der Oberherrschaft des angriinzenden Landes
unstreitig, so weit es mit Canonen von dem festen Land bestrichen werden kan."

2 Juris Publici Universalis, sive Juris Natural ft Gentium, Theoremata, ii. 7, 65.
' ' Nobis visum est singulas gentes earn partem circa littus suum occupare posse,
cujus usus necessarius, quamque tuendis littoribus et territorio necessarium
arbitrantur."

3 De' Doveri de' principi neutrali verso i principi guerreggianti, e di questi verso
i neutrali. Naples, 1782.

4 " Mi parrebbe peraltro ragionevole, che senza attendere a vedere se in atto
tenga il Sovrano del territorio construtta taluna torre o batteria, e di qual calibro
di cannoni la tenga inontata, si determinasse nssamente, e da per tutto la distanza
di tre miglia dalla terra, come quella, che sicuramente e la maggiore ove colla forza
della polvere finora conoaciuta si possa spingere una palla, o una bomba," p. 432.

564

that a nation might acquire maritime dominion beyond that
limit.1 The principle of appropriation, he says, which applies
to lakes and rivers also applies to straits, which are in general
not wider than great rivers and lakes, so that the middle
may be reached by a cannon-ball fired from the shore; and
those parts of the sea which border the land may also be
regarded as the property and under the dominion of the
nation possessing the coast. By a custom generally acknow-
ledged, he continues, the authority of the possessor of the
coast extends as far as the range of guns from the shore —
that is to say, to a distance of three leagues ; 2 and he adds
that this distance is the least that a nation ought to claim
as the extent of its dominion in the sea. But he also says
that a nation may occupy and extend its dominion beyond
that distance, and maintain it, if the security of the nation
require it, by a fleet of armed vessels; and, further, that
its sovereignty may extend as far as it has been acknow-
ledged to reach by the consent of other nations, and beyond
the boundary of its property — Von Martens, like many others,
drawing a distinction between property in the sea and sover-
eignty over it. As examples of such cases, he definitely states,
as well established at the time he wrote, that St George's
Channel was under the sovereignty of Great Britain and
the Gulf of Bothnia under that of Sweden, while the straits
between Sweden and Denmark were considered to be the
property of Denmark. On the other hand, the Bay of Biscay,
the Mediterranean, the Straits of Gibraltar, the White Sea,
and the North Sea were acknowledged to be free.

Towards the close of the century, an Italian author, Azuni,

1 Precis du Droit des Gens moderne de V Europe, fonde' sur Ics Traitts et V Usayc,
Gottingen, 1789, Liv. iv. c. iv. In an earlier work, Prinue Linece Juris Gentium
Europtearum, published at Gottingen in 1785, the three-league limit is omitted.
After speaking of ports, bays, and straits, he says, " Neque minus in genere esc
maris partes, quse territorio proximse sunt (mare proximum vocant) et tormentorum
in limite terrae constitutorum ictui subsunt, censentur esse in dominio gentis terra
dominse, et pro parte territorii habentur."

2 " Sur la mer voisine en ge'ne'ral jusqu'a la porte"e du canon place sur le rivage ;
c. a. d. jusqu'a trois lieues du rivage," p. 189. He also speaks elsewhere of the
range of guns being equivalent to three leagues ; but it would appear that the
terms "miles" and "leagues" were sometimes used indifferently and carelessly
(see Bluntschli, p. 682), and three leagues was far beyond the range of guns in Von
Marten's time.

HISTORICAL EVOLUTION OB1 THE TERRITORIAL SEA 565

who was judge in the commercial court at Nice, published
a work on maritime law, in which he dealt with the terri-
torial sea ; and adopting the range of guns as the principle
of delimitation, he declared that the equivalent distance ought
to be fixed at three miles, which, he said, was "without
doubt" the farthest a cannon-shot could ever be made to
reach.1 In this Azuni followed Galiani, making the state-
ment more definite, and thus we see the three-mile limit
put forward by publicists, as the alternative to the range
of guns, before the century closed. In point of fact, how-
ever, it had actually been applied in the United States a
year or two before Azuni wrote;2 and it is clear from what
he says that no general agreement then existed as to the
extent of the territorial sea, for he complained that the
limit was still undecided, — a statement repeated in his enlarged
work, published in 1805, — and he contended that it ought
to be fixed by a solemn treaty between the maritime Powers,
as Meadows had suggested a century before.3 Although Azuni
adopted the principle of cannon range, and, like Galiani,
declared that three miles was the farthest that a ball or
bomb could be thrown,4 he was of opinion that for purposes
of neutrality, as an asylum against hostilities, the territorial
waters should be extended to two leagues from either shore
in the case of bays and gulfs, which, he says, even when
their centre was at a greater distance than three miles from
either shore, were admitted to be territorial. He even strongly
recommended the adoption of the range of vision as the
boundary of neutral waters in time of war.

From the above review of the opinions of publicists in
the latter half of the eighteenth century, it is evident that

1 Sistema universale dei Principj del Diritto marittimo del? Europa. Florence,
1795-96. The work was translated into French in 1801 — Systeme Universel de
Principes du Droit Maritime de I' Europe — and revised, enlarged, and republished
in 1805.

2 See p. 574.

3 " Giacche essa sola e, secondo me, il giusto ed unico mezzo, che potrebbe ser-
vire di norma per fissare una volta il mare territoriale sempre combattuto, e non
ancora deciso, o almeno uon stabilito come si dovrebbe in un pubblico Trattato
tra le Potenze marittime," i. 75.

4 " La distanza di tre miglia dalla Terra come quella, che senza dubbio e la
niaggiore, de-re colla forza della polvere a fuoco finora cognita si possa spiugere una
palla o una bomba," p. 76.

566

THE SOVEREIGNTY OF THE SEA

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

Turning from the opinions of international jurists in the
eighteenth century to the practice and usage of nations in
the same period, we may note certain features of prominence :
(1) the continued decadence of claims to sovereignty over
extensive areas; (2) the growing custom of fixing definite
boundaries for special purposes by international treaties or
by municipal laws; (3) legal decisions by which the limit
of cannon range was recognised in certain cases. In the
eighteenth century claims to the sovereignty of seas became
greatly restricted and lost their previous importance. The
feebleness of Venice prevented her from asserting in prac-
tice the rights which were hers by law and ancient pre-
scription. Both Vattel and Azuni, while admitting that she
possessed a limited sovereignty, questioned whether any other
Power would recognise her claim to the whole of the Adriatic.
" Such pretensions to empire," says the former author, " are
respected so long as the nation that makes them is able
to assert them by force, but they vanish, of course, on the
decline of her power." In 1779, indeed, before Azuni wrote,
the Republic issued a decree respecting her neutrality, in
which the limit of cannon range was fixed as the boundary
of her waters for that purpose.2 Her ancient dominion over

1 Repertoire de Jurisprudence. 2 Seep. 571.

HISTORICAL EVOLUTION OF THE TERRITORIAL SEA 567

the Adriatic was soon finally extinguished. When Napoleon
conquered Venice in 1795 and transferred her like a chattel
to Austria, her maritime sovereignty came to an end, and
the picturesque and symbolic ceremony of " espousing " the
Adriatic, which had been performed by the Doge every year
for many centuries, terminated with it.1

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

While Denmark was unsuccessfully endeavouring to assert
exclusive rights to the fisheries within a wide extent of water
in the northern seas, she was at the same time claiming a much
less extensive space along her coasts for purposes of neutrality.
Moreover, it may be added that just as in most European
countries the cannon-range limit and then the three-mile belt —
which likewise originated in connection with neutral rights —
came to be applied as the boundary of the territorial seas for
all purposes, so the Danish limit for neutral waters, which was
a different one, was also adopted later as the general boundary
of the territorial seas by the Scandinavian states. The decree
in regard to neutrality was issued in 1745 by the King of
Denmark and Norway, and communicated to the foreign
consuls, and it forbade all foreign privateers to capture any
vessel of the enemy within a distance of one league, of fifteen
to a degree of latitude, from the coast or its outlying banks

1 Daru, Histoire de la Republique de Venise, i. 445 ; Smedley, Sketches of Venetian
History, i. 72. See p. 4. When Venice was conquered, the Bucentaur was stripped
of her gilding and finery, and, under the name of Hydra, became a prosaic guard-
ship, stationed at the mouth of the Lido until 1824, when she was destroyed.

568

THE SOVEREIGNTY OF THE SEA

or rocks.1 This ordinance in regard to neutral waters was
renewed in 1756, 1759, and 1779, — that of 1759 expressly
declaring that the league was the marine league of fifteen to a
degree.2 It may be added here that early in the next century,
in view of the war with Great Britain, decrees were published
prohibiting either Danish or Norwegian privateers from cap-
turing the enemy's vessels within the territorial sea of any
foreign state which was friendly or neutral ; and such sea, it
was said, was usually supposed to extend for one marine league
from the coast.3 The same distance of four geographical miles
was assigned by Sweden, in a decree of 12th April 1808, which
prohibited the seizure of vessels nearer the coast of neutrals
than the limit named.4

The various ordinances cited referred solely to the limit of
the territorial sea in relation to neutrality. But as early as
1747 the same boundary was applied to a limited part of the
Norwegian coast in connection with fisheries. In that year a
royal decree prohibited Russian fishermen at Finmarken from
fishing within one league of the land, — a measure which was
not opposed by the Russian Government, and which was
renewed by a Norwegian law in 1830.5 In 1812, as we shall
see (p. 653), the territorial waters of Denmark and Norway
were declared to extend to four miles from the coast or its
outlying isles, — that is to say, the limit which was adopted
for neutrality was applied in regard to fisheries and other
purposes.

Another example of the decadence of wide claims to mari-

1 Rescripter, Resolutioner og Collegia!- Breve for Kongeriget Norge, i Tidsrummet
fra 1660-1813, i. 315, 18th June 1745. " Rescr. (til Stiftsbefalingsmsendene i
Norge) ang. det ikke skal vaere nogen fremined Caper tilladt at opbringe noget
Skib een Miil noer de Norske Kyster og de der udenfor beliggende Grunde og
Skjser," &c. The league in the Scandinavian ordinances measures fifteen to one
degree of latitude, or one German mile, equal to about 7420 metres. The marine
league, or three-mile limit ordinarily adopted, is of twenty to a degree of latitude,
or about 5565 metres, or 3.4517 English statute miles.

2 Ibid., i. 423, 439, 602.

3 14th Sept. 1807, s. 5 ; 28th March 1810, s. 7. In the last the privateers were
forbidden to capture ships in the Sound within such distance of the Swedish coast
as was within the range of guns. Auber, Ann. de Vlnstitut de Droit Internal., xi.
145.

4 Kleen, Neutralitetens Lagar, ii. 865.

5 Boeck, Oversigt over Litteratur, Love, Forordninger Rescripter, m.m. vedrjrende
de Norske Fiskericr, p. 12.

HISTORICAL EVOLUTION OF THE TERRITORIAL SEA 569

time sovereignty is to be found in the case of Spain, which,
like the Scandinavian countries, adopted a fixed limit in the
eighteenth century as the boundary of her territorial waters,
and, as with them also, it was placed at a greater distance
than the range of guns from the coast. An eminent Spanish
publicist, Abreu, as we have seen, declared in 1746 that the
boundary of neutral waters should be at least two leagues from
the coast, and by a royal decree of 17th December 1760 this
distance was assigned, the territorial sea of Spain being
declared to extend to six miles from the land. This boundary
was again given in 1775 and in 1830, and it is still retained by
Spain — and also, until last year, by Portugal — as the maritime
frontier for customs, fishery, neutrality, and jurisdiction.1 At
various times Spain has entered into treaties with her neighbours,
France and Portugal, concerning the rights of fishery within
the six-mile zone, either for reciprocal liberty to fish in the
whole extent of the territorial sea, or in the outer belt of three
miles. A treaty of this kind was concluded with France in
1768.2

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

1 Real Cedula, 17th December 1760 ; Real Orden, 1st May 1775 ; Real Decreto,
3rd May 1830 ; Real Decreto. 20th June 1852. Riquelme, Mementos de Derecho
Piiblico International, con explication de todas las reglas que, segun los Tratados, &c.,
ctmstituyen el Derecho International Espanol, i. 211, App., 187, 197, 200 ; Madrid,
1849. Negrin, Tratado de Derecho international maritimo, Madrid, 1883, p. 66. 4

'2 Martens, Recuett, i. 479.

570 THE SOVEREIGNTY OF THE SEA

the following year on the same subject is couched in equally
general terms.1

We find the same want of definition in an edict of the
King of the Two Sicilies in the same year, which speaks
only of the accustomed rules being observed in his " ports,
coasts, and adjacent seas."2 But in corresponding pro-
clamations issued at the same time by the Grand Duke of
Tuscany, the Republic of Genoa, the Republic of Venice, and
the Pope, the range of guns is expressly mentioned as deter-
mining the boundary of their territorial waters in respect to
neutrality. The Grand Duke prohibited all acts of hostility in
the ports or coasts of Leghorn, within certain places specified,
and in the seas adjacent to all his other ports, castles, or coasts
within gunshot of the shore.3 With respect to Civita Vecchia,
Ancona, and his other territories, the Pope prohibited, " accord-
ing to the common usage of nations," all acts of hostility .or
superiority between belligerents there or in the adjacent seas,
" or generally within the range of guns from the shore " ; *
while the Genoese edict forbade all acts of hostility between
belligerents "in the ports, gulfs, and coasts, within range of
guns," ° and contained particular rules for carrying the prohibi-
tion into effect. Thus, if such an act of hostility should be
committed within range of cannon, a shot was first to be fired
into the air, or to a distance from the vessel or vessels violating
the neutrality, unless there was risk of damage to other vessels,
in which case a blank shot was to be fired. If this did not put
a stop to the transgression, the offenders were to be assailed
with shot and musketry. In places where cannon were not

1 21st Nov. 1777 ; 9th May 1778. Martens, Recueil, iii. 16, 18. In Kent's Com-
mentaries on American Law, i. 118 (ed. 1884), it is said (apparently on the author-
ity of Sparks' Diplomatic Correspondence, ii. 110) that the Commissioners, in their
circular letter of 1777 to the commanders of American armed vessels. " carried very
far the extension of neutral protection when they applied it indiscriminately to all
captures within sight of a neutral coast." There is nothing of this in the docu-
ment given by Martens.

2 19th Sept. 1778. Op. cit., i. 47.

s 1st Aug. 1778. " E ne' mari adjacent! agli altri porti, scali, torri, e spiagge
del Gran Ducato non potra usarsi atto veruno di ostilita nella distanza, che potrebl«e
circoscriversi da un tiro di cannone. " Op. cit., 24.

4 4th March 1779. "Ne generalmente dentro la distanza di un tiro di cannone
da terra." Op. cit., i. 52.

5 1st July 1779. "Nei porti, golfi, e spiagge del nostro dominio nella distanza,
che potrebbe circonscriversi da un tiro di cannone." Op. cit., 64.

HISTORICAL EVOLUTION OF THE TERRITORIAL SEA 571

available, the same course was to be followed with muskets,
and, it was said, the rules had to be carried out precisely as
they had been ordained in a decree of 1756, when, no doubt,
the gunshot limit was equally in force. The Venetian decree
is couched in similar terms, and the size of the cannon whose
range was to determine the limit is mentioned. All acts of
force or authority between belligerents were prohibited "in
the ports, roads, and coasts of our dominion, and in all the
adjacent sea, at least to the distance within range of a large
cannon of battery."1 In several of the edicts, as in the two
' last referred to, the range of vision was also used as a limit
within which no belligerent vessel was to be allowed to station
itself, or cruise about waiting for the enemy's vessels : such
action was prohibited within view of the ports or roads.

It will be noticed that all these edicts regarding neutral
waters in which the limit of cannon range was prescribed,
emanated from the small Mediterranean states ; but in many of
the international treaties which followed the Armed Neutrality
of 1780 the gunshot limit for neutral waters was also adopted.
This league, which was directed against Great Britain, had its
source in a declaration by the Empress Catherine II. of Russia
regarding the rights of neutrals ; especially that neutral vessels
should be free to carry on trade on the coasts of belligerents,
and that the property of belligerents in neutral vessels, except
arms, equipment, and munitions of war, should be free from
capture. The seizure of enemy's goods in neutral ships by
English cruisers bore hardly on the commerce of neutral
countries ; and for this reason, and, according to English
views, because it was perceived by the other Powers that
they could not directly contend against the naval force of
Great Britain, a new code of international law was introduced
which would have the effect of sapping it.2 In some of the
treaties referred to, the limits of neutral waters were defined in
vague or general terms, as in that of 1782 between the United

1 9th Sept. 1779, Arts, viii., ix. "Ed in tutti mari ad essi adjacenti, limitati,
almeno allo spazio circoscritto dalla portata d'un grosso cannone di batteria." Op.
cit., i. 78.

2 Jenkinson (Lord Liverpool), A Discussion on the Conduct of the Government of
Great Britain in respect to Neutral Nations (1758), ed. 1801, Pref. Phillimore,
Commentaries, iii. 273. Wheaton's Elements (ed. 1864), 1024. Martens, Recueil,
iii. 158, seq.

572 THE SOVEREIGNTY OF THE SEA

States and the United Provinces.1 The gunshot limit, however,
was specified in a treaty between the United States and
Morocco in 1785, which stipulated that if a vessel of either
state was engaged with that of another Christian Power within
the range of guns of a castle of the other state, it was to be
protected and defended ; 2 in a treaty of navigation and com-
merce between Great Britain and France in 1786;3 and in a
treaty between France and Russia in 1787. In the latter it
was stipulated that in agreement with the principles laid down
in the Russian declaration regarding the navigation of neutrals,
either Power, if at war, should abstain from attacking the
enemy's vessels within cannon range of the coasts of the other
Power, or in the ports, harbours, gulfs, and " other waters com-
prised under the name of closed waters."4 Russian activity
in the direction indicated was shown by the conclusion of a
similar treaty in the same terms with the Two Sicilies a few
days later.5 A little later, in 1803, the range of guns was
adopted by Austria as determining the extent of neutral waters,
as in the treaties above referred to.6

In contrast to the gunshot limit in connection with neutrality,
was another which Spain incorporated in a treaty with Tripoli
in 1784, by which it was agreed that Tripolitan vessels of war
or privateers should not capture ships of their enemy within

1 Mutual protection was to be afforded " dans leurs ports ou rades, mers internes,
passages, rivieres, et aussi loin que leur jurisdiction s'etend en mer." 8th Oct.
1782, Art. v. Martens, op. cit., 433.

2 " A la porte"e du canon des chateaux de Tautre." Vide Martens and De Cussy,
Rec., i. 381.

3 26th Sept. 1786, Art. xli. " Leurs dites Majesty's ne souffriront point que sur
les cotes, a la porte"e du canon , et dans les ports et rivieres de leur obe"issance, des
navires et des inarchandises des sujets de 1'autre soient pris par des vaisseaux de
guerre, ou par d'autres qui seront pourvus de patentes de quelque prince, repub-
lique, ou ville quelconque," &c. Martens, Rec., iv. 178.

4 llth Jan. 1787, Art. xxviii. "... Hors de la portee du canon des cotes de
son allie . . . dans les ports, havres, golfes et autres eaux comprises sous le noin
d'eaux closes." By Article xx. the salute was abolished. Ibid., 207, 210. The
mention of closed waters no doubt referred to the Baltic, which was declared to be
a closed sea (une mer fcrmde), into which the armed vessels of belligerents were to
be refused entry, by a decree of the King of Denmark in 1780, and by conventions
between Russia and Denmark and Sweden in the same year, and between Russia
and the United Provinces and Prussia in the following year. Ibid., iii. 175, 195.
219, 250.

5 17th Jan. 1787, Art. xix. Ibid., iv. 237.

B 7th August 1803. Martens, Recueil, 2. viii. 105.

HISTORICAL EVOLUTION OP THE TERRITORIAL SEA 573

ten leagues of the coasts of the Spanish dominions l — that is to
say, within the same extent of sea as was expressed in the
treaty between France and Algeria a century earlier.2 A few
years later the same limit of ten leagues was agreed to in a
treaty between Great Britain and Spain concerning fisheries
and navigation in certain parts of the Pacific. Disputes had
arisen with Spain concerning proceedings at Nootka Sound,
Vancouver ; and in a convention between the two Powers, signed
in 1790, it was agreed, inter alia, that British subjects should
not navigate or carry on their fishery within a distance of ten
sea leagues from any part of the coast already occupied by
Spain, the object being to prevent illegal trading with the
Spanish settlements.3

We thus perceive that towards the end of the eighteenth
century various maritime boundaries were assigned in partic-
ular places for particular purposes, and that many states looked
upon the limit of gunshot from an open coast as fixing the
extent of their neutral waters. But hitherto, with the exception
of the league limit prescribed by Denmark and Norway, which
had no avowed reference to the range of guns, and was in
reality equivalent to much more than three miles, no Power
had yet adopted one marine league as the equivalent of gunshot
from the shore. It appears that this step was first taken by
the United States of America, and it is of interest to note that
the three-mile limit was put forward tentatively, and, in a
manner, as a temporary expedient. When the war between
Great Britain and France broke out in 1793, the United States
found it necessary to define the extent of the line of territorial
protection which they claimed on their coast, in order to give
effect to their neutral rights and duties. Washington, who
was then President, instructed the executive officers to consider
the line restrained, for the time being, to the distance of one
sea league, or three geographical miles, from the shores, a dis-
tance which was said to be not more extensive than was
claimed by any other Power. This limit was adopted tenta-
tively, since the Government "did not propose, at that time,
and without amicable communication with the foreign Powers

1 Martens, Recueil, iii. 763, 10th Sept. 1784, Art. vi. 2 See p. 527.

3 Oct. 28, 1790, Art. iv. Martens, ibid. iv. 489, 497. Wheaton, Elements, 307
(ed. 1864).

574

THE SOVEREIGNTY OF THE SEA

interested in the navigation of the coast, to fix on the distance
to which they might ultimately insist on the right of protec-
tion." It was stated that the greatest distance to which any
"respectable assent" among nations had ever been given was
the range of vision, which was estimated at upwards of twenty
miles, and the smallest distance claimed by any nation was
" the utmost range of a cannon-ball, usually stated at one sea
league." l Besides the extent of sea referred to, the bays and
rivers were held by usage and the law of nations to be terri-
torial, with immunity from belligerent operations. This was
well shown in the same year, when the United States claimed
that the whole of Delaware Bay and New Jersey, an arm of
the sea about fifty English miles in length and a little over
eleven miles wide at the entrance, was under their territorial
jurisdiction, and ordered the restitution of a British vessel, the
Grange, which had been captured there by a French frigate,
L' Ambuscade ; and this was done notwithstanding the protest
of the French Minister that Delaware Bay was open sea and
not under the exclusive jurisdiction of the United States. The
American Government rested its action on the law of nations,
and declared that they were entitled to attach to their coasts
an extent of sea beyond the reach of cannon-shot — a claim
which showed that the three-mile limit had not been adopted
as an inflexible rule.2

Next year the United States Congress passed a law author-
ising the district courts to take cognisance of all captures
made within one marine league of the American shores;3
but in the treaty concluded between Great Britain and the
United States in the same year, it is interesting to observe
that the less precise limit of gunshot was adopted, in the
same words as in the treaty of 1786 between Great Britain

1 Wheaton, Elements, 723 ; President's Proclamation of Neutrality, April 22,
1793 ; Mr Jefferson, Secretary of State, to M. Genet, 8th Nov. 1793 ; Wharton's
Digest of the International Law of the United States, i. c. 2, s. 32.

2 Opinion of Attorney -General, 14th May 1793 ; Letter of Sec. of State to the
French Minister, 15th May 1793 ; Kent's Commentaries, i. 30. Delaware Bay, it
may be said, has always been, and still is, claimed as territorial water by the
United States. Vide reply of Government of United States to Observations of
British Government on Draft Treaty, 1887. Correspondence relative to the
Fisheries Question, 1887-1888. Parl. Papers (Canada], 1888, p. 70.

3 Act of Congress, 5th June 1794, c. 50. Kent's Commentaries, 30.

HISTORICAL EVOLUTION OF THE TERRITORIAL SEA 575

and France. The twenty-fifth article of this treaty provided
that neither Government should permit the ships or goods be-
longing to the citizens or subjects of the other "to be taken
within cannon-shot of the coast, nor in any of the bays, ports,
or rivers of their territories, by ships of war, or others, having
commissions from any prince, republic, or state whatever." l

It may be mentioned here that the claims which have
been put forward by the United States as to the extent of
their territorial or jurisdictional waters have varied greatly
on different occasions. The above declaration to M. Genet
was, for instance, repudiated by President Jefferson as estab-
lishing a fixed limit ; and it was claimed that the limit of
neutrality should extend "to the Gulf Stream, which was
a natural boundary (!), and within which we ought not to
suffer any hostility to be committed."2 On another occasion,
in a controversy about the right of jurisdiction, they claimed
that the extent of neutral immunity off the American coast
ought at least to correspond with the claims maintained by
Great Britain around her own territory, and that no belligerent
rights should be exercised within "the chambers formed by
headlands, or anywhere at sea within the distance of four-
leagues, or from a right line from one headland to another."3
The American Government endeavoured to obtain from
England in the same year the recognition of a territorial
belt six miles in breadth, and in the draft treaty proposed
in 1807 a distance of five miles was in reality specified.4

1 Wheaton, Elements, 724. 2 Wharton's Digest, i. c. 2.

3 Mr Madison to Messrs Monroe and Pinckney, 17th May 1806. Kent, C'om-
•mentaries, i. 31.

4 Hall, A Treatise on International Law, Part II. c. ii. s. 2.

576

CHAPTER II.

GENERAL ADOPTION OF THE THREE-MILE LIMIT.

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

The new boundary of one marine league, as equivalent to
the range of guns, was soon introduced into English law
and practice, in the first place through the decisions of the
High Court of Admiralty in questions affecting the extent
of neutral waters. It is noteworthy that nothing was heard
at this period aboJit the principle of the King's Chambers

GENERAL ADOPTION OP THE THREE-MILE LIMIT 577

in such cases. It is very doubtful whether, as the American
Government implied in 1806, the boundaries of the King's
Chambers had retained their validity at the beginning of
last century. There seems to be no evidence that they
were enforced during the eighteenth century, or even in the
closing years of the seventeenth, possibly because occasions
to test the point had become rare. But it is perhaps more
probable that the claim to the King's Chambers was allowed
gradually to die out, and that the deliberate omission of
any reference to them in the later proclamations of Charles II.
(see p. 554) foreshadowed this change in practice. It is clear
at all events that long before the end of the eighteenth
century it was well established that a vessel captured by one
belligerent from another belligerent in a port of a neutral
state or within the actual reach of cannon was not good
prize.1 The next step was to give effect to the same prin-
ciple, whether the place was actually within the range of a
fort or not.

The decisions which introduced the three-mile limit into
English jurisprudence were those of Sir William Scott (after-
wards Lord Stowell) at the beginning of last century. In
1800 and 1801 this great authority adopted both the gunshot
limit and the distance of three miles as its equivalent for
the boundary of neutral waters, in deciding the well-known
cases of the Twee Gebroeders. It was these decisions of
Lord Stowell's which introduced the three-mile limit into
English jurisprudence. The cases arose from the capture
of certain vessels in 1799, by the boats of a British man-of-
war, in the Groningen - Watt, between East Friesland and
the island of Borkum, in the belief that they were bound
from Hamburg to Amsterdam, which was then blockaded by
the British; and it was claimed by the King of Prussia that
the capture was made within the territory of that state. In
deciding the first case,2 Lord Stowell found that the capturing

1 The High Court of Admiralty, for instance, decided in 1760 that a French
vessel taken by an English privateer at Hayti was not good prize, as it had been
attacked while in a port belonging to the King of Spain, "within reach of his
cannon and under his protection " (Marsden, Report of Cases determined by the
High Court of Admiralty, 175).

2 There were two cases of Twee Gebroeders — the first (Alberts, master) tried on
29th July 1800 ; the second (Northolt, master) tried on 27th November 1801.

2o

578

THE SOVEREIGNTY OF THE SEA

^-*^v t]/L ths Vtfcek **wr fatty wtm-h .-upturrd

^ x / :, - *. . . Afbcrt^

Fig. 14. — Facsimile of part of the chart, showing where the. "Twee Gebroeders"
were taken. From Robinson, Admiralty Reports.

vessel was "lying within the limits to which neutral im-
munity is usually conceded. She was lying in the eastern
branch of the Eems, within what may, I think, be considered
as a distance of three miles, at most, from East Friesland. An

GENERAL ADOPTION OP THE THREE-MILE LIMIT 579

exact measurement cannot easily be obtained; but in a case
of this nature, in which the Court would not willingly act
with an unfavourable minuteness towards a neutral state, it
will be disposed to calculate the distance very liberally; and
more especially, as the spot in question is a sand covered with
water only on the flow of the tide, but immediately connected
with the land of East Friesland, and when dry, may be con-
sidered as making part of it. I am of opinion, that the ship
was lying within those limits in which all direct hostile
operations are by the law of nations forbidden to be exer-
cised." l In this decision the three-mile limit is assumed to
be, " by the law of nations," the boundary of the neutral waters.
It is also to be observed that the distance was reckoned, not
from low-water mark, but apparently from the land ; while
according to the rule apparently governing such cases now,
the sand -bank itself would be a part of the territory, and
the distance of three miles would be measured from its outer
margin at low water (see fig. 19, p. 635).

In deciding the second case, in which the circumstances were
much the same, Lord Stowell said that " in the sea, out of the
reach of cannon shot universal use is presumed " ; but he made
no reference to three miles as an equivalent distance.2 A few
years later, in 1805, in deciding the case of the Anna, which
was captured at the mouth of the Mississippi by a British
privateer, and in which the question of the violation of
American waters had to be considered, the same judge, quot-
ing Bynkershoek, said: "We all know that the rule of law
on this subject is terrce dominium finitur, ubi finitur ar-
morum vis; and since the introduction of fire-arms, that
distance has usually been recognised to be about three miles
from shore."3

It is, as above stated, in these decisions of the High Court
of Admiralty that the three-mile limit originated in England.
They furnished the legal precedents which regulated subsequent
practice. The gunshot limit was a doctrine borrowed from
Continental publicists, and three miles as its equivalent from

1 Robinson, Reports of Cases Argued and Determined in the High Court of
Admiralty, iii. 162. London, 1802.

2 Ibid., 339. 3 Ibid., v. 373.

580 THE SOVEREIGNTY OF THE SEA

recent American practice. Both were previously unknown to
English law.1

Moreover, although, as we shall see, the writers on inter-
national law had in only a few instances accepted the three-
mile limit as an alternative to the range of guns from the
shore, and scarcely any of the Continental publicists of repute,
the actual practice of Great Britain and the United States,
together with the legal decisions in the British and American
courts, and the dicta of the judges, tended steadily to bring
about its adoption. At first the boundary of one marine league
as equivalent to the range of cannon had reference solely to
questions of neutrality, as the capture of prizes, in the mari-
time wars that prevailed. But very soon it was applied to

1 Vide Chief Justice Cockburn, Law Reports, Excheq. Div., ii. 178. It is a
curious circumstance that many English writers on municipal law, even after this
time, adhering to a different line of inquiry, clung tenaciously to the husk of the
old claims of England to the sovereignty of the sea. Hale, as we have seen,
followed Selden, as did Hargrave and Blackstone, though with apparent diffidence.
Chitty, in his Treatise on the Law of the Prerogative of the Crown, published in
1820, relying on Selden, Hale, and Molloy, declares that "the king possesses the
sovereign dominion in all the narrow seas, that is, the seas which adjoin the coasts
of England, and other seas within his dominions " (p. 173) ; and that he " has an
undoubted sovereignty and jurisdiction, which he has immemorially exercised,
through the medium of the admiralty courts, over the British seas, that is, the
seas which encompass the four sides of the British islands ; . . . the law of
nations and the constitution of the country have clothed the sovereign with this
power, that he may defend his people and protect their commercial interests "
(p. 142). He also assigns the soil under the sea to the king. Hall, in his Essay
on the Rights of the Crown and, the Privileges of the Subject in the Sea Shores of the
Real/m, published in 1830, states the doctrine even more nakedly. After defining
the British seas according to Selden, he says, " Over the British Seas, the King of
England claims an absolute dominion and ownership, as Lord Paramount, against
all the world. Whatever opinions foreign nations may entertain in regard to the
validity of such claim, yet the subjects of the King of England do, by the common
law of the realm, acknowledge and declare it to be his ancient and indisputable
right." Hall also assigns the bottom or fundum of the British seas to the king, the
authorities cited being Coke, Callis, Molloy, Hale, and Blackstone. Lovelaud, the
editor of the second edition of Hall's Essay, which was published in 1875, does
not attempt to qualify the statements. It was not, indeed, till after the decision
in the case of the Franconia in 1876, and the Territorial Waters Jurisdiction Act
of 1878, that the doctrine was abandoned in theory by English lawyers. Even
Moore, the editor of the third edition of Hall's Essay, which appeared in 1888, while
pointing out the alteration of the law by the decision in the Franconia case, and
by the Territorial Waters Jurisdiction Act, thought it undesirable to vary Hall's
text, having regard to the diversity of the opinions expressed by the judges in the
case referred to. Vide p 590.

GENERAL ADOPTION OF THE THREE-MILE LIMIT 581

other purposes, and first of all by the British Government in
connection with the rights of fishery. During the peace
negotiations with the United States at Ghent, after the war
of 1812-14, the British Government intimated that they did
not intend to grant to the United States gratuitously the
privileges formerly given by the treaty of 1783 "of fishing
within the limits of British territory, or of using the shores
of the British territories for purposes connected with the
fisheries." The treaty of Ghent contained no stipulation on
the subject, but shortly afterwards the British Government
expressed its intention to exclude, and gave instructions to
exclude, fishing vessels of the United States from fishing
within the harbours, bays, rivers, and creeks, and within
one marine league of the shores of the British territories in
America, and from drying and curing their fish on shore.
Several American vessels were seized for trespassing within
British waters, and the prolonged diplomatic discussion which
followed resulted in the convention of 1818, by which the
fishermen of the United States were allowed the same rights
as British fishermen on certain parts of the coast, but at all
other parts they were forbidden to fish within a distance of
three miles of the "coasts, bays, creeks, or harbours."1 This
was the first of the treaties in which the three-mile limit
was specified, and it naturally formed a precedent for those
which followed.

That the principle of adopting the distance in question as
the proper boundary of the territorial sea had not yet become
firmly incorporated in British policy in all cases was, however,
shown a few years later in the negotiations with Russia con-
cerning Behring Sea. In 1821 the Emperor of Russia issued
a ukase or decree, in which he declared that the pursuit of
commerce, whaling, and fishery, and of all other industry, on
all islands, ports, and gulfs, including the whole of the north-
west coast of America, beginning from Behring Straits to

1 Convention, 1818, Art. i. "... And the United States hereby renounce
for ever any liberty heretofore enjoyed or claimed by the inhabitants thereof to
take, dry, or cure fish on or within three marine miles of any of the coasts, bays,
creeks, or harbours of his Britannick Majesty's dominions in America not included
within the above-mentioned limits." Wheaton, Elements, 324, 463 (ed. 1864).
Part. Papers, North America, No. 1 (1878). Henderson, American Diplomatic
Qiiestions, 497.

582 THE SOVEREIGNTY OF THE SEA

the 51st of northern latitude, and in other parts specified, had
been exclusively granted to Russian subjects; and therefore
prohibiting "all foreign vessels not only to land on the coasts
and islands belonging to Russia, as stated above, but also to
approach them within less than 100 Italian miles," the
penalty for doing so being the confiscation of the transgressing
vessel and the cargo.1 The Russian Government claimed that
the extent of sea of which the Russian possessions formed
the limits " comprehended all the conditions which are ordinarily
attached to closed seas (mers fermdes), and it might conse-
quently judge itself authorised to exercise upon this sea the
right of sovereignty, and especially that of entirely inter-
dicting the entrance of foreigners; but it preferred only
asserting its essential rights without taking any advantage
of localities." This, it will be perceived, was a revival in the
nineteenth century of pretensions similar to those which
Denmark had advanced in the seventeenth and eighteenth ;
and the claim was opposed by Great Britain and the United
States, whose interests were threatened by it. The British
Government declared that it was contrary to the law of
nations, and that it could not admit the right of any Power
possessing the sovereignty of a country to exclude the vessels
of others from the seas on its coasts to a distance of 100
Italian miles. In its justification Russia cited, not the Italian
publicists or the earlier practice in the Mediterranean, but
an article in the treaty of Utrecht, which assigned thirty
leagues as the distance of prohibition (see p. 531), — an argument
which was sufficiently answered by the statement that the
distance mentioned was a particular stipulation in a treaty
to which the other party had given its deliberate consent.
At an early period in the discussion the Russian Government
suspended the execution of the ukase, and instructed the
commanders of their ships of war to confine their surveillance
as nearly as possible "to the mainland, i.e., over an extent
of sea within the range of cannon-shot from the shore."

An article in the draft convention subsequently arranged
between Great Britain and Russia provided for an exclusive
fishery, not within three miles, but within two leagues or six

1 Martens, Nouv. Rccuett, V. ii. 358 ; Behring Sea Arbitration, British Case, Part.
Papers, United States, No. 1 (1893), p. 38, App. I. No. 1.

GENERAL ADOPTION OF THE THREE-MILE LIMIT 583

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

It is evident from these despatches that the British Govern-
ment at that time held the opinion that the territorial waters
of a state on an open coast extended, " by the law of nations,"
for one marine league from the shore. But it would not have
been easy for them to adduce convincing testimony in support

1 The Duke of Wellington to Count Nesselrode, 17th Oct. 1822 ; G. Canning to
the Duke of Wellington, 27th Sept. 1822 ; Count Nesselrode to Count Lieven,
26th June 1823 ; G. Canning to S. Canning, 8th Dec. 1824 ; S. Canning to
G. Canning, 3rd April 1825. Parl. Papers, ibid., 41, 42, 44, 46, 56, App. -II.
pt. i. 14, 15, 29, 52, 57.

584 THE SOVEREIGNTY OF THE SEA

of that opinion from the accredited writers on the law of
nations whose works were then available, or from the general
usage of nations apart from Anglo-American practice. The
Russian Government were obviously not satisfied on the point,
and their instruction to their naval commanders to enforce the
limit of cannon range, though that was a less definite boundary,
was more in consonance with the law of nations as generally
understood. It was natural that the British Government should
give weight to the decisions of Lord Stowell in the Admiralty
Court.

The Government of the United States, in discussing the
Russian pretension, did not apparently lay the same stress on
the principle of the three-mile limit as they did on some other
occasions. The claim that the Northern Pacific might strictly
be regarded as a closed sea was met by the simple statement
that the opposite coasts on the parallel of 51 degrees were
4000 miles apart. The right of American subjects to navigate
and fish within the prescribed distance of 100 miles from the
coast was rested on continuous exercise from the earliest times.
Universal usage, it was declared, which had obtained the force
of law, had established for all coasts "an accessory limit of
a moderate distance" which was sufficient for the security of
the country and for the convenience of its inhabitants, but
which laid no restraint upon the universal right of nations,
nor upon the freedom of commerce and of navigation.1

In the conventions which followed, it was provided that the
subjects of the contracting Powers should not be molested
either in navigating or in fishing in any part of the Pacific
Ocean, and they were to be at liberty for ten years to frequent
without hindrance all the inland seas, gulfs, havens, and
creeks, on the coasts mentioned, for the purpose of fishing
and of trading with the natives, subject to certain conditions
to prevent illicit commerce.2

It may be here stated that some years later, when American
and British whalers had greatly increased in numbers in

1 American State Papers, Foreign Relations, v. 452 ; Parl. Papers, ibid., App. II.
pt. ii. No. 5 ; Wheaton, Elements, 308.

2 Treaty between Russia and the United States, April 17th, 1824, Art. i. iv. ;
treaty between Great Britain and Russia, 28th Feb. 1825, Art. i. vii. Martens,
Nouv. Rccueil, vi. 684. Parl. Papers, ibid., 52, 53.

GENERAL ADOPTION OF THE THREE-MILE LIMIT 585

Behring Sea, the Russian officials on several occasions urged
their Government to preserve the sea as a mare clausum,1 or
to prohibit foreign whalers from approaching the coast within
a distance of forty Italian miles.2 The Russian Government
pointed out in reply that to fix such a limit would be contrary
to the conventions, and might lead to protests from other
Powers, "since no clear and uniform agreement has yet been
arrived at among nations in regard to the limit of jurisdiction
at sea." In 1847 the Government repeated the objections, and
expressed the opinion that "the limit of a cannon-shot, that
is, about three Italian miles, would alone give rise to no dis-
pute " ; and they further observed that no Power had yet suc-
ceeded in limiting the freedom of fishing in open seas, other
Powers never recognising such pretensions. Subsequently, in
1853, in consequence of continued complaints as to foreigners
fishing in the sea of Okhotsk, the Russian Government were
pressed by the influential Russian -American Company either
to close that great stretch of waters, as an inland sea, or to
prohibit whalers from approaching close to the shores and
whaling in the bays and among the islands. Instructions were
thereupon issued to the commanders of the Russian cruisers
to prevent foreign whalers from entering bays or gulfs, or
from coming "within three Italian miles of the shores" of
Russian America (north of 54° 41' lat.), the peninsula of
Kamtchatka, Siberia, the Kadjak Archipelago, the Aleutin
Islands, the Pribyloff and Commander Islands, and the others
in Behring Sea, as well as Sakhalin and others ; and at the
same time it was declared that while the Sea of Okhotsk, from
its geographical position, was a Russian inland sea, foreigners
were to be allowed to take whales there.3 Thus the Russian
Government adopted at first the principle of the range of guns,
then spoke of this or three Italian miles, and eventually ac-
cepted and enforced, on the great extent of coast referred to
above, the three-mile limit.

Reference must now be made to some decisions in the courts
of law and to certain provisions in particular Acts of Parlia-
ment which bear upon the question of the extent of the terri-
torial waters. Owing to the long-continued peace on the sea
since the decisions of Lord Stow ell at the beginning of last

1 In 1842. Parl. Papers, ibid., 83. 2 In 1846. Ibid., 84. 3 Ibid., 87.

586 THE SOVEREIGNTY OF THE SEA

century, few occasions have occurred for the question of the
boundary of neutral waters to be raised. In a number of civil
cases tried in our courts the three-mile limit has, however, been
referred to, either as a ground for the decision, or more usually
as a dictum of the judges, as the proper boundary of the terri-
torial sea ; but this has been frequently coupled with the quali-
fication that it is the assumed distance of the range of guns,
or the smallest extent that has been claimed by publicists or
states.1 Some of these cases dealt with the vexed question of
bays.2 One of the most important was tried in 1859, and it
referred to the Bristol Channel. An offence was committed on
an American vessel within one mile of the coast in Penarth
Roads, but where the width from shore to shore is less than
ten miles, and Chief Justice Cockburn, in delivering judgment,
said, " We are of opinion that, looking at the local situation of
this sea, it must be taken to belong to the counties respectively
by the shores of which it is bounded ; and the fact of the Holms,3
between which and the shore of the county of Glamorgan, the

1 E.g. , the case of the Leda, in which Dr Lushington claimed that the term
United Kingdom included the waters to a distance of three miles from the
shore (Swa., Adm., 40) ; General Iron Screw Company, in which Lord Hatherly
said that it was "beyond question that for certain purposes every country may, by
the common law of nations, legitimately exercise jurisdiction over that portion of
the high seas which lies within three miles from its shores," — whether this limit
was determined by the range of cannon was not material, since it was clear it
extended at any rate to that distance (1 J. and H., 180) ; Whitstable Fishery Case,
in which it was said that the soil of the seashore to the distance of three miles from
the beach was vested in the crown, and in which Lord Chelmsford observed that
"the three-mile limit depends upon a rule of international law, by which every
independent state is considered to have territorial property and jurisdiction in the
sea which washes their coast within an assumed distance of a cannon-shot from
the shore" (11 C.B. (N.S.), 387; 2 H.L.C., 192); the Aniiapolis, in which Dr
Lushington said, "Within British jurisdiction, namely, within British territory,
and at sea within three miles from the coast" (1 Lush., Adm., 306) ; Rex v. Forty-
nine Casks of Brandy, in which Sir John Nicholl said that "as between nation and
nation, the territorial right may, by a sort of tacit understanding, be extended to
three miles" (3 Haggard, 257) ; Gainmell v. Commissioners Woods and Forests and
Lord Advocate, in which Lord Wensleydale referred to the distance of three miles
as belonging, by the acknowledged law of nations, to the coast of the country, and
" under the dominion of the country by being within cannon range, and so capable
of being kept in perpetual possession " (3 MacQueen, H.L., 419).

2 This subject is treated of by Mr A. H. Charteris, Lecturer in International Law,
University of Glasgow, in a paper read before the International Law Association at
Berlin in 1906 (Twenty-third Report, 103).

3 Two small islands in the Channel.

GENERAL ADOPTION OF THE THREE-MILE LIMIT 587

place in question, is situated, having always been treated as
part of the parish of Cardiff, and as part of the county of
Glamorgan, is a strong illustration of the principle on which we

proceed, namely, that the whole of this inland sea, between
the counties of Somerset and Glamorgan, is to be considered as
within the counties by the shores of which its several parts
are respectively bounded." A good deal of discussion has

588 THE SOVEREIGNTY OF THE SEA

taken place as to the precise meaning of these words. It is to
be noted that much farther seawards than the place in question
the width of the Channel is less than ten geographical miles.
On the usual rule for bays (as laid down in the fishery
conventions), the ten-mile base-line would pass between Nash
Point in Glamorgan and Hurtstone Point, the headland east
of Porlock in Somerset, and the closing line would be three
miles west of this, or about twenty geographical miles from
Penarth Roads. The six-mile limit, from land to land, is, how-
ever, about twenty-seven miles farther east, between the coast
near Goldcliff, in Monmouth, and that near Walton Castle,
Somerset. But about midway between these two limits (and
seawards of Penarth Roads) there is a part where the three-
mile zone around the island, Steepholm, joins that of the coast
on either side, and though eastwards of this there are small
areas beyond the distance of three miles from shore, the fact
that the territorial waters are continuous from side to side
at this place probably confers territoriality on all the waters
inside, though that is a point which has not apparently been
decided. A line drawn from the western boundary of Somerset
(and in that case not from a headland) to Worms Head, the
most western part of Glamorgan, measures about thirty
geographical miles, and it is a markedly oblique line. What
is true of one county ought to be true of another, and a much
more natural line would be one of about twenty-three geo-
graphical miles between Morte Point in Devon and Worms
Head in Glamorgan; or one still farther seawards between
Hartland Point in Devon and St Goven's Head in Pembroke,
which are about thirty-eight geographical miles apart; but
under common law the range of vision has to be taken into
account. It may be added that the whole of the Bristol
Channel within a line from Land's End to Milford was one
of the "King's Chambers" (see p. 122), the closing line being
nearly one hundred miles long ; and that Continental publicists
have referred to it, probably from this circumstance, as being
within British jurisdiction.1

Another case of the kind decided in a British court con-
cerned Conception Bay in Newfoundland, which is rather more

1 Bell, Crovm, Cases Jteserved, 72. See Hall, Internal. Law, 5th edit., p. 156 ;
Westlake, Internal, Law, i. 118.

GENERAL ADOPTION OF THE THREE-MILE LIMIT 589

than twenty miles wide between the headlands and from forty
to fifty miles in length. It was decided by the Judicial Com-
mittee of the Privy Council in 1877 that it was a British bay
and part of the territorial waters of Newfoundland. The
decision was based partly on the configuration of the bay, but
mainly on the evidence that the British Government had for a
long time exercised dominion over it, which had been acquiesced
in by other nations, and the Legislature had by Acts of
Parliament declared it to be British territory.1 Lord Black-
burn, in delivering judgment, said that there was a universal
agreement among writers on international jurisprudence that
harbours, estuaries, and bays, landlocked, belong to the terri-
tory of the nation which possesses the shores round them, but
no agreement existed as to what is the rule to determine what
is a " bay " for this purpose. " It seems generally agreed," he
continued, "that where the configuration and dimensions of
the bay are such as to show that the nation occupying the
adjoining coasts also occupies the bay, it is part of the terri-
tory," most of the writers referring to defensibility from the
shore as the test of occupation. But the judgment was founded
on the principle above stated.

With regard to jurisdiction over foreigners in the waters
along our coasts, it is surprising that until quite recently
there was no statutory enactment or international agree-
ment defining the extent of that jurisdiction. Even in
certain statutes in which the territorial waters are specially
mentioned their boundaries are not defined, Thus, the pro-
visions of the Foreign Enlistment Act of 1870,2 which waa
passed for purposes of neutrality in the war between France
and Germany, were declared by the second section to ex-
tend "to all the dominions of Her Majesty, including the
adjacent territorial waters"; and the fourteenth section pro-
vided that any ship captured during the war between other
nations when Great Britain was neutral, " within the territorial
jurisdiction of Her Majesty, in violation of the neutrality of
this realm," &c., would be illegal; yet, in the interpretation
clause no definition is given of the meaning or extent of " the

1 The Direct United States Cable Company v. the Anglo-American Telegraph
Company, Privy Council, 1877. Law Reports, Appeal Cases, ii. 394.

2 33 & 34 Viet., c. 90.

590 THE SOVEREIGNTY OF THE SEA

adjacent territorial waters." A similar reluctance apparently
to fix a definite boundary to the territorial seas for all purposes
has been shown by the British Government on several occasions
in recent years — as, for example, in the Territorial Waters
Jurisdiction Act, and in the negotiations preceding the North
Sea fishery convention of 1882.1

The statute just referred to was the outcome of a very
important case which was decided in the English courts in 1876,
and raised indirectly the whole question of the extent of the
territorial sea (apart from bays) and the nature of the juris-
diction over it. A German ship, the Franconia, bound from
Hamburg to the West Indies, ran into a British ship, the
Strathclyde, off Dover and within two and a half miles from
the English coast, whereby the Strathclyde was sunk and a
passenger drowned. The master, a German named Keyn, was
convicted of manslaughter in the Central Criminal Court,
according to English law, and the case was carried to the
Criminal Court of Appeal. The defence was that as the
defendant was a foreigner, in a foreign vessel, on a foreign
voyage, sailing upon the high seas, he was not subject to the
jurisdiction of any court in this country, while it was con-
tended for the crown that inasmuch as at the time of the
collision he was within three miles of the English shore, the
offence was committed within the realm of England and was
triable by the English court.2 It was held by seven of the
thirteen judges that in the absense of statutory enactment the
Central Criminal Court had no power to try such an offence,
inasmuch as the original jurisdiction of the admiral, which
had been transferred to that court, did not enable him to try
offences by foreigners on board foreign ships; the other six
judges held the opposite, on the ground that the sea within
three miles of the coast of England is part of the territory of
England; that the English criminal law extends over those
limits ; and the admiral formerly had, and the Central Criminal
Court now has, jurisdiction to try offences there committed
although on board foreign ships. In referring to the limits of
the territorial waters under the law of nations, the three-mile
distance or the range of guns from the shore was very gener-

1 See pp. 592, 632.

2 Regina v. Keyn, Law Reports, Excheq. Div., ii., 1876-7, p. 63.

,

GENERAL ADOPTION OF THE THREE-MILE LIMIT 591

ally quoted, and not infrequently the two were confused and
spoken of as if they were one and the same thing. This was
particularly the case with Sir Alexander Cockburn, who
referred to various treaties and edicts (see p. 570) in which the
range of guns alone was mentioned, as having fixed a three-
mile limit for purposes of neutrality. He even gives Bynkers-
hoek the credit of having propounded the three-mile theory.1
His conclusion was cautiously expressed as follows : " Possibly,
after these precedents and all that has been written on this
subject, it may not be too much to say that, independently of
treaties, the three-mile belt of sea might at this day be taken
as belonging, for these purposes [in connection with fisheries
and neutrality], to the local State."

It was, as we have said, in sequence to the above case of the
Franconia that the important statute, the Territorial Waters
Jurisdiction Act, was passed by the British Parliament in 1878.2
This Act is sometimes loosely referred to as having settled the
extent of the territorial waters at three miles from the shore.
This is far from being the case. In the preamble it is stated
that "whereas the rightful jurisdiction of Her Majesty, her
heirs and successors, extends and has always extended over the
open seas adjacent to the coasts of the United Kingdom and of
all other parts of Her Majesty's dominions to such a distance as
is necessary for the defence and security of such dominions.
And whereas it is expedient that all offences committed on the
open sea within a certain distance of the coasts of the United
Kingdom and of all other parts of Her Majesty's dominions, by
whomsoever committed, should be dealt with according to law,"
it was enacted that an offence committed by a person, whether
or not a British subject; within the territorial waters of Her
Majesty's dominions was an offence within the jurisdiction of
the admiral, although committed on board, or by means of, a

1 E.g., p. 204: "There are several treaties by which nations have engaged, in
the event of either of them being at war with a third, to treat the sea within three
miles of each other's coasts as neutral territory," the treaties being those referred
to on p. 572. " After the three-mile theory had been propounded by Bynkershoek,"
p. 177. Mr Justice Amphlett went further, and attributed a similar doctrine to
Grotius : " All the earlier writers, including Grotius, the vigorous advocate of the
free navigation of the high seas, and many of the later writers, maintained that
within the zone of three miles the state had, without qualification," &c., p. 122.

2 41 & 42 Viet., c. 73.

592 THE SOVEREIGNTY OF THE SEA

foreign ship, and the person who committed the offence might
be arrested, tried, and punished accordingly. The legal advisers
of the Government were, however, careful to guard against the
limitation of the general rights of the crown in the adjacent
seas to the distance to which criminal jurisdiction was declared
to extend. In the interpretation clause it is stated: "'The
territorial waters of Her Majesty's dominions/ in reference to the
sea, means such part of the sea adjacent to the coast of the
United Kingdom, or the coast of some other part of Her
Majesty's dominions, as is deemed by international law to be
within the territorial sovereignty of Her Majesty : and for the
purpose of any offence declared by this Act to be within the
jurisdiction of the admiral, any part of the open sea within one
marine league of the coast measured from low- water mark shall
be deemed to be open sea within the territorial waters of Her
Majesty's dominions." The reservation is made explicit in the
fifth section, which says that "nothing in this Act contained
shall be construed to be in derogation of any rightful jurisdiction
of Her Majesty, her heirs or successors, under the law of nations,
or to affect or prejudice any jurisdiction conferred by Act of
Parliament or now by law existing in relation to foreign ships
Or in relation to persons on board such ships."

In the debate that took place in the House of Lords in 1895
in connection with the Sea Fisheries Regulation (Scotland) Act,1
by which power was conferred on the Fishery Board for
Scotland of regulating trawling, under certain conditions, up
to thirteen miles from the coast (see p. 720), it was stated by
Lord Halsbury, who had charge of the Territorial Waters
Jurisdiction Act in 1878, that "in that Act they took care
specially to avoid any measurements. The distance was left
at such limit as was necessary for the defence of the Realm ;
then the exact limit was given for the particular purpose in
view." Equally clear was the statement of the late Lord
Salisbury in the same debate, that " Great care had been taken
not to name three miles as the territorial limit. The limit
depended on the distance to which a cannon-shot could go." 2

1 58 & 59 Viet., c. 42.

2 Hansard, xxxiii. 504. The Lord Chancellor (Lord Herschell), who followed,
said : ' ' He was far from saying that three miles was to be the limit of territorial
waters for all time. Originally the distance was fixed by gunshot, and it was

I

GENERAL ADOPTION OF THE THREE-MILE LIMIT 593

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

Other Acts of Parliament which fix limits of jurisdiction
beyond three miles from the shore include those relating to
smuggling, the public health, and slave-ships. In 1736, and
later, statutes were made by Parliament, known as the Hover-
ing Acts, by which vessels with certain cargoes on board,
destined for British ports, might be seized within four leagues
of the British coast; and foreign vessels so taken have been
brought for adjudication before British courts and forfeited
for illicit trade.1 By later Acts concerning the customs, differ-
ential limits were fixed with respect to jurisdiction over vessels
having dutiable goods on board. Those belonging wholly or
in part to British subjects, or having half the persons on board
British subjects, found or discovered to have been within four

always said that the distance a gun could fire to was three miles. How far this
principle was to be extended, and whether it was to be extended indefinitely, was
a question for consideration, and it was a question which would not be without its
difficulty." Lord Salisbury referred to a gun which was fired on Jubilee Day
and carried twelve miles, and Lord Herschell to one which had a range of thirteen
miles.

1 9 Geo. II., c. 35 ; 24 Geo. III., c. 47 ; Twiss, The Law of Nations in Time of
Peace, 261 ; Hall, A Treatise on the Foreign Powers and Jurisdiction of the British
Crown, 244.

2p

594 THE SOVEREIGNTY OF THE SEA

leagues of the coast between the North Foreland and Beachy
Head, or within eight leagues of any other part of the coast ;
or any foreign ship with one or more British subjects on board,
found or discovered to have been within three leagues of the

o

coast, or any foreign ship irrespective of British subjects
within one league, might under certain specified conditions be
forfeited; and power was conferred on the commander of a
ship of the royal navy to fire on such vessel if it refused to
bring to after a warning gun had been given.1

Other nations have also assigned boundaries for customs
jurisdiction, which in nearly all cases exceed the ordinary
limits of territorial waters. The United States in 1799 ex-
tended its jurisdiction for such purposes to four leagues from
the coast, and in 1807, in an Act against the importation of
slaves, the seizure of vessels laden with certain cargoes within
that distance was also authorised.2 In Spain the customs
limit is six miles, and therefore corresponds to the territorial
zone which is claimed;3 in Sweden it is also six miles, but
measured on the Scandinavian system from the outermost
rocks; in Norway it is four miles, measured on the same
principle, but a treaty between Norway and Mexico, concluded
in 1886, places it as between these countries at three leagues
from low- water mark.4 In Italy the boundary is ten kilometres ;
in France two myriametres, or about four leagues ; in Austria
it is also four leagues; while in Canada it is three leagues.5
Wide limits for jurisdiction have also been fixed by certain
quarantine Acts. By the British Act of 1753, all vessels
coming from places whence the plague might be brought were
required to make signals on meeting other ships within four
leagues of the coast, a distance which was reduced to two-
leagues by a later Act.6

Such extension of jurisdiction as is indicated for customs
or quarantine purposes over foreign ships approaching the

1 16 & 17 Viet., c. 107, ss. 212, 218 ; 39 & 40 Viet., c. 36, s. 179.

2 Kent, Commentaries, i. 31 ; Wheaton, Elements, 267, 323.

3 Riquelme, op. cit. See p. 569.

4 Fifteenth Ann. Rep. Assoc. for Reform and Codification of the Law of Nations r
18, 22 ; Seventeenth, ibid., 302 ; Annuaire dc VInstitut, xi. 151.

6 Fifteenth Rep., ibid., 84, 121 ; Ann. de VInstitut for 1894. Customs Act of
Canada, 49 Viet., c. 32, s. 21.
6 26 Geo. II. ; 6 Geo. IV., c. 78.

GENERAL ADOPTION OF THE THREE-MILE LIMIT 595

ports of a country, has only been sanctioned in a few cases
by international treaties. It is now generally held to rest upon
another basis than the absolute rights possessed by a state
in its territorial waters proper ; although it is quite in agree-
ment with the principles laid down by the older publicists,
as Puffendorf, Vattel, and Von Martens, and by several recent
writers, as Latour,1 that a nation is justified in exercising
jurisdiction in the sea as far as its security or interests render
it necessary. The current opinion is that such rights can
only be enforced against foreigners under the comity of nations
or by their tacit assent, as a matter of mutual convenience, and
in practice they are acquiesced in by other Powers.2 But it is
important to observe that, as will be more apparent when we
come to deal with the exclusive right of fishing, maritime
nations find it necessary for the protection of their just inter-
ests to extend their jurisdiction beyond the somewhat narrow
boundary at present ordinarily assigned.

The statement made above, that the true principle for deter-
mining the extent of the territorial sea on an open coast is the
range of guns from the shore, is borne out by an examination
of the writings of the accredited authorities on the law of
nations. A review of the opinions of the leading publicists
of the earlier part of last century shows that while the
majority accepted Bynkershoek's principle of cannon range,
comparatively few restricted it to the distance of three miles,
and many logically insisted that the extent must necessarily
vary with the improvements in artillery. Works of a purely
polemical nature may be passed over, such as those of the
worthless Barrere3 and of Champagne.4 They were inspired
by hatred of Great Britain and the desire of flattering Napoleon
rather than by love of the truth, and were written in order
to show that the British were the tyrants of the sea. Another
contemporary French author, of much superior merit, who

1 Mer Territoriale, 222; and see pp. 551, 560, 564.

2 Twiss, op. cit., 261-264; Phillimore, Commentaries, i. 236; Kent, loc. cit. ;
Wheaton, loc. cit. ; Hall, lac. cit. The latter author states that they " repose on
an agreement which, though tacit, is universal," and that "no civilised country
encourages offences against the laws of a foreign state when it sees that the laws
are just and necessary."

3 De la Libertt des Mers, ou le Gouvernement Anglois devoiU, 1798.

4 La Mer Libre, La Mer Fermeef 1803.

596 THE SOVEREIGNTY OF THE SEA

dealt with the question was Rayneval, although his views
were also somewhat coloured by national prejudice. In 1803
he published a treatise on international law,1 and in 1811
another on the liberty of the sea.2 The latter for the most
part consists, like the work of Champagne, of an examination
of the writings of Grotius and Selden regarding the mare
liberum and the mare clausum, and also of the trenchant
little book of Jenkinson (Lord Liverpool) on the conduct of
the British Government in relation to neutrals. But in the
earlier treatise, which is still cited as an authority, Rayneval
expounded the law of nations respecting the territorial sea
with marked impartiality. On the general question of the
freedom of the sea and the appropriation of straits and
bays the usual opinions were expressed. He held that the sea
bathing the coasts of a country makes part of it; that the
security and tranquillity of the state require that it should be
held as a rampart against hostile surprise or violence and illicit
trading; and that the fisheries form a natural appendage to
this zone. With regard to the extent of sea that may be
appropriated, Rayneval stated that it had not been determined
by any uniform rule. Some, he said, carried it to a hundred
miles, or to sixty miles, from the coast, others only to three
miles, and others placed it at the distance of gunshot from the
shore. On the southern coast of France it had been fixed by
agreement at ten leagues with respect to the Barbary privateers.
Like Meadows and several preceding writers, he held it to be
desirable in the interests of the peace of nations that a
general rule, or at least particular rules clearly determined,
should be adopted on a matter so important and exposed
to such uncertainties and disputes. Authors, he said, had
usually fixed the distance at the range of cannon, but their
opinion was not founded on a general regulation nor on uniform
practice ; and the most equitable limit according to some was
the range of vision from the coast or the apparent horizon.
Rayneval was of opinion that within the territorial seas the
neighbouring state had the right to forbid navigation, except
in cases of stress and necessity — a claim generally discarded,
though still made by Norway. Any liberty to foreigners to
fish along the coasts or in the bays of a country, he thought,
1 Institutions du Droti de la Nature et des Gens. 2 De la Libert^ des Mers.

GENERAL ADOPTION OF THE THREE-MILE LIMIT 597

WL. "^atter of tolerance, founded principally on the supposed
abundance of fish ; and he held the opinion, which is at variance
with that of most other writers, — unless when confined to the
territorial zone, — that a state does not lose the right to forbid
foreigners from fishing in the waters along its coasts because
it at one time allowed them to do so.

Much more definite and restricted was the opinion of a con-
temporary English lawyer, Chitty, who published a work on
the law of nations in 1812.1 Quoting Vattel, that the whole
extent of the sea within cannon-shot of the coast is considered
as making part of the territory, and that a vessel taken
under the guns of a neutral fortress is not lawful prize, he
says that the same doctrine is enforced by Von Martens ; and
he refers to the decisions in the English Court of Admiralty
in the cases of the Twee Gebroeders and the Anna, which
established the principle in English law. Chitty, however,
makes no allusion to the three-mile limit as an alternative
to the range of guns.

Bynkershoek's principle, and also a fixed distance in place
of it, were likewise accepted by Schmalz, Professor of Law in
the University of Berlin. Writing in 1817,2 he declared that
the adjacent sea pertained to the neighbouring land as far
as it could be defended by cannon from the shore ; that this
principle had been systematically adopted ; and that the
distance had been fixed arbitrarily at three marine leagues,3
— an erroneous statement, no doubt derived from G. F. von
Martens, which has been previously referred to,4 and was
copied from one book into another. Two years later another
and a greater German authority, Kliiber, also adopted the
principle of the range of guns, without, however, proposing
an equivalent distance in miles.5 He allowed to the state
the waters susceptible of exclusive possession, over which it
had acquired, by occupation or convention, and maintained,

1 A Practical Treatise on the Law of Nations relative to the Legal Effect of War
on the Commerce of Belligerents and Neutrals. London, 1812.

2 Das Europdische Volkerrecht, Berlin, 1817, p. 141.

3 " So weit der Schuss des Geschiitses vom Ufer es bestreichen moge ; dies selbst
nahm man mit noch ungebundenerer Will-Ruhr auf 3 Lieues an."

4 P. 564.

* Europaisches Volkerrecht, Stuttgart, 1821, p. 204 ; Droit dcs Gens moderne de
I'Europe, 1819, III. ii. 130 (ed. 1831).

598 THE SOVEREIGNTY OF THE SEA

its sovereignty. Among the parts so comprised are (1) the
sea adjoining the continental territory of a state — at all events,
"according to the generally received opinion," to the extent
to which it can be reached by cannon-shot from the shore ;
(2) parts extending into the land, as bays and gulfs, which
can be commanded by guns on shore; (3) straits which are
equally commanded by guns ; (4) gulfs, straits, and seas adjoin-
ing the continental territory of a state, which, though not
entirely under the range of guns on shore, are recognised by
other Powers as closed seas — that is, under one dominion,
and inaccessible to foreign vessels without permission.

Wheaton, an eminent American jurist, whose first work
was published about this time, likewise accepted the principle
of cannon range, or, as an alternative, a distance of three
miles from the shore.1 The territorial jurisdiction of a neutral
Power, he says, "extends to the ports, harbours, bays, and
chambers formed by headlands of the neutral Power. The
usual addition allowed to this is a distance of three English
miles, or a marine league, or as far as a cannon-shot will
carry from the coasts or shore." His statement is based on
the decisions in the English Admiralty Court, and on the
writings of Vattel, Bynkershoek, Von Martens, and Azuni. In
his great treatise on the law of nations, first published in 1836,2
the same views are expressed, it being stated that the general
usage of nations superadds "to bays, ports, &c., a distance
of a marine league, or as far as a cannon shot will reach,
along all the coasts of the state " ; and, incorporating into
his text Lord Stowell's observation, he says, " The rule of law
on this subject is terrce dominium finitur , ubi finitur
armorum vis, and since the introduction of fire-arms, that
distance has usually been recognised to be about three miles
from the shore." Wheaton also states that the exclusive
territorial jurisdiction of the British crown over the enclosed
parts of the sea along the coasts of Great Britain has imrnemo-
rially extended to those bays called the " King's Chambers," 3

1 A Digest of the Law of Maritime Captures or Prizes, New York, 1815,
c. ii. p. 55.

2 Elements of International Law, c. iv. ss. 6-10. London, 1836.

3 The King's Chambers were, however, confined to the coast of England.
See p. 122.

GENERAL ADOPTION OF THE THREE-MILE LIMIT 599

and that a similar jurisdiction is also asserted by the United
States over Delaware Bay, and other bays and estuaries form-
ing portions of their territory, and that a state had the
exclusive right of fishing within its territorial waters.

Chancellor Kent, who was another high American authority,
expressed somewhat different opinions from those of Wheaton,
in a treatise published in 1826, and seemed inclined to extend
territorial jurisdiction much farther into the sea than the latter
writer.1 The extent of such jurisdiction over the neighbouring
sea is, he says, often a question of difficulty and of dubious
right, but as far as a nation can conveniently occupy, and
that occupancy is acquired by prior possession or treaty, the
jurisdiction is exclusive. It is difficult, he states elsewhere,
to draw any precise conclusion, amidst the variety of opinion,
as to the distance to which a state may lawfully extend its
exclusive dominion over the sea adjoining its territories, and
beyond harbours, gulfs, bays, and estuaries, where its juris-
diction unquestionably extends. "All that can reasonably be
asserted is, that the dominion of the sovereign of the shore
over the contiguous sea extends as far as is requisite for
his safety, and for some lawful end. A more extended
dominion must rest entirely upon force and maritime suprem-
acy. According to the current of modern authority," he
continues, " the general territorial jurisdiction extends into the
sea as far as cannon-shot will reach, and no farther; and
this is generally calculated to be a marine league." These
opinions do not differ materially from those of Puffendorf
and Vattel, and the tendency of this writer to allow an
extended maritime jurisdiction is shown by his statement
regarding bays. He holds that the American Government
have the right to claim for fiscal and defensive regulations
an extensive jurisdiction, and that it would not be unreasonable
to assume, "for domestic purposes connected with our safety
and welfare," the control of the waters within lines stretch-
ing from quite distant headlands, as from Cape Ann to Cape
Cod, and from Nantucket to Montauk Point, and from that
point to the capes of the Delaware, and from the south cape
of Florida to the Mississippi; that is to say, within areas in
comparison with which the " King's Chambers " are insignificant,

1 Commentaries on American Law, i. Part I. Lect. iii.

600 THE SOVEREIGNTY OF THE SEA

since a straight line from the south cape of Florida to the Missis-
sippi measures about 500 miles, and encloses a tract of sea as
much as 180 miles in breath. Kent adds that the Government
of the United States would certainly view with uneasiness, in
the case of war between other maritime Powers, the use of
the waters of the American coast, far beyond the reach of
cannon-shot, as cruising ground for belligerent purposes.

Manning, an English publicist, writing a little later,1 adopts
the usual opinion, stating that the distance to which the
special right of jurisdiction or the qualified dominion of a
state extends on the adjacent sea has been variously measured,
the most prevalent distances being those of a cannon-shot
or of a marine league from the shore. Heffter, a publicist of
high authority, asserting as incontestable the right of all
maritime nations, both for defence and for the protection of
their commercial and revenue interests, to establish an active
surveillance on the neighbouring sea, declares that for these
purposes a state has the power of fixing, according to the
particular conditions of its coasts and waters, the distance
to which its rights shall extend. A common usage, he says,
has established the limit at the range of guns, a principle
sanctioned by the laws and regulations of many nations. But
he maintains with Vattel that the dominion of the state in
the adjacent sea extends as far as it is necessary for its
security, and it can enforce it, — qualifying this declaration,
however, by adopting Rayneval's suggestion that the horizon
should be the extreme boundary of the territorial sea. In
his opinion the range of guns, although the principle commonly
adopted, affords no invariable basis, and the distance may
be fixed, at all events provisionally, by the laws of each
state: formerly, he adds, it included two leagues, and now
usually three marine miles.2

A much more restricted view of the extent of the territo-
rial sea was taken by Reddie, an English writer whose work

1 Commentaries on the Law of Nat-urns, p. 119. 1839.

2 Das Europdisches Vo'lkerrecht der Gegenwart, Berlin, 1844. Le Droit Interna-
tional de I'Europe, Paris, 1873, s. 75. "La ligne de la porte"e du canon elle-meme,
bien qu'elle soit regardee comme de droit commun, ne presente aucune base in-
variable et peut-etre fixe'e par les lois de chaque Etat, du moins d'une maniere
provisoire."

GENERAL ADOPTION OF THE THREE-MILE LIMIT 601

appeared in the same year.1 He adopted Bynkershoek's doc-
trine of the range of guns, but makes no mention of the
three-mile limit or any other alternative distance. A certain
breadth of the adjacent open sea is, he says, necessary for
defence and security, and it is that portion within reach of
cannon-shot, capable of being protected and commanded by
artillery from the land, and thus susceptible of exclusive and
permanent dominion, if not of appropriation. Beyond the
range of artillery the sea is common ; within that range each
nation has the right of sovereignty, legislative, judicial, and
executive, and the exclusive fishery. This part of the sea
cannot be used by nations generally, without diminishing the
use or enjoyment of others, and its produce is by no means
inexhaustible.

Ortolan, a French publicist of eminence, writing about the
same time, not only adopted the principle of Bynkershoek,
but affirmed in a positive manner that the extent of the
territorial sea should correspond to the actual range of artillery
at the time.2 Although the gunshot limit was the one recog-
nised, there was nothing, he says, to hinder two or more
states from fixing between themselves, by treaty, another
limit, but such would be binding only on those who were
parties to the agreement. Bays and arms of the sea whose
shores belong to the same state are also territorial, provided
that their width does not exceed twice the actual range of
guns, or that the entrance can be commanded by artillery,
or is naturally protected by islands, banks, or rocks. Within
the territorial sea as thus defined the state has the power
of making laws and regulations for its safety, prosperity,
and interests, but it has not the right of property, — Ortolan,
like so many other writers, drawing a distinction between
property and jurisdiction. The opinion that the real range
of guns is the true principle for the determination of the
extent of the territorial sea was also affirmed by Hautefeuille,
another French writer of authority.3 According to him, it
extends to the distance a ball can be actually thrown from

1 Researches in Maritime International Law, i. 16. 1844.

2 Regies Internationales et Diplomatic de la Mer, i. 177.

3 Histoire des Origines, des Progres, et des Variations du Droit Maritime Interna-
tional, ed. 1858, p. 22.

602 THE SOVEREIGNTY OF THE SEA

the shore and no farther. Within the space thus commanded
the rights of the state are absolute, both in regard to juris-
diction and property, and even to the prohibition of navi-
gation. The right of fishery is exclusive, since the products
of the sea are not inexhaustible, and the pursuit of them
requires to be kept under proper regulation. On this view,
therefore, the fisheries of right belong to the neighbouring
state up to the limit of gunshot from the coast.

Other French writers of authority have maintained the
same opinion as to the principle for the delimitation of the
territorial waters. Thus, Pistoye and Duverdy l state that
each Power is able, in a given zone, measured by the range
of cannon, to impose its laws and enforce obedience to them.
It cannot take bodily possession of the waves, but it can
maintain over them direct and constant domination. While
there has been much discussion, they say, as to the extent
of the territorial sea, the principle upon which its appro-
priation rests serves also to determine its bounds, "and it
must be acknowledged that the range of cannon from the
shore is the only real and true boundary of the sea in ques-
tion."2 No measure, they add, has been generally agreed
upon between different nations as to the distance which the
range of guns may be supposed to cover; but they think
the eyes of experienced officers on the coast may be trusted
to judge how far a given spot is within the distance. Still
another French author of repute expressed the same view
as to the extent of the territorial sea. Masse", in his elaborate
work on commercial law in relation to the law of nations,3
pointed to the fact that the arbitrary opinions of the older
writers had been rejected, and stated that the real basis of
delimitation was the range of guns — a distance which he
places at " about three miles " ; but he says that this rule is
not always followed in practice. Bays and gulfs are declared
to be undoubtedly part of the territorial sea, even when
they are not capable of being defended from the shore.

1 Trait^ des Prises maritim.es, i. 93. Paris, 1855.

2 " La port^e <iu canon, place a terre, est la seule limite re'elle et vraie des mers
territoriales."

' 3 Le Droit commercial dans ses rapports avec le Droit des Gens ct le Droit Civil,
Paris, 1844-47, torn. i. Liv. ii. tit. i. c. i. es. 103-105.

GENERAL ADOPTION OP THE THREE-MILE LIMIT 603

The reasons for this opinion are the same as those advanced
by Hubner — namely, that such areas form natural harbours
and anchorages, sheltering vessels from tempests : the vessels
are thus under the protection of the coasts, and consequently
of the sovereign of the coasts. The true boundary in such
cases Masse regards as the line joining the headlands, or
passing between the islands that may lie off the mouth, even
if the distance be greater than the range of guns, or than
what has been fixed by convention for an open coast.

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

604

CHAPTER III.

THE FISHERY CONVENTIONS.

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

In previous chapters it has been shown that the intermittent
efforts of the British Government to establish an exclusive
right to the fisheries along the coasts of this country were
without definite result, except that it came to be tacitly
understood by the Dutch fishermen that they should keep
out of sight of the shore. At various times during the
eighteenth century complaints were made to the Govern-
ment of the encroachments of Dutch, French, and Danish
fishermen along our coasts and in the Channel, and repre-
sentations were in several instances made to the foreign
Government concerned. An examination of these complaints
shows that in many cases the foreigners were alleged to fish

THE FISHERY CONVENTIONS 605

within the bays and close to the shore, destroying the spawn
and brood of fish. In other cases they were accused of fishing
in British waters when they were between three and four, or
even between six and seven, miles from the coast, — the real
ground of complaint being that they occupied the localities
where the fish were most abundant, and where the native
fishermen mostly carried on their industry.1 From causes
previously described, the number of Dutch fishermen frequent-
ing the British coasts diminished very much during the
eighteenth century, while at the same time French fishermen,
and on the coast of Scotland also Danes and Prussians, as
well as fishermen from the Austrian Netherlands, came in
increasing numbers. During the war with France and Holland
the fishermen of these nations were unable to pursue their
fishing on the British coasts. But shortly after the restoration
of peace they returned, and complaints of their encroachments,
especially on the coast of Scotland and the south coast of
England, soon became prevalent. In 1819 the Board of British
White Herring Fishery received numerous complaints of
foreign, and more particularly Dutch, herring-busses shooting
their nets too near the coasts, and committing depredations on
the lines and nets of the native fishermen. The Board were
urged to prevent foreigners from fishing "within a certain
distance " of the shore ; but they considered they had no power
to do so, and forwarded copies of the petitions to the Lords of
the Treasury. The clamour continued, and in 1821, and again
in 1822, the Board strongly recommended the Government to
take action. In the latter year the Government made repre-
sentations on the subject to the Government of the Netherlands ;
and as a result a royal decree was issued in 1824 by the King
of the Netherlands prohibiting Dutch fishermen from fishing on
the main coast of Scotland, or even, in the absence of urgent
necessity, from approaching it within a distance of two leagues,
twenty making a degree, or twice the limit of three miles.2

1 Plans and Proposals transmitted to the Committee on the Fishery, No. 1 , &c.

2 Reports by the Commissioners for the British Herring Fishery for 1819, 1821,
1822 ; Staatsblad, No. 28, 4th April 1824, for a copy of which I am indebted to Mr
H. van Hall, of the Universiteits-Bibliotheek, Amsterdam. After a reference to the
previous decrees prohibiting the taking of herrings " between the banks and rocks
of Scotland," as being injurious to the reputation of Dutch pickled herrings (see
p. 201), it is stated that the Board for the Great Fishery is of opinion that, in the

606 THE SOVEREIGNTY OF THE SEA

In 1827 — and thus only twelve years before the Anglo-French
convention fixed a three-mile limit — this Dutch ordinance was
renewed, and from that time few complaints were made of the
encroachments of Dutch herring-busses on the Scottish coast.
They continued to conduct their herring fishery, for the most
part, at distances ranging from twelve or fourteen to forty or
fifty miles, as they still do at the present day.

As the disputes with the Dutch fishermen were thus amic-
ably arranged by the recognition of a six-mile zone of reserved
water, similar contentions sprang up, and continued for a long
period, with fishermen from France. In 1824, some years after
the peace, they began to frequent the coast of Scotland, and
they came in great numbers in each succeeding year, fishing at
the Shetlands, Orkneys, and along the north and east coasts
from Cape Wrath to Berwick, and down the English coast as
far as Flamborough Head.1 Several circumstances connected
with the French fishery tended to provoke disputes. While
the Dutch fished from their busses at a distance from the coast,
where the largest and best herrings were caught, and were for-
bidden under heavy penalties from buying or selling herrings
while at sea, or even from entering any foreign port except by
reason of urgent necessity, the French fished, as a rule, near the
shore from small boats, which they even hired for the season,
not uncommonly from Scotch fishermen. They frequented the
Scottish ports; they bought herrings in large quantities sur-
reptitiously from native boats engaged to local fish-curers, for

interest of this branch of national industry, the fishing should be carried on at
a farther distance from the main coast of Scotland (Schotschc vaste kust), and it is
determined and resolved as follows : ' ' Art. I. Het zal aan geenen Nederlandschen
visscher geoorloofd zijn, de groote of pekelharingvisscherij op eenen naderen afstand
der vaste kust van Schotland uitteoefenen, dan dien van twee uren hemelsbreedte
(20 zoodanige uren eenen graad uitmakende), noch onder eenig voorwendsel hoe ook
genaamd (alleen met uitzondering van het geval van dringende noodzakelijkheid
bij art. 22 der voormelde wet voorzien), gedurende den tijd dat hij de vangst van
pekelharing bedrijft, de vermelde kust op eenen minderen afstand te naderen."
The second article excepted the fishing at Shetland (Hitland) and Fair Isle (Fair-
hill), the autumn fishing on the English coast and off Yarmouth, and the fresh-
herring fishery ; but these exceptions were withdrawn by a royal decree of 5th
June 1827 (Staatscmirant, 1827, No. 278). It may be said that in 1818 the old
prohibition of fishing between the sandbanks and rocks of Norway, Shetland, and
Scotland had been renewed. Staatsblad, No. 15, 12th March 1818.

1 Rapport fait en Execution des Ordrcs du Ministre de la Marine, par M. L. de
Montaignac, Capitaine de frigate, Commandant la Station de la Mer du Nord.

THE FISHERY CONVENTIONS 607

money, brandy, tobacco, biscuits, and other articles ; and they
were allowed to dry their nets, and even sometimes to salt
their herrings, on shore for a small payment.1 They were thus
intimately associated with the native fishermen along the coast,
and they carried on their fishery near the shore in the waters
which were mostly used by the natives.

In the English Channel disputes between British and French
fishermen were still more frequent and acrimonious. British
naval supremacy during the long war had given a monopoly
of the fisheries to the people of the English coast, but after
peace was concluded French fishermen swarmed in the Channel,
and began to fish along the English shores. Complaints be-
came rife of the decadence of the English fisheries, owing to
the alleged encroachments of the French and a general diminu-
tion in the abundance of fish. In 1833 a Select Committee
of the House of Commons was appointed to inquire into the
state of the British Channel fisheries and the laws affecting;

o

the fishing trade of England, with a view to their amendment.
After taking evidence, the Committee reported that they found
those fisheries, and the interests connected with them, to be
in a very depressed and declining state; that the decline
had begun with the peace in 1815 ; that the number of fisher-
men and boats had diminished; and that the fishermen and
their families were indigent.2

The principal causes of the depression were found to be
the extensive interference and aggressions of the French fisher-
men on the coasts of Kent and Sussex, the large quantity
of foreign-caught fish illegally imported, and the great decrease
and comparative scarcity of fish in the Channel. Large fleets
of French fishing vessels from Calais, Boulogne, Dieppe, and
other ports were in the habit of fishing along the English
coasts, frequently within half a league of the shore, and
occasionally nearer, as well as in the bays and shallow waters,
" in which," said the Committee, " it is particularly necessary
for the preservation of the brood of fish, that such as frequent
those waters during the breeding season should not be dis-

1 Montaignac, op. cit. ; Part. Papers, Sess. 1837-38 ; Rep. Com, Brit, Herring
Fishery, 1834.

2 Report from the Select Committee on British Channel Fisheries, Parl. Papers,
Sess. 1833, No. 676.

608 THE SOVEREIGNTY OF THE SEA

turbed, or their young destroyed before they have attained
maturity." The French fishing vessels were more numerous
and larger than the English boats, — between two and three
hundred coming from Boulogne alone, — and they had caused
great injury to the nets and gear of the English fishermen,
especially in the herring and mackerel seasons. At other
times of the year it was proved that they were in the habit
of coming in great numbers every morning into English bays,
and dragging there for bait in the shallow waters close upon
the shore, taking and destroying an immense quantity of
young and unsizeable fish, at periods when they were prevented
by French laws from conducting similar operations in their
own bays.1 These laws, the Committee reported, were under-
stood to be enforced also against English fishermen within
three leagues of the coast of France; on approaching nearer
they were warned off by French cruisers, and told that they
would not be allowed to fish within that distance.

The Committee considered it to be proved that the scarcity
of fish in the Channel (with the exception of herrings and
mackerel) had been occasioned by the great destruction of
the spawn and brood of fish in the shallow waters. They
recommended as remedies for the evil "that foreign fisher-
men should be prevented at all seasons of the year from
fishing within one league, or such other distance of the Eng-
lish coast, as by the law or usage of nations is considered to
belong exclusively to this country," and that they should
also be required to observe, during the spawning or breeding
.•season of fish, all such laws or regulations as might be im-
posed upon English fishermen for the better preservation of
the spawn and brood of fish in the bays and shallow waters
on the coast.2 In order to accomplish these objects, they

1 An ordinance of the French Marine Department, of 15th January 1829, pro-
hibited the use of certain nets, as drag and trawl nets, within three leagues of the
shore from 15th April to 1st September, and within two leagues from 1st September
to 15th April.

2 Some of the English fishery Acts then in force, at least nominally, extended
jurisdiction beyond the distance of one league with regard to the use of certain
nets, &c., and the Committee apparently desired that, besides a zone of exclusive
fishery, foreigners should be bound to observe the municipal law for the protection
of the spawn and brood of fish that might apply beyond such zone. The Acts
referred to were 3 Jac. I., c. 12 (1605), for the better preservation of sea fish,

THE FISHERY CONVENTIONS 609

recommended that customs and revenue officers and the com-
manders of cruisers should be instructed to prevent foreign
fishermen from fishing " within such prohibited distance of the
shore," to enforce the observance by foreigners as well as by
subjects of our fishery laws and regulations, and to protect
the English fishermen from aggression at sea.

The Committee had considerable difficulty in arriving at
their conclusion respecting the limit which should be fixed
for exclusive fishing on the English coast. They were influ-
enced partly by what they understood to be the usage, that
.the sea for one marine league from the shore was considered

o

to be the territory of the adjoining country, partly by the
practice of the Customs' authorities in connection with the
prevention of smuggling, and partly by considerations affect-
ing the preservation of the fry and brood of fish. Under
the Customs' regulations, vessels and boats of certain descrip-
tions, including fishing-boats, required a license, and the Com-
missioners of Customs had discretionary power1 to prescribe
within what distance of the English coast they might be
employed. In some cases fishing -boats were restricted to a
distance of four leagues, in other instances they were allowed
to fish to within one league of a foreign coast, one league
of sea being regarded by the Customs' authorities as belonging
to the territory of the adjacent country. With regard to
the right of fishing, however, it was generally understood
among the English fishermen that the limit on the French
coast reserved for French fishermen was three leagues; and
they desired that the same limit should be applied on the
English coast. The Committee laid great stress on the fixing
of a limit of exclusive fishing in order to preserve the spawn
and brood of fish. It was universally believed, and stated
by all the witnesses, including Mr James Cornish, an ich-

which, inter alia, prohibited the use of certain nets within five miles of any har-
bour, haven, or creek ; 14 Chas. II., c. 28 (1662), regulating the pilchard-fishing in
Devon and Cornwall, which prohibited the use of any " drift, trammel, or stream
net," between 1st June and 30th November, within one and a half leagues of the
coasts of these counties; 1 George I., stat. 2, c. 18 (1714), which prohibited the
use "at sea upon the coast of England" of certain nets, and the landing or sale
of undersized fish ; the Act 33 Geo. III., c. 27 (1759), prohibited the taking or
knowingly possessing "any spawn, fry, or brood of fish, or any unsizeable fish,
or any fish out of season."

1 Under the Act 6 Geo. IV., c. 108, 1825.

2Q

610 THE SOVEREIGNTY OF THE SEA

thyologist of repute, that the fish spawned in the shallow
water near the shore, — an erroneous opinion that has prevailed
almost to the present day, but which was shown to be incorrect
by the observations made by the Fishery Board for Scotland T
and others.

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

No immediate action was taken by the Government to
establish a definite boundary for exclusive fishing, and peti-
tions and memorials continued to pour in from various parts

1 Mr Cornish, quoting from his MS. treatise on zoology, said : " It is generally
supposed that all sea fish, the cetaceous (sic) and cartilaginous excepted, deposit
their ova in sand-banks, in creeks, bays, and shallow water near the shores, because
it is imagined that a certain, though a small, degree of the sun's action on the water
and atmosphere is necessary to bring such ova to maturity. This we know to be
the case with the salmon species, which always ascend to the shallow parts of rivers
for that purpose, and never lay their eggs in deep water, and therefore we infer
that the same influence prevails over the sea fish : this cannot, however, be proved,
and rests mainly on opinion and probable conjecture, founded on such facts as we
are acquainted with." It may be said that a Select Committee of the House of
Commons, appointed in 1817 to inquire into the condition of the fisheries on the
south coast of Devon, strongly recommended Parliamentary action for the protec-
tion of the fisheries, founding on the same erroneous assumption that the fishes
spawned near the shore. A Bill was accordingly introduced in the session of 1819,
and again in 1822, for the appointment of conservators or overseers of the bays,
creeks, and arms of the sea, to supervise regulations for the preservation of the fish
coming there to spawn, and of their brood and fry, and applying to a distance of
one and a half leagues from the shore ; but it did not pass the Lords. Rep. Select
Com. on the State and Condition of the Fisheries on the South Coast of Devon, 1817 ;
Parl. Bills, xxii. 587, 601. Eighth Ann. Rep. Fishery Board for Scotland, Part
III., pp. 13, 258 (1890) ; Tenth, ibid., pp. 19, 235 ; Eleventh, ibid., p. 13.

THE FISHERY CONVENTIONS 611

of the coast complaining of the depredations of French fisher-
men. They were accused of interfering with British fishermen
engaged in dredging for oysters fifteen miles from the shores
of France; of fishing for herrings and mackerel within less
than a mile of the British coasts, compelling the native fisher-
men to shoot their nets to the seawards of them ; of maliciously
destroying fishing gear, and of recklessly extirpating the
spawn and brood of fish in the shallow waters along the
English coast. The Government were urged to give effect
to the recommendations of the Committee of 1833, and they
"were asked by the Commissioners for the Herring Fishery
to issue instructions to the naval superintendent in Scotland
to prevent the encroachments complained of.1

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

On the part of French fishermen there were also numerous
complaints against the English, the most bitter referring to
the dredging for oysters off the French coast. In 1837 a
mixed commission was appointed by the British and French
Governments in connection with these complaints, and
especially to ascertain and define the limits within which
the subjects of the two countries respectively should be at
liberty to fish for oysters between Jersey and the neighbour-

1 Memorials, &c., received by Her Majesty's Government since 1st January 1832,
complaining of the Aggressions of French fishermen on the British Coasts, Parl.
Papers, Sess. 1837-38 ; Supplementary Papers relative to the Complaints respecting
the Aggressions of French fishermen on the British Coasts, 1838, ibid. , 1839 ;
Reports by the Commissioners for the Herring Fishery, for 1834, 1835, 1839.

612 THE SOVEREIGNTY OF THE SEA

ing coast of France. The opportunity was taken at the
same time " to define and regulate the limits within which
the general right of fishery on all parts of the coasts of the
two countries shall be exclusively reserved to the subjects
of Great Britain and of France respectively," and a conven-
tion was concluded at Paris .in 1839 defining these rights.1
By its articles a very considerable stretch of water containing
oyster-beds, in the Bay of Granville on the French coast,
between Cape Carteret and Point Meinga, south-east of
Jersey, and extending far beyond the three-mile limit, was
reserved exclusively for French fishermen, the boundaries
being minutely defined and laid down on a chart annexed
to the convention ; and British fishermen were prohibited
from carrying on any kind of fishing, even for floating fish,
within this area. The bay thus appropriated is over seven-
teen miles in breadth, and the closing line passes in some
places about fourteen miles from the shore.2 This concession
to France was a recognition of the principle that fisheries
of this nature — that is, for objects which are attached to or
stationary on the bottom — require special treatment.

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

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

1 Convention between Her Majesty and tke King of the French, defining and
regulating the Limits of the Exclusive Right of the Oyster and other Fishery on the
Coasts of Great Britain and of France. Signed at Paris, August 2, 1839.

2 The line of closure, as will be seen from fig. 16, was not a single straight line,
as usual, but a series of lines determined by landmarks. The area between this
series and the three-mile limit, from which British fishermen were excluded, meas-
ures a little over 100 square (geographical) miles. On the other hand, all of the
closing line north of 49° 3' (and thus the greater part of it) is, curiously, within the
three-mile zone ; the area outside this line to the three-mile line is about 23 square
miles.

C- - >-. a" •"•.:• -«<?*•»••"* *-.< --.!

.' -^s*>- ^|%-£«%^

^ ^ Mu^f,^.-. •*»**••. r^

' /5- ^' *X<jM<w*:i :{:'^'#-;i:

: \*2tfr- ™?

f ,X- '^

* • '-o •-• •

16. — Showing the Limits reserved for French Fishermen in Granville Kay.

614 THE SOVEREIGNTY OF THE SEA

the limits assigned in Article I. of this Convention, for the French
oyster fishery.

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

The next article defined the miles to be geographical miles,
of which sixty make a degree of latitude ; and it was also
provided that with a view to prevent the collisions which
from time to time took place "on the seas lying between
the coasts of Great Britain and of France," between the
trawlers and the line and long -net fishermen of the two
countries, a mixed commission should be appointed to prepare
a set of regulations for the guidance of the fishermen in the
seas above mentioned. The code of regulations so arranged
was confirmed by the respective Governments in June 1843,
and was in this country embodied in an Act of Parliament.
They embraced a large number of subjects, many of them
beyond what was contemplated in the convention. Besides
what may be termed police regulations, such as the number-
ing and lettering of fishing-boats, there were others defining
and restricting the fishing apparatus to be employed;1 and
all this machinery of regulation was to be applied to British
and French fishermen pursuing their industry in the extra-
territorial waters.

This convention was the first to establish by an inter-
national agreement the three - mile limit as the boundary
of exclusive fishing on the British coasts, so far as French
fishermen were concerned. In view of the numerous conflicts
and disputes, it was clearly of importance that some limit

1 6 & 7 Viet., cap. 79. "An Act to carry into Effect the Convention between
Her Majesty and the King of the French concerning the Fisheries in the Seas
between the British Islands and France," 22nd August 1843. The mesh of trawl-
nets, the length of the trawl-beam, the weight of the trawl-irons and of the ground-
rope, the mesh of herring, mackerel, "bratt," and trammel nets, were in no case to
be over or under a specified standard. A series of detailed regulations for oyster-
fishing was also made, including a close-time and a minimum size. This Act was
repealed by the Sea Fisheries Act, 1868 (the Convention Act), 31 & 32 Viet., c. 45,
but it was revived by Parliament in 1877 (40 & 41 Viet., c. 42), the Convention of
1867 not having been ratified Hoy France.

THE FISHERY CONVENTIONS 615

should be precisely fixed, but the selection of so narrow a
strip of the adjacent sea was in some respects unfortunate,
and has probably acted injuriously on the interests of the
sea fisheries. It was imposed, no doubt, partly because it
was the limit already recognised in England and America
as bounding the territorial seas for the purposes of neutrality,
and because it was deemed sufficient to afford protection to
the breeding fishes and fish -spawn, one of the objects the
Parliamentary Committee had in view in recommending it.

The disputes between the fishermen of the two nations
"were not set at rest by the convention. Numerous infringe-
ments of the new boundary of exclusive fishing occurred,
and the difficulty of causing it to Ibe respected was for many
years considerable.1 As many as twenty-one French vessels
were seized and taken into Berwick at one time for trans-
gressing the limit, and the convention was naturally not
looked upon with favour in certain French seaports.2 Nor
was it generally regarded among the fishery classes in this
country as a triumph of diplomacy. In Scotland it was
thought that the British Government had made a very bad
bargain in parting with the exclusive right to fish for herrings
beyond a limit of only three miles instead of three leagues,
the boundary maintained to be the "legal" and just dis-
tance, for the sake of obtaining, as it was supposed, some
fancied advantage for the English oyster fishermen.3

The convention, moreover, was binding only on French
and British subjects. It left unsettled the limit in relation
to other nations, and the inconvenience of this was shown
by the action of Belgian fishermen. While the French were
excluded from the three - mile zone, the Belgians not only
fished within it, but in many cases they anchored their vessels
in the Scottish harbours and bays and fished in the neigh-
bouring waters from their small boats. In 1848 the commis-

1 Reports of the Commissioners for tJie Herring Fishery, 1839, 1840, 1841.

2 It was denounced in the Boulogne Chamber of Commerce as the greatest
blunder the French Government had ever made, and many complaints were
received from French fishermen of their boats having been captured or pursued
by British cruisers. Deseille, Histoire de la Peche (i Boulogne-sur-Mer, 229. The
French cruisers were no less active in apprehending British transgressors. Parl.
Papers, Sess. 1854-5, 459.

3 Mitchell, The Herring : Its Natural History and National Importance, 243.

616 THE SOVEREIGNTY OF THE SEA

sioners for the British fisheries brought the question before
the Board of Trade, and they were advised to enforce the
boundary laid down in the Anglo-French convention with
respect to Belgian and all other foreign boats also.1 Against
this procedure strong remonstrances were made by the Belgian
fishermen, and these were followed by representations from
the Belgian Government. The Fishery Commissioners, who
were anxious that the law in regard to foreigners fishing
on our coasts should be made clear, continued to press the
matter. The Belgian fishermen then produced to the naval
superintendent a copy of the charter that had been granted
by King Charles II., in 1666, to the citizens of Bruges,'2
under which they claimed equal privileges with British subjects.
That charter appears to have been generally regarded as
fictitious ; but, acting on the advice of the Queen's Advocate,
the Board of Trade directed that for the ensuing season
of 1851 Belgians should be allowed to fish on the same
system as before, but that afterwards this liberty should
cease, except in the case of such as had been able to prove
special privileges under the asserted charter in the English
courts of law. The dispute was settled by a convention
between Great Britain and Belgium in 1852, in which, with-
out mention of any specified limit, it was stipulated that

1 The Board pointed out that the fishermen of other foreign countries were not
disposed to observe the limits laid down in the Anglo-French convention, speci-
fying Dutch as well as Belgians, and that the naval superintendents were perplexed
from the want of fixed instructions on this point. The letter from the Board of
Trade was as follows (Report of the Commissioners for the year ended 5th January
1849) :—

"OFFICE OF COMMITTEE OF PRIVY-COUNCIL FOR TRADE,
"WHITEHALL, lith September 1848.

" SIR, — With reference to your letter of 4th ultimo, requesting, on the part of
the Commissioners of British Fisheries, to know whether Foreign Fishermen are
permitted to fish within three miles of the Shore ; I am directed by the Lords of
the Committee of Privy-Council for Trade, to inform you, that it is the opinion of
this Board, that no such permission is recognised by the British Government, and
accordingly, that it is the duty of the Superintendents of British Fisheries, to warn
Dutch, Belgian, or any other Foreigners, as well as French Fishermen, to keep out-
side of the limits above mentioned. — I am, sir, your obedient servant,

(Sd.) DENIS LE MARCHANT.

The Honourable B. F. PRIMROSE, Secretary,
Board of Fisheries, Edinburgh.

2 Seep. 461.

THE FISHERY CONVENTIONS 617

Belgian fishermen should enjoy the same rights of fishing
on the coasts of the United Kingdom as the most favoured
foreign nation, and, in like manner, that British subjects
should enjoy corresponding rights on the coast of Belgium.1
This convention was more beneficial to Belgium than to us,
as the Fishery Commissioners pointed out, owing to the
extent of the respective coasts conceded for fishing, but it
was thought to be satisfactory, inasmuch as defined rights
were substituted for vague and disputed privileges. Never-
theless, as the Belgian Minister remonstrated that sufficient
time had not been afforded for trying in the British courts
the validity of the charter "alleged" to have been granted
to the fishing vessels of Bruges, the vessels of that port
were allowed for one season more (namely, 1852) the privilege
of using the Scottish harbours for their fishing vessels and
of fishing from them with small boats.2 When the author-
ities attempted in 1852 to enforce the convention against
Belgian vessels other than those of Bruges, by excluding
them from our harbours, so much dissatisfaction was caused
that the Belgian Minister again appealed to the British Govern-
ment, and the restriction was relaxed for another year for
all Belgian boats, so that the enforcement of the three-mile
limit against them did not come into operation till 1853.

The violations of the boundary by French vessels, above
referred to, continued for many years, and the disputes were
sometimes so frequent and serious as to occasion the employ-
ment of seven or eight gunboats on the east coast of Scot-
land to maintain the law. Yet the three-mile limit, as the
Commissioners declared, was but " a slender privilege " to
retain for the native fishermen. " The extent of it," they
truly said, " when looked at from the sea appears small indeed,

1 Convention between Her Majesty and the King of the Belgians relative to
Fishery. Signed at London, March 22, 1852. "Art. I. Belgian subjects shall
enjoy, in regard to fishery along the coast of the United Kingdom of Great Britain
and Ireland, the treatment of the most favoured foreign nation. In like manner,
British subjects shall enjoy, in regard to fishery along the coast of the Kingdom of
Belgium, the treatment of the most favoured foreign nation." The convention
was to endure for seven years, and it was to remain in force thereafter until the
expiry of twelve months after either party notified to the other its intention of
terminating it.

2 Reports by the Commissioners for the British Fisheries, 1848-51. Parl, Papers,
Sess. 1856.

618 THE SOVEREIGNTY OF THE SEA

seeming but a narrow slip lying close under the high cliffs
of the land, and when it is taken into account that the
whole sea outside is free to every comer, whether British
or foreign, the slight boundary within shore ought to be
strictly kept." Sometimes, however, the French were accused
of infringing the limit from a common misconception on
the part of our fishermen that the boundary was the tradi-
tional one of three leagues or nine miles, instead of only
three miles. Upon explanation, they admitted their mis-
apprehension, " but," said the Commissioners, " with a sig-
nificant expression of their wish that it had been leagues
instead of miles."

The French herring vessels swarmed chiefly about Berwick,
and the coast of Northumberland, and in 1853 a question
of the limit at the Fame Isles was raised by the French
commodore. He interpreted the words of the convention
(which did not specify islands) as meaning that the three
miles was to be measured from low - water mark on the
mainland, which would have allowed the French to fish
close to the islands. The British naval superintendent, on
the other hand, held that the limit extended to three miles
from low-water mark on the islands as well, but, pending
a legal opinion, he released two French vessels he had seized
for fishing within that distance from them. The Queen's
Advocate decided in favour of the latter interpretation, and
the point does not appear to have been again raised.1 The
infringement of the boundary by the French gradually became
less frequent, and in 1867 it was reported that they had
begun to fish at a greater distance from the coast than
formerly, and even out of sight of land.

At this time it was found to be desirable to conclude
another fishery convention with France. Nearly all the
elaborate regulations under the convention of 1839 had turned
out to be unworkable or were disregarded, and much differ-

o

ence of opinion existed as to what actually were "the seas
lying between the British Islands and France" to which
they applied.2 In this second convention, in 1867, the ex-

1 Reports of the Commissioners for the British Fisheries, 1852. 1853, 1862.
'2 Report of the Commissioners appointed to Enquire into the Sea Fisheries of the
United Kingdom, I. Ixix. (1866).

THE FISHERY CONVENTIONS 619

elusive fishery limits of the two countries were defined as
in the convention of 1839, and the boundaries of the large
area in the Bay of Granville or Cancale, reserved for French
fishermen, were precisely the same as before.1 The inter-
national " extra - territorial " regulations under this conven-
tion were much less detailed than in the previous one. Fishing
beyond the reserved limits was to be entirely free, with
the exception that a close-time for oysters was established
for the English Channel. The police regulations were to
apply to "the seas surrounding and adjoining Great Britain
and Ireland," and adjoining the Atlantic coast of France,
between the frontiers of Belgium and Spain. The conditions
under which the fishing -boats of one nation might enter
the exclusive fishery limits of the other, such as by stress
of weather, were carefully specified; and each boat while
there was to hoist a blue flag, and was again to leave as
soon as the exceptional circumstances had ceased. The con-
vention was to continue in force for ten years, and after-
wards from year to year, terminable on twelve months' notice.
But, although confirmed by an Act of the British Parliament,
in 1868,2 it was not ratified by France, and its provisions
never came into practical operation, except with regard to
the close-time for oysters, owing to certain objections raised
by the French Government.3 Certain of its provisions, includ-

1 Convention betiveen Her Majesty and the Emperor of the French, relative to the
Fisheries in the seas between Great Britain and France. Signed at Paris, llth
November 1867. Art. I. "British fishermen shall enjoy the exclusive right of
fishery within the distance of three miles from low-water mark, along the whole
extent of the coasts of the British Islands ; and French fishermen shall enjoy the
exclusive right of fishery within the distance of three miles from low-water mark
along the whole extent of the coast of France, the only exception to this rule being
that part of the coast of France which lies between Cape Carteret and Point Meinga.
The distance of three miles fixed as the general limit for the exclusive right of fishery
upon the coasts of the two countries shall, with respect to bays, the mouths of
which do not exceed ten miles in width, be measured from a straight line drawn
from headland to headland. The miles mentioned in the present Convention are
geographical miles, whereof sixty make a degree of latitude." In neither of the
conventions was it expressly said that the ten-mile closing-line for bays was to be
measured from low-water mark of the headlands, but it was so declared in the Act
of 1843, 6 & 7 Viet., c. 79.

2 31 & 32 Viet., c. 45.

3 London Gazette, 9th Feb. 1869. C. E. Fryer, The Relation of the State with
Fishermen and Fisheries. Parl. Papers, Commerc., 24 (1882), p. 1.

620 THE SOVEREIGNTY OF THE SEA

ing, amongst others, the article in the convention defining
the exclusive fishery limits, were repealed by the Sea Fish-
eries Act, 1883.1

Both conventions, as we have seen, dealt with oyster fisheries
in a special manner, and on the coast of France a large area,
extending much beyond the three-mile limit, was reserved to
French fishermen on account of the valuable oyster-grounds
it contained. An interesting point was raised by the Irish
authorities. It happened that Ireland also possessed productive
and extensive oyster-beds on the coast of Wexford, stretching
for many miles beyond the exclusive fishery limits laid down
in the convention, and the Irish authorities claimed the right
of control over the whole of them. They had enforced regula-
tions there before the first convention with France, in 1839,
had been entered into, and at that time they protested against
its application to Ireland. Accordingly, in the Act of 1843
giving effect to the convention, a clause was inserted empower-
ing the Board of Trade, with the sanction of the Privy Council,
to suspend the operation of the convention in Ireland or any
part thereof, so long as the fisheries there should be carried on
exclusively by British subjects, and also to make bye-laws for
enforcing the Act as soon as French boats frequented Irish
waters for the purpose of fishing.2 On the day following the
passing of the Act an Order in Council was issued directing
" that the said Act and articles of regulation shall be suspended
with respect to the fisheries of the whole coasts of Ireland, so
long as such fisheries shall be carried on exclusively by the
subjects of Her Majesty."

The matter was again raised in connection with the con-
vention of 1867, and it was associated with a recent act of
jurisdiction by the Irish authorities beyond the three-mile
limit. Some Welsh boats which had been dredging for oysters
on the coast of Wexford, at a distance, it was said, of four or
five miles from the shore, were arrested, taken to Wexford, the
fishermen fined, and the oysters forfeited. The Board of Trade
thereupon asked the Irish Department, with reference to an
Act that had been passed in 1842 to regulate the Irish
fisheries,3 to state what were " the limits of the Act to regulate

1 46 & 47 Viet., c. 22, sec. 30.

2 6 & 7 Viet., c. 79, s. vi. 3 5 & 6 Viet., c. 106.

THE FISHERY CONVENTIONS 621

Irish fisheries" in pursuance of the provisions of which they
presumed they had acted, and " whether the oysters in question
were captured within those limits." The reply was that the
oysters were taken two and a half miles from the shore, but
that the most extensive and valuable oyster-beds on the east
coast of Ireland lay at a distance of from five to ten miles from
and parallel to the shore, and so far as they, or any other beds,
were "within the reach of ordinary shore boats, and were
habitually frequented by and afforded the means of living to
a shore population, the Commissioners conceive they are justly
entitled to be considered Irish beds, and to come within their
control." 1

The Irish Members of Parliament strenuously supported this
contention, and they succeeded in getting a clause inserted in
the Convention Act of 1868 enabling the Irish Commissioners,
with the approval of the Queen in Council, to regulate the
dredging for oysters on any oyster-beds situated within the
distance of twenty miles seawards from a straight line between
Lambay Island and Carnsore Point — an area of nearly 1300
square (geographical) miles, outside the three-mile limit, includ-
ing the Arklow and Wexford banks, and stretching from
twelve and a half to nineteen miles beyond the ordinary limit.
All such regulations were to " apply equally to all boats and
persons on whom they might be binding," and they were binding
" on all British sea-fishing boats, and on any other sea-fishing
boats in that behalf specified in the Order, and on the crews of
such boats."2 By an Order in Council, dated 29th April 1869,
regulations were made under this section of the Act appointing
a close-time ; but no other boats than British boats were therein
specified.3

In the interval between the two conventions with France,
referred to above, there were some other treaties that dealt
with territorial waters to which allusion may be made. The
provisions of the treaty of 1818 with the United States respect-
ing the fishery rights on the coasts of the British dominions in
America (see p. 581) had given rise to disputes, and in particular
the words "within three marine miles of any of the coasts,

1 Parl. Papers, Sess. 1867-68, Fisheries (Ireland), 135.

2 31 & 32 Viet., c. 45, s. 67.

3 Report front the Select Committee on Oyster Fisheries, 8, 166 (1876).

622 THE SOVEREIGNTY OF THE SEA

bays, creeks, or harbours." This was interpreted by the British
and Colonial Governments as meaning that the boundary of
three miles was to be drawn, not everywhere along the coast
following all its sinuosities, but, where bays or creeks existed,
from a straight line passing from one headland to another
across their mouth or entrance — that is, according to the
principle now known as the headland doctrine. The United
States, on the other hand, generally contended that th& words
meant that the three-mile limit was to be measured every-
where along the coast from the line of the shore, following it
in all its curves and indents, thus eliminating altogether any
special treatment for inlets or bays, and dealing with all parts
of the coast as if it were an open coast. There is little doubt
that the British interpretation was the correct one. This is
evident from the previous usage with regard to bays as
shown by the rules relating to the King's Chambers and the
practice of the Admiralty Court in England, and the reserved
firths in Scotland, and by the claim advanced by the United
States with respect to neutral rights in 1806. It is also
evident from the language of previous treaties. That of 1686
between France and Great Britain referred to "havens, bays,
creeks, roads, shoals, or places"; in that of 1783 between Great
Britain and the United States, "coasts, bays, and creeks" are
spoken of; and in that between the same Powers in 1794,
with respect to neutral rights, it was agreed that ships should
not be taken " within cannon-shot of the coast, nor in any of
the bays, ports, or rivers of their territories." It is clear
that a distinction was drawn between coasts and bays — a
distinction which is now and always has been recognised in
international law, which is made in the North Sea and other-
fishery conventions of recent times, and is claimed by the
United States with regard to their own coasts.1 If no such

1 Had the coasts of the United States been visited by British fishermen, it is not
unlikely that the Government of that country would have been more willing to
admit the ordinary interpretation with regard to bays. British vessels do not,
however, fish on the coasts of the United States, and the United States fishermen,
having exhausted the once productive waters of their own coasts of the New
England States, go to catch a large part of their fish to the waters on the coasts of
British North America, and hence it is to their interest that the limit of exclusive
fishing on the latter should be as small as they can get it made. The position is
very similar to that of the English trawlers who, having impoverished the North
Sea, now go to foreign coasts, as Iceland, to keep up the supplies. See p. 707.

THE FISHERY CONVENTIONS

623

distinction between coast and bays was meant in the clause of
the treaty of 1818, then the words "bays, creeks, and harbours"
are without meaning and superfluous, a construction which is
contrary to the rule which requires that effect be given to
every word in a contract or treaty. That the British construc-
tion was correct was virtually admitted by Mr Webster, the
American Secretary of State, when he said in a State paper,
6th July 1852, that " it was undoubtedly an oversight in the
convention of 1818 to make so large a concession to England,

Fig. 17.— Bay of Fundy. A, United States territory.

since the United States had usually considered that those vast
inlets, or recesses of the ocean, ought to be open to American
fishermen as freely as the sea itself, to within three miles of
the shore." He admitted, moreover, that the word bay applied
equally to small and large tracts of water situated between
capes or headlands.

In 1824, and again in 1838 and 1839, British cruisers seized
American vessels for fishing within the Bay of Fundy, the
Bay of Chaleurs, and elsewhere in contravention of the treaty

624 THE SOVEREIGNTY OF THE SEA

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

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

In terms of the convention of February 8, 1853, the case
of the Washington, above described, came before referees in

THE FISHERY CONVENTIONS

625

London, and on their disagreement it was decided by the
umpire, Mr Joshua Bates, in favour of the United States.
His conclusion was that the Bay of Fundy was not a British
bay, nor a bay within the meaning of the word as used in
the treaties of 1783 and 1818, but belonged rather to the
class which comprised such bays as the Bay of Bengal and
the Bay of Biscay, over which no nation can have the right
to assume sovereignty. He also pointed out that one of
its headlands was in the United States ; and he thought that
the doctrine of the headlands had "received a proper limit"

Fig. 1 8. — Bay des Chaleurs.

in the Anglo-French convention of 1839, where a ten -mile
base-line was adopted.

A few yeans before this, negotiations had been opened
between the Governments with the view of establishing re-
ciprocal free -trade between Canada and .the United States,
and in June 1854 a treaty was signed at Washington,
commonly known as the Reciprocity Treaty, by which certain
articles of produce of the British colonies and of the United
States were admitted to each country respectively free of
duty, and reciprocal rights of fishery were granted. The
subjects of either state were to be free to fish along the

2 R

626 THE SOVEREIGNTY OF THE SEA

coasts and in the bays, harbours, and creeks of the other, with-
out any restriction as to distance from the shore, in Canada,
New Brunswick, Nova Scotia, and Prince Edward's Island,
and on the eastern coast of the United States north of the
36th desree of north latitude. On each side salmon and

o

shad fisheries, and the fisheries in rivers and the mouths of
rivers, were reserved.1 This treaty was to endure for ten
3^ears, and it was terminated by the United States and came
to an end on 17th March 1866, when, in consequence, the
provisions of the treaty of 1818 again came into force. The
British Government, however, being very desirous to prevent,
as far as possible, the loss to the citizens of the United States
by a sudden withdrawal of the privileges which they had
enjoyed for twelve years, decided to allow American fishermen
to continue to fish in all provincial waters upon the payment
of a small fee.2 From the neglect of American fishermen to
obtain the licenses, the fee for which had been raised from
fifty cents to two dollars per ton, the system was discontinued
in 1870, and orders were given -to British cruisers to exclude
American vessels from fishing in territorial waters, and several
of them were seized and forfeited. The Canadian Minister
of Marine and Fisheries issued instructions, in May 1870, for

1 Treaty between Her Majesty and the United States of America, signed at
Washington, 1st June 1854, Art. L, ii. I. " It is agreed by the high contracting
parties that in addition to the liberty secured to the United States' fishermen by
the above-mentioned convention of October 20, 1818, of taking, curing, and drying
tish on certain coasts of the British North American Colonies therein defined, the
inhabitants of the United States shall have, in common with the subjects of Her
Britannic Majesty, the liberty to take fish of every kind, except shell-fish, on the
sea coasts and shores, and in the bays, harbours, and creeks of Canada, New
Brunswick, Nova Scotia, Prince Edward's Island, and of the several islands there-
unto adjacent, without being restricted to any distance from the shore, with
permission to land upon the coasts and shores of those Colonies and the islands
thereof, and also upon the Magdalen Islands, for the purpose of drying their nets
and curing their fish ; provided that, in so doing, they do not interfere with the
rights of private property, or with British fishermen, in the peaceable use of any
part of the said coast in their occupancy for the same purpose." The second article
accorded to Canadian fishermen similar privileges in the waters of the United
States, north of 36 degrees N. latitude.

2 Before this arrangement was made, the British Government, on 12th April 1866,
instructed the Admiralty " that American fishermen should not be interfered with,
either by notice or otherwise, unless they are found within three miles of a line
drawn across the mouth of a bay or creek, which is less than ten geographical
miles in width, in conformity with the arrangement made with France in 1839.'

THE FISHERY CONVENTIONS 627

the same limits as are contained in the Anglo-French con-
vention of 1839 to be put in force against American fisher-
men; but, on representations from London, these were with-
drawn and other instructions issued to the commanders of
the cruisers, in which bays of six miles or less in width at
the mouth were alone reserved.1

Further negotiations between the Governments ended in the
treaty of Washington in 1871, in which reciprocal rights of
fishing were re-established in much the same way as in the
treaty of 1854, but the liberty to British subjects to fish on
the coast of the United States was restricted to the part
north of the 39th degree of north latitude.2 Under this
treaty it was agreed to appoint joint commissioners to
determine the amount of compensation, if any, which should
be paid by the United States for the greater privileges granted
to American citizens by the treaty ; and this commission
met at Halifax in 1877, the sum of 5,500,000 dollars being
so awarded. The award was not received with favour in
the United States, and notice was given at the end of the
stipulated ten years for the abrogation of the treaty, and
the articles referring to the fisheries were so terminated on
July 1, 1885, the provisions of the convention of 1818 again,
for the third time, coming into force. Further troubles and
disputes occurred, not so much in relation to fishing within
territorial waters, as to American vessels frequenting colonial
ports for the purchase of bait, salt, &c., a liberty which was

1 27th June 1870. "The limits within which you will, if necessary, exercise the
power to exclude United States' fishermen, or to detain American fishing vessels or
boats, are for the present to be exceptional. . . . Her Majesty's Government are
clearly of opinion that, by the Convention of 1 818, the United States have renounced
the right of fishing, not only within three miles of the Colonial shores, but within
three miles of a line drawn across the mouth of any British bay or creek. It is,
however, the wish of Her Majesty's Government neither to concede, nor for the
present to enforce, any rights in this respect which are in their nature open to any
serious question. Until further instructed, therefore, you will not interfere with
any American fishermen, unless found within three miles of the shore, or within
three miles of a line drawn across the mouth of a bay or creek, which, though in
parts more than six miles wide, is less than six geographical miles in width at its
mouth. In the case of any other bay — as Bay des Chaleurs, for example — you will
not interfere with any United States' fishing vessel or boat, or any American fisher-
men, unless they are found within three miles of the shore."

2 Treaty between Her Majesty and the United States of America, signed at
Washington, 8th May 1871, Art. xviii., xix.

628 THE SOVEREIGNTY OF THE SEA

not granted by the treaty of 1818, and several of them having
been seized, retaliatory measures were threatened by the
United States. After negotiations between the two Govern-
ments another treaty was signed at Washington, on February
15, 1888, the principal British plenipotentiary being Mr
Joseph Chamberlain. This treaty provided for the appoint-
ment of a mixed commission to delimit "the British waters,
bays, creeks, and harbours of the coasts of Canada and of
Newfoundland, as to which the United States, by Article I.
of the Convention of 20th October 1818, between Great
Britain and the United States, renounced for ever any liberty
to take, dry, or cure fish." The delimitation was to be marked
upon charts by a series of lines regularly numbered and
described, the three marine miles being measured from low-
water mark, "but at every bay, creek, or harbour, not other-
wise specially provided for in this treaty, such three marine
miles shall be measured seaward from a straight line drawn
across the bay, creek, or harbour, in the part nearest the
entrance at the first point where the width does not exceed
ten marine miles." A large number of bays were specially
dealt with by lines specified, that of Chaleurs being closed,
or by other special lines from which the three miles was
to be measured; and other articles in the treaty regulated
the entry of American fishing vessels into colonial ports.
It was further provided that whenever the United States
removed the duties on fish and fish-oils from Canada and
Newfoundland, United States' vessels would be licensed, free
of charge, to enter the colonial ports and harbours to purchase
provisions, bait, ice, seines, and all other supplies 'and outfits,
to tranship their catch, or for the shipping of crews.

But, inasmuch as the above treaty could not possibly be
ratified before the commencement of the next fishing season,
the British plenipotentiaries, in order to avoid a recrudescence
of the usual friction and irritation, and to afford evidence of
their anxious desire to promote good feeling, agreed, in a
protocol of the same date, to a "temporary arrangement for
a period not exceeding two years, in order to afford a modus
vivendi pending the ratification of the Treaty." This arrange-
ment granted the privilege to American fishing vessels of
entering the bays and harbours, on payment for an annual

THE FISHERY CONVENTIONS 629

license of a fee at the rate of one and a half dollars per ton,
in order to purchase bait, ice, and all other supplies and outfits,
to tranship their catch and ship crews, and gave them some
other privileges, declaring also that forfeiture was to be
exacted only for the offence of fishing or preparing to fish
in territorial waters.1

Unfortunately, this treaty failed to pass the Senate of
the United States and was never ratified, and the system
temporarily adopted as a modus vivendi has been regularly
renewed since, and is still in force.2

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

1 Parl. Papers, No. 1 (1888), (C.— 5262).

- The number of American fishing vessels which take the licenses for Canadian
waters is usually about 100, the fees aggregating 10,000 or 12,000 dollars per
annum. Ann. Reports, Marine and Fisheries, Ottawa.

630 THE SOVEREIGNTY OF THE SEA

more than ten miles1 would give room for safe fishing more
than three miles from either shore, and thus prevent the con-
stant disputes which this Government's proposal, following the
conventions above noticed, was designed to avert." 2

Nevertheless, notwithstanding this proposal by the United
States' Government, the limit now enforced for bays on the
coasts of British North America is that of six miles, with the
exception of the Bay of Chaleurs.3 It was apparently found
that the attitude adopted by the British Government in 1870,
then stated to be temporary and exceptional, of allowing the
United States' fishermen to fish " except within three miles of
land, or in bays which are less than six miles broad at the
mouth," ought to be adhered to, during the existence of the
modus vivendi and pending the ratification of the treaty of
1888. If a recent statement of the Under - Secretary for
Foreign Affairs, made in the House of Lords, represents the
policy of the British Government at the present day, this six-
mile limit for bays is to be regarded as established not alone
for British North America, but for every part of the British
dominions unless specially provided for otherwise. (See p. 730.)

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

It has been already said that the fishery convention with
France in 1867 was not ratified by that country, and never
came into operation in the general police regulation of the
fisheries in extra-territorial waters. The desirability of inter-

1 The three-mile limit is measured from the ten-mile arc.

2 Mr Phelps to the Marquis of Salisbury, 3rd August 1887, enclosing ad interim
arrangement proposed by the United States' Government, with " Observations " by
the British Government and Reply of the Government of the United States.

3 Gordon, 15<A Ann. Rep. Assoc. for Reform of Law of Nations (8). 1893.

THE FISHERY CONVENTIONS 631

national regulations to preserve the peace between the fisher-
men of various countries frequenting the neighbouring seas,
and particularly the North Sea, soon became apparent. Com-
plaints of malicious interference with one another increased in
number. The Belgians and French were accused of cutting
and stealing the lines of Scottish fishermen, and the Dutch of
taking their derelict nets, and the Fishery Board for Scotland
accordingly pressed upon the Government, as early as 1876, the
advantage of negotiating a fishery convention with Holland.1
A little later the free use by foreign trawlers of a destructive
implement known as " the devil," or " the Belgian devil,"
aroused a strong feeling among British drift-net fishermen.
The instrument consisted of a shank and sharpened flukes,
which was hung overboard and was designed for the sole
purpose of cutting fishing-nets in the sea which might impede
the movement of the boat making use of it. It was a product
of the disputes and difficulties that occurred in carrying on
trawling and drift-net fishing in the same localities at the
same time. The British Government in January 1880 ap-
pointed Mr W. H. Higgin, Q.C., to make an inquiry on the
subject. His report2 showed that the state of things with
regard to fishing operations in the North Sea by British,
Belgian, French, and Dutch boats was unsatisfactory. He
found that grievous injury and damage had been done to the
drift-nets and tackle of English fishermen in the North Sea
by trawlers belonging to France, Belgium, and Holland ; 3 that
there was no international law or convention between England
and France, England and Belgium, or England and Holland,
affecting the fisheries in the North Sea, — the convention with
France in 1867 never having been ratified, while that of 1839
was, he said, confined to the English Channel and referred only
to French fishermen ; and he stated that some international law
of the kind was urgently required, as it would be impossible
otherwise to put a stop to the outrages described. In conse-

1 Report by the Commissioners for the Herring Fishery, Scotland, 1869, p. 4 ;
Report by the Commissioners of the Fishery Board, Scotland, 1876, p. 7.

2 Report of W. H. Higgin, Esq., Q.C., on the Outrages committed by Foreign
upon English Fishermen in the North Sea. Parl. Papers (C.— 2878), 1881.

3 After all, however, the damage from the monetary point of view was not
very great, amounting, according to the detailed information collected by Mr Higgin,
to £4372, 3s. over the years 1870-1880, or at the rate of about £400 per annum.

632 THE SOVEREIGNTY OF THE SEA

quence of this report the Government invited the co-operation
of France, Belgium, Holland, Sweden and Norway, and Den-
mark in devising a remedy, suggesting that separate agree-
ments might be made for the purpose. At the instance of
Holland, it was agreed to have one joint convention, and a
conference of the North Sea Powers was convened at The
Hague, in 1881, to negotiate it, Germany, at her own request,
being included.1

In the proceedings at the conference the question that caused
the greatest difficulty and discussion was the definition of the
territorial waters or exclusive fishery limits. The British
Government, in curious contrast to their action earlier in the
century, desired to avoid any definition at all. The memor-
andum prepared by them as the basis of the deliberations,
stipulated that the convention should " apply to the high seas
generally outside the fishery limits of the countries joining in
the convention." This somewhat vague, not to say illogical,
phraseology did not meet with the approval of the other
Governments. It was objected to by France in particular.
That Power had accepted the invitation to the conference on
condition that the regulation to be agreed upon should be
restricted to police rules intended to prevent conflicts between
fishermen of different nationalities, " and to secure to them the
free practice of their calling in the common waters of the North
Sea." In making a special convention dealing with the open sea
which was common to all, it seemed to it impossible to do other-
wise than begin by defining the limits within which it was
intended to operate.2 The French delegates at the conference
therefore proposed that the extent of the territorial waters
should, for fishery purposes, be defined in precise terms, and
they endeavoured further to get the limit made as contracted
as possible. They urged that the boundary should be fixed
everywhere at three geographical miles from low- water mark,
whatever might be the configuration of the coast. As to fixing
a larger measurement for bays, as in the Anglo-French con-

1 Correspondence respecting the Conference at The Hague and the Convention
of the 6th May 1882, relative to the Police of the Fisheries in the North Sea.
Parl. Papers, Commercial, No. 24, 1882.

2 M. Barthe"lemy St Hilaire to Lord Lyons, 2nd July 1881 ; M. de Freycinet to
M. Challemel-Lacour, 2nd March 1882.

THE FISHERY CONVENTIONS 633

vention of 1867, they argued that the rules laid down on this
subject in the convention in question ought not to apply to the
North Sea; in many instances these rules had reference only
to the interests of oyster fisheries, which, they said, did not
exist in the North Sea. The French contention regarding bays
was thus similar to that of the United States in the negotia-
tions concerning the treaty of 1818 ; and it was of course to the
interest of France, whose own coast would be but little affected,
and whose fisheries along the British coast in the North Sea
were of great importance, to have the exclusive fishery limit
made as narrow as possible.

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

As the British and French delegates could not agree on
this subject, further discussion was postponed until the former
had consulted their Government. When this was done, they

634 THE SOVEREIGNTY OP THE SEA

announced that their instructions did not permit them to
adopt the French proposals ; and they continued to press
the draft article for acceptance, declaring that the question
of defining the limits of the maritime jurisdiction of the
various countries did not fall within the province of the
convention. The other delegates, however, did not share this
view, and when a complete definition was insisted on, the
British representatives ultimately agreed to accept the terms
employed in the first article of the Anglo - French convention
of 1867, and they submitted the following article : " The
fishermen of each country shall enjoy the exclusive right of
fishery within the distance of three miles from low -water
mark along the whole extent of the coasts of their respective
countries. As regards bays, the entrances of which do not
exceed ten miles in width, the distance of three miles shall
be measured from a straight line drawn from headland to
headland." The counter-proposal on the part of France did
not materially differ from this, except by the inclusion of
islands, by the better definition regarding bays, and by the
insertion of a clause providing for the right of free navigation
and anchorage in territorial waters.1 The German delegate,
anxious about the waters at the mouths of German rivers,
urged that flats or banks uncovered at low water should
also be included, as well as islands. This proposal had been
agreed to by the British Government in 1868, after correspond-
ence between the Foreign Office and the German Embassy
in London, and though apparently not now desired by Great
Britain, it was formally adopted.'2

The article as finally agreed upon was as follows: "The

" The fishermen of each country shall enjoy the exclusive right of fishery
within the distance of three miles from low-water mark along the whole extent of
the coasts of their respective countries and of the dependent islands. As regards
bays, the entrances of which do not exceed ten miles in width, the distance of three
miles shall be measured from a straight line joining the two extreme points of the
bay. The present article shall not in any way prejudice the right of free navigation
and anchorage in territorial waters accorded to vessels of all sizes, provided they
conform to the special police regulations enacted by the Powers to whom the shore
belongs."

2 Messrs Kennedy and Trevor to Mr Farrer, Oct. 31, 1881. In the Anglo-
French convention of 1867 the British negotiators unsuccessfully pressed for the
insertion of the words, "the islands . . . and their dependencies." M. de Frey-
cinet to M. Challemel-Lacour, 2nd March 1882.

THE FISHERY CONVENTIONS

635

fishermen of each country shall enjoy the exclusive right of
fishery within the distance of three miles from low-water
mark along the whole extent of the coasts of their respective
countries, as well as of the dependent islands and banks. As
regards bays, the distance of three miles shall be measured
from a straight line drawn across the bay, in the part nearest
the entrance, at the first point where the width does not
exceed ten miles. The present Article shall not in any way

Fig. 19. — Showing the Sandbanks at the month of the Ems.

prejudice the freedom of navigation and anchorage in terri-
torial waters accorded to fishing-boats, provided they conform
to the special police regulations enacted by the Powers to
whom the shore belongs."

It is interesting to note that, at the instance of the Dutch
president, the conference agreed that the provisions of the
convention would not be applicable to the Zuiderzee ; and
that in deliberating on the boundaries of the North Sea
within which they would apply, it was agreed to exclude

636

the Skagerrack, the fisheries of which, it was stated by the
president, were not international, but were " essentially within
the jurisdiction of the States to which the shores belong."
The greater part of the Zuiderzee, however, would have been
excluded by the definition of bays in the convention, and the
rest of it by the inclusion of " banks " ; but the Skagerrack, on
the other hand, is nowhere less than sixty geographical miles
from shore to shore. Neither Norway nor Denmark has
asserted since the convention exclusive jurisdiction in its
moiety of these waters, where, in point of fact, both English
and German vessels now carry on an extensive fishing.1

Some other points of interest were raised during the delibera-
tions of this important conference. It was asked by the presi-
dent : What would be the fate of the convention during war,
in which one or two of the Governments joining in it should
be belligerents ? Would the fishery cruisers of the Powers
concerned merely retire from the North Sea and leave fisher-
men of their nationality without protection or help ? He
recommended that the conference should adopt the principle
that fishing - boats, bond fide engaged in fishing, should be
declared neutral. This was to revive a subject that had
earlier, especially during the time of Napoleon I., caused much
discussion, and which was remote from the object of the
convention ; and the proposal, though sympathetically received
by the French delegates, was not supported by any of the
Governments. A proposal of another kind was made by
the German delegate. He thought it was necessary that
restrictive measures should be enforced to prevent the destruc-
tion of the fry of fish and the taking of small fish; for
example, by forbidding trawling within a certain distance
of the shore, so as to provide a shelter for the free develop-
ment of fish, and by regulating the construction of trawl-
nets. The British and French delegates were opposed to
any system of restriction, relying on the results of the
inquiry which had been then recently made by Messi
Buckland and Walpole,2 and on the part of France the

1 Vide Fiskeri-Beretning for Finansaaret, 1907-1908, p. 178. Kjobenhavn, 190S

2 Report on the Sea Fisheries of England and Wales, 1 879. The British delegate
laid stress on one of the conclusions reached by Mr Buckland, to the effect that
" nothing that man has done, and nothing that man can do, can affect the supply

THE FISHERY CONVENTIONS 637

following draft clause was formulated for insertion in the
convention : " In the extra-territorial part of the North Sea,
fishery shall be free at all seasons, and with all kinds of
implements, without any sort of distinction." The clause was
not adopted, and it was generally agreed that the question
was not ripe for decision by that conference, which was more-
over concerned with the police of the fisheries, and not with
the reproduction of fish, in the North Sea.

The North Sea Convention was concluded in 1882, the
signatory Powers being Great Britain, Germany, France,
Belgium, Denmark, and the Netherlands.1 Although the
delegates of the United Kingdom of Sweden and Norway
signed the protocol and were present at the final deliberations,
those Powers did not join in the convention, objections being
raised as to the definition of the territorial waters and on some
'other points.2 An additional article was inserted providing
that the King of Sweden and Norway might adhere later, for
both or either country ; but this has not been done, though the
coast of Norway forms a not inconsiderable part of the bound-
ary of the North Sea as defined in the convention. The reasons
which induced these countries to abstain from joining in a
friendly agreement with the neighbouring Powers of western
Europe, after having accepted the invitation to the conference
and taken part in its deliberations, must have appeared to them
strong ; and from the delay that occurred in coming to a de-
cision it is evident that the matter received full consideration.
They believed, however, that to agree to so restricted a bound-
ary for their territorial waters in respect to fishery would be
disadvantageous to them : it is probable, moreover, that the
raising of the question was not foreseen, since the object of the
conference was to consider the police of the fisheries in extra-
territorial waters in the North Sea. It is curious, indeed, that

of herrings in the seas. " Even if this were proved for the herring in the absolute
form in which it is expressed, — and it is clearly illogical and unwarrantable to
pledge the future in this loose way, — it obviously might not, and in point of fact
does not, apply to the great bulk of the fishes that would have been affected by the
German suggestion.

1 International Convention for the Purpose of Regulating the Police of the Fisheries
in the North Sea outside Territorial Waters. Signed at The Hague, 6th May 1882.

2 Sir H. Rumbold to Earl Granville, 16th March 1882 ; H.M. Plenipotentiaries
to the same, 8th May 1882.

638 THE SOVEREIGNTY OF THE SEA

the limits for exclusive fishery, both in the convention with
France in 1839 and with the other North Sea Powers in 1882,
were fixed as it were incidentally.

The duration of the convention was to be for five years from
the date at which it came into operation, unless one year's
notice to terminate it were given by any of the contracting
Powers; and it was to continue in force from year to year
subject to similar notice. That none of the signatory Powers
have withdrawn from the convention is the best proof of its
general utility. From the number and influential position of
these states, and from the character of the sea to which it
applies, — one of the most productive in the world, — this conven-
tion is an international document of high importance to the sea
fisheries, and deserves careful consideration. The first article
declares that the provisions shall apply to the subjects of the
high -contracting parties, the object being "to regulate the
police of the fisheries in the North Sea outside territorial
waters " ; and the limits of the North Sea were carefully defined.1
The provisions of the convention relate to the registration,
lettering, and numbering of boats, the operations of fishermen
pursuing different methods of fishing at the same place at the
same time, the malicious use of instruments for cutting nets,
the salvage of derelict fishing-gear, and the superintendence by
cruisers. It was put in force in this country in 1883 by an Act
of Parliament,2 which also extended its application, so far as
British sea-fishing boats were concerned, to the whole of the
seas around the British Islands, whether within or without the

1 The boundaries specified are, on the north, the parallel of the 61st degree of
latitude ; on the east and south, the coast of Norway between the above parallel and
LindesniBs Lighthouse, a straight line thence across the Skagerrack to Hantsholm
Lighthouse in Denmark, the coasts of Denmark, Germany, the Netherlands,
Belgium, and France, as far as Cape Gris Nez Lighthouse ; on the west, a straight
line from Gris Nez Lighthouse to the easternmost lighthouse at the North Foreland
in Kent, the eastern coasts of England and Scotland, a line from Duncansby Head
in Caithness to the southern point of South Ronaldsha in the Orkneys, the eastern
coasts of the Orkney Islands, a straight line from North Ronaldsha Lighthouse to
Sumburgh Head Lighthouse in the Shetland Islands, the eastern coasts of these
islands, and the meridian of the North Unst Lighthouse as far as the parallel of
the 61st degree of latitude. The Dutch proposed the 60th degree of latitude as
the northern limit, and the British the 62nd degree.

2 46 & 47 Viet., c. 22. An Act to carry into effect an International Convention
concerning the Fisheries in the North Sea, and to amend the laws relating to British
Sea Fisheries.

THE FISHERY CONVENTIONS 639

exclusive fishery limits. In this Act the stipulation in the
second article of the convention, as to the freedom of navigation
and anchorage in territorial waters on the part of foreign fishing-
boats, received a limiting definition. The clause in question was
inserted in the convention at the instance of France, and was
accepted with some reluctance by the British delegates, who
agreed to it in general terms only, without the recognition of a
right.1 By the Act foreign fishing-boats were prohibited from
entering the exclusive fishery limits of the British Islands
except for purposes recognised by international law, or by any
treaty or arrangement in force between this country and any
foreign state, or for any lawful purpose. If a foreign boat did
enter, it was to return outside the limits as soon as the purpose
for which it entered had been answered, and fishing or at-
tempting to fish within the limits was, of course, forbidden
under penalties.

The definition of the exclusive fishery limits in the North
Sea Convention differed in two respects from that contained in
the previous conventions with France. The rule for the
measurement of bays was modified, and the dependent islands
and banks were expressly included as part of the coast from
which the limit should be measured. In the Anglo-French
conventions of 1839 and 1867 bays which did not exceed ten
miles in width at the mouths were comprised in the reserved
waters, and the three-mile limit was measured from the line
joining the " headlands." Thus some bays whose width at the
mouth, or between their headlands, exceeded ten miles were
deprived of the benefit of the principle applied to bays and
came under the three-mile rule, even although at a small dis-
tance within the entrance the width might not exceed ten miles.
Since all bays have not headlands, the French proposal at The
Hague conference to substitute " the two extreme points of the
bay " for that term was an improvement. Still better was the
definition finally adopted, to place the base-line at the first
point nearest the entrance where the width did not exceed ten
miles. The specific inclusion of islands removed such difficul-
ties as were raised in 1853 by a French commodore at the
Fame Islands (see p. 618), though it had long been estab-
lished in connection with the rights of neutrals that islands

1 Messrs Kennedy and Trevor to Mr Farrer, 31st Oct. 1881. Doc. cit.

640 THE SOVEREIGNTY OF THE SEA

carried with them, no less than the mainland, the belt of ter-
ritorial sea. The inclusion of banks was, however, novel, and
was not received with favour by the British Government. It
was feared that it would lead to difficulties and complications
in future if such banks as the Goodwin Sands, which were
situated beyond the three-mile limit, and the similar banks on
the German and Dutch coasts, were held to be territorial
dependencies of the coast ; and so strong was the objection of
the British Government to their inclusion, that they instructed
their ambassadors abroad, if an objection was raised by any
Power, to have this definition reconsidered.1 The objection is
theoretically well founded. Sand-banks of this character may
be not permanent, and usually vary in extent, configuration, and
position with lapse of time and even after a single tempest;
and the extent of sea appendent will vary likewise. It would
thus be difficult to fix a precise and permanent limit in con-
nection with them. Moreover, since the banks may be covered
by the sea except at low-water without losing their territorial
value, it would sometimes require more than ordinary care on
the part of foreign fishing-boats to avoid infringing the limit
around them. On the other hand, for the purpose of regula-
tions designed to protect fish life, such as are referred to in the
sequel, banks of this nature are of especial value ; and, in point
of fact, few difficulties in practice appear to have arisen on this
score in carrying out the convention.2

1 Dispatch to Hon. E. Ashley, 17th Nov. 1881 ; Earl Granville to Her Majesty's
Representatives at Paris, Brussels, The Hague, Berlin, Copenhagen, and Stockholm,
6th December 1881.

2 A case occurred in 1908 in which the master of an English trawler, the Taurus,
was convicted in a German court for trawling within the three-mile limit on the
German coast, and the case was appealed on the ground that the place was outside
the territorial waters, and was so shown on the English fishery charts. It was
found, however, that the three-mile line on these charts did not take into account
the dependent banks, whereas the German charts did take them into account, the
limit running in some cases six or seven miles from the coast. It may be men-
tioned that as considerable parts of the Goodwin Sands are visible at low-water of
neap tides, such parts are entitled to a three-mile limit in the same way as the
dependent banks on the German coast. Recently, also, it has been found that
the three-mile limit in the neighbourhood of the Scaw fluctuates considerably
owing to the shifting of the shoals, and the Danish authorities, early in 1907,
intimated that any case of alleged infraction of the limit by foreign fishing
vessels would be judged of by the actual position of the line at the time, and
not by what may be shown on any chart in use. The point in regard to banks was

THE FISHERY CONVENTIONS 641

On one or two points, however, the definitions in the con-
vention might have been improved. Nothing is said as to the
tides at -which low- water mark is to be taken for measurements,
though on certain coasts the extent of territorial water will
vary much according to whether it is a neap or a high spring
tide ; and the question whether certain banks are or are
not territorial and entitled to the limit may vary in the
same way. It is to be presumed that the tide is an ordinary
neap tide, as in English law. More important is the fact
that "rocks" are not included along with islands. Quite
recently the omission has given rise to difficulties in re-
gard to three places on our coast — viz., the Eddystone, the
Bell Rock, and the Seven Stones Rocks, off the Scilly Islands.

raised a century ago in connection with neutral rights in a case in which a British
privateer captured a French corvette, the Africaine, on the coast of the United
• States, six miles from shore. It was argued that the capture was unlawful, because
the place was within the neutral waters of the United States, the extent of which
had been denned by Congress in 1794 as one marine league from the coast (see
p. 574). It was contended that "coasts" included all the shoals or banks which,
in Florida, extended to a distance of twenty miles from the land, and were there-
fore within territorial jurisdiction, and that the distance of protection should be
reckoned from the outermost shoal. The American judge overruled the argument,
because, although in a maritime sense this interpretation of "coasts" might be
correct, it was too vague for juridical purposes, since the shoals vary, and there
would be no fixed rule by which the boundary could be ascertained ; and that the
district courts would have to apply different rules at different plaoes, instead of the
one marine league everywhere. A somewhat similar question was argued in 1805
in the English Admiralty Court in the case of an American ship, the Anna,
captured by a British privateer off the mouth of the Mississippi, at a point
claimed to be within the neutral waters of the United States — viz., 1^ mile
from an island, and "within view" of a fort, which was, however, five miles dis-
tant. A question raised was whether certain small mud-islands, formed of earth
and drifted logs, and covered with reeds, where people occasionally went to shoot
wild -fowl, was United States territory from which the marine league could be
measured. It was argued that the islands had not sufficient consistency to support
the purposes of life, and were sometimes scarcely distinguishable, and that since
the distance of neutral protection ' ' is reckoned according to the efficacy of pro-
tection, that is, within the range of firearms," the land from which the extension
is measured should be a place from which this protection could be in reality afforded.
Lord Stowell, in deciding that they were United States territory, stated that the
right of dominion did not depend upon the texture of the soil ; and he quoted
Bynkershoek's formula as the rule of law, saying that the distance " has usually
been recognised to be about three miles from the shore." It may be said here that
in the earlier writings and decisions about the limit of territorial waters, low-water
mark is not specified, and in the case of the Twee Gebroeders (see p. 577) it is clear
that sand-banks uncovered at low-water were not regarded as entitled to an in-
dependent zone, the distance being measured from terra firma.

2s

642

THE SOVEREIGNTY OF THE SEA

The Seven Stones Rocks are a reef near the south-west
extremity of Cornwall, about seven miles from Land's End,
and about a mile in length, and with a lightship at it; but
it does not appear that any portion is above the sea -level
at low-water of neap tides. Complaints were made to the
Government by the Cornwall Sea Fisheries Committee that
French fishing -boats fished within three miles from the
rocks, and close to them ; but it was stated by the Admiralty,
and also by the Foreign Office, that these rocks could not be
claimed as being within British territorial waters.1 In this case,
presumably, the decision might rest on the fact that the rocks
do not appear at low- water of ordinary tides. The Eddystone
is somewhat different. The rock or reef on which the light-
house is placed lies about fourteen miles south-west of Ply-
mouth, and while covered by the sea at high tide, is exposed
to the extent of an area of about 500 yards at low-water of
neaps. French fishermen also fish around it and close to
it, a practice which caused the Devon Sea Fisheries Committee
to complain. The gunboat Circe, in August 1905, seized and
took into Plymouth two French " crabbers " for fishing within
three miles from the Eddystone, but after communicating with
the Board of Trade, instructions were sent to release the
boats; and the Board of Agriculture and Fisheries, while
saying that they were not in a position to express an authori-
tative opinion on the matter, called attention to the decision
in 1902 regarding the somewhat similar case at the Seven
Stones. Here, no doubt, the decision rested on the absence
of the specific inclusion of "rocks," as distinguished from
islands, in the conventions, and one can understand the ex-
pression of surprise by the Devon Sea Fisheries Committee
that a rock which was recognised as British, and was inhabited
by lighthouse-keepers, was not considered as within the terri-
torial limit for fishing purposes.

Similar complaints have been made concerning the Bell
Rock, which lies about ten miles east-south-east of Arbroath,
Forfarshire, and has a lighthouse upon it. It is entirely
covered at high-water; at the ebb of spring tides it is un-
covered to a depth of four feet, while at low-water of neap
tides the top of the rock is just visible, and would thei
1 Fish Trades Gazette, May 31st, 1902, p. 8 ; ibid., April 4th, 1903, p. 21.

THE FISHERY CONVENTIONS 643

probably acquire validity for the measurement of three miles
from it and around it, if rocks had been included in the
conventions, as they are now included in the recent conven-
tion between this country and Denmark concerning Iceland
and the Faroes (p. 647). The case of the Seven Stones and
the Eddystone is, however, on a different footing; for while
the limit of exclusive fishery along the coasts of the North
Sea, with the exception of the part formed by Norway, was
settled by the convention of 1882 (so far as concerns the
fishermen of the signatory Powers), there appears to be some
obscurity as to how far the three-mile limit operates on the
coasts that lie outwith the boundaries of the North Sea, —
such, for example, as the west coasts of England and Scotland
and the coasts of Ireland. The second article of the con-
vention declares, without qualification, that the three-mile
'limit shall apply "along the whole extent of the coasts" of
the respective countries, — it does not say merely to the North
Sea coasts, — and the view that this stipulation operates on
all the coasts appears to be widely prevalent, and is expressed,
for example, in the Belgian law which put the convention
in force in that country.1 It is, however, held by legal
authorities that since the special object of the convention
was " for the purpose of regulating the police of the fisheries
in the North Sea outside territorial waters," and as the
boundaries of the North Sea are defined "for the purpose
of applying the provisions of the present Convention," the
definition of the exclusive fishery limits applies only within
the area specified, and not to the other coasts of the signatory
Powers.2 In the Convention Act, as in the Territorial Waters

1 " Les articles 2 et 3 de ce contrat stipulent que les pecheurs nationaux jouiront
du droit exclusif de peche dans le rayon de trois milles ge"ographiques de 60 au
degre de latitude, a partir de la laisse de basse mer, le long de toute 1'etendue des
cotes de leurs pays respectifs, ainsi que des iles et des banes qui en dependent."
Loi relative d la peche maritime dans les eaux territoriales. Expose" des motifs.
Sess. 1890-91.

2 The Marquis of Lothian, Secretary for Scotland, in introducing the Bill which
became the Herring Fishery (Scotland) Act, 1889, said : " With regard to the east
coast there is no very great difficulty in fixing the limits of territorial waters,
because between Her Majesty's Government and what I may call the riparian
powers of the North Sea there is a Fisheries Convention ; but on the west coast
there is no such convention, and therefore it has been thought desirable to attach
a schedule to this Bill in order to show exactly what are the waters closed against

644

THE SOVEREIGNTY OF THE SEA

Jurisdiction Act, we accordingly find a distinction drawn
between the exclusive fishery limits under international law
and those under specific treaties or conventions. In the de-
finition clause, the expression " British Islands " is explained
to mean the United Kingdom of Great Britain and Ireland,
the Isle of Man, the Channel Islands, and their dependencies,
and it is declared that " the expression ' exclusive fishery
limits of the British Islands ' means that portion of the seas
surrounding the British Islands within which Her Majesty's
subjects have, by international law, the exclusive right of
fishing, and where such portion is defined by the terms of
any convention, treaty, or arrangement for the time being
in force between Her Majesty and any Foreign State, in-
cludes, as regards the sea-fishing boats and officers and subjects
of that State, the portion so defined." l

From all this it would appear that, notwithstanding the
ambiguity introduced by the unqualified phrase "the whole
extent of the coasts of their respective countries," the definition
of the exclusive fishery limits in the convention of 1882 applies
only to the coasts of the North Sea. In the convention of 1839
with France, on the other hand, there seems no reason to doubt
that the three-mile limit was applied to all parts of the coasts
of Great Britain and France respectively. By Article ix. it
was declared that the exclusive right of fishing was reserved
for subjects within that distance "along the whole extent of
the coasts " of each country ; and the British Act of Parliament
to carry into effect this convention, and the international
regulations agreed upon under it, so far from expressing any
qualification or reservation as in the Act of 1883, made it clear
that the limit applied generally. In the preamble it is stated
that " Whereas a Convention was concluded between Her
Majesty and the King of the French . . . defining *the limits
of the oyster fishery between the island of Jersey and the
neighbouring coast of France, and also defining the limits of
the exclusive right of fishery on all other parts of the coasts
of the British Islands and France " ; and Article 85 of the
regulations enacted that the fishing-boats of the one country,

trawlers apart altogether from the general international rule as to the three-mile
limit." June 28th, 1889. Hansard, vol. 337, p. 975.
1 46 & 47 Viet., c. 22, s. 28.

THE FISHERY CONVENTIONS 645

except under certain circumstances, " shall not approach nearer
to any part of the coasts of the other country than the limit
of three miles specified in Article ix. of the convention." l

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

In the convention of 1867 the same limit was assigned
"" along the whole extent of the coasts " of the two countries ;
and the provisions of the convention were expressly stated to
apply beyond the exclusive fishery limits, in the one case " to
the seas surrounding and adjoining Great Britain and Ireland,"
and in the case of France to the seas adjoining the coast of
that country between the frontiers of Belgium and Spain ; and
the object of the convention was "relative to fisheries in the
seas between Great Britain and France." As already stated,
this treaty, with an unimportant exception, did not come into
effect, and the convention of 1839 remained in force.2

As no other treaties exist defining the exclusive fishery
limits along our coasts than those referred to, the position in

1 6 & 7 Viet., c. 79 (1843). The international regulations agreed upon in virtue
of the eleventh article of the convention were to apply to ' ' the seas lying between
the coasts of Great Britain and of France " ; and differences of interpretation arose
in this country as to the extent of the seas coming under this denomination —
e.g., whether those on the west coast of Scotland were included. The power given
to the crown to suspend the operation of the Act on the Irish coasts, and the ob-
vious intention of the Act and articles, seemed to the Royal Commissioners of 1863
to warrant the opinion that these extra-territorial regulations applied to all the
seas around the British Isles (Report, Royal Commission on Sea Fisheries, i.
p. Ixiii). On the other hand, it was contended that the words quoted must be
construed strictly, and included only those seas which were situated geographi-
cally between the two countries. This difference of opinion as to the interpreta-
tion of the phrase in question does not, however, affect the validity of Article ix.
of the convention, one of the principal objects of which was to determine the
limits of exclusive fishery.

2 Vide 46 & 47 Viet., c. 22, s. 24.

646 THE SOVEREIGNTY OF THE SEA

relation to conventional law appears to be as follows. With
respect to France and Belgium, the three-mile limit, with the
ten-mile line for bays, seems to be in force along the whole
extent of the British and Irish coasts. With respect to the
other Powers which were parties to the North Sea Convention
of 1882, — namely, Germany, Denmark, and the Netherlands, —
this limit is in force only on the eastern, or North Sea, coasts
of England and Scotland. On the north and west coasts of
Scotland, the south and west coasts of England, and the whole
of the coast of Ireland, the limits of exclusive fishery as regards
these countries, and as regards all countries except France and
Belgium, fall to be determined by the principles of interna-
tional law. With respect to all other nations, as, for example,
the Norwegians, Swedes, and Spaniards, the limits on all parts
of our coasts also fall to be determined under international
law. The principles of international law, as expounded by the
accredited writers, do not, as will be shown later, and as is
implied in the quotations from the Acts above cited, support
the view that the right of exclusive fishing, apart from treaty,
must necessarily be restricted to the three-mile limit. The
preponderance of opinion is that the boundary of the territorial
sea, including, therefore, the exclusive right of fishery, coincides
with the range of guns from the shore ; and it is evident that
as against such nations as claim for themselves a greater ex-
tent than three miles on their own coasts — viz., Norway,
Sweden, and Spain — a larger limit than that contained in
the conventions could be rightfully enforced on the British
coasts.

There are many things to show that the unsatisfactory state
of affairs, not to say confusion, with respect to the limits of
exclusive fishing to which we are entitled on various parts of
our coast, has been brought about partly by a widespread belief
that the boundary under international law is three miles,
partly also by what must be characterised as a want of
knowledge and care on the part of those dealing with the
question. Mr T. H. Farrer, the permanent Secretary of the
Board of Trade, told a Committee of the House of Commons
in 1876 that the convention and regulations with France were
" hastily and recklessly " made,1 and the record of the proceed-

1 Report from the Select Committee on Oyster Fisheries, p. 1. 1876.

THE FISHERY CONVENTIONS 647

ings at the conference at The Hague in 1881 shows that it
would not have been a difficult matter to clear up some of the
obscurity that exists. One point of importance is that, not-
withstanding the absence of any treaty or agreement defining
the extent of the limits of exclusive fishery with certain nations,
the three-mile limit alone has been enforced against the vessels
of such nations fishing on our coasts. This has been the case,
except for a brief period, with respect to Norwegian and
Swedish trawlers in the Moray Firth in Scotland, which is
"closed" to British trawlers, and the vessels of these two
nations are thus put on the same footing as those of other
countries with which a convention has been made. It is also
the case on the west coast of Scotland, where the limit of three
miles is enforced against foreign trawlers, apparently irre-
spective of nationality, and certainly against Dutch and
German vessels as well as against Belgians in the Clyde, from
which British trawlers are excluded.1 How far this undoubted
usage may modify the position under international law it
would be of importance to determine.

A more recent convention must be referred to, which, how-
ever, does not relate to the coasts of this country, but to those
of the Danish islands, the Faroes, and Iceland, where British
trawling vessels carry on extensive operations. The Icelanders,
who depend so much upon their fisheries, were desirous of
having a considerable extent of the waters around their coasts
reserved to themselves, and wished to have a limit of seven
miles to protect the grounds from the action of foreign fishing-
boats.2 As a result of negotiations, however, with Great
Britain, Denmark agreed to the usual limit of three miles.
The treaty was signed at London on 24th June 1901, and after

1 19th, 22nd, and 23rd Reports Fishery Board for Scotland, Part I. Correspond-
ing particulars are not given in the English or Irish fishery reports.

2 The preceding laws, however, left the territorial limits indefinite, under the
law of nations, or subject to any special international agreement, as that of 12th
February 1872, concerning foreign fishermen at Iceland. ("1. Drive fretnmede
Nationers Fiskere nogetsomhelst Fiskeri under Islands Kyster indenfor S<(>terri-
toriets Grsense, saaledes som denne er bestemt ved den almindelige Folkeret, eller
ved sserlige Internationale Overenskomster for Islands Vedkommende maatte blive
fastsat, straffes de med Bibder fra 10 til 200 Rd." C. F. Drechsel, Samling of
Islandske Love, Forordninger, m.m. galdende for Fiskeriet paa Siterritoriet ved
Island, 1892.) Later laws, both for the Faroes and Iceland, merely referred to
the "territorial sea."

648

THE SOVEREIGNTY OF THE SEA

ratification was brought into force on 31st March 1903 by an
Order in Council of the 12th of that month. Its main object,
apparently, was to regulate the fisheries of the subjects of the
two countries outside territorial waters in a large part of the
ocean surrounding the Faroe Isles and Iceland, in a small part
of which extensive fisheries are now carried on by foreigners,
especially by English and German trawlers ; but its immediate

THE FISHERY CONVENTIONS 649

effect was to impose the three-mile limit on the coasts in ques-
tion. The article defining the territorial waters is the same as
in the North Sea Convention, except that islets and rocks are
included, which thus gets rid of some possible difficulties in
interpretation, such as have arisen in connection with the
Eddystone and Bell Rock.1

1 Convention between His Majesty the King of the United Kingdom of Great
Britain and Ireland and His Majesty the King of Denmark for regulating the
Fisheries of their respective Subjects outside Territorial Waters in the Ocean sur-
rounding the Faroe Islands and Iceland. Art. ii. "The subjects of His Majesty
the King of Denmark shall enjoy the exclusive right of fishery within the distance
of three miles from low-water mark, along the whole extent of the coasts of the
said islands, as well as of the dependent islets, rocks, and banks.

"As regards bays, the distance of three miles shall be measured from a straight
line drawn across the bay, in the part nearest the entrance, at the first point where
the width does not exceed ten miles." The geographical limits for the application
.of the convention, which embodies practically the same regulations as in the North
Sea Convention, are as follows : on the south, by a line commencing from where
the meridian of North Unst Lighthouse (Shetland Islands) meets the parallel of
61st degree of north latitude to a point where the 9th meridian of west longitude
meets the parallel of 60° north latitude, and from thence westward along that
parallel to the meridian of 27° west longitude ; on the west, by the meridian of
27° west longitude ; on the north, by the parallel of 67° 30' of north latitude ; on
the east, by the meridian of the North Unst Lighthouse (which is about 50' west
longitude). The area is thus very large, much larger than the North Sea. The
convention continues in force until the expiration of two years from notice by
either party for its termination, and a clause is inserted providing for the adhesion
of any other Government whose subjects fish in the ocean surrounding the Faroe
Islands and Iceland.

650

CHAPTER IV.

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

WE may now pass to the consideration of the modern practice
of states with respect to the extent of territorial sea which is
claimed or allowed by them, and of the opinions of the later
writers on the law of nations as to the extent that may be
rightfully conceded or appropriated. It will be found that
there is apparently a very considerable discrepancy between
the one and the other. For while the opinions of publicists
have on the whole become more decided and definite as to
.Bynkershoek's principle being the true principle for the
delimitation of territorial waters, and the inadequacy of the
three-mile limit has been formally declared, the general usage
of states is indicated by the common adoption of the latter
limit for several purposes. As elsewhere stated, this general
use of the one marine league is in large measure owing to the
example, or the pressure, of Great Britain and the United
States of America, and perhaps chiefly, if indirectly, to the
influence of the latter. Although the United States more than
any other Power has varied her principles and claims as to the
extent of territorial waters, according to her policy at the time
— now claiming the vague and wandering " boundary " of the
Gulf Stream or the whole of Behring Sea, and now the liberty
to fish right up to the shores of the Falkland Islands, — she has
been consistent in this, that she has steadily and constantly
pressed for the narrowest limit she could get in favour of her
own fishermen on the coasts of the British North American
Colonies. The unhappy heritage of the British Foreign Office
that came from the abnegation of territorial dominion over

MODERN PRACTICE 651

large parts of the waters in question by Great Britain in
former times, has been as fruitful of trouble as Lear's renuncia-
tion of his sovereignty. The numerous negotiations as to the
rights of fishing on the coasts of British North America have
always resulted in concessions to the United States, and appear
to have been conducted, as they were almost bound to be, rather
in the light of the general political relationship of the two
Powers than on the intrinsic merits of the particular question
at issue ; and thus in Canada and Newfoundland British
diplomacy on this subject has often been criticised. Obvi-
ously, when British policy takes this course in regard to
North America, one must expect for the sake of consistency,
if on no other ground, that it will tend to take the same
course elsewhere. An example of this was quite recently
shown, when a concession of the kind referred to, as to the
rule for bays, which was granted during a modus vivendi
as a temporary act of grace, was spoken of as if it were
now definitely incorporated in British international policy
(see p. 730).

The discrepancy alluded to between the authorities on the
law of nations and the common usage is perhaps more apparent
than real. The international treaties and municipal laws in
which a limit is fixed refer to a few subjects, and in par-
ticular to fisheries, and they relate to times of peace. The
most vital attributes of the territorial sea relate to the
security, the obligations, and the rights of neutral states in
time of war; and there has happily been no great maritime
war in Europe for a long time to put the principles to the
test. But when such a war does come, there is little doubt
that during hostilities the three-mile limit will be set aside by
the neutral states concerned, and another and greater limit fixed
for security, in closer correspondence with the actual range
of guns. It is to be further noted, that notwithstanding the
numerous municipal enactments and the international conven-
tions in which the three-mile limit is fixed for certain pur-
poses, no state seems to have formally and deliberately defined
the absolute extent of the neighbouring sea which it claims
as pertaining to it under all circumstances. Many states — and
Great Britain is one of them — have taken pains to make it
clear that in adopting a three-mile limit for particular pur-

652 THE SOVEREIGNTY OF THE SEA

poses they do not abrogate their right to the farther extent
of sea that may be necessary for other purposes.

Though Germany has not defined the extent of her terri-
torial waters by municipal law,1 she has entered into agree-
ments with various Powers respecting the limits of exclusive
fishery. The first of these was made with Great Britain in
1868, and the rules for the guidance of British fishermen,
issued by the Board of Trade in accordance with it, stated
that, — "The exclusive fishery limits of North Germany are
designated by the North German Government as follows :
that tract of the sea which extends to a distance of three
sea-miles from the extremest limit which the ebb leaves dry
of the German North Sea coast, of the German Islands or
Flats lying before it, as well as those bays and incurvations
of the coast which are ten sea-miles or less in breadth,
reckoned from the extremest points of the land and the
flats, must be considered as under the territorial sovereignty
of the North German Confederation ; " and it is further said
that the exclusive rights of fishery in the above spaces are
reserved to Germans, and English fishermen are not at liberty
to enter these limits except under certain specified circum-
stances, as of wind and weather.2 These limits were again
formally recognised by Great Britain in July 1880, and,
according to Perels, were further confirmed by the North
Sea Convention of 1882. It is obvious that "the extremest
limit which the ebb leaves dry," both for the open coast and
for bays, will differ considerably on such a coast as that
of Germany from the low-water mark of ordinary tides, and
that the space included in the measurement will be corres-
pondingly enlarged. Germany also agreed with Denmark,
in 1880, to the three-mile limit for the adjacent coasts of
the two countries in the Baltic, with a ten-mile base-line
for bays, the mid-line or thalweg applying where the waters
between the respective coasts were less than six miles in
width. More recently, an agreement has been concluded

1 "Das positive deutsche Recht enthiilt keinerlei ausdriickliche Bestimmung
iiber die Grenze der Kustengewiisser landwiirts. . . . Auch fur die Grenze see-
warts hat das deutsche Recht keine ausdriickliche Bestimmung, und adoptiert in
dieser Richtung lediglich die Regeln des Volkerrechts." Harburger, Fifteenth Ann.
Rep. Internat. Law Assoc., 73. 1893.

2 Herstlet, Commercial Treaties, xiv. 1055. Perels, Das Internationale dffentlichs
Seerecht der Gegenwart, 38.

MODERN PRACTICE 653

precisely defining on charts the exclusive fishing waters of
the two countries in the Little Belt.1

Denmark is one of the Scandinavian countries which, as
previously mentioned, claimed a wide extent of territorial
sea. In 1812 the limits, both for Norway and Denmark,
were defined as follows in a royal ordinance : " We will
that it be established as a rule in all cases where it is a
question of determining the maritime boundary of our terri-
tory, that that territory shall be reckoned to the ordinary
distance of one marine league from the outermost islands or
islets which are not overflowed by the sea." 2 The league
in these Scandinavian ordinances, as previously mentioned,
is one-fifteenth of a degree, or four geographical miles, and
therefore one mile more than the ordinary three-mile limit.
But, in point of fact, owing to the method of measurement
"adopted, the space of sea included as territorial is much
greater. Instead of computing the four miles from low-
water mark 011 the shore, which is the base usually taken,
it is measured from an imaginary straight line connecting
the outermost points of the permanently visible isles or
rocks lying farthest from the coast. In some places the
extent of water thus cut off as territorial is very consider-
able. Though the other Scandinavian countries, Norway and
Sweden, have maintained this limit to the present day, it
has been in practice abandoned by Denmark, which has
adopted the three - mile limit in certain agreements with
Germany, in the North Sea Convention of 1882, and in the
recent treaty with Great Britain with respect to Iceland
and the Faroes. In the Skagerrack and Cattegat she con-
cedes the three-mile limit to German and British fishermen,
and no doubt also to the fishermen of the other nations which
were parties to the North Sea Convention ; and it is of

1 Mittheilungen des deutschen Seefischcrei-vereins, Bd. xiii. 61. 1897.

2 " Vi ville have fastsat som Regel i alle de Tilfselde hvor Sp<j>rgsmaal er om
Besteinmelse af Vor Territorial-Hoiheds Grsendse udi S<j>en, at denne skal regnes
indtil den ssedvanlige S<j-Miils Afstand fra den yderste <j>e eller Holme fra Landet,
som ikke overskylles af S<J»en." Rescripter Resolutioner, &c., i. 626, 22 (25), Feb.
1812. A circular of the Royal Danish Chancellory of 18th August 1810 made an
exception for the territorial waters near the fortress of Kronberg, on the Sound,
and of Gliickstadt, on the Elbe, where the distance was to be computed only up to
the range of the guns of the fortress. Auber, Annuaire de VInstitut de Droit
International, xi. 146 (1894).

654

THE SOVEREIGNTY OF THE SEA

Fig. 21. — Showing the two Limits in Danish Waters ; the dotted line shows
the Scandinavian Limit. From ' Dansk-Fiskeritidende.'

interest to note, with reference to the discussion on a former
page as to the extent of coast really comprised in the North
Sea Convention, that it is in virtue of this convention that
the old boundary of four miles has been abandoned there.1
But while Denmark has taken up this attitude with reference

1 Svensk Fiskeri Tidskrift 9e Arg., 78. Stockholm, 1900. "Danmark riiknar
p& grund af konvention samma [with Sweden] fyra mils grans mot oss, men
diiremot pa grund af Nordsjotraktaten blott tre mil gentemot de i denna delta-
gande makterna, t. ex. engelsman och tyskar." Instruks for det ved Fiskerikon-
trollen ansatte Personale, Landbrugsministeriet, den 20 Marts 1908, Fiskcri-
Beretniny for Aaret 1908-9.

MODERN PRACTICE 655

to English and German fishermen, it is claimed on her be-
half by an eminent Danish authority that it is within her
right still to maintain the old geographical league as the
boundary of her territorial sea,1 and this has indeed been
recently done in a fishery convention with Sweden, which
claims the same limit with regard to the fisheries in the
Cattegat, the Sound, the Baltic along the Swedish coast from
Falsterbo to Simbrishamn, and around the islands Bornholrn
and Kristianso.2

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

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

1 Natzen, Den Danske Statsforfatningsret, i. 36. 1888.

2 Fiskerikonventionen mellem Danmark og Sverig, I4de July 1899. Fiskeri-
Beretning for Finansaaret, 1898-1899, Copenhagen, 1900. "Art. I. I de til
Kongerigerne Danrnark og Sverig graensende Farvande skal, med de i Art. II.
naevnte Undtagelser, det Omraade, hvor Fiskeriet udelukkende er forbeholdt hvert

Lands egne Undersaatter, udg^re en Straekning af en geografisk Mil (— Bredde-

grad) fra Kysten eller yderste der udfor liggende Holme og -Skser, som ikke til
Stadighed overskylles af Vandet," &c. The definition in the Swedish is '' en

geografisk mil (— breddgrad) fran kusten eller ytterst diirutanfor liggande holmar

och skar, som icke stiindigt af vattnet ofverskoljas." (Srensk Fiskeri Tidslcrijt, 16e
Arg., Haft 6, p. 189.) Article II. makes the fishery in the Sound, including Kioge
Bay, common to the subjects of each state, except that on either side, within a
depth of seven metres (four fathoms), subjects of the other country shall be allowed
to fish for herrings only, with nets ; and mutual liberty of herring-fishing with
drift-nets is conceded in like fashion at certain other specified places. Certain
amendments were made to this agreement in 1907, the chief one being the pro-
hibition of trawling in the Sound. Piskeri- Beretning for Finansaaret, 1906-1907,
p. 45. Svensk Ftirfattningssamling, No. 79, Ar., 1907.

656 THE SOVEREIGNTY OF THE SEA

shows how complicated the three-mile limit is among the
islands.

The views of Russia with respect to the limits of territorial
waters, as expressed during the negotiations with Great Britain
in the earlier part of last century, have been referred to (p. 581),
and it appears from the Russian Code of Prize Law, 1869
(Art. 21),_that the jurisdictional waters, the extent of which

Fig. 22. — The White Sea, showing the line between Cape Kanin and Cape Sviatoi.

had been fixed in her treaties at the end of the eighteenth
century at the range of guns, are limited to three miles (about
5647 metres) from the shore. The same distance was assigned
for customs purposes; and as no general boundary has been
prescribed for the exclusive right of fishing, it may be pre-
sumed that that right is restricted to the same space.1 It

1 Sixth Supplement to Section 44 of Customs Orders, vol. vi., 1886 ; Ordinance of
Home Department for the Regulation of the Fishery Supervision on the Murman
Coast, 4th May 1887. See footnote, p. 657.

MODERN PRACTICE 657

appears that Russia also claims the White Sea as a mare
clausum, or mer fermde, within a line between Cape Kanin
(Kanin Nos) and Cape Sviatoi (Sviatoi Nos), where it is about
eighty geographical miles in width.1 If this claim is now-
made by Russia, it would probably be difficult for her to make
it good before an international tribunal, did such exist. For
not only is the mouth of the width stated, but the area in-
cluded is nearly 30,000 square geographical miles, only about
twenty per cent of which is within the ordinary three-mile
limit. Until lately the only foreigners who fished in the
neighbourhood of the White Sea were Norwegians, but in each
summer since 1905 both English and German steam-trawlers
have carried on an important fishery in the vicinity of Cape
Kanin, but not within the White Sea itself, where the rocky
nature of the bottom is said to prevent this method of fishing.2
In France, fishing in the sea beyond three miles from low-
water mark was declared by a decree of 10th May 1862 to be
free all the year round, except for oysters ; but certain fisheries
were allowed to be temporarily suspended beyond the three-
mile limit, if it was found necessary for the preservation of
the bed of the sea, or of a fishery composed of migratory
fishes.3 The first Article of the law of 1st March 1888, which
originated in the North Sea Convention, states that " fishing by
foreign vessels is prohibited in the territorial waters of France
and Algeria within a limit which is fixed at three marine miles

1 Norsk Fiskeritidende, 466, 1893 : Revue General de Droit International Public,
1894, p. 440.

2 In July 1910, a British trawler, Onward Ho, while engaged in fishing off the
Kanin Peninsula, at a distance, according to the skipper, of 40 miles from Russian
Lapland, and admittedly much beyond the three-mile limit, was arrested by a
Russian cruiser and taken to Archangel, on the charge of illegal fishing. The
vessel was released after representations had been made by the British Govern-
ment, the Russian authorities finding that it had been arrested outside the
boundary under the protection of the cruiser. The action was doubtless taken
in connection with a new law of 10th December 1909, establishing a limit of 12
miles from the coast for customs purposes, — all vessels, Russian or foreign, being
held to be subject to the control of the Russian authorities when within that
distance. Handelsberichten, 12th May 1910, p. 135.

3 ' ' Art. 2. Sur la demande des prud'hommes des pecheurs, de leurs de'le'gue's et,
a de"faut, des syndics des gens de mer, certaines peches peuvent etre temporaire-
rnent interdite"s sur une dtendue de mer au dela de 3 milles du littoral, si cette
mesure est commande'e par I'inte'ret de la conservation des fonds ou de la peche de
poissons de passage. L'arrete" d'interdiction est pris par le Pre"fet Maritime."

2 T

658 THE SOVEREIGNTY OF THE SEA

seawards from low-water mark," with the same arrangement
for bays as in the North Sea Convention. The distance stated
does not, however, necessarily represent the bounds of the
territorial sea, properly so called, the extent of which has never
been precisely defined by France.1 No doubt France, like other
countries, reserves her right to a wider limit should occasion
arise to make that necessary.

It appears that as early as 1832 the three-mile limit was
declared by Belgium to be the boundary of her territorial
waters,2 and by a law promulgated in 1891, and based upon
the North Sea Convention, " all foreign boats " were prohibited
from fishing within three miles of the Belgian coast.3

In the Netherlands also, in connection with the North Sea
Convention, the boundary of exclusive fishing has been de-
clared to be at the distance of three miles from low-water
mark, and this applies to all foreign fishermen. No distinction
has been formally made between the fishery limit and the limit
of the territorial sea for political purposes.4

In Austria-Hungary, whose coast is confined to the eastern
shore of the Adriatic, the three-mile limit has been adopted,
subject to certain qualifications respecting the right of fishery
under treaties with Italy. The regulations concerning foreign
vessels of war authorise a shot to be fired from the nearest
battery at any such vessel which does not show its flag on
coming within range of the guns, and within the same distance

1 M. de Chasseloup Lubat, in Ann. di Agricoltura, 50. 1891.

2 Law of 7th June 1832. Heffter, Le Droit International de I' Europe, c. ii. s. 75.

3 " Loi relative a la peche maritime dans les eaux territoriales," 19th August
1891. A decree of 5th September 1892 regulated foreign fishing - boats when
within territorial waters.

4 Wet van 15 Juni 1883, Staatsblad, No. 73 ; Koninklijk Besluit van 20 March
1884. Staatsblad, No. 40, putting in force the North Sea Convention: "Art. 1.
De bepalingen dezer overeenkomst, welke ten doel heeft de politic der visscherij
in de Noordzee buiten de territoriale wateren te regelen, ziju toepasselijk op alien,
die tot de nationaliteit der Hooge contracteerende Partijen behooren. 2. De
visschers van elken Staat zullen het uitsluitend recht van visscherij genieten
binnen een kring van drie mijlen, gerekend van de laagwaterlijn, langs de geheele
uitgestrektheid der kusten van elken Staat en evenzeer langs de eilanden en bauken,
die daarmede zijn verbonden," &c. Wet van 7th December 1883, Staatsblad, No.
202; Wet van 26th October 1889, Staatsblad, No. 135, "Tot vaststelling van
bepalingen tegen het visschen door opvarenden van vreemde vaartuigen in de terri-
toriale wateren van het Rijk" ; the limits, as laid down in the convention of 1882,
are applied to all foreign fishing vessels. There are special agreements with Bel-
gium as to the fishings in the Schelde. H. van der Hoeven, Wetgeving betrejfende
de Zee- en de Zalmvisscherijen. Leiden. 1897.

MODERN PRACTICE 659

of a fortified port they are prohibited from taking soundings,
practising with firearms, &c. ; other regulations forbid vessels
laden with goods which form the object of a monopoly of the
state from approaching within gunshot. By a decree of 23rd
August 1846, and a circular of 28th April 1849, it was declared
that the expression "range of guns" in these ordinances was
equivalent to three marine miles of sixty to a degree. The
customs regulations operate within the same limit, but the
manifest can be demanded within a farther distance of four
marine miles.1 With respect to the right of fishing, the regu-
lations are somewhat complex. The boundary of exclusive
fishing is fixed at three miles,2 but inasmuch as the fisheries
in the Adriatic are carried on almost only by Austrian and
Italian subjects, it was found convenient to arrange by treaty
for the fishermen of either country to fish within the territorial
waters of the other, except within a distance of one marine
mile from the shore, and subject to certain restrictions regard-
ing the fisheries for corals and sponges, and the observance of
the local regulations.3 This mutual arrangement with regard
to the right of fishery was renewed and continued in a later
treaty of llth February 1906.

The fishings within one marine mile of the shore are re-
served to the inhabitants of the commune to which the coast
appertains ; but in certain specified circumstances fishermen
from other places may be allowed to fish within this communal
zone. The use of drag-nets and trawl-nets is prohibited in all
places where the depth is under eight metres ; within the first
maritime or communal zone at certain seasons, irrespective of
depth, and altogether within five miles of the coast when em-
ployed from steamers. Owing to the absence of tides, the
shoreward limit is not measured from a low-water mark, but
from a line, fixed by local authorities, where the water ceases
to be constantly brackish.4

1 Strisower, Anmiaire de V Institut de Droit International. 1894.

2 Verordnung cler Ministerien des Haudels und des Ackerbaues, im Einverneh-
men mit dem Ministerium des Innern, vom 5 December 1884, betreflfend die
Seefischerei, s. 3.

3 Handels- und Schiffahrtsvertrag vom 27 Dec. 1878, zwischen Oesterreich-
Ungarn und Italien. Schlussprotokoll ad Art. xvii., xviii. ; Marchesetti, La pcsca
lungo le coste orientali dell' Adria. Trieste, 1882.

* Vorschriften tiber die See - Fischerei giltig in Oesterreich - Ungarn seit 12
December 1884.

660 THE SOVEREIGNTY OF THE SEA

It is doubtful how far the three-mile limit has been adopted
in Italy. In a Bill of 1872 a distinction was proposed between
the territorial waters and the exclusive fishing waters, but this
distinction was not made in the law of 1877.1 The question
was taken up later by the Commission for Fisheries, and the
opinions elicited from the local authorities at various parts
of the coast, who were consulted, varied, the recommendations
for the boundary of the territorial waters (mare territoriale)
ranging from one and a half miles to ten kilometres, and very
commonly the limit suggested was four geographical miles.
The boundary recommended for the exclusive fishing waters
(mare pescatorio) also varied, but in this case the depth of
the water rather than the distance from shore was held to be
the more important factor in deciding on a limit, an opinion
with which the Commission agreed so far as concerned steam
trawling. In view of the fishery conventions of the western
Powers, the Commission recommended a limit of three miles and
ten miles for bays, as in those conventions,2 but the proposal
was not accepted by the Italian Government. The subject was
again considered by the Commission in 1904 and 1906, with
particular reference to steam trawling and dredging, but no
proposition to determine the boundary of the territorial waters
for fishing purposes was adopted. A decree of 4th September
1908, however, introduced a limit of three miles,, but only
with reference to the use of dredges in some districts of the
Tyrrhenian Sea.

With respect to the extent of the territorial sea for political
purposes, no definition has been given in Italian laws ; it depends
therefore upon the general principles of international juris-
prudence. It is interesting to note that in some comparatively
recent decrees the boundary is stated to depend on the range
of guns. Thus, instructions issued by the Minister of Marine
in June 1866 commanded the officers of the navy to refrain
from all hostile acts in the ports and territorial waters of
neutral Powers, and reminded them that the limit of the
territorial waters was the range of cannon from the shore ;
and in a circular from the same Ministry in March 1862
it was stated that the extent of the territorial sea varied

1 Legge sulla pesca del 4 marzo 1877, No. 3706 (Serie 2»).

2 Annali di Agricoltura, 1891. Atti della commissione consultiva per la pesca,
pp. 32, 86.

MODERN PRACTICE 661

in different countries and in the opinion of different publicists,
but that the general opinion was that the range of guns was
the sole rule on the matter.1 It may be added that by the
customs law of 1896, the manifest of vessels may be de-
manded within ten kilometres of the coast.2

In Greece, another of the Mediterranean states, the three-
mile limit was adopted in 1869, when a circular of the
Minister of Marine prohibited foreigners from fishing within
that distance of the shore. Previously, in virtue of a royal
decree issued in 1834, foreign boats were allowed to fish for
sardines in the Gulf of Corinth, but this concession was
withdrawn.3

As already mentioned, the three-mile limit is the one in
force in all the British colonies, in Japan,4 in the United
States of America, and in some at least of the South American
states. The Chilian Government, for example, has defined
the extent of the territorial sea belonging to it as one marine
league from low-watermark, within which distance the right of
fishing is reserved to Chilian citizens or domiciled foreigners.
At the same time it is stated that "police administration for
the purposes of the security of the State or the carrying
out of fiscal regulations extends to a distance of four marine
leagues, measured in the same manner."5

Quite lately, however, one of the chief states of South
America has advanced a claim to a very wide extent of sea
along its coasts — so far, at least, as the right of fishery is con-
cerned. In September 1907 the Minister of Agriculture for
the Argentine Republic issued a series of ordinances for the
regulation of the fisheries,6 in which it is declared that, with
respect to the fisheries, a zone of water up to a distance of ten
miles (18,520 metres, or about 10^ nautical miles) from high-
water mark on the land is under the control of the state. The
great gulfs and bays are, moreover, included, such as the Gulf
of San Matias, the Gulf of St George, and the Gulf of Nuevo,

1 Definizione del mare territoriale e ordine di vigilare sugli armamenti alia pesca.
Ann. del Ministero di Agricoltura, Industria e Commercio, i. parte i. 96. Genoa, 1 871.

2 Corsi, in Fifteenth Ann. Rep. Assoc. for the Reform and' Codification of the
Law of Nations, 83.

3 No. 7, 409, 2nd Dec. 1869. Apostolides, LaPtcke en Grece, 86. Athens, 1888.

4 Dr Kishinouye, in litt. 8 Civil Code, Articles 593, 611.
15 Reglamentendo la pesca y caza, Boletin official, 20th September 1907.

662 THE SOVEREIGNTY OF THE SEA

the closing line in some cases considerably exceeding one
hundred nautical miles from point to point, and extending for
more than seventy miles beyond a three-mile limit. All liv-
ing animals in the sea are considered as objects of sea-fishing,
with the exception of those which reproduce on the land, as
birds, seals (lobos), and fish-otters. Within the declared limits
the exercise of sea-fishing is free, provided that the regulations
are adhered to. The one referring to trawling prohibits that
method of fishing by sailing-boats within three miles of the
shore, but allows such boats to trawl outside that distance if
the meshes of the nets have an aperture not less than 16
centimetres (6£ inches) ; steam trawling, on the other hand, is
prohibited within five miles of the shore. Commercial fishing
is forbidden within the great extent of water referred to unless
by vessels entered on the official list (matricula nacional), and
foreigners are thus excluded. A novel feature, but one in
complete harmony with the results of modern fishery investi-
gations, is the reservation of the right to close any area within
the limit claimed, so that such area or areas may act as reserves
to replenish neighbouring grounds and increase the multipli-
cation of the fish. The right to establish close-times is also
reserved, and the sale of undersized fish is prohibited unless
for certain specified purposes.

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

Later regulations issued by the Minister of Agriculture,
applying to that part of the coast between the Rio de la
Plata and the Rio Negro, provide that all those engaged or
who desire to engage in sea fishing there, must first receive
official permission to do so. Within a zone of twelve miles
from low-water mark, trawling by steamers is prohibited, but
trawling by sailing -boats, and fishing with various kinds of
lines and with drift-nets, are allowed; and all vessels em-
ployed must fly the national flag, and have their crews partly

MODERN PRACTICE 663

national, in accordance with the laws.1 It may be noted that
these regulations are declared to be for the purpose of pre-
venting the extermination of certain species of fish, and that
the grantees must, when requested, allow officials to be on
board for scientific study.

The adjoining state of Uruguay also lays claim to jurisdic-
tion, with regard to fisheries at least, beyond the ordinary
three-mile limit in the extensive inlet of the Rio de la Plata,
which lies between Uruguay and Argentina, and is nearly sixty
miles wide at its mouth, with an estimated area of about 5000
square miles. In 1905 a Canadian sealer, the Agnes G. Donohoe,
was arrested for the contravention of a presidential decree which
prohibits sealing within these Uruguayan waters, but it was
subsequently released. The British Government formally pro-
tested against this claim to jurisdiction outside the three-mile
boundary, which, however, is strongly supported by the
Argentine Government, which is equally concerned in its
maintenance.2

It is evident from the foregoing that most maritime states, and
all the great ones, either by treaty or in their municipal laws
and decrees, have adopted the three-mile limit, at least for
fishery purposes. It is quite appropriate, therefore, to refer
to it as the " ordinary " limit, as was done by the Tribunal of

1 Reglamento para las concesiones de pesca en el literal ocea'nico de la Provincia
de Buenos Aires, 4th June 1909. "Art. 3°. Los concesionarios solo podran emplear
redes arrastradas por vapores en una zona distante no menos de doce (12) millas,
contadas desde las lineas de las ma's bajas mareas. Art. 4°. Dentro de la zona de
doce millas hasta la linea de las ma's bajas mareas, podrdn usarse redes arrastradas
por veleros. Se declara libre el uso de las lineas, palangres 6 espineles, nasas y
redes verticales de deriva. Art. 6°. Las personas 6 empresas que quisieran usar
artes especiales de pesca distiutos de los indicados, deberdn solicitar permiso especial
de la Division de Ganaderia y obtener la autorizacicSn correspondiente. Art. 7°.
Las embarcaciones llevardn bandera nacional y sus tripulaciones se compondrdn
de una parte de individuos de nacionalidad argentina, de acuerdo con las leyes y
reglamentos de cabotaje nacional." I am indebted to the courtesy of Mr R. M.
Bartleman, the American Consul-General at Buenos Aires, for a copy of these
regulations.

2 Reuter's telegrams from Buenos Aires, 21st March, 30th June 1908. Scotsman,
23rd March, 2nd July 1908. La Prensa, one of the leading journals of Buenos
Aires, is quoted as declaring it hard to believe that the British Government has
decided to raise a question of such exceptional gravity, seeing the first effect of
such action would be to bring about a conflict to which there could be no con-
ciliatory or friendly solution, since the immediate reply, which would be final,
would be absolute rejection of the claim put forward — that is, that the waters of
the estuary outside the limits of three miles from the coasts are non-territorial.

664

THE SOVEREIGNTY OF THE SEA

Arbitration on the rights of seal-fishing in the Behring Sea,
though the tribunal did not affirm, and could not affirm, that
it found the three-mile limit to be, as a matter of fact, univer-
sally accepted.1 But though it is the ordinary limit, it is not
the only one enforced, and it is erroneous to declare, as some of
the less instructed writers on international law have stated,
that territorial jurisdiction cannot be carried further.2

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

We have already stated that Spain in the eighteenth century
declared that her territorial sea extended to a distance of six
miles from the coast (see p. 569). At that time such a limit
must have been regarded as moderate, but during last century,
after the principle of cannon range had been commonly trans-
lated into one marine league, the right to a zone of double that
extent was called in question both by the United States and
Great Britain. During the civil war in America the question

1 Award of the Tribunal of Arbitration, p. 23, " outside the ordinary three-mile
limit." The President, Baron de Courcel, has since explained that the tribunal
" s'est borne" & constater que les parties e'taient d'accord pour admettre que Fetendue
de trois milles a partir de la cote comme formant dans 1'espece qui lui e"tait soumise.
la limite ordinaire des eaux territoriales. " M. de Courcel to M. Auber, App. Ann.
de I'lnstitut de Droit Internal, for 1894, p. 282. Vide Hall, A Treatise on Inter-
national Law, 4th ed., p. 161.

2 For example, Leoni Levi, " No territorial sovereignty exists or can be claimed
beyond the three miles zone." Internat. Law, 112.

MODERN PRACTICE 665

i

came to the front, more particularly with reference to the
waters around Cuba. In 1862 the American Government
intimated that they were not prepared to admit that Spain,
without a formal concurrence of other nations, could exercise
exclusive sovereignty upon the open sea beyond a line of three
miles from the coast ; while Spain, relying on the legal prin-
ciple governing the extent of the territorial sea, argued that
the improvement of modern artillery made the three-mile limit
ineffective. Two years later a discussion on the subject took
place between the British and American Governments, the
former desiring that during the existence of hostilities the
limit of neutral waters should be greatly extended, so that shots
from belligerents might be prevented from falling, not only on
land, but within the neutral waters, and limits of ten, eight, and
five miles were mentioned.1 In 1874 the British Government
had itself occasion to object to the claim of Spain ; and on com-
munication with the Government of the United States, they
were informed that that Government had always protested
against it, and on the same grounds, that by the law of nations
jurisdiction could only extend to one marine league from the
coast.2 Notwithstanding the opposition of the two chief
maritime Powers, Spain did not abandon its claim, for by a
royal order of 16th May 1881, passed with special reference to
the jurisdiction over American vessels in Cuban waters, it was
declared that full jurisdiction extended to a distance of six
miles from the coast. This limit was also fixed for customs
purposes in Spanish waters by royal decrees in 1830 and 1852,
and in the general ordinances of the customs in 1884, the six
miles being stated to be equivalent to eleven kilometres.3

With regard to fisheries, Spain has entered into various
treaties with Portugal as to the right of fishing along their

1 Mr Seward, Secretary of State, to Mr Tassara, 6th December 1862. The same
to Mr Burnley, 16th September 1864. Wharton, A Digest of the International
Law of the United States, i. 105. American ships were charged with pursuing Con-
federate vessels into British waters, and the balls from the guns they fired had
struck objects on shore. The facts were used to show that the hostile acts had
occurred within our territorial jurisdiction. Hansard, vol. 173, p. 509; February
1864.

2 Secretary Fish to Sir E. Thornton, 22nd January 1875. " We have understood
and asserted that, pursuant to public law, no nation can rightfully claim jurisdic-
tion at sea beyond a marine league from the coast." Loc. cit.

3 Torres-Campos, in Fifteenth Ann. Rep. Assoc. for Reform and Codification of the
Law of Nations, 93. Negrin, Tratado de Derecho internacional maritimo, 1883.

666 THE SOVEREIGNTY OF THE SEA

respective coasts. By a convention in 1878, reciprocity was
established in the territorial waters of the two countries, sub-
ject to the observance of local regulations and certain specified
conditions, as the prohibition of the use of drag or trawl nets
("artes de Bou ou parelhas, chalut, muletas") within twelve
miles from the coast.1 In another treaty concluded between
these Powers on 2nd October 1885, and slightly amended in
1888, two fishery zones were established, the first extending to
three miles from the coast, which was exclusively reserved for
nationals, and the second, from three to six miles, in which the
fishermen of both countries were at liberty to fish. In a later
treaty of commerce and navigation, which came into force in
October 1893, the zone of exclusive fishing was extended to
six geographical miles from the coast of either country — that is,
to the extreme boundary of the jurisdictional waters, measured
from low-water mark of spring tides (" de la linea de bajamar
de las may ores mareas "), and a ten-mile base-line for bays
was adopted. Within this space the fishery and its regulation
were reserved by each state ; but in the frontier rivers, the
Mino and Guadiana, the fishery was specially dealt with, as in
previous treaties. Each Government also agreed to prohibit
certain injurious modes of fishing (parejas, muletas, &c.) within
twelve miles of their coasts, and a series of regulations, like
those of the North Sea Convention of 1882, were included with
respect to the entry of the fishing-boats of one of the coun-
tries within the territorial waters of the other, and the
police supervision of the fishing-boats of either country be-
yond the six-mile limit.2 In Spain the reservation of six miles
.

1 Negocios Externos. Documentos apresentados as Cortes na Sessdo legislativa de
1879 pelo Ministro e Secretario d'Estado dos Negocios Estrangeiros. Questdo das
Pescarias, p. 258. Lisboa, 1879. The volume contains a full discussion of the
questions between the two Governments.

2 Tratado de navegacion y comercio entre Espana y Portugal^ firmado en
Madrid el dia 27 de Marzo de 1893. Ape"ndice Sexto. Reglamento de policia
costera y de pesca. Sec. 1. Disposiciones aplicables a las aguas de cada pais.
" Art. 1°. La policia costera y de pesca en las aguas jurisdiccionales de Espana y
de Portugal, quedard sujeta a las disposicioues siguientes. Art. 2°. Los limites
dentro de los cuales el derecho general de pesca, queda reservado exclusivameute
ii los Pescadores sujetos & las jurisdicciones respectivas de las dos naciones, se fijan
en seis millas, contadas por fuera de la linea de bajamar de las may ores mareas.
Para las bahias cuya abertura no exceda de diez millas, las seis millas se contardn &
partir de una linea recta tirada de una punta & la otra. Las millas mencionadas

MODERN PRACTICE 667

was regarded as unjust, since the water off the coast of Portugal
was much deeper than off the Spanish coast, and in the follow-
ing year the Portuguese Government allowed Spanish fishermen
to fish, under certain conditions, to within three miles of the
coast of Alo-arbe.1

o

While it is evident that Spain and Portugal claim jurisdic-
tion to the extent of six miles from the coast, it appears that
an exclusive fishery to that distance is not enforced against all
other nations. It seems that on the Mediterranean coast, the
three-mile, and not the six-mile, limit is applied against French
fishermen,2 and the British Government, in the interests of
British trawlers, recently intimated that they did not recognise
any claims of the Spanish or Portuguese Governments to
exercise jurisdiction over British vessels beyond the three-mile
limit ; and, in point of fact, British and German trawlers now fish
off the Portuguese and Spanish coasts up to three miles from
the shore.3 They have developed an important and extensive
trawl-fishery there during the last few years ; and although the
local fishermen strongly object to their presence within waters
where they are themselves prohibited to trawl, and it is stated
that negotiations on the matter have taken place between the

son millas geognificas de 60 al grado de latitud. Art. 3°. Cada uua de los Estados
tendril el derecho de reglamentar el ejercicio de la pesca en sus respectivas costas
maritimas hasta una distancia de seis millas de las mismas, limite dentro del cual
solamente sent permitido it los pescadores nacionales ejercer esta industria."
F. Lopez y Medina, Coleccion de Tratados Internationales, Ordenanzas y Reglamentos
de Pesca, pp. 44, 49 (Madrid, 1906). I am indebted to Sir Reginald MacLeod,
K.C.B., late Under-Secretary for Scotland, for this volume.

1 Revista de Pesca Maritima, ix. 97 (1893) ; x. 209 (1894). Various regulations
have been lately made with respect to trawling beyond the six-mile limit at certain
parts of the Spanish coast (vide Lopez y Medina, Primer Apendice a la Coleccion
de Tratados, <L-c., pp. 34-45. Madrid, 1907), and also on the coast of Portugal (vide
Colleccdo de Leis e Disposifdes diversas com relacdo a Pesca e Service maritimo dos
Portos, pp. 28, 54, 276, 535. Lisboa, 1907). In no other countries, it may be
added, have more regulations been made restricting all kinds of trawling than in
Spain and Portugal.

2 Prof. A. F. Marion, in litt.

3 The National Sea Fisheries Protection Association : Twenty -fourth Ann. Rep.
of the Committee of Management, 1905, p. 7. "Spanish and Portuguese Territorial
Limits. Communications were made to the Foreign Office on the subject of Spanish
and Portuguese Territorial Limits, and, in reply, the Association was informed that
His Majesty's Government did not recognise any claims of the Spanish or Portu-
guese Governments to exercise jurisdiction over British vessels beyond the three-
mile limit."

668 THE SOVEREIGNTY OF THE SEA

London and Lisbon Governments, they have not been ordered
out of them, and still continue their trawling. Both in Spain
and Portugal meetings have been held with reference to the
territorial waters, at which resolutions were passed calling for
an international arrangement for the extension of the limits to
ten or twelve miles; and some unpleasant encounters have
occurred between the local and foreign fishermen. On these
coasts, however, a limit so extensive would largely prevent
foreigners from fishing, owing to the great depth of the water
at such distances from the shore. On the other hand, it is
argued that as the available fishing-ground is so narrow and
small, there is all the more reason why it should be protected
from the destructive methods of fishing pursued by the foreign
vessels, and preserved as far as possible for the inhabitants of
the coast.1 Quite recently, it appears, the Portuguese Govern-
ment have regularised their position with regard to foreign
trawlers and foreign fishermen generally, by passing a law
forbidding them to fish, under severe penalties, within a zone
of three sea miles from the shore. They have thus accepted
the inevitable, in view of the pressure applied by at least one
of the great maritime Powers. With regard to bays, however,
the limit specified in the fishery conventions is not adopted.
The zone of three miles in respect to bays has to be reckoned
according to the principles of international law.2

Spain, it may be added, after the victorious campaign of
1859-60, concluded a treaty with Morocco, by which Spanish
subjects are allowed to fish on the coast of that country up to

1 Fish Trades Gazette, 10th Dec. 1904, p. 23. London. Boletin Oficial de la
Liga Maritima Espanola ; Vida Maritima, Revista de Navegacidn y Comercio,
Pesquerias, &c. Madrid. In 1905 no less than forty-five English trawlers, as well
as four German trawlers and one Spanish, landed fish at Lisbon and Oporto, which
had been caught in neighbouring waters and as far as Morocco, the value being
332,220 milreis, or about £74,750. Estatistica das I'escas Maritimas, Anno de 1905.
Lisboa, 1907.

2 A summary of this new law, which received the sanction of the King of Portugal
on 26th October 1909, is given in Mitteilungen des Deutschen Seefischerei- Vereins
for February 1910 (Bd. xxvi. No. 2), from Diario do Governo, No. 247, viz. :
Portugiesisches Gesetz betreffend das Verbot fur fremde Fahrzeuge zum Fischen in
den territorialen Gewassern. " Art. 1. In den portugiesischen Territorialgewassern
innerhalb einer Zone von 3 Seemeilen, von der Linie des Niedrigstwasserstandes an
gerechnet, ist fremden Fahrzeugen das Fischen verboten. In den Buchten ist die
Zone von 3 Seemeilen gemass den Grundsatsen des internationalen Rechts zu
berechnen."

MODERN PRACTICE 669

the shores, for corals, sponges, and other marine products, as
well as for fish.1

The extent of the territorial waters claimed by Norway and
Sweden is even greater than that claimed by Spain and Portu-
gal, owing to the method of measurement, the distance of four
geographical miles being measured either from the coast or
from the outermost part of the outermost isle or rock which is
not submerged by the sea at high tide. Such isles and rocks
are numerous on the Scandinavian coasts, so that the fishermen
distinguish the waters " within the rocks " (inom skdrs) from
those " without the rocks " (utom skdrs) or at sea, and in many
places the extent of water reserved by the rule is very consider-
able. There appears, however, to be a difference in Sweden
and Norway as to the precise method of measurement. In
Norway such isles and rocks are appropriate for the base-line,
if they are not farther from the mainland than eight geograph-
ical miles of sixty to a degree ; and it seems to follow from
the rule that the measurement from the coast or shore must
be made at high-water, but this is not expressly said.2 In
Sweden the isle or rock is spoken of as within one geograph-
ical league of the coast, and it may be such as is not continu-
ously submerged, but is periodically uncovered, which implies
a base of low-water.3 On some parts of the Norwegian coast

1 Tratado de comercio con el emperador de Marruecos, 20th November 1861.
Revista de Pesca Maritima, xiv. 149, 1898. Lopez y Medina, op cit., 72.

2 This is also the interpretation made by Mr Arctander (Norsk Fiskeritidende,
Tolvte Aargang, 1893, p. 464) of the wording of the ordinances, that the line must
be drawn through points that lie above the water at high tide (flod), the rule thus
differing from the usual one. On the other hand, the Norwegian Department of
the Interior, in replying to certain queries from the International Law Association,
stated, with reference to the royal ordinance of 1812 (see p. 653), that "it is not
expressly said whether the distance is to be reckoned at half -tide, high-water, or low-
water" ; and they did not suggest which ought to be adopted. Rep., Seventeenth
Conference, 1895, p. 301. The Danish terms agree with the Swedish. See p. 655.

3 Professor Auber thus states the practice in Norway : " Nous avons regards'
comme tout naturel que, 1'ile n'e"tant pas situee plus qu'a deux anciens milles
marins (deux quinziemes de degre") de la terre ferme, 1'etendue de la mer territoriale
doive etre compter jusqu'a un mille au delh, de 1'ile, et ainsi cle suite d'ile en ile "
(Annuaire de VInstitut de Droit International for 1889, p. 139). M. Kleen, ou the
other hand, speaks of the outermost isle being included "sous la condition que
cette ile ou ce brisant ne soit pas situe" plus loin de la cote qu'une lieu geograph-
ique " (Fifteenth Ann. Rep., Internat. Law Association, p. 20). The Norwegian law
refers to " the island or islet farthest from the mainland, and not covered by the

670

THE SOVEREIGNTY OF THE SEA

the territorial sea may thus extend to twelve miles from the
mainland. Bays and fjords are, moreover, included in the
territorial waters irrespective of whether their width at the
mouth is or is not greater than ten miles ; and in including
these, as much importance is attached to the islands which
may lie at their entrance as to the distance between headlands.

Fig. 23. — Showing the Limit at Kornsdal Atnt, Norway,
A, The base-line ; B, the line of closure ; c, the three-mile limit.

With regard to large open ways or stretches of sea partly
enclosed, no fixed rule has been laid down, but Norway
reserves the right in certain cases to exceed the limit derived

sea," while M. Kleen says : "Comme brisant a compter sera alors consid^re chacun
qui u'est pas continudlemenl submerge par la mer . . . pourvu qu'il soit h de"-
couvert peYiodiquement et que la mer ne le couvre pas toujours."

MODERN PRACTICE

673

from the general principle as above explained. On some pa. Qn
of the coast special laws regulate the extent of the sea vu
which the exclusive right of fishing is reserved to subjects.
The rich cod-banks on the coast of Sondmore, Romsdal, and
Nordmore are thus included within the territorial waters,
the base-line being drawn between various islands, in the
manner described above. The first of these was a royal
decree of 16th October 1869, which prescribed that a straight
line drawn at a distance of one geographical mile (of fifteen to
a degree) from and parallel to a straight line drawn between
Storholmen and Svino, shall be taken as the boundary of the
waters off the coast of the Sondmore district, in which the
fishing is entirely reserved for the inhabitants of the country.
Another royal decree of 9th September 1889 continued this
boundary farther to the north-east. It ordained that a line
'drawn at a distance of one geographical mile from and parallel
to a line from Storholmen through Skraapen (outside of Haro),
Gravskjser (outside of Ona), and Kalven (the last of the Orsk-
jserens), to the last of the Jevleholme, outside of Grip, was the
boundary of the waters off the coast of the Romsdal district,
in which fishing is entirely reserved for the inhabitants of the
country.1

This special line from Svino (which lies about eight miles
north of Stadtland, or Van Staten) to Jevleholm stretches for
about eighty-five geographical miles along the coast,2 the dis-
tance between the islets through which the base-line passes
being respectively 28, 14£, 7, 23J, and 12 geographical miles,
and some of them are over seven miles distant from the main-
land or the nearest large island. The extent of water reserved
is thus large, the area between the base-line and the boundary-

1 Kongcliy Resolution af 16 Oktober 1869: "At en ret linie, trukket i en
geografisk mils afstand fra og parallelt med en ret linie mellem Storholmen og
Svino, bliver at betragte som grsendsen for den havstraekning udenfor den
tilsvarende kyst af Sondrnores fogderi, paa hvilken fiskeriet er landets egeu
befolkning udelukkende forbeholdt." Kongelig Resolution af 9 September 1889 :
"En linie, trukket i en geografisk mils afstand fra og parallelt med en linie fra
Storholmen over Skraapen (udenfor Haro), Gravskjaer (udenfor Ona) og Kalven
(det yderste af Orskjserene) til yderste Jevleholme udenfor Grip, bliver at betragte
som graeudsen for den havstraekning udeufor den tilsvarende kyst af Romsdal amt,
paa hvilken fiskeriet er landets egen befolkning udelukkende forbeholdt."

- From about 62° 20' N. lat. and 5° 13' E. long, to about 63° 13' N. lat. and
7° 35' E. long.

67Q

THE SOVEREIGNTY OF THE SEA

thej being alone about 340 square miles ; but the extent of sea
mcluded which would be outside the ordinary three-mile limit
is much less than might be expected, owing to the great number
of isles and islets along the coast. In the accompanying figure
(fig. 23), the part of the coast embraced by the law of 1889 is repre-
sented, the base-line, the boundary of the reserved waters, and
the ordinary three-mile limit being shown. The area of water
between the latter and the Norwegian limit amounts, ap-
proximately, to 140 square miles. The figure also shows how
complicated a three-mile boundary based on the provisions of
the North Sea Convention would be on such a coast. It is to
be noted further, that within the limits prescribed by the royal
decrees a series of stringent regulations have been made for
the orderly prosecution of the fishery.1

Of much greater international importance is the claim made
by the Norwegians to the exclusive right of fishing in the
Vestfjord, an arm of the sea which extends between the coast
of Nordland and the Lofoten Islands, where from time im-
memorial the greatest cod-fishing in Europe has been carried
on.2 It is, strictly speaking, a strait, as indicated in the accom-
panying figure (fig. 24), bounded on one side by a chain of islands
and on the other by the mainland, opening to the northwards
by several narrow channels, and to the south by a wide mouth
about forty-five geographical miles in breadth. The waters of
the Vestfjord have for centuries been considered as territorial,
and the fisheries within them as reserved for the Norwegian
people; but no decree or law has as yet been promulgated
respecting the boundary between the reserved waters and the
open sea.3 Locally, however, as at Bodo, it is supposed that

1 Provisorisk Anordnung angaaende vaartorskefiskeriet ved Sondmores kyster,
3 Jan. 1870 ; Lov angaaende vaartorskefiskeriet ved Sondmores kyster, 6 June
1878 ; Lov om vaartorskefiskeriet ved Romsdals amts kyst og fjorde, 1 July 1907.

2 It is referred to in A.D. 888. The fishery is prosecuted from about the middle
of January to the end of April ; in 1908 over 20,000 fishermen, drawn from all the
neighbouring parts of the coast, took part in it. Aarsberetning vedkommende Norges
Fiskerierfor 1908 : 4de Hefte, Lofotfitkeriet, 1908.

3 " Le droit exclusif de la peche dans le golfe du Vestfjord, consacr^ par un
usage plusieurs fois seculaire, n'a jusqu'ici etc' 1'objet d'aucune disposition legisla-
tive." Letter of the Minister for Foreign Affairs, 6th August 1908. " The Vestfjord
through centuries has been considered as Norwegian territorial waters, but no
decree or decision as to the special frontier or limit between this fjord and the
open sea has been issued up to the present." Letter from his Excellency M. J.

MODERN PRACTICE

673

the line of closure runs from Moskenses on the west to Stot on
the east, which are about forty-five miles apart, and the length
of the fjord from this line is about sixty -five miles. As stated
below, however, it appears from a letter of the Minister of
Foreign Affairs, in 1868, that the line may be drawn from the

Fig. 24. — The Vestfjord, Lofoten Islands.

southern part of Host, a group of isles situated nearly fifty
miles from the mainland and about 110 miles from the

Irgens, the Norwegian Minister, 13th June 1908. Having some difficulty in
getting authentic copies of the various Norwegian decrees, I applied to Dr Fridtjof
Nansen, then Norwegian Minister in London, and later received full information
from three sources — from Mons. J. Irgens, Dr Nansen's successor, and now the
Foreign Minister of Norway ; by the courtesy of Sir Reginald MacLeod ; and
through Dr Baty, the Secretary to the International Law Association.

2u

674

THE SOVEREIGNTY OF THE SEA

extreme head of the fjord. The total area within a line
drawn from the south end of Moskenseso (Lofoten Point) to
Most Fjord is over 2000 square (geographical) miles, about 900
square miles of this lying outside the ordinary three-mile limit.
Within a line from Rost to Kunna the total area is nearly
3900 miles, about half being beyond the ordinary limit.

Another large expanse of sea, the Varanger fjord, in East
Finmarken (fig. 25), has been closed, with special regard to
whaling, for a distance up to one geographical mile (of fifteen
to a degree) outside a line drawn from Kibergsnses on the
north to Jacobs River on the south; and it is stated by the
Norwegian Minister for Foreign Affairs that the boundary
mentioned has always been considered as indicating the true
limit of the territorial waters in the Varangerfjord. This arm
of the sea, claimed as territorial, is thirty-two miles wide at
the entrance and about fifty miles in length. The total area
of the fjord is about 630 square (geographical) miles, of which
approximately 225 square miles are beyond the ordinary three-
mile limit. Various laws have been made by the Norwegian
Government affecting whaling in this quarter.1

A Swedish decree of 5th May 1871 concerning the fisheries,
defined the extent of the territorial waters from the Norwegian
frontier along the coast to Kullen, at the entrance to the Sound,
as one Swedish league (equal to four geographical miles of
60 to a degree), reckoned from the coast, or the farthest out
island or rock which is not constantly overflowed by the sea : 2
and by the treaty with Denmark in 1899, already referred to,

1 5th January 1881 ; 19th June 1880 ; 14th June 1890 ; 17th December 1896 ;
7th January 1904. In the law of 17th December 1896 the limits are mentioned as
follows : " Paa Havstrsekningen ved Troms<j> Amts og Finmarkens Amts Kyst i en
Afstand af indtil e"n geografisk Mil fra Kysten, regnet fra den yderste 0 eller Holme,
som ikke overskylles af Havet, skal det indtil videre vsere forbudt at jage, anskyde
eller drsebe Hval i Tidsrummet fra Iste Januar til Udgangen af Mai. For Varanger-
fjordens Vedkommende i Finmarkens Amt bliver Grsendsen for den fredede Strsek-
ning udad mod Havet en ret Linie trukket fra Kibergnses til Grsendse, Jakobselv,
dog saaledes, at det ogsaa udenfor denne Linie skal vsere forbudt i den ovenanf^rt
Tid at jage, anskyde eller drsebe Hval i kortere Afstand fra Kysten ved Kibergna
end en geografisk Mil." See also Auber, Annuaire, xi. 136, 1892 ; Kleen, Fifteenth
Ann. Rep. Internat. Law Assoc., 17 ; Aschehoug, Norges nuvarende Retsforfatning,
90; Kleen, Neutralitetens Lagar, 1889; Norsk Fiskeritidende, 1893, 461.

2 Riiknadt fran kusten eller langst ut fran denna liggande 6 eller skar, som ej
standigt af hafvet ofverskoljes." Svensk Fiskeri Tidskrift, 9e Arg., p. 78.

MODERN PRACTICE

675

the same limit is carried on from Kullen to Falsterbo and up
to Simrishamn in Christianstad. There does not appear to be
any corresponding decree for the eastern coast of Sweden.

Within the territorial waters as described above, Norway
claims the exclusive right to the fisheries and all the sovereign
rights that are usually exercised in territorial seas, as well as
one that is not as a rule included — namely, the right to control

676 THE SOVEREIGNTY OP THE SEA

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

Another reason put forward is a moral one. The country
is comparatively sterile ; the climate is rigorous ; the people
are poor, and the fisheries are of the utmost importance for
their maintenance. A large proportion of the population
derive, and have always derived, their livelihood from the
sea, " with which they wage a desperate war in the darkness
and tempests of winter and spring to gain their daily bread." l
It is therefore only just that this natural source of food along
their coasts should be conserved as much as possible, so long
as the manifest rights of other nations are not violated, and
that the poor native fishermen, pursuing a hard and laborious
calling, which necessity has imposed on them, should be pro-

1 Auber, loc. cit.

MODERN PRACTICE 677

tected from the intrusion of foreign vessels, better equipped
and with more capital at their disposal. It is further urged
that the Norwegian fishermen have enjoyed the wider area
for many centuries. From immemorial times the right of
fishing has been regarded as pertaining to the land. This
principle was enunciated in the old provincial laws (landskap-
slagar) of Sweden in the middle ages, and was continued in
the laws of the kingdom since the fourteenth and fifteenth
centuries.1 It is also declared that a smaller extent of terri-
torial sea would interfere with the efficacy of the regulations
enforced for the preservation of the fisheries. A lesser boun-
dary would intersect the more important fishing -banks,
"making it impossible," to quote the words of the Minister
of the Interior, " for the state to regulate the fisheries on the
whole bank, and it would be fatal to those fisheries which are
necessary for the subsistence of the coast population." This
consideration, it is pointed out, is likely to have still more
weight in future, owing to the increase of the population and
the impoverishment of the fishing-grounds along the coast.

The claim of Norway to the wider extent of territorial sea
has been as a rule respected by foreigners, probably owing in
the main to the fact that its coasts are but little visited by
foreign fishermen, but it has not remained without challenge.
The French Government on one occasion complained that a
French vessel had been prevented from fishing in the Vestfjord ;
but the prohibition was justified by Norway on the grounds
that by the law of nations the Lofoten fisheries, and especially
those in the Vestfjord, which was "part of the territorial sea,"
belonged exclusively to the inhabitants, and that for centuries
no foreign vessels had attempted to take part in them.2 In
communicating the decision to the French Government, the
Minister for Foreign Affairs declared that the prohibition

1 Kleen, op. cit. ; Egerstrbm, Sveriges LandtbruksfGrvaltning, 1896, p. 37. It
is the same in Finland, — J. A. Sandman, Uebersicht ueber die Scefischerei Finnlands,
p. 145, 1906.

2 Minister of the Interior to Minister of Foreign Affairs, 28th October 1868 . . .
" Cela s'explique : ces peches, ayant lieu dans un golfe considers" comme faisant
partie de la mer territoriale de la Norvege, ont e"te" regarde"es comme la proprie'te'
exclusive du pays. Cela ue peut certainement pas cadrer avec les principes du
droit international, qu'on puisse tout a coup amener des changements dans une
situation legale qui repose sur une reconnaissance tacite de plusieurs siecles. "

678 THE SOVEREIGNTY OF THE SEA

applied equally to the adjacent sea and to the entrance to the
fjord up to the distance of a marine league (of four miles),
measured from the most southerly point of the isles called
" Rost " — a group which lies about twenty-six geographical
miles west and south of Moskenses, and about sixty geograph-
ical miles from the mainland.1 In 1870 another foreign
Government raised objection to the limits defined off Romsdal
by the royal decree of 16th October 1869, on the ground
that the base-line drawn between the islands Svino and Stor-
holmen exceeded eight ordinary marine miles in length, which
was the maximum distance according to the Norwegian prin-
ciple, already referred to, for the inclusion of the " outermost "
island. The Norwegian Government, however, declared that
by the law of nations it was competent to include a bay or a
gulf of " not too large an extent " by drawing the line from
one advanced point to another, and that it was necessary to
consider local circumstances and what was natural, convenient,
and just. The line that had been drawn, they said, coincided
with a natural depression in the bottom of the sea which
separated the inshore from the offshore fishing-banks, and it
formed a natural boundary which could be readily ascertained
by the use of a sounding-lead. To adhere strictly to the four-
mile line in this case would make the limit intricate and
impossible to be observed, and it would pass across the inshore
banks. It was also argued that till lately foreign fishermen
had never attempted to fish in the neighbourhood, even within
a space far more extensive than that comprised in the decree.2

Since the period referred to, the limit claimed by Norway is
said to have been respected by foreign states and by foreign
fishermen; and the Scandinavian Government has officially
declared on several occasions, and notably in December 1874
to the British Government, that it would never adhere to
any international convention which established a maritime
zone of less than four marine miles. It declined to become
a party to the North Sea Convention of 1882 for this reason,

1 Letter of the Minister for Foreign Affairs, 7th November 1868. " Aussi il est
dt'fendu aux sujets Strangers de faire la peche dans ce golfe, et cette defense
n'applique e"galement a la mer voisine et a 1'embouchure jusqu'h, une distance d'uue
lieue marine a partir du point le plus meridional du group d'ilots dit 'Rost.' "

2 Minister of the Interior to Minister for Foreign Affairs, 28th January 1870.

MODERN PRACTICE 679

and because the line for the closure of bays was in its opinion
much too small. The only treaties with foreign countries
in which a limit has been fixed are the one between Sweden
and Denmark, previously mentioned, in which the Scan-
dinavian boundary is maintained, and one with Mexico, in
1886, for customs purposes, which stipulates for three marine
leagues from low-water mark.1

It is evident that Sweden and Norway, besides claiming
a greater extent of territorial water than other countries,
also claim in particular cases to depart from the principles
which in general govern their own system of delimitation,
in order to include other waters lying off their coasts, when
they deem it necessary to reserve the fisheries there for their
own subjects. In such cases it is said to be impossible to
be guided by geographical rules of an absolute kind, and
it is urged that any general international rules on the
question should be sufficiently elastic to allow of similar ex-
ceptions elsewhere.2 There is little doubt that the wider
area claimed by the Scandinavian states is, from the point
of view of sea fisheries, preferable to the narrower zone
adopted in the North Sea Convention. It will appear later,
that both the authorities on sea fisheries in various countries
and the authorities on international law agree as to the in-
adequacy of the three-mile limit for fishery purposes ; and it
is hardly probable that the Government of any other country

1 20th August 1886. "Art. 7 ... Les deux parties contractantes conviennent
de consideYer comrne limites des mers territoriales de leur cotes respectives pour
tout ce qui se rapporte a 1'application des reglements de douane et aux mesures
prises pour empecher la contrebande, une distance de trois lieues marines coinptees
depuis de la ligne de mare"e basse." A similar customs treaty, it may be mentioned,
was concluded between Mexico and Great Britain on 27th November 1888, in
which three marine leagues was stipulated by each country " as a limit of their
territorial waters on their respective coasts," strictly for customs purposes. "The
two Contracting Parties agree to consider, as a limit of their territorial waters on
their respective coasts, the distance of three marine leagues reckoned from the line
of low- water mark. Nevertheless, this stipulation shall have no effect, excepting
in what may relate to the observance and application of the Custom-house Regu-
lations and the measures for preventing smuggling, and cannot be extended to
other questions of civil and criminal jurisdiction or of international maritime law "
(Hertslett, Treaties]. It is of interest to note, however, that the ordinary limit
adhered to by the British Government so rigorously in connection with fishery
rights, may be legitimately extended by treaty in order to protect the revenue.

2 Auber, op. cit., 141.

680 THE SOVEREIGNTY OF THE SEA

will now seriously contest the right of Sweden and Norway
to the larger area they claim, unless under exceptional cir-
cumstances. Norway has been fortunate in this respect,
that her coasts are rarely visited by foreign fishing vessels;
but this immunity is not likely to continue. During the
last few years the great feature of the sea fisheries both
in Great Britain and also on the Continent has been the
enormous development of steam-fishing, particularly trawling
(see p. 698;. Confined for a time to the North Sea and
the neighbourhood of their own coasts, steam fishing-vessels
now regularly visit distant quarters in large numbers, and
trawlers from England and Germany make the long voyage
to the grounds off the White Sea, traversing the whole coast
of Norway, in quest of fish. The absence of foreign competi-
tion in the fisheries of the Norwegian coast is due largely
to the generally rough and rocky nature of the bottom and
the great depth of the water, which make trawling difficult
or impossible; but there are, no doubt, within the territorial
limits, more or less restricted areas where trawling could be
carried on with success, and if these be discovered by foreign
vessels, and they are outside the ordinary three-mile boundary
to which they are accustomed, there is little doubt the
question of the Norwegian claim will be raised again. Line-
fishing by steamers is now, moreover, greatly developed, and
this method of fishing can be pursued, and is now pursued
by the Norwegians, in deeper water and on rocky bottom,
as in the Vestfjord and off Romsdal. In the summer of
1907, indeed, one or two British trawlers were seized by
the Norwegian authorities for fishing within their territorial
waters at Finmarken, but were released later.1

From the account which has been given above of the recent
practice of civilised states it is apparent that the majority
of them have adopted the three-mile limit, with a ten -mile
base-line for bays, for fishery purposes. There is a tendency,

1 Foreigners are forbidden to carry on fishing within the territorial waters, the
most recent law relative to this subject being that of 2nd June 1906. Instruc-
tions to the commanders of the Norwegian cruisers, dated 22nd December 1906,
with reference thereto, describe the limit as an " ordinary sea mile " (measured as
described), the equivalent distance being stated at 7529 metres, which is equal to
4 '065 mean nautical miles, or 4 '68 English statute miles. A law of 1908 prohibits
trawl-fishing within the territorial waters.

OPINIONS OF RECENT PUBLICISTS 681

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

The general adoption of this limit, as previously said, was
due in great measure to the preponderating influence of
Great Britain and America in maritime affairs, the lesser
states following their example, willingly or with reluctance.
It is not too much to say, indeed, that the three-mile
boundary in its origin and development is an Anglo-American
doctrine, its authors being Washington and Lord Stowell.
It is thus of interest to consider the opinions of modern
writers on international law on the question, and to see
how far they agree with or differ from their predecessors,
whose opinions have been previously passed under review.
It will be found that, considering the extent to which the
three-mile limit has been actually applied in practice, the
writers who accept it as the established rule in international
law are singularly few, and are for the most part English
or American. It will be also noticed how extremely loose

682 THE SOVEREIGNTY OF THE SEA

some writers, even of high authority, are in their use of
the terms "three miles or the range of guns," as if they
were now synonymous, which they are not. Such looseness
of phrase is not absent from some judicial decisions on the
question, as in that of Lord Cockburn in the case of Regina
v. Keyn, previously referred to (p. 591).

Another statement that one not uncommonly finds in the
text-books, and to which currency was given by Lord Stowell,
is that since the invention of firearms the distance at which
the power of the state, and therefore the territorial waters,
terminated, has usually been recognised as about three miles
from the shore. Calvo, a writer of much authority, also makes
this statement, affirming at the same time the doctrine of
Bynkershoek as the principle of delimitation.1 In view of the
range of modern artillery, he, however, considers this space too
small, and is of opinion that it ought justly, on grounds of
logic and reason, to be extended ; but until this extension has
been sanctioned by a majority of states he looks upon the
three-mile limit as the established rule of international law.
Much the same view is expressed by Bluntschli.2 He defines
the territorial sea according to the range of guns, and says
that international treaties or the laws of states may fix more
precise limits, such as one marine league from the coast at
low-water; but, considering the increased range of artillery,
he is disposed to think the three-mile limit insufficient. Philli-
more, one of the greatest English authorities, agrees with Calvo.3
He states that the rule of law may now be considered as fairly
established that absolute property and jurisdiction in the ad-
jacent open sea "does not extend, unless by the specific pro-
visions of a treaty, or an unquestioned usage, beyond a marine
league (being three miles) or the distance of a cannon-shot
from the shore at low tide." The limit, he says, was fixed at a
marine league because that was supposed to be the utmost
distance to which a cannon-shot from the shore could reach;

1 Le Droit International, i. 349 ; Diet, de Droit International, 501. Bluntschli
endeavours to place the doctrine on a philosophical but absurd basis, by stating
that the sovereignty over the sea extended originally only to a stone's-throw from
the coast, later to an arrow-shot, and then according to the range of firearms.

2 Das Moderne Vdlkerrecht, s. 307-9.

3 Commentaries upon International Law, I. viii. cxcviii.

OPINIONS OF RECENT PUBLICISTS 683

and he adds that the great improvements recently effected in
artillery seem to make it desirable that this distance should be
increased, but he holds that this can be done only by the
general consent of nations, or by specific treaty with particular
states. Phillimore, like most of the other writers, was ap-
parently ignorant of the fact that the Scandinavian and the
Iberian Powers claimed a limit much farther than three miles.
Hulleck follows Wheaton in saying that the general usage
of nations superadds to bays, &c., an exclusive territorial juris-
diction over the sea for the distance of one marine league, or
the range of a cannon-shot, along all the shores or coasts of
the state, and that the maxim of law on the subject is terrce
dominium finitur ubi finitur armorum vis, " which is gener-
ally recognised to be about three miles from the shore." l On
the other hand, Lawrence, in his edition of Wheaton (p. 321),
says very definitely that all the space through which pro-
jectiles thrown from the shore pass, being protected and
defended by these warlike instruments, is territorial and sub-
ject to the dominion of the Power that controls the shore : " The
greatest reach of a ball fired from a cannon on the land is,
then, really the limit of the territorial sea." Bishop, also
accepting Bynkershoek's principle, says that a cannon-shot is
estimated for the purpose of delimiting the territorial seas at
a marine league, but, like so many others, he argues from the
improvement of artillery that, "in reason, the distance would
now seem to require extension." 2 Woolsey, likewise adopting
the three-mile limit " or " cannon range, is of opinion that, " as
the range of cannon is increasing, and their aim becoming more
perfect, it might be thought that the sea-line of territory ought
to be wider," though this author does not think the point likely
to become of great importance.3 Dana expresses the usual
vague opinion of the English and American writers in regard-
ing it as " settled that the limit of the territorial waters is,
in the absence of treaty, the marine league, or the cannon-
shot."4 Sir Travers Twiss also speaks of the range of guns,
which, he says, with the common lack of information respecting

1 International Law, 135.

2 Commentaries on Criminal Law, iv. c. 5, s. 74.

3 Introduction to the Study of International Law, s. 56.

4 Wheaton's International Law, 8th ed., p. 359.

684 THE SOVEREIGNTY OF THE SEA

some other countries, " by consent is now taken to be a
maritime league seawards along the coasts of a nation."1

Rather different opinions are expressed by Fiore, an Italian
writer of eminence. While pointing out that publicists are not
agreed as to the extent of the territorial sea, he thinks it
should be determined by the necessity of the case and the
nature of the particular rights claimed, as fishing, dues con-
nected with navigation, and defence : for the latter purpose
he is of opinion that the zone should increase with the improve-
ment of artillery. With regard to the rights to certain fisheries,
he says that the fishing for coral, — an important industry in
Italy, — for example, belongs to the people of the neighbouring
coast where it is found.2 Pradier-Fodere holds strongly to the
doctrine of cannon range. The extent of the territorial sea, he
says, depends upon the power of artillery from shore ; the
farthest distance a shot can be thrown, according to the pro-
gress of military art, is the limit of the territorial sea, and he
adds that this is the principle almost universally adopted,
although, "since the invention of firearms," this distance has
usually been considered as three miles.3 Perels, a German
writer of eminence, accepts the doctrine of Bynkershoek that
the sovereign jurisdiction of a state extends in the sea to the
; distance of a cannon-shot from the coast, and he says the ex-
tension of the boundary -line depends upon the range of cannon-
shot at the particular period, but is the same at any period
for all coasts. British and American publicists, he adds, have
generally adopted three miles as an equivalent, but this has not
usually been done by Continental authorities.4 Another writer,
Ferguson, gives a novel explanation of the reason why three
miles is generally adopted in practice. He says the distance
referred to is presumed to be the range of the coast defences,
but on the maxim that terrce dominium finitur ubi finitur
armorum vis, it should be stated to extend to any point on
the sea to which the cannon of actual coast defences on shore
can carry a projectile. Since, however, the carrying power of

1 The Law of Nations in Time of Peace, s. 172.

2 Trattato di Diritto Internazionale Pubblico, ii. c. 3, pp. 65-67.

3 In Fiore, Nouveau Droit International Public, note, p. 372.

4 Das Internationale 0/entliche Scerecht der Gegenwart, p. 21 et seq.

OPINIONS OF RECENT PUBLICISTS 685

any given cannon is such a vague measure, the three-mile
radius is generally adopted.1

In the opinion of Desjardins, the expression territorial sea
must be taken in the precise sense given to it by international
law. Maritime territory, he says, is only made effectively
inviolable at the real range of cannon from the coast, and the
laws of police or customs usually applied in time of peace can-
not prevail against a principle founded on the nature of things.
In his opinion a prize taken beyond three miles from the coast,
but within the range of guns, would be illegitimate, while it
would be legitimate within the particular limits fixed by a
neutral state if beyond the range of guns.2 Latour, another
recent French writer, also argues that the three-mile limit is
not necessarily the true one, but that it depends on the actual
range of guns from the shore.3 On the other hand, Professor
Kleen, in his work on the laws of neutrality, considers the
Scandinavian method of delimiting the territorial sea the
proper one, since the extent depends not only on the mainland
but on the " adjacent isles." Admitting that the distance from
the coast at which the external limit is fixed is, according to
the positive international law of to-day, determined by the
range of cannon, he thinks this measure is so susceptible of
change and controversy that it is desirable to replace it by
a fixed one, which ought not to be less than four marine miles.
The range of guns is much greater than four miles ; and there
are some coasts where the geographical configuration requires
that a larger area should be subject to the territorial state,
in order to avoid collision with foreigners as well as encroach-
ments on the natural rights of the inhabitants. He is of
opinion that Bynkershoek's doctrine was wrong in certain
respects: it reposed on a basis of brute force; the range of
guns differs in different countries and at different times ; and
the range of the most powerful modern gun is too much to
allow a state the exclusive possession of the sea up to that
distance from the shore. The range of guns, he says, is ad-
missible in respect of war and neutrality, but in all other
respects the distance ought to be fixed and mathematically

1 International Law, 399. 2 Droit Commercial Maritime, 10.

3 La Mer Territorial, 36.

686 THE SOVEREIGNTY OF THE SEA

determined independent of military force, and should be the
same everywhere.1

Another Scandinavian publicist, Professor Aschehoug, also
argues for a wide extent of territorial sea under international

o

law, according to the principles previously described. He
thinks that it is impossible to exclude from the territorial
sea of a people that space which is commanded by their
guns on shore ; and vice versa, this space is necessary to
preserve the shores from the projectiles of belligerents. The
state has all the rights of sovereignty in this area, as those
connected with neutrality, police, inspection, jurisdiction, and
the exclusive right of fishery and other usufructs, except
the right of forbidding navigation.2

The eminent Russian authority, Professor de Martens, ex-
presses a strong opinion that the three-mile limit is now
quite inadequate, and that a state has the power to extend
it. The only true boundary of the territorial sea is, he says,
the range of guns from the coast, Bynkershoek's aphorism —
terrce dominium finitur ubi finitur armorum vis — forming
the only legal and rational foundation for the delimitation.
Within the zone so determined the bordering state has exclusive
sovereignty and dominion, and the exclusive right of fishing.
The limit of the territorial waters ought therefore to change
with the modifications in the range of cannon. If at one time
the reach of guns was three miles, then the extent of the
territorial sea at that time was only three miles. If at the
present day, he says, cannon carry to twelve, or even fifteen,
miles, the territorial waters extend to the same distance.
De Martens, however, thinks that an international agreement
with regard to such limits is necessary to ensure the success
of the measures of protection established in the open sea
for the preservation of the legitimate interests of each nation,
especially with regard to fisheries. But he holds that until
such an international arrangement has been accomplished,
each state has the incontestable right to declare as its terri-
torial sea the waters which are dominated by batteries on
its coasts. In view of the necessity of precisely defining

1 Neutralitetens Lagar, i. s. 160 ; Annuaire de I'Institut de Droit International,
xii. 140.

2 Norges 0/entlige Ret, 79-81 ; Annuaire, xi. 141.

OPINIONS OF RECENT PUBLICISTS 687

the range of cannon, and the exigencies of international com-
merce, the bordering state, he says, may limit this distance
to a number of miles fixed by law ; and he himself advocates
a limit of ten miles, instead of three miles, as being more
in conformity with the actual range of guns, and better
fitted to protect the interests of the coast population who
subsist by sea fisheries.1

The latest English writer of authority on international law,
Mr W. E. Hall, who has given a lucid and philosophical
account of the territorial sea, is also of opinion that the
"three-mile limit is inadequate. The boundary, he says, is
generally fixed at three miles, but this distance was defined
by the supposed range of guns of position, and the effect
of the recent increase in the power of artillery has not yet
been taken into consideration, either as supplying a new
measure of the space over which control may be efficiently
exercised, or as enlarging that within which acts of violence
may be dangerous to persons and property on shore. "It
may be doubted," he continues, " in view of the very diverse
opinions which have been held until lately as to the exitent
to which marginal seas may be appropriated, of the lateness
of the time at which much more extensive claims have been
fully abandoned, and of the absence of cases in which the
breadth of the territorial waters has come into international
questions, whether the three-mile limit has ever been un-
equivocally settled; but in any case, as it has been de-
termined, if determined at all, upon an assumption which
has ceased to hold good, it would be pedantry to adhere to
the rule in its present form ; and perhaps it may be said
without impropriety that a state has the right to extend its
territorial waters from time to time at its will with the
increased range of guns; though it would undoubtedly be
more satisfactory that an arrangement upon the subject
should be come to by common agreement." In a later edition
of his work, which appeared after the results of the inter-
national conferences of publicists, to be presently referred to,
were known, he says that it is felt and growingly felt, not
only that the width of three miles is insufficient for the
safety of the territory, but that it is desirable for a state to

1 Revue, generate de Droit International Public, No. 1 .

688 THE SOVEREIGNTY OF THE SEA

have control over a larger space of water for the purpose
of regulating and preserving the fishery in it, the productive-
ness of sea fisheries being seriously threatened by the de-
structive methods of fishing which are commonly employed,
and in many places by the greatly increased number of fishing
vessels frequenting the grounds.1 A still later writer, Oppen-
heim, has apparently much the same opinion, for he says
,that although many states in municipal laws and inter-
lational treaties still adhere to a breadth of one marine league,
tAhe time will come when by common agreement of the states
Concerned such breadth will be very much extended.2

While there is thus some diversity of opinion among
Modern writers on the law of nations, both as to the
actual extent of territorial sea belonging to a state and in
respect to the principles which should govern its delimitation
in ; certain cases, there is all but universal acceptance of the
rul e that in general the limit is determined by the range of
guns. Practically all authorities are agreed that this is the
historical basis of the demarcation, and the majority of
pub Heists, as Schmalz, Kluber, B,eddie, Ortolan, Hautef euille,
Pisfypye and Duverdy, Masse, Bluntschli, Pradier - Fodere,
Law^rence, Perels, Desjardins, De Martens, and Aschehoug,
adh$ ire to it as the only true principle. This adherence to
Rjynkershoek's doctrine logically implies that the range of
artillery at any particular period governs the extent of the
territorial sea at that period, and several authorities, as Ortolan,
Lawrence, Perels, Desjardins, and De Martens, accept this
view in its bare and absolute form, while others, though
willing to agree to it as proper and reasonable, think that
a mutual arrangement on the subject is first of all desirable
or necessary, or that it applies specially to questions of
neutrality. There are very few writers, on the other hand, who
are of opinion that the three-mile limit has become established
in international jurisprudence as the legal limit, notwithstand-
ing that it is the limit commonly adopted. Calvo and Phillimore
are the most important authorities who take this view, but
both think the extent is too small and ought logically to
be increased owing to the greater range of artillery, — an

1 A Treatise on International Law, 4th edition, 1895, p. 160.

2 International Law, i. 242 (1905).

OPINIONS OF RECENT PUBLICISTS 689

opinion which is shared by Bishop, Woolsey, Fiore, and Hall.
Nearly all those who mention three miles as the boundary
of the territorial seas — and they are almost wholly English
or American — couple with it the alternative, "or the range
of cannon," as Wheaton, Manning, Halleck, Phillimore, Bishop,
Dana, Twiss, Ferguson, and Woolsey. In this they merely
adopt the language used by Lord Stowell at the beginning
of last century, and which was quite appropriate at the
time. But for more than half a century the range of guns
has exceeded three miles, and to use the terms now as if they
'were synonymous tends only to confusion. Some modern
publicists, it may be added, as Kent, Heffter, and Fiore,
follow Wolff and Vattel in the opinion that the limit of
territorial waters may be extended in certain cases beyond
the range of guns.

Moreover, quite lately the subject of the territorial sea has
been jointly and exhaustively inquired into by the leading
publicists of Europe, and with important results. In 1887 the
International Law Association appointed a committee to con-
sider the definition and regime of the territorial waters, and
two years afterwards the Institut de Droit International
followed the same course.1 A long series of questions was
circulated among the members to elicit their opinions on the
various points connected with the subject; the whole matter
was discussed and considered at various subsequent annual
meetings; and the rules as finally adopted and approved
by the Institute and the Association may therefore be

1 The Committee of the Association was composed of ten members — viz., Sir
Travers Twiss, President; Sir George Baden-Powell ; Hon. D. Dudley Field, New
York ; Dr F. Sieveking, President of the Hanseatic High Court of Appeal, Hamburg ;
Mr E. H. Schweigaard, Christiania; Rear-Admiral P. H. Colomb ; E. Edouard
Clunet, Paris ; Dr E. N. Rahusen, Amsterdam ; Mr T. H. Haynes ; and Mr (now Sir)
Thomas Barclay, Paris, who was Secretary. The Committee of the Institut com-
prised twenty -four members, including Sir Travers Twiss; Professor Westlake ;
Professor Lorimer ; M. Desjardins, Advocate -General of the Court of Cassation ;
Feraud-Giraud, Judge of the French Court of Cassation ; Harburger, Judge of
the Court of First Instance at Munich ; Hartmann, Privy Councillor, Hanover ;
Perels, Director of the German Admiralty; Marquis d'Olivart, Ex -Professor of
International Law, Madrid ; Edouard Rolin, Editor of the Revue de Droit Inter-
national; &c. M. Renault, the Paris Professor of International Law, was
appointed "reporter" to the Committee, but this position was soon occupied by
Sir Thomas Barclay.

2x

690 THE SOVEREIGNTY OF THE SEA

fairly taken as representing the latest views of European
publicists.

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

There was not the same agreement as to the limit which
should be recommended as the boundary of the territorial sea,
within which the rights of the state are much more complex,
and of which the extent should be precisely fixed. The histor-
ical principle of demarcation — the range of cannon — having
been transferred to the line of respect, the only other limit in
common use was the three-mile limit, and this was the distance
at first proposed by Sir Thomas Barclay in the draft rules,.

OPINIONS OF KECENT PUBLICISTS 691

•

mainly because it was the one which was usually recognised by
international usage. But the preponderating opinion of Con-
tinental publicists favoured a more extended boundary, in view
more particularly of the right of fishery, the distances proposed
varying from five to ten miles from low- water mark ; x and
Professor Auber, of Christiania, advocated the extension of
jurisdiction with respect to fisheries beyond the limit fixed for
the territorial sea, to apply equally to subjects and foreigners,
each state assigning boundaries for such jurisdiction, either
itself or by convention between the Powers interested, and a
similar proposal was made by the Canadian representative, who
suggested that the jurisdictional zone should extend to nine
miles. Owing to these opinions, and also to the report of the
Sea Fisheries Committee of the House of Commons in 1893,
presided over by Mr Marjoribanks (the late Lord Tweedmouth),
which proposed an extension of the territorial waters in the
interests of the fisheries,2 the three-mile limit was abandoned,
and one of six miles from low- water mark recommended instead.
This particular distance was selected in order to secure a limit
which would correspond to that of Spain and the Scandinavian
Powers, and thus make the practice in all European countries
more uniform.

With regard to bays, the draft proposal was at first to adopt
a base-line of six miles from headland to headland, and after-
wards one of ten miles, as in the fishery conventions, was
proposed. The Institut finally adopted a base-line of twelve
miles — i.e., double the width of the territorial zone, — but the
International Law Association preferred the old limit of ten
miles. The Scandinavian publicists were of opinion that these
limits were too small, and that instead of having a fixed and
rigid rule for the delimitation of bays, each state should be
permitted to fix the boundaries according to the local configur-
ation of the coast and the local requirements. While this
suggestion was not accepted, it was admitted that certain

1 Most of the English members who expressed their opinion, as Sir Travers
Twiss, Professor Holland, and Mr Moore, preferred to retain the limit at three
miles ; Professor Westlake favoured five miles.

2 Report from the Select Committee on Sea Fisheries, 1893 ; Seventeenth Rep.,
International Law Assoc., p. 103, 1896 ; Annuaire de V Institut de Droit Inter-
national, xiii.

692 THE SOVEREIGNTY OF THE SEA

bays whose width exceeded ten miles were necessarily, by their
situation, placed under the sovereignty of the neighbouring
state, as the Bay of Cancale, the Bay of Chaleur, and the
Scottish Firths.1

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

" II en est ainsi pour les firths e"cossais. . . . Toutes ces bales sont conside're'es
comme etant sous la domination exclusive de 1'Etat riverain." Annuaire, 23.

2 Annuaire de I' Institut de Droit International, x., xi., xii., xiii. Reports, Inter-
national Law Association, xv., xvi. , xvii.

693

CHAPTER V.

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

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

694 THE SOVEREIGNTY OF THE SEA

and with Denmark concerning Iceland, are instances in point.
The fishery interest is thus the determining interest, and the
one which has made these various conventions desirable.

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

The same need of a wider limit is .shown in the municipal
legislation of many countries, which was specially designed
with the object of preserving sea fisheries, as well as in certain
international agreements. There are two classes of sea fisheries
which have received special treatment beyond the ordinary
limits of territorial waters, and both on the same principle —

THE INADEQUACY OF THE THREE-MILE LIMIT 695

viz., that the action of man, if unrestrained, would lead to their
destruction and economic extinction. They are those for
marine mammals, as seals and cetaceans, and for certain shell-
fishes and coral. A considerable number of countries have
legislated for the preservation of seals, and some of the enact-
ments at least apply beyond the ordinary limits. Examples
may be found in the Canadian statute of 1886,1 which refers
also to whales and porpoises; the Russian law dealing with
the sealing industry in the White Sea; the Norwegian law
-fixing a close-time for whales in the Varangerfjord ; and the
concurrent international legislation of Great Britain, Sweden,
Norway, Russia, Germany, and Holland concerning the Jan
Mayen seal fishery in the Atlantic east of Greenland.'2 A
recent instance is afforded by the regulations which were
prescribed for British and American citizens and subjects by
the Tribunal of Arbitration for the purpose of protecting and
preserving the fur-seal in Behring Sea. By these regulations
the killing, capture, or pursuit of this animal was forbidden
within a zone of sixty geographical miles around the Pribilov
Islands, comprising about 15,000 square miles of sea; a close-
time was fixed between 1st May and 31st July on the high sea
within an immense area — viz., north of 35 degrees North
latitude and eastwards of 180 degrees West longitude; only
specially licensed sailing vessels, with canoes or undecked boats
propelled by paddles, oars, or sails, were at liberty to carry on
fur-sealing operations where and when the fishing was allowed ;
the use of nets, firearms, and explosives was forbidden, except
shot-guns outside of Behring Sea, and some minor conditions
were laid down.3

Another instance is the agreements entered into between
Russia on the one hand and Great Britain and the United States

1 49 Viet., c. 95.

2 38 Viet., c. 18 ; Order in Council, 28th November 1876.

3 Award of the Tribunal of Arbitration, p. 23. Declarations made by the Tribunal
of Arbitration, 1893. As the Behring Sea case has been often referred to in recent
controversies about the right of fishing, as having affirmed the three-mile limit as
the true international boundary of the territorial sea, the facts may be briefly
recalled. In 1867 the United States purchased from Russia the territory of Alaska
•with its dependent islands, &c. , and an American company, very powerful finan-
cially and politically, was formed in 1870, which obtained a lease of the Pribilov
Islands in order to engage in the fur-seal industry. Under the Act of Congress of
1870 which enabled this to be done, it was made unlawful to kill any seals upon
the islands, "or in the waters adjacent thereto," except during certain specified

696 THE SOVEREIGNTY OF THE SEA

on the other, by which a zone of ten marine miles on all the
Russian coasts of Behring Sea and the North Pacific Ocean,
and a zone of thirty marine miles round the Commander
Islands and Robben Island, were closed to sealing for the
fur-seal.1

The other class of fisheries referred to, for sedentary animals

months. Sealing vessels, both from the United States and from British Columbia,
began to frequent Behring Sea and the waters adjacent to the islands ; their com-
petition impaired the practical monopoly of the Company in the markets for seal-
skins ; and in 1886 three British vessels were seized by American revenue cruisers
at distances of 70, 75, and 115 miles from the land, and the masters and mates
were fined and imprisoned for illegal sealing. Up to 1890 other eleven British
sealers were similarly seized and dealt with for fishing at distances between 15 and
96 miles from land, and five others were ordered out of Behring Sea. In the
negotiations which followed, the American Government first pled a virtual mare
clausum for the whole of Behring Sea ; then that they had jurisdiction up to 100
miles from land ; and lastly, that they had special property in and right of protection
over the fur-seals in Behring Sea and frequenting the islands for breeding purposes.
The Tribunal of Arbitration decided that they had not this right of protection or
property " when such seals are found outside the ordinary three-mile limit." Then
the Tribunal, in terms of the treaty appointing them, prescribed the regulations above
referred to, leaving to Great Britain the honours of the contest, and to the United
States the advantage. The true lesson to be derived from this chapter of inter-
national diplomacy, is not that the high tribunal reaffirmed the three-mile limit as
the legal boundary of the territorial sea, which they did not do (see letter from
Baron de Courcel, the President, p. 664), but that that limit may be set aside and
a much wider boundary fixed (in this instance 60 miles) if the protection and pres-
ervation of a marine fishery require it. It may be added that of late years pelagic
sealing by Japanese has greatly increased in Behring Sea, and since the regulations
apply only to British and American subjects, the Japanese carry on their operations
up to the ordinary three-mile limit around the Pribilov Islands, and sometimes
within it, there having been several encounters with the American patrol • boats
involving loss of life, and heavy fines have been inflicted on offenders. In the
summer of 1908 a fleet of thirty Japanese schooners, some with sixteen boats, were
thus engaged, and according to the Government agent, they effectually blocked the
escape of the seals from the islands. The agent says that in the last ten years the
seal herds have diminished almost three-fourths, and if the slaughter by the Japanese
is not put a stop to, complete destruction of the industry will follow. Thus, while
the British are compelled to keep sixty miles off the islands, and can only kill the
seals with spears, the Japanese operate up to three miles from shore, and can use
firearms or any other method. It is stated that some of the British Columbia
sealers are endeavouring to nationalise their vessels in Japan, so that they may be
able to fish under the Japanese flag. In April 1910, when the lease of the Company
expired, the United States Government did not renew it, but took the seals under
their own protection, and an Act was passed prohibiting the killing of the fur-seal
unless authorised by the Secretary of Commerce and Labour.

1 Parl. Papers, Russia, No. 1 (1895). Correspondence respecting the Agreement
with Russia relative to the Seal Fishery in the North Pacific. Seal Fishery (North
Pacific) Act, 1893, 56 Viet., c. 23 ; Order in Council, 4th July 1893.

THE INADEQUACY OF THE THREE-MILE LIMIT 697

connected with the bottom, such as oysters, pearl-oysters, and
coral, which are found in shallow water, as a rule, and usually
near the coast, have always been considered as on a different
footing from fisheries for floating fish. They may be very
valuable, are generally restricted in extent, and are admittedly
capable of being exhausted or destroyed ; and they are looked
upon rather as belonging to the soil or bed of the sea than to
the sea itself. This is recognised in municipal law, and inter-
national law also recognises in certain cases a claim to such
- fisheries when they extend along the soil under the sea beyond
the ordinary territorial limit. Cases in point are the pearl-
fisheries on the banks in the Gulf of Manar, Ceylon, which
extend from six to twenty-one miles from the coast, and are
subject to a colonial Act of 1811, which authorises the seizure
and condemnation of any boat found within the limits of the
pearl-banks, or hovering near them : boats or vessels navigating
the inner passage are prohibited from hovering or anchoring
in water deeper than four fathoms, and those navigating the
outer passage from hovering or anchoring within twelve
fathoms. These pearl-fisheries are very valuable, and have
been treated from time immemorial by the successive rulers of
the island as subjects of property and jurisdiction; and the
laws referred to apply also to foreigners. Another case is the
pearl-fisheries in Australia. In Western Australia certain Acts
are applied far beyond the three-mile limit, though apparently
only against British subjects,1 and a similar Act, of 1888,
applied in Queensland to extra - territorial waters west of
Torres Strait. The pearl-fisheries of Mexico and Columbia are
also subject to regulation beyond the ordinary three-mile limit.
Examples of extra-territorial jurisdiction over beds of the
common edible oyster are to be found in the British conven-
tions with France in 1839 and 1867, by which the Bay of
Granville was reserved to France (see p. 612), and in the last
of these conventions (Article ix.) a close-time was provided
in the English Channel ; and likewise in the proceedings
concerning the Arklow and Wexford banks, off the Irish coast
(see p. 621). Coral-beds in the Mediterranean, off the coasts
of Algeria, Sardinia, and Sicily, are in a similar way regulated

1 The Western Australian Pearl and Beche-de-mer Fishery (Extra-Territorial)
Act, 1889.

698 THE SOVEREIGNTY OF THE SEA

by Italian and French laws beyond the ordinary three-mile
limit.

Even in regard to the class of fisheries for what is termed
"floating" fish — that is to say, the ordinary fisheries for sea
fishes, carried on usually by nets and lines — there are a number
of enactments conferring jurisdiction, or which have conferred
jurisdiction, beyond the distance of three miles from shore.
Old English and British Acts, previously referred to (p. 608),
fixed limits of four-and-a-half and five miles from the coast,
within which distance the use of certain apparatus, as drag-
nets and trawls, was prohibited. In the Herring Fishery Act
of 1808, which provided for the appointment of commissioners
for the herring fishery, and for the regulation of the fishery
and the curing of herrings, jurisdiction was extended over " all
persons " engaged in catching, curing, and dealing in fish in all
the lochs, bays, and arms of the sea, and also within ten miles
of the coasts.1 At the Isle of Man an Act of Tynwald pro-
hibited herring-fishing at a certain season within nine miles
of the shore,2 and other instances might be given where
municipal Acts extended jurisdiction beyond the ordinary
three-mile limit for similar purposes.

It is, however, in connection with the great development of
trawl-fishing from steamers in recent years, that the question
of the inadequacy of the ordinary three-mile limit for the pre-
servation and regulation of fisheries has been brought to the
front, and it is around this method of fishing that most of the

1 An Act for the further Encouragement and better Regulation of the British
White Herring Fishery, 48 Geo. III., c. 110, s. 60, 46. Section 60 : "And whereas
it may be useful to provide a jurisdiction for preserving order and settling disputes
among persons carrying on the fishery for herrings on the coast and in the lakes
of Scotland ; be it therefore enacted, That the jurisdiction of the sheriffs and
Stewarts depute of Scotland, and their substitutes, shall be extended over all
persons engaged in catching, curing, and dealing in fish in all the lochs, bays, and
arms of the sea within their respective counties and stewartries, and also within ten
miles of the coasts of their said counties and stewartries, and that in as full and
ample a manner as the same is exercised over the inhabitants of these counties and
stewartries ; and if any loch, bay, or arm of the sea shall adjoin to two or more
counties or stewartries, or any part of the sea shall be within ten miles of the
coasts of two or more counties or stewartries, the sheriffs and Stewarts of the said
counties shall have and exercise a concurrent jurisdiction over such persons as
aforesaid, in any such loch, bay, or arm of the sea which shall be in or opposite to
their respective counties and stewartries, or any part of the sea within the aforesaid
distance of the coast thereof."

2 Report of Commission on Sea Fisheries, 1863, p. Ixvi.

I

THE INADEQUACY OF THE THREE-MILE LIMIT 699

controversies affecting the territorial waters, at least in Europe,
have gathered.1 It is therefore necessary to understand some-
thing about it, and how it is that it has given rise to demands
for the extension of the ordinary limits and for the closure of
large areas beyond these limits. It is the most effective and at
the same time the most destructive method of fishing ever made
use of. It differs from hook-and-line fishing, in which only a
few kinds of fish are taken at the same time, according to the
size of the hook and the kind of bait, and from gill-net or drift-
net fishing, which is adapted, according to the dimensions of
the mesh, to capture a particular fish, as herring or mackerel.
Trawling consists essentially in dragging along the bottom of
the sea a great bag of netting, which captures a large variety of
fishes, big and little ; and it may involve, at certain places and in
certain seasons, the destruction of immense quantities of edible
fishes too small to be marketable, and which are thrown back,
dead, into the sea.2 It is a very old method, but until about a
century ago it was confined on the British coast to the mouth of
the Thames and neighbourhood and to certain localities in the
Channel, its headquarters being Barking and Brixham. Trawling
was then restricted to shallow water ; the boats were small and
the trawls were such as a man could carry on his shoulders. At
the close of the French war, Brixham trawlers began to migrate
eastwards, prospecting for new grounds, fixing their temporary
headquarters first at Dover, then at Ramsgate in 1818, and at
Harwich in 1828. Continuing their explorations, the Dutch
coast was visited about 1830 and the southern part of the
Dogger Bank a few years later, and in 1837 a great impetus
was given to trawling by the discovery of enormous quantities
of soles in the Great Silver Pit, south of the Dogger. Trawlers
flocked thither from all quarters ; the Brixham men fixed upon
Hull, first as their temporary, and then as their permanent home,
and from this time North Sea trawling was firmly established.
It was not until 1858, little more than half a century ago, that
trawlers began to be employed from Grimsby, which is now by
far the greatest fishing -port in the world. Gradually the

1 Trawling, and, in particular, steam- trawling, is practically unknown in America ;
but in recent years French steam-trawlers have begun to frequent the Newfound-
land banks.

2 Annual Reports, Fishery Board for Scotland ; Journal of the Marine Biological
Association, die.

TOO THE SOVEREIGNTY OF THE SEA

enlarging fleets of trawlers pushed northwards and eastwards
as new grounds were discovered. By 1860 the whole of the
Dutch coast and the coast of Schleswig was frequented; ten
years later the Danish coast was included, and, for the first
time, the whole of the Dogger Bank, as well as large areas
north and west of it, off the coast of England and Scotland.
About 1875 the Great Fisher Bank, which lies about 200 miles
east of the Scottish coast, began to be visited, and in 1891 the
English trawlers boldly pushed on to Iceland, where enormous
catches of fish were obtained.

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

There has thus occurred during the last generation or so an
enormous development in the extent and efficiency of trawl-
fishing. The British fleet since about 1835 has grown from
some 200 small vessels, of twenty to twenty-four tons, and
using trawls of from twenty to thirty feet beam, to an ag-
gregate of 3170 vessels in 1907, of which 1609 were steamers

THE INADEQUACY OF THE THREE-MILE LIMIT 701

and 918 deep-sea sailing smacks.1 These figures, however,
convey but little impression of the real increase in the catching
power. It has been computed, both by practical men and by
scientific experts, that the modern steam otter-trawler is approx-
imately eight times more effective in catching fish than was one
of the large sailing smacks of a generation ago,2 and thus the
British deep-sea trawling fleet in 1907 was equal to about 13,790
of the older sailing smacks. But in addition to these there are
the foreign steam -trawlers which fish on the same grounds,
for many other countries have followed the English example
in developing deep-sea trawling. The aggregate number of
such vessels at the end of 1907 was about 634, of which 224
were French, 239 German, and 81 Dutch;3 and they would
represent 5072 sailing smacks, so that the total trawling fleet
of Western Europe was then equal to about 18,862 of the
sailing trawlers of twenty or thirty years ago, the sailing
trawlers in use on the Continent being left out of account.
It has been calculated that the area of the sea-bottom which
is swept each day by the nets of this great fleet is equal to
about 2000 square miles.

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

With regard to the first, there have been many inquiries
made by Royal Commissions and Parliamentary Committees,
as well as by fishery departments and experts, which show
that the excessive fishing has depleted the older banks. In the
first of these inquiries, which began in 1863, when there were
only from 650 to 700 smacks trawling in the North Sea (and
then only in a part of it), the reporters expressed their belief

1 For the earlier periods the statistics are incomplete. In 1863 the number of
sailing trawlers was 955, of which 650 to 700 fished in the North Sea, 530 belonging
to Ramsgate, Yarmouth, Grimsby, and Hull ; in 1883 the aggregate was estimated
at 3000, some being large vessels of ninety tons ; in 1889 there were 230 steamers
and 2323 smacks ; in 1899 the steamers numbered 1186 and the smacks 1637.

2 Garstang, The Impoverishment of the Sea, Journal Marine Bid. Assoc.,
vol. vii. p. 47, 1900.

3 Return of the Number of Steam Trawlers registered at Ports in the States of
Western Europe in the Year 1907, Parl. Papers, Cd. 4236, 1908.

702 THE SOVEREIGNTY OF THE SEA

that this method of fishing " in the open sea " was not waste-
fully destructive, and required no legislative interference, for
if any ground were over-fished, the fishing there would become
unprofitable, and the trawlers would go elsewhere.1 The next
Commission, in 1878, by which time trawling had greatly
developed, came to much the same general conclusions ; but
they found that a decrease of soles had occurred, and also a
decrease of plaice and flounders in some localities, and they
recommended that power should be given to the Secretary of
State to forbid trawling " in any of the territorial seas," which
power was conferred in 1881.2 This inquiry was noteworthy
as first revealing coniplaints by the trawlers themselves of the
diminution of certain fish and the impoverishment of inshore
grounds, and for the advocacy by Grimsby smack-owners of
the prohibition of trawling at localities where small fish abound,
as the inlets on the Dutch and German coast, the Wash, and
off Yarmouth, and even within a nine-mile limit all round the
shores of the North Sea. At the next Commission of inquiry,
in 1883, the complaints of the trawlers were stronger, and the
remedies they proposed more drastic. Those of Hull and
Grimsby stated that the numbers of flat fishes, particularly
soles, had much diminished ; that the nearer grounds were
impoverished, and that they had to go much greater distances
for their supplies of fish. They expressed the belief that most
damage was being done by trawling along the coasts, especially
on the Continental side of the North Sea, and that the most
effectual remedy would be to prohibit trawling within a ten-
mile limit around the whole of the North Sea coasts. The
conclusions reached by the Commission were that soles had
decreased, and also flat fishes and haddocks in many parts of
the territorial waters between Grimsby and the Moray Firth,
and they recommended that the Scottish Fishery Board should
receive powers to regulate or suspend trawling within terri-
torial waters.3

1 Report of the Commissioners appointed to inquire into the Sea Fisheries of the
United Kingdom, vol. i., 1866. The late Professor Huxley and Mr Shaw Lefevre
(now Lord Eversley) were two of the commissioners.

2 Report on the Sea Fisheries of England and Wales, 1879 (C.— 2449). The com-
missioners were Mr Frank Buckland and Mr (afterwards Sir) Spencer Walpole.

3 Report of the Commissioners on Trawl -Net and Beam -Trawl Fishing, 1885
(C.— 4328).

57°

Fig. 26. — Showing the three-mile limifyind a thirteen-mile limit in the North Sea.

704 THE SOVEREIGNTY OF THE SEA

From this time onwards the demand of the trawlers for some
legislative restrictions on trawl-fishing increased to a clamour.
At a conference of practical fishermen held in 1883, in con-
nection with the International Fisheries Exhibition at London,
statements were made by trawlers as to the enormous de-
struction of under-sized fish and the depletion of the grounds,
and a resolution was passed calling upon the Government to
bring about an international conference to consider the desir-
ability of recommending legislation.1 At another conference,
in 1888, they declared that a large and distressing diminution
of flat-fishes had occurred in the North Sea ; that they viewed
the future with alarm unless some steps were immediately
taken to protect immature fishes; and they called upon the
Government to try to arrange for an international law for the
purpose.2 As no result followed from the representations to
the Government, the trawl -owners on the East Coast took
independent action in 1890, and formally agreed, as a prelimin-
ary step, to prevent their trawlers from fishing in the summer
within a very large area of extra-territorial water off the
German and Danish coasts, where immature fish were gen-
erally caught in great abundance. The line of closure of
this area extended along the coast for 130 miles, passing, to
the west of Heligoland, at a distance varying from twenty

1 " That taking into consideration that the question of the destruction of im-
mature fish is one of international importance, it is, in the opinion of this meeting,
imperative in the public interest that an International Conference be held to con-
sider the desirability of recommending legislation upon the subject ; and this
meeting of practical fishermen further requests of Her Majesty's Government to
take immediate steps to bring about such Conference at the earliest possible date."
Fisheries Exhibition Literature, vol. iv. pp. 346, 355.

2 Conference of Representatives of the Trawl-Fishing Industry, held at the Inns
of Court Hotel, London, 13th November, 1888. " 1. That we find a large and dis-
tressing diminution in the North Sea of soles, turbot, plaice, and all flat fish,
and view with alarm the future, unless some steps are immediately taken to pro-
hibit the catching of immature fish." 2. "That the Conference petition Her
Majesty's Government, urging them to enter into negotiations with all Conti-
nental Governments to establish an international law to prohibit the wilful catching
of immature fish, and to make it unlawful to offer such immature fish for sale."
3. " That copies of the resolutions be forwarded to the President of the Board of
Trade asking for immediate action, and to the President of the National Sea
Fisheries Protection Association, asking that Association to undertake the respon-
sibility of a measure for legislation, and to do all they can for the protection of
immature fish in and around the coasts of the North Sea and other coasts of the
United Kingdom upon which breeding-grounds exist. "

2 Y

706 THE SOVEREIGNTY OF THE SEA

to over fifty miles from the shore, and embracing no less than
about 3600 square (geographical) miles of water lying outside
the three-mile limit as defined by the North Sea Convention.
The Conference also pressed for legislation of a national and
international character to prevent the sale and purchase of
immature fish, and they defined what they meant by that
term.1 For some time at least the vessels of the great trawl-
ing companies abstained from fishing within the large area
above referred to, but the voluntary arrangement fell through
owing to the action of independent "single-boaters," and the
grounds were never effectually closed. The Government went
so far to meet the wishes of the trawlers as to issue, through the
Foreign Office, invitations from the National Sea Fisheries Pro-
tection Association to various Continental Governments to send
delegates to a conference in 1890, and representatives from Bel-
gium, France, Denmark, Germany, the Netherlands, and Spain
attended a meeting at Fishmongers' Hall in that year, but no
representative of this country was present in an official capacity.
Statements of the usual kind were made as to the impoverish-
ment of the fishing -grounds and the necessity of remedial
measures in order to keep up the fish supply, and it was

1 Conference of the Trawl-Fishing Industry of the East Coast Ports, held at
Hull, 30th April 1890. 1. "That this Conference of the Trawl-Fishing Industry
of the East Coast, consisting of delegates from Hull, Grimsby, Yarmouth, Lowes-
toft, Scarboro', and Boston, having realised the enormous loss which the trade has
sustained year by year through the wholesale capture and destruction of immature
and inedible fish, hereby resolves that the time has come when a strong and united
effort should be made to put a stop to this growing evil ; and as a preliminary step
in this direction, it is agreed by the whole of the delegates here assembled, for
themselves individually and the Companies, Corporations, Fleets, and Associations
they represent, to abstain during the coming summer from fishing on the grounds
where immature fish are generally caught in great abundance, such grounds being
specified in the next Resolution." 2. "That the Fishing Grounds or Nurseries
where experience has found immature fish to be most prolific, and which are
referred to in the foregoing Resolution, shall be defined as follows : That part of
the North Sea the Eastern Boundary of which is the German and Danish Coasts ;
the Western Boundary, Longitude 7 deg. 30 min. ; the Northern Boundary, Lati-
tude 56 deg. ; the Southern Boundary, 53 deg. 50 min." The third resolution
defined immature lemon soles, soles, turbot, brill, and plaice ; and the fourth ex-
pressed the opinion that it was " highly necessary for the future wellbeing of the
trade, and for the preservation of an important food -supply, that Parliament
should be asked to impose restrictions upon the sale and purchase of immature
fish " ; and the delegates were instructed to press for legislative interference,
national and international.

THE INADEQUACY OF THE THREE-MILE LIMIT 707

resolved, in view of an official international conference being
called, to circulate a set of questions regarding the scientific
and statistical aspect of the subject.1

The complaints continuing as to the deterioration of the
fisheries, the Government in 1893 appointed a Select Committee
of the House of Commons to inquire into their condition and
to report as to what remedies might be required. The trawlers
again gave strong evidence as to the impoverishment of the
grounds in the North Sea from over-fishing, the banks having
. been " fished out " in succession as they were discovered, so that
they were compelled to go to distant regions, as Iceland and
the Bay of Biscay, to keep up the supplies. Some of them still
pressed for an extension beyond the three-mile limit and the
prohibition of trawling within ten miles from the shore,
especially on the foreign coasts on the eastern side of the
North Sea, and in particular that large areas in the extra-
territorial waters should be closed by international agreement.
The prohibition of the sale of immature flat fishes was also
strongly advocated as an indirect means of closing these
grounds. The Committee reported that the evidence of all
classes of witnesses, "whether trawlers or linesmen, smack-

1 International Conference of Representatives of Maritime Powers convened
under the auspices of the National Sea Fisheries Protection Association, to discuss
the Question of Remedial Measures necessary to be taken for the Preservation and
Development of the Fisheries in the Extra-territorial Waters of Europe, 1890.
Minutes of Proceedings. The Conference passed a resolution that an official
international conference of European maritime powers should be held with the
view of concluding a convention for the preservation of undersized fish ; and
another, proposed by Dr P. P. C. Hoek, the delegate for the Netherlands, that
before such a conference met, " the different nations interested in the sea fisheries
of European waters should collect, with as little delay as possible, sufficient in-
formation, scientific as well as statistical, with regard to the damage done by the
capture of undersized fish by their fishermen." The author, who was present,
conscious of the advantages of international co-operation, if the programme and
conditions were appropriate, proposed that Dr Hoek's resolution " should be modi-
fied in the way of recommending that a joint scheme of investigation might be
drawn up by the countries concerned " ; and on the motion of Captain C. F.
Drechsel, the delegate for Denmark, who approved of it, the delegates adjourned
to consider this proposal. The result, however, was merely the tabling of a
resolution, which was adopted, "That the National Sea Fisheries Protection
Association be requested to formulate a set of questions with a view to obtain-
ing scientific and statistical information in relation to undersized fish, and forward
it to each delegate, in order that he may submit it to his Government for adoption "
— with what result does not appear. Ibid., pp. 21, 34, 36, 37.

708 THE SOVEREIGNTY OF THE SEA

owners or fishermen, scientific experts or statisticians," showed
that a considerable diminution had occurred among the more
valuable classes of flat-fishes in the North Sea, which was to be
attributed to over-fishing by trawlers in certain localities ; and
they recommended that the sale of undersized flat-fishes should
be forbidden, and that the three-mile limit should be extended
for fishery purposes alone, provided it could be effected on an
international basis.1

It does not appear that any action was taken by the British
Government in consequence of this report ; and as the trawlers
had failed to get the large area off the German and Danish
coasts closed to them directly, they got a Bill introduced into
Parliament to prohibit the sale of undersized flat-fishes, in the
belief that an enactment of that kind would result in closing
the grounds indirectly. The reasoning on which they proceeded
was this. Trawling, to be remunerative, depends upon the
capture of a variety of fishes, and it is not possible by an
enlargement of the mesh of the net to allow of undersized flat-
fishes escaping, without also and at the same time permitting
the escape of numerous large marketable round -fishes, as
haddocks, as well as of many marketable soles, and fishing
under such conditions would be unprofitable. It was also
known that it would be futile to return to the sea the under-
sized fishes after they had been brought on board, because in
commercial trawling they are dead or moribund, and might as
well be taken ashore as thrown back into the water. It was
admitted that the only effective way to protect the immature

1 " Your Committee are sensible of the difficulties of making international regu-
lations, but are nevertheless of opinion that the best method for effectively govern-
ing the operations of the various classes of fishermen, and, at the same time, for
securing, so far as it may be found possible, the proper protection of spawning
and immature fish, would be to throw the responsibility of these duties, so far as
the waters immediately adjacent to the various countries are concerned, on those
various countries ; that, for the effective realisation of this object, the present
territorial limit of three miles is insufficient, and that, for fishery purposes alone,
this limit should be extended, provided such extension can be effected upon an
international basis, and with due regard to the rights and interests of all nations.
Your Committee would earnestly recommend that a proposition on these lines
should be submitted to an international conference of the Powers who border on
the North Sea." Report from the Select Committee on Sea Fisheries, 377, 1893.
The Chairman of the Committee, which consisted of fourteen members, was Mr
Marjoribanks (the late Lord Tweedmouth) ; among the others were Sir Albert
Rollit, Mr Buchanan, and Mr (now Lord) Heneage. The report was presented
to the House of Commons and ordered to be printed on 17th August 1893.

THE INADEQUACY OF THE THREE-MILE LIMIT 709

fish was to prevent the trawl from being used on the grounds ;
and if this could not be done by direct closure of the area, it
might be accomplished by prohibiting the sale of undersized
flat - fishes generally ; for on these particular " small fish "
grounds, or " nurseries," large fishes are so scarce that trawling
is remunerative only by reason of the great quantity of small
fishes taken. If the sale of these were forbidden, then trawling
in such localities would cease. For an enactment of this kind
to succeed, it was obviously necessary that it should apply to
the whole kingdom, and it was opposed by fishermen on other
parts of the coast ; and as it was felt to be extremely problem-
atical whether it would secure the cessation of trawling on
the small -fish grounds without at the same time injuriously
affecting the fisheries on our own coast and raising the price of
fish, the Bill was abandoned. Several subsequent Bills of the
same kind shared the same fate, usually after a more or less
exhaustive inquiry by a Parliamentary Committee. One of
those Committees, consisting of thirteen members of the House
of Commons, took evidence in 1900 from the representatives of
the trawlers and others, of the character previously described,
advocates of the Bill admitting that in their view it was a
tentative measure, and that the direct closure of the grounds
would be preferable. The Committee thought that it was
proved beyond all doubt that there was a serious diminution
of flat-fishes, particularly in the North Sea ; that the ancient
fishing - grounds were much depleted ; that the evil was a
growing one, and that in default of a remedy the consequences
would be disastrous to the industry.1 One of the causes of the
diminution was found to be the vast destruction of immature

1 Special Report and Report from the Select Committee on the Sea Fisheries Bill,
1900 (287) : "Your Committee think that it is proved beyond doubt that there
is a very serious diminution of the supply of certain kinds of flat-fish, particularly
in the North Sea. Of late years the total quantity of such fish caught has re-
mained nearly stationary. This fact, when taken along with the enormously in-
creased catching power and the vastly larger area of sea subjected to fishing
operations, seems to show that the ancient fishing-grounds are much depleted.
The whole of the local evidence, differing in many other respects, is practically
unanimous as to this point. It seems clear that the evil is a growing one, and
that in default of a remedy the consequences to the fishing industry in the dimin-
ished supply of flat-fish will at no very distant future be disastrous." The late
Mr (afterwards Lord) Ritchie, President of the Board of Trade, Mr Graham
Murray (now Lord Dunedin), and Captain Sinclair, now Lord Pentland, Secretary
for Scotland, were members of the Committee.

710 THE SOVEREIGNTY OF THE SEA

fish, the direct remedy for which, the Committee said, was
either the prohibition of the taking and killing of such fish, or
the prohibition of fishing within areas where small fish abound.
They were of opinion that the former was practically impossible
without prohibiting trawling altogether, while the areas where
the small fish congregate could only be closed by a joint inter-
national arrangement. The indirect remedy was that proposed
by the Bill, and, for reasons such as are stated above, they felt
it would not be expedient to pass the Bill into law without
further inquiry and investigation. The Committee were of
opinion that the subject of the diminution of the fish supply
was a very pressing one, and that the situation was going from
bad to worse, and they recommended that no effort should be
spared, first, to arrange for international treatment of the
subject generally, and especially for regulation of the North
Sea area ; and second, to provide for the adequate equipment
of the Government Departments in charge of the subject.1

The trawlers still pressed for legislation to deal with the
wasteful destruction of undersized fish, and continued to pass
resolutions on the subject ; 2 and another and somewhat modified
Bill was introduced into the House of Lords in 1904 by the
Department of Agriculture and Fisheries, and remitted to a
Select Committee of that House. The Committee, after taking
much evidence of the usual kind, stated their opinion that the
ideal manner of protecting the fishing-grounds in the North Sea
where young fish abound would be by an international agree-
ment between all the Powers concerned, and they expressed the
hope that the Government would not relax its efforts to secure

1 "Your Committee feel that the subject of the diminution of the fish supply
is a very pressing one, and that the situation is going from bad to worse. In
their view, no effort ought to be spared (1st) to arrange for international treat-
ment of the subject generally, and especially for regulation of the North Sea area ;
and (2nd) to provide for the adequate equipment of the Government Departments
in charge of the subject, so that they may effectively pursue scientific investigation
and ascertain with sufficiency and precision what has been done, either in the way
of scientific research or in the matter of practical legislation, by other inquirers and
by other countries, with the view of determining whether any, and if so what,
legislation may be desirable to effect the objects of the Bill." Ibid., iv.

E.g., " That this conference regards as conclusive the evidence of a widespread
diminution of the supply of food fishes in the North Sea and adjacent grounds, and
is of opinion that the only practicable remedy is the prevention of landing and
sale of immature and undersized fish." Nat. Sea Fisheries Protection Ass., 1902.

THE INADEQUACY OF THE THREE-MILE LIMIT 7ll

such a convention. It was thought that, as the first step
towards attaining this result, the Bill ought to be passed
into law ; but the opposition to it was too strong, and it
shared the fate of its numerous predecessors.1

The statements of the trawlers that the older fishing-grounds
are impoverished, particularly those in the North Sea, are
borne out by the results of statistical and scientific inquiries.
It was calculated by Professor W. Garstang that the average
catch of bottom fishes, per fishing unit, decreased in the North
.Sea in the ten years 1889 to 1898 from 60'6 to 32*3 ; or, in other
words, that while the average take of each trawling smack in
1889 was sixty tons, it was only about thirty-two tons in
1898.2 The official statistics published annually by the Board
of Agriculture and Fisheries show that the quantity of bottom
fishes taken from the North Sea is declining, while on the
other hand the quantity landed in this country from distant
waters is greatly increasing.3

This brings us to the second point, in which the immense
development of trawling touches upon the question of terri-
torial waters — namely, the flocking of the trawlers to new
grounds on foreign coasts. As the North Sea became, com-

1 Report from the Select Committee of the House of Lords on the Sea Fisheries Bill
(H.L.\ 1904 (36). The Earl of Onslow, Lord Tweedmouth, and Lord Heneage
were members of this Committee.

2 Op. cit.

3 Thus from the year 1903 (when these statistics begin) to 1906 the number of
tons of bottom fishes landed on the East Coast of England by first-, second-, and
third-class fishing vessels, from the North Sea and from beyond the North Sea,

was as follows : —

1903. 1904. 1905. 1906.

From North Sea . . 260,313 230,975 207,440 217,567

From beyond the North Sea 67,625 78,216 93,395 129,697

The particulars for all coasts are only given for 1906, and they show that almost
half of the total supply of bottom fishes in England and Wales come from grounds
outwith the North Sea. The figures are : from North Sea, 217,571 tons ; from
beyond the North Sea, 203,863 tons. Captain Walter S. Masterman, of the Board
of Agriculture and Fisheries, in a valuable report on his research work in the
North Sea, states that while the total quantity of bottom fishes taken within the
North Sea by steam-trawlers and landed 011 the East Coast of England has de-
creased in the four years, 1903-1906, by 39,650 tons, or nearly 17 per cent, the
decrease in flat fish has amounted to 23,590 tons, or nearly 42 per cent ; and that
" the decrease has been continuous from year to year, especially in the case of
plaice. " Report on the Research Work of the Board of Agriculture and Fisheries in
relation to the Plaice Fisheries of the North Sea, 1908 (Cd. 4227).

12

THE SOVEREIGNTY OF THE SEA

Fig. 28. — Chart showing the Fishing-grounds frequented by British trawlers. Depths
under 100 metres represented hi black ; those from 100 to 200 metres in shading.
From Report of the Board of Agriculture and Fisheries for 1906.

paratively speaking, more and more exhausted, the vessels
were compelled to go farther and farther away in order to
maintain the supply.1 The grounds at Iceland, now so impor-

1 A leading representative of the trawling industry, Mr G. L. Alward, thus de-
Bcribed the process to the Committee of the Lords in 1904. The diminution, he said,
was from over-fishing, " first of all in our original old fishing-grounds. We denuded
those, and found less year by year as time went on. We then discovered new
grounds, with, in process of time, the same result. In going back original!}', say
to about 1830 to about 1890, we found, at ground after ground, after being fished for
a few years, the same results ; the fish became scarcer and scarcer." Report, p. 78.

THE INADEQUACY OF THE THKEE-MILK LIMIT 7 17

tant not only to the British trawlers but to the Germans and
the French, were first visited in 1891, and those in the neigh-
bourhood of the Faroe Islands a little later. The oper-
ations of the trawlers were at first limited to the south-east
coast, but the catches were so enormous, and the enterprise
so profitable, that large and seaworthy vessels were specially
built for this fishing, which became one of the most im-

O'

portant for the English markets.1 Then the grounds in
the Bay of Biscay and those on the coasts of Spain and
.Portugal began to be frequented, mostly from about the year
1902; and in the next year the operations of the trawlers
were extended farther south to the coast of Morocco, as far at
least as Agadir (20 deg. N. latitude), and even in some cases
to the coast of Mauritania in French West Africa, The vessels
fishing in these southern regions, many of them being fitted
with refrigerating rooms, land a considerable proportion of
their fish in Portugal and elsewhere. A year or two later,
in 1905, the enterprising English trawlers opened up new
grounds far away to the north-east in Barents Sea, at the very
borders of the perpetual ice of the Arctic regions, and increas-
ing numbers make the long double voyage of some 3500 miles
thither every summer, and bring back from the neighbourhood
of Cape Kanin great quantities of plaice for the English markets.
Thus the great enterprise and energy of British trawlers,
supported by large capital, have enabled them to exploit the
available grounds from far beyond the Arctic circle almost to
the tropics, and it is from those distant regions that an increas-
ing proportion of the fish supply is being drawn.2 The influx
of alien vessels, the most powerful and efficient fishing machines
in existence, along these foreign coasts is not, as was naturally
to be expected, viewed with satisfaction by the native fisher-
men. They see the fishing-grounds which they had so long

1 The quantity brought to England from Iceland and Faroe in 1907 was nearly
117,000 tons, or nearly 26 per cent of the total quantity of bottom fishes landed.
Board of Agriculture and Fisheries Annual Report on Sea Fisheries for 1907.
Schmidt, Fiskeriundersfyelser ved Island og Fcerifierne i Sommeren, 1903, p. 132.

a A sidelight is thrown upon the risks as well as the enterprise of their labours
by the fact that in 1908 a trawler's crew, on the one hand, fishing on the coast of
Africa, fell into the hands of the Moors ; while another, whose vessel was wrecked
near the White Sea, were saved from starvation by the kindness of Russian Lap-
landers, who killed reindeer for their sustenance.

THE SOVEREIGNTY OF THE SEA

been accustomed to consider as their own — in many cases lying
within the territorial waters preserved to them by the laws
of their own country, though possibly outside "the ordinary
three-mile limit" — invaded and exploited by foreigners, and
their own livelihood threatened. They fear that what has
occurred in the North Sea will happen along their own coasts ;
that the fishing-grounds, often of limited extent, will be im-
poverished and exhausted for the sole benefit of the foreigners,
and their efforts to maintain themselves and their families
rendered difficult or impossible. They observe from their
boats the immense hauls of fish made by the huge trawl-nets,
and the great waste that is often involved.1 One cannot be
surprised that the fishermen, and those who sympathise with
them, feel indignation at the invasion of their waters by foreign
trawlers, and that great meetings have been held, as in Spain
and Portugal, to demand redress, and that at least the same
limit as applies to natives pursuing similar methods should be
enforced on the foreigners, or an international conference called
to arrange for an equitable limit, or equitable treatment, which
would have regard for the rights of all concerned.2

From the foregoing description of the problems associated

1 Trawlers, on discovering new and productive grounds, invariably select out the
fish that are most remunerative and throw the rest back into the sea. " Hundreds
of thousands of tons " of immature fish are said to have been destroyed in this way
in the North Sea, and what has happened at Iceland with regard to mature fish
is tlms described in a letter from one trawler to another, which was read by the
recipient to the Parliamentary Committee in 1893 : " Dear Manton, . . . At
present the trawlers who are running Iceland are throwing thousands of tons of
good mature fish away, which, if some scheme of storage were got up, the fish
sorted, and bought for food, would supply thousands in the year. I have been to
Iceland, and we have to throw away hundreds of tons of good mature fish, such
as haddock, supposed to be too large, and great quantities of cod, ling, and other
fish. The fact is, the ground, which is valuable for fishing, is completely rotten
with the refuse from the trawlers. We have to haul every two hours, and we have
to carry extra hands to get rid of the fish and get the bit below we choose to save.
The ground is fairly poisoned, and the plaice-fishing not so brisk, only in odd places ;
whereas before it was more general where there is any trawling ground" (Report
cit., p. 248). The grounds had only been recently opened up when this was written.
It is different to-day, when 85 per cent of the fish brought back from Iceland are
round fish, chiefly haddocks and cod (Ann. Rep. Sea Fisheries for 1906, App., p. 15).
It used to be the same in the North Sea, only prime fish being taken, and haddocks,
&c., thrown away.

'* Vida Maritima, 6rgano de la Liga Maritima Espariola, 1904, 1905 ; Boletin
oficial.

THE INADEQUACY OF THE THREE-MILE LIMIT 7 17

with the modern development of trawling, it willinst the
difficult to understand the scope and nature of the lehowever,
which has been devised in various countries to prest of corn-
native fisheries for the inhabitants of the coast. It ig Irish
said that in practically all of them, trawl-fishing is eit
tirely prohibited within territorial waters or is subjet-otland,
various regulations, for the most part with the view of ali\at the
minor forms of trawling, as that for shrimps, to be carrit gave
In those countries which have a zone of territorial wling.

*

extending beyond the ordinary three-mile limit, it is p* of
hibited within that zone, as in Norway, Spain, and Portuga.y
and even up to twelve miles from the shore ; while in some'
others in which three miles is in use as the ordinary limit for
exclusive fishing, trawling is forbidden at distances beyond
.that limit. In Italy and Austria steam-trawling is not allowed
within five miles of the coast. In Scotland and Ireland it is
prohibited in certain specified waters, which extend much
beyond a three-mile boundary. As recent legislation, or bye-
laws made with the authority of Parliament, bearing upon
these prohibitions have given rise to much controversy, it is
desirable to consider them with a little care.

In England, where the administration of the local fisheries
around the coast is in the hands of various Sea Fisheries
District Committees, numerous byelaws have been made and
are in force, with the sanction of the Board of Agriculture and
Fisheries, prohibiting or regulating trawling of one kind or
another in the waters under the control of the Committees.
None of the byelaws appear to apply to parts of the sea beyond
the ordinary three-mile zone, though it is open to question
whether the wording of the Act, by which the Committees
were created, does not give power in that direction.1

1 Sea Fisheries Regulation Act, 1888, 51 & 52 Viet., cap. 54. Section 1 is as
follows : " 1. — (1) The Board of Trade may from time to time on the application of
a county council or borough council, by order, (a) create a sea fisheries district com-
prising any part of the sea within which Her Majesty's subjects have by interna-
tional law the exclusive right of fishing, either with or without any part of the
adjoining coast of England and -Wales ; and (6) define the limits of the district," &c.
Sea Fisheries (England and Wales), Annual Reports of the Inspectors; Board of
Agriculture and Fisheries, Annual Reports of Proceedings under Acts relating to Sea
Fisheries. An excellent chart, showing the regulations with respect to trawling
around the English coast, is published in the Report from the Select Committee of
the House of Lords on the Sea Fisheries BUI, 1904.

71 4 THE SOVEREIGNTY OF THE SEA

been accilrish Fishery Department have made a very large

within ttof byelaws, at various times and under various Acts

of their regulation or prohibition of trawling. Of these some

three-milur are at present in force, twenty-two applying to al

their ovg and twenty-two to steam trawling alone, and one or

occurred them date from the years 1842 and 1851. l Under these

that thvs trawling in one form or another is prohibited entirely

povernder certain conditions at most parts of the coast of Ire-

and i; and on certain parts of the coast not inconsiderable

ren/etches of the sea, beyond the three-mile limit and the limit

bcor bays as defined in the fishery conventions, are closed against

8 this method of fishing. The lines around the coast within

which trawling is prohibited, in many instances pass between

headlands which may be as much as twenty -six, and even

forty-three, miles apart ; not infrequently they are drawn, not

between headlands, but from one light-ship to another, an<

these light-ships may be four or five miles from land and

twenty miles apart. Sometimes the closing line is placed thn

miles to the seawards of such base-lines : and they may pa:

from about two to seven or eight miles outside the limit as

defined in the conventions, and in some instances up to ten or

eleven miles from low-water mark on the shore.

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

It does not appear that foreign trawlers have been foun
contravening the Irish byelaws to any great extent. Betwee
June 1904 and September 1905 seven steam-trawlers and on
sailing-trawler were captured fishing within the limits, one o
the former being registered in a foreign country, and, wit
regard to it, the official report says " it was found impossibl

1 Department of Agriculture and Technical Instruction for Ireland: Report on th
Sea and Inland Fisheries for 1907. Part I., General Report, pp. 56-62.

THE INADEQUACY OF THE THREE-MILE LIMIT 7 17

to enforce the order made by the magistrates against the
owner and skipper." It is added that " it is thought, however,
that means have been found within the existing law of com-
pelling foreign trawlers to observe the byelaws affecting Irish
territorial waters." l

It is, however, with reference to the legislation for Scotland,
under which certain areas are closed against trawling, that the
main controversies have been raised. Several statutes gave
power to the Fishery Board for Scotland to regulate trawling.
The first was an Act of 188 1,2 which empowered the Board of
Trade to restrict or prohibit this method of fishing "in any
area being part of the sea adjoining the United Kingdom, and
within the territorial waters of Her Majesty's dominions, within
the meaning of the Territorial Waters Jurisdiction Act, 1878 "
. (see p. 591) ; which power was transferred to the Scottish Board
by subsequent Acts.3 Then the Sea Fisheries (Scotland)
Amendment Act, of 1885,4 empowered the Board to make
byelaws for restricting or prohibiting, either entirely or subject
to such regulations as might be provided, any method of fishing
"in any part of the sea adjoining Scotland, and within the
exclusive fishery limits of the British Islands," when they were

1 Report on the Sea and Inland Fisheries of Ireland for 1904, p. xxv. Manual of
Fisheries (Ireland) Acts. Section 3 (subsection 1) of the Steam Trawling (Ireland)
Act, 1889 (52 & 53 Viet., c. 74), gave powers to the Inspectors of Irish Fisheries to
make, alter, and revoke byelaws for prohibiting steam -trawling " within three miles
of low-water mark of any part of the coast of Ireland, or within the waters of any
other defined areas specified in any such byelaw, and subject to any conditions or
regulations contained in such byelaw." Subsection 2 enacted that " each and every
person who uses any trawl-net, or any method of fishing in contravention of any
byelaw of the Inspectors of Irish Fisheries made in pursuance of this section," shall
be subject to a fine not exceeding five pounds for a first offence, or twenty pounds
for a second or subsequent offence, with forfeiture of the gear employed. Section 4
made it unlawful for "any person" to land or sell in Ireland any fish caught
in contravention of any such byelaw. Section 1 (subsection 1) of the Fisheries
(Ireland) Act, 1901 (1 Ed. VII., c. 38), makes "every person who uses any trawl-
net or any method of fishing in contravention of any byelaw " of the department
made in pursuance of the third section of the Act of 1889, liable on conviction
under the Summary Jurisdiction Acts to a fine not exceeding one hundred pounds,
with forfeiture of the gear, for the seizure of which any duly authorised officer is
empowered to " go on board any vessel propelled by steam employed in fishing."
The Irish byelaws must be approved by the Lord-Lieutenant and Privy Council of
Ireland.

2 Sea Fisheries (Clam and Bait Beds) Act, 44 & 45 Viet., c. 11.

3 48 & 49 Viet., c. 70 ; 50 & 51 Viet., c. 52. 4 48 & 49 Viet., c. 70.

718

THE SOVEREIGNTY OF THE SEA

satisfied that such mode of fishing was injurious to any kind
of sea fishing within that part, or in order to make experiments
and observations to ascertain this, or for fish-culture ; and such
byelaw was not to be valid until it had been confirmed by the
Secretary for Scotland. Several byelaws under this Act were
made, prohibiting trawling within certain areas on the coast
of Scotland within the ordinary limits.1 It may well be
questioned, in view of the definition of the "territorial
waters of Her Majesty's dominions " in the Territorial Waters
Jurisdiction Act, and of the "exclusive fishery limits of the
British Islands " in the Sea Fisheries Act, 1883,2 whether these
powers were restricted to the three-mile limit and to bays
whose width was not greater than ten miles ; but it is note-
worthy that a byelaw with reference to the Firth of Clyde
was not confirmed by the Secretary for Scotland, presum-
ably because it was considered at the time to be ultra
vires.3

In 1889, however, an Act was passed which directly pro-
hibited trawling " within three miles of low- water mark of any
part of the coast of Scotland " (except the Solway and Pentland
Firths), and within the waters specified in a schedule annexed,
except in such parts as might from time to time be permitted
by byelaws of the Fishery Board; and the Board was further
empowered to forbid trawling within any area or areas in
the Moray Firth between Duncansby Head and Rattray Point,
which may be regarded as its headlands.4 The waters specified
in the schedule included the areas closed under the then
existing byelaws, as well as a number of bays, lochs, and areas,
the most important of which was " the waters inside a line drawn
from Corsewall Point, in the County of Wigton, to the Mull of

1 1st Feb. 1886, 18th April 1887, 25th April 1887, &c. Manual of Sea Fisheries
•(Scotland) Acts and Statutory Bye-laws, pp. 253-257.

2 See pp. 592, 643. 3 Ibid., p. 255.

* The Herring Fishery (Scotland) Act, 1889, 52 & 53 Viet., c. 23. Section 7.— (1)
"The Fishery Board may, by byelaw or byelaws, direct that the methods of
fishing known as beam trawling and otter trawling shall not be used within a line
•drawn from Duncansby Head, in Caithness, to Rattray Point, in Aberdeenshire, in
any area or areas to be defined in such byelaw, and may from time to time make,
alter, and revoke byelaws for the purposes of this section, but no such byelaw
shall be of any validity until it has been confirmed by the Secretary for Scotland. "
The next section prohibits the landing or sale in Scotland of any fish caught in
•contravention of the Act or byelaws.

Fig. 29. — The Firth of Clyde, showing the line of closure and the ordinary three-mile limit.

720

THE SOVEREIGNTY OF THE SEA

Canty re, in the County of Argyll " — that is to say, the Firth of
Clyde. In this Act, it will be noted, nothing is said about bays,
save in this schedule, and an examination of the charts shows
that the waters specified in the schedule, twenty-five in number,
would all, with a single exception, be included in the limits of
exclusive fishing as defined in the North Sea Convention.
Presumably the bays on the coast of Scotland which are not
mentioned in the schedule do not come under the provisions of
this Act beyond the distance of three miles from low-water
mark on their shores. The exception referred to is the Firth
of Clyde (fig. 29), where the line of closure is about twenty-eight
miles in length, within which trawling was directly prohibited
by the Act. The area of water outside the ordinary limits of
the conventions which is thus embraced amounts to about
380 square (geographical) miles.

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

In 1895 another Bill was introduced into the House of Lords
by the Lord Privy Seal (Lord Tweedmouth), with the object,
among other things, of extending a similar jurisdiction over
the waters washing the east coast of Scotland. The line at
first chosen in this case was a very long one, running along
the open coast from Rattray Head to the Fame Islands, a
distance of about 120 miles, and passing a little over thirty
miles east of Fife Ness.1 It was proposed later to give power

1 "11. — (1) The Fishery Board may, by byelaw or byelaws, direct that the
methods of fishing known as beam trawling and otter trawling shall not be used
within a line drawn from Rattray Point, in Aberdeenshire, to the Fame Islands, in
Northumberland, in any area or areas to be denned in such byelaw, and may from
time to time make, alter, and revoke byelaws for the purposes of this section."

THE INADEQUACY OF THE THREE-MILE LIMIT 721

to prohibit trawling in any area or areas within eighteen
miles of the coast.1 In the Act as passed the distance was
reduced to thirteen miles from the coast in areas under the
jurisdiction of the Crown, and no area was to be so regarded
unless the powers conferred had been accepted as binding
upon their own subjects with respect to such area by all the
states who were parties to the North Sea Convention.2 This
section of the Act has remained inoperative, and no byelaws
have been made under it ; and there appears to be no evi-
.dence as to whether the views of other Powers have been
obtained.

In the Moray Firth, closed to trawling by the byelaw above
referred to, foreign trawlers began to make their appearance
first of all in 1895, when a Danish vessel came. Two years
. later it returned, and a German trawler also, which was pre-
vented from landing its fish at Aberdeen, — an act of the Crown,
which was tested by a case in the Court of Session and upheld
by it. In 1898 foreign trawlers appeared in the Firth in
considerable numbers, and, it was reported, carried on their
operations in such a reckless manner as to involve a great deal
of damage to the gear of the net and line fishermen.3 These
vessels appear to have been mainly Danish, but there were a
few Belgian, Dutch, and German, and they came for the most
part intermittently and for brief periods, some of them appear-

1 A Sill [as amended in Committee] intituled An Act for the better Regulation of
Scottish Sea Fisheries (52), s. 10, February 1895.

2 Sea Fisheries Regulation (Scotland) Act, 1895, 58 & 59 Viet., c. 42. Section
10. — (1) "The Fishery Board may, by byelaw or byelaws, direct that the methods
of fishing known as beam trawling and otter trawling shall not be used in any area
or areas under the jurisdiction of Her Majesty, within thirteen miles of the Scottish
coast, to be defined in such byelaw, and may from time to time make, alter, and re-
voke byelaws for the purposes of this section. Provided that the powers conferred
in this section shall not be exercised in respect to any areas under Her Majesty's
jurisdiction lying opposite to any part of the coasts of England, Ireland, or the
Isle of Man, within thirteen miles thereof." (2) provided for a local inquiry to be
held. (3) " Provided that no area of sea within the said limit of thirteen miles
shall be deemed to be under the jurisdiction of Her Majesty for the purposes of
this section unless the powers conferred thereby shall have been accepted as binding
upon their own subjects with respect to such area by all the States signatories of
the North Sea Convention, 1882."

3 Eighteenth Ann. Rep. Fishery Board for Scotland, Part I., p. xxxii. The
information relating to this part of the subject is taken mostly either from the
Annual Reports of the Scottish Fishery Board or from Hansard's Parliamentary
Debates.

2z

722

THE SOVEREIGNTY OF THE SEA

ing only once or twice in a year. Soon, however, the Firth
was invaded by a fleet of trawlers flying the Norwegian flag,
although it was known that Norway possessed no steam
trawlers,1 and these vessels fished regularly in the Moray
Firth, carrying their fish to Grimsby, where they were landed
and sold. It was soon discovered, and admitted, that these
trawlers were in reality English, so far as capital, manage-
ment, and crew were concerned, but they were registered in
Norway in order to evade the British statute, and they soon
obtained a practical monopoly of trawling in the Moray Firth.
In 1901 there were fourteen or fifteen of them, but by 1905
they had increased to twenty-nine or thirty ; while the visits
of trawlers of other nationalities had diminished to nine in
1903, to six in 1904, and to two in each of the three following
years. In 1903 and 1904 thirteen convictions were recorded
against foreign trawlers, eight in connection with the Moray
Firth and five in connection with the Clyde; in 1905 the
number rose to fifteen for the Moray Firth and six for the
Clyde. In all these cases the charge was for trawling within
the ordinary three-mile limit. In 1905 a case was brought
against Martin Olsen, the Norwegian "flag-master" of one
of the trawlers registered in Norway, the Catalonia, for
trawling within the Dornoch Firth in contravention of the
Act of 1889, and byelaw No. 2, made under the Act of 1885.
The place where the offence was committed was beyond the
distance of three miles from the shore, but it was within three
miles of the ten-mile base-line across the Dornoch Firth, and
therefore within the exclusive fishery limit as defined in the
conventions, and within one of the areas scheduled in the Act
of 1889. The Sheriff-Substitute at Dornoch sustained Olsen's
plea of no jurisdiction, on the ground that the Catalonia was
registered in Norway, and Norway was not one of the Powers
signatory to the North Sea Convention. On appeal to the
High Court of Justiciary the decision was reversed, the judges
holding that the prohibition in the Act of 1889, being quite
general in terms, was applicable to foreigners as well as to

1 See Norget Officidle Statistik ; Norges Fiskerier, 1906, pp. 17, 18. Sixteen
steam trawlers were on the list as registered in Norway in that year, but " they
did not carry on fishing from Norwegian ports," and were not included in the list
of bonafide Norwegian fishing- vessels.

THE INADEQUACY OF THE THREE-MILE LIMIT 723

British subjects, and that it was not for them to draw a dis-
tinction which had not been made by Parliament.1

This decision was the means of raising the question whether
the byelaw did not apply to foreigners equally with British
subjects in the whole extent of the Firth, and a series of cases
were brought before the Sheriff to test the point. Three
prosecutions were instituted, one against Emmanuel Mortensen,
a Dane, master of the Niobe, of Sandefjord, Norway, for trawl-
ing at a point about five miles off Lossiemouth ; another

Fig. 30. — The Moray Firth, showing the line of closure.

against Thomas Robinson, a British subject, master of the
Verbena of Stavanger, Norway, for trawling at a point five
miles S.S.E. of Garty Point, Sutherlandshire ; and the third
against Arthur Lambert, a British subject, fishing-master of
the Pinewold, registered at Sandefjord, Norway, for trawling
at a distance of seven miles from Tarbetness. Convictions
were obtained in all cases in the Sheriff Court of Dornoch,

1 Peters v. Olscn, 7, Court of Session Reports, 5th Series (Justiciary Cases) ; 42
Scottish Law Reporter, p. 735.

724 THE SOVEREIGNTY OF THE SEA

mainly on the same ground as in the above case, that the
statute was general and applied to all persons, but Sheriff
(now Lord) Guthrie also held that the Moray Firth was within
the territorial waters of Scotland.1

The case in regard to Mortensen was appealed and was
heard by the full bench of twelve judges of the High
Court of Justiciary, who unanimously upheld the conviction
and dismissed the appeal. The leading opinion was de-
livered by the Lord Justice - General (Lord Dunedin), who
treated the question as one of construction, and of construc-
tion only, since the court had nothing to do with whether
an Act of the Legislature was ultra vires or in contraven-
tion of international law; they had only to give effect to it.
The terms of the Act, applying to " every person " committing
the offence within an area which' was precisely defined,
made the inference strong that it was meant to apply
to all persons whatsoever; and this inference was further
strengthened by the consideration that the clear object of the
Act was to stop trawling, and that object would be defeated
or rendered less effective if the prohibition applied only to
British subjects, while leaving those of other nations free.
With regard to the territorial or non-territorial character of
the place where the Niobe had been trawling, Lord Dunedin
said that while it might be assumed that within the three-mile
limit the territorial sovereignty would be sufficient to cover such
legislation, that was not a proof of the counter proposition,
that outside the three miles no such result could be looked for.
There were at least three points which went far to show that
the locus was intra fauces terrce: (1) the dicta of the Scottish
Institutional Writers, as Stair and Bell ; 2 (2) the fact that the
same statute puts forward claims to analogous places, as, e.g.,
the Firth of Clyde ; (3) there were many instances in decided

1 " In fact, the Moray Firth, within the line from Duncansby Head to Rattray
Point, is not the high seas, but is a bay or area between these headlands intra
fauces terrce, — between the jaws of the land, — which has been called in England
one of the King's Chambers. In law, such an area must be dealt with by the
Courts of this country as part of the territorial limits of Scotland, unless the
Legislature chooses to enact, in fairness to other countries or for any other reason,
that the extent of the space involved is too great to come within the reasonable
definition of a bay."

2 See p. 545.

THE INADEQUACY OF THE THREE-MILE LIMIT 725

cases where the right of a nation to legislate for waters more
or less landlocked, though beyond the three-mile limit, had
been admitted. "It seems to me, therefore," continued Lord
Dunedin, " without laying down the proposition that the Moray
Firth is for every purpose within the territorial sovereignty, it
can at least be clearly said that the appellant cannot make out
his proposition that it is inconceivable that the British Legisla-
ture should attempt for fishery regulation to legislate against
all and sundry in such a place. And if that is so, then I revert
to the considerations already stated, which, as a matter of con-
struction, make me think that it did so legislate." He did not
think any argument could be drawn from the definition of
'•exclusive fishery limit" in the North Sea Convention, inas-
much as the Convention, as a whole, did not deal with what
was here in question — viz., mode of fishing ; and the Act
treated subjects and foreigners alike in the matter.

Lord Kyllachy also held that, on the point of construction,
the intention of the Act was that in no part of the area should
trawling be practised by anybody ; the terms were definite and
applied to a quite definite area ; it would be easier to suppose
that the Legislature had reached even an erroneous conclusion
as to the extent of its jurisdiction, than that it had resolved
deliberately to impose a futile restriction upon its own country-
men and at the same time to create a hurtful monopoly in
favour of foreigners. With regard to the territorial or
non-territorial character of the Moray Firth, it seemed vain
to suggest that according to international law there was any
part of it which was simply an area of the open sea, and thus
in the same position as if it were situated, say, in the middle
of the German Ocean. The whole Firth was prima facie a
" bay," with two well-marked headlands, and stretching inwards
for many miles into the heart of the country. All that could
be said against this was that at its outer end the Firth was
very wide, and of a size, if not also of a configuration, some-
what beyond what is usually characteristic of bays and
estuaries ; but that might or might not be so, and the
cases of the Bristol Channel, the Firth of Clyde, and the
Firth of Forth would have to be considered before the pro-
position could be affirmed. There was no established rule
on the subject in international law, and in particular no rule

726 THE SOVEREIGNTY OF THE SEA

"so arbitrary and artificial as that of the ten -mile limit
measure," for which the appellant contended. Perhaps the
most interesting part of Lord Kyllachy's opinion concerned
the bearing of the North Sea Convention on the case. If
the question had been one of exclusive fishing privileges, the
bearing of the Convention might have been important. " But
exclusive fishing privileges — or, at all events, exclusive fishing
privileges as defined by convention — are one thing ; territorial
jurisdiction, proprietary or protective, is a different thing. . . .
There is certainly nothing in the Convention, at least nothing
was brought under our notice, which in the least conflicts with
the right of the several contracting nations to impose each of
them within its territorial limits (whatever these are) restric-
tions universally applicable against injurious practices or modes
of fishing such as are by this statute and byelaw imposed here.
In other words, there is nothing in the statute and byelaw in
question which at all interferes with the exclusive fishing
privileges of the several nations." He could not consent to
the argument that the Convention had introduced a new
chapter into international law establishing, with respect to
the definition of bays and estuaries, new and artificial rules.
The other judges who gave their reasoned opinions expressed
similar views, both as to the construction of the Act, the
possibility or probability that the Moray Firth was a territorial
bay by the law of nations, and as to the distinction between
the limits of exclusive 'fishing as defined in the Convention
and the right of the bordering state to regulate the fishery
beyond that limit and within its territorial waters, provided
the regulations applied equally to all.1

It is to be noted that although the question was strictly one
of the construction of the Act, the judges had necessarily, in
reaching its true meaning, to consider certain aspects of inter-
national law in relation to the territorial sea. From the above
summary of their opinions, it is evident that the most eminent
Scottish lawyers are in agreement with the modern publicists
whose views have been referred to in a previous chapter, both
in rejecting the three-mile limit as the farthest boundary of
territorial sovereignty and as to the ten-mile rule (to say
nothing of the six-mile theory) for bays. It may, however, be
questioned as to how far the doctrine of independent territorial

1 Court of Session Reports, 8 Fraser, p. 93.

THE INADEQUACY OF THE THREE-MILE LIMIT 727

regulation of fisheries beyond the limit of exclusive fishing, as
defined in the Conventions, will be accepted as applied to the
signatories of the Conventions. It is not expressly stated in
the Conventions that the waters outside the exclusive fishery
limits shall be free and common to all ; but that is implied even
in the title of the last of them,1 and the Convention, in point of
fact, lays down such regulations for the conduct of the fishery,
outside the exclusive fishery limits, as appeared to the sig-
natories at the time sufficient for the equitable enjoyment of
the common right. It would be easy to conceive of general
regulations being applied independently at particular places by
one state, which would have the effect of abridging the common
right of the other states, without affecting the interests of its
own subjects — on the principle of the invitations which the
fox and the stork issued to one another in the fable. That the
intention was to leave the fisheries outside the limits mentioned
free, except in so far as the regulations agreed upon affected
them, is clear from the proceedings at the conference at The
Hague. As regards other states, however, such as Norway,
which were not signatories of the Conventions, it is equally
clear that, up to the utmost bounds of the territorial waters,
regulations may not only be imposed on their subjects, but they
may be excluded from the fisheries altogether.

The effect of the decision of the High Court of Justiciary
was apparently to keep the foreign trawlers out of the Moray
Firth for a short time. But very soon a number of them came
back again from Grimsby, with express instructions from the
owners to fish in the Moray Firth. On 31st January 1907 six
masters, all foreigners, of trawlers registered in Norway, were
charged at Elgin Sheriff Court with thirteen separate contra-
ventions of the byelaw, committed between 23rd November and
22nd December 1906, at various distances from about five to
twelve miles from the coast ; on conviction, penalties of £100 or
sixty days' imprisonment were imposed, and five of the men
went to prison. On 4th February other two masters of foreign
trawlers were convicted of a corresponding offence at Wick
Sheriff Court. At the trial at Elgin, the Norwegian Vice-Consul

1 " For the purpose of regulating the police of the fisheries in the North Sea
outside territorial waters." The use of the words "territorial waters" and
" exclusive fishery limits " indifferently for the same thing is common, but
improper.

728 THE SOVEREIGNTY OF THE SEA

at Aberdeen read a protest, at the instance of the Foreign
Minister of Norway, against the conviction of the masters of
three of the Norwegian vessels which he named, provided the
trawling with which they were charged had taken place " out-
side the territorial limits." x

Representations were also made to the British Foreign Sec-
retary by the Norwegian Minister in London (Dr F. Nansen),
and the men were released on 9th February,2 the decision
of the Scottish High Court being thus in effect set aside. It
was subsequently explained that in taking this action Norway
was merely making a formal stand for the rights of her flag,
since the trawlers had been registered in Norway in a legal
way, Norwegian subjects were concerned, and no claim had
been put forward on behalf of the British Government to the
Moray Firth as being territorial in character. In point of fact,
the Norwegian Government was in full sympathy with the
policy of keeping the pseudo-Norwegian vessels out of the
Moray Firth,3 and they immediately, after the formal protest
referred to, issued orders warning all owners of Norwegian
trawlers fishing in the Moray Firth to cease from doing so,
and not to expect the support of their Government in case
of proceedings being taken against them in Scotland.4 It does
not appear that any advantage was taken of this proceeding for
further prosecutions of Norwegians contravening the law ; but

1 " I, George Milne Cook, Vice-Consul for Norway for Aberdeen shire and the
adjacent districts, by instructions of Herr Laveland, Minister for Foreign Affairs
of Norway, hereby protest, on behalf of the Government of Norway, against any
conviction of the masters of the Norwegian trawling vessels Stroma, Sando, and
Catalonia, provided the trawling with which they were charged has taken place
outside the territorial limits, and I further protest against any punishment or
fines being inflicted in the Sheriff Court at Elgin on the said masters."

(Sd.) GEORGE M. COOK.
ELGIN, 31st January 1908.

2 Hansard, vol. 169, pp. 557, 558, 988 ; vol. 170, pp. 1202, 1206.

3 A letter appeared in the Fish Trades Gazette, on 14th October 1905, from
Mr Hans Johnsen, the Fisheries Agent for Norway in Great Britain, stating that
he had resigned his membership of the National Sea Fisheries Protection Associa-
tion owing to the President (Lord Heneage) having prevented him from reading
at the annual conference of the Association at Aberdeen, with reference to a
resolution regarding the Moray Firth, a letter from the Norwegian fishery
authorities. His object in endeavouring to speak on the resolution, he said,
"was to clear the Norwegian flag from having anything to do with the piracy
practised by Grimsby steam trawl -owners in the Moray Firth, and which the
Government of Norway and the Norwegian Fishery Board is highly indignant at."

4 Hansard, vol. 170, pp. 472, 1206, 1246, 1383.

THE INADEQUACY OF THE THREE-MILE LIMIT 729

it was decided to proceed against British subjects who might
be found on the foreign vessels which were violating it, and
who were undoubtedly under the jurisdiction of British courts.
On March 20th twelve cases were brought before the Elgin
Sheriff Court, the men charged being the " fishing- masters " of
the foreign trawlers,1 and the only one who appeared was fined
fifty pounds for each of three offences, or fifteen days' imprison-
ment. A little later, on 17th April, fifteen fishing-masters of
foreign trawlers, one of which was Swedish, all British subjects
belonging to Grimsby, were charged in the same court for
trawling within the Moray Firth outside the ordinary limits,
and on conviction small fines were imposed. Similar cases
were brought against eleven men in July, who were charged
with twenty-eight offences committed between 2nd March and
24th June,* and still smaller penalties were imposed.2

Considerable discussion was evoked by the various occur-
rences above referred to. Resolutions were passed at various
meetings of fishermen in Scotland in favour of the byelaw being
strictly enforced, and asking that an international arrange-
ment should be come to if necessary to enable that to be done.
At meetings of trawl - owners, on the other hand, held at
Grimsby and elsewhere, resolutions to the opposite effect were
agreed to, and the Government were requested to maintain the
"three-mile international territorial limits as now defined."
In the Houses of Parliament also numerous questions were put
to Ministers on the subject, and there were several debates of
a more or less formal kind. It appears that the Foreign Office
had come to the conclusion that the Act of Parliament as inter-
preted by the High Court of Justiciary was in conflict with
international law ; 3 and that view having been taken, it was
obvious that it would be necessary, if the statute was to have

1 In these Norwegian vessels there were a " flag-master " and a " fishing-master."
the former, nominally in charge of the vessel, being a Norwegian in order to com-
ply with the registration laws, but often, or usually, occupying a humble position,
such as cook. The " fishing-master " had the real control and occupied the master's
rooms on board. He, like all or most of the crew, was English, resident at Grimsby.

2 In April the penalties ranged from £10 to £2, 10s., or two to ten days' imprison-
ment ; in July they ranged from £1 or one day to £45 or fourteen days ; three
cases were dismissed, one was found not proven, and in five the verdict was not
guilty ; four cases were appealed to the High Court by the Procurator- Fiscal and
the appeal sustained. Twenty-Sixth Ann. Rep. Fishery Board for Scot., Part I.,
App. L., II.

3 Hansard, vol. 170, p. 472.

730

THE SOVEREIGNTY OF THE SEA

equal effect on foreigners, that some international arrangement,
such as had been previously recommended by the Select Com-
mittees of the House of Commons and the House of Lords,1
should be reached. It appears that there would have been no
difficulty in arranging such an agreement with Norway, which
was desirous of entering into negotiations for the purpose ; but
it was felt by the Foreign Office that, while an arrangement
of the kind would not bind other Powers, questions of reci-
procity might be raised, and British trawlers might be excluded
from similar areas on foreign coasts. They therefore declined
to enter upon negotiations with foreign Powers until the whole
policy had been carefully considered.2 One point of view
which was taken was indicated in a speech of the Under-
secretary for Foreign Affairs (Lord Fitzmaurice) in the course
of a debate in February 1907, which had been initiated by
Lord Balfour of Burleigh. He stated that according to the
views hitherto accepted by the chief departments of the
Government — the Foreign Office, the Admiralty, the Colonial
Office, the Board of Trade, and the Board of Agriculture and
Fisheries — and apart from the provisions of special treaties,
territorial waters were : " First, the waters which extend from
the coast-line of any part of the territory of a State to three
miles from the low- water mark of such coast-line ; secondly, the
waters of bays the entrance to which is not more than six
miles in width, and of which the entire land boundary forms
part of the territory of a State. By custom, however, and
by treaty and in special convention, the six -mile limit has
frequently been extended to more than six miles."3 The
Lord Chancellor, it may be said, was absent through illness ;
and the declaration quoted, though it represents what has been
the general, but by no means the invariable, attitude of the
British Foreign Office in dealing with territorial waters, is not
in accordance with the law of nations, as is shown in the
foregoing chapters. Nor does it agree with the opinions
expressed in a former debate by the late Lord Salisbury, so
long the distinguished Foreign Minister of this country, by

1 See p. 707 et seq.

2 Hansard, vol. 169, pp. 832, 991, 1037 ; vol. 170, pp. 786, 1246, 1247; vol. 192,
p. 832, &c.

3 Ibid.

THE INADEQUACY OF THE THREE-MILE LIMIT 731

Lord Halsbury, the former Lord Chancellor, and by Lord
Herschell, the then Lord Chancellor (see p. 592), in which
Lord Salisbury said " great care had been taken not to name
three miles as the territorial limit." Nor is it in agree-
ment with the carefully considered and most explicit reserva-
tions made in the Territorial Waters Jurisdiction Act, both in
regard to the extent of the territorial waters and the rightful
jurisdiction of the Crown beyond three miles from the shore
under the law of nations, conferred by Act of Parliament, or
by law existing, and the similar reservations in certain other
Acts previously referred to. Even more singular is the novel
statement as to what constitutes a territorial bay. A six-mile
limit of the kind will obviously confer in the grea/t majority of
cases no greater extent of sea than the three-mile limit on an
open coast, and it is thus opposed to one of the best-recognised
principles of international law relating to the subject. The only
part of the world where it appears to be in force is in British
North America, with reference to subjects of the United States.
The history of how it came to be applied at all is told in a
previous chapter, in which it is also shown that the British
Government as late as 1887 rejected even the ten-mile limit
for bays, as involving a surrender of fishing rights, and as being
contrary to the law of nations (p. 629), and they have made
declarations equally emphatic on other occasions.1

But in a subsequent debate Lord Fitzmaurice appears to have
qualified his statement, and quoted the observation of Lord
Salisbury that where the coast was " folded and doubled," as

1 Thus, in the " Reply on behalf of Her Britannic Majesty's Government to the
Answer of the United States of America," submitted to the International Fisheries
Commission at Halifax in 1877, it was said: "It is not understood that the
Answer either raises or invites the discussion of any rules or doctrines of inter-
national law, save such as bear upon the question of what are to be considered
the territorial waters of a maritime State for the purposes of exclusive fishing.
The contention of the Answer in relation to these doctrines which requires special
attention, is that which asserts that Great Britain and other Powers have tradition-
ally recognised a rule, by which foreigners were excluded from fishing in those bays
only which are six miles, or less, in width at their mouths. It is distinctly asserted
on the part of Her Majesty's Government that this alleged rule is entirely unknown
to, and unrecognised by, Her Majesty's Government, and it is submitted that no in-
stance of such recognition is to be found in the Answer or the Brief accompanying
the same, and that none can be produced." This was approved of by the Earl of
Derby, Foreign Secretary (the Earl of Derby to Mr Ford, August 31, 1877 ;
the same to the same, Oct. 6, 1877).

732 THE SOVEREIGNTY OF THE SEA

where bays exist, it was an unsettled question in international
law how far territorial waters extend in such cases.1

Rather a different view was taken by the Lord Chancellor,
a few weeks later, in the course of another debate about the
Moray Firth. Lord Loreburn confined himself to saying that
the obvious contention of other nations, and one very difficult
to encounter, if we tried to make byelaws under our own law
in regard to waters within a line from headland to headland
eighty-five miles apart, would be that we might be trying to
legislate for the high seas.2 And in a debate in July 1908, the
Secretary for Foreign Affairs (Sir Edward Grey) put the matter
in an exceedingly lucid manner. Parliament had recognised
the contention, he said, that there ought to be special regulations,
especially in regard to the Moray Firth, going far beyond the
three-mile limit ; and, like other members of the Government,
he condemned the action of British subjects who, knowing
perfectly well the law, made use of a foreign flag to evade
the regulations of the Moray Firth, which it was obviously the
desire of Parliament should be enforced. But when they came
to the question of enforcing the law on foreign subjects, they
were placed in a very difficult position. The national policy of
this country hitherto " had been to uphold the three-mile limit,
but to protest against and to resist by every means in our
power the pretension of any foreign country to enforce its own
jurisdiction on the sea beyond the three-mile limit." We had
contended before international tribunals, as in the Behring Sea
Arbitration, that the three-mile limit is the only one we can
recognise as the limit of foreign jurisdiction over British
vessels ; and suppose we attempted to enforce a doctrine going
far beyond the three-mile limit on foreign ships, how could we

1 llth Nov. 1908. Hansard, vol. 196, p. 236. Very important declarations as
to the territorial character of bays will be found in the decision of the Permanent
Court of Arbitration at The Hague, on the North Atlantic Fisheries (7th Septem-
ber 1910, Award No. V.), received as these sheets are passing through the press.
The application of the three-mile limit to bays was rejected, the following rule
being formulated : " In case of bays the three marine miles are to be measured
from a straight line drawn across the body of water at the place where it ceases to
have the configuration and characteristics of a bay. At all other places the three
marine miles are to be measured following the sinuosities of the coast." In its
practical application to British North America, the Tribunal recommended a ten-
mile limit generally, except for certain specified bays (including Chaleurs, Miramichi,
Egmont) where special lines, enclosing much larger areas, are proposed.

2 Hansard, vol. 170, p. 1383. The miles referred to are English statute miles.

THE INADEQUACY OF THE THREE-MILE LIMIT 733

contend before an international tribunal for a doctrine precisely
the reverse of that which we have always upheld on previous
occasions ? It followed from this that " if there was to be a
modification of the rules relating to trawling in the North Sea,
it must be by agreement with foreign Powers " — that was really
the practical point upon which the matter turned. But in an
important question affecting the interests of the country at
large, it was impossible for the Foreign Office to approach
other Powers with the view of reaching an agreement until it
.was quite clear that it was in the interest of a policy which had
been adopted, affirmed, and declared by the Government to be
a policy which was in the general national interest of the
United Kingdom. Judging from the very great force with
which the case in such regions as the Moray Firth had been
presented, and the strong feeling that existed and which was
not confined to the Moray Firth, it had always seemed to him
that there was a case for grave consideration as to whether
any new regulations were required for the preservation of the
fishing industry in the North Sea at large. Trawling was
a perfectly legitimate industry in which large capital was
invested, and if further restrictions were to be imposed on it, it
must be because a really important national interest required
it ; it would not be right to adopt in the interests of particular
localities any special restrictions which might result in dimin-
ishing the supply and raising the price of fish. But, having
laid down these two principles, Sir Edward Grey thought it
was equally true that if the supply of fish from the North Sea
is being affected by want of further regulations, then the
interests of any particular industry must be subordinated to the
general interest, which in the long-run was also the interest of
the industry itself. " If it be the case," he proceeded, " that in
areas like the Moray Firth, which are important breeding-
grounds, the supply of fish is being seriously interfered with by
the prosecution of trawling in narrow waters, then it becomes
a matter of national interest that we should, as soon as possible,
come to some agreement with foreign Powers under which we
should be able to make the arrangements which prove to be
necessary in the national interest at large." The subject was
one requiring the deliberate investigation of the Government,
and the investigation was proceeding ; and they should know in
the course of a reasonable time whether or not the Government

734

THE SOVEREIGNTY OF THE SEA

thought they had a case for approaching other Powers, and if
so what were the grounds and propositions they should ask
those Powers to agree to. With regard to bays, the Foreign
Secretary said it had generally been understood that the quali-
fication of the three-mile limit applied to bays ten miles wide,
and they must be very careful as to how far they pressed the
doctrine as to the width of a bay, or laid down an inter-
national doctrine on any particular bay. They must think
of what the application of it might be in other parts of the
world.1

In this statesmanlike speech the case was put temperately
and fairly. Whether the Moray Firth is or is not a territorial
bay, it has been the general practice of the British Government
to contend for the ordinary three-mile limit, at least on open
coasts, in relation to fishery questions. If there are clear
reasons for the extension of this limit at any part of the coast,
or in the North Sea generally, in the common interests of the
fisheries, as recommended by the Select Committee of the House
of Commons in 1893 ; or for the prohibition of trawling within
a great area on the Continental coast, as urged by the English
trawlers, and recommended by the Parliamentary Committees
of 1900 and 1904 ; or if it is believed to be necessary to regulate
the fisheries in any way beyond the ordinary limit, then obvi-
ously the best method is to endeavour to come to an arrange-
ment with the other Powers concerned. There are precedents
for this course in British policy. By treaties with France, the
British Government agreed to bind British subjects not to fish
for oysters or any kind of fish within Granville Bay in waters
beyond the ordinary limit. In the interests of the preservation
of the fur-seal, in which the United States was mainly con-
cerned, they agreed to prohibit British subjects from taking
them within a limit of sixty miles around the Pribilov Islands,
and to compel them to observe a close -time on the high seas,
and to use only the primitive spear. They have also by treaty
agreed to respect various other limits beyond the ordinary
three miles in the interest of the preservation of other kinds of
seals. The case of the North Sea, or of that inlet of it known
as the Moray Firth, is on the same footing as these. The
question is not one of the extension of territorial sea qua
1 Hansard, vol. 191, p. 1769.

THE INADEQUACY OF THE THREE-MILE LIMIT 735

territorial sea, but of special regulations independent of it, and
exclusively relating to the fisheries.

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

Two probable reasons may be advanced for the delay in
giving effect to the recommendations of the various Com-
mittees of Parliament. The first is that a very important
international investigation of the North Sea and adjacent
waters has been in progress for a number of years and is
still going on. On the invitation of the Swedish Government,
representatives of Great Britain, Germany, Russia, the Nether-
lands, Denmark, Sweden, and Norway met at Stockholm in
June 1899, and again at Christiania in May 1901, to discuss
and arrange an organisation and a programme for an inter-
national scientific investigation of the North Sea, the Nor-
wegian Sea, and the Baltic, in the interests of the fisheries;
and in July 1902, the first meeting of the body so constituted,
the International Council for the Exploration of the Sea, was
held at Copenhagen. Since then all the maritime countries of
Western Europe, with the exception of France, have engaged
in these researches.1 This country entered into the arrange-
ment with special reference to the fisheries in the North Sea,
and with a very practical end in view — namely, to secure a
careful inquiry into the effect of the methods of fishing in the
North Sea. and to promote a scheme for determining whether

1 Reports of the British Delegates attending the International Conferences held
at Stockholm, Christiauia, and Copenhagen, with respect to Fishery and Hydro-
graphical Investigations in the North Sea. Parl. Papers, Cd. 1313, 1903. Cor-
responding "Reports" to 1906 (Parl. Papers, Cd. 2966/06, 3033/06, 3165/06).
Conseil Permanent International pour 1'Exploration de la Mer, Rapports et Proces-
Verbaux des Reunions, Copenhague. A summary on the subject, by Dr A. T.
Masterman, will be found in the Minutes of Evidence, Committee on Fishery
Investigations (Parl. Papers, Cd. 4304, p. 479, 1908).

73G

THE SOVEREIGNTY OF THE SEA

protection against overfishing was required ; and, if so, where,
wlim, and how such protection should be given.1 Much strong
criticism has been passed as to the origin, the methods, and the
programme of these investigations,2 and while they have natur-
ally resulted in large additions to our knowledge of the physical

1 "2. The delegates should propose that the scientific investigations shall be
accompanied by a practical expose of the steps to be taken in order to bring the
exercise of sea-fishing more in accord with the natural conditions regulating the
growth and increase of fish in our seas, and thus permanently increase the supply
of fish in the markets of the countries adjoining the North Sea. 3. In making
this proposal, which they should do at the outset, the delegates should make it
clear that the principal object the British Government have in directing them to
take part in the Conference, is to secure a careful inquiry into the effect of present
methods of fishing in the North Sea ; and the delegates should give every assistance
in promoting a scheme for determining whether protection against overfishing is
needed, and, if so, where, when, and how such protection should be given. 4. The
delegates should propose that a thorough scheme for obtaining statistical informa-
tion with regard to the quantity and quality of fish caught by the different methods
of fishing shall be organised, with a view of determining whether protection against
overfishing is needed, either by the prohibition of trawling in certain selected areas
or the limitation of fishing during certain selected seasons." — Instructions to the
British Delegates for the Meeting at Stockholm, 15th June 1899 ; Reports of the
British Delegates, &c., p. 13. Parl. Papers, Cd. 1313, 1903 ; Committee on
Fishery Investigations, Minutes of Evidence, &c. , p. 278, Parl. Papers, Cd. 4304,
1908. The instructions of the British Government to the Delegates for the Meet-
ing in 1901, at Christiauia, were of similar tenour : — "His Majesty's Government
fully share in the interest shown in the cause of scientific research, but having re-
gard to the importance of the evidence which was laid before the Select Committee
of the House of Commons [see p. 709], and which was adopted by them as showing
that the supply of fish in the North Sea is decreasing, they are of opinion that the
consideration of this subject will admit of no delay, and you should press on your
foreign colleagues the importance of entering at once upon the pursuit of investi-
gations calculated to lead to an international agreement. You should in no way
discourage or check any desire which you may find to exist for scientific research
into problems not so immediately pressing, but his Majesty's Government place in
the forefront of their reasons for taking part in the forthcoming Committee the
desire that no delay should be incurred in the adoption, by international agreement,
of measures for arresting the diminution of the supply of fish in the North Sea,
and for restoring, as far as possible, that source of supply to its former abundance."
Ibid., p. 278.

2 Memorandum drawn up by the Expert Members of the Ichthyoloyical Research
Committee, Report of the Committee appointed to Inquire and Report as to the
Best Means by which the State or Local Authorities can Assist Scientific Research
as applied to Problems affecting the Fisheries of Great Britain and Ireland (Parl.
Papers, Cd. 1312, p. xxii, x, 1902). Evidence of Mr Walter E. Archer, Assistant-
Secretary, Board of Agriculture and Fisheries, Minutes of Evidence given before
the Committee appointed to inquire into the Scientific and Statistical Investiga-
tions now being carried on in relation to the Fishing Industry of the United
Kingdom, pp. 277, 288, 346, 359 (Parl. Papers, Cd. 4304, 1908).

THE INADEQUACY OF THE THREE-MILE LIMIT 737

and biological conditions of the sea, of the life-history of fishes,
and of certain fishery questions, no report has yet appeared
dealing with the fundamental problem as to overfishing and
any remedies which may be required to safeguard the fish-
supply ; and it is doubtless such information that is referred
to by the Foreign Secretary as essential before Foreign Powers
can be approached. An opinion was, however, early expressed
as to the particular question of the Moray Firth. The Con-
ference held at Christiania in 1901, at which all the Powers
signatory to the North Sea Convention (with the exception of
France) were represented, passed a resolution to the effect that
" in distinct areas of the sea, as for example the Moray Firth,
in which any Government has undertaken scientific experiments
in the interest of the fisheries, and in which the success of the
experiments is being hindered by the operations of trawlers, it
is to be desired that measures be adopted for the removal of
such hindrances." l

The second probable reason that nothing has yet been done
to arrive at an international understanding appears to be that
the representatives of the great trawling industry have changed
their minds within the last few years. Since foreign coasts have
been exploited with immediate financial success to the trawling
companies, their interest in the North Sea has diminished.
They fear that if the question of fishery regulations beyond the
ordinary three-mile limit is opened up with foreign Powers in
the interest of the North Sea fisheries, proposals may be made,
as a quid pro quo, by some of the other Powers for similar
regulations on their coasts; and it is evident from the state-
ments made in Parliament that this view has hitherto pre-
vailed.2 One would have thought that a quid pro quo which
closed to trawling the great area off the Continental coast,
which English trawlers for more than fifteen years have been
vainly asking to be closed by international arrangement, would
be satisfactory to them. Or that a fishery limit of nine or ten
miles on the other side of the North Sea, or all around it, which
they thought some years ago to be the best remedy for the

1 Reports of the British Delegates, &c., Parl. Papers, Cd. 1313, p. 72, 1903.
The countries represented were Great Britain, Germany, Denmark, Belgium, the
Netherlands, Norway, Sweden, and Russia.

2 Hansard, vol. 169, pp. 992, 996 ; vol. 170, p. 786 ; and llth Nov. 1908.

3 A

738 THE SOVEREIGNTY OF THE SEA

depletion of the fishing-banks, would meet with their approval.
These areas, compared with the whole of the North Sea, are
comparatively of small extent (see fig. 26). The area of the
North Sea between the three-mile line and a nine-mile limit
amounts to about 12,000 square miles, or 7 '4 per cent of the
whole area beyond three miles from the shore; and the area
between the three-mile line and a thirteen-mile limit amounts
to about 20,000 square miles, or 12'3 per cent.

Meanwhile, the condition of the fishing-grounds in the North
Sea is described as serious by those who ought to know most
about it — the trawlers who are daily working there ; and if
no remedy is timeously applied, the measures which will
eventually be necessary will transcend those which are now
proposed.1

But if it be imprudent to postpone indefinitely the seeking
of an international remedy for the depleted fisheries of the
North Sea, because the trawling industry fears that retaliatory
measures may be proposed against British trawlers on some
foreign coasts, it may be questioned, on the other hand, whether
the action taken to obviate such measures has always been
well-judged or in accordance with the true comity of nations.
On strictly selfish grounds, and for immediate profit, it is
doubtless justifiable to make every fishing-bank, wherever it
is situated, available for the enterprise of British capital, irre-
spective of the interests of the inhabitants of the adjoining
coast, if that can be managed. If, indeed, the resources of the
sea were inexhaustible, — if it was impossible for the operations
of man to diminish the abundance of fish, — then no limit of
exclusive fishing would be necessary : only such regulations
would be required as would enable fishing operations to be
conducted in an orderly manner. But the condition of the
North Sea alone proves the opposite. It shows also, what is
well enough understood, that unrestrained trawling on any

1 Mr Frank Barrett, of Grimsby, thus referred to the condition of the North Sea
at the conference of the National Sea Fisheries Protection Association in 1905 :
" Unless they did something as a counterpoise to the continual trawling which was
going on, they would find themselves powerless as regarded that splendid fishing-
ground, the North Sea. He did not believe the North Sea, if left to itself, could
last for ever. He was one of those who thought it could not last very long ; and
he thought they should apply the lessons of science in order to rehabilitate the
North Sea." Fish Trades Gazette, Oct. 14, 1905.

THE INADEQUACY OF THE THREE-MILE LIMIT 739

banks will, in course of time, materially reduce their produc-
tiveness; and the rapidity of the impoverishment will very
largely depend upon the intensity of the fishing and the extent
of the grounds. That being so, it may well be said that a
measure of protection on the banks which are still productive
along foreign coasts would be in the permanent interest of
the English trawling industry itself, as well as in the interest
of the coast population.1

On some of those coasts the local population are dependent
on the fish they catch on the neighbouring grounds, which
are often of limited extent, and it is reasonable and just that
they should endeavour to preserve this supply for their own
use and advantage. At Iceland, for example, the area of the
possible fishing-grounds between the ordinary three-mile limit
and a depth of 200 metres (or 109 fathoms), including places
where trawling is not practicable, amounts to about 36,600
square miles, compared with nearly 312,000 square miles be-
tween the same limits off the British Isles.2 It was recently
stated in the House of Lords, by Lord Heneage, that the Ice-
landers, with the view of preserving their fishing-grounds,
a few years ago brought forward a law in the Althing, or
local Parliament, to extend the limit of exclusive fishing to
seven miles around their coast. It was also said that in
1901 they passed laws for enclosing extra-territorial waters.

1 Mr G. L. Alward, one of the leading and most experienced trawl-owners
of Grimsby, who was invited to take part in a discussion on sea fisheries in the
Zoological Section of the British Association in 1906, thus referred to the subjcet.
He said : " There was no doubt that the North Sea was deteriorated as a fishing-
ground, and in order to maintain an adequate supply they had had to explore fresh
fields. They had shifted the trawling-grounds to the coasts of Faroe, Iceland, and
Norway, while others had had to go out into the Atlantic, to the Bay of Biscay,
and to the coast of Morocco. But if they had exhausted the 147,000 square miles
of the North Sea, — every mile of which had been fished, — and they fished out the
area between Norway and Faroe and Iceland, not more than forty or fifty thou-
sand square miles, with the same rapidity, they had to look forward to nothing
short of a dearth of fish and a rise in value to famine prices." Aberdeen Free Press,
9th August 1906.

2 According to an interesting table on a chart appended to the A nnual Report of
the Board of Agriculture and Fisheries for 1906 (see fig. 28), the areas, in square
miles, between the three-mile limit and the 200-metre line, are as follows : North
Sea, 152,473 ; North of Scotland (Orkney and Shetland), 18,096; West of Scot-
land, 32,099 ; West of Ireland, 9066 ; Irish Sea, 15,743 ; Southwards of Ireland,
50,416 ; Bristol Channel, 8613 ; English Channel, 25,238. The area at Iceland is
36,608, and at the Faroes, 4949 square miles.

740 THE SOVEREIGNTY OF THE SEA

As soon as these proceedings came to the knowledge of the
English trawl-owners, the National Sea Fisheries Protection
Association made a representation on the subject to the Foreign
Office, and in consequence of this the Danish Government
took action, and the law was prevented from coming into
operation.1 And any such action in the future was effectually
prevented by the immediate negotiation of an international
convention in which a three-mile limit was fixed for Iceland
and Faroe (see p. 647) so far as concerned British fishermen.
Then with respect to the coasts of Spain and Portugal, where
the available grounds are narrow, amounting altogether between
the three-mile limit and the 200-metre line to 15,460 square
miles (see fig. 28), intimation has been made by the British
Foreign Office, at the instance of the National Sea Fisheries
Protection Association, that jurisdiction will not be recognised
over British vessels beyond three miles from the shore, and the
national regulations in regard to trawling are thus rendered
comparatively ineffective. With regard to Norway, moreover,
where the area between the three-mile limit and the 200-metre
line exceeds 30,000 square miles, it appears that soon after her
separation from Sweden, in 1905, the British Foreign Office
made the proposal that she should join in the North Sea Con-
vention (which, along with Sweden, she refused to do in 1882),
so that the ordinary three-mile limit might be imposed along
the Norwegian coast; but the proposal was rejected.2

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

1 Hansard, vol. 169, p. 996; vol. 196, p. 217. I have been courteously in-
formed by Mr Bjarni Saemundsson, of Reykjavik, a well-known authority on the
fisheries of Iceland, that no laws proposing to extend the territorial waters were
passed, or proposed, by the Althing.

2 Hansard, vol. 170, p. 786.

APPENDIX A.

(P. 45.)
THE LIBEL KEGARDING REYNER GRIMBALD.

DE SUPBRIORITATE MARIS ANGLIC ET JURE OFFICII ADMIRALLATU8

IN EODEM.

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

A vous Seignurs Auditours Deputez par les Roys Dengleterre et de
Fraunce a redresser les damages faitz as gentz de lour Roialmes et des
autres terres subgiz a lour seignuries par meer et par terre en temps
de pees et de Trewes monstrent les Procureurs l des Prelatz et Nobles
et del Admiral de la meer Dengleterre et des Comunaltes des Citees
et des Villes et des Marchanz Mariners Messagers et Pillerins et de
tous autres2 du dit Roialme Dengleterre et des autres terres subgies
a la seignurie du dit Roy Dengleterre et daillours sicome de la Marine
de Genne Cateloigne Espaigne Alemaigne Selaunde Heylande Frese
Denemarch et Norweye et de pluseurs autres leux del empyre qe come
les Roys Dengleterre par raisoun du dit Roialme du temps dount il
na 3 memoyre du contraire eussent este 4 en paisible possession de la
souereigne seignurie de la meer Dengleterre et des Isles esteans en
ycele5 par ordinance et establicement des lois estatuz et deffenses
darmes et des vesseaux autrement garniz qe vesseaux de Marchandise
et de seurte prendre et sauuegarde doner en tous cas qe mestier serra
et par ordinance de tous autres faitz necessaires a la garde des pees
droiture et equite entre toute 6 manere des genz taunt dautri seignurie
come leur propre 7 par illeqes passanz et 8 par souereigne garde et 9
tote manere de conisance et Justice haute et basse sur les dites loys

1 On Mem. 1 the words " le dit Roi Dengleterre et" follow " Procurers."

2 Mem. 1 and 8, "de touz autres de son Roialme."

3 Mems. 1, 14, and 15, " il ny ad." Mem. 8, "du temps qil ny ad."

4 Mem. 8, "aueroient este."

5 Mem. 1, " oue touz les Isles et les apportenaunces. "

6 Mem. 1, the words are "estatuitz et defenses comunes et priuees" and the rest is
omitted to "sur toute manere des gentz taunt," &c. Mem. 8, "communes et priuees
a garder pays et droiture entre tote manere des gentz tant," &c. Mem. 15, "estatuitz
et defences pur gouerner en toute manere," &c.

7 Mems. 1, 8, 14, 15, "come de lour propre."

8 Mem. 1, "oue." 9 Mems. 1, 8, and 15, "oue."

742

APPENDIX A

estatuz ordinances et deffenses et par tous autres faitz queux a le
gouerneruent l de souereigne seignurie appartenir purront es leux
auantdiz. Et A. de B. Admiral de la dite meer deputez par le Roy 2
Dengleterre et tous les autres Admirals par meisme celui Roy Dengle-
terre8 et ses Ancestres iadiz Roys Dengleterre eussent este4 en
paisible possession de la dite souereigne garde5 oue la conisance et
Justice et tous les autres appurtenances auantdites horspris6 en cas
dappel et de querele faite de eux a lour souereignes Roys Dengleterre
de deffalte de droit ou de mauueis iuggement et especialment par
empeschement mettre et Justice faire 7 seurte prendre de la pees de
tote manere des genz vsanz armes en la dite meer ou menanz Nefs
autremeut apparaillees ou garnies qe nappartenoit au 8 Neef Marchande
et en tous autres pointz en queux honime poet auoir resonable cause
de suspecion vers eux de roberie ou des autres mesfaitz.9 Et come
les Meistres des Neefs du dit Roialme Dengleterre en absence des diz
Admirals eussent este en paisible possession de conustre et juggier de
tous faitz en la dite meer entre tote manere des gentz solonc les loys
estatus et les deffenses franchises et Coustumes.10 Et come en le
primer article de lalliaunce nadguers faite entre les diz Roys en les
traitiz sur la darraine pees de Paris soient comprises les paroles qe
sensuient en vne cedule anexe ayceste.11 Primerement il est traite
et acorde entre nous et les messages et les procureurs desurdiz en
nonn des diz Roys qe yceux Roys serrount lun a lautre desores en
auant bons verays et loiaux amys et eydanz countre tout homme
sauue lesglise de Rome en tiele manere que si ascun ou pluseurs
quicunques ils fuissent voloient deponticer [sic] empescher ou troubler
les diz Roys es franchises es libertez priuileges es droiz es droitures
ou es custumes de eux et de lour Roialmes qils serront bons et loiaux
amys et aydanz countre tout homme qi puisse viure et morir a de-
fendre gardir et mainterer 12 les franchises les libertez les priuileges les
droiz les droitures et les coustumes desusdites Excepte 13 le dit Roy
Dengleterre Monsieur Johan Due de Braban en Brabant et ses heirs
dessenduz de lui et de la h'lle le Roy w Dengleterre et excepte pur
le dit nostre seigneur le Roy de Fraunce excellent Prince Monsieur
Aubert Roy Dalemaigne [et] ses heirs Roys Dalemaigne et Monsieur

1 Mem. 1, instead of gouernement, " a la generalte " ; Mem. 8, "a la garde."

2 Mems. 1, 8, and 15, "le dit Roi."

3 Mew. 1 omits "Dengleterre."

4 Mems. 1 and 8, " Rois Dengleterre deputez eient este."
8 Mem. 8, " de la dite seignurie et garde."

8 Mems. 1, 8, 14, and 15, "forspris."

7 Mems. 1, 8, and 15 insert "et." 8 Mem. 15, "a."

9 Mem. 1, "ou mesfaitz" ; Mem 8, " ou de mesfaitz."

10 The sentence from " Et come " to " Coustumes " is omitted on Mems. 1, 8, and 15.

11 Mems. 1 and 8 omit "en vne cedule anexe ayceste," and Mems. 1, 14, and 15
omit the whole of the next paragraph, recommencing "Monsieur Reymer Grimbaus."
Mem. 8d, paragraph commencing "Primerement."

12 Mem. 8, " et a maintener." 13 Mem 8. "excepte pur le dit Roy."
14 Mem. 8, "le dit Roy."

APPENDIX A 743

Johan Counte de Henau en Henau. Et que lun ne serra en consail
ne en ayde ou lautre perde vie membre estat ne honur temporel
[Mem. \2d\ Monsieur Reymer Grymbaltz Meistre de la Nauie du
dit Roy de Fraunce qi se dit estre Admiral de la dite Meer deputez
per soun seignur auantdit pur sa guerre countre les Flamaings apres
la dite alliaunce faite et affirmee et1 contre la fourme et la fource
de meisme lalliance et lentencion de ceux qi la firent loffice delad-
miralte en la dite Meer Dengleterre2 par commission du Roy3 de
France torsenousement enprist et usa un an et plus en parnant les
gentz et4 marchantz du Roialme Dengleterre et daillours par la dite
meer passanz euesque leur biens5 et les gentz ansi prises liuera a la
prison de soun dit Seignur le Roy de Fraunce et lour biens et6
Marchandises a les Receiuours par meisme celui Roy de Fraunce 7
a ce 8 deputez en les Portz de soun dit Roialme come a lui forfaites
et acquises fist amener par soun iuggement et agard 9 et la prise et
detenue des dites gentz oue 10 lour diz biens et merchandises et soun
dit iuggement et agard sur la forfaiture de eaux et acqueste u ait
Justice deuant vous Seignurs Auditours en escript par my lautorite
de la 12 dite commission sur ladrniralte auantdite par lui ansi vsurpee
et par my vne deffense comnmnement faite par le Roy 13 Dengleterre
par my soun poer solonc la forme du H tiers article de lalliaunce auant
dite qi contient les paroles desouzescriptes en requerant que de ce
il en fuisse quitz et assouz en grant damage et preiudice du dit Roy
Dengleterre et des Prelatz et Nobles et autres desusnomez par quoy
les diz procureurs en les nouns de lour diz Seignurs 15 Auditours
auantdiz prient que deliuerance dewe et hastiue des dites gentz
ouesqe leur biens et marchandises ansi prises et detenues facez estre
faite al Admiral du dit Roy Dengleterre a qi la conisance de ce ap-
partient de droit sicome desus est dit ansi qe 16 sans destorbance de
vous et dautri 17 puisse de ce conustre et faire ce qe appartient a soun
office auant dit et qe le dit Monsieur Reyner soit condampne et
destreint affaire dewe satisfaction a tous les diz damagez si auant
come etc.18 Item vous requirent les diz procureurs que come solone

1 Mem. 14 omits "et." 2 Mems. 1 and 8 omit "Dengleterre."

8 Mems. 1, 14, and 15, "du dit Roi." 4 Mems. 8 and 15 insert "les."

8 Mems. 1, 8, and 15 insert " et marchandises."
6 Mem. 1 omits "et." 7 Mem. 1 omits "de Fraunce."

8 Mems. 1, 14, and 15 read (here and elsewhere) "ceo."

9 Mem. 8 omits "et la prise," &c., recommencing, "sur la forfaiture," &c.

10 Mem. 14, "ou." n Mem. 8 inserts "et."

12 Mems. 1, 14, and 15, "sa." 1* Mems. 1 and 8, " de par le dit Roi."

« Mem. 1, "de la" ; Mems. 8, 14, and 15, "de le."

15 Mems. 1, 8, 14, and 15 insert "a vous Seigneurs."

16 Mems. Sand 14, " qil." i? Mem. 8 inserts "il."

18 Mems. 1, 14rf, and 15 complete the passage as follows: "Come il purra suffire
et en sa deffaute son dit seignur le Roi de Fraunce par qi il estoit deputeez al dit office
et qe apres dewe satisfactioun faite as ditz damagez le dit Monsieur Reiner soit si
duement punitz pur le blemissement de la dite alliance qe la punicionn de lui soit as
autres example [Mem. 8, 'ensample'] pur temps auenir." Mem. 15 ends here. Mem. 8
transposes the next paragraph and the last.

744

APPENDIX B

les anxnienes1 loys franchises et coustumes du Roialme Dengleterre
a la garde des queles vostre dit seignur le Eoy et ses auncestres Roys
Dengleterre soloient estre liez par lour sermentz Lour Admirals de la
Meer Dengleterre oue2 les Maistres et Mariners nefs3 des Portz de
la Marine Dengleterre esteans en les4 armees des diz Admirals ne
deuoient5 respondre deuant nuls Justices des Roys auantdiz6 sur
fais en la Meer susdite durans lours7 guerres countre lour enemis
et le dit Admiral vostre dit seignur le Roy et plusours des Maistres
et Mariners des Portz auantdiz ore esteans en sa Arinee countre les8
enemis Descoce et lour ay dans et alliez par expres mandement de vostre
dit seignur le Roy soiient accusez deuant vous par gentz de Normandie
et de Bretaigne et daillours sur ascuns faitz en la dite Meer en temps
de trewes et puis la pees afferme entre les diz Roys Dengleterre et de
Fraunce et auant la guerre comencee entre eaux a ce qest dit. Vous
plaise surseer es proces countre eux ia comencee et deporter de comen-
cer nouel durant la guerre susdite ansi qils naient mestier de se9
complaindre a vostre dit seignur et as Prelatz et Nobles de soun dit
Roialme par leur serment liez a les dites loys franchises et coustumes
garder et maintenir.

APPENDIX B.

(P. 49.)

PROCEEDINGS BEFORE THE AUDITORS DEPUTED BY THE
KINGS OF ENGLAND AND FRANCE FOR THE REDRESS
OF THE GRIEVANCES BETWEEN THE SUBJECTS OF
THE TWO COUNTRIES. 27-33, Edw. I.

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

RICHARD BUSH against REYNER GRYMAUS.

LIBEL (Libellus).

Richard Bush of London complains that a ship called " la Blacog "
of London, going from Winchelsea to Dieppe in August 1301, contain-
ing goods to the value of £157, was attacked hy Michel de Navere

1 Mem. 1, " aunciens"; Mem. 14, "auncienes."

2 Mems. 1, 8, and 14, "ne." 3 Mems. 1, 8, and 14 omit " nefs."
* Mem. 8, "leurs." « Mem. 8, "doiuent."

9 Mem. 8. " deuantdiz." 1 Mems. 1 and 8, "les."

8 Mems. 1 and 8, "ses." » Mem. 8, "soy."

APPENDIX B 745

and others of Calais, and his said goods taken thither and there dis-
posed of by said Michel and Henry de Ganewe. Said Richard
demands restoration of goods and £20 damages.

DENIAL (Contestatio negativa).

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

REJOINDER (Repplicatio).

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

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

To the demand of William Bush the said John l replies " en la
maniere q il fait a la demande Cecile," 2 that it does not concern him,
but " moS Henri et Michel de Nauare."

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

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

THOMAS CROS against JOHN PAYDRO.
LIBEL.

Thomas Cros of London, executor of the will of Thos. Cros his
father, who was executor of Henry Box of London, complains that said
Henry loaded the ships William le fiz Henri, Godefroi de Duffle,
Michel de Middelborgh, Johan Athelard, Johan le Chaundeler in
London, to go to Brabant (which ships were of Brabant) with goods
value £672; Michel de Xauuere and others of Calais with three

1 [Sic] : not previously mentioned ; probably Johan Paderogh. * See below.

* Side-note says : " The said goods have been delivered to Will. Bush."

746

APPENDIX B

galleys seized said ships off the foreland of Thanet in May 1298, took
the goods aforesaid from said ships and in their galleys to Calais, and
there disposed of them by the aid of Henry cle Genewe. Said Thomas
Cros demands restoration and £100 damages.

EXCEPTION REQUIRING DELAY (Excepco dilatoria).

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

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

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

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

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

Thomas atte Hurst of London loaded at Berwick the "Distaf de
Haneford" for London, with goods to the value of £11, 18s. 8d.
They were seized by men from Calais off Blakeney on the Tuesday
after Saint Bartholomew 1303,1 and disposed of at Calais. Thomas
prays restoration and damages.

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

1 24th Aug. 1303, Saturday.

APPENDIX B 747

To the demand of Thos. atte Hurst touching goods seized from the
" Distaf de Haneforde " by Johan Peidroge, Clay Clinkhamer, Piers
Hues, and others in 1302 [sic], the said "Oudart" [si'c] replies as he
did to the claim of Alayn de Thorndon. [See belowJ\

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

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

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

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

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

Sire Reyner Grimbaud, admiral, on the high seas, the Sunday after
Michaelmas 1303,2 seized said ship and goods and took them " a Roem
en .Normandie " ; sent the crew to Calais, where some were put in
prison, and one still remains. Plaintiffs demand restoration and
£100 damages.

To the complaint touching "la Michele de Arwe," seized on the
1 St Lawrence, Aug. 10. - 29th Sept. 1303, Sunday.

748 APPENDIX B

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

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

ADAM DE FULHAM against JOHN PAYDROGE.
LIBEL.

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

DENIAL.

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

EXCEPTION REQUIRING DELAY.

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

JOHN DE CHELCHETHE against RBYNER DE GRYMAUS.
LIBEL.

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

EXCEPTION REQUIRING DELAY.

Said John Padrogh replies as he did to William Seruat.

APPENDIX C 749

EDMUND LAMBY . . . against JOHN PAYDROQE.
LIBEL.

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

GILBERT DB ASSHENDON against JOHN PAYDROGE.
LIBEL.

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

DENIAL.

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

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

APPENDIX C.

(P. 65.)

LICENSE FOR FISHING AT THE "ZOWE" BANK IN
THE CHANNEL.

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

ROBERT, Baron of Brancepeth, Yiscount Rochester, Earle of Somer-
sett, Lord Chamberlaine of his Mate householde, knyght of the most
noble order of the Garter, and one of his Mate most honorable privie
Counsell, provisionally deputed for the government of the Cinque
Portes. To all to whom theis presentes shall come, Greeting, Knowe
ye that I, according to the auntient ordinances and rules hertofore
established and lately revived for the preservacon of the fishing
betwixt the subiectes of the Easterne coast of the kingdome of
great Britayne and the frenche Fishermen accoastinge those partes,
Haue by theis presentes licensed and authorised Reynold Howgatt
of the Towne of Treporte, Fisherman, Mr of one Fisherboate called
the Don de Dieu of about fourteen tonnes, with all her Company and

750

APPENDIX D

servants of the same Boate, To Fishe at the place called the Sowe
upon the English coast and elsewhere upon that coast, in the same
sorte as any one of those five boates heertofore tollerated and
privileged out of respect for the service of the Frenche king his
excellent Matie, for all sortes of Fishe without restrainte of season,
soe the same be done and performed with nettes and engines law-
full and accustomed by the English subiectes of that coast. Requir-
ing you and every of you whom it shall concerne not onely to permit
and suffer him and his sayd servantes soe to doe without any your
unnecessary lett or impeachement. But alsoe to yeilde him and his
company all lawfull favor and assistance therein as they shall have
occasion, bearinge themselves orderly and peaceably and observing
the rules and ordinances sett downe and established for that coast
fishing as aforesaid under the penalties therein expressed and con-
teyned. This license is to endure but untill the first daie of August
wch shalbe in the yeare of our Lord God 1616.

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

A la nominacon du Mounsr Villares Houden gouernr du
Chatiau et ville de Diep et suit du Roy de Fraunce.

APPENDIX D.

(P. 119.)

PROCLAMATION FOE REUOCATION OF MARINERS FROM
FORREINE SERUICES.

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

WHEREAS within this short time since the Peace concluded be-
tweene vs and the King of Spaine and the Archdukes our good
brothers, it hath appeared unto vs that many Mariners and Sea-
fearing men of this Realme hauing gotten a custome and habite
in the time of the Warre to make profite by Spoile, doe leaue their
ordinary and honest vocation and Trading in Merchantly Voyages,
whereby they might both reape conuenient maintenance, and be seruice-

APPENDIX D 751

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

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

First our pleasure is, That within our Portes, Hauens, Rodes,

752

APPENDIX D

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

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

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

APPENDIX E 753

time they shall stay and detaine any Ship of warre, that would
offer to pursue another out of any our Ports immediately.

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

Giuen at Thetford the first day of March, in the

second yeere of our Eeigne of Great Brit-

aine, France and Ireland.

Anno Dom. 1604.

APPENDIX E.

(P. 120.)

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

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

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

FROM Holy Hand to the Sowter is South South east. From
the Sowter to Whitby is Southeast. From Whitby to Flamborough
head is Southeast, and half a point Southerly. From Flamborough
head to the Sporne is Southeast easterlie. From the Sporne to
Cromar is Southeast, and by East. From Cromar to Wynterton
nes is Southeast and by South. From Wynterton nes to Caster
nes is South South east. From Casternes to Layestof is South.
From Layestof to East nes is South, and half a point to the West-
ward. From Easiness to Orforthnes is South and by West. From

SB

754

APPENDIX E

Orforth nes to the North foreland is South, and one third of a point
to the Westward. From the Northforland to the Southforeland is
South. From the Southforeland to Dungnes is Southwest and one
fourth part of a point to ye Southwards. From Dungnes to Beache
is West Southwest, and one fourth part of a poynt to the South-
wards. From Beache to Dune noze is West Southwest, and three
quarters of a point to the Westwards. From Dune noze to Portland
is West and by South Southerly. From Portland to the Start is
West Southwest and one fifth part of a point to the Westwards.
From the Start to the Ram me is West, and one fourth part of a
point to the Northwards. From the Ramme to the Dudman is West
Southwest, and one sixt part of a point to the Westwards. From
the Dudman to the Lizard is West Southwest, and one third part
of a point to the Southwards. From the Lizard to Lands end is
West Northwest Northerly. From Lands end to Milford is North
and two third parts of a point to the Eastwards. From Milford
to S. Dauids head is North and half a point to the Westwards.
From S. Dauids head to Beardsie, is North and by East, and one
eight part of a point to the Eastwards. From Beardsie to Holly
head is North, and one sixt part of a poynt to the Westwards.
From Holly head to the He of Man is North and by East, and one
fifth part of a point to the Northwards.

Wee whose names are heerevnder written being called before
the right worshipfull Sir Julius Cesar, Knight, Judge of the Kings
Majesties Highe Court of Admiraltie, and there impanelled, and
sworne vpon a Jurie to sett downe the bounds, and lymits, howfarre
the Kings Chambers, Hauens, or Ports on the Sea coasts doe extend ;
Do heereby certifie, and sett downe (according to our best know-
ledge, and vnderstanding) that his Highnes said chambers, Hauens,
or Ports are all the Seacoasts within a straight lyne drawne from
one head land to the next head land throughout this realme of
England. And for the better vnderstanding thereof haue made a
plott of the same, and haue therevnto prefixed this our Schedule,
shewing how euerie head-land doth beare vpon a right lyne the
one from the other according to the said Plott. Dated the 4. of
March A°. D*. 1604 [160|] And in the second yeare of the reigne
of our Souueraigne Lord King James, &c.

(Signed) Thomas Milton.
William Bygate.
John BurrelJ.
William Jones.
Peter Hilles.
Michael Edmondes.
James Woodcolt.

Thomas Beast.
William Juye.
John Skynner.
John Wylde?.
Henry Hauken.
William Cace.

APPENDIX F 755

APPENDIX F.

(P. 148.)

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

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

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

Whereas wee haue bene contented since our comming to the
Crowne, to tolerate an indifferent and promiscuous kinde of libertie
to all our friends whatsoeuer, to fish within our streames, and vpon
any of our coasts of Great Britaine, Ireland, and other adiacent
Islands, so farre foorth as the permission or vse thereof might not
redound to the empeachment of our Prerogatiue Royall, nor to the
hurt and damage of our louing Subiects, whose preseruation and
flourishing estate we hold our selfe principally bound to aduance
before all worldly respects : So finding that our conniuence therein,
hath not onely giuen occasion of ouer great encrochments vpon our
Kegalities, or rather questioning for our Eight, but hath bene a
meanes of much dayly wrongs to our owne people that exercise the
trade of Fishing as (either by the multitude of Strangers, which doe
preoccupy those places, or by the iniuries which they receiue most
comonly at their hands) our Subiects are constrained to abandon their
Fishing, or at the least are become so discouraged in the same, as they
hold it better for them, to betake themselues to some other course of
liuing, whereby not onely diuers of our Coast-townes are much decayed,
but the number of Mariners dayly diminished, which is a matter of
great consequence to our Estate, considering how much the strength

756

APPENDIX F

thereof consisteth in the power of Shipping, and vse of Nauigation :
We haue thought it now both iust and necessary (in respect that wee
are now by Gods fauour lineally and lawfully possessed, aswell of the
Island of Great Britaine, as of Ireland, and the rest of the Isles
adiacent) to bethinke our selues of good lawfull meanes to preuent
those inconueniences, and many others depending vpon the same. In
the consideration whereof, as we are desirous that the world may take
notice, that we haue no intention to deny our neighbors and Allies,
those fruits and benefits of Peace and friendship, which may be iustly
expected at our hands in honour and reason, or are affoorded by
other Princes mutually in the point of Commerce, and exchange of
those things which may not prooue preiudiciall to them : So because
some such conuenient order may be taken in this matter, as may
sufficiently prouide for all these important considerations which doe
depend thereupon ; Wee haue resolued first to give notice to all the
world, That our expresse pleasure is, that from the beginning of the
Moneth of August next comming, no person of what Nation or
qualitie soeuer, being not our naturall borne Subiect, be permitted to
fish vpon any of our Coasts and Seas of Great Britaine, Ireland, and
the rest of the Isles adiacent, where most usually heretofore any fish-
ing hath bene, untill they haue orderly demanded and obtained
licenses from vs, or such our Commissioners, as we haue authorised in
that behalfe, viz. at London for our Eealmes of England and Ireland,
and at Edenborough for our Realme of Scotland : Which Licenses,
our intention is, shall be yeerely demanded, for so many Vessels and
ships, and the Tonnage thereof, as shall intend to fish for that whole
yeere, or any part thereof, vpon any of our Coastes and Seas as afore-
said, vpon paine of such chastisement, as shalbe fit to bee inflicted
vpon such wilfull offendors.

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

Anno Dom. 1609.

APPENDIX G 757

APPENDIX G.

(Pp. 169, 196.)

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

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

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

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

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

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

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

Yf they gif unto yow a delaying answer and crave tyme and

758

APPENDIX G

laiser to send to thair superiouris to be advyseit with thame, yow
sail accompt of thair delay as ane refuisall, and accordinglie accept
sua of it.

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

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

Yf refuisall salbe maid unto yow of his Majesties rent and
dewytie, yow sail tak instruments upoun the said refuisall with-
out forder contestatioun ; and, gif obedience be givin and payment
accordinglie maid, yow sail lykwayse take instruments thairupoun.

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

APPENDIX H 759

APPENDIX H.

(P. 251.)

EEGLEMENT FOE PREVENTING ABUSES IN AND ABOUT
THE NARROW SEAS AND PORTS.

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

His most Excellent Maty taking into his Eoyall Consideration,
upon the frequent Complaints, as well of his own Subjects, as the
Subjects of other Princes and States in Peace and Amitie with his
Maty. That his Seas (commonly called the four English Seas)
are more infested now a days then heretofore, by men of Warre
and such others, who living by spoile haunt those Seas, with ships
and vessels of strength warlikely appointed to gett prey and booties,
whereby not only his Maty6'8 own Subjects and the Subjects of his
friends suffer manifold losses, violences and Injuryes in their persons,
ships and goods, but also divers strange Insolencyes indignityes and
contempts are committed, tending indirectly and by consequence to
the denyall and impeachment of that Soveraignety and especiall and
peculiar Interest and property, wch his Maty an(j j-,js Predecessors time
out of mind have had and enjoyed in the said Seas, and soe approved
not only by the fundamental! Lawes of this his Kingdome, but
by the acknowledgement and assent of the bordering Princes and
Nations, as appeareth by undoubted Records. His Maty out of
his Princely wisedome and providence (with the Advice of his Privy
Councell) hath thought it most necessary, as well for vindicating
his own honour and right in the said Seas, as in point of Justice
for securing the passage of his Subjects and friends to and fro his
harbours and Ports, and all other Ports [1 parts] of his Dominions,
to make this open declaration ensuing.

1. That notwithstanding the continuance of ye war between the
K. of Spaine on the one side, and the United Provinces of the
Low Countryes on the other side, his Maty doth streightly pro-
hibite any force, violence, surprize, or offense to be done or attempted
either fro Man of Warre to man of Warre, or man of Warre to
Merchant, or Merchant to Merchant of either Party within the
limits wch his Maty wju cause to be described in a Plott for that
purpose, but that all of what Nation soever soe long as they
shall be upon those places or Seas aforesaid, especially within
such limits, shall be understood to be under his Matyes Protection,
and obliged to be at Peace each with other.

760

APPENDIX H

2. Because it appeareth that an especiall occasion of the mutuall
spoiles and acts of hostility executed by the said men of Warre
each upon other and sometimes upon his Maty68 own Subjects, or
the Subjects of other Nations wch are in Amity with the Soveraignes
of the Spoilers, ariseth from the opportunity wc^ the said Men of
Warre have by continuing and abiding in havens, Sea-shoares or
Sea-Roades and other harbours of his Ma^68 Kingdomes, whence
they gett intelligence of ships and vessels outward and hitherward
bound, and accordingly assayle them, where it is most for their
advantage, to the great hindrance and interruption of free Com-
merce and Entercourse, His Maty68 Will and Pleasure is, That, for
the reasons aforesaid, noe shipps of "Warre, belonging either to the
K. of Spaine, or any his Subjects, or to the said United Provinces,
or any of their Subjects shall be permitted or allowed to come,
enter, repaire, or arrive in or to any of his Ma^68 Towns, Citties,
Sea- Shores, Havens, Harbours, or Sea roades, whatsoever, or there
to abide and continue, except they happen to be constrained either
by force of Tempest, or buying of Victualls, or other things, or
for repairing of shipping, so that they doe no hostile act in the
said Places, but demeane themselves honestly and quietly as it
becometh Confederates and friends, and so as they stay and remaine
not in and about the said Ports any longer then shall be needfull
for reparation, and Provision of necessary es.

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

4. Because it is very like, that during the continuance of the
Warre betweene the K. of Spaine, and the United Provinces as is
aforesaid, each Party may gaine and acquire fro other in places out
of the aforesaid Limitts, ships, and goods, His Ma*y doth declare,
That as he will afford to the conquering Partyes, free passage
through his Seas for themselves, their ships and prizes, and like free
accesse and repaire to all his Ports and harbours, and safe aboad and
continuance in the same during their occasions, so his Ma*y shall
not understand it to be any breach of his Peace, or violation of
that Security wch he intendeth to mainteine, if the enemyes of the

APPENDIX H 761

conquering Party shall reconquer or regaine the said Prizes, before
the conquering Party shall have brought his said Prizes within
any of his Ma*yes harbours, or when after they shall have departed
with the said Prizes homewards, or elsewhere from the said harbours,
the right of Warre and Law of Nations giving like allowance to either
of the said hostile actions, Provided always, that his Maty doth
not mean hereby to derogate from the Jurisdiction of his Court
of Admiralty, but if any action (in forme of Law) shall be lawfully
instituted and duly presented in the Admirall Court ag* the said
Prizes and the Takers thereof, his Ma*y will cause Justice to be
administred in that behalfe with all possible expedition.

5. Whereas mention is often made in the premisses of his Ma^68
Protection within the aforesaid bounds and limits, his Maty is now
pleased further to expresse his Intention and meaning to that effect,
viz. That he shall readyly give his Letters of Safe Conduct
under the Great Seale of his Admiralty to any the Subjects of
the Princes or States in league and Amity with his Maty desiring
the same from the Lords Commissrs of the Admiralty, to whom
his Ma^ will referre the Consideration and allowance of such Petitions,
the said Letters of Safe Conduct to be conceived in the best forme.
And if any man of Warre or other Person whatsoever shall assault
or use any violence to any ship or vessell, or the persons therein,
within the limits aforesaid his Maty will hold such offender being
lawfully convicted thereof for a Pirate, and will cause his Officers
to inflict such punishment thereupon, as in Cases of Piracy is
usuall, if the said offenders can be apprehended within any his
Maty68 Countrey or Dominions, or any other, or any other ships
or goods belonging to them, To wch purpose his Ma*y will cause
notice to be given from the Court of his Admiralty to all his
Officers in Ports and Vice-Admiralls and Captaines of his Forts and ships,
But if all this notwithstanding, the said offenders cannot be attached
or apprehended, then the Party wronged, upon sufficient testimonyes
to be recorded in the Court of Admiralty may take out of the said
Court Processe, conteining a Monition for the said pretended offenders,
to appeare in the Court of Admiralty within 4 moneths next after
the date of the said Processe, there to answer for the pretended
wrong or violence, the said Processes to be affixed openly in some
eminent place of the Royall Exchange, London. And if the said
offenders shall not render their bodyes to Justice, then upon faith
made, that the said Processe was duly taken out, and the next day
after the date thereof was publiquely affixed as is aforesaid, his
Maty will by his Letters of Request under his Privy Seale to the
Soveraignes of the said offenders, or otherwise, pursue such further
proceedings ag* the said offenders, as is agreeable to the Custome
amongst Sovereigne States and Princes and the Law of Nations in
like Cases.

762 APPENDIX I

APPENDIX I.

(P. 289.)

REPORT OF THE ADMIRALTY TO CHARLES I. AS TO THE
EMPLOYMENT OF THE SHIP-MONEY FLEET IN WAFT-
ING AND SECURING FOREIGN MERCHANTS PASSING
THROUGH HIS MAJESTY'S SEAS, AND IN PROTECTING
FOREIGN FISHERMEN WHO ACCEPT THE KING'S
LICENSE.

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

IT may Please your Maty,

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

The first of these that fell into debate was that concerning the
fishing, and by Sr Henry Martin it was made evident vnto vs that
yr Mats father of blessed memory in yeere of his

Raigne, was, vpon long and mature deliberacion, satisfied and re-
solved, that the fishing in his Seas, and upon the coasts of his
Dominions, did justly appertain unto him as a right incident to
his Crownes, and that in pursuance thereof, he did then sett out
his Royall Proclamation, thereby declaring his title, as allso his
pleasure, that no stranger of what quality soever should presume
to fish there without his expresse license, and so was graciously
pleased in the said Proclamation to appoint, that for the Coastes
of England and Ireland licenses should be given in London, and
for those of Scotland in Edenborough.

And howsoever Sr Henry Martin did allso make it appear unto
us that the States of the Vnited Provinces did at that time sende
Commissioners into England who presented to his Majesty a
paper contayning allegations by wch they did entend to prove
continued custom and a present possession of that fishing, mention-
ing w^ll som treaties that had bene heretofore betwene the
Kinges of Englande and the Dukes of Burgundy in fauor of that
their fishing, yet upon the whole matter, and after due deliberation,

APPENDIX I 763

wee were all of opinion and are so still, that the Eight and Eoyallty
of that fishing upon yor Mats Coastes doth undoubtedly belong
unto yor Majesty by inheritance, so you may iustly prohibit or
license all strangers at yor Royall will and pleasure.

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

In this wee are now much guided by that which yor Majesty
yor selfe was pleased to declare unto us concerning the protecting
of all such fishers as shall take yor license. For it is most certain
that the Hollanders will by no meanes be so much induced (be
the right what it will) as by consideracions of their owne proffitt
and safety. Wee therefore thought itt (and do most humbly offer
it to yr Majesty as our opinion) that vnto the Minister or Ministers
of the States residing here, it may be intimated and declared, that
yor Majesty doth no way relinquish that iust right and clayme of
inheritance to the Royall fishings, so divolved unto you from yor
Royall Predecessors, but are resolved to defende it as the hereditary
right and possession of any other yor Dominions. Yet least they
should think you do now challenge it in a tyme that they have
most neede of yor favor and grace, it may be tolde them, that it
is farr otherwise, for whereas yor Majesty's father did barely offer
them licenses, you do now offer them safety and protection wfcall,
and that wch further moved you to do it, in this season, is, that
by a third Prince, they are of late interrupted and beaten from
that fishing even in sight of yor Majesty's harbours ; wherein yor
Majesty is prejudiced in honor and Interest, and they in Proffit.

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

That by taking licenses from yor Majesty you may justify the
drawing yor sword in their defence, and likewise for the main-
tenance of the said licenses against any notwithstanding any
league or treaty whatsoever, wch without that obligation might
seeme a breach of that neutrality wch hitherto yor Ma*y hath
preserved in yor selfe.

And lastly wee tooke into consideration that in case the
Hollanders shall willfully refuse to take those licenses upon so
gracious and fauorable conditions from yor Majesty then we were
all cleere of opinion, that yor M. should renew and publish the like
proclamation to that of the King yor father, and prosecute the settling
of that yor right as a thing so highly concerning you in honor,

764 APPENDIX K

dominion and profit. And so we do humbly conclude this point,
with advice, that all such licenses as shalbe granted, be rated accord-
ing to the tonne or burden of the vessells, so to be licensed.

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

And because it wilbe a difficult matter to expresse in any
Commission or Instructions a certain somme or duety to be taken
of every ship so wafted, for that som shippes are rich, others of
lesse value; som will require a short waftage, others a longer.
Therefore we are of opinion, that for the value, much is to be
left to the discretion of yor Majesty's Generall and commanders,
and that som honest hable men may be employed to keepe bookes,
and to receave the moneyes of all those waftings wc^ shall occurr,

and be accomptable and answerable for the same. [5 Feb. 1636.
Copy by Windebank.]

APPENDIX K.

(P. 389.)

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

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

A BRIEFE Narrative of the Treatie at the Hague betweene the
honoble Oliver S* John, Lord Chiefe Justice of the Court of
Cofnon Pleas, and Walter Strickland Esq. Embassadors extra-
ordinary of the Parliament of the Cofhonwealth of England, to
the great Assembly of the States Generall of the United Pro-
vinces begun upon the 20th of March 1650 [1651] and continued
vntill the 20th of June 1651 and then broke of re infecta.

A Drafte of the Treatie which is to be made and entred into with
the extraordinary Ambassadors of the Republique of England.

APPENDIX K 765

2.

Confederated "j That they shalbe, and remayne confederated friends,
ffrds for defence I vnited and allyed for the defence, and preservation
&c. & against Dys- ,.Ti •> f * i V

tourbrs &c. ' of the Libertye and freedomes of each others people,

and mutuall Comerce Navigacon, and Comon Interests
against all those that shall endeavour to disturbe either of the States
in the same by water or land in manner as is herevnder declared and
expressed.

17.

Libertie to dwell ~\ The subiects, and Inhabitants on both sydes may
m each oth" lands I co~^ and ^^ {n e&ch others landg reciprocallye,

<x> lO GDjOJ iH|ll;ll I f •ti-i-i

privilges wth the and take their setled residence there, have their
Natiues &c. owne houses there to dwell in, and their Ware-

houses for to bring their goods, wares, and Mer-
chandizes thither, and also vse their trade, and comerce there in all
securitye, and without hinderance of any one as well at sea, other
waters, as at land, enioyeing there, and every where else, the same,
privilidges, Libertie, and freedome, as the Inhabitants, and each others
subiects doe respectively enioy there in their own Country, and in
case any hinderances happen they shall really, and speedilye be
removed.

18.

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

19.

No harboring of > pOr to make the free Navigation, and comerce,
on the seas, Rivers, and every where more certeyne,
Rouers & Co- J- the said Republicke, and Vnited Provinces, shall
to be pun- not receave, nor suffer, or pmitt that any Pyrats, or
' Searovers, be receaved, kept, or harboured by their
subiects, in their respective Havens, Lands, Cittyes,
or Townes but shall cause as well the said cencealors, as Rovers, to
be psequuted, appqhended, and punished, for terrour to others as is

766 APPENDIX K

fitt, and the roved ships, goods, Merchandises yet in Esse, and in
being, yea though they were there sould, shalbe restored, or made
good to the right owners, or to such as have their Assignmts, or
Lettrs of Attorney, who doe sue for, and reclayme the said roved
ships, and goods, vpon a iuratory affirmation of the reclaymer till
better proofe.

20.
Sufficient securi- \ All pticuler psons on either syde, that goe out

tie by those who ! u particular Cofnissions, shalbe bound before

goe out vpon pti- r . .

culr comissions. they may goe to sea, to put in sufficient securitie

before the Judge of the place from whence he
setts saile.

21.

Both to set out ^ And to cleare the seas from all Pyrats, and

* Eovers' of what nation soever they bee> and to
defend, and free the Libertie, and freedoine of

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

22.

Each p tie s^j And for the further defence and advancemfc of
tolumaraSoi WncU I the freed°me> and Libertie of both the said Nations
•Irs of ye Comerce j Comerce, Navigation, and freefishinge in the sayd
navigSon Fiahg &c. J seas, the sayd fleets and alsoe other men of warr,
and comission bearers on either syde, shall not only
doe against Pyrats in manner aforesayd, but alsoe against all, and
singuler psons, whatsoever they be that shall chance to trouble, molest,
hinder, exacte, or against the Lawe of all nations burthen, or charge

APPENDIX K 767

them, or either of them in the sayd freedome, Comerce, Navigation, and
fishing. It is intended neverthelesse that the dampnifyed partie shall
first, and aforehand complayne of the same to the undampnifyed partie,
and endeavor together by all freindly waies, and intercession, that they
who molested them doe make repation to content, But if it be not so
done, that then they shall seaze, take, and surprize in the said seas,
not onlie with the said Fleete, but alsoe with all the strength of
shipping which they can bring to sea the ships, and goods of the
Cittie, and of her inhabitants, who have done the said trouble and
so continewe vntill that the dampnifyed partye shall have gott full
satisfaction, and every thing be putt agayne in full Freedome, that
all damage may be recovered, in case they chance to goe beyond or
exceed their comission, and charge.

23.

Men of warr to ~\ The men of warr of either partye meeting or
ships o/aMh* pi£ f overtakeing any Marchant shipp, or ships at sea,
or of ye Allies &c. J of the other partie, or of the others subiects, or
of the Allyes (alsoe comprehended in this Treatye)
and haveing both one course, or goeing both one way shalbe bound
so longe as they keepe one course togeather to take them vnder their
protection, and to defend them against all, and everyone.

24.
Retaking of ships -\ In case any shipp, or ships of eithers subiects,

anokthr° Havens11' or of a ^ewter chance to be taken in the Havens,
or Libertyes of the one or the other by a third
partie, being no subiects of either partie, they in or out of whose
Havens, or Libertyes the said ship, or ships shall be taken, shalbe
bound to help with the other party, to endeavo1" that the sayd taken
ship, or ships may be followed, brought back, and restored to the
Owners, but all at the charges of the said Owners, or interessed.

25.

Ships forced into -\ Jn case any Marchants ships of the subiects of
M?sfort^S?yad.f- I either Partye chance to come to harbour in the
part againe freely j Land of one or the other by tempest, or by
wthout paying any I pursuite of Searovers, or through any other neces-
sitye, force, or misfortune, they may sayle out
agayne from thence freely at their pleasure, without that they shall
therefore be bound to goe on shoare, vnlade, or sell their Merchan-
dizes there, nor to paye for the same any duties, or customes, it shall
in such cases be enough if they shew their Maritine lettrs and Passe
ports without being subiect to any other search.

768

APPENDIX K

26.

None to come ""
into each oth™
Havens w*h men
of warr to a
Number w<sh might
cause suspition &c.
wthout Leaue &c.

or forced to doe
of the sea.

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

27.

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

28.

Men of warre not -j Provided neverthelesse that none of the men
to be searcht onely I of w Qr guch &s haye CoiTli8gion on either

coming into Hauens >•,,,, . ...

to shew their syde, shalbe subiect to any search, or visitation
Comissns. ) there, or on the respective coasts, or alsoe in

the full sea, further then only to shew each
others Comissions, comeing into their respective Havens, and not
otherwise.

29.

Like libertie | All perticular Comission bearers on either side,
touchg Prizes &c. / shall likewise enioy the same freedome, in respect

of their owne ships, as alsoe of the prises which they shall have taken
from their particular on the comon Enemy, for to bring the said prises
to the place where they are bound according to their Comission,
which they shalbe bound to informe, or make knowne to the Officers
of the place, or to paie any dutye vnto them, or any else there, they
shalbe neverthelesse bound to shew their respective Comissions to the
sayd Officers.

30.

Goods of eithr "\
pty found in En- I

The goods, wares, and merchandizes of the
o be ^ subiects, and inhabitants of either partie, laeden,
prize as well as ye I and found in Enemyes ships shalbe vnfree, and
ships. J nrisp, as wp,ll as v6 shins.

prise as well as ye ships.

APPENDIX K

769

What serues for
victuall or main-
tenance of Life to
be free &c.

Sawsiges,

31.

No Assistance to ~\ It is alsoe expressly agreed, that the parties

.ElT-Sf °u,HRebel8 f Contractors shall not give, nor suffer that out of
by Cotrab'la wares •,

J their respective Countries, by their subiects, or

other Newters any assistance be done to their
respective enemies, or rebells, of any Contrabanda
wares, or Merchandises, as are all manner of fyre-
works, and what else belongs therevnto, as Cannon,
Musketts, Morterpieces Petards, Guns, Granadoes,
, Rests, Bandeliers, Powder Match, Saltpeter, Bullets ;
all sortes of armes, as Pykes, swordes, Headpieces, Cuirasses, Holberds,
and such lyke ; as also souldiers Horses, horse furniture, Pistoll cases,
Eapiers, Belts, and all furniture, fashioned, and made for vse of warr,
with expresse meaning that vnder the name of Contraband, or for-
bidden goods, there shall not be comprehended wheat, Come, and
other grayne, Pease, Beanes, "Wheat [sic : Meat ?], Salt, Wyne, Oyle,
nor generally all that serves for food, and maintenance of lyfe, but
shalbe free, as other goods above mentioned, And any of the said
Contraband goods, being found in each others ships, they may be
confiscated after knowledge of the case before a competent Judge,
without troubling any other Wares, or goods.

32.

No carying of \ It is further bespoake, that the subiects, and
&T%pTnUpenal°tie r inna^itants of either side, may not transporte, or
of Losseof ye ships carry any Portingall goods, wares, or Merchandises
&c- ' out of America, Asia, or Affrica, or into, or out of

Europe, or one parte thereof to another, nor vice
versa from Europe to America, Asia, or Affrick, nor from one part of
them to another, upon penaltye of losse of the same ships.

33.

Ships cast away
If claytnd wthin a
yeare & a Day to be
wth ye goods restor-
ed to the Owners
wthout suite.

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

3c

770

APPENDIX L

APPENDIX L.

(P. 398.)

TROMFS MEMORANDUM TO THE STATES OF HOLLAND
AS TO THE CUSTOM OF STRIKING THE FLAG TO THE

27TH FEBRUARY

ENGLISH.

9TH MARCH

1651.

(Aitzema, Saken van Staet en Oorlogh, in, ende omtrent de Vereeniyde Nederlandcn,

Vol. iii. p. 731.)

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

APPENDIX M 771

APPENDIX M.

(P. 404.)
CORRESPONDENCE BETWEEN TROMP AND BLAKE.

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

MONSR,

Le 19/29 du Mois passe nous entrerencontrans en mer mon
invention [sic : intention ?] estoit de vous saluer, mais me voyant attac-
quee de la sorte, et n'ayant peu scavoir la vostre puisque devant ny
apres ladite rencontre je n'ay parle a personne des vostres ne doubtant
toutesfois nullemant (selon que m'a tesmoigne Monsr. le Commandeur
Born, par les responses qu'il a faictes et donnees a celuy que je luy
envoyois pour luy communiquer mon ordre et sincere Intention) que
ne soions amis et bons alliez, fus contrairit, comme un homme d'honneur,
tant seulement de me defendere, mais d'autant que aujourdhuy, estant
•a lancre devant Calais on ma rapporte, qu'un de nos Navires le Capi-
teyne Tuynemans de Middelbourg auroit este emmene a vostre Kade
aux d'unes, leqtiel je croiois estre coule en fond, comme celuy seul
qu'il nous defailloit. C'est pourquoi je vous supplie en toute amitie
que ce soit votre plasir, que ledit navire nous soit rendu et mis en
main du porteur de ceste, en forme qu'il a este prins, et me promets,
que la bonne alliance et union entre Messeigneurs les Estats de Vostre
et de nostre Republycque, iiostre Religion et mutuelle amitie" fera, que
ne voudres le refuser, Sur quoy me tiendray oblige de demeurer, comme
veritablement je suis,

Monsieur,

Vostre Tres humble Serviteur,
(Signe) M. HARPTS. TROMP.

En notre navire Le Brederode le 2e Junij

1652 a la Rade de Calais.
The superscription was : —

A Monsieur,

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

Gardiner (Letters and Papers, 257) gives Blake's reply " retranslated
from the Dutch translation." The original, which was appended to

772 APPENDIX N

Tromp's letter to the States-General, is given by Tideman, as follows,
from Lias Admiraliteit : JBijvoegsel bij Tromps brief aan H. Ho. Mo.
uit Ostende d. d. 10 Juni 1652.

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

Yor humble Servant,

KOB: BLAKE.
DOWNKS, 29th May 1652.

APPENDIX N.
(P. 461.)

CONCESSION TO BRUGES TO FISH IN THE BRITISH SEAS.1

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

CAROLVS &c. Omnibus ad quos prsesentes literal pervenerint vel ullo
modo spectaverint salutem. Cum in virtutum albo longe Princeps
audiat liberalitas, quippe qu93 non tantiim beneficia sed ipsam etiam

1 Differences found in copy, State Papers, Doin., Chas. II., Vol. 839, p. 589, are
shown in brackets.

APPENDIX N 773

benevolentiam et humanitatem secum comites traliat, Hinc est, quod
Nobilissimae et antiquissimre civitatis Brugensis summis erga Nos meritis
coacti quodammodo, animique Nostri ductum secuti [sicuti], turn maxiruu
accept! hospitij memores, in hoc unum ferimur [fereruur] ut priorum
prementes Vestigia grati in earn animi non leve argumentum posteris quo-
quo modo traderemus ; Et sane aifectu tana [turn] singular! non tantiini
Sacerdotum, Consulum, Senatorum, et summus ille Nobilium ordo, sed
universa passim Urbs et Nos et fratres Nostros iniquitate rerum
hospites olim factos fovit semper et propensior indies accepit, ut
animo Nostro altius infixa recens adhuc amoris tan to" haareat memoria,
eaque jure quodam hsereditario ad Successores Nostros deferenda, ne
posteris Nostris tantaa benignitatis ingrata tandem obrepat oblivio, Regnis
utique [utque] Nostris ejecti benigniori hospitio in tantum recreari ccepi-
mus, ut iniquam [inquam] fortunse invidiam aequiori animo tulisse vide-
remur, eo saltern nomine non passuri [possum] unquam ut ad priorem
statum reduces ingratorum nota laborenms. Vellemus quidem eadem
alacritate qua prsedicta Civitas Brugensis (Celeberrimum quondam Em-
porium turn magnificentia, amplitudine et fulgore prae cseteris clarum)
benevolentiae et benignitatis fidem coluit, gratum auimum testari, &
Civitati de Nobis tam bene meritae pristinam gloriam et splendorem
illaesum prorsus, et [est] integrum praestare. Qua de causa a Viro Nobis
praecipue dilecto Marco Alberto Dognati Equite [d'Ognati Equiti]
Aurato, Regisque Catholic! ad renovandam Belgij Dignitatem Commis-
sario, rebusque Nostris singular! cura intento a charissimo consanguineo
Nostro (et) Illustrissimo Marchione [Marchioni] de Castel-Rodrigo
Belgij et Burgundiae Gubernatore de Commercij libertate hoc tempore
facienda misso [misse] turn literas, turn Monochroma Novi Opiticij,
Portus, usque ad Oceanum Ductus [ductos] nuper elaborati et in cap-
acern Navigationis formam redacti, grato animo accepimus ; Laetique
benignitate pristina, Regiam aliquam praerogativam quas non [non non]
ingrate spondeat, in predictam civitatem Brugensem conferre medit-
amur, plena potestate & authoritate Nostra Regia plene, libere
sponte, ac motu proprio dantes & concedentes sicuti [sicut] per
pr?esentes pro Nobis, Hseredibus et Successoribus Nostris damus
et concedimus, ut praedicta civitas Brngensis quocunque demum
impedimento obstante Quinquaginta Naves piscatorias in Mare Nostrum
in futurum possit deducere, nee non juxta Regnorum Nostrormn Oras
et Littora libere ac secure piscaturam exercere, turn etiam Haleces
[Halices] piscesque^alios quoscunque captare. Licebit porro prasdictae
Urbis Civibus ad Portus Nostros Littora et flumina cum prsedictis
Navibus appellere, retia siccanda [seccanda] et resarcienda in terrain
exponere, periculis hostium tempestatumque sese subdxicere, necessaria
turn ad victum turn ad alia quaecunque in oppidis alij.sque locis Reg-
norum Nostrorum justo pretio coemere, nullaque alia ad hoc special!
facultate aut salvi [salvus] conductus literis habitis aut petitis inde
redire libereque [libere] recedere ita tamen ut dictae Civitatis Brugensis

774

APPENDIX O

Magistrates literis, prsesentium vigore sub sigillo ejus exhibendis,
instruct! veniant ; caveant interim praedictarum Navium piscatori-
aruni proprietary, fide prius data apud dictum Magistratum per
sponsores idoneos, ne per ipsos piscatores, Nautas, aliosve ad pieces
derehendos substitutes, ad loca Nobis et Regnis Nostris inimica hujus-
modi onus subrehi sinant [hujusmodi oras sinant et] aut permit-
tant. Volumus igitur et per praesentes decernimus, ut prsedicta pisc-
andi libertas juxta numerum Navium supramemoratarum prsefatis
Urbis Brugensis Civibus solva [sola] semper et Integra maneat, et in
perpetuum per Nos ac Hseredes et Successores Nostros stabilita continu-
etur. Neque quisquam subditorum Nostrorum, cujuscunque status,
authoritatis, gradus seu conditionis, huic [hujus] N"ostrse liberte et
spontaneae concession! [concessionis] gratise, favori et privilegio, quoquo
modo contravenito. Mandamus igitur et injungimus Fratri Nostro
Charissimo Duc£ Eboracensi Magno Nostro Angliae Admiralio
[Admirallo] Nee non omnibus et singulis Regnorum Nostrorum
Thalassiarchis, ISTavium Bellicarum capitaneis et Ductoribus Pro-
vinciarum, Urbium, Arciumque maritimarum Prsefectis et eorura
Vicem gerentibus, Judicibus, Officialibus, et alijs quibuscunque
Ministris Nostris et juris Administratoribus, &c., ut prsedictis
piscatoribus in quacunque maris parte vel juxta littora, flumina,
Portusve ISTostros obviam facti, non modo illis injuriam non inferant,
sed e<5s etiam amice et benevole excipiant, ac ubi opus fuerit,
ijs opera ferant ijsdemque liberum accessum et recessum reditumque
in patriam una cum Navibus, piscibus, casterisque bonis suis, nullo
facto impedimento seu contradictione quacunque praastent et permit-
tant. In quorum omnium majorem fidem [fidem majorem] prassenti-
bus hisce manu Nostra Regia signatis [signatas] Magnum Nostrum
Anglise Sigillum appendi fecimus. Dabantur, &c., Julij 1666

APPENDIX 0.

(P. 692.)
TERRITOEIAL WATEES.

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

L' INSTITUT,

Considerant qu'il n'y a pas de raison pour confondre
en une seule zone la distance necessaire pour 1'exercice de la souver-

APPENDIX 0 775

ainete et pour la protection de la peche littorale et celle qui Test
pour garantir la neutrality des non-belligerants en temps de guerre ;

Que la distance la plus ordinairement adopted de trois railles de la
laisse de basse maree a e"te" reconnue insuffisante pour la protection de
la peche littorale ;

Que cette distance ne correspond pas non plus a la portee re'elle des
canons places sur la cote ;

a adopte les dispositions suivantes :

ARTICLE PREMIER. — L'Etat a un droit de souverainete sur une zone
de la mer qui baigne la cote, sauf le droit de passage inoffensif
reserve" a 1'article 5.

Cette zone porte le nom de mer territoriale.

ART. 2. — La mer territoriale s'etend a six milles marins (60 ati
degre de latitude) de la laisse de basse maree ou de la ligne de laquelle
il estparle dans I' article 3, sur toute 1'etendue des cotes.

ART. 3. — Pour les baies, la mer territoriale suit les sinuosites de la
cote, sauf qu'elle est mesuree a partir d'une ligne droite tiree en
travers de la baie dans la partie la plus rapprochee de 1'ouverture
vers la mer, ou 1'ecart entre les deux cotes de la baie est de dix milles
marins de largeur, a moins qu'un usage continu et seculaire n'ait
consacre une largeur plus grande.

ART. 4. — En cas de guerre, 1'Etat riverain neutre a le droit de
fixer, par la declaration de neutralite ou par notification speciale, sa
zone neutre au dela de six milles, jusqu'a ported du canon des
cStes.

ART. 5. — Tous les navires sans distinction ont le droit de passage
inoffensif par la mer territoriale, sauf le droit des belligerants de
reglementer et, dans un but de defense, de barrer le passage dans
ladite mer pour tout navire, et sauf le droit des neutres de reglementer
le passage dans ladite mer pour les navires de guerre de toutes
nationalites. II nest pas deroge par cet article aux dispositions de
I' article 10.

ART. 6. — Les crimes et delits commis a bord de navires etrangers
de passage dans la mer territoriale par des personnes qui se trouvent
a bord de ces navires, sur des personnes ou des choses a bord de ces
me'mes navires, sont, comme tels, en dehors de la juridiction de 1'Etat
riverain, a moins qu'ils n'impliquent une violation des droits ou des
inte"rets de 1'Etat riverain, ou de ses ressortissants ne faisant partie ni
de I'e'quipage ni des passagers.

ART. 7. — Les navires qui traversent les eaux territoriales se
conformeront aux reglements speciaux edicte's par 1'Etat riverain
dans 1'interet et pour la se'curite de la navigation et pour la police
maritime.

ART. 8. — Les navires de toutes nationality's, par le fait seul qu'ils
se trouvent dans les eaux territoriales, a moins qu'ils n'y soient
seulement de passage, sont sou mis a la juridiction de 1'Etat riverain.

776

APPENDIX 0

L'£tat riverain a le droit de continuer sur la haute mer la poursuite
commencee dans la mer territoriale, d'arreter et de juger le navire qui
aurait commis une infraction penale dans les limites de ses eaux. En
cas de capture sur la haute mer, le fait sera, toutefois, notifie sans
delai a 1'^tat dont le navire porte le pavilion. La poursuite est
interrompue des que le navire entre dans la mer territoriale de son
pays ou d'une tierce puissance. Le droit de poursuite cesse des
que le navire sera entre dans un port de son pays ou d'une tierce
puissance.

ART. 9. — Est reserved la situation particuliere des navires de
guerre et de ceux qui leur sont assimile's.

ART. 10. — Les dispositions des articles precedents s'appliquent aux
de"troits dont 1'ecart n'excede pas douze milles, sauf les modifications
et distinctions suivantes : —

1° Les detroits dont les cotes appartiennent a des Etats differents
font partie de la mer territoriale des Etats riverains, qui y
exerceront leur souverainete^ jusqu'a la ligne mediane.
2° Les detroits dont les cotes appartiennent au meme Etat et qui
sont indispensables aux communications maritimes entre
deux ou plusieurs Etats autres que 1'Etat riverain font
toujours partie de la mer territoriale du riverain, quel que
soit ie rapprochement des cotes. Us ne peuvent jamais etre
barres.

3° Dans les detroits dont les cotes appartiennent au meme Etat, la

mer est territoriale bien que I'ecartement des cdtest depose?.

douze milles, si a chaque entree du detroit cette distance nest

pas depasae.

4° Les detroits qui servent de passage d'une mer libre a une

autre mer libre ne peuvent jamais etre barres.
ART. 11. — Le regime des detroits actuellement soumis a des con-
ventions ou usages speciaux demeure reserved.

INDEX.

Aberdeen, 84, 215, 227, 298, 407

Abreu y Bertodano 011 territorial sea, 559

Admiral, office of, 30, 31, 32, 41, 51, 52,

53, 54, 266, 329, 363, 364 n.
Admiralty, 18, 31, 248, 249, 260, 261, 262,

263, 266, 277, 280, 286, 288, 293, 318,

3-28, 520
Admiralty and "striking," 277, 278, 380-

383, 438, 455, 456, 472
Admiralty, High Court of, 54, 120, 122,

124, 243, 244 n., 251, 285, 358, 363, 369,

391, 465 n. ; and striking, 513 ; decisions

as to neutral waters, 553 ; decisions as

to three-mile limit, 576, 577
Admiralty jurisdiction, origin of, 6, 17, 30,

o2
Admiralty, on extent of British Seas, 20,

438
Adriatic, 52 n. ; sovereignty of, 3, 4, 8,

16, 33, 107, 111, 339, 341, 350, 357, 361,

371, 539 ; fisheries of, 659
Aerssen, Francois van, Dutch' ambassador,

200, 336

Africaine, case of, 641 n.
Aginconrt, 8, 35
Agnes G. Donohoe, case of, 663
Albemarle, Duke of. See Monk.
Albertsz, Jan, Captain, 171, 173, 174
Alderney, 103
Alexander, Sir William, Secretary for

Scotland, 219, 220, 225 n., 227, 232
Alfred, King, 26
Algarve, fishery treaty with, 67
Algeria, 527 ; territorial sea, 657
Allin, Sir Thomas, 468, 471, 477
Alverstone, Lord, 692
Alward, G. L., 711 n., 739 n.
Amboyna, 430
America, British North, fishery disputes

with United States, 580 ; fishery limit,

650 ; ten-mile limit for bays, 626, 627,

628, 629 ; six-mile limit for bays, 627,

629, 630; fishery rights, 531, 532, 731,
731 n. ; Hague Tribunal on, 732 n. ;
Mixed Commission to delimit bays, 628 ;
modus vivendi with United States, 626,
628, 629 ; treaties regarding fisheries.
See Treaties.

America, fisheries claimed for crown, 235

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

Amsterdam Island, 194 n.

Ancient Britons and maritime dominion,
25,26

Angelus, 351

Angevins, 8, 26, 29, 65, 207

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

Anna, case of, 579, 641 n.

Annapolis, case of, 586 n.

Anne of Austria, 117

Anne, Queen, 161, 354, 520, 523

Austruther Easter, 165, 175 n.

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

Appropriation of sea. See Sea.

Aquitaine, 19, 213 ; fisheries at, 67

Archer, Walter E., 736 n.

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

Argyle, Earl of, 153 n.

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

Armed Neutrality, 522, 563, 571, 572

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

Aschehoug, on territorial sea, 686, 688

Assize-herring, 82, 124, 138, 144, 152-154,
163-171, 180, 194-196, 203, 293, 346,
347, 352, 355 ; proposal to levy from
foreign fishermen, 124, 167 ; demanded
from Dutch, 180 ; how to be levied from
Dutch, 195, 19(5, 757; paid by Dutch
fishermen, 169 ; value of, 195

Auber, on territorial sea, 691

Australia, pearl fisheries, 697

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

Ayrshire, fishermen of, 83

Azores, 106

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

Bacon, Lord, 73, 163 n., 189, 223
Bagg, Sir James, 280

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

778

INDEX

BalfourofBurleigh, Lord, 730

Ballantrae Bank herring fishery, 238

Balmerino, Lord, 187

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

Baltimore, 247

Barbary, 327

Barclay, Sir Thomas, 689 n., 690

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

Barents Sea, foreign trawlers in, 713

Barking, 699

Barneveldt, Elias van Olden, 155, 157 n.

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

Barrere, on the freedom of the sea, 595

Barrett, Frank, 738 n.

Bartolus, on territorial limit, 351, 539, 541

Bates, Joshua, on bay of Fundy, 625

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

Battle of the Downs, 330

Baty, Dr Thomas, Hon. Secretary, Inter-
national Law Association, 673 n.

Bays. See Territorial Sea.

Bayonne, 52 n.

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

Beaufort, Henry, 56 n.

Beaufort, Sir Thomas, 40

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

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

Bell Rock, territoriality of, 642

Bengal, Bay of, 625

Bergen, 109

Berkeley, Sir William, on striking, 472

Berwick, 49, 60, 73, 219

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

Beuningen, van, Dutch ambassador, 511

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

Beverning, Hieronymus van. Dutch am-
ba«sador, 415, 418, 433, 504

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

Binge, Raymond, 109 n.

Binning, Captain, 513

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

Birch, 28

Bird, Sir William, 174 n.

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

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

Bishop of Isles, 242

Bishop of Ross, 77

Bishop, on territorial sea, 683

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

Blackburn, Lord, on territorial sea, 589

Black Sea, 371

Blackstone, on Sovereignty of Sea, 580 n.

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

Blakeney, 49, 90 n.

Blockade, 209, 264, 265, 268

Bluntschli, on territorial sea, 682, 688

Blyth, 250

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

Bodin, on territorial limit, 540

Bohemia, 191, 197, 198

Bohemia, Queen of. See Elizabeth.

Bohusliin, herring fishery at, 62

Bordeaux, 28, 61, 97

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

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

Boston, 73

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

Botetourt, Sir John de, 46 n., 60

Bothnia, Gulf of, sovereignty over, 4,
564

Boulogne, 104, 274, 281

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

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

Brabant, 49, 50, 70, 71

Bracton, 66, 362 n., 539

Bradshaw, 409

Braeckel, Captain, 476

Braems, Sir Arnold, 318, 515

Brazil, 327, 393, 430

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

Brederode, W. van, 81

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

Bressay Sound, 129, 131, 215

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

Bristol, 96, 108

Bristol Channel, territoriality of, 586, 725

British Colonies, territorial sea, 661

British fisheries, foreigners at. See Fish-
eries.

British Seas. See Sea.

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

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

Britton, 539

INDEX

779

Brixham, 699

Brood and spawn of fish, 213

Brouershaven, 77

Brown, James, 194

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

Bruce, King Robert, 76

Bruce, Patrick, 181

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

Brussels, 71, 318, 335

Hucentaur, 4, 567 n.

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

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

Buckland, Frank, on inexhaustibility of
fisheries, 636

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

Burghs, Scottish, 216, 240

Burgundy, Duchess of, 71, 72

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

Burgundy, House of, 499

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

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

Burnham, 90

Bushell, William, 284

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

Cadiz, 246

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

Caithness, 126, 227

Calais, 18, 29, 34, 37 n., 45 n., 49, 50, 65,

68, 70, 71, 73, 74, 103, 104, 204, 205,

266, 273, 274, 278, 280, 282, 327, 401,

440
Callis, Serjeant, on the appropriation of

the sea, 54, 66, 358, 363
Calvo, on territorial sea, 340, 682, 688
Camden, 64, 142
Canada, fishery rights at. See British

North America.

Cancale, Bay of. See Granville Bay.
Canning, George, on Behring Sea, 583
Cannon range limit, proposed by Dutch,

156. See Territorial Sea.
Canterbury, 41
Cape Bojador, 105
Cape de Verdes, 106
Cape Finisterre, 270, 469, 478, 502, 505,

510, 515, 521

Cape of Good Hope, 105, 340, 343, 344
Cape St Vincent, 270, 434, 435, 465, 466 n.,

469, 478, 502, 503, 508, 510
Cardinal Infant, 243, 318, 319, 335

Carew, Lord George, 202

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

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

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

Carrick, Earl of, 225 n.

Carteret, Captain, 291, 327

Casaregi, on territorial sea, 558

Castile, 32, 67

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

Catalonia, 45

Cats, Dutch ambassador, 391

Cattegat, territorial ity of, 653

Cavendish, 5

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

Ceva, Cardinal de, 273 n.

Ceylon, pearl fisheries, 560, 697

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

Chamberlain, Joseph, 628

Champagne, on freedom of the sea, 595,
596

Chancellor, 181

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

Channel Islands, 29, 36, 103

Charles the Bold, 72

Charles I., 17, 28, 31, 117, 119, 338;
asked to free the seas of Hollander
busses, 211, 234 ; opinion on import-
ance of fisheries, 213; initiates fish-
ery association, 214 ; plan of, 215, 216 ;
lays scheme before Council in Scotland,
218, 219, 220 ; ill received in Scotland,
220 ; opposed by Scottish Parliament,
222 ; debates regarding, 224 ; his great
anxiety for, 225 ; Scottish Commissioners
appointed, 225 ; his letters on, 232, 233 ;
Royal Fishery Society established, 239 ;
proceedings of, 241 ; misfortunes and
failure of Fishery Society, 241 - 243 ;
claim to sovereignty of sea, 10, 11, 119,
209-212, 251, 258 ; proclamation regard-
ing narrow seas and King's Chambers,
251 ; draft proclamation re Sovereignty
of Sea, 759 ; personal policy, 253 ; pre-
text for equipping a fleet, 253 ; deceives
his Council, 255 ; secret agreement with
Spain, 253, 255, 260, 264; instructions
to first ship-money fleet, 259 ; failure
of his policy, 275 ; report of Admiralty
as to employment of second ship-money
fleet, 288, 762 ; instructions regarding
license money from foreign fishermen,

780

INDEX

295 ; proclamation forbidding unlicensed
tisbing by foreigners, 293, 294 ; licenses
to fishermen, 762 ; negotiations with
Dutch as to unlicensed fishing, 305,
306 ; tries surreptitiously to induce
Dutch to accept licenses, 317, 319, 3'21 ;
Dutch despatch a fleet to protect their
fishermen, 321 ; general dissatisfaction
with his actions, 324 ; his power on sea
wanes, 328 ; pretensions to sovereignty
of sea flouted by Dutch, 328, 329 ;
battle of Downs, 335 ; proceedings re-
garding Spanish fleet and Tromp, 331,
336

Charles II., his efforts to develop fisheries,
441 ; Bill to encourage fisheries, 443 ;
directed against foreigners, 444, 444 n. ;
establishes the Royal Fishery, 446-448 ;
failure of, 449 ; Dutch embassy, negoti-
ations concerning- fishery question, 449,
450, 451, 455 ; tries to prevent Franco-
Dutch treaty, 454 ; treaty with the
United Provinces, 455 ; disputes about
striking, 455 ; second Dutch war, 457,
458 ; very popular, 458 ; course of, 459 ;
terms of peace, 464 ; claim to exclusive
fishing withdrawn, 464 ; question of
striking, 464, 465; extent of British
seas, 465, 466 ; licenses offered to Dutch
fishermen, 460 ; De Witt's proposals as
to striking, 468 ; verbal arrangement
with Louis as to striking, 471, 471 u. ;
Triple Alliance, 474 ; secret treaty of
Dover, 474 ; obtains a subsidy, 475 ;
ill-feeling against Dutch fomented, 476 ;
accuses De Witt of secret negotiations
with Louis, 476 ; recall of Sir William
Temple, 476 ; pretext for war in the
"honour of the flag," 476; sends his
yacht Merlin to pick a quarrel over
the salute, 477, 478, 479 ; failure of the
Merlin, 480 ; dispute with Dutch as to
striking, 482 ; Dutch asked to acknow-
ledge his dominion of the seas, 482 ; the
Dutch hoodwinked, 482 ; rejects con-
cessions of Dutch, 483, 484 ; orders
Dutch shipping to be seized, 484, 485 ;
failure of attack on Smyrna fleet, 486,

487 ; declaration of war against States-
General, 487; declaration on the honour
of the flag and sovereignty of the sea,
487, 488 ; arranges salute* with Louis,

488 ; terms offered the Dutch, 490 ; de-
mands payment for fishery, 491, 491 n. ;
summons Parliament, 492; subsidy
granted, 493; the war intensely un-
popular, 493 ; efforts to stir up ani-
mosity against Dutch, 494-498; con-
gress at Cologne, 498 ; terms of peace
offered, 498 ; question of flag and strik-
ing, 498, 499, 501-503, 505, 506, 508 ;
question of fisheries, 498-500, 503-505,
508 ; negotiations for separate peace,
504-508 ; peace concluded, 508 ; estab-
lishes a new fishery company, 516

Charles V., 74, 75, 78, 79, 81
Charteris, A. H., 586 n.

Chaterton, Sir Richard, 448

Chatham, 459, 476

Chelchethe, John de, 50

Chelmsford, Lord, on territorial sea,
586 n.

Chester, 96

Chili, territorial sea, 661

Chitty, on Sovereignty of Sea, 580 n.

Chltty, on territorial sea, 597

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

Churchill, Lieutenant, 486 n.

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

Clarendon, Chancellor, 241, 457

Clee, 90

Cleveland yacht, 511

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

Cuut, King, and the sea, 26 ; charter re-
garding Sandwich, 542

Cockaine, Sir William, 202

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

Cockraine, Captain, 437

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

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

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

Coke, Roger, 127 n.

Colbert, French ambassador, 471, 471 n.

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

Colomb, Admiral, 311 n.

Columbus, 106, 340

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

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

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

Commonwealth, instructions as to strik-
ing, 380, 381 ; relations with United
Provinces, 384 ; negotiations for alli-
ance, 384, 385 ; St John's mission to
The Hague, 384-390; Navigation Act,
391; seizure of Dutch ships, 391; letters
of reprisal against the Dutch, 391, 392,
393; renewed negotiations, 392-396;
thirty - nine articles considered, 393,
764 ; differences as to sovereignty of
sea, 393, 394; question of striking,
394, 395 ; question of fishery, 394, 396

INDEX

781

question of right of visitation and
search, 396 ; negotiations interrupted,
397 ; indignation against States-General
for attack on Blake, 404 ; terms offered
to Pauw, 405 ; Dutch ships seized and
preparations for war, 405 ; declaration
on sovereignty of sea, 409 ; Mare
Clausum to be translated and printed,
410; peace negotiations with Dutch,
414-435; terms offered, 415; Dutch
propose the Intercursus Magnus as
basis, 416 ; liberty of fishing offered,
417; the twenty -seven articles pro-
posed, 419 ; proposal for fusion of Eng-
lish and Dutch, 416, 417, 418, 419;
question of dominion of the sea, 418,
419, 423, 433, 436 ; of extent of British
seas, 429, 431-436 ; of fishing, 417, 418,
419, 420, 42-2, 423, 424, 425, 427, 430,
436 ; of guarding the sea, 421-424, 431,
436 ; of limitation of Dutch fleet, 421,
422, 423, 436 ; of the Prince of Orange,
422, 430, 433, 435; of striking, 417,
419, 420, 424, 429, 431, 432, 436 ;
Dutch propose a "regulation " for, 405,
418, 424, 429, 431, 433; Dutch propose
to strike in all seas, 432 ; of visit and
search, 420-424, 431, 436 ; treaty signed,
435

Conception Bay, territoriality of, 588,
589

Conringius, 550

Conway, Viscount, 268, 269, 284 n.

Cook, George M., 728 n.

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

Cope, Sir Walter, 128 n", 138

Corinth, Gulf of, 661

Cornish, James, on spawning of fish,
610

Cornwall, pilchards, 134, 143

Cornwallis, Lord, StiO

Cottingham, Sir Francis, 227 n.

Cottington, Lord, 253, 263

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

Coventry, Lord. 254, 255, 286

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

Crail, 84, 175 n., 242

Crauclon, 54, 55, 56

Cromarty, 227

Cromer, 90, 296

Crompton, Sir Thomas, 146

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

Cromwell, Kichard, on extent of British
seas, 438.

Crow, Captain, 479, 480

Cuba, territorial limit, 665

Cunteus, Professor Petrus, 375

Customs limit. See Territorial sea.

Dana, on territorial sea, 683

Danby, Earl of, 516

Danegeld, 26

Dantzic, 216, 242

Dartmouth, 267

David I., 59

Davidson, Thomas, 84

Davis' Straits, 184

Deal Castle, 279

Dean, Major-General, 382, 406, 408

Decay of English fisheries. See Fish-
eries.

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

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

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

Delfshaven, 294 n., 298 n.

Delft, 73, 397 n.

Demetrius, Emanuel, 156

Denmark, 26, 45, 54, 464, 52" ; claim to
cod-fishing at Iceland, 528 ; to whaling
at Greenland, 527 ; fisheries of, 92 ;
fishermen on British coasts, 605 ; claims
to sovereignty of sea, 4, 8, 16, 33, 86,
105, 112, 158, 339, 340, 358 ; opposed by
Queen Elizabeth, 107, 108, 109, 110; on
striking, 470, 471, 473; territorial sea,
528, 529, 653, 655, 664 ; range of vision
claimed, 529, 545 ; inclusion in Crom-
well's treaty with Dutch, 433

Deptford, 266

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

De Seneterre, 302

Desjardins, on territorial sea, 685, 688

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

Devonshire, Earl of, 138

De With, 408, 437

De Witt, Cornelius, 459

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

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

Digby, Sir Kenelm. 292, 375

Digges, Sir Leonard, 96

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

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

Dominion of Sea. See Sovereignty of
Sea.

Dorchester, Viscount, 212. See Carleton.

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

Dorset. Karl of, 227 n.

Dort, 73

782

INDEX

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

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

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

Drake, Sir F., 5, 107

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

Dudley, Sir Henry, 116

Dues levied at Scarborough Castle, 64

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

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

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

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

Dunkirk privateers, 1], 243, 247-250, 261,
263, 265, 273, 282, 289, 291, 296, 302,
304, 318, 322, 327, 328, 330

Dunn, Sir Daniel, 146, 155

Dunwich, 90 n.

Durham, 133

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

Dutch, 5, 69, 77, 79, 81, 143, 217, 243,
253, 255, 261, 263, 275, 289 ; commercial
jealousy of, 10, 125, 142, 413; encour-
aged to settle in England, 515 ; growth
of fisheries and commerce, 10, 62, 87,
143 ; fisheries, growth and extent of,
125, 126, 127, 128, 130, 142 ; on British
coasts, 62, 64, 605 ; on Scottish coast,
82, 83, 187 11., 201 ; statistics of, 125-132,
158, 190, 438, 439 and n., 534 ; strength
of fishing fleet, 98, 101, 125, 126, 127,
129, 144, 321 ; value of, 125, 131, 132,
142, 292, 366, 515 ; exports of fish, 87,
135 ; embargo on, 460, 462, 489 ; supply
England with fish, 93 ; herring fishery,
10, 61, 78-85, 87, 93, 95, 112, 122, 125,
131, 134-137, 143-145, 157, 208, 214, 215,
247, 25d, 273, 277, 296, 316, 407, 415,
424, 428, 449, 450, 451, 515, 534; de-
scription of, 131 ; exports of herrings,
132, 134 ; herring Heet attacked by
Blake, 406, 407 ; whale fishing. 194 n. ,
181, 183, 184, 185, 407, 528 ; fishermen,
frugality and industry of, 137, 141 ;
settled at Stornow»y, 216, 221, 237;
complaints against, 144, 154, 168, 175,
177, 187, 234, 257, 292, 301, 438 ; pro-
posal to tax, 141, 214 ; assize herring,
169-171, 197, 198; licenses to be forced
on, 264, 300 ; proceedings with refer-
ence to Northumberland's fleet, 301-305,
312, 313 ; payments for licenses to fish,
309, 310, 311 ; attempt to distribute
licenses, 320, 321. See also Fisheries
and Sovereignty of Sea.

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

Dutch fleet to protect fishermen, 321

Dutch East India Company, 185, 343, 344

Dutch Republic. See United Provinces.

Dyer, Sir Edward, 103

Dymes, Captain John, 216, 217 n.

East India Company, 194

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

Eastland Merchants Company, 160

Eddystone, territoriality of, 641, 642, 643

Edgar, King, 26, 27, 28, 141, 158, 3^0,
365, 409

Edinburgh, 216, 228, 298, 324, 351

Edmonds, Sir Thomas, 243

Edward I., 7, 32, 40, 42, 43, 44, 49, 51,
58 11., 60, 66, 67, 213, 214, 363, 365

Ed ward II., 52n.,56, 67, 254

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

Edward IV., 63, 71, 110

Edward VI., 88, 89, 116

Elbe, 28

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

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

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

Emden, 129, 130, 195

England, Sea of. See Sea.

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

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

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

Essex, Earl of, 128 n., 473

Ethel red, King, 26

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

Eversley, Lord, 702 n.

Evertsen, Vice-Admiral Jan, 399, 408

Exeter, 96

Exton, Sir Thomas, 513

Faeroe Isles, 175, 176, 528, 5:29, 545, 647,

711

Fair Isle, 126, 131
Fairlea, 65
Fairlight, 65, 402
Fajardo, Don Louis, 206 n.

INDEX

783

Falkland Islands, 650

Falmouth, 276

Fame Isles, 618

Farrer, Sir T. H. , 646

Fast-days, 58, 87

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

757

Ferguson, on territorial sea, 684
Fielding, Captain, 320, 321, 322, 323, 324
Fife, 59, 166, 175 n., 445; fishermen of,

61, 83, 165

Finmark, 108, 109, 568
Fiore, on territorial sea, 684
Fish, abuses in trade in, 112, 113
Fish, commerce in, 61, 82, 88, 112, 134,

141 ; exports, 61, 132 n., 133, 134. 214 ;

imports, 67, 113, 145, 442 ; prices regu-
lated, 91
Fish days, 58, 87, 88, 90, 92 and n., 93, 94,

99 n., 114, 115, 136, 444
Fish, demand for, in early times, 58
Fish, destruction of spawn of, 608, 609,

610

Fish for victualling army and navy, 58
Fish, fresh, distribution of, 58
Fish, preservation of brood of, 213, 607,

608, 609, 610
Fish, protection of breeding-grounds of,

610

Fish, royal, 66, 362 n, 363
Fish, spawning of, 610
Fish, taxation of imported, 88, 441, 442,

446
Fish tithes, 59, 101, 141, 142, 203, 214,

242, 355
Fish, undersized, 444 n., 608. 636, 704,

706, 707, 708-710
Fisheries, appropriation of, 102
Fisheries, as nursery for navy, 87, 113,

134, 213

Fisheries, charter to Bruges, 461, 772
Fisheries, claim to wide limit by Argen-
tina, 661, 662
Fisheries, claimed for crown, 57, 62, 288,

289, 292
Fisheries, closure of areas, 662, 720. See

Territorial Sea, Extra territorial.
Fisheries, cod-fishing at Lofoten Isles,

672 and n.

Fisheries, Conference at Hague, 1881, 632
Fisheries, decay of English, 86, 87, 89, 91,

92, 115 ; of Dutch, 534
Fisheries, disputes in Nortli Sea, 631 ; at

Iceland, 110 ; in Nortli America, 621,

622-630

Fisheries, distant voyages, 57
Fisheries, Dutch, 93, 94, 96, 125-130.

See Dutch.
Fisheries, Dutch regulations on British

coast, 605, 606 n.

Fisheries, early English law as to, 66
Fisheries Enquiries — Anglo - French in

1837, 611 ; by Royal Commissions in

1863, 701 ; in 1878, 702 ; in 1883, 702 ;

by Select Committee of House of Com-
mons in 1817, £10 u. ; in 1833, 607-610 ;

in 1893, 691, 707, 714 n. : by Select

Committee of House of Lords in 1904,
710, 711 n. ; by Mr Higgin as to dis-
putes in North Sea, 1880, 631

Fisheries, estimated profits of, 137

Fisheries, exclusive limit for, 632, 633

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

Fisheries, for coral, 659, 669, 684, 695 ;
sponges, 659, 669 ; oysters, b'12, 621, 697 ;
pearls, 697

Fisheries, for "floating" fish, 698

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

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

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

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

Fisheries, in Channel, 65, 607

Fisheries, in North Sea. See North Sea.

Fisheries, increase of shipping due to, 135

Fisheries, industries dependent on, 135

Fisheries, International Conference, Lon-
don, 1890, 706

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

Fisheries, international regulations, 61-1,
618, 619, 630, 631, 636, 638, 645 n., 648,
704, 729 ; German proposal to protect
fry and small fish, 636

Fisheries, liberty of fishing granted to
Sweden, 427

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

Fisheries, license for fishing at Zowe, 65,
749

Fisheries, old Scandinavian rights, 677

Fisheries, old Scots Acts regarding, 82, 83

Fisheries, policy of Scottish kings, 59

Fisheries, promoted by Charles I., 213,
214

Fisheries, proposals to develop English,
136, 138

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

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

fisheries, rise of British , 534

Fisheries, Scottish treaties regarding, 75-
82

784

INDEX

Fisheries, sealing regulations, Argentina,

662 ; Uruguay, 663
Fisheries, small-fish grounds, 705, 708
Fisheries, the "Belgian devil," 631
Fisheries, trawling, 134 ; methods, 699,
700, 701, 708, 714 ; development of,
680, 698-701, 711, 713, 739 11. ; enter-
prise of British trawlers, 713 ; by Bri-
tish vessels on foreign coasts, 680, 711,
712, 713, 730, 735, 737 ; in Barents Sea,
657, 713 ; at Faroes, 711 ; at Fimnarkeu,
680 ; French West Africa, 713 ; Iceland,
647, 648, 711; Morocco, 713 ; Spain and
Portugal, 667 and n., 668 n., 713; for-
eign trawlers on Scottish coast. 647 ;
damage by foreign trawlers, 631 ; de-
struction of undersized fish, 714 n. ;
Board of Trade empowered to restrict,
717 ; German proposals to restrict in
North Sea, 636 ; restrictive regulations,
662, 698, 714, 733; in England, 715;
prohibited beyond ordinary limits in
Adriatic, 659 ; Argentina, 662 ; Austria-
Hungary, 715 ; Italy, 715 ; Ireland,
715, 716; Norway, 680, 715; Portugal,
666-668 ; Scotland, 716-720 ; Spain, 666-
668 ; bill to prohibit within eight miles
of coast, 444 and n. ; German proposal
to restrict, 636 ; restrictions desired by
English trawlers, 702, 704-710; ten-
mile limit desired by English trawlers,
707 ; voluntary closure of Continental
area, 704, 706 ; international agreement
necessary, 732, 734, 735, 738 ; recent
views as to extension of limits, 735, 737
Fisheries, tribute from foreigners pro-
posed, 101, 138, 139, 295
Fisheries, truce for fishing during war,

74, 75
Fishermen, early frequent distant seas,

86

Fishermen, foreign —
On British coasts, 29, 33, 57, 59-62, 65,
69, 76, 83, 91, 92, 98, 101, 126, 129,
145-150, 227, 288, 533, 544 n., 605-
608, 611, 615, 617, 618, 631 ; Belgian,
615-618; Dutch, 60, 62, 64, 77-79,
82-85, 94, and see Dutch ; Flemish, 29,
59-62, 83, 101 ; French, 59-62, 65, 83,
101, 150, 544 n., 606-608, 611, 617,
618, 631; Portuguese, 129; Spanish,
67, 129, 150 ; cause of increase of, 61 ;
complaints against, 94, 95, 100, 101,
144, 604, 605, 631 ; against Belgian,
615, 616; Dutch, see Dutch ; French,
29, 544 n., 606-608, 611, 617, 618,
631 ; encouraged in England, 75 ; pro-
hibited to fish, 9, 33, 150, 202, 227,
293, 294; licenses for, 62, 65, 150,
294 ; tax on proposed, 101, 138, 139,
214, 295; protection of, 63
On Irish coasts, 33, 92, 98, 101, 150
Fishermen, guardians of, appointed, 63
Fishery Conventions, 604, 693 ; Anglo-
Belgian, of 1852, 617 ; Anglo-French, of
1839, 612, 613, 644; of 1867, 618, 619,
630, 633, 634, 645 ; North Sea, of 1882,

634, 637-639 ; Norway and Sweden de-
cline to adhere to North Sea Conven-
tion, 636

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

Fishery, right of, Boroughs on, 364 ; Callis,
363 ; Craig, 357 ; Digges, 362 ; Fiore, K84 ;
Graswinckel, 412 ; Grotius, 346, 351,
356; Hall, 688 ; Hautefeuille, 601, 602;
Wicquefort, 495 ; Malynes, 358 ; Mea-
dows, 525; Pontanus, 376; Puffendorf,
551 ; Rayneval, 596 ; Sarpi, 547 ; Sel-
den, 372, 373 ; Stubbe, 497 ; Vasquius,
341 ; Vattel, 560, 561 ; Welwood, 354,
355 ; Wheaton, 599 ; Wolff, 559

Fishery rights, British North America.
See America.

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

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

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

Fishing, old limit on Scottish coast, 79

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

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

Fitton, Sir Henry, 64

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

Flag, "honour of." See Striking.

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

Fleta, 539

Fletcher, George, 225 n., 239 n.

Flushing, 142

Fogg, Captain, 322, 323

Foggo, Robert, 78

Folkestone, 33, 145 n.

Foreign Enlistment Act, 589

Foreshore, ownership of, 361-363

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

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

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

Francis I. of France, 74, 75

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

Frankland, 311 n.

Fr'eiras, F. S. de, on Mare Liberum, 3.r>0

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

Frezno, Marquis of, 508

INDEX

785

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

Froissart, 32

Fryer, C. E., 619 n.

Fundy, Bay of, 623, 624, 625

Fyvie, Lord President, 223

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

Galicia, 98, 469

Qaina, Vasco da, 340

Garde, Baron de la, 116

Gelderland, 81

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

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

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

Gerbier, 318

German Ocean, 19, 209

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

Ghent, 71, 73 ; negotiations at, 581

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

Glanville, 539

GlUckstadt, 473

Goch, Johan van, 185 n.

Godey, on range of vision, 546

Godolphin, 52 n., 53, 515

Godsdue, Richard, 162

Gondomar, Count of, 206, 208

Goodwin Sands, territoriality of, 640,
640 n.

Goree, 477, 478, 490, 511

Goring, George, 314

Grange, case of, 574

Granville Bay, 612, 619, 697

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

Gravelines, 68, 282, 327

Greece, territorial sea, 661

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

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

Grimaldi, Reyner. tiee Grimbald.

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

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

Groningen, 81

Groningen-Watt, 578

Groot, de, 504

Groot, Cornets de, 344 n.

Groot, Hugo de. See Grotius.

Grotius, 5, 105, 118, 148, 157 n., 158 n.,
173, 174, 185 n., 190, 191 n., 256 n.,
353, 366, 370, 530, 538, 546, 591 ; ap-
pearance of, Mare Liberum, 338, 342 ;
object and genesis of, 342, 343, 344 ;
arguments of, 344-350 ; defends a Dutch
mare clausum, 340, 356 ; ' Rights of
War and Peace, ' 347 ; on appropriation

3

of sea, 356 ; on Portuguese and Spanish
claims, 339 ; on range of gun limit,
157 n., 158 n., 549 ; on Selden's Mare
Clausum, 375 ; on Welwood, 356

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

Guard for fishing fleet, 248

Guernsey, 36

Guiccardini, 125

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

Gulf of Nuevo, 661

Gulf of St George, 661

Gulf of San Matias, 661

Guns, range of. See Territorial sea.

Guthrie, Lord, on territorial sea, 623

Haas, Captain Adrian de, 486

Haddington, Eurl of, 179 n.

Hagaland, 110

Hague, The, 81, 152, 172, 176, 212, 256,

305, 314, 335, 351, 367, 384, 414, 426,

474, 479, 482, 488 ; Conference at, 1881,

632 ; Tribunal N. American Fisheries

Arbitration, 732 n.
Hale, Lord Chief-Justice, 18, 66, 363, 374,

543

Halifax Commission, 627
Halifax, Viscount, 490
Hall, H. van, 605 n.
Hall, on Sovereignty of Sea, 48 n., 312 n.,

580 n. ; on territorial sea, 687
Halleck, on territorial sea, 683
Halsbury, Lord, on territorial sea, 522,

730
Halse, Sir Nicholas, ISO, 132, 142, 162 n.,

292
Hamburg, 129, 130, 140, 195, 235, 485,

528 ; conference at, 336
Hamburgers, 117, 126, 141, 178 n., 227, 255
Hamilton, Marquis of, 186, 225 n.
Hamilton, Sir Thomas, 179 n., 223
Hampden, 324
Hansards, 30, 61, 62, 73
Hardy, Sir T. Duffus, 41
Harfleur, 70
Hargrave, 374 ; on Sovereignty of Sea,

580 n.
Harris, Captain Joseph, condemned to

death for striking to Spaniard, 512
Harvey, Sir William, 162
Harwich, 274, 699
Hastings, 33, 40, 41, 145 n., 544 n.
Hatherly, Lord, on territorial sea, 586 n.
Hautefeuille, on territorial sea, 601
Hawkins, Sir John, 5, 117
Hay, Sir George, 186
Hay, Sir John, 217, 218, 220 n., 221,

225 n., 227, 239 n.
Headland doctrine, 360, 622, 624. See

Bays.

Heath, Attorney-General, 252
Heaton, Captain, 437
Hebrides, 153 n., 230, 234, 241 n., 301
Heemskerk, Jacob van, 5, 118, 183, 343
Heffter, on territorial sea, 600 ; on range

of vision, 546
Helgoland, 108

D

786

INDEX

Heneage, Lord, 728 n., 739

Henrietta Maria, Queen, 380, 382

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

Henry 11 .. -.N

Henry II. of France, 117

Henry III., 31, 66

Henry III. of France, 117

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

Henry IV. of France, 159, 204

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

Henry VI., 38, 70, 109

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

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

Henry, Prince, of Scotland, 81, 169

Herbert, Captain, 512

Herbert, Sir John, 146

Hermetra, 241 n.

Herring busses, 74 n., 162, 447

Herring fishery. See Fisheries, herring.

Herrings, commerce in, 61, 132, 242 ;

price of, 97
Herschell, Lord, on territorial sea, 592 n.,

731

Hervey, Lord, 202.
Heywood, Thomas, 326 and n.
Higgin, W. H., inquiry on North Sea

fishery disputes, 631
Highlanders, 216, 242
Hitchcock, Captain Robert, 64, 95, 105,

125, 133, 136, 138, 203, 364 n.
Hoek, Dr P. P. C., 707 n.
Holland, 45, 60, 62, 64, 71, 72, 74 n., 75,

77, 78, 79, 81, 84, 92, 94, 95, 104, 125,

129, 132, 135, 139, 144, 151, 171, 172,

175, 190, li»5, 197, 215, 292, 374, 384,

407, 433, 450, 460
Holland, Earl of, 77
Holland, fishery treaty with, 71, 72
Holland, Prof., 359 n. ; on territorial sea,

691 n.

Hollanders. See Dutch.
Holmes, Captain Sir Robert, 455, 456 n.,

458, 484, 485, 486
Hoorn, Simon van. 449 n.
Horn, Andrew, 542
Hovering Acts, 593
Howard, Lord William, 117
Hubner, on territorial sea, 562
Hull, 43, 94, 96, 108, 194 n., 699
Humber, 133
Hume, 311 n.
Huxley, Professor, 702 n.
Hythe, 145 n.

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

Idle persons, 98, 115, 116

Impressment of ships, 32

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

Insecurity of sea, 247, 248, 249, 253

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

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

International fishery investigations. See
Fisheries.

International Law Association, on terri-
torial sea, 689-692, 774: Articles on,
774

Inveraray, 83 n.

Ipswich, 247

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

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

Isabel of Portugal, 70

Islay, 230

Isle of Man, fishery regulations, 698

Isle of May, fishing tithes, 59, 76

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

Italian Republics, 3, 6, 340

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

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

James I., a new policy, 118; antecedents
of, 124 ; proclamation forbidding hostil-
ities in King's Chambers, 9, 119, 360,
750 ; concludes peace with Spain, 125 ;
proclamation restraining foreigners from
fishing on British coasts, 9, 145-148, 150,
541, 755 ; remit of Council on, 146 ; de-
liverance of Committee on, 147 ; atti-
tude of French towards, 151; negotia-
tions with Dutch, 151, 155-159, 170,
178-180, 185-194, 197, 198; proclama-
tion suspended, 159 ; orders records to
be searched, 162, 179, 187; grants of
assize herrings, 165, 166 ; instructs as-
size herrings to be levied from foreign
fishermen, 168, 757 ; indignation at cap-
ture of Brown, satisfaction demanded,
172, 174 ; forbids Scottish fishermen to
fish within a land-kenning at the Faroes,
176 ; requests Dutch not to fish within
sight of land, 176 ; requests Scottish
Council to prevent the Hollanders fish-
ing within sight of land, 178 ; again
demands assize herrings from Dutch,
180 ; claims seas around Spitzbergen
as British, 183 ; appoints commissioners
to treat with Dutch envoys, 186 ; Dutch
ambassadors without power to treat of
herring fishery, 188, 189 ; indignation
with Dutch ambassadors, 189 ; again
gives way on the herring fishery ques-
tion, 192 ; requests Dutch to prohibit

INDEX

787

fishing within fourteen miles, 192 ; ne-
gotiations with Dutch as to whale fish-
ery, 193 ; Carleton advises fixing a limit,
193 ; Dutch agree to keep out of sight
of shore, 193; orders assize herrings to
be again collected, 194, 196: Dutch
embassy appointed, 198 ; Dutch am-
bassadors without instructions to deal
with fishery question, 199 ; speech to
Dutch ambassadors, 199 ; indignation
against Dutch, 200 ; Dutch ambassadors
advise States - General to settle fishery
question, 200 ; failure of policy of assize
herring, 203

James II., 517

James III. of Scotland, 83

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

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

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

Japan, territorial sea, 661

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

Jenkinson. See Lord Liverpool.

Jennings, Edward, 115

Jersey, 36

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

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

Johnsen, Hans, on Moray Firth, 728 n.

Jongestal, Dutch ambassador, 415, 417, 433

Jonson, Ben, 115, ]96 n.

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

Kanin. Cape, 657, 713

Kemble, 27, 28

Kennet, 311 n.

Kent, on territorial sea, 599

Kerouaille, Mademoiselle de, 475

Ketelby, Captain, 281

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

Killigrew, Sir William, 280

King James's Newlaud, 183

King John's ordinance. See John.

Kine, Thomas, 446, 448

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

Kirkelee, 49

Kishinouye, Dr, 661 n.
Kleen, on territorial sea, 685
Kliiber, on territorial sea, 597
Kronberg, striking at, 473, 520
Kyllachy, Lord, on territorial sea, 725

Lake, Sir Thomas, 359 n.

Lampredi, on territorial sea, 562

Lampreys, 244

"Land-fishing" in Scotland, 222, 226

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

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

Larrey, 311 n.

Latour, on territorial sea, 595, 685

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

Lauderdale, Lord, 187, 483, 507

Laughton, Professor, 521 n.

Law, early English, as to fishing, 66

Lawrence, on territorial sea, 683,[688

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

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

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

Leda, case of, 586 n.

Lediard, 167 n., 311 n.

Lefevre, Mr Shaw. See Lord Eversley.

Leghorn, 402, 473

Leicester, Earl of, 96, 264 n.

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

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

Leon, 32

" L'Espagnols sur Mer," battle of, 37, 67

Levant, 340

Levi, Leoni, on territorial sea, 664 n.

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

Lewis, 216, 217 and n.

Leybourne, Lord William de, 45 n.

Leyden, 73, 342

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

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

185 n.
Ligurian Sea, sovereignty of, 4, 339, 341,

371, 411
Lindsay, Thomas, 242

788

INDEX

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

Lisle, Viscount, 428, 429

Liverpool, Lord, on neutral rights, 596

Lizard, 103, 122, 269, 437

Loccenius, on territorial sea, 550

Loch Broom, 83

Loch Fyue, 83, 153 n.

Loch Maddy, 241 n.

Lofoten Isles, 672

Logan, Sir Robert, 77 n.

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

Long Parliament, 336, 414 ; attitude to-
wards Sovereignty of Sea, 378, 379, 380,
381, 382

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

Loreburn, Lord, on territorial sea, 732

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

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

Lottery for Fishery Society, 244, 446,
447

Louis of Nassau, 449 n.

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

Low Countries, 73, 77, 94 : fisheries of,
98 ; fishermen of, 94, 100, 144. See also
Dutch and Netherlands.

Lowestoft. 249, 307, 469

Lucas farthing, 470 n.

Lundy, Laird of, 188

Lushington, Dr, on territorial sea, 586 n.

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

Mackerel fishery, 134, 150

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

Madrid, 150, 201, 253, 318

Mainwaring, Sir H., 65 n.

Malynes, Gerard, 128 n., 130 n., 138 n.,

160 ; on the appropriation of the sea,

358

Manning, on territorial sea, 600
Mansel, Sir Robert, 219 n.
Mare Clausum, 11, 19, 20, 251, 254, 257,

258 n., 286, 287, 288, 289, 302, 315 n.,

330, 365, 369, 375. See Selden.

Mare Liberum, 255, 256 n., 257, 338, 340,

342, 374, 410. See Grotius.
Margaret of Savoy, 73
Marine laws, 51, 52, 54
Maritime laws, 41, 42, 44
Maryborough, Duke of, 486 n., 531
Marion, Professor A. F. , 667 n.
Marten, Sir Henry, 155, 174, 244 n., 251,

263, 264, 278, 283, 288, 295
Martens, F., 194 n.
Martens, G. F. von, on territorial sea,

563
Martens, Professor de, on territorial sea,

686, 688

Martin, Martin, 241 n.
Martin, Sir Henry, 39, 119 n., 762
Mary, Queen, 64, 88, 91, 117, 141, 206
Mary, Queen, of Hungary »and Bohemia,

80 and n.

Mary Stuart, Queen, 79, 81, 83
Mason, Capt. John, 153 n., 167 n., 216,

219 n., 220 n., 241, 364 n. ; grant of

assize herrings to, 165, 166, 167 n.
Masse, on territorial sea, 602
Masson, Professor, 195 n.
Masterman, Captain Walter S., 711 n.
Masterman, Dr A. T., 735 n.
Maurice, Count, 173
Maximilian of Austria, 72
Meadows, Sir Philip, on sovereignty of

sea, 397, 428 n., 510, 524, 694 ; proposes

a convention for fishery limits, 525
Mechlin, 71

Medina Sidonia, Duke of, 142
Mediterranean, 28, 30, 134, 143, 340, 347,

372, 389, 437, 457, 485 ; striking in. See

Striking.

Meerman, Dutch ambassador, 483
Melrose, Earl of, 179 n.
Mendoza, 107

Merchant Adventurers, 160, 292
Merchant Associations to secure the peace

of the sea, 6, 30
Mercurius Politicus, 410
Merlin, the King's yacht, 15, 477-482, 510 ;

encounter with Dutch fleet, 479 ; in-
quiry by Sir Leoline Jenkins on, 480
Mervin, Sir Henry, 284, 287, 296, 297,

300, 327
Mexico, Customs jurisdiction, 594 ; pearl

fisheries, 697 ; treaties with, 679 and n.
Mid-line (Thalweg), 3, 101, 102, 111, 226,

361, 373, 541, 542, 652
Miles, Scots, 233 n.
Milton, John, 410, 428 n., 524
Minch, 230

Mirror of Justice and mid-line, 542
Molloy, on sovereignty of sea, 514 ; on

striking, 557
Monk, Duke of Albemarle, 408 ; on Dutch

commerce, 457, 459
Monson, Sir William, 130 n., 132, 135,

143, 202, 204, 205, 206 n., 208, 216,

219 n., 259

Montague, General. See Earl of Sand-
wich.
Monteith, Earl of, 224, 225 n., 239 n.

INDEX

789

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

Moray Firth, 233, 235, 239; prohibition
of trawling within, 718, 720 ; foreign
trawlers in, 647, 720-728 ; Norwegian-
registered trawlers in, 721, 727 ; prosecu-
tion and conviction of foreign trawlers,
722, 723, 724, 727 ; case of Catalonia, 722 ;
of Emmanuel Mortensen, 722, 724-727 ; ot
Martin Olsen, 722 ; of Niobe, 722, 724 ;
of Pinewold, 723 ; of Verbena, 723 ; High
Court of Justiciary decides prohibition
applies to foreigners, 722, 724-727 ; pro-
test by Norway, 727, 728 : Norway
favours a convention, 728, 730; and
warns Norwegian trawlers to cease fish-
ing in Moray Firth, 728 ; actions against
British subjects on foreign trawlers, 728,
729 ; views of Foreign Office, 729, 730 ;
proposal of International Council, 737;
territorially of, 723-728, 729, 732, 734 ;
opinions of Scottish judges as to terri-
toriality of, 724-727

Moray Firth, herring fishery in, 61

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

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

Moser, on territorial sea, 562

Muncke, Levinus, 155, 156 n.

Mundesley, 247

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

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

Musselburgh, 175 n., 445

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

Nantes, 97

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

National Sea Fisheries Protection Associa-
tion, 667 n., 706, 728 n., 740

Naval Salute. See Striking.

Navare, Michel de, 49

Navigation, freedom of, 3, 5, 6, 8, 11 20
33, 34, 35, 43, 67, 86, 106, 158, 841
346, 358, 360, 365, 421, 497, 676

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

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

Navy and fisheries, 428

Needham, Marchamont, 410, 411

Netherlands, 21, 74, 76, 78, 79, 81, 82,
93 n., 94, 105, 112, 125, 126, 127 n.
188, 144, 168, 185, 200, 203, 312, 380,

397 ; prohibit their fishermen from fish-
ing within two leagues of Scottish coast,
605, 606 ; territorial sea, 658. See
Dutch.

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

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

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

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

Nicholl, Sir John, on territorial sea,

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

Nieuport, 60, 327, 400'

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

Nootka Sound, 573

Nordland, 108

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

Norham, 60

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

Normandy, 29, 36, 43, 48, 50, 59, 62, 69,

. 74, 97, 103, 129, 213

Northampton, Earl of, 138, 353

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

North-east passage, 343

Northmen, sea power of, 26, 28

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

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

Norway, 34, 45, 169 n., 339, 527 ; area of
fishing-grounds, 738 : Customs jurisdic-
tion, 594 ; declines three-mile limit, 633,
678 ; declines to adhere to North Sea
Convention, 636, 783 ; disputes with

790

INDEX

England as to fisheries, 108, 110 ; fish-
eries, 92 ; fisheries in Vestfjord, 672,
677 ; fishery limit early fixed, 528 ;
special fishery limits, 671, 672, 678,
679 ; foreign trawlers seized for illegal
fishing, 680 ; registered trawlers in
Moray Firth, 721, 727, 728 ; sovereignty
of sea of, 4 ; territorial sea, 653, 669-
681, 685; method of computing, 653,
655, 669, 670, 676, 678, 685 ; respected
by foreign fishermen, 677, 678

Norwegian Sea, sovereignty over, 4, 16

Nottingham, Earl of, 206, 353

NovaZembla, 184

Okhotsk, Sea of, foreigners fishing in, 585

Oldeubarneveldt. See Barneveldt.

Oldys, 127 n.

Oleron, Laws of. See Laws.

Onward Ho ! case of, 657 n.

Oppenheim, on territorial sea, 688

Oquendo, Don Antonio de, 330-334

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

Orfordness, 49, 277, 553

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

Orkney, Earl of, 169 n.

Ormonde, Marquis of, 450

Ortolan, on territorial sea, 601

Orwell, 54

Ossory, Lord, 485, 486 n.

Ostend, 43, 309

Ouwers, Egidio, 273 n.

Overbury, Sir Thomas, 127 n.

Over-Yssel, 81

Owen, Captain, 382

Oxford, 358

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

Pacius, on Venetian dominion of sea, 351

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

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

Pardessus, 41, 42

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

Parliament of Ireland, 33, 63

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

Parry, Sir Thomas, 155

Pauw, Adrian, Dutch ambassador, 405,
414

Pearl fisheries, 697 ; Vattel on, 560

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

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

Pendennis Castle, 280

Penn, Sir William, 383, 408, 456

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

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

Perels, on territorial sea, 652, 684, 688

Perkins, Sir Christopher, 146, 155

Perre, Van de, Dutch ambassador, 391,
415

Petersen, Gisbert, fishing license to, 460

Philip, Archduke of Austria, 72

Philip the Fair, 44

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

Philip III, 350

Philip IV., 350

Phillimore, 312 n. ; on territorial sea,
682

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

Picaroons, 273, 276

Pilchard, 134, 143, 227, 235, 447

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

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

Pistoye and Duverdy, on territorial sea,
602

Pitt, on fishery arrangements with France,
532

Pittenweem, 59, 175 u.

Plague, 299 n.

Plancius, 183

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

Plegher, 80

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

Plumleigh, Captain, 208, 277, 280

Plymouth, 33, 117, 267, 268, 327

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

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

Pontalis, on fishery question, 453 n.

Pontanus, J. I., on Selden's Mare Clan-
sum, 376, 550

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

339, 371

Popham, Col. Edward, 382

Porpoise, 88

Portland, 267

Portland Castle, 256, 279

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

Portsmouth, 114, 408

Portsmouth, Duchess of, 475

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

340, 343, 344, 350 ; territorial sea, 569,
664, 668

INDEX

791

Pradier - Fodere, on territorial sea, 684,

688

Prerogative of crown, 236
Pribilov Islands, 695
Privateers, 462
Prize, law of, 359 n.
Prussia, 34, 216 ; fishermen on British

coasts, 605
Prynne, Keeper of the Records, 17, 25,

•27 11., 39, 43, 44 n., 213, 326 n., 352 n.,

367 and n. ; on the sovereignty of the

sea, 493
Puffendorf, on territorial sea, 551

Quarantine Acts, 594

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

159
Raleigh, Sir Walter. 127 and n., 136, 204.

413

Raleigh tract. See Keymer.
Ramsgate, 699
Range of guns, Grotins on, 349 ; range of

modern guns, 21 ; range of gun limit,

549 ; range of guns and salute, 473 n. ;

range of vision, 175, 193, 544 ; claimed

by Denmark, 529 ; Grotius on, 347 ;

old English law, 544 ; prescribed by

Philip II., 544 See Land-kenning and

Territorial sea.
Rapin, 167 n., 311 n.

Rayneval, on range of vision, 546 ; on ter-
ritorial sea, 596
Reddie, on territorial sea, 600
Reformation, 67 ; influence of. on fisheries,

75, 87, 89, 92
Reprisals between Scots and Dutch, 77,

78, 79, 84 ; between traders, 53, 54
Reserved waters. See Scotland.
Restoration, the, 14, 441
Revocation, Act of, 226
Rhe, Isle de, 246, 290
Richard I., 32, 40, 41. 51, 52
Richard II., 38, 62, 363
Richard III., 63, 72 n.
Richelieu, Cardinal, 12, 210, 246, 261,

270, 271, 272, 273, 275, 276 n., 283,

291, 314, 526

Right of fishery. See Fishery.
Right of search, 13, 330, 389, 393
Rio de la Plata, territorial ity of, 663
Ripperda, Joachim, Dutch ambassador,

449
Rivalry in trade between English and

Dutch, 10, 441, 457
Rochelle, 97, 267, 276 n., 290
Roe, Sir Thomas, 240, 276, 303, 306, 314,

315, 316 n., 323, 324
Roman law as to sea, 3, 344, 353, 356, 360,

539 ; as to fishing, 66
Romans and sovereignty of sea, 26
Rool d'Oleron. See Laws of Oleron.
Rose, Richard, 324 n.
Rosny, Sieur de, 204
Rostock, 195

Rotterdam, 79, 171, 327, 397 n., 511
Rouen, 61

Royal fishery, Pepys on, 447 n., 448
Roxburgh, Earl of, 225 n., 239 n.
Rupert, Prince, 382, 493
Russia, 29, 61, 110, 142, 158, 358 ; Bearing

Sea question, 581, 582 ; Company, see

Muscovy Company ; Customs limit, 656,

657 n. ; territorial sea, 656
Ruyter, Captain, 298 n., 304
Rye, 33, 54, 65, 145 n., 483
Ryley, William, Keeper of the Records,

409, 410 n.
Ryswick, 466 n.

Saen, Joris van der, 402, 404

St Andrews, 352

St George's Channel, 142

St John, Lord Chief-Justice, 72 ; proceeds
to The Hague, 384 ; negotiations with
Dutch, 385-390; his proposals for alli-
ance and coalescence, 385 ; Intercursus
Magnus taken as basis of treaty, 386,
387 ; his seven articles, 387 ; the Dutch
thirty-six articles, 388 ; abstract of,
764 ; as to fishing, 388, 389 ; Dutch pro-
posals as to sovereignty of sea, 389 ; for
a joint fleet to police the seas, 389, 395 ;
Dutch withdraw proposal as to striking,
390 ; failure of negotiations, 390 ; leaves
The Hague, 391

St Lo, Captain George, on fishery limit at
Yarmouth, 546 n.

Safe-conducts for fishing, 7, 33, 74

Salisbury, Earl, 64, 130 n., 150, 151, 155,
159, 223, 227 n., 359 n., 360 ; on 100-mile
limit, 541

Salisbury, Marquis of, on territorial sea,
592, 731

Salisbury, Miss E., 45 n.

Salmon fishing, 26, 233, 234, 235

Salute. See Striking.

Sandwich, 73 ; Knut's grant of, 542

Sandwich, Earl of, 438, 463, 472

Saracens, 5, 339

Sarpi, on territorial sea, 547

Savage, Viscount, 239 n.

Savoy, Duke of, 540

Scania, 34, 362 n. ; decline of herring
fishery at, 61

Scarborough, 49, 89, 108, 142, 247, 250,
256, 273, 274, 322 ; castle, 64

Scaw, three-mile limit at, varies, 640 n.

Schaep, Dutch ambassador, 391

Schelde, 28

Scheveningen, 460

Schiedam, 78, 79, 318, 397 n.

Schmalz, on territorial sea, 597

Scilly Isles, 269, 390, 398, 399

Scotland, 48, 49, 59, 88 ; Draft Treaty of
Union with England, 1604, 84, 192, 223,
227, 228, 230, 232, 694 ; fish exported
from, 61; fisheries of, 93; important-^
of, 76 ; claim to, 76, 82 ; exclusive spirit
as to, 76 ; policy towards, 82 ; trenties
regarding, 75-82; foreigners at West
Coast fishings, 83, 130 ; jealousy of
foreign fishermen, 77, 124 ; tishiutr in
bays and lochs prohibited, 202 ; attacks

792

INDEX

oil Dutch fishermen, 77 ; complaints
against Dutch fishermen, 144, 168,
177, 201, 234, 301 ; complaints against
French fishermen, 606, 617 ; Dutch
edicts re fishing, 201 ; old fishery lim-
its, 226-229; old limit against Dutch,

83, 84; herring fishery in, 59, 61, 76,
79, 83, 143, 221 n. ; extra - territorial
jurisdiction in, 698 ; instructions of
Privy Council re assize herrings, 757;
fishery Acts, 76 ; fishery scheme, 225,
227 ; fishery society, 444 ; fishing in
lochs claimed, 218; "land fishing" de-
scribed, 222 and n. ; land - kenning,
see Land-kenning ; limits of territorial
sea, 226, 227, i*28, 229, 230; limit of
14 miles in Draft Treaty of Union,
223 ; limit of two leagues fixed by
Dutch, 605, 606 ; reserved waters, 77,

84, 209, 211, 218, 220, 222, 223, 226-230,
234, 236-238, 445, 547

Scotland, royal burghs, 76, 216, 217, 220,
221 ; ask that the Dutch be removed
within a land-kenning, 221 ; and fishery
society, 445 ; oppose assize herrings,
166 ; territorially of firths, 692 ; trawl-
ing restrictions on, 715, 716 ; Fishery
Board empowered to restrict, 717 ; Bill
to extend prohibition of, 720 ; Act fix-
ing thirteen-mile limit for, 720 ; treaties
with the Dutch, 188 n.

Scotland, Sea Fisheries Regulation Act,
1895, 592

Scott, Thomas, 284

Scott, Sir William. See Stowell, Lord.

Scottish Seas, the, 226

Scudamore, Lord, 272

Sea, appropriation of, 537, 539 ; in Middle
Ages, 3 ; reasons for, 5 ; Roman law on,
539, 541 ; opinions of Italian jurists,
101, 104 ; opinions of modern jurists on,
552; Bynkershoek, 555; Callis, 363;
Lord Chief- Justice Coke on, 363 ; Gen-
tilis on, 35S, 359 ; Graswinckel on,
411, 412; Loccenius, 550; PufFendorf,
550 ; Lord Salisbury on, 361 ; Selden,
370-374 ; Lord Stair, 545 n. ; Vattel,
560.

Sea, exhaustibility of. See Fisheries.

Sea, " High Seas," 50, 54

Sea, insecurity of, 5, 6, 30, 53, 54, 57, 70,
247-257

Sea, measures for guarding, 31, 32, 33, 34

Sea, sovereignty of. See Sovereignty.

Sea of England, 7, 8, 9, 11, 20, 31, 41,
101, 209; extent of, 15, 16, 54, 55, 56;
seizure of ships in, by Grimbald, 49, 50 ;
sovereign lordship of, 43, 46, 51, 54, 55 ;
Callis on, 363; Plowden on, 102; terms
applied to, 16, 17 ; the " Two Seas." 17 ;
the " Three Seas," 17 ; the "Four Seas,"
17, 18, 251

Sea, property in bed of, 3fi2

Seaforth, Earl of, 216, 220, 221, 222 n.

Sealing, 695, 696

Seals, 88

Seas, British, extent of, 15, 16, 18, 19, 20,

26, 208, 264 and n., 381, 418, 419, 429,
431-437, 459 n., 465, 466 and n., 469,
470, 477, 495, 505, 506 and n., 510, 515,
521 ; Admiralty on, 437, 438 ; reluctance
of Admiralty to define, 20, 264 and n. ;
boundaries intentionally left undefined,
20 ; Dee on extent of, 101-103 ; dispute
as to extent of, 437 ; Richard Cromwell
on extent of, 438 ; Thurloeon extent of,
434; Trinity House on extent of, 20,
477, 478 ; on striking in, 469, 470, 501-
505 ; claim to, gradually died out, 21
Sebastian, King, 107
Secretary for Scotland, 219, 227 n., 232
Seine, 26, 28
Seines, Bill to prohibit, within ten miles,

444 n.

Selden, 11, 17, 20, 25, 26, 31, 32, 33, 34,
39, 41, 43, 44, 45 n., 48, 49, 55, 56, 62,
64 n., 66, 119 n., 183, 186 n., 213, 251,
254, 258 n., 279, 286, 305, 352 n., 353,
363, 410 n., 456, 469, 546, 550, 551;
controversy with Graswinckel, 411, 412 ;
imprisonment and release of, 367 ; re-
quested by Charles to write Mare
Clausum, 366 ; on British seas, 19 ; on
English sovereignty of sea, 373, 374 ;
on exhaustibility of sea, 372 ; Mare
Clausum, 11, 20, 254, 258 n., 315 n.,
330, 389, 425, 456, 502, 504, 509 n.,
543 ; history of, 3t>5, 366 ; publication
of, 288, 367 ; political importance of,
368, 369 ; importance of, in English
law, 369, 374; satisfaction of Charles
with, 368, 369 ; arguments of, 369-374 ;
anxiety in Holland about, 374, 375 ;
translated, 410
Semeyns, Meynert, 242 n.
Servat, William, 50
Seven Stones Rocks, territoriality of, 642,

643
Shaftesbury, Earl of, 492 ; on the Dutch,

506

Sheerness seized by Dutch, 459
Shetlands, 4, 76, 88, 89, 90 n., 108, 113,
126, 129, 131, 151, 165, 169, 180, 201,
215, 221, 227, 230, 234, 238, 241, 406,
443, 534
Shields, 84

Ship-money, 324, 329, 379
Ship-money fleet, first, 256, 259 n.; object
of, 260, 264, 265 ; proceedings of, 265,
266, 267, 268, 269, 270, 271, 272, 273,
274 ; failure of, 274, 275. See Lindsey.
Second, 286 ; its object, 287, 288 ;
opinion of Admiralty on convoying
foreign vessels, 288, 289, 762 ; on pro-
tecting foreign licensed fishermen, 288,
762; proceedings of fleet, 290, 291, 295-
301, 307-311 ; failure to meet with
French, 290 ; instructions of Charles
as to foreign fishermen, 295 ; licenses
distributed to Dutch herring busses,
298, 300, 308 ; amount received as con-
voy and license-money, 309, 310, 311.
See Northumberland. Third, 319, 323.
Fourth, 327.

INDEX.

793

Ship-money writs, 36 u., 211, 253, 254,
286

Ships, impressment of, 32

Shookius, 550

Shovel, Sir Cloudesley, 520

Shrewsbury, Duke of, 520

Sicily, 29

Skagerrack, 438 and n. ; territorially of,
636, 653

Sleeve, the, 260

Slingsby, Capt., 327

Sluys, battle of, 36, 37, 38

Smeerenburg, 194 n.

Smith, Captain John, 312 n., 494

Smith, Lieut. Thomas, dismissed for forc-
ing French to strike, 521

Smith, Northumberland's Secretary, 328,
331 332

Smith, Simon, 242 n., 244 n., 442, 443 n.,
448

Smyrna fleet, 485, 486, 487

Society of Fishing Merchants, 138, 159

Solebay, battle of, 489

Solinus, 25

Somerset, Earl of, 56 n.

Sommelsdijck, Lord of. See, Aerssen.

Sound, the sovereignty over, 4, 8, 16, 108 ;
toll levied at the, 4, 8, 35, 91, 108, 110,
154, 190, 339, 501

South America, territorial sea, 661

Southampton, 68, 73, 94

South wold, 90 n., 534

" Sovereign of the Seas," the, 28, 326

Sovereignty of the sea, among ancients,
371 n., 373

Sovereignty of sea, decadence of claim to,
15, 517, 522, 523, 566

Sovereignty of sea, juridical controversies
about, 5, 410-413 ; liberty of navigation,
8, 11, 33, 34, 54. See Navigation.

Sovereignty of the sea, meaning of, 2 ;
striking as a symbol of, 39

Sovereignty of sea, treatises on, 364 n.

Sovereignty of the sea, Barrere on, 595 ;
Blackstone, 580 n. ; Boroughs, 364-366 ;
Champagne, 595, 596 ; Chitty, 580 n. ;
Secretary Coke, 272; Cromwell, 423,
424 ; Dr Dee, 99, 103 ; De Witt, 454,
468,470; Evelyn, 514; English writers,
493, 494, 513; Gentilis, 359; Hall,
580 n. ; Hargrave, 580 n. ; Italian jur-
ists, 6 ; Jenkins, 484 n. ; Loccenius,
550; Molloy, 514; Moore, 580 n. ;
naval historians on, 521; Selden, 370-
374 ; Stubbe, 496 - 498 ; Wicquefort,
495; Baltic, 4, 33, 552; Bothnian
Gulf, 4

Sovereignty of sea, Denmark, 4, 8, 16, 33,
105, 108, 158, 339, 371, 376, 530, 552,
567 ; contested by Elizabeth, 86 ; Eng-
land, origin of English claims, 6, 29, 30 ;
nature of, 8, 30 ; defects of, 33 ; early
history of, 25 ; under ancient Britons,
25, 26 ; under Romans, 25, 365 ; under
Anglo-Saxons, 26 ; under King Edgar,
27 ; before Norman Conquest, 27 ; after
Norman Conquest, 29; under Planta-

genet Kings, 30, 40, 51, 52; rolls con-
cerning, 8, 43, 44, 45, 740, 744; not
claimed by Tudors, Sti, 111; importance
of claim under Stuarts, 9, 10, 118 ;
claimed as a prerogative of the crown,
211; aimed against Dutch, 10, 125; ex-
travagant claims under Charles I. , 209,
251, 264, 274 ; under the Common-
wealth, 378 - 382, 394, 395, 409, 412 ;
under Charles II., 441, 458, 487, 488 ;
decadence of claim, 15, 517, 522, 523 ;
of France, 287 ; of Genoa, 4, 339, 341,
371 ; of Norway, 4, 16, 530 ; of Pisans,
371 ; Poland, 4, 377 ; Portugal, 5, 105-
108, 112, 338, 339, 341, 371, 552 ; Spain.
5, 105-108, 112, 118, 158. 330, 339, 341,
371, 552; Sweden, 4, 350, 552; Tus-
cans, 371; Venice, 3, 4, 8, 16, 33, 338,
339, 341, 350, 351, 351 n., 371, 552,
566

Sowe. See Zowe.

Spain, 20, 30, 33, 45, 57, 87, 91, 95, 107,
189, 198, 199, 203, 205, 212, 245, 247,
253, 255, 264, 266, 268, 275, 286, 304,
493 ; claim to sovereignty of sea, 5, 86,
105-108, 112, 118, 188,1339; fisheries,
92; area of fishing-grounds, 738; for-
eign trawlers at, 713 ; fishermen of, on
British coasts, 67, 129, 150 ; peace with
England, 125, 358 ; war with United
Provinces, 9, 119, 139, 148, 201, 243 n.,
251; territorial sea, 644-663; limits of,
569, 664 ; Customs limit, 594 ; disputes
with Great Britain and United States as
to territorial sea, 664, 665

Spaniards forced to strike, 117, 206

Spanish Netherlands, 266, 272, 275

Spanish whalers at Spitzbergen, 182,
183 n.

Spelman, 27

Spitzbergen, 4 ; whaling at, 112, 164, 181,
182-185, 193, 194, 194 n., 198, 199, 200,
527. See also Greenland.

Spragge, Sir Edward, 485, 489

Sprat fishery, 133

Stair, Lord, on territorial limit, 545 n.

Star Chamber, 243

Start, the, 260

State merchant, 136

States-General of the United Provinces,
84, 178, 186, 190, 192, 258, 292, 343,
351, 415, 481 ; conclude treaty with
James VI. , 81 ; conclude peace with
Spain, 148 ; consider James's proclama-
tion on unlicensed fishing, 148, 150 ;
decide to maintain freedom of fishing
on British coast, 151 ; send embassy
to James about, 155 ; arguments used,
155, 159 ; proclamation suspended, 159 ;
apologise for the capture of Brown,
173 ; send the Captain responsible t<>
London, 174 ; publish an edict forbid-
ding their fishermen to interfere with
Scottish fishermen, 179 : negotiations
with James, 189; disputes as to whale
fishing at Spitzbergen, 181-185 ; send
another embassy to London, 185 ; no

794

INDEX

instructions as to fishery question, 188,
189 ; order their fishermen to keep out
of sight of shore, 193 ; send another
embassy to James, 199 ; again without
instructions as to fishery question, 199,
200 ; renew their edicts and order their
fishermen not to go too near Scot-
tish coast, 201 ; proceedings regarding
licenses of Charles I., 301, 302, 303,
304, 305, 312, 313, 314, 315; instruc-
tions to Evertsen as to striking, 399 ;
to Tromp, 399, 402 n., 405; send Van
Dorp to protect the busses from North-
umberland, 300 ; order Van Dorp to
prevent acceptance of licenses, 312,
313 ; send Aerssen van Sommelsdijck
as ambassador, 336 ; on Selden's ' Mare
Clausum,' 375 ; resolve to increase their
fleet, 393 ; and question of striking,
390, 392; attitude to the Parliament,
381 ; send ambassador to London, 384 ;
negotiations with St John, 384-391 ;
another embassy to London, 391 ; con-
sider and postpone question of striking,
392, 399 ; resolve to strengthen their
fleet, 393 ; negotiations interrupted by
Tromp's encounter with Blake, 397 ;
disown Tromp's action, 405 ; instruct
him to strike, 405 ; send the Grand
Pensionary to London, 405 ; recall am-
bassador and prepare for war, 405, 406 ;
send four deputies to the Parliament,
415; negotiations for peace, 414-435;
peace concluded, 435

States-General and Charles II., action on
fishery Bill, 449, 450, 451 ; embargo
on fisheries, 460, 462 ; propose freedom
of fishing during war, 461, 462 ; differ-
ences with France as to, 463 ; decision
as to striking, 469, 481 ; orders to their
men-of-war on striking, 473 ; drawn into
dispute about striking, 482 ; yield as to
striking, 483, 484 ; sue for peace, 490 ;
terms offered, 490 ; reject terms, 491 ;
negotiations for peace, 498-506 ; peace
concluded, 508

States-General. See Dutch, Netherlands,
United Provinces.

States of Holland, 151, 155, 190, 303,
375, 384, 398, 407, 414

Stebbing, 127 n.

Stephens. Violet, 139

Stewart, Lord Robert, 169 n.

Stirling, Viscount, 239 n.

Stornowav, 21 6, 242

Stowell, Lord, decisions respecting terri-
torial limit, 577, 578, 641 D., 681, 682;
on three-mile limit, 641 n.

Straddling, Captain, 207 n., 282, 327

Straits of Dover. See Dover.

Strange, Lady, 283

Stratherne, Earl of, 239 n.

Strauchius, 550

Strickland, Walter, 384, 392, 429

Striking as an acknowledgment of mari-
time sovereignty, 3, 210 ; origin of, 7,

42, 207 ; first instance of, 43 ; John's
ordinance on, 39-43 ; under Tudors, 116 ;
under Henry VIII., 116 ; opposed by
French, 117 ; under Elizabeth, 117, 204 ;
under James I. , 204-208
Striking under Charles I., 11, 12, 210, 212 ^
becomes very prominent, 276 ; arrog-
ance of English officers regarding, 280,

281, 282; under Commonwealth, 378,
380, 381 ; under Charles II., 496 ; James
II. and after, 552 ; decay of claim to,
327, 518, 519, 522; abandoned after
Trafalgar, 15, 523 ; Admiralty instruc-
tions concerning, 260, 261, 277, 278,
380-383, 456, 469, 523 n.

Striking, rules and customs of, 206-208,
277, 278, 398, 463, 464, 466, 469-472,
481 ; not well understood, 277, 456. 466,
469, 470, 478, 479

Striking at foreign ports and coasts, 278,

279, 280, 281, 282, 327, 381, 473, 477,
557 ; before forts, 256, 279, 280, 472 ;
in British seas, 502, 503 ; in Mediter-
ranean, 327, 413, 456, 468, 473, 488 ; in
narrow seas, 206, 207 n., 208, 277, 402

Striking by merchant vessels, 206, 207,

282, 513; British, 260, 275, 283, 284,
285, 519 ; foreign, 207, 275, 513

Striking by Danes, 266, 282 ; claim to. by
Danes, 473, 520; by Dunkirkers, 275,
282, 327

Striking by Dutch, 12, 13, 117, 204, 205,
208, 267, 269, 270, 276, 277, 279, 280,
281, 300, 327, 328, 330, 334, 383, M90,
392, 397, 398, 400-403, 437, 438, 449,
452, 455-457, 466-469, 472, 473, 477-481,
485, 486, 490, 491 n., 495, 501, 510-513,
520 ; States-General consider question,
390, 392, 397 ; De Witt's proposals re-
garding, 467, 468, 469, 470 ; on striking
to a frigate or ketch, 468-470 ; question
of whole fleet to single ship, 477, 478,
479, 482; terms offered Dutch, 490,
491 n. ; offer to strike in all seas, 432,
505, 506, 510; by Dutch to French,
276 and n. ; by English to Dutch, 512

Striking by French, 117, 204, 212, 267,
270 and n., 271, 272, 275, 276, 279,

280, 283, 291, 313, 327, 332, 333, 471,
477, 488, 512, 513, 518, 520, 521 ;
French demand salute from English
vessels, 212; force English merchant
vessels to strike, 268, 277, 283, 327 : by
Hamburgers, 117 ; by Spaniards, 205,
327, 330, 477 ; by English to Spaniards,
512 ; by Swedes, 382, 455, 456 n., 520

Striking, Bynkershoek on, 556 ; Jenkins
on, 480, 481 ; jurists on, 557 ; Molloy
on, 515 ; Wicquefort on, 495 ; Duke of
York on, 469

Striking, treaties regarding, 382, 455, 508,
517, 522-572 n.

Striking, arrangement between Charles-
and Louis, 488

Striking, arrangement between France and
the United Provinces proposed, 452

INDEX

795

Striking, differences between French and
Dutch as to, 452, 463

Striking, French edicts on, 513

Striking, Richelieu's proposals, 271, 272

Striking, Tromp's memorandum on, 398,
770

Stuarts, the, 9, 57, 65, 118, 378

Stubbe, Henry, on sovereignty of sea, 496,
497, 4U8

Sturgeon, 66, 88, 363

Stypmannus, 550

Suffolk, 63, 94, 101, 248, 462

Suffolk, Earl of, 227

Sully, Duke of, 204

Sunderland, 249

Sweden, 60, 62, 142, 158, 358, 474, 490,
498 ; asks for and obtains liberty of
fishing in British seas, 427 ; claim to
sovereignty of sea, 4, 350, 377 ; and
striking, 208, 382 ; territorial sea, 653,
664, 669, 674, 675 ; method of comput-
ing, 669 ; Customs limit, 594 ; declines
to adhere to North Sea Convention, 636

Taurus, case of, 640

Taxation of foreign fishermen, 203

Teindfish, 195, 196

Temple, Lady, 478, 479, 480

Temple, Sir William, 470, 481 ; on strik-
ing, 467, 468 ; concludes Triple Alliance,
474 ; recalled from The Hague, 476 ;
negotiates peace, 508 ; on the article
regarding striking, 509, 510

Territorial sea, agreements between Great
Britain and Germany, 634, 652 ; Anglo-
Danish Convention concerning Iceland
and Faroes, 647, 648 ; boundaries begin
to be fixed, 554, 573 ; by treaty, 526,
565 ; Gulf Stream as a boundary, 575,
650 ; British Foreign Office on, 665, 667
and n., 730, 731, 732, 738 ; wishes terri-
torial waters in North Sea to remain
undefined, 632, 633, 634 ; Parliamentary
Committee recommend extension of,"
707 and n.

Territorial sea, bays, and gulfs, 77, 348,
544, 545, 547, 548, 552, 574, 575, 581,
585, 589, 598, 599, 601-603, 610, 614,
619 n., 622-630, 632-634, 639, 649, 652,
6H6, 668, 670, 678, 718, 723, 725, 726,
730 ; of Bengal, 625 ; Biscay, 564, 625 ;
Bothnia, Gulf of, 564 ; Cancale, see
Granville ; Chaleurs, 623, 624, 628, 629,
630, 692; Conception, 588, 589; Dela-
ware, 574, 599, 629 ; Fundy, 623-625 ;
Granville, 612, 619, 692; Hudson's,
561 ; of Argentina, 661 ; Norway, 670,
672, 674, 677; Scotland, firths, 222,
223, 230, 233, 239, 545, 622, 692;
Moray Firth, 721. See also Fisheries
and King's Chambers.

Territorial sea, British Foreign Office on,
629, 730, 731 and n., 732, 733; delimit-
ation of North American, 622, 627-630 ;
French Government on, 632 ; Hague
Tribunal on, 732 ; Institut de Droit In-

ternational on, 691, 775 ; International
Law Association on, 691, 775 ; inter
fauces terras, 544,547; measurement of,
639 ; old English law regarding, 547 ;
omitted in Territorial Waters Jurisdic-
tion Act, 593 ; principles regarding,
548; six -mile line for, 627, 629, 630,
632, 730, 731 ; treaty stipulation in
1521, 548 ; usage regarding, 547, 548

Territorial sea, closed seas, 339, 564, 572,
582, £84, 585, 598, 657 ; straits, 547,
561, 564, 586, 692, 776

Territorial sea, Dano - Swedish limit in
Baltic, 655 ; decisions of law courts
as to extent of, 585-592; definitions
in Acts, 589, 591, 718 ; in Territorial
Waters Jurisdiction Act, 591, 592

Territorial sea, not absolutely defined by
any State, 651, 652, 657, 660

Territorial sea, not defined by Great
Britain, 593

Territorial sea, discussion between Spain,
Great Britain, and United States, 665

Territorial sea, discussion as to limit in
North Sea, 632, 633, 634

Territorial sea, distinction between limit
under international law and in treaties,
644; between exclusive fishery limit
and territorial limit, 644, 660 ; distinc-
tion between "coasts" and "bays,"
622; meaning of "coasts," 641 n.

Territorial sea, historical evolution of, 537

Territorial sea, in peace and war, 636,
651, 665

Territorial sea, in relation to fisheries,
693 ; for "floating" fish, 698 ; for coral,
684, 695, 697; oysters, 611, 612, 619,
620, 621, 697 ; pearls, 560, 697 ; seals,
662, 663, 695, 696; whales, 674, 695,
696 ; exclusive fishery limit ; 639 ; on
British and Irish coasts, 646, 647 ; out-
side the North Sea, 643, 644, 645, 646 ;
extra - territorial regulations, 657, 661,
662, 663, 695, 699, 704, 707, 708, 716,
720, 725, 726, 727 ; international regu-
lations, 733, 734, 735; trawling, 698,
707, 735 ; jurisdiction for Customs,
593 - 595, 609, 665, 676, 679 n. ; lor
public health and slave-ships, 593-595 ;
under common law of England, 546 ;
over foreigners, 589, 590, 591 ; naviga-
tion in, 78, 676

Territorial sea, need of distinguishing
different rights in, 690 ; neutral waters,
decrees respecting, 569 - 570 ; proposed
limit for, 690, 775

Territorial sea, possession of opposite
shores, 35, 43 ; principle of thahveg
or mid-line, 541-544

Territorial sea, proposals of International
Law Association, 690-692, 774; ques-
tion of banks and flats, 633, 634, 635,
639, 640 and n., 641 n. ; of consistency
of soil, 641 n. ; of depth, 562 ; of
islands, 618, 634, 639, 641 n. ; of rocks
and islets, 641-643, 649 ; of tide-marks,

796

INDEX

579, 641, 652, 659, 661, 666, 669 and n. ;
of true boundary of, 539 ; Scottish
tirths, 692; statutes referring to, 589-
594

"Territorial sea, usage in seventeenth cen-
tury, 552 ; in eighteenth, 566 ; modern,
650

Territorial sea, modern usage, Algeria,
657 ; Argentine Republic, wide claim
by, 661, 662, 663 ; in Rio de la Plata,
663; Austria - Hungary, 572, 658; in
Behring Sea. 585, 695 and n., 696;
Belgium, 658; Chili, 661; Cuba, 665;
Denmark, 528, 529, 530, 538, 567, 568,
653, 655, 664; in Cattegat, 653; Ice-
land and Faroes, 647, 648 ; Skagerrack,
636, 653 ; France, 657 ; Germany, 652 ;
Great Britain, origin of, 538 ; in Bristol
Channel, 586-588 ; at Bell Rock, 642 ; at
Eddystone,641,642, 643; at Seven Stones
Rocks, 642, 643 ; British colonies, 661 ;
British N. America, 531 ; Greece, 661 ;
Italy, 659 ; Japan, 661 ; Netherlands,
658 ; in Zuiderzee, 635, 636 ; Norway,
457, 528, 538, 568, 653, 664, 669-681,
685 ; method of measuring, 669, 670,
685 ; rejects three-mile limit, 633, 636,
678, 681 ; reasons for wide limit, 676,
677 ; in Varangerfjord, 674 ; in Vest-
fjord, Lofotens, 672-674, 677 ; special
limits in, 671, 672, 678, 679 ; Portugal,
538, 569, 664, 668 ; Russia, 656 ; White
Sea. 564, 657 ; Scandinavian limit, 528,
5'->7 and n., 653, 655; Spain, 538, 569,
664-668 ; South America, 661 ; Sweden,
538, 653, 664, 669, 674, 675 ; method of
computing in, 669; United States, 661 ;
various limits claimed by, 575 ; Uru-
guay, 663 ; Venice, 571

Territorial sea, opinions of publicists in
first part eighteenth century on, 565,
566 : of recent publicists, 603, 605, 681,
688. 689

Territorial sea, opinions of Abreu y Ber-
todano, 559 ; Aschehoug, 686, 688 ;
Au her, 691 ; Azuni, 564, 565 ; on Bays,
565 ; Bishop, 683, 689 ; Bluntschli, 682,

688 ; Bodin, 540 ; Burgus, 550 ; Bynker-
shoek, 555, 556 ; on range of vision, 546 ;
Calvo, 682, 688 ; Casaregi, 558 ; Lord
Chelmsford, 586; Chitty, 597; Con-
ringius, 550 ; Baron de Courcel, 664 n. ;
Craig, 357 ; Dana, 683, 689 ; Desjardins,
685, 688 ; Lord Dunedin, 724 ; Fergu-
son, 684, 689; Fiore, 684, 689; Lord
Fitzmaurice, 630, 730, 731 ; Galiani,
5*>3; Gentilis, 540; Graswinckel, 550;
Sir Edward Grey, 732 ; Grotius, 549 ;
on range of vision, 545 ; Lord Guthrie,
723; Chief- Justice Hale, 543; Hall,
687, 689 ; Halleck, 683, 689 ; Lord Hals-
bury, 592; Lord Hatherly, 586 n. ;
Hautefeuille, 601, 688; Heffter, 600,

689 ; Lord Herschell, 692 n. ; Holland,
691 ; Hiibner, 562 ; Kent, 599, 689 ;
Kleen, 685; Kliiber, 597, 688; Lord

Kyllachy, 725 ; Lampredi, 563 ; Latour,
595, 685; Lawrence, 683, 688; Leoni
Levi, 664 n. ; Loccenius, 550 ; Lord
Loreburn, 732 ; Lushington, 586 n. ;
Manning, 600, 689 ; Masse, 602, 688 ;
de Martens, 686, 688; G. F. von
Martens, 563 ; on bays, 564 ; on straits,
564 ; Moore, 691 n. ; Moser, 562 ; Sir
John Nicholl, 586 ; Oppenheim, 688 ;
Ortolan, 600, 688; Perels, 684, 688;
Phillimore, 682, 688, 689 ; Pistoye and
Duverdy, 602, 688 ; Pontanus, 550 ;
Pradier-Fodc>re, 684, 688; Puffendorf,
550 ; on bays and gulfs. 551 ; Rayneval,
596; Reddie, 600; Lord Salisbury,
592 ; Sarpi, 547 ; Schmalz, 597, 688 ;
Shookius, 550 ; Lord Stowell, 641 n. ;
Strauchius, 550 ; Sir Travers Twiss, 683,
689, 691 n.; Valin, 562; Vattel, 560,
689 ; on bays, 561 ; on straits, 561 ;
Lord Wensleydale, 586 n.; Westlake,
691 n.; Wheaton, 598, 689; Wolff, 559,
689 ; Woolsey, 683, 689 : opinions of
early English lawyers, 539 ; of early
Italian jurists, 539; of Institut de Droit
International, 689-692, 774 ; of Inter-
national Law Association, 689-692, 774 ;
of judges in Franconia case, 590
Territorial Sea. Various limits proposed
or adopted for different purposes :

Three-mile limit, proposed by Galiani,
563 ; by Azuni, 565 ; introduced for
neutrality by United States, 573, 574 ;
introduced into English jurisprudence,
576, 577 ; originated in neutral rights,
694 ; applied to fisheries, 581 ; confusion
of, with range of guns, 591 and n., 598,
682, 683, 689 ; not equivalent to range
of guns, 21, 576 ; discussion on, 650-
652 ; generally adopted through influ-
ence of the United States and Great
Britain, 21, 681 ; an Anglo-American
doctrine, 681, 684 ; not generally ac-
cepted by publicists, 580, 680, 681, 688,
775; common adoption of, 21, 650; in
some international fishery conventions,
581, 612, 614, 617, 619, 621, 634, 635,
647, 649, 652; generally for fisheries,
616, 647, 663, 680; inadequacy of, 21,
604, 615, 617, 651, 679, 682, 683, 686,
687, 690, 693, 694, 707 and n. ; in rela-
tion to next great maritime war, 22 ;
British Government on, 730, 732 ; re-
fuses to recognise jurisdiction beyond
three miles, 663, 667 and n., 738 ;
wishes three-mile limit extended in war,
665 ; rejected by four European States,
664 ; refused by Norway, 633, 636, 678,
681 ; complex on Norwegian coast, 672,
676

Four-mile limit, 653 ; five miles, 575,
665, 691, 698, 715 ; six miles, 559, 563,
565, 566, 575, 582, 605, 606, 664, 665, 690,
691, 694, 775 ; adopted by International
Law Association for Fisheries, 690, 775 ;
limit for Dutch on Scottish coast, 605,

INDEX

79V

606 ; eight miles, 665, 694 ; nine miles,
563, 564 n., 608 andn., 611, 618, 679,
679 n., 691, 698, 737 ; on French coast,
608 n., 609; recommended by English
trawlers for North Sea, 702 ; ten miles,
665, 668, 687, 694, 696, 698, 707, 737 ;
in Argentina, 661 ; recommended for
North Sea by English trawlers, 702 ;
twelve miles, 575, 693, 594, 662, 665,
668, 715 ; thirteen miles, 703, 720, 738 ;
for fishery on Scottish coast, 720 ; four-
teen miles, 77, 84, 192, 193, 545, 694;
twenty-eight miles, 77, 84, 545 ; thirty
miles, 572, 696 ; fwty miles, 178, 585 ;
sixty miles, 3, 540, 696 ; eighty miles,
'79, 355 ; 100 miles, 3, 169,' 353, 360,
373, 539, 541, 559 ; claimed by Russia
in Behring Sea, 582

Range of guns, 21, 349, 549, 552, 593,
646, 658, 660, 676, 681, 685-687, 690, 716 ;
first proposed by Dutch ambassadors,
156, 549 ; Bynkershoek's dictum on,
556 ; merits of, 558 ; fixed in treat-
ies and decrees, 570 - 572 ; generally
adopted, 576 ; incorporated in inter-
national law, 558 ; generally accepted
by publicists, 688 ; the true principle
of delimitation, 595, 602, 603; and
neutral rights, 557, 559, 571, 572 ; and
salnte, 556, 557; as "zone of respect,"
690, 775

Range of vision, 175, 193, 347, 544-546,
571, 574, 596, 602, 694 ; defects of, 546 ;
adhered to by Dutch, 546 ; claimed by
Denmark, 529, 545 ; proposed by some
modern publicists, 546, 565, 600 (see
Land - kenning) ; subsistence limit of
Sarpi, 547

Territorial waters. See Territorial sea.

Territorial Waters Jurisdiction Act, 580 n.,
590, 591, 592, 717, 718, 731

Teutonic invaders, seafaring habits of,
26

Texel, 18, 409 ; battle of, 498

Thalweg. See Mid-line.

Thames, 49, 60, 76, 131, 133, 219, 443,
444, 459, 462, 472, 476

Thanet, 49, 68

Thorpe, 27, '28

Three-mile limit. See Territorial sea.

Three seas, 17

Thurloe, 432, 434, 436, 497, 498 n.

Tithes of fish. See Fish.

Tlieff, Captain Andrees, 171, 174, 175

Top-sails, lowering of. See Striking.

Tordesillas, treaty of, 5, 106

Traders, hostilities between, 53, 54

Trafalgar, 15

Trawling. See Fisheries.

Treaties, England and Burgundy, 1405,
1408, 69 ; 1417, 70 ; 1439, 70 ; 1467, 71 ;
1478, 72; 1496 (Intercursus Magnus),
72 ; 1499, 73 ; 1506, 73 ; 1515, 73 ;
1520, 73; and Castile, 1351, 67; and
Denmark, 1468, 110 ; 1490, 109 ; 1523,
109; 1583, 110; and Flanders, 1320,

55 ; and France, 1303, 44-46, 49 ; 1403,
67 ; 1471, 72 ; 1528, 75 ; and Portugal,
1353, 67 ; 1439, 70 ; and United Pro-
vinces, 1585, 433 ; Scotland and the
Emperor, 1541, 78 ; 1550, 79, 179 ; Scot-
land and the Netherlands, 1291, 1321,
1323, 1371, 1401, 1407, 1412, 1416, 76 ;
1531, 1541, 188 n. ; and United Pro-
vinces, 1594, 81, 157, 169, 173, 188 n.,
257, 388; Great Britain and Belgium,
1852, 617, 645; 1882, 637; and Den-
mark, 1882, 637; 1901, 647, 740; and
France, 1686, 526, 622; 1786, 572;
1839, 612; 1867, 619; 1882, 637; and
Germany, 1882, 637 ; and Mexico, 1888,
679 n. ; and the Netherlands, 1625,
433; 1654, 435, 436, 455; 1662, 455;.
1674, 508 ; 1689, 517 ; 1784, 522 ; 1882,
637 ; and Russia, 1825, 583 ; and Spain,
1630, 425 ; 1790, 573 ; and Sweden,
427 ; and United States, 1783, 622 ;
1794, 574, 62-2; 1814, 581; 1818, 581,
627; 1854, 625; 1871, 627; 1888, 628;
Denmark and Sweden, 1780, 572 n. ;.
1899, 655, 675 ; France and Algeria,
1689, 527, 573; Burgundy, 1468, 71;
the Emperor, 1521, 74, 119; Russia,
1787, 572 ; and United Provinces, 1635,
276 ; 1662, 453 ; Norway and Mexico,
1886, 594, 679 ; Porte and Naples, 1740,
546 ; Russia, Denmark, and Sweden,
1780, .572 n. ; and the two Sicilies, 1787,
572 ; and the United Provinces and
Prussia, 1781, 572 ri. ; Spain and Mo-
rocco, 1861, 668; and Portugal, 1494,
106; 1878, 1885, 1893, 665, 666; and
Tripoli, 1784, 572; and the United
Provinces, 1609, 148, 344, 350 n. ;
United States and Morocco, 1785, 572 ;
and Russia, 1824, 583

Treaties concerning fishery, British North
America, 526, 531, 532, 574, 622, 625,
627, 628

Treaties guaranteeing liberty of fishing on
English coasts, 66-74

Treaty of Antwerp, 148, 344, 350 n. ; of
Breda, 464, 465 ; of Dover, 475 ; of
Ryswick, 466 n. ; of Southampton, 388 ;
of Tordesillas, 5, 106 ; of Troyes, 8, 35 ;
of Union, England and Scotland, 1604,
192, 545 ; of Utrecht, 531

Treport, 65, 426

Trinity House, 114, 120, 447 ; on limits of
King's Chambers, 9, 753 ; on extent of
British Seas, 20, 465 n., 477, 478 ; on
jurisdiction of Cinque Ports in Channel,
544 ; on striking, 477

Triple Alliance, 467, 471, 474, 476, 481,
483, 490

Tromp, Lieut. -Admiral Martin Harpentz,
329, 390, 395, 408, 411 n., 415, 422,
436, 477, 511 ; attacks Oquendo in the
Straits of Dover, 330 ; in the Downs,
245, 331 ; strikes to English, 330, 334 ;
his letter to Pennington, 334 ; com-
mands Dutch fleet, 329 ; puts to sea to

798

INDEX

prevent search of Dutch vessels, 397 ;

no instructions as to striking, 397, 399 ;

his memorandum on striking, 398, 770 ;

reluctance to strike, 400, 401, 403, 404 ;

t-n. -Miiiiter with Blake, 12, 2Q7 n., 397,

I":;, 404, 421 ; correspondence with

Blake, 404 n., 771 ; story of broom,

408, 409

Tudors, 85, 86, 87, 118
Tunny fishery, 142, 504
Tweedmouth, Lord, 691, 720
Twee Gtbroeders, case of, 576, 577, 641 n.
Twiss, Sir Travers, 39, 40, 41, 42, 52 n.,

53, 312 n., 689, 691 n.
Two seas, 17
Tyuemouth, 214
Tyrrhenian Sea, sovereignty of, 371

United Provinces, 9, 12-14, 81, 119, 125,
126 n., 151, 157, 170, 179, 187, 191, 197,

- 198, 201, 243 n., 246, 251, 253, 257, 264,
265, 275, 288, 301, 302, 304, 340, 342,
364, 384, 399, 405, 416, 441, 454, 460,
470, 474, 517, 527-529. See States-
General, Dutch, Netherlands.

United States of America, disputes and
negotiations regarding British North
American fisheries, 532, 581, 621-630,
731 and u. ; regarding Behring Sea, 541,
583, 584, 695 n. ; territorial sea, 599,
661 ; fixes three miles for neutrality,
21, 93, 573, 574 ; various limits claimed,
574, 575, 650 ; influence of, in adoption
of three-mile limit, 650

Uruguay, territorial sea, 663

Ushant, 103, 290, 399, 437

Utrecht, 81 ; treaty of, 531, 582

Vagabonds, 98

Valck, Jacob, 81

Valin, on territorial sea, 562

Vane, Sir Henry, 269, 414, 422 n., 439

Varangerfjord, 674, 695

Vardo, or Vardohuus, 86, 97 n., 108, 109,
110

Vasquez. See Vasquius.

Vasquius, Ferdinand, on dominion of sea,
341, 351, 353

Vattel, on territorial sea, 560 ; on appro-
priation of fisheries, 561

Venice, 30, 91, 186 n., 191 ; sea sovereignty
of, 3, 4 and n., 16, 33, 54, 107, 158, 339,
341, 350, 351, 361, 371, 540, 547, 552;
limit of territorial sea, 571

Vestfjord, 672, 677

Vic, M. de, Vice- Admiral of France, 204

Violation of ports, 247, 249, 250

Virginia, 388

Visit and search and gun range, 557

Visitation of English ships, 268

Wagenaar, 80, 167 n., 311 n.
Walderswick, 90 n.
Walker, Sir Richard, 280
Walmer Castle, 279
Warbeck, Perkin, 72, 387

Wardhouse. See Vardo.

Warwick, Earl of, 206 n, 276, 379, 380

Wash, the, 18

Washington, George, 573, 681

Wells, 90

Welwood, William, 342 u., 343, 371, 546,

551 ; on appropriation of the sea, 353 ;

dominion of the sea, 354 ; exhaustibility

of sea, 355 ; on Grotius, 352 ; on limit

for Dutch on Scottish coast, 79, 84 ;

sea laws of Scotland, 352 ; attack on,

by Graswinckel, 412
Wensleydale, Lord, on territorial sea,

586 n.

Wentworth, Viscount, 227 n.
West Friesland, 453
Westlake, Professor, on territorial sea,

691 n.

Westmoney Islands, 109, 247
Weston, Lord, 227, 239 n., 241, 281
Weymouth, 268
Whale -fishing, 187, 189 ; in Behring Sea,

585; at Greenland, 407, 527-530; at

Jan Mayen, 527 ; at Spitzbergen, 112,

164, 181-184, 193, 194 n., 200, 527;

in Varangerfjord, 674 ; regulations,

695

Whales, right to, 66, 363
Wharton, 312 n.
Wheaton, on territorial sea, 598
Whestone, Admiral, 520
Whitby, 462
Whitelock, 414
White Sea, sealing at, 695 ; territoriality

of, 657 ; trawling at, 680
Whitstable Fishery, case of, 586 n.
Wicklow, 63

Wicquelbrt, on sovereignty of sea, 495
Wilkins, 27
Willes, John, 43
William of Malmesbury, 27
William III. and sovereignty of sea, 517-

520

William the Lion, King-, 59
Williamson, Sir Joseph, plenipotentiary

at Cologne, 496, 497, 498, 511
Willoughby, 181, 183
Wilson, Thomas, 163 n.
Wimbledon, Viscount, 227 n.
Winchelsea, 37, 49, 50, 73
Windebank, 243, 250, 253, 263, 267, 287,

295, 302, 319, 320, 32'2, 323
Winwood, Sir Ralph, 130 n., 152, 162, 168,

172

Wolff, on territorial sea, 559
Wolseley, Sir Charles, 429
Wolsey, Cardinal, 74, 119, 548
Woolsey, on territorial sea, 68:J
Worcester, 27
Worcester, Earl of, 56 n.
Worsley, Dr Benjamin, 515
Wotton, 162
Wreck, right to, 66, 362, 363, 542

Yarmouth, 34 n., 46 n.. 49, 58, 60, 62, 73,
90, 96, 97 n., 100, 108, 126, 129, 130 n.,

INDEX

799

131, 133, 134, 143-145, 151, 162, 214,

247, 248, 249, 295, 307, 308, 391 n., 438,

455, 461, 462, 463, 515, 546
York, Duke of, 446, 448, 456, 457, 458,

469, 472, 485, 493, 516
Yorkshire, 133

Yoims, Captain, 207 n., 401, 402
Ypres, 71

Zealand, 45, 60, 62, 64, 71, 72, 73, 74 n.,
75, 81, 88, 92, 94, 95, 125, 195

Zierikzee, 45 n.

Zorgdrager, 194 n.

Zouch, 515

Zowe, fishing-bank, 65 and n., 189 n., 276
n., 426 n., 440, 544, 749

Zuiderzee, territoriality of, 635

THE END.

PRINTED BY WILLIAM BLACKWOOD AND SONS,

I

PLEASE DO NOT REMOVE
CARDS OR SLIPS FROM THIS POCKET

UNIVERSITY OF TORONTO LIBRARY

Fulton, Thomas Wemysa
4111 The sovereignty of the

sea