The Sovereignty of the Sea
[Illustration: _The “British Seas,” according to Selden._]
The Sovereignty of the Sea
An Historical Account of the
Claims of England to the Dominion of
the British Seas, and of the Evolution
of the Territorial Waters: with special
reference to the Rights of Fishing
and the Naval Salute
BY
THOMAS WEMYSS FULTON
LECTURER ON THE
SCIENTIFIC STUDY OF FISHERY PROBLEMS, THE UNIVERSITY OF ABERDEEN
_WITH ILLUSTRATIONS_
[Illustration]
William Blackwood and Sons
Edinburgh and London
1911
_ALL RIGHTS RESERVED_
_I DEDICATE THIS BOOK TO
MY WIFE_
PREFACE.
In this book I have endeavoured to bring together from all available
sources such information as exists as to the ̉claims formerly made
to the sovereignty of the British Seas, and to trace the evolution
of the territorial waters in recent times. The work was originally
undertaken with the intention of dealing only with these subjects so
far as they related to the sea fisheries, but it soon became apparent
that to restrict the scope in this way would involve considerable
disadvantages, and would enable only a partial picture to be presented.
For though during a large part of the period with which the book
is concerned, the question of the fishery was the main question in
determining the claim to sea sovereignty, and is the one of the
greatest frequency at the present day with respect to the territorial
waters, it was by no means the only one. The freedom of ̉commerce to
regions more or less remote; the jurisdiction of a State in the sea
which washed its shores or which it claimed as belonging to it; the
naval salute or homage to the flag, and various other matters, were
commonly bound up with the question of the fisheries. It was therefore
deemed more satisfactory to treat the subject as a whole, even though
this necessarily involved much additional labour.
The book is divided into two sections, the first comprising an
historical account of the pretensions to the dominion of the sea; the
second dealing with the relic of such pretensions, the territorial
waters, more particularly in the aspect which they present under the
Law of Nations and in relation to the rights of fishing. With some
doubtful exceptions, the claim to a special sovereignty or dominion
over the so-called British Seas was a doctrine of the Stuarts,
introduced from Scotland to England with that dynasty, and terminating
with it. It was aimed in particular against the Dutch, whose commerce,
shipping, wealth, and power were believed to be derived from the
fisheries which they carried on along the coasts of this country.
Hence a very considerable part of the work refers to the dealings and
negotiations with that people as to the liberty of fishing and the
homage to the flag. Such pretensions to extensive maritime sovereignty
gradually decayed and disappeared, but the troubles and disputes as
to the rightful jurisdiction of a State in the waters adjacent to
its coasts have continued to the present day, and are dealt with in
the second section of the book. Scarcely a year passes that does not
witness one or more international differences of this kind, notably
with respect to fisheries, and in various quarters of the globe--it
may be now on the coasts of Portugal and Spain, or in the Pacific and
South America, or again at the White Sea, each case giving rise to
international negotiations and discussions as to the common usage and
the Law of Nations.
One great group of such questions, which for long formed a troublesome
heritage of the British Foreign Office, concerns the fisheries on the
coasts of British North America. Under various treaties, some of them
old, France and the United States possess special rights in these
fisheries, the true nature of which has occasioned numerous disputes.
It is a happy circumstance of recent years that those differences
have now been composed. The agreement with France in 1905 settled the
question of the fishery rights of that Power at Newfoundland, and the
Award of the Permanent Court of International Arbitration at The Hague
in the North Atlantic Coast Fisheries Arbitration, which was made
last autumn while this work was passing through the press, has in a
manner equally satisfactory settled the difficulties with the United
States,--a fortunate result due in great part to the exceedingly able,
lucid, and temperate presentation of the British case by Sir Robert
Finlay, but chiefly, it cannot be doubted, to the growing feeling of
goodwill between the two great branches of the Anglo-Saxon race. It
is to be hoped that similar differences now pending and to come, as
to the fisheries on other coasts, may be adjusted in a corresponding
spirit of amity and compromise. The fish in the sea, as Dr Nansen has
said, are not the property of any particular nation. They are, if the
word may be used, international, and it would therefore be as just
as it would be auspicious if all such questions were dealt with in a
spirit of international brotherhood, with due regard to the interests
of the coast population on the one hand, and the legitimate rights of
the enterprising fishermen from other nations on the other. To this end
the joint fishery investigations at present being conducted under the
guidance of a Council of representatives of the western and northern
Powers of Europe may be expected to contribute, if only by providing
that full and precise information, without which an effective and
equitable arrangement is difficult.
As far as possible, I have gone to original sources for my information;
the State Papers in the Record Office, the MSS. in the British Museum,
and those preserved at Hatfield--access to which was courteously
granted by the late Marquess of Salisbury--have been laid under
contribution. References to the various authorities are given for
practically all the statements in the book; and in the Appendix are
printed, either entire or in part, some of the more important documents
which are cited.
Among foreign friends and colleagues to whom my thanks are due for
information kindly given during the progress of the work, I must
mention four, who, alas! are no longer with us: Professor A. F. Marion,
Marseilles; Professor Enrico H. Giglioli, of Florence, for long the
esteemed President of the Commissione consultiva per la pesca, Rome;
Secretary of State M. Vladimir I. Weschniakow, President of the
Société Impériale Russe de pisciculture et de pêche, St Petersburg;
and Dr Rudolf Lundberg, Stockholm, all very willingly complied with
my requests for information. Among others who have aided me from time
to time are Dr Georges Roché, Paris; Dr Eugène Canu, Boulogne-sur-mer;
Señor Rafael Gutierrez Vela, Madrid; Dr Cav. Enrico Giacobini, of the
Ministry of Agriculture, Rome; Dr F. Heincke, Heligoland; Dr Johan
Hjort, Bergen; and Captain C. F. Drechsel, Copenhagen. My thanks are
also due to Dr Fridtjof Nansen, formerly the Norwegian Minister in
London; to M. J. Irgens, his successor; and to Dr T. Baty, Honorary
Secretary to the International Law Association, London, for copies
of documents and laws relative to the Scandinavian limits of the
territorial sea; and likewise to Mr R. M. Bartleman, the American
Consul-General at Buenos Aires, for papers referring to the extensive
claims recently advanced by the Argentine Republic for the regulation
of the fisheries in the adjacent seas.
Very specially have I to thank my friend, Dr P. P. C. Hoek, the
Scientific Adviser for the Fisheries of the Netherlands, and the
Commissioner appointed by The Hague Tribunal in the North Atlantic
Fisheries Arbitration, for his valued assistance and advice. Dr Hoek
was good enough to read over the proofs of the book, and I am indebted
to him for a number of emendations and improvements which his knowledge
of Dutch fisheries and history enabled him to suggest.
In transcribing records and preparing the index, and in some other
ways, I have been assisted by my wife.
I feel that an acknowledgment is due to my publishers for the patience
and consideration they have shown in the delay which, for several
reasons, has occurred in the completion of the book.
It is right to add that I alone am responsible for all the opinions
expressed, unless when otherwise stated.
T. WEMYSS FULTON.
41 QUEEN’S ROAD, ABERDEEN,
_January 1911_.
CONTENTS.
INTRODUCTION.
PAGE
Prominence of maritime affairs in English history--The meaning
of the term Sovereignty of the Seas--Early appropriation
of seas--Venice--Genoa--Denmark, Sweden, Poland--Spain and
Portugal--Reasons for appropriation--Insecurity of sea in middle
ages--Merchants associations--Origin of the English claims--Their
nature--Became important under the Stuarts--James I.--Charles I.--The
Commonwealth--Charles II.--Decay of the English pretension to the
dominion of the seas--Extent of the “Sea of England” and of the
“British Seas”--The “Narrow Seas”--The “Four Seas”--Selden on the
British Seas--The territorial waters 1
SECTION I.--THE HISTORY OF THE CLAIMS TO
THE SOVEREIGNTY OF THE SEA.
CHAPTER I.
EARLY HISTORY.
Alleged sea sovereignty exercised by ancient Britons, Romans, and
Anglo-Saxons--King Edgar--Canute--Norman, Angevin, and
Plantagenet kings--The Channel or Narrow Sea--The safeguarding
of the sea--Admiralty jurisdiction--Impressment of ships--Liberty
of navigation and fishing--The question of tribute--English
kings as lords of the sea--King John’s ordinance as to
lowering sail to a royal ship--The sovereign lordship in the so-called
Sea of England--The roll _De Superioritate Maris Angliæ_--Complaint
against Reyner Grimbald--Nature of jurisdiction
exercised in Sea of England 25
CHAPTER II.
THE FISHERIES.
Importance of fisheries in middle ages--Ecclesiastical fasts--A great
herring fishery--Foreign fishermen frequent British coasts--The
question of freedom of fishing--Licenses to French to fish in the
Channel--Treaties guaranteeing liberty for foreigners to fish on
the British coasts--The “Burgundy” treaties--The _Intercursus
Magnus_--Practice in Scotland differed from that in England--Waters
reserved for natives, and foreigners excluded--Treaties with the
Netherlands--Acts of the Parliament of Scotland 57
CHAPTER III.
UNDER THE TUDORS.
Decay of English fisheries--Influence of Reformation--Rise of
Dutch fisheries--The “Political Lent”--Cecil’s inquiries and
proceedings--Legislation to protect the English fisheries and
encourage the consumption of fish--First complaints against foreign
fishermen on English coast--Hitchcock’s “Pollitique Platt”--His
scheme of a national fishery association to compete with the
Dutch--Proposals of Dr John Dee to tax foreigners fishing on British
coasts--Claim advanced to the sovereignty of the sea--Supposed
limits of British seas--Queen Elizabeth opposes all claims to _Mare
Clausum_--Spanish and Portuguese pretensions to dominion on the
great oceans--Negotiations with Denmark as to trading and fishing at
Iceland and Norway--Queen Elizabeth’s exposition of the principles
of the freedom of the seas--Further legislation to promote the
fisheries--Failure of the policy of fish-days--The striking of the
flag 86
CHAPTER IV.
UNDER THE STUARTS. JAMES I. A NEW POLICY.
Change of policy as to freedom of fishery--The “King’s
Chambers” defined and described--Limited to questions of
neutrality--Beginning of struggle with Dutch for commercial
and maritime supremacy--Expansion of Dutch fisheries--English
accounts of their extent--John Keymer--Sir Walter Raleigh--Tobias
Gentleman--The Dutch great herring fishery along British
coast--Its value and importance--English fishery trifling in
comparison--English envy and jealousy of Dutch--Rival fishery
schemes proposed--Plan of London merchants--Proposals to tax foreign
fishermen--Complaints of encroachments of Hollanders in England
and Scotland--Petition from Cinque Ports for protection--Privy
Council consider unlicensed fishing by foreigners--Recommend
proclamation restraining foreigners from fishing on British coasts
without license from the king--Proclamation issued--Aimed against
Dutch--Protest of States-General--Proclamation suspended--The
“assize-herring”--Discussions with the Dutch ambassador--Dutch
embassy of 1610--Fishery question postponed--Other fishery
schemes--The queen’s proposals--Records to be searched to establish
king’s jurisdiction at sea and right to the fishings 118
CHAPTER V.
JAMES I.--_continued_. DISPUTES WITH THE DUTCH.
Grant of “assize-herrings” in Scotland to Duke of Lennox--Considered
by Scottish Council--James instructs that the tax be levied from
foreign fishermen--Mr John Brown collects them in 1616 from
Dutch--Protest by Dutch ambassador--Dutch naval commanders ordered
to prevent further payments--Brown again sent in 1617--Seized
and carried to Holland by Dutch man-of-war--Repudiation of
act by States-General--Further complaints in Scotland against
Dutch--Representations by British ambassador at Hague--“Land-kenning”
or range of vision claimed as limit--Scottish Council asked to
prevent Hollanders from fishing within sight of land--Dutch edict of
1618--Assize-herrings again demanded by the _Restore--Mare Clausum_
in the Arctic Seas--Spitzbergen whaling disputes--Dutch embassy of
1618--Evasion of fishery question--James’s displeasure--Threats
to use force--Fishery treaty again postponed--A limit of fourteen
miles requested--Dutch concession--Proposals regarding whaling at
Spitzbergen--Assize-herrings again demanded by the _Charles_--The
Dutch strengthen their convoying squadrons--Dutch embassies of 1619
and 1621--Fishery question still evaded--Edict of 1618 renewed--Fresh
complaints against Hollanders--Fishery societies proposed--The
striking of the flag--Incident with French in 1603--Monson’s action
against Dutch--Spanish complaint--The custom as to striking the flag 165
CHAPTER VI.
CHARLES I. FISHERIES AND RESERVED WATERS.
Extravagant pretensions to the sovereignty of the sea--The ship-money
writs and the old records--Charles proposes a great fishery society
to compete with the Dutch--Coke prepares a scheme--Difficulties
with Scottish burghs--Charles requests Scottish Privy Council to
further the scheme--Strenuous opposition in Scotland--Claim of
“reserved waters” advanced--Commissioners on behalf of England and
Scotland appointed--Prolonged negotiations--Extent of reserved waters
defined--Modifications proposed--Burghs petition Charles to prevent
the Hollanders from fishing in Scottish waters--Fisheries declared
to be under the royal prerogative--Charles attends the conferences
of the commissioners--Scheme finally agreed to--The “Royal Fishery
of Great Britain and Ireland” established--Operations at the
Lewes--Misfortunes and eventual failure of the society 209
CHAPTER VII.
CHARLES I.--_continued._ THE NAVY.
Need of a strong navy--Insecurity of seas from pirates--Violations of
King’s Chambers and ports by Dutch and Dunkirkers--Proclamation
concerning same and claiming sovereignty of sea--Charles’s
private policy to recover the Palatinate--Negotiations for alliance
with Spain against the Dutch--Pretexts for creating a fleet--The
ship-money writs--Feeling in Holland--Coke’s despatch on the
dominion of England in the seas--The first ship-money fleet,
under the Earl of Lindsey--His instructions--All hostilities in
narrow seas to be prevented--Previous instructions to Pennington
compared--The king’s private instructions--Their object--Lindsey’s
queries--Proceedings of the fleet--Rumours in London--Friction
with the admiral--Fails to meet the French fleet--Richelieu’s
strategy, and proposals as to salute--Licenses for Dutch
herring-busses--Lindsey quits the fleet--Discontent at his failure--The
question of the salute becomes very prominent--Doubts
and queries as to the custom in enforcing it--Practice on foreign
coasts--Between ships and forts--Arrogance of English captains--Usual
compliance of the Dutch--British merchantmen the
worst offenders 246
CHAPTER VIII.
CHARLES I.--_continued_. THE NAVY.
The second ship-money fleet--Placed under the Earl of
Northumberland--What was to be done with it?--Opinion of
Admiralty as to convoying foreign merchant vessels and preventing
foreigners from fishing without license--The instructions
to Northumberland--The proceedings of the fleet--Cruise in
Channel--Royal proclamation forbidding foreigners from fishing
without license in British seas--Northumberland goes in quest of
Dutch herring-busses--Licenses forced upon them--English men-of-war
left to “guard” them--Anxiety in the United Provinces--Mission of
van Beveren--States of Holland resolve to equip a fleet to protect
their fishermen from molestation--Mission of Joachimi--Intervention
of Queen of Bohemia--Northumberland’s fleet goes to the Yarmouth
fishing--Licenses again forced on the Dutch fishermen--The amount
of the “acknowledgment money” received--Misrepresentations on the
subject--Renewed excitement in Holland--Proceedings of Admiral Van
Dorp--Another change in the king’s policy--Arundel’s mission to
Vienna--Negotiations with the Prince of Orange--Terms of a proposed
treaty--Charles tries to get his licenses secretly accepted in
Holland--Third ship-money fleet--Tortuous action of Charles--Captain
Fielding sent in a merchant vessel to offer licenses to Dutch
fishermen--Dutch men-of-war interfere and prevent licenses being
taken--The story leaks out, and is to be “cried down” and another
story told--National discontent and domestic troubles--The “Sovereign
of the Seas”--The question of the salute--Increasing strength and
boldness of Dutch fleet--Arrest and search of English ships--Tromp
and Pennington--The battle in the Downs--Action of English
fleet--Humiliation of Charles--The Dutch the real masters of the seas 286
CHAPTER IX.
CHARLES I.--_continued._ THE JURIDICAL CONTROVERSIES.
_Mare Liberum_ and _Mare Clausum_--Dawn of international
law--Claims to maritime dominion conflict with commercial
expansion of period--Opinions of publicists previous to
Grotius--De Castro--Vasquius--The _Mare Liberum_ of Grotius--Its
origin and object--Arguments of Grotius against appropriation
of seas--His later work and opinions--Opponents of _Mare
Liberum_--De Freiras--Pacius--Welwood--His _Abridgment of All
Sea Lawes_ and _De Dominio Maris_--Arguments for appropriation
of sea fisheries--Grotius’ _Defensio_ in reply to Welwood--Other
authorities--Thomas Craig--Gerard Malynes--Alberico Gentilis--The
100-mile limit--The rights of the Crown in the foreshores and bed of
the sea--Thomas Digges--Sergeant Callis--Chief Justice Coke--Charles
desires to establish his rights to the dominion of the seas by “some
public writing”--Records searched--Sir John Boroughs’ _Soveraignty
of the British Seas_--Its contents and reasoning--Selden’s _Mare
Clausum_--Begun at desire of King James--Published in 1635 by
the king’s commands--Its importance immediately recognised--The
king’s eulogy--The character of _Mare Clausum_--Its facts and
arguments--Absolute sovereignty claimed for English crown--Anxiety in
Holland--States-General resolve on an official refutation of _Mare
Clausum_--Graswinckel’s treatise--Pontanus 338
CHAPTER X.
THE PARLIAMENT, THE COMMONWEALTH, AND THE PROTECTORATE.
THE FIRST DUTCH WAR.
Claim to the sovereignty of the sea and the salute
continued--Instructions to naval officers essentially the
same--Encounter with Swedish squadron--Action approved by Admiralty
committee--Council of State instruct Blake to preserve the dominion
of the seas--The Dutch strike willingly--Strained relations between
the Parliament and the United Provinces--Political revolution in
Holland--Mission of St John and Strickland to The Hague--Propositions
for fusion and alliance--The _Intercursus Magnus_ taken as basis for
treaty--St John’s seven Articles--The thirty-six Articles of the
Dutch--Failure of negotiations--Feeling in England--English letters
of reprisal--Embassy of Cats, Schaep, and Van de Perre--Dutch fleet
increased--Discussion of thirty-six Articles--Fresh instructions
from Holland--The negotiations suddenly interrupted--Blake’s
encounter with Tromp in the Straits of Dover regarding the striking
of the flag--Its antecedents--Tromp’s defective instructions as
to striking--Account of the fight--Indignation in London--Embassy
of the Grand Pensionary, Adrian Pauw--First Dutch war--Blake and
the herring-busses--Tromp’s broom--The Parliament asserts the
right of the Commonwealth to the sovereignty of the seas and the
fishery--Selden’s _Mare Clausum_ translated and published by order of
the Council of State--Controversy between Selden and Graswinckel 378
CHAPTER XI.
THE PARLIAMENT, THE COMMONWEALTH, AND THE PROTECTORATE--_continued._
THE PEACE NEGOTIATIONS.
The negotiations for peace--Mission of Beverning, Nieuport, Van de
Perre, and Jongestal--The attitude of Cromwell--Proposals for
fusion abandoned--Cromwell’s twelve Articles--The sovereignty
of the sea and the fishery put in the foreground--The twenty-seven
Articles proposed by the Council of State--Claim to the
fishery, the salute, the right of search, the exclusive guard of the
British seas, &c.--The strong objections of the Dutch--Cromwell
acts as spokesman of the Council--Discussion on the flag and the
herring fishery--The negotiations come to a standstill--The Dutch
ambassadors ask for their passports--Cromwell becomes Lord
Protector--Negotiations continued--Dutch proposals regarding
the salute--Cromwell withdraws the fishery article and the
declaration respecting the sovereignty of the sea--The terms
British Seas and Narrow Seas--Dutch propose to strike the flag all
over the world--The ambassadors return to Holland--They come
back again--Cromwell suddenly reopens the question as to the
British seas--Conclusion of treaty of peace--Diplomatic success
of the Dutch regarding the claim to the sovereignty of the sea--The
article on the striking of the flag--Enforcing the salute--Complaints
of English fishermen 414
CHAPTER XII.
CHARLES II.
THE SECOND DUTCH WAR.
Pretension to sovereignty of sea maintained--Efforts to revive
the fisheries--Legislation--Bill against foreigners fishing
on British coasts--Act of Scottish Parliament--Council of the
Royal Fishery of Great Britain and Ireland appointed--The
scheme receives little public support--Slovenly management of
the Society’s affairs--Negotiations with Dutch regarding the
sovereignty of the sea, the flag, and the fishery--Attitude of
De Witt--His negotiations with France--Treaty concluded with
Louis XIV. guaranteeing mutual protection to fishermen--Downing
and De Witt--Treaty of London--Article on flag--Ignorance at
Admiralty as to practice in striking--Second Dutch war--Causes
of--De Ruyter in the Thames--Licenses for fishing offered to
Dutch and refused--Grant of fishing rights to Bruges--Effect of
the war on the fisheries--Dispute between Dutch and French as to
salute--Peace conference at Breda--Claim to fishery withdrawn by
Charles--Treaty article on flag--The term British Seas restricted
to the Channel--Ambiguities regarding the practice of striking--De
Witt’s proposals to Temple for a “Regulation”--The Dutch ambassadors
discuss the matter with Charles--Their declaration about striking
to a frigate or ketch--Practice of striking described--Denmark also
proposes a “Regulation”--De Witt’s intrigues at Paris regarding the
salute disclosed to Charles--Arrangement between France and England
as to striking--Admiralty give close attention to the rules--Foreign
disputes about the salute--General order by the States of Holland 441
CHAPTER XIII.
CHARLES II.--_continued._
THE THIRD DUTCH WAR.
Policy of Louis XIV.--The Triple Alliance--Secret compact of
Charles and Louis against the Dutch--Parliament deceived--Pretexts
for a fleet--Ill-feeling against Dutch fomented--Inquiries
by Sir Leoline Jenkins as to striking and extent of British seas--The
king’s yacht, _Merlin_, sent to pick a quarrel about the flag--The
scheme miscarries--Downing’s mission to The Hague--Capture
of Dutch shipping--Attack on Smyrna fleet--Declaration
of war--The dominion of the seas flouted--The English to
salute the French--The war and the fisheries--The Dutch sue
for peace--The terms offered--Tribute for fishing asked--Meeting
of Parliament--Shaftesbury on the sovereignty of the sea--The
war most unpopular--Attempts to arouse public feeling as to
dominion of the sea--Prynne--Smith--Roger Coke--Henry
Stubbe--Charles forced to negotiate for peace--The Congress
at Cologne--Prolonged discussions about the flag, the fisheries,
and the sovereignty of the seas--Charles requires the salute
between Cape Finisterre and the North Cape--Dutch assume
a firmer attitude--Refuse to ask for liberty to fish--Offer to
strike in all seas--Congress breaks up--Strong attitude of
Parliament in favour of the Dutch--Separate peace made in
London--Sir William Temple--The claim to the fishery dropped--Article
regarding the salute--A diplomatic triumph for the
Dutch--Disputes at sea about striking--The incidents of the
_Cleveland_, the _Charles_, the _Cambridge_--English commander condemned
to death for striking to the Spaniards--Masters of foreign
merchantmen prosecuted in Admiralty Court for refusing to strike--Works
on the sovereignty of the sea--Evelyn--Molloy--Further
schemes to promote the fisheries 474
CHAPTER XIV.
JAMES II. AND AFTER.
Gradual decline of the pretension to the sovereignty of the
sea--England and the United Provinces allied against France--Louis’
ordinance regarding the salute--William III. claims the
sovereignty of the narrow seas--The question of striking becomes
of little international importance--The Admiralty instructions
concerning--Disputes about it less common--Encounter with a Swedish
man-of-war--The case of the _Gironde_--The naval historians
on the sovereignty of the sea--Articles regarding striking
in later treaties--The ceremony abandoned after the battle of
Trafalgar--General claims to maritime dominion give place to
international arrangements--Sir Philip Meadows--His treatise against
the dominion of the seas--Definite boundaries begin to be fixed
for fisheries--Fishery disputes between Denmark and the United
Provinces--Great Britain sides with the Dutch in opposing claims to
_Mare Clausum_--The North American fishery treaties of the eighteenth
century--The claim to the sovereignty of the seas dies out--Decay of
the Dutch fisheries and rise of the British 517
SECTION II.--THE TERRITORIAL WATERS.
CHAPTER I.
THE HISTORICAL EVOLUTION OF THE TERRITORIAL SEA.
Various limits proposed or adopted--The old English
lawyers, Glanville, Bracton, Britton, “Fleta”--Early
Italian jurists--Bartolus, Baldus--Limits of 100 and of 60
miles--Bodin--Gentilis--No general common usage--The mid-line
or Thalweg--The “Mirror of Justice”--Plowden--Chief Justice
Hales--Jurisdiction of Cinque Ports in Channel--The range of
vision or “land-kenning”--Lord Stair--Sarpi’s proposal--Bays,
straits, and arms of the sea--The King’s Chambers--Range of
guns from shore--Proposed by Dutch in 1610--Not adopted in
seventeenth century--Selden, Pontanus, Burgus, &c.--Influence of
Loccenius and Puffendorf--Opinion of publicists at end seventeenth
century--Usage in seventeenth century--Decisions of High Court of
Admiralty regarding King’s Chambers--Gradual change of opinion
and practice--Publicists in eighteenth century--The teaching
of Bynkershoek--Dominion extends as far as projectiles can be
thrown from the shore--Connection with salute and visit and
search--Bynkershoek’s principle only slowly accepted--Opinions of
Casaregi, Abreu, Wolff, Vattel, Hübner, Valin, Moser, Lampredi,
Galiani, Von Martens--Three miles as equivalent to the utmost
range of guns proposed by Galiani (1782), C. F. von Martens
(1789), and Azuni (1795)--Summary of opinions--Usage in eighteenth
century--Tendency to fix definite boundaries--Venice--Great
Britain--Denmark--Sweden--Norway--Spain--Range of guns adopted by
Tuscany, the Pope, Genoa, Venice, and in various international
treaties--Three-mile limit first adopted by the United States of
America in 1793--Exception of bays--Various limits claimed by the
United States 537
CHAPTER II.
GENERAL ADOPTION OF THE THREE-MILE LIMIT.
Cannon-range and three-mile limit as its equivalent introduced into
English Jurisprudence in 1800, 1801--Lord Stowell’s decisions
regarding the _Twee Gebroeders_ and the _Anna_ in British High
Court of Admiralty--Restricted to questions of neutrality--The
practice of Great Britain and the United States leads to
general adoption of three-mile limit--First applied to fisheries (of
North America) by Great Britain--Treaty of 1818--Negotiations
concerning Behring Sea--Russian claim of 100 miles--Adoption of
gunshot or three miles--Judicial decisions as to extent of territorial
sea--The Bristol Channel--Conception Bay--Statutes relative
to territorial waters--Foreign Enlistment Act--Territorial
Waters Jurisdiction Act--The _Franconia_ case--Three-mile
limit restricted to the open coast for certain purposes only--Bays
excluded--The Hovering Acts--Customs’ jurisdiction--Quarantine
Acts--Opinions of publicists of earlier part of nineteenth
century--Rayneval, Chitty, Schmalz, Klüber, Wheaton, Kent,
Manning, Heffter, Reddie, Ortolan, Hautefeuille, Pistoye and
Duverdy, Massé--Summary--Most accept cannon-range--Few
accept the three-mile limit 576
CHAPTER III.
THE FISHERY CONVENTIONS.
In nineteenth century the boundaries of territorial sea concerned
chiefly with fisheries--Encroachment of foreign fishermen--Dutch
decrees of 1824 and 1829 fixing a limit of two leagues on British
coast--Disputes with French fishermen--Inquiry by select committee
of House of Commons, 1833--Their recommendations--Opinion as to
bays--Renewed encroachments and disputes--Convention with France,
1839--Three-mile limit and ten miles for bays adopted--Granville
Bay reserved for French--Regulations regarding trawling--Disputes
with Belgian and Dutch fishermen--Belgians claim special rights
under Bruges Charter--Convention of 1852 with Belgium--Dispute
about Fame Islands--Second Convention with France, 1867--Not
ratified--Question of Irish oyster-beds beyond three-mile
limit--Fishery disputes in British North America--The definition
of bays and creeks--British cruisers seize American vessels--The
British Government relax the rule as to Bay of Fundy--Decision of
referee as to this bay--Reciprocity Treaty, 1854--Terminated by
United States, 1866--Concessions by British Government--Licenses
to American vessels--A six-mile limit for bays conceded--Treaty
of Washington, 1871--Terminated by United States, 1885--Treaty
of Washington, 1888--Precise delimitation of bays--Treaty not
ratified by United States--_Modus vivendi_ conceded and still in
force--Discussion as to bays--Renewed disputes in North Sea--The
Belgian “Devil”--The Higgin’s Inquiry--Conference at Hague,
1881--Views of British Government as to territorial limit--Question
of dependent banks--Trawling and preservation of fish--North Sea
Convention, 1882--Sweden and Norway refuse to join--Discussion
of its terms--Views of British Government as to inclusion of
banks--Question of the Eddystone, the Bell Rock, the Seven-Stones
Rocks--Discussion as to limit under the Conventions and under the Law
of Nations--Anglo-Danish Convention, 1901, respecting the Faröes and
Iceland 604
CHAPTER IV.
THE MODERN PRACTICE OF STATES AND THE OPINIONS
OF RECENT PUBLICISTS.
Apparent discrepancy between general practice and
the opinions of publicists--No state has formally
defined the extent of its territorial sea--Practice in
Germany--Denmark--Two limits enforced--Russia--The White
Sea--France--Belgium--Netherlands--Austria-Hungary--Italy--Greece--British
Colonies--Japan--United States of
America--Chile--Argentina--Uruguay--Three-mile limit
generally adopted for fisheries--Exceptions in four European
states--Spain and Portugal claim six miles--Repudiated by
British Government--Discontent in Spain and Portugal--Norway
and Sweden--Special Scandinavian limits--Fjords
reserved--Vestfjord--Varangerfjord--Discussion of Norwegian
limit--Rejection of three-mile boundary--Recent Norwegian laws--The
three-mile limit is an Anglo-American doctrine--Opinions of modern
publicists--Calvo, Bluntschli, Phillimore, Halleck, Lawrence, Bishop,
Woolsey, Dana, Twiss, Fiore, Pradiere-Fodéré, Perels, Ferguson,
Desjardins, Kleen, Aschehoug, de Martens, Hall, Oppenheim--The
limit under the Law of Nations is the range of guns--Declarations
of the International Law Association and the Institut de Droit
International--Three miles insufficient--Six miles proposed for
fisheries, &c--The zone or line of respect for neutrality to be
declared by each state 650
CHAPTER V.
THE INADEQUACY OF THE THREE-MILE LIMIT FOR
FISHERY REGULATIONS.
Three miles insufficient for the regulation of the fisheries--Seal
fisheries--Behring Sea arbitration--Oyster, pearl-oyster, and coral
fisheries--Regulations for “floating” fish--Relation of trawl-fishing
to three-mile limit--Recent great extension of trawling--The effect
on the fishing-grounds--Official inquiries--English trawlers desire
an increased limit in North Sea--International conference at
London, 1890--Inquiry by select committee of House of Commons--They
recommend international extension of present limit for fishery
purposes--Immature Fish Bill--Its object--Parliamentary inquiry,
1900--They urge international arrangement for North Sea--Bill again
introduced--Inquiry by committee of House of Lords, 1904--They
recommend international agreement for North Sea--The impoverishment
of the fishing-grounds in the North Sea--Trawlers flock to foreign
coasts--Feeling among foreign fishermen--Legislation in various
countries regulating trawling beyond the three-mile limit--Norway,
Spain, Portugal, Italy, Austria--Ireland--Not restricted to
bays--Scotland--Fishery Acts--Firth of Clyde--Moray Firth--Act
of 1895 empowering a thirteen-mile limit--Intrusion of foreign
and pseudo-Norwegian trawlers into Moray Firth--Prosecutions and
convictions--Case of Peters _versus_ Olsen--Case of Mortensen
_versus_ Peters--Decision of the Scottish High Court of
Justiciary--Opinions of the judges--Intervention of Norwegian
Government--Release of offenders--Foreign Office decline to open
negotiations with foreign Powers--Debates in Parliament--Lord
Fitzmaurice on territorial limit and bays--Opinions of Lord
Halsbury, Lord Herschell, Lord Salisbury, Lord Chancellor
Loreburn--Declarations of Sir Edward Grey, Minister for Foreign
Affairs--Views of British Government--Previous action of Great
Britain in connection with extra-territorial fisheries--Recent
proceedings with foreign Powers regarding the three-mile limit--The
international fishery investigations--Need of an international
arrangement 693
APPENDIX.
_A._ The Libel regarding Reyner Grimbald. De Superioritate Maris
Angliæ et Jure officii Admirallatus in eodem 741
_B._ Abstract of Proceedings before the Auditors regarding the same
744
_C._ License for Fishing at the “Zowe” Bank in the Channel, 1615 749
_D._ Proclamation of James I. relative to the King’s Chambers, 1st
March 1604/1605 750
_E._ Declaration of the Jury of the Trinity House as to the Limits of
the King’s Chambers, 4th March 1604/1605 753
_F._ Proclamation of James I. for the Restraint of Foreigners fishing
on the British Coasts, 6th May 1609 755
_G._ Instructions by the Privy Council of Scotland for the Levying of
the “Assize-herrings” from Foreign Fishermen 757
_H._ Proclamation of Charles I. as to preventing Abuses in the Narrow
Seas and Ports, and claiming Sovereignty of the Sea 759
_I._ Report of the Admiralty to Charles I. as to the Employment
of the Ship-money Fleet in wafting and securing Foreign Merchants
passing through His Majesty’s Seas, and in protecting Foreign
Fishermen who accept the King’s License, 5th February 1635/1636 762
_K._ Abstract of the Thirty-six Articles proposed by the Dutch to St
John at The Hague, 1650, 1651 764
_L._ Tromp’s Memorandum to the States of Holland as to the Custom of
Striking the Flag to the English, 27th February/9th March 1651 770
_M._ Copy of Originals of Letters between Tromp and Blake, after the
encounter in the Straits of Dover, 1652 771
_N._ Concession to Bruges to fish in the British Seas, 1666 772
_O._ Articles adopted by the Institut de Droit International at
Paris, and by the International Law Association at London, with
reference to the Territorial Waters 774
INDEX 777
LIST OF ILLUSTRATIONS.
FIG. PAGE
THE “BRITISH SEAS,” ACCORDING TO SELDEN _Frontispiece_
1. EDWARD’S NOBLE 37
2. HITCHCOCK’S REPRESENTATION OF THE ENGLISH AND FLEMISH
FISHERIES 99
3. CHART PREPARED BY THE TRINITY HOUSE, SHOWING THE
BEARINGS OF THE KING’S CHAMBERS. FROM SELDEN 121
4. SHOWING THE KING’S CHAMBERS ON THE COAST OF ENGLAND 123
5. FACSIMILE OF KEYMER’s SIGNATURE TO HIS ‘BOOK OF OBSERVATIONS’ 127
6. FACSIMILE OF THE CONCLUDING PART OF THE DRAFT OF
COMMITTEE’S REPORT TO PRIVY COUNCIL REGARDING THE
RESTRAINT OF FOREIGNERS FISHING ON THE BRITISH
COASTS 149
7. FACSIMILE OF MINUTE OF THE DECLARATION OF THE DUTCH
ENVOYS AS TO THE RANGE OF GUNS 156
8. DUTCH WHALERS AT SPITZBERGEN. AFTER VAN DER MEULEN 182
9. SHOWING THE LIMITS OF THE “RESERVED WATERS” CLAIMED
BY SCOTLAND 231
10. DUTCH HERRING-BUSSES UNDER SAIL. AFTER VAN DER
MEULEN 297
11. DUTCH HERRING-BUSSES HAULING THEIR NETS, WITH CONVOYING
SHIP-OF-WAR. AFTER VAN DER MEULEN 299
12. FACSIMILE OF THE OFFICIAL ACCOUNT OF THE MONIES RECEIVED
FROM THE DUTCH HERRING FISHERMEN FOR THE
KING’S LICENSES 310
13. THE “SOVEREIGN OF THE SEAS.” AFTER VANDEVELDE 324
14. FACSIMILE OF PART OF THE CHART, SHOWING WHERE THE
“TWEE GEBROEDERS” WERE TAKEN. FROM ROBINSON,
ADMIRALTY REPORTS 578
15. THE BRISTOL CHANNEL 587
16. SHOWING THE LIMITS RESERVED FOR FRENCH FISHERMEN IN
GRANVILLE BAY 613
17. BAY OF FUNDY 623
18. BAY DES CHALEURS 625
19. SHOWING THE SANDBANKS AT THE MOUTH OF THE EMS 635
20. SHOWING THE LIMITS FOR THE ANGLO-DANISH FISHERY CONVENTION
OF 1901 648
21. SHOWING THE TWO LIMITS IN DANISH WATERS. FROM
‘DANSK-FISKERITIDENDE’ 654
22. THE WHITE SEA, SHOWING THE LINE BETWEEN CAPE KANIN
AND CAPE SVIATOI 656
23. SHOWING THE LIMIT AT ROMSDAL AMT, NORWAY 670
24. THE VESTFJORD, LOFOTEN ISLANDS 673
25. THE VARANGERFJORD 675
26. SHOWING THE THREE-MILE LIMIT AND A THIRTEEN-MILE
LIMIT IN THE NORTH SEA 703
27. SHOWING THE AREA OF THE SMALL-FISH GROUNDS, WHICH
THE ENGLISH TRAWLERS DESIRED TO HAVE CLOSED FOR
THE PRESERVATION OF IMMATURE FISH 705
28. CHART SHOWING THE FISHING-GROUNDS FREQUENTED BY
BRITISH TRAWLERS. FROM REPORT OF THE BOARD OF
AGRICULTURE AND FISHERIES FOR 1906 712
29. THE FIRTH OF CLYDE, SHOWING THE LINE OF CLOSURE AND
THE ORDINARY THREE-MILE LIMIT 719
30. THE MORAY FIRTH, SHOWING THE LINE OF CLOSURE 723
THE SOVEREIGNTY OF THE SEA.
INTRODUCTION.
One of the most prominent and characteristic features in English
history relates to the sea and maritime affairs, and the reason is not
far to seek. The geographical situation of the country--everywhere
surrounded by the waves, separated on the one side from the Continent
by a narrow strait and open on the other to the great ocean--made it
almost inevitable. And to the advantage of insularity was added the
potent influence of race. A great part, if not the larger part, of our
blood has come from the old Scandinavian peoples,--the sea-wolves, as
the Roman poet said, whose school was the sea and who lived on the
pillage of the world; and it is to this circumstance even more perhaps
than to the accident of position that we owe our maritime and naval
supremacy and the vast empire scattered around the globe. Running
through the web of English history one perceives the connecting thread
of maritime interest and occupation interwoven with the national life,
and at all times affecting the national policy. First and foremost
was the necessity of securing the land from invasion; then came the
duty of safeguarding shipping and commerce; and with regard to those
fundamental interests, the language used by our rulers centuries ago
was the same as that which is used by our statesmen to-day. The sea
must be “kept.” That has been the maxim and watchword of national
policy throughout the ages, and the recognition of its truth was
by no means confined to rulers and statesmen. The people at large
have always been as convinced and as resolved that the supremacy or
dominion on the sea should be maintained as were those in whose hands
was placed the guidance of the affairs of the state. Again and again,
when owing to mismanagement of the national resources, the poverty
of the exchequer, or from some other cause, the supremacy at sea was
endangered or temporarily lost, one will find the people clamouring for
steps to be taken to maintain it. On the other hand, such was the deep
and abiding sentiment with respect to the sovereignty of the sea, when
this king or that wished to embark upon a policy or engage in a war for
an object that was secret or unpopular, there was no better method of
deceiving the people than by declaring that the dominion of the sea was
in danger. Thrice in the compass of a single generation the nation was
plunged into war with the object of maintaining it.
One thus finds in English history a great deal which refers to the
sovereignty of the sea, although the words were not always used to
signify the same thing. Most commonly perhaps they meant a mastery
or supremacy by force of arms,--what is now so much spoken of as
sea-power. In times of peace, the strength of the navy should be such
as to safeguard the commerce that came to the realm and went from
it, thus enabling merchants and traders to carry on their traffic
in security. In time of war, the fleets should be strong enough to
sweep the seas, so that, as it has been described, the bounds of the
empire should then be the coasts of the enemy. But, more strictly, the
sovereignty of the sea was a political sovereignty that existed as a
matter of right, and was duly recognised as such, apart from an actual
predominance of naval power at the time, just as the sovereignty of a
state exists on land, though in both cases its maintenance may depend
upon the sword. In this sense, the sovereignty of the sea signified
the same sole power of jurisdiction and rule as obtained on land, and
also, in its extreme form, an exclusive property in the sea as part
of the territory of the realm,--very much indeed like the rights that
are now admitted by the law of nations to appertain to the so-called
territorial waters of a state. Many things and many interests were
thus embraced in the term besides the question of naval ascendency.
There were jurisdictions of various kinds and for various purposes.
There was the important subject of the fisheries in the waters adjacent
to the coasts, or, it might be, in distant regions. There was the still
more important question of the freedom or restriction of commerce and
navigation from one European country to another, or to the remote
countries in the east or west which had been opened up to commercial
enterprise by the discoveries of the early navigators. There was,
moreover, another subject which was specially characteristic of the
English pretensions to the dominion of the seas, and which gave rise to
more trouble than all the others combined, and that was the demand that
foreign vessels on meeting with a ship of the king’s should lower their
top-sails and strike their flag as a token and acknowledgment of that
dominion.
Although according to the Roman law the sea was common and free to
all, in the middle ages many seas had become more or less effectively
appropriated, and Civilian writers began to assign to maritime states,
as a principle of law, a certain jurisdiction in the waters adjacent to
their coasts. The distance to which such jurisdiction was allowed by
those writers was variously stated. Very commonly it extended to sixty
or one hundred miles from the land, and thus included all the bordering
sea within which navigation was practically confined. Sometimes
the principle governing the ownership of rivers was transferred in
theory to the sea, the possession of the opposite shores by the same
state being held to entitle that state to the sovereignty over the
intervening water; or, if it possessed only one shore, to the same
right as far as the mid-line. In most cases, however, the appropriation
of the sea was effected by force and legalised afterwards, if legalised
at all, and the disputes on the subject between different nations not
infrequently led to sanguinary wars.
The most notable instances are to be found among the early Italian
Republics. Long before the end of the thirteenth century Venice,
eminent for her commerce, wealth, and maritime power, assumed the
sovereignty over the whole of the Adriatic, though she was not in
possession of both the shores, and after repeated appeals to the sword
she was able to enforce the right to levy tribute on the ships of
other peoples which navigated the Gulf, or to prohibit their passage
altogether. The neighbouring cities and commonwealths were soon
compelled to agree to her claim, which was eventually recognised by
the other Powers of Europe and by the Pope. The right of Venice to the
dominion of the Adriatic, arising in this way by force, became firmly
established by custom and treaty; and even after she had fallen from
her greatness and was hardly able to sustain her claim by the sword,
it was still for a time admitted by other nations, who looked upon the
Republic as forming a useful barrier to the farther extension of the
Turk in Europe and as a scourge to the Saracen pirates.[1] On the other
side of the Italian peninsula, the Republic of Genoa advanced a similar
claim to the dominion of the Ligurian Sea, and some of the other
Mediterranean states followed the example in the waters with which they
were most immediately concerned.
Then in the north of Europe, Denmark and Sweden, and later Poland,
contended for or shared in the dominion of the Baltic. The Sound and
the Belts fell into the possession of Denmark, the Bothnian Gulf
passed under the rule of Sweden; and all the northern seas between
Norway on the one hand, and the Shetland Isles, Iceland, Greenland,
and Spitzbergen on the other, were claimed by Norway and later by
Denmark, on the principle referred to above, that possession was held
of the opposite shores. The Scandinavian claims to maritime dominion
are probably indeed the most important in history. They led to several
wars; they were the cause of many international treaties and of
innumerable disputes about fishery, trading, and navigation; they were
the last to be abandoned. Until about half a century ago Denmark still
exacted a toll from ships passing through the Sound,--a tribute which
at one time was a heavy burden on the trade to and from the Baltic.
Still more extensive were the claims put forward by Spain and Portugal.
In the sixteenth century these Powers, in virtue of Bulls of the
Pope and the Treaty of Tordesillas, divided the great oceans between
them. Spain claimed the exclusive right of navigation in the western
portion of the Atlantic, in the Gulf of Mexico, and in the Pacific.
Portugal assumed a similar right in the Atlantic south of Morocco and
in the Indian Ocean. It was those preposterous pretensions to the
dominion of the immense waters of the globe that caused the great
juridical controversies regarding _mare clausum_ and _mare liberum_,
from which modern international law took its rise. The task of Grotius
in demolishing them by argument was, however, materially facilitated
by the exploits of Drake, Hawkins, and Cavendish on the part of the
English, and of Jakob van Heemskerk on the part of the Dutch; and, as
we shall show, the credit on having first asserted the freedom of the
seas in the sense now universally recognised, belongs rather to our own
Queen Elizabeth than to the Dutch publicist.
In thus appropriating the seas adjacent to their territories, or which
formed the means of communication with them, the various nations
were doubtless impelled by consideration of their own immediate
interests. Sometimes it helped to secure the safety of their coasts or
commerce; in other cases it enabled them to levy tribute on foreign
shipping traversing the appropriated waters, and thus to increase
their revenues; or it allowed them to preserve the fisheries for the
exclusive use of their own subjects. In most instances, however, the
principal object appears to have been to maintain a monopoly of trade
and commerce as far as possible in their own hands, in accordance with
the commercial spirit of the times.
But when the matter is more carefully examined in its historical
aspects, a less selfish explanation may be found of the tendency to
appropriate seas in the middle ages. In the state of wild anarchy which
prevailed after the break-up of the Roman empire, pirates swarmed along
every coast where booty might be had. Scandinavian rovers infested the
Baltic, the North Sea, and the Channel; Saracens and Greeks preyed upon
the commerce of the Mediterranean; everywhere the navigation of trading
vessels was exposed to constant peril from the attacks of freebooters.
The sea was then common only in the sense of being universally open to
depredation.[2] The lawlessness and insecurity that reigned on the
sea led merchants, in the absence of effective sovereign authority,
to form associations among themselves for mutual protection, and to
maintain by force the security of navigation in the common interest.
Independent princes at first made use of the armed fleets of those
voluntary associations, and later, as their power grew stronger and
better organised, they took over the duty of policing the neighbouring
seas under an admiralty jurisdiction of their own, which enforced the
maritime laws and customs, such as the Laws of Oleron, that had been
gradually developed among the merchant associations. In the thirteenth
century this duty of exercising supreme admiralty jurisdiction on the
neighbouring sea came to be regarded as a prerogative of sovereign
power,[3] and it was only a short step further to the assertion of an
exclusive dominion. It was natural that this assumption of sovereignty
on the sea should first be made by the great trading cities of
Italy, who then controlled the important traffic between the east
and the west, and whose shipping was to be found in all the ports of
Christendom. It was also natural that the Italian jurists should be
the first to attempt to give it a legal sanction, by assigning a large
part of the bordering sea for the exercise of those sovereign functions
which were originally confined to the maintenance of order and the
punishment of delinquents. There is little doubt that the assumption of
sovereign jurisdiction in this way was advantageous to navigation and
commerce in those times, though later, with the extension of commercial
intercourse and the increased security of the sea, it became burdensome
and unnecessary.
There are good reasons for the belief that the English claims to the
sovereignty of the sea originated in this humble way--by the exercise
of jurisdiction in the interests of peaceful commerce--some time
after the Norman Conquest, and in all probability first of all in the
Channel or the Straits of Dover. The earliest indication of it is to
be found in the much-discussed ordinance which King John issued in
1201. By that ordinance any ships or vessels, “laden or empty,” which
refused “at sea” to lower their sails when ordered to do so by the
king’s lieutenant or admiral in any voyage appointed by the Council,
and resisted the demand, were to be reputed as enemies, and the ships,
vessels, and goods were to be seized and forfeited and the crews
punished. This is the first evidence of the custom of lowering the
top-sails and striking the flag which afterwards became so notorious as
a supposed acknowledgment of the English sovereignty of the sea; and it
is to be noted that, in later times at least, the vessel had not only
to strike, but had also to “lie by the lee.” Considering the prevalence
of piracy and the jurisdiction exercised by the state for its
suppression, as above described, and in view likewise of the special
measures taken by John to encourage and safeguard foreign commerce, the
most reasonable explanation of the origin of the custom is that the
demand for the sail to be lowered--and the largest vessels then had but
one mast and a single sail--was to enable the king’s officers, who were
there to maintain the security of navigation, to ascertain the true
nature of the vessel which they challenged, whether it was a peaceful
trader or a pirate. In all ages piratical vessels have been generally
swift, and, if we judge from later times, the ships used in the navy
were generally slow: the command to a vessel to lower its sails was
thus made in order to deprive it of the power of escaping until the
king’s officers had satisfied themselves as to its _bona fides_, and
was equivalent to the gun that was fired in later times in connection
with “visit and search.” Shortly before the ordinance was issued,
John sent writs to the Mayor and Commonalty of London and to all the
Sheriffs of England instructing that all merchants, of what nation
soever, should have safe conduct to pass into and repass from England,
and to enjoy peace and security.[4] It is noteworthy that in the first
record relating to the seizure of a vessel for not lowering its sail (a
Flemish herring smack, in 1402) it was pled on its behalf that it was
not armed, and that the sail had been dropped at the first command. It
is also noteworthy that the ordinance of John was placed in the _Black
Book of the Admiralty_ immediately after the mercantile marine laws.
Further evidence as to this sort of jurisdiction in the so-called “Sea
of England” is to be found in the reign of Edward I., at the end of
the thirteenth century and the beginning of the next, in the reign
of Edward III., and later, more particularly in the famous rolls,
“On the Supremacy of the Sea of England and the Right of the Office
of Admiralty in the same,” as well as in the _Black Book_. The rolls
referred to show that England had the sovereign jurisdiction in regard
to the maintenance of peace and security in the Sea of England, but
there is no evidence to indicate that that Sea extended far from the
coast, or that the rights exercised differed from those put in force by
other maritime states in the waters adjoining their territory. A great
deal was made later of these rolls and of the ordinance of John, as
proving that the Angevin or Plantagenet kings possessed the sovereignty
of the sea; but beyond the jurisdiction in question, which doubtless
was exercised in the Straits of Dover and perhaps in the Channel when
the coasts on each side were in the possession of the crown, there is a
lack of evidence to prove that any claim of the kind was made. In those
times the kings of England were not infrequently styled Lords of the
Sea, but this appears to have been either because of the existence of
this “sovereign lordship” in the neighbouring waters, or, more usually,
because they held at the time the actual command and mastery of the
seas in a military sense. There were long periods when nothing was
heard of any pretension by England to a special sovereignty of the sea,
and, in point of fact, the characteristic features of appropriation
were always absent. No tribute was levied on foreign shipping passing
through the Channel or the narrow seas, even when both coasts were
held by the king, as was done by Denmark at the Sound and by Venice in
the Adriatic. After the battle of Agincourt, when Henry V. had been
recognised by the Treaty of Troyes as the future king of France and the
power of England was predominant, the proposal of Parliament that such
tribute should be levied was set aside. Foreign ships of war freely
navigated the adjacent seas without asking or receiving permission to
do so. The sea fisheries, moreover, were not appropriated. All people
were at liberty to come and share in them, and this freedom to fish
on the English coast was expressly provided for in a long series of
treaties with foreign Powers. The so-called sovereignty of the seas
exercised by England thus differed from the actual sovereignty enjoyed
by Venice and the northern states of Europe, whose rights were,
moreover, recognised in numerous treaties with other nations.
Until the accession of the Stuarts indeed, any pretension of England
to a sovereignty in the sea had but little international importance.
The custom of lowering the sail by vessels encountering a king’s ship,
which probably, as above described, originated in a practical way,
had grown into a ceremony in which the top-sails were dropped and
the flag hauled down; but it is evident that this was done, even in
Tudor times, rather as a matter of “honour” and respect than as an
acknowledgment of maritime sovereignty. But after the Stuarts came to
the throne the claim of England to the sovereignty of the sea became
prominent in international affairs. The doctrine may be said to have
been introduced by this dynasty and to have expired with it. One of
the first acts of James I. was to cause to be laid down on charts the
precise limits of the bays or “chambers” along the English coast,
within which all hostile actions of belligerents were prohibited. This
sensible proceeding, which had reference to the continuance of the war
between the United Provinces and Spain (from which James had himself
withdrawn), is not to be regarded as in any sense an assertion of
maritime sovereignty or jurisdiction beyond what was customary; and
it does not appear that any other prince or state contested the right
of the king to treat these bays and arms of the sea as territorial in
respect of neutrality. The limits of the “King’s Chambers” were fixed
by a jury of thirteen skilled men, appointed by the Trinity House,
according to their knowledge of what had been the custom in the past;
and there is little doubt that the limits they adopted merely defined
in an exact way what was previously held to be the waters under the
special jurisdiction of the crown, or, in other words, the “Sea of
England,” though the latter doubtless included, at times at least, the
Straits of Dover and perhaps the Channel as well.
But James went further than this. In 1609 he issued a proclamation
in which he laid claim to the fisheries along the British and Irish
coasts, and prohibited all foreigners from fishing on those coasts
until they had demanded and obtained licenses from him or his
commissioners. This policy of exclusive fishing, though in complete
agreement with the views held in Scotland as to the waters “reserved”
for the sole use of the inhabitants, was a reversal of the long-settled
practice in England, where fishing in the sea was free. It is from
this time that one may date the beginning of the English pretension
to the sovereignty of the sea. The proclamation and the policy were
aimed against the Dutch, the great commercial people of those times.
Their ever-increasing herring fishery along the British coast was one
of the principal sources of their wealth and power; by means of it
indeed, according to their own accounts, they were able to maintain
their vast commerce and shipping. The action of James may be looked
upon as the first blow in the great contest between the English and
the Dutch for maritime and commercial supremacy, which was prolonged
throughout the seventeenth century; and the ready acceptance of the new
policy by the English people was owing to the fact that the conditions
had been gradually preparing for it in the preceding reign, while the
two nations were still bound together in alliance against Catholic
Spain. With the new development of commercial enterprise the English
found the Dutch their competitors in trade in all parts of the globe to
which they ventured. The feeling of jealousy that was thus engendered
was embittered by the belief that they were often circumvented by the
Dutch by unfair means, and this feeling deepened with every year as
the century advanced. It was thus against the Dutch that the English
pretension to the sovereignty of the sea was specially directed, and it
eventually culminated in war. From various circumstances, and not least
perhaps from the timid character of James when force was necessary, the
policy of preventing the Dutch from fishing on the British coasts was
not carried into effect in his lifetime. But with the tenacity that
was a curious feature in his nature, his claim to the fisheries was
kept alive and formed the subject of mutually irritating negotiations
throughout the whole of his reign.
Under Charles I. the English pretension rapidly developed and
reached its greatest height, in connection more particularly with
the ship-money fleets. The need of an efficient navy for the most
elementary duty of safeguarding the sea had been made fully manifest
by the frequent and flagrant violations of the king’s sovereignty in
his “chambers,” and even in the ports and harbours, both by the Dutch
and Dunkirkers. And some of the reasons which were used to justify the
formation of a powerful fleet, far beyond the requirements necessary to
enforce the ordinary jurisdiction, were sound enough. Without it, it
was said, the kingdom could not be made safe, whereas if the king had
the command of the seas he would be able to cause his neighbours “to
stand upon their guard” whenever he thought fit; and it could not be
doubted that those who would encroach upon him by sea would do it by
land also when they saw their time. But the pretensions of Charles went
far beyond this. He had caused the records in the Tower to be searched
for evidence of the ancient supremacy exercised by the crown in the
Sea of England, and when they were found they were interpreted in the
widest possible sense. Charles assumed the rôle of the Plantagenets
with a good deal added. The bounds of the Sea of England were extended
to the coasts of the Continent, and over all the intervening water
the king was to enforce an absolute sovereignty. No foreign fleets or
men-of-war were to be allowed to “keep any guard” in them, to offer any
violence, or to take prize or booty. All passing through them were to
be “in pace Domini Regis,” in the peace and under the protection of the
King of England, who was Lord of the Seas, ruling over them as part of
his territory, and he would take care that there was no interruption of
lawful intercourse. And as an acknowledgment of this sovereignty, all
foreign ships or vessels meeting with a king’s ship in “those his seas”
were to lower their top-sails and strike their flag as they passed by.
Charles even proposed to levy tribute on the foreign ships that passed
through “his seas,” but by the advice of the Admiralty this was to be
only voluntary, in payment for waftage or convoy.
These extraordinary pretensions Selden attempted to justify in his
book, _Mare Clausum_, but Charles was unable to carry them into effect.
It is pitiful to read of the proceedings of the great ship-money
fleets, created under circumstances so memorable in English history,
roaming about the Channel in their vain attempts to compel the French
men-of-war to strike their flags, and in the North Sea forcing the
king’s licenses on the poor Dutch herring fishermen. The Earl of
Northumberland succeeded in the latter mission, against which the
Dutch Government strongly protested, and there is no doubt that if
the policy had been persisted in, the first Dutch war would have been
antedated by some fifteen years.
At this period and during nearly all the remainder of the century the
greatest prominence was given to the striking of the flag, which had
continued to be a matter of small importance in the reign of James. It
was now claimed as a token and acknowledgment of England’s sovereignty
of the sea, and it was insisted on with the utmost arrogance. The
“honour of the flag” burned like a fever in the veins of the English
naval commanders, who vied with one another in enforcing the ceremony,
not merely in the Channel or near the English coast, but in the roads
and off the ports on the Continent; and the records relating to their
achievements in this respect were treasured up in the archives of the
Admiralty, to be used again and again in later diplomatic negotiations
as to the rights of England to the sovereignty of the sea. Dutch
ships, and in particular the men-of-war, made little scruple about
performing the “homage.” The Government of the United Provinces were
keenly concerned about their commerce and fisheries, and so long as the
English pretension did not menace these substantial interests they were
willing to show “respect” to the English flag--never, however, as an
acknowledgment of any supposed sovereignty of the sea.
While Charles was on the throne no serious international consequences
resulted from the enforcement of the salute. The Dutch, as has been
said, readily rendered it, and by the prudent policy of Richelieu the
French ships were kept out of the way; and not very long thereafter
Charles was stripped of his sovereignty on land as well as on the sea.
But a little later it had noteworthy results. It was the reluctance of
Lieutenant-Admiral Tromp to lower his flag to Blake in their historic
meeting in the Straits of Dover in 1652 that precipitated the first
Dutch war. By this time the States-General of the United Provinces,
and the State of Holland in particular, had considerably abated their
readiness to render the “homage of the flag,” even as a mark of
respect, thinking that it might be construed as an acknowledgment
on their part that the Republic of the Netherlands was inferior to
the Republic of England. They had dallied with the subject when it
was brought before them in connection with the instructions to their
fleets, and had refrained deliberately from giving precise orders about
it. The Commonwealth, on the other hand, assigned as much importance
to the striking of the flag as Charles had ever done, considering that
it touched their dignity as well as their sovereignty in the seas, and
the instructions they issued to the naval commanders were practically
the same as those that had been given to the ship-money fleets. Even
the godly Barebones’ Parliament of 1653, which looked upon the Dutch
as a carnal and worldly people, held it necessary that the seas should
be secured and preserved as peaceable as the land, as a preparation
for the coming of Christ and the personal reign. The traditional
sentiment of the English nation respecting supremacy at sea had never
been stronger; their jealousy of the commercial pre-eminence of the
Dutch was never keener. In the prolonged negotiations that preceded the
conclusion of peace, Cromwell, who, until he became Lord Protector,
acted as spokesman for the Council, put the questions relating to the
dominion of the sea in the foreground. The draft articles which he
submitted to the Dutch for their acceptance, while permitting their
merchant vessels to navigate the British seas (a provision offensive in
itself), proposed to limit the number of their men-of-war that might
be allowed to pass through those seas, and if occasion arose for a
larger number, the Dutch Government were to give three months’ notice
to the Commonwealth and obtain consent before they put them forth.
Their men-of-war, as well as their merchant vessels, were to submit to
be visited and searched. The Dutch were to have liberty to fish upon
the British coasts on payment of an annual sum for the privilege. They
were to render the honour of the flag to any ship of the Parliament. Of
all these demands the only one that was conceded was the last, and it
was a small triumph for Cromwell that he was able, for the first time,
to bind another nation to this ceremony by the formal stipulation of a
treaty. The Dutch, however, were able to eliminate from the article the
words representing that the striking of the flag was an acknowledgment
of England’s sovereignty of the sea; and it was pointed out in Holland
that they had undertaken to do nothing more than they had previously
done.
After the Restoration the pretension to the sovereignty of the sea
was continued with almost as much zeal as before. Charles II. did not
indeed lay claim to an absolute dominion over the British seas, such
as his father had done in the earlier part of his reign. But on all
occasions when the opportunity offered, he held to his alleged right
to levy tribute for the liberty of fishing on the British coasts, but
without the least success. And as for the right to the “honour of
the flag,” if it was not exacted with the same arrogance as it had
been earlier in the century, it came now to be more than ever before
a subject of importance in international relations, especially with
the United Provinces. De Witt, the able Minister who directed Dutch
affairs, was very desirous to arrive at a definite understanding about
it, for he saw that to leave in ambiguity a matter which England
regarded as touching her national honour would be to imperil the
peaceful relations between the two countries. His object was to have a
well-considered regulation prepared and agreed to, so that the points
in ambiguity might be made clear, and also to provide that if the
Dutch saluted first the English should then return the salute; and he
stipulated that the striking of the flag or any agreement about it
must not be looked upon as an acknowledgment of England’s so-called
sovereignty of the sea; the Dutch, he said, “would rather die” than
admit it. One of the points which was in obscurity was whether a whole
fleet or squadron of the States was to strike to any single ship of the
king’s, even if it was a frigate or a ketch, which did not customarily
carry the royal flag in the main-top, or only to an admiral’s ship or
one carrying the royal flag. De Witt let it be known in the clearest
manner that in his opinion it was intolerable that an English frigate
or ketch could claim to force a whole Dutch fleet to strike to it.
A few years later, when Charles wished to give effect to his secret
compact with Louis XIV. by waging war against the United Provinces, it
was necessary to hoodwink the English people as to this flagrant breach
of treaty obligations. He therefore contrived, as the means of picking
a quarrel with the Dutch, a dispute about the honour of the flag, and
he sent, not a frigate, but his yacht, the _Merlin_, to force the whole
Dutch fleet to strike to it, and thus to raise a clamour in England,
as he hoped, about the sovereignty of the sea being flouted and
endangered. In the third Dutch war which followed, the United Provinces
maintained the contest at sea with credit and success against both the
English and the French. For domestic reasons Charles was forced to make
a separate peace, and in the long negotiations with that object the
question of the sovereignty of the sea was brought prominently forward.
An attempt was made again to induce the Dutch to agree to pay an annual
sum of £12,000 for the privilege of fishing on the British coasts, but
the only concession obtained from them related to the striking of the
flag. The article in the treaty of peace which dealt with this differed
from the corresponding article in previous treaties. The term “the
British Seas” was omitted, and it was agreed that even squadrons of the
Dutch should strike to any single ship of the king’s in “any of the
seas” from Cape Finisterre to Van Staten in Norway; but it was to be
done as an “honour” to the king’s flag, and not as an acknowledgment
of his alleged sovereignty of the sea. The Dutch, indeed, offered to
strike in the same way all the world over.
After this time the English claim to the sovereignty of the sea began
to lose its importance. In subsequent treaties with the Dutch Republic,
even as late as 1784, a clause was inserted providing for the salute,
but it had become merely a matter of form and precedent. The ceremony,
in truth, had grown to be a political encumbrance, and after the battle
of Trafalgar, when British supremacy at sea was unquestioned, the
clause relating to the enforcement of the salute was quietly dropped
out of the Admiralty instructions.
It is remarkable that throughout the whole of the long period in which
England claimed sovereignty in some form or other over the so-called
“Sea of England,” or the “British Seas,” no authoritative definition
was ever given of the extent of sea included in the term. In the case
of the Adriatic there was no difficulty in understanding the limits
within which Venice assumed maritime dominion, for the Adriatic is
a narrow landlocked gulf whose boundaries were obvious. It was much
the same with the claims put forward by Denmark. Both shores of the
Sound were in her possession, and both coasts of the northern or
Norwegian Sea. But with our island, washed everywhere by the waves, no
such natural boundaries existed. Except when the crown possessed the
opposite coast of France, England was isolated; and the Sea of England,
so frequently referred to from the thirteenth to the seventeenth
century, like the British Seas later, remained only a political
expression, not officially described or represented on charts. Reasons
have been given above for supposing that the Sea of England prior to
the accession of the Stuarts included the waters of the King’s Chambers
as defined by James, and perhaps also at times the Straits of Dover
and it may be the Channel, though precise evidence is lacking. In the
seventeenth century, when the term the British Seas was commonly used,
it is clear that the boundaries assigned to them were as vague and
fluctuating as the sovereignty exercised over them. They expanded and
contracted according to the naval power at the time and the condition
of international affairs. Sometimes the whole sea up to the continental
coasts was claimed as British; at other times the claim was restricted
to the Channel or the Straits of Dover, and to a more or less narrow
but undefined belt along the coast; not unfrequently it seemed to
vanish altogether, at least as a thing to be regarded in international
affairs. In the earlier records in which the sea is referred to in
connection with English law or jurisdiction, it is evident that a
certain part was held to appertain to the crown. In an article in the
_Black Book of the Admiralty_ which is ascribed to the reign of Henry
I. (A.D. 1100-1135), reference is made to “the sea belonging to the
king of England”; in John’s ordinance of 1201 the term was simply “the
sea” (_la mer_), but very commonly it was “our sea,” or the “sea of
England,” or “the sea under the dominion or jurisdiction of the king”;
while the declaration is often made that the kings of England are lords
of the sea or of the English sea.[5] Similar phrases were used in
later times. Thus Queen Elizabeth spoke of “our seas of England and
Ireland,” and James of “his seas” and “streams,” as did also Charles
I.; and such terms as “the adjacent sea,” the “environing seas,”
the “ambient seas,” and “the seas flowing about the isle,” were not
uncommonly used.[6] Still more common and scarcely more definite was
the term the “Four Seas of England,” or simply the “Four Seas,” which
was employed as early as the thirteenth century in law books, statutes,
and official documents, as indicating the boundaries of the realm in
connection with legal proceedings. Within the four seas (_infra_ or
_intra quatuor maria_; dedeinz les quaters meers) was to be within the
realm; and without the four seas (_extra quatuor maria_, oultre les
quaters meers) was to be without the realm.[7]
In the seventeenth century, when the English pretension to the
sovereignty of the sea was at its height, Coke, Selden, Prynne, and
others maintained that to be on the four seas, as well as within them,
was to be within the realm, under the jurisdiction of the Admiralty,
and this doctrine was held, at least formally, as late as 1830.[8]
Rarely the “Three Seas” are mentioned,[9] and less rarely the “Two
Seas,” by which was meant the two arms of the sea passing respectively
between England and France, and England and Flanders, and corresponding
to one of the meanings of the Narrow Sea.
The term, the Narrow Sea or the Narrow Seas, was applied at different
times or by different writers to very various areas. In its original
and more restricted sense it denoted the Straits of Dover; sometimes it
signified only the southern sea or the Channel proper; at other times
it included also the sea south of the Wash and the Texel; and yet again
it was synonymous with the whole of the British seas in which dominion
was claimed. In the political poem, _The Libelle of Englyshe Polycye_,
which was written about 1436 with the object of rousing the nation to
the paramount duty of “keeping the sea,” the narrow sea is spoken of
as lying between Dover and Calais,[10] as it is also in the records of
the Privy Council for 1545, which mention the appointment of ships to
“kepe the passage of the Narrow Seas.”[11] Later in the same century,
and very generally in the seventeenth century, it was used to include
the Channel, as when the Earl of Salisbury in 1609 referred to “his
Majesties narrow seas between England and France,”[12] and likewise
the sea off the Dutch coast; and at this period the Admiralty usually
distinguished between the guard of the Narrow Seas and that of the
North Sea.
But in other cases, and very commonly in the seventeenth century, the
Narrow Sea was equivalent to the marginal sea along the whole coast or
to the “British Seas.” Thus in one of James’s proclamations in 1604 for
preventing abuses in and about “the narrow seas,” they are referred to
as being commonly called the four English Seas, and this was repeated
in a proclamation of Charles I. in 1633. So also Lord Chief Justice
Hale in his treatise, _De Jure Maris_, describes the narrow sea,
adjoining to the coast of England, as part of the waste and demesnes
and dominions of the King of England; and in another work he speaks of
the narrow sea lying between us and France and the Netherlands.
After the union of the Crowns the “British Seas” were very often
referred to, and there was equal want of definition of their limits as
in the case of the Sea of England. The advocates of the English claims
to the sovereignty of the sea assigned them a wide but vague extent,
while the Dutch argued that the British Sea was the Channel, the Mare
Britannicum of Ptolemy and others, the North Sea being distinct and
known as Oceanus Germanicus. In many of the diplomatic negotiations
that took place on the subject there were heated discussions as to
the meaning of the term the “British Seas,” and in point of fact the
British representatives, like the Admiralty itself, were unable to
define them. The only serious attempt which was made to define the
Sea of England or the British Seas in relation to the claim to its
sovereignty was made by Selden in 1635. It did not fail on the side
of modesty, for according to him the Sea of England was “that which
flows between England and the opposite shores and ports.”[13] More
particularly in the opening chapter of his second book he describes
the British Sea (Oceanus Britannicus) as being divided into four parts
according to the four quarters of the world. On the west lay the
Vergivian Sea, also called the Deucaledonian Sea where it washes the
coasts of Scotland, and in which Ireland is placed; on the east is the
German Ocean, so called by Ptolemy because it lies opposite the German
shore; on the south, between England and France, is the sea especially
noted by Ptolemy as the British Sea, the Mare Britannicum; but in
reality all the sea extending along the shores of France through the
Bay of Aquitaine (Bay of Biscay) as far as the northern coast of Spain
was British. Since the northern and western ocean stretches to a great
distance, to America, Iceland, and Greenland, and to parts unknown,
it could not “all be called British,” but inasmuch as the King of
Great Britain had very large rights in those seas, beyond the extent
of the British name, it was not wholly to be left out of account. The
indefiniteness of these boundaries to the north and west is obvious,
but in a chart which he furnished, and which is reproduced in the
frontispiece of this book, he presumably represented what he regarded
as the British seas proper; and in several places in his work he
expressly declared that the English sea and the English sovereignty of
the sea extended to the opposite shores of the Continent.
Throughout almost the whole of the remainder of the century after
the appearance of _Mare Clausum_, Selden’s authority was paramount
on all questions relating to the sovereignty of the sea, and his
description of the extent of the British seas was very generally
adopted, both by writers and by the Government, at least in theory.
But it not infrequently happened on particular occasions when a
precise definition of their extent was required, that only a vague
declaration was forthcoming. Again and again one finds English admirals
and naval commanders imploring the Admiralty to tell them the bounds
of the British seas, so that needless broils about the salute might
be avoided. As a rule, no reply was given to their inquiries; and
when it was, it was usually so oracular as to be of little practical
advantage. Thus the Earl of Lindsey, when placed in command of the
first ship-money fleet, put the question to Secretary Coke, and was
told that his Majesty’s seas “are all about his dominions, and to the
largest extent of those seas,” and similar explanations were given on
other occasions. There is evidence that neither the Admiralty nor the
law officers of the crown were able to state what the boundaries of the
British seas were, and sometimes the Trinity House was appealed to,
with but little better result. In truth, it was part of the national
policy to leave their boundaries undetermined. The free navigation
of the North Sea and the Channel was of vital importance for many of
the states of Europe, and three of them at least--the Netherlands,
France, and Spain--had large interests in the fisheries on the British
and Irish coasts. If this country had by a formal act of state
assigned definite and wide boundaries to the British seas within which
sovereignty was claimed, it would have led to frequent and hopeless
wars or to constant humiliation. By leaving them vague and ambiguous
the pretension to maritime sovereignty could be put forward and used
as a political instrument when the navy was strong and occasion
offered, and when the navy was weak the pretension might fall into
the background without the national honour being unduly tarnished. But
on the whole, the claim to the sovereignty of the so-called British
seas became an anachronism and was allowed to die out from practical
affairs, surviving only in the pages of historians, naval writers, and
pamphleteers. During the almost constant naval wars in the eighteenth
century a new principle came into being for the delimitation of the
neutral waters of a state, the extent of the adjacent open sea that
might be appropriated being determined by the range of guns from the
shore. All the water within reach of cannon-shot could be protected
and commanded by artillery on the land, and thus made susceptible
of exclusive and permanent dominion. This principle was accepted
very generally by the various maritime Powers as offering a just and
equitable means of fixing the limits of their territorial waters,
within which the bordering state had exclusive sovereign jurisdiction.
It has also been accepted by the great majority of modern publicists,
and the phrase of Bynkershoek, “terræ dominium finitur ubi finitur
armorum vis,” has become enshrined in the Law of Nations.
Later, and mainly through the action and practice of the United States
of America and Great Britain since the end of the eighteenth century,
the distance of three miles from shore was more or less formally
adopted by most maritime states as equivalent to the range of guns, and
as more definitely fixing the limits of their jurisdiction and rights
for various purposes, and, in particular, for exclusive fishery. At
the time the three-mile limit was introduced, that distance did indeed
represent the farthest range of artillery, so that the boundary was the
same in each case; and it was sufficient to secure to neutrals that
their coasts should not be violated by the operations of belligerents
carried on beyond three miles from the shore, while at the same time
it furnished a practical measure of the extent of the protection that
neutral Powers were bound to afford to the vessels of one belligerent
from attacks by the other. But all this is changed. Guns are now able
to throw shells to a distance of fifteen miles and more, and the
three-mile limit has become quite inadequate to secure the coasts
of a neutral from damage from the guns of belligerents engaged in
hostilities in the waters near their shores. The argument is not
uncommonly used that inasmuch as Great Britain is the predominant
maritime Power, it is to her advantage that the territorial waters of
all countries should be as narrow as possible. The wider the theatre
the better chance for our navy, either in engaging the battle fleets
of the enemy or in capturing his shipping. The importance of the
change in the conditions referred to above is overlooked. There has
been no great maritime war in Europe since the three-mile limit was
adopted as the equivalent of the range of guns. If and when another
maritime war unfortunately breaks out, it would be absurd to suppose
that the neutral Powers within the sphere of possible operations would
be content with a three-mile limit to safeguard the security of their
coasts. As provided for in the rules drawn up by the Institute of
International Law, their duty would be to prohibit all hostilities
within such distance of their coasts as would render them secure, and
this in turn would involve the immunity from capture within the same
space of the merchant vessels of one of the belligerents by the vessels
of the other. And thus if this country were engaged in a great maritime
war, such as occurred a century or so ago, a very considerable belt of
sea on neutral coasts would be closed to the operations of the fleet,
and the conditions of naval warfare would be profoundly changed.
With regard to the other questions of sovereignty or exclusive rights
in the seas washing the coasts of a country, it is becoming more and
more recognised that there is no reason in nature why the boundary
for one purpose should be the boundary for all purposes. Just as
the three-mile limit is now obsolete in respect to belligerents and
neutrals in time of war, so is it inadequate in all cases with regard
to the protection and preservation of the sea fisheries. In the
concluding chapters of this book it is shown that all recent inquiries
by Parliament into the condition of the fisheries, especially of the
North Sea, have resulted in proving the inadequacy of the present limit
for fishery regulations, and in recommendations that the subject should
be dealt with internationally by the various countries concerned.
SECTION I.
THE HISTORY OF THE CLAIMS TO THE
SOVEREIGNTY OF THE SEA
CHAPTER I.
EARLY HISTORY.
When the claim of the English crown to the sovereignty of the British
seas became a question of international importance in the early part of
the seventeenth century, the records of history and the treasures of
ancient learning were searched for evidence to establish its antiquity.
Some of the greatest lawyers and scholars of the time took part in the
task, and they were not always content with the endeavour to prove that
the claim was in conformity with the laws of England as an old heritage
of the crown, but they tried to trace it back to a remote past. Selden,
who was incomparably the ablest and most illustrious champion of the
English pretension, as well as Boroughs and Prynne and other writers
of lesser note, laboured with more or less erudition and ingenuity
to show that the British dominion in the adjoining seas was anterior
to the Roman occupation. From the ancient Britons it was supposed to
have passed to the Roman conquerors as part and parcel of the British
empire, and to have been exercised by them during their possession of
the island.[14] It is unnecessary to discuss the evidence and arguments
for these contentions. They are for the most part drawn from scattered
passages or even phrases in the writings of classical authors, to which
a strained and improbable significance was assigned. An example may
be given from Selden, who, in referring to the well-known passage in
Solinus[15] in which Irish warriors are described as decking the hilts
of their swords with the tusks of sea-beasts (walrus), first tries to
show that the passage applied also to the Britons, and then argues that
there must have been a great fishing and a large number of fishermen
to provide sufficient material, the conclusion being that the British
seas were “occupied” by navigation and fishing. In reality the walrus
tusks came by barter from the north, and there is little or no evidence
to show that the ancient Britons fished for anything except salmon. At
the utmost it may be said that the Romans were masters of the British
seas, or parts of them, in a military sense. During their occupation of
Britain they were also in possession of Gaul, and thus held both coasts
of the narrow sea, and no doubt exercised authority over it, as the
Norman and Angevin kings under similar circumstances did later.
Throughout the Anglo-Saxon period of English history evidence of
the existence of a sovereignty over the adjoining sea, or even of a
pretension to it, is almost as unsatisfactory. Here again the authors
who championed _mare clausum_ professed to find in very ordinary
events arguments in favour of their case. The seafaring habits of the
Teutonic invaders and their daring and valour--they were described by
the Roman poet as sea-wolves, fierce and cunning, with the sea as their
school of war and the storm their friend--were regarded as proof that
they possessed maritime sovereignty after their conquest of Britain.
The Danegeld, a tax which was originally levied as a means of buying
off the Danes, or of providing a fleet to resist their attacks, was
thought by Selden to show the same thing.[16] So also with the fleets
collected by Alfred, Edgar, Ethelred, and other English kings to oppose
the invasions of the Northmen,--they were believed to have secured
and maintained dominion over the sea. Even the beautiful lesson in
humility which Cnut desired to convey to his courtiers when, seated in
regal pomp on the seashore, he vainly commanded the inflowing tide to
stay its course at his behest, was seized on for the same end. “Thou,
O sea,” said the great king, “art under my dominion, like the land
on which I sit; nor is there any one who dares resist my commands. I
therefore enjoin thee not to come up on my land, nor to presume to wet
the feet or garments of thy lord.” In these words Selden professed to
find clear proof that Cnut claimed the British seas as part of his
dominions.[17]
There appears to be only one instance before the Norman Conquest in
regard to which _prima facie_ evidence was produced that an English
king expressly claimed the sovereignty of the sea, and as it is
constantly quoted by later writers it may be worth while examining it.
The chronicles agree that the naval power of England was specially
manifested by King Edgar (A.D. 959-975), who is said to have possessed
a fleet of several thousand vessels, with which he cruised every
year along the English coasts. In the words of the Saxon Chronicle,
“no fleet was so daring, nor army so strong, that mid the English
nation took from him aught, the while that the noble king ruled on
his throne.”[18] According to William of Malmesbury, who wrote in the
twelfth century, Edgar usually styled himself the sovereign lord of all
Albion and of the maritime or insular kings dwelling round about,[19]
the assumption being that he also exercised sovereignty over the
intervening and surrounding seas. In a charter by which Edgar, in 964,
granted large revenues to the Cathedral Church at Worcester, the claim
to the ocean around Britain is more definite, and it is this version
that is usually quoted by the writers maintaining the antiquity of the
English rights.[20] The title thus said to have been used by Edgar is
expressive enough, but an important difference in the wording of this
part of the charter is to be found in the transcript printed by Coke in
the Epistle to the Fourth Book of Reports, by Spelman,[21] Wilkins,[22]
and by the more recent authorities on Anglo-Saxon charters, Kemble,[23]
Thorpe,[24] and Birch,[25] from which it appears that Edgar claimed
to be, not lord of the sea, but of the islands in the sea.[26] This
is the version given by Sir John Boroughs in his _Sovereignty of the
British Seas_, and it is also mentioned by Selden. But, after all, the
authenticity of the preamble of this charter is not well established.
Kemble marks it as doubtful, a view supported by intrinsic evidence
as to an imaginary conquest of Ireland. Thorpe is of opinion that
the preamble was fabricated about 1155, when Henry II., in concert
with Pope Adrian IV., was meditating the conquest of that island. It
may therefore be concluded that King Edgar’s assumption of maritime
sovereignty had its source in a monkish fable, although he may have
possessed the actual command of the sea in his time. Later on, the
supposed _rôle_ of Edgar among the Anglo-Saxon kings was a common
argument for the English claims. He was looked upon as a sort of patron
saint of the doctrine that the kings of England were lords of the sea.
Charles I. put his effigy on the beak of his great ship, the _Sovereign
of the Sea_, and inscribed his name in a motto on her guns. Oliver
Cromwell, too, quoted his exploits to the Dutch ambassador in the
course of the negotiations after the first war with Holland.
It is not to the Anglo-Saxon period of our history that we must look
for the origin of the claims of England to the sovereignty of the
sea, even in a purely military sense. At that time, for at least
three centuries before the Norman Conquest, the Northmen and not the
English were the real lords and masters of the sea. They offered an
example of what is now so much spoken of as the influence of sea-power
on history that is unsurpassed in later annals. Their leaders were
styled sea-kings for the best of reasons. Their fleets darkened every
coast from within the Arctic circle to the furthermost bounds of the
Mediterranean. Through their command of the sea they took permanent
possession of the larger part of England; they penetrated almost every
great river in Europe--the Elbe, the Schelde, the Rhine, the Seine;
they formed settlements from Friesland to Bordeaux; they discovered
and planted colonies in Iceland (A.D. 861), Greenland (A.D. 985),
and North America (A.D. 861); and they founded kingdoms or dynasties
not only in England, but in France, Sicily, Ireland, and Russia.[27]
In the presence of such irrepressible energy in maritime and warlike
enterprises the English were not able to hold their own on the sea, far
less to acquire dominion over it.
It is not until a considerable time after the Norman Conquest that
valid evidence is to be found of the English claim to the sovereignty
of the sea. Although obscurity surrounds the precise time and mode
in which the pretension took its rise, there is little doubt that it
originated in the period following the Conquest. The shores on both
sides of the Channel were then brought under the same dominion. In the
reign of Henry I. almost the whole of the Atlantic coast of France from
Flanders to the Pyrenees was in the possession of the English crown,
and for about four and a half centuries, until the loss of Calais in
1558, England held more or less territory in France. The Channel thus
became in effect an English sea--the narrow sea--intervening between
the continental and insular territories of the king, and it acquired
high importance as the passage from one part of the realm to the other.
It was in this connection and for the guarding of the coasts that
the organisation of the Cinque Ports was developed by the Norman and
Angevin kings.[28] Even after the loss of the French provinces, the
continued possession of the Channel Islands and the usual possession
of Calais kept alive the English claim to the narrow sea. The Conquest
was, moreover, followed by a great increase in the stream of traffic
between the two countries,[29] while fishermen from Normandy and
Picardy, as well as from Flanders, came in large and increasing numbers
to take part in the great herring fishery along the east coast of
Scotland and England.
During the frequent wars with France from the commencement of the
twelfth century onwards, the Channel acquired special significance
from a military point of view, and it was from this time that the
importance of “keeping the narrow seas” began to be recognised in
English policy. The command of the Channel was not only of value in
safeguarding the coast. The Channel formed the great avenue of commerce
between the north and south of Europe. The merchant vessels from
Venice, Genoa, and the Mediterranean, from Spain and France, passed
northwards through it on their way to Flanders and the Baltic, and
those from the Hanseatic towns and northern parts had in like manner
to traverse it in their southern voyages. The Channel was thus crowded
with shipping in summer, and the nation which commanded it had the
power of interrupting the commerce of other nations, and consequently
retained a potent political weapon in its hands. It is this aspect of
“keeping the narrow sea” which forms the burden of the remarkable old
poem, _The Libelle of Englyshe Polycye_.
Moreover, in the period following the Norman Conquest another condition
came into existence in connection with the security of the commerce
passing through the Channel, which throws light on the origin of the
English claim to sovereignty over it. As already mentioned, owing to
the lawlessness that prevailed on the sea after the break-up of the
Roman empire, when pirates and freebooters infested every coast, it
became customary for merchants to associate themselves together for
mutual protection. Their vessels sailed forth in fleets under the
charge of an elected chief, called the “admiral,” and armed vessels
were frequently fitted out by them for the express purpose of purging
the sea of pirates. In the course of time this duty of maintaining the
police of the seas was taken over by sovereign princes, who exercised
their jurisdiction through an admiralty, and put in force the old
“laws of the sea” which had gradually grown up among the merchant
associations.[30] In the thirteenth century this supreme admiralty
jurisdiction came to be regarded among the principal states of Europe
as a prerogative of sovereign power, and it is about this time and in
this connection that we first find certain evidence of the claim of
England to the sovereignty of the adjacent sea. The Plantagenet kings,
or at all events some of them, asserted the right of “maintaining the
ancient supremacy of the Crown over the Sea of England” by exercising
jurisdiction according to the old maritime laws, for the maintenance
of “peace and justice amongst the people of every nation passing
through the said sea.”[31] It was the production of the old rolls
concerning these claims by Sir John Boroughs, the Keeper of the Records
in the reign of Charles I., which furnished that king with the material
on which to base his pretension to the sovereignty of the sea.
The English writers of the seventeenth century who strove to prove
that the kings of England anciently exercised an exclusive sovereign
jurisdiction over the so-called Sea of England, as if it were a
“territory or province of the realm,” quoted largely from the old
Admiralty records. Selden sought to show that they had perpetually
enjoyed the dominion of the surrounding sea from the coming of the
Normans from the fact that they had maintained a guard upon it.[32]
The evidence adduced, however, merely proves that measures were
taken for guarding the seas, defending the coasts, and suppressing
piracy,--duties which were discharged, even in the same seas, by the
Admiralty of other countries, as that of France. Such phrases as “to
guard the seas,” “to guard the sea and sea-coasts,” are common enough
in the early records of the Admiralty,[33] but they do not imply
exclusive dominion. It was a duty common to neighbouring nations. In
England, from the time of Henry I., at the beginning of the twelfth
century, orders were given for the seas to be guarded as occasion
required; and officers were appointed by Henry III. and other kings as
Wardens, Keepers, and Guardians of the sea and sea-coasts, and also
as Governors and Captains of the Navy, whose title was subsequently
changed to Admiral in the latter part of the thirteenth century,
following the practice of the merchant associations, as above
mentioned. Much was made by the English writers of the appointment of
admirals by the kings of England for safeguarding the sea. The first
appears to have been appointed in 1297 with the title of Admiral of
the Sea of the King of England,[34] but before this time the King of
Castile and Leon had appointed an admiral with similar duties, and an
Admiral of all France was appointed about the year 1280.[35] So too
with the equipment of fleets. Edward I. divided the ships charged with
the guarding of the seas into three squadrons, each with an admiral,--a
measure which, it was argued, showed his resolution to maintain his
dominion of the sea. But the practice in France was similar. From an
early period French fleets were equipped under “governors or custodians
of the sea” (_præfectus maris_), “lieutenants-general of the sea and
the shores thereof,” and “admirals,” and their maritime jurisdiction
was regulated from at least the early part of the fourteenth
century.[36] Selden laboured to show that the office of admiral and the
admiralty jurisdiction had a different significance in France from what
they had in England,[37] but on quite inadequate grounds.
Another class of evidence adduced by the English authors refers to the
impressment of ships for the defence of the realm or the transport of
troops on occasions of emergency. These duties were at first performed
by the vessels of the Cinque Ports, in accordance with their charters;
but as early at least as the reign of Richard I., ordinances were
issued (at Grimsby) regulating the mode of arresting vessels and
men for the service of the king,[38] and it became an established
and common practice. Numerous instances occur which show that on
such occasions foreign vessels were not exempt from arrest, though
compensation was at least sometimes made to their owners.[39] The
argument of the English writers that these arbitrary proceedings were
evidence of the dominion exercised by the kings of England on their sea
is rebutted by the practice in France. Froissart[40] tells us that the
French adopted similar measures in 1386 when they were preparing for an
invasion of England, and the practice was doubtless common enough, and
justified by the emergency which occasioned it.
With regard to the most important attribute of maritime
sovereignty--the right to exclude others from an equal use of a
particular sea by prohibiting navigation, at least of vessels of
war, and from fishing in it, or by imposing dues and conditions for
the liberty--there is scarcely a scrap of evidence to show that any
authority of the kind was exercised by England in the adjacent seas.
The circumstance is noteworthy, inasmuch as other countries which then
enjoyed undoubted maritime sovereignty, did not permit unrestricted
navigation or fishing in the seas specially under their control, as
Venice in the Adriatic, and Denmark in the northern seas and in the
Baltic. The evidence concerning the liberty of fishing in the sea
along our coasts is dealt with in another chapter, but it may be
said here that this liberty was provided for in a series of treaties
with other Powers. As for liberty of navigation, it was asserted, or
rather implied, by Selden, in guarded language, that the kings of
England anciently possessed the power of refusing it;[41] but the
evidence relates for the most part to passports and safe-conducts “by
land and sea,” and to the impressment of vessels, referred to above.
There appears to be not a single fact to prove that the liberty of
innocent navigation in the English seas was ever interfered with by
the king. The Parliament of Ireland, it is true, passed an Act in
1465 prohibiting all foreign vessels “from going to fish at Ireland
among the king’s enemies” without first obtaining a license, on pain
of forfeiture of the vessel. But it is clear from the preamble that
the Act was passed because foreign vessels frequenting the Irish coast
for fishing were supplying the king’s enemies with money, arms, and
provisions.
Nor is there any valid evidence that tribute was ever imposed on
foreigners for liberty of navigation in the sea of England. A case
frequently quoted to the contrary was the imposition of a duty by
Richard II., in 1379, on merchant vessels and fishing smacks, to
provide means for the defence of the eastern coast and the security of
navigation and fishing. At that time the English navy had almost ceased
to exist, through the mistaken policy of Edward III. in the latter part
of his reign. In 1377 a French and Spanish fleet had not only scoured
the seas, but plundered and burned Rye, Folkestone, Hastings, Plymouth,
and other towns on the southern coast, which they ravaged. In the
following year they continued their depredations on the English coast,
and held such complete command of the sea that “no victualler, fishing
boat, or any other, could pass or return without being taken.”[42] In
1379, as the enemy still held the sea and the coast, Parliament, after
consultation with the merchants, decreed that certain duties should
be levied to provide means to secure the safeguarding of the sea, and
among these was one on vessels laden with goods belonging to merchants
of Prussia, Norway, or Scania. Selden says this ordinance applied to
foreign as well as English vessels, which had therefore to pay for
passage through the sea “just as one may exact payment for passage over
one’s field.”[43] But there is no evidence that the tax was levied
on other than English vessels; and in any case it is clear from the
preamble that it was a voluntary arrangement, and probably made at
the request of the merchants themselves, who had been petitioning the
king and Parliament for protection.[44] It is noteworthy also that the
keepers of the northern sea were not to convoy the vessels to or from
Flanders and Calais unless they were paid for doing so.
An incident which occurred early in the next century shows the temper
in which the Parliament regarded the sovereignty of the narrow sea,
as well as the caution of the king. By that time the English navy had
recovered its strength and France lay prostrate at the feet of Henry
V., and the Parliament petitioned the king to levy an impost on all
foreign ships passing through the Channel, in emulation, no doubt, of
the practice of the Danish kings at the Sound. It was a few years after
the battle of Agincourt, and the Treaty of Troyes, by which Henry was
recognised as the future king of France, had just been concluded. “The
Commons pray,” ran the petition, “that seeing our Sovereign Lord the
King and his noble progenitors have ever been Lords of the Sea, and now
by the grace of God it has come to pass that our said Lord the King is
Lord of the shores on both sides of the sea, such tribute should be
imposed on all strangers passing through the said sea, as may appear
reasonable to the King for safeguarding the said sea.”[45] The answer
of the king was that he would consider it (_soit avise par le Roy_),
the usual formula of refusal. In the following year Henry was again
involved in war with France, and he died in 1422 and nothing more was
heard of the proposal. But it is extremely doubtful if he or any other
English king would have ventured to adopt the policy recommended by
the Commons. The shipping that passed through the Channel was far more
voluminous and important than that passing through the Sound, and the
waterway could not be so easily commanded, as by guns from the shore.
Any measure of the kind would doubtless have led to a combination of
other maritime Powers against England, which would have been fatal to
the attempt. It may be noted that the Parliament based their proposal
on the king’s possession of both shores; and this, in accordance with
the opinions of the Italian lawyers of the preceding century, whose
authority was great, carried with it the right of sovereignty over the
intervening sea.
The statement in the petition that the kings of England had ever
been lords of the sea is true at least to the extent that on several
occasions previously the title was applied to them, and this was
usually at times when they possessed actual supremacy and mastery
over the seas in a special manner, though it may also have implied
the idea of sovereign jurisdiction. Nearly a century earlier than
the above petition we find the same title used by Edward III., who
is peculiarly identified with the naval glory of England, and he too
refers to his progenitors as having been lords of the sea. In a mandate
to his admirals in 1336, the king, after stating that twenty-six
galleys of the enemy were reported to be on the coasts of Brittany and
Normandy, said: “We, calling to mind that our progenitors, the Kings
of England, were Lords of the English sea on every side, and also
defenders against the invasions of enemies before these times; and it
would greatly grieve us if our royal honour in such defence should be
lost or in any way diminished in our time, which God forbid, and being
desirous with the help of God to obviate such dangers and to provide
for the safety and defence of our realm and people, and to restrain the
malice of our enemies: We strictly require and charge you” to proceed
against the galleys, &c.[46] Later in the same year, in a commission to
certain nobles, prelates, and the Warden of the Cinque Ports respecting
measures to be taken against the Scottish fleet, which was attacking
merchant and other ships, and had ravaged Guernsey and Jersey, the king
desired it to be remembered that his progenitors the kings of England,
in similar disturbances between them and other lords of foreign lands,
were in all bygone times “lords of the sea and of the passage across
the sea,” and he would be much afflicted if his royal honour should be
in his time impaired.[47] These declarations, made in the first half of
the fourteenth century, indicate clearly enough at least the pretension
to special interest and jurisdiction in the narrow sea and the Straits
of Dover on the part of the earlier kings. No English king deserved
the title of Lord of the Sea better than Edward III. Only a few years
after the above missives were written he gained the memorable victory
over the French in the battle of Sluys, and in 1350 the equally great
victory over the Spaniards off Winchelsea (“Les Espagnols sur Mer”),
commanding the fleet in person on each occasion.[48]
[Illustration: Fig. 1.--_Edward’s Noble._]
It appears to have been in connection with the former victory that
Edward coined his famous gold noble, in which the obverse bears the
effigy of the king, crowned, standing in a ship with a sword in one
hand and a shield in the other, while the reverse bears the legend from
St Luke, _Jesus autem transiens per medium eorum ibat_, “but Jesus,
passing through the midst of them, went his way,” which Nicolas thinks
was meant to indicate the action of the king in passing through the
French fleet at the battle of Sluys. The impress on the obverse has
been usually regarded as symbolic of Edward’s power and sovereignty
on the sea. The unknown author of _The Libelle of Englyshe Polycye_,
written some ninety years later, makes frequent reference to Edward’s
noble,--
“Ffor iiii thynges our noble sheueth to me,
Kyng, shype, and swerde, and pouer of the see,”[49]--
and it is always mentioned by the English writers on the sovereignty of
the sea as evidence that Edward exercised that sovereignty. A recent
author[50] doubts whether there was any connection between Edward’s
noble and the battle of Sluys or the claim to the sovereignty of the
sea; but at all events in the next century, in the reign of Henry
VI., when the naval power of England had again sunk to a low point,
the noble was made an object of jest and derision among foreigners,
especially the Flemish and French. They told the English to take away
the ship from their noble and put a sheep on it instead--an allusion,
no doubt, to the growth of sheep-farming in England.[51]
If Edward intended to symbolise his naval power and sea sovereignty
by the device on the gold noble in the early part of his reign, it
was certainly inappropriate towards the end of it. The navy had been
starved for the sake of the army, and when the Spaniards defeated the
English fleet and were masters of the sea, complaints became rife
as to the insecurity of the country. The king had then to listen to
language from his Parliament to which he was unaccustomed, and which
must have galled him. There are many instances in our history where
the Commons have shown their spirit and temper when they thought the
navy was inadequate for its duties, and on the occasion in question, in
1372, after granting a naval subsidy, they called the king’s attention
to the fact that while twenty years previously, and always before,
the navy was so noble and so numerous in all the ports, coast towns,
and rivers that the whole country deemed and called him King of the
Sea,[52] and he and all his country were the more dreaded by sea and by
land by reason of the said navy, it was then so decreased and weakened
from various causes that there was scarcely sufficient to defend the
country, if need were, against royal power, by which there was great
peril to all the realm.[53] From this complaint of the Parliament it
would appear that the title of king or Lord of the Sea was applied in
a popular sense, to signify the great sea-warrior who had overcome his
enemies and made himself master of the sea.
There was another symbol or supposed symbol of the sovereignty of the
sea, which later became exceedingly prominent--viz., the striking of
the flag or the lowering of the top-sails to a king’s ship, about
which there is little to be found in the records of those times. It
is nevertheless with this that the earliest of the records relating
to the subject is concerned, and it is a very interesting one. The
famous ordinance of King John which compelled the lowering of the
sails has given rise to much controversy. It was first brought
prominently to notice by Selden in 1635,[54] but it is also contained
in the little work of Boroughs on the _Sovereignty of the British
Seas_, which was written in 1633, although not published till 1651,
and that author transcribed it from a manuscript in the possession of
Sir Henry Marten, the Judge of the Court of Admiralty. Selden gave
as his authority for it, “MS. Commentarius de Rebus Admiralitatis,”
without further specification, and its authenticity was questioned by
contemporary critics. Prynne, who, like Boroughs, was Keeper of the
Records, printed it in 1669 from the _Black Book of the Admiralty_,[55]
and from the fact that the _Black Book_ was lost until quite lately,
and the existence of Selden’s manuscript in the Bodleian Library was
overlooked, and that used by Boroughs unknown, some recent authors have
regarded the ordinance with suspicion.[56] The most elaborate account
of the various manuscripts containing the ordinance of John is given
by Sir Travers Twiss in the Introduction to the _Black Book of the
Admiralty_; and through his efforts the original _Black Book_, lost
for more than half a century, was found at the bottom of a chest in
1873.[57] Twiss gives the following free translation of the ordinance,
made by the Registrar of the Admiralty Court in the reign of James
II.:--
ITEM, it was ordained at Hastynges for lawe and custome of the sea
in the tyme of Kyng John, in the second yeare of his raigne, by the
advice of his temporall lordes, that if the lieutenant of the king or
the admirall of the king or his lieutenant in any voyage appointed
by Common Counsell of the Kyngdom did at sea meet with any shyps or
vessells laden or empty which would not stryke and lower their sailes
at the command of the kyng’s lieutenant, or the kyng’s admirall,
or his lieutenant, but makeing resistaunce against those of the
ffleet, that if they can be taken that they be reputed as enemies,
and their shyps, vessells, and goodes, taken and forfeited as goodes
of enemies, albeit that the maysters or possessors thereof should
afterwards come and alleadge the same ships, vessells, and goodes to
be the goodes of friends of our lorde the kyng, and that the company
therein be chastized by imprisonment of their bodies for their
rebellion at discretion.[58]
This ordinance is the last of a series of articles in the third
part of the _Black Book_, which contains Admiralty regulations, the
Laws of Oleron, and other three ordinances of King John, as well as
ordinances which purport to have been made in the reigns of Henry
I., Richard I., and Edward I. The facts ascertained by Sir Travers
Twiss show that of the six or seven extant manuscripts which contain
the ordinance, the oldest was written before 1422 and probably about
1420,[59] and appears to have been drawn up for the use of Sir Thomas
Beaufort, the Lord High Admiral. The manuscript used by Selden was
probably written between 1430 and 1440; that of the _Black Book_ itself
a little later, but still in the reign of Henry VI.[60] The others
are not older than the seventeenth century. None of the manuscripts
is therefore contemporaneous with the reign of John, but it is clear
that the ordinance existed and was ascribed to John in the reign of
Henry V., before 1422. Moreover, from intrinsic evidence it is proved
that part of the _Black Book_ originated in 1375, in the reign of
Edward III., and that the compilation of other parts of it is still
earlier. Pardessus,[61] the great authority on ancient marine laws,
is of opinion that the part of the _Black Book_ which includes the
ordinance of John contains the results of the consultations with the
judges in 1338 on the subject of the maritime laws, which were recorded
in the roll, still preserved, of 12 Edward III., _De Superioritate
Maris_--which also, as we shall see, claimed supremacy for the king
in the sea of England. Twiss, however, thinks it was more probably
compiled between 1360 and 1369. He is of opinion that the ordinance is
authentic, and was in reality, as it purports, made by John at Hastings
on 30th March 1201, and that it was transcribed into the compilation of
the _Black Book_ with the earlier ordinances of Henry I. and Richard I.
The arguments against the authenticity of the ordinance are mainly
that it is written in the French language instead of in Latin, as
was customary at the time; that there is no other evidence that John
was ever at Hastings; and that the terms “king’s admiral” or “king’s
lieutenant” are not to be found in contemporary documents. Twiss
has shown that John and his Queen were at Canterbury on Easter Day
1201, and it is not an improbable conjecture that the king passed
from Canterbury to Hastings, and thence to London--a supposition that
Sir Thomas Duffus Hardy, the author of the _Itinerary of King John_,
regards as quite possible. Twiss also explains in an elaborate argument
that the circumstance of the ordinance being written in French offers
no difficulty, if the compilation of the third part of the _Black Book_
is assigned, as above stated, to the reign of Edward III.; but there
might be some difficulty in deciding whether the ordinances attributed
to Henry I., Richard I., Edward I., and John were originally written
in French as they now appear in the _Black Book_, or were at first
drawn up in Latin and translated into French by the compilers.[62]
The best authority is therefore in favour of the authenticity of the
ordinance; but whether it be held as genuine or apocryphal there is
no doubt that in the reign of Henry V. it was incorporated among the
official regulations of the Admiralty, and it is almost as certain, as
Twiss and Pardessus believe, that it was contained in the Admiralty
regulations in the reign of Edward III. The question whether it should
be antedated one hundred and fifty years, or thereabout, and placed
in the reign of John, or ascribed to the time of Edward III., when so
much consideration was given to naval affairs, is perhaps of minor
importance.
The language of the ordinance is worthy of close attention with regard
to the claim to sovereignty in the narrow sea. Selden says that the
ordinance shows it was held to be treason for any ship whatever not
to acknowledge the dominion of the king of England in his own seas by
lowering sails, and that the king prescribed penalties for infraction
of the rule, just as if a crime were committed in some part of his
territory on land.[63] In 1201 John still possessed both shores of
the Channel, a circumstance which, according to the ideas of the
time, conferred on him special rights in regard to it; and though the
ordinance contains no qualification of the general term “at sea,”
it is probable that it applied in particular, and at first perhaps
exclusively, to the waters between the two shores. There is nothing
to show whether the ordinance applied to or was enforced against the
war vessels of other princes navigating the narrow sea, which was the
principal feature of the rule in later times. From the terms used it is
probable that it applied only to merchant vessels,--a supposition that
agrees with its place in the _Black Book_ at the end of the articles
entitled the Laws of Oleron, or the laws of the mercantile marine; and
it was to be enforced only in voyages appointed by the Council. As
already mentioned, it is reasonable to suppose that the lowering of the
sail at the demand of a king’s ship was to enable a suspected vessel to
be overhauled, and the king’s officers to be satisfied whether it was
engaged in piracy or in lawful trade.
Until the sixteenth century there is scarcely any evidence to show
that the “right of the flag,” as it came to be called, was enforced
even in the Channel. The record of one such incident, however,
exists, which occurred in 1402, in the reign of Henry IV.,--and
thus, it is interesting to note, before the oldest extant manuscript
containing John’s ordinance was written,--and, curiously, the place
where the lowering of the sails was demanded was not the Channel but
the North Sea. In the year mentioned, the town of Bruges complained
to the king and Council that a poor fisherman of Ostend, named John
Willes, along with another from Briel, while fishing for herrings
in the North Sea, had been captured by an English vessel and taken
into Hull, notwithstanding that they were unarmed--a remark which is
significant--and had lowered their sails at the moment the English had
called to them.[64] It is singular that the earliest record of the
“ceremony” refers to the humble herring-boats of Flanders. Later on we
shall see that the lowering of top-sails and the striking of the flag
became a burning question in international politics.
Of greater interest and importance than this question of the lowering
of the sail or the ordinance of John is the claim put forward by the
Plantagenet kings to sovereign lordship and jurisdiction in the “sea of
England,” for the maintenance of peaceful navigation and commerce,--a
claim which may still be read in some of the rolls of Edward I. and
Edward III. The great importance of these documents for the English
pretension to dominion of the sea in the seventeenth century was shown
by the fact that Boroughs, Selden, Coke, and Prynne all quote freely
from them, Selden especially turning to them again and again for fresh
quotation and argument. They are the more interesting since the claim
to the sovereignty of the narrow sea in the reign of Edward I. could
not, as Boroughs points out, be based on possession of both shores; the
king was not then _Dominus utriusque ripæ_, as when Normandy belonged
to the English crown. The rolls in question are still preserved in
the Record Office, and the earlier parchments appear to have been
collected together in the reign of Edward III., in connection with
the consultations that the judges held in 1338 on the subject of the
maritime laws.[65]
The documents were first brought into prominence by Lord Coke[66] and
Selden,[67] both of whom published parts of them. The handwriting
belongs to the beginning of the fourteenth century, and its contents
show that it must have been drawn up after 1304 and before 1307, in
which year Edward I. died.
The events that preceded may be summarised as follows. During the
war between Edward I. and Philip the Fair of France it was concluded
between them in the year 1297 that notwithstanding the war there should
be freedom of commerce on both sides, or a truce for merchants, known
as sufferance of war, and in the following year certain persons were
appointed by both kings to take cognisance of things done contrary
to this truce, and to pass their judgments according to the law of
merchants and the tenor of the sufferance referred to.[68] On 20th May
1303 a treaty of peace and alliance was signed at Paris,[69] the first
article of which embodied a declaration of amity and mutual defence
of all their respective rights, and the third that each would abstain
from assisting or succouring the enemies of the other. A little later
in the same year four agents or commissioners were appointed by Edward
and four by Philip to hear complaints and decide upon them, and the
English members were instructed to inquire into the “encroachments,
injuries, and offences committed on either side during the truce or
sufferance between us and the said King of France, on the coasts of the
sea of England and other neighbouring coasts, and also towards Normandy
and other coasts of the sea more remote.”[70] To these commissioners
the following joint complaint or libel bears to have been submitted on
behalf of England and certain mariners of other nations, charging one
Reyner Grimbald or Grimaldi, a Genoese who is known to have been at the
time in command of ships in the service of France operating against the
Flemings, with seizing their merchants and merchandise contrary to the
treaty at Paris:[71]--
CONCERNING THE SUPREMACY OF THE SEA OF ENGLAND AND THE RIGHT OF THE
OFFICE OF ADMIRALTY IN THE SAME.[72]
To you the Lords Auditors deputed by the Kings of England and of France
to redress the wrongs done to the people of their kingdoms and of other
lands subject to their dominions by sea and by land in time of peace
and of truce The proctors of the prelates and nobles and of the admiral
of the sea of England[73] and of the commonalties of cities and towns
and of the merchants mariners messengers and pilgrims and of all others
of the said realm of England and of other lands subject to the dominion
of the said King of England and elsewhere, as of the coast of Genoa,
Catalonia, Spain, Almaigne, Zeeland, Holland, Friesland, Denmark, and
Norway, and of several other places of the Empire do declare, That
whereas the Kings of England by right of the said kingdom, from a time
whereof there is no memorial to the contrary, had been in peaceable
possession of the sovereign lordship of the sea of England and of
the isles within the same, by ordinance and establishment of laws,
statutes, and prohibitions of arms, and of ships otherwise furnished
than merchant vessels, and to take surety and afford safeguard in
all cases where need shall be, and by ordinance of all other actions
necessary for the maintaining of peace, right, and equity among all
manner of people as well of any other dominion as of their own passing
thereby, and by sovereign guard and all manner of cognizance and
justice high and low, concerning the said laws, statutes, ordinances,
and prohibitions, and by all other actions that may appertain to
the exercise of sovereign lordship in the places aforesaid. And A.
de B.[74] deputed Admiral of the said sea by the King of England,
and all other Admirals [appointed] by that same King of England and
his ancestors heretofore Kings of England, had been in peaceable
possession of the said sovereign guard with the cognizance and justice
and all other the aforesaid appurtenances, except in case of appeal
and complaint made of them to their sovereigns the Kings of England
of default of right or of wrong judgment, and especially by putting
hindrance (making prohibitions) and doing justice, taking surety of the
peace of all manner of people using arms in the said sea, or carrying
ships otherwise provided or furnished than appertained to a merchant
ship, and in all other points wherein a man may have reasonable cause
of suspicion towards them of robbery or other misdemeanours. And
whereas the masters of the ships of the said kingdom of England in the
absence of the said admirals had been in peaceable possession to take
cognizance and to judge of all actions in the said sea between all
manner of people according to the laws, statutes, and prohibitions,
franchises and customs. And whereas in the first article of the
alliance formerly made between the said Kings, in the treaties upon the
last peace of Paris are comprised the words which follow in a schedule
annexed to these presents.
First, it is concluded and accorded between us and the messengers
and proctors aforesaid in the name of the said Kings that the said
Kings shall from this time forward be good, true, and loyal friends,
and be aiding to one another against all men saving the Church of
Rome in such manner that if any one or more, whosoever they be,
will disturb, hinder, or molest the said Kings in the franchises,
liberties, privileges, rights, dues, or customs of them and their
kingdoms, they shall be good and loyal friends and allies against
every man living, and ready to die to defend, keep, and maintain
the franchises, liberties, privileges, rights, dues and customs
aforesaid; Except (on the part of) the said King of England, Monsieur
John, Duke of Brabant, in Brabant, and his heirs descended from him
and the daughter of the King of England, and except (on behalf of)
our said lord the King of France, the excellent Prince, Monsieur
Albert, King of Almaigne [and] his heirs Kings of Almaigne, and
Monsieur John, Count of Hainault in Hainault. And that the one shall
not be of counsel nor aiding where the other may lose life, member,
temporal estate, or honour.[75]
Monsieur Reymer Grymbaltz, Master of the navy of the said King of
France, who calls himself admiral of the said sea, deputed by his
lord aforesaid for his war against the Flemings did after the said
alliance made and confirmed, and against the form and force of the
same alliance and the intent of them that made it, by commission of
the King of France wrongfully usurp the office of admiralty in the
said sea of England and did exercise it for a year and more taking
the people and merchants of the kingdom of England and elsewhere
passing through the said sea with their goods, and committed the
people so taken to the prison of his said lord the King of France,
and by his judgment and award caused their goods and merchandises
to be delivered to the receivers of the said King of France deputed
for this purpose in the ports of his said kingdom, as to him forfeit
and acquired. And the taking and detaining of the said people with
their said goods and merchandises, and his said judgment and award
concerning the forfeiture and acquest of them, he has justified before
you, Lords Auditors, in writing, according to the authority of the
said commission of the admiralty aforesaid by him thus usurped, and
during a prohibition commonly made by the King of England by his power,
according to the tenor of the third article (_sic_) of the alliance
aforesaid, which contains the words below [above] written, requiring
that he may thereupon be quit and absolved, to the great damage and
prejudice of the said King of England and of the prelates and nobles
and others above named, Wherefore the said proctors in the names of
their said lords do pray [you Lords] Auditors aforesaid that you would
cause due and speedy deliverance of the said people with their goods
and merchandises thus taken and detained, to be made to the Admiral
of the said King of England, to whom the cognizance thereof of right
belongs, as above is said, so that, without disturbance from you or
any other, he may take cognizance hereof and do that which belongs to
his office aforesaid, and that the said Monsieur Reyner be condemned
and constrained to make due satisfaction to all the persons wronged
as aforesaid as, etc. [so far as he is able to do, and in his default
his said lord the King of France, by whom he was deputed to the said
office, and that after due satisfaction made for the said damages, the
said Monsieur Reyner may be so duly punished for the violation of the
said alliance that his punishment may be an example to others in times
to come.[76]] Item, the said proctors require that whereas according
to the ancient laws, franchises and customs of the realm of England,
to the keeping whereof your said lord the King and his ancestors Kings
of England were wont to be bound by their oaths. Their admirals of the
sea of England with the masters and mariners of ships of ports of the
coast of England, being in the armies of the said admirals, needed
not to answer before any justices of the Kings aforesaid concerning
actions in the sea abovesaid during their wars against their enemies.
And the said admiral of your said lord the King and many of the masters
and mariners of the ports aforesaid now being in his army against the
[their] enemies of Scotland and their helpers and allies, by express
commandment of your said lord the King, are accused before you by
people of Normandy and Brittany and elsewhere concerning some actions
in the said sea in time of truce and since the peace confirmed between
the said Kings of England and France, and before the war begun between
them as is said. It may please you to surcease the process already
commenced against them and to forbear to commence a new one during the
war abovesaid, that they may have no cause to complain to your said
lord and to the prelates and nobles of his said realm, bound by their
oath to keep and maintain the said laws, franchises, and customs.
* * * * *
Selden alludes to this document as proving that the right of dominion
over the sea, and that ancient and confirmed by long prescription,
was in express terms here acknowledged by almost all the neighbouring
nations to belong to England.[77] This is, however, not quite
justified, because there is no record at all to show any decision, or
even whether the matter was ever brought to proof, and no mention
is made of the proceedings by any English or French historian. There
seems to be no doubt of the authenticity of the record. It is in the
handwriting of the time, is preserved among the public records, and
agrees with other circumstances elsewhere recorded. On the other hand,
even the most complete copy[78] is only a draft, as Selden states,
without date or seals; the admiral’s initials only are given, and
the citation of the first article of the treaty at Paris is not on a
separate schedule as the text states, but is part of the text. Selden
gives it as his opinion that it was a matter “of such moment” that it
was thought better to make an end of it by agreement than to bring it
to a trial.
Light is thrown on the above record by another of the proceedings
before the Auditors deputed by the kings of England and France for the
redress of the grievances between the subjects of the two countries,
27-33 Edward I.[79] It consists of a series of libels or complaints,
which, as Mr Salisbury of the Record Office has been good enough to
inform me, are in the handwriting of the time of Edward I., and are
doubtless those, or part of those, on which the _De Superioritate_ roll
is based.[80] The complaints are sixteen in number, and they refer
to the seizure of a number of ships and the removal of goods from
them, between May 1298 and September 1303, at various places,--the
foreland of Thanet, the mouth of the Thames, off Blakeney, off Kirkele,
Scarborough, Dover, and Orfordness,--the goods, and sometimes the
vessel, being taken to Calais. Most of the vessels were freighted
from London to Brabant, or from the latter place to London, one from
Winchelsea to Dieppe, another from Antwerp to London, a third from
Berwick to London, a fourth from Scotland to Brabant, a fifth from Lynn
to Scotland, a sixth from Antwerp to England, and another from Yarmouth
to London; in two cases the crews were killed, and the ships as well as
the goods disposed of. In most cases the complaints are laid against
Johan Pederogh or John de Pederogue (see p. 45), Michel de Navare, and
others, who appear to have been under Grimbald, but in some instances
they are against the latter. The first is by Richard Bush against
“Reyner Grymaus,” complaining of goods having been taken from a ship
going from Winchelsea to Dieppe, in August 1301, by Michel de Navare
and others of Calais, who took the goods thither and disposed of them.
The “chevalier” denied this, and asserted he was “not in that country”
at the time specified nor for nearly a year afterwards, and in the
“rejoinder” note was taken of the answer “that he was not admiral till
some time after the events specified.” The eighth complaint refers to
the seizure of goods from a ship going from Berwick to London in August
1303, off Blakeney, “by men from Calais.” In reply John (Pederogh) says
the demand concerns “mi sire Reniers de Grimaus” only, for he was then
admiral, and said John was on shore at the date specified, and was only
in the company of Reniers in Zealand and Holland. The twelfth complaint
declares that the ship _Michele de Arwe_, from London to Brabant, with
a cargo valued at £556, was seized “on the high seas” by Sire Reyner
Grimbaud, admiral, in September 1303, taken to Normandy, and the crew
sent to Calais and imprisoned. In reply the “chivaler” confesses he
took such a ship, and seized it rightfully, as it was consorting with
the enemies of France; and in response to the demand of one of the crew
still in prison at Calais, he says he is there as a malefactor against
the King of France, and that the commission of the deputies does not
extend to such cases. The fourteenth complaint is by John de Chelchethe
against Reyner de Grymaus, and John Pedrogh replies “as he did to
William Servat,” the latter name not occurring elsewhere in the record,
a circumstance which points to these libels being only part of those
brought before the commissioners.
It is to be noted that, with the exception of the _Michele de Arwe_
above mentioned, which was taken “on the high seas,”--an elastic
term,--all the ships were attacked near the English coast, and well
within what may be called the sea of England, or the waters included
in the King’s Chambers in 1604, where the jurisdiction of the English
Admiralty undoubtedly extended. In all cases, moreover, the goods
seized belonged to Englishmen, though some of the ships were foreign.
Too much importance appears to have been attached to the roll _De
Superioritate_. It furnishes no proof, or even reasonable probability,
that any other Power acquiesced in an English claim to a specific
sovereignty of the sea beyond what appears to have been customary among
maritime states at the time. The point of the libel is that Grimbald
seized shipping after the alliance was made and took people and goods
to France, and was thus said to have usurped the sovereign lordship or
jurisdiction of the English king or admiral in “the sea of England.”
An important light is thrown on the nature of the jurisdiction
exercised by the English admiral by the memorandum of 12 Edward III.,
in the same roll, the documents in which were collected together at
the time it was written, in connection with the consultation of the
judges to which it refers.[81] It recites that, among a number of
other things, the King’s Justiciaries were to be consulted as to the
appropriate method of revising and continuing the form of proceedings
instituted and ordained by Edward I. and his Council for maintaining
and preserving the ancient supremacy of the crown in the sea of
England and the right of the admiral’s office over it, with the view
of correcting, interpreting, declaring, and upholding the laws and
statutes made formerly by his ancestors, the kings of England, for
the maintenance of peace and justice among the people of all nations
whatsoever passing through the sea of England, and to take cognisance
of all attempts to the contrary in the same, and to punish delinquents
and afford redress to the injured; which laws and statutes, the
memorandum states, were by Richard I., on his return from the Holy
Land, corrected, interpreted, and declared, and were published in the
Island of Oleron and named in the French language _La Loy Oleroun_.[82]
This memorandum furnishes an important clue as to the nature of the
jurisdiction exercised in the so-called sea of England. It is evident
from the concluding part that the laws and statutes referred to are the
mercantile marine laws, which were best known in this country as the
Laws of Oleron, and are included in the _Black Book of the Admiralty_
together with other articles peculiar to the English Admiralty.[83]
They appear to have been published by Richard I. at the end of the
twelfth century, at a time when the old customs of the sea began to be
committed to writing, as rules proper to be observed by the admirals
of his fleet for the punishment of delinquencies and the redress of
wrongs committed on the sea. They were continued among the Admiralty
regulations in subsequent reigns, and it was part of the duties of the
admiral to see that they were duly observed in the seas within his
jurisdiction. The powers of the admiral were extensive, as may be seen
from the memorandum of the fourteenth century defining his office and
duties, which has been published by Nicolas,[84] by those given by
Twiss in the _Black Book_,[85] and later by Godolphin.[86]
At the time with which we are dealing the utmost lawlessness reigned on
the sea, the depredations of undisguised freebooters being scarcely a
greater evil than the constant acts of reprisal between the traders of
different nations. It was a common practice for the seamen of different
countries or cities to carry on hostilities with one another, and to
enter into treaties of peace or truce without the sovereign on either
side being concerned in their quarrels, except as mediators or umpires.
In 1317, although there was peace between England and Flanders, the
mutual reprisals of the seamen and merchants reached such a height
that commercial intercourse was entirely suspended, and Edward II.
and the Earl of Flanders had to actively interpose in order to bring
about “peace” between their subjects.[87] A marked feature in the
policy of Edward III. was the promotion and encouragement of foreign
commerce, and quite a number of statutes were passed in his reign with
that object, and to facilitate the entrance of foreign merchants into
the realm. One of these, made six years after the consultation of the
judges on the maritime laws, was specially passed to declare the sea
open to all merchants.[88]
With these circumstances in view, it can be readily understood how
desirable it was to have the maritime laws for the security of
commerce and shipping carefully considered and put in force; and a
consideration of the whole case shows that the roll _De Superioritate
Maris_ deals with the maritime laws, the interpretation of the
documents having been strained by the later advocates for the English
claim to the sovereignty of the seas. It is interesting no doubt to
learn that the King of England and his admiral exercised jurisdiction
of the kind in the neighbouring sea at the early time referred to, but
there is nothing in the case of Grimbald or in the other documents
associated with it to indicate any claim to a sovereignty such as was
enjoyed by Venice and Denmark. There was no attempt made to interfere
with the innocent use of the so-called sea of England, or to exact
dues for navigation or fishery. The jurisdiction extended only to the
keeping of the peace and the security of the sea--duties exercised
by other princes and states in like manner, and indeed now exercised
by all countries within the waters under their control. This view is
supported by the interpretation of Callis, who stated that the king
ruled on the sea “by the laws imperial, as by the roll of Oleron
and others,” in all matters relating to shipping and merchants and
mariners.[89] It would no doubt be of great interest if there were
distinct evidence as to how far from the coast “the sea of England”
extended. The records cited show that the vessels were seized close
to the English coast, within the waters covered by the proclamations
concerning the King’s Chambers in the seventeenth century, and even
within the narrow limits of the territorial waters as now usually
defined. It is to be noted with reference to the vessel taken “on the
high seas” that in the Court of Admiralty in the seventeenth century
this phrase covered seizures made a few miles from the coast.
There is, however, one case which occurred in the fourteenth century
which has been referred to as showing that the sea of England and
the jurisdiction of the king extended far from the English coast,
over indeed to the coast of Brittany. In the mutual aggressions
of Flemish and English sailors, the robberies by the men of Rye
of Flemish ships off “Craudon” and Orwell became so flagrant that
commissioners on both sides were appointed in 1311, further proceedings
were instituted in 1314, and finally, in 1320, envoys from Flanders
arrived in London during the sitting of Parliament, and a treaty was
concluded. In this it is stated that divers merchants of Flanders,
while “proceeding on the sea of England near Craudon,”[90] were
robbed of their wines and merchandise by evil-doers of England, and
that the goods had been brought to England. The Flemish envoys prayed
the king, “of his lordship and royal power to cause right to be done
and punishment awarded, since he is lord of the sea, and the said
robbery was committed in the sea under his power.”[91] The account
goes on to state that the king and his council in Parliament, with the
assent of the peers, agreed to appoint justices to inquire into the
matter, and that those who were concerned in the robbery should be
promptly punished.[92] Accordingly, in December 1320, the Keeper of
the Cinque Ports and others were instructed to make inquiry regarding
the pillaging of a Flemish ship, laden with wines and merchandise,
said to have been committed by Englishmen on the sea of England, off
Craudon, so that the malefactors might be brought to justice.[93]
Selden, who gives the document in which the previous proceedings
are also recited,[94] does not attempt to locate Craudon, which in
other records in the rolls of Parliament in 1315 was also called
“Carondon,” “Crasdon,” and “Grasdon”; but Nicolas states that there
was no place of that name on the sea coast of England, nor in any part
of the territories of Edward II., and he identified it with a small
seaport, since called “Crowdon,” in Brittany, lying on the extreme part
of the Point du Raz, about eight leagues west of Quimper, where he
shows that the fleets returning to England with wines frequently took
shelter.[95] If this explanation be correct, it would extend the “sea
of England” more than 120 miles south of the Lizard, which, however,
is still well within the limits which were claimed for it by Selden
(see p. 19). Although, according to the English record, the Flemish
envoys themselves described the sea off Craudon as part of the sea of
England and under the jurisdiction of the king, it is evident that this
admission would facilitate redress from England, and standing alone
it is not of much weight. The whole value of the admission, moreover,
depends on the position of the “Craudon” of the record; and it is
remarkable, if it was really the Crowdon referred to by Nicolas, that
that fact was unknown to Selden, to whom it would have furnished a very
strong argument for his case.