CHAPTER II.

THE FISHERIES.

It was with respect to the right of fishery on the British coasts

that the claim to maritime sovereignty was revived in the seventeenth

century, and with which it was chiefly concerned. The “honour of

the flag,” however gratifying to national pride or important in the

international relations of England, was unprofitable, and served at

best to stimulate and maintain the spirit of the nation for power and

adventure on the sea. But the question of free or licensed fishing

touched the profit as well as the “honour” of the king and the

prosperity of the people, and hence the monarchs of the Stuart line,

the Commonwealth, and the Protector strove to impose tribute on foreign

fishermen for the liberty to fish in the British seas. This policy was

in direct opposition to that which had long prevailed in England. It

is shown below that the freedom of fishing on the English coast had

been guaranteed to foreign fishermen by a series of treaties extending

over some centuries, and that in point of fact the fishermen of various

nations had immemorially frequented the British seas in large numbers,

and there peacefully pursued their business of catching fish without

molestation or interruption by the English Government. In some respects

this liberty enjoyed was remarkable, when one considers the practice in

many other countries and the value of the fisheries.

In the early and middle ages the sea fisheries were indeed much more

important relatively than they are now. There was a greater demand for

fish, and fishermen from various countries--from France, Flanders,

Spain, and England--made long and distant voyages, extending to Iceland

and even beyond the North Cape, in quest of fish. One reason for

the great demand was the numerous fast-days enjoined by the Church;

for although fish were eschewed by the ascetic monks of early times

as dangerous to purity of soul, the fashion changed, and they were

later consumed plentifully on the days of fast both by clergy and

laity.[96] The fasts were strictly observed throughout Catholic

Europe, and a large variety of sea and fresh-water fishes, as well

as seals and cetaceans, were consumed on such occasions. Some of the

large monastic establishments had their own staff of fishermen, and

their fish-houses at seaports for the salting and curing of herring.

Another reason for the extensive consumption of fish was the want of

winter-roots and the scantiness of fodder in winter, so that it was

impracticable to keep cattle and sheep for slaughtering throughout the

winter. It was customary to kill them and salt the flesh in autumn;

and thus fish, fresh, dried, smoked, or salted, formed a valued

article of food in place of salted beef and mutton. Fish were also

used to an extraordinary extent in victualling the army and navy, and

in provisioning castles, the expense on this item of the commissariat

generally equalling or exceeding that for beef, mutton, or pork.[97]

The distribution even of fresh fish was also much better than might

have been expected. Barges and boats carried them up the rivers, and

pack-horses and waggons transported them throughout the country, so

that even in inland counties the harvesters in the fields were supplied

with herrings for their dinner.[98] In mediæval times, moreover,

fishermen and fishing vessels constituted a considerable part of the

naval force available for the defence of the kingdom, for offensive

operations and the transport of soldiers. The fishermen of the Cinque

Ports, who had the government of the great herring fair at Yarmouth,

had also to provide vessels for the king’s service under their

charters. Later, when a permanent navy existed, the fisheries were

looked upon as a very important “nursery” of seamen to man the fleets.

The herring fishery was by far the most important of all the sea

fisheries, and as this fish was found in greatest abundance on the

British coasts, foreign fishermen were attracted hither in great

numbers. It was with reference to the herring fishery that exclusive

claims were raised by England in the seventeenth century, and it is

desirable at the outset to understand the policy which was pursued

previously in regard to it both in England and Scotland. At what

period foreign fishermen first began to frequent the British coasts is

uncertain; but we know that within fifty or sixty years of the Norman

Conquest fishermen from Flanders and Normandy--and doubtless from other

countries--visited our shores and carried on a fishery for herrings by

means of drift-nets. An important fishery was established at the mouth

of the Firth of Forth, on the east coast of Scotland, in the early part

of the twelfth century, and it was shared by fishermen from England,

Flanders, and France, who paid tithes to the monks of the priory on the

Isle of May. This monastery was founded by King David I. before the

middle of the twelfth century, and was endowed by him with the manor of

Pittenweem in Fife, and by Cospatrick, the great Earl of Dunbar, with a

house and “toft” at the village of Dunbar, both grants being of value

in connection with the fishery. King William the Lion (A.D. 1165-1214)

confirmed these grants, and addressed missives to “all his good

subjects and the fishermen who fish round the Isle of May” commanding

them to pay their tithes to the monks as they were paid in the time

of his grandfather, King David (A.D. 1124-1153); and he prohibited

them from fishing in their waters or using the island without license

from the monks.[99] This very early claim to the right of exclusive

fishing in the sea is characteristic of the policy of all the Scottish

kings. It was repeated on several occasions, the royal mandate being

sometimes addressed solely “to all fishermen who fish around the Isle

of May”; and that some of them were foreigners appears to be shown not

only by the statement above given, on the authority of contemporary

monks, but by the size of the vessels, some of which had four hawsers,

and paid much higher dues at the neighbouring harbours than the local

fishing-boats. We know also from contemporary Flemish records that as

early as the first half of the twelfth century fishermen from Nieuport

and other places in Flanders fished from large vessels for herrings

with drift-nets in August and September in the northern parts of the

North Sea.

The men from France and Flanders alluded to, no doubt continued to

fish each season down the east coast of England to the mouth of the

Thames, as they did later and do still. About the period mentioned,

Yarmouth was a great fishing centre, and was frequented by foreign

merchants--Flemings, French, Swedes, and Frieslanders--who purchased

and cured herrings; but the earliest notice of foreign fishermen on the

English coast is in the year 1274, shortly after Edward I. came to the

throne. Complaint was then made that during a time of truce the English

fishermen had been attacked by the Flemish disguised as fishermen and

twelve hundred of them killed.[100] On the other hand, the Countess

of Flanders complained that twenty-two of her subjects who had been

fishing on the coast of England and Scotland, and had gone ashore at

Berwick to rest themselves and get provisions, had been seized, with

their nets, at Norham and thrown into the castle there.[101] About

twenty years later, Edward I. issued a mandate to John de Botetourt,

the Warden of the coast of Yarmouth, and to the bailiffs of that

town, saying that he understood that many men from Holland, Zealand,

and Friesland would shortly come “to fish in our sea off Yarmouth,”

and commanding them to make public proclamation once or twice a-week

forbidding any molestation or injury to be done to them, but that they

should rather be helped to pursue their fishing to advantage.[102] The

number of English fishermen stated to have been killed by the Flemings

in the encounter mentioned above, indicates how extensive the fishery

then was. This also appears a few years later, when the Flemings

resorted to a similar device; for in July 1296 above a thousand men of

Flanders, and others of France, disguised as fishermen, were preparing

to attack and burn Yarmouth and neighbouring places, and the bailiffs

and men of the port were ordered to collect their ships to oppose them.

These proceedings show the lawless state of the sea in those times. In

the thirteenth century an extensive herring fishing was also carried

on by the Scots on the east coast, especially in the Firth of Forth

and the Moray Firth, and particularly by the men of Fife, and cargoes

of herrings, cod, and haddocks, as well as salmon, were exported to

England and chiefly to London, but also to Bordeaux, Rouen, Dieppe, and

other ports in France.

From the foregoing it is clear that centuries before the question of

_mare clausum_ was raised, important fisheries were established along

the east coast of England and Scotland, and that foreign fishermen took

part in them. The number of French and Flemish fishermen attending the

fishery must have been always great, because they had to furnish a

large part of Catholic Europe with fish. But the number was increased

after the fourteenth century, and especially in the fifteenth, from

two causes. One was the decline of the great herring fishery at

Scania, in the Baltic, upon which the Hanseatic League had risen to

power and opulence, and which provided perhaps the greater part of

continental Europe with salted and smoked herrings--Germany, Poland,

Russia, part of France, and even to some extent Flanders and England.

The Scanian herrings were esteemed the best, and the Hanse controlled

the trade.[103] The other circumstance was the invention in the latter

part of the fourteenth century by Beuckelsz, a native of Biervliet, in

Zealand, of a greatly improved mode of curing herrings,--an invention

which most materially aided the Dutch in taking the place of the

Hansards in the herring industry, and in the commerce which it brought

in its train. Some of the towns in the Low Countries early belonged to

the Hanseatic League, and their fishermen were in the habit of going to

the Scanian fishery;[104] but from the fifteenth century at least the

herring fishery on the British coasts became by far the most important

in Europe. It attracted foreign fishermen in increasing numbers, and

gradually the Dutch came to take the leading part in it, displacing

the Flemings and the men from Normandy and Picardy, and even to a

large extent the English themselves. In 1512 we find Margaret of Savoy

appealing to Henry VIII. to protect the fishermen of Holland, Zealand,

and Friesland in their herring fishery, in which they were menaced by

the Hanseatic towns, which were fitting out vessels to interrupt them;

and in her letter she describes the herring fishery as the principal

support of these states.[105] Towards the end of the century, when the

Dutch had begun to call their herring fishery on the British coast

their “great gold mine,” another event occurred which tended still

further to strengthen their hold on it by opening fresh markets on

the Continent. This was the failure of the great Bohuslän fishery in

Sweden, which continued barren for about seventy years.[106] They were

also enabled to prosper in their fishery by the beneficent policy of

the English sovereigns towards them up to the reign of James I., when

the claim to the exclusive fishing in the British seas was put forward

on behalf of the crown.

When this claim was advanced in the seventeenth century, it was argued

that the sea fisheries had always belonged to the crown. Selden

declared that “license had usually been granted to foreigners by the

Kings of England to fish in the sea; and that the protection which the

kings gave to fishermen, as in their own territory, was an ancient and

manifest evidence of their maritime dominion.”[107] The cases adduced

in support of that contention are singularly few and unconvincing. One

is the tax imposed by Richard II. in 1379 on fishing vessels, among

others, in the admiralty of the north, but which, if it was imposed on

foreign vessels at all, must have been done with their consent (see

p. 33). Another relates to the arrangements which were occasionally

made for “wafting” or guarding the fishermen at the Yarmouth fishing,

and for which the fishermen thus protected had to pay,--an arrangement

which was also adopted in the reign of Charles I. Thus, in 1482,

Edward IV. invested certain persons, called Guardians, Conductors,

and Wafters, with naval powers, to protect the fishermen “of whatever

country they be, who shall desire to fish under the protection” of

the said wardens on the coasts of Norfolk and Suffolk; and all those

who took advantage of such protection had to pay an equal share of

the cost of it; any other persons pretending to have power to protect

the fishermen were to be apprehended. This arrangement was repeated

in the reigns of Richard III. and Henry VII.[108] It is evident that

the payment was only exigible from such foreign fishermen as took

advantage of the protection offered to them; those who desired to fish

without protection of the wardens were at liberty to do so. A more

pertinent case is the Act of the Irish Parliament in 1465--also during

the reign of Edward IV.--which has been previously alluded to.[109] It

was passed to prevent aid being given to the king’s enemies by foreign

vessels that went to fish at Ireland. All foreign fishing vessels were

prohibited from fishing on the Irish coast (except the north part of

Wicklow) without first obtaining a license from the Lieutenant, his

deputy, a “justice of the land,” or other person authorised to grant

it, upon pain of forfeiture of ship and goods. All foreign vessels

allowed to fish, which were of twelve tons burthen “or less,” and had a

“drover” or boat, were to pay thirteen shillings and fourpence yearly

for the maintenance of the king’s wars in Ireland; smaller vessels,

as “scarfes” or boats not having “drover nor lighter,” and within the

burthen of twelve tons, were to pay two shillings. This was obviously

a temporary measure, designed for a special purpose, though clearly

imposing a tax on foreign vessels; but there is not evidence to show

whether it was enforced.

Other two instances referring to later times were adduced in support

of the contention that the sea fisheries belonged to England, and

they may be mentioned here. One was the statement made by Camden

about 1586,[110] and by Hitchcock some years earlier,[111] that the

Hollanders and Zealanders before they began to fish for herrings off

the east coast of England, first, “by ancient custom, asked leave of

Scarborough Castle”; “for,” adds Camden, “the English have always given

them leave to fish, reserving the honour to themselves, and resigning,

as if from slothfulness, the benefit to strangers.” Neither Hitchcock

nor Camden quotes any authority for the statement. Scarborough Castle

was in early times an important stronghold on the north-east coast,

and it is not unlikely that foreign fishermen, who were frequently at

the port, found it to their interest to maintain friendly relations

with the governor, and gave notice of their arrival, or perhaps asked

leave to dry their nets and paid for the privilege. It was the practice

for the governor to levy dues, in kind, on fish brought ashore, for

Edward III., in 1347, ordered writs of attachment to lie against

those who during the fishing season sold their fish at sea instead of

bringing them to the town, thus defrauding the Castle of its dues.

Another instance, which was frequently made use of in negotiations

later with the Dutch on the question of the fishery, was an alleged

lease for twenty-one years granted by Queen Mary to her husband Philip

II. of Spain, by which his subjects received licenses to fish on the

Irish coasts. The first trace of this story is found in a memorandum

addressed to Lord Salisbury in 1609 by one Richard Rainsford, an agent

for a fishery company,[112] in which it is said that £1000 per annum

had been paid into the Irish Exchequer by Philip for the privilege,

and that Sir Henry Fitton, the son of the treasurer at the time, could

substantiate the statement “on oath if need is.” No year is mentioned

by any of those who put forward this story,[113] and no record of it is

referred to. If not entirely apocryphal, and invented as an argument

against the Dutch, who were subjects of Philip in the early part of his

reign, it was probably constructed on a very slender basis.

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

licenses to fish in the Channel were frequently granted by the Lord

Warden of the Cinque Ports to a limited number of French fishermen,

chiefly of Dieppe and Treport, for the ostensible purpose of supplying

the king of France’s table with fresh fish, and especially soles. It

is stated that the French kings “time out of mind” had applied for

such licenses,[114] and they were certainly granted under Elizabeth,

the Stuart kings, and Oliver Cromwell. It is doubtful when the custom

originated, but since the liberty of fishing was granted for a

definite area or bank, called the Zowe or Sowe, off Rye and well out

in the Channel, it was probably of considerable antiquity, and may

have survived from the Norman or Angevin reigns. James also furnished

similar licenses for the use of certain high personages, such as the

Duchess of Guise and the French ex-ambassador; but the liberty was

greatly abused, and was the cause of much friction and trouble with the

English fishermen later.[115] The fact that such licenses were asked

for by the French court on behalf of fishermen of Dieppe, Treport,

Calais, and other ports on the coast of France, may indicate that the

fisheries out in the Channel were at one time claimed by England. But

it is possible it was only the survival of a custom adopted during the

times when great lawlessness reigned on the seas, and when the men of

the Cinque Ports were a terror to their neighbours. A license from the

Lord Warden would be then a safeguard and protection.

Such are the cases which were adduced to prove the rights of the

English crown to exclusive fishing in the British seas. On the other

side there is an overwhelming body of testimony to show that the

fishery was free. It may be noted in the first place that Bracton

and the other early English lawyers, unlike those of the seventeenth

century, made no claim for an exclusive fishery. They merely propounded

the Roman law that the sea and the shores of the sea were common to

all; that the right of fishing in rivers and ports was likewise free

to all; and that animals, _feræ naturæ_, including fish, belonged to

no person. The law laid down by Bracton and the others was not, of

course, international; but if it had been in agreement with English

jurisprudence in the twelfth and thirteenth centuries (as it was

made to be in the seventeenth) to consider the sea fisheries as the

property of the crown, that would have been declared, because Bracton

was embodying the customary law of England, and adopted Roman law only

when that failed him. He is careful to state that wreck of the sea and

“great fish,” such as sturgeons and whales, “belong to the lord the

king himself by reason of his privilege” or prerogative, precisely

on the ground that Callis, Coke, Selden, and Hale claimed the sea

fisheries generally for the crown in the seventeenth century. Had any

such right existed or been thought of in the reign of Henry III.,

Bracton could not have failed to incorporate it, since the king placed

the archives and everything necessary at his disposal to enable him to

embody the common law of England.[116] So also there is nothing in the

rolls of Edward I. and Edward III., which deal with the sovereignty of

the sea, to indicate any claim to the fisheries; nor is there in the

Admiralty ordinances and regulations in the _Black Book_, although it

was part of the duties of the admirals to supervise the sea fisheries

and to enforce the laws relating to them.

But the assertion that the fisheries were free in those early times

does not depend upon negative testimony. Liberty of fishing was

guaranteed in various treaties concluded with foreign nations from

the middle of the fourteenth century until the end of the sixteenth.

The first of these was made in the reign of Edward III., and it was

in keeping with the liberal policy of that monarch in regard to the

promotion of foreign commerce. It was almost a necessity, for English

fishermen were by themselves unable to meet the home demand for fish.

Fish caught by foreigners were regularly imported into England, and

such importation was encouraged by the crown and by Parliament until

after the Reformation. Foreign fishermen were also encouraged, as is

shown by the mandates of Edward I. and Edward II. above alluded to, and

by many others.

The first of the formal treaties providing for liberty of fishing

was concluded in 1351 between Edward III. and the king of Castile

and towns on the coast of Castile and Biscay. Edward had signally

defeated the Spanish fleet in the year before in the battle known

as “L’Espagnols sur Mer,” and in the truce for twenty years which

followed, it was stipulated that there should be mutual freedom of

commerce and navigation, and that the fishermen from Castile and Biscay

should be at liberty to come freely and safely to fish in the ports of

England and Brittany, and in all other places and ports, paying the

dues and customs to the lords of the country.[117] Spanish fishermen

do not appear to have taken part in the great herring fishing on the

east coast,--Spaniards, indeed, have never cared for pickled or cured

herrings, differing in this respect from the Teutonic races, but have

preferred the mackerel, the pilchard, and the cod. The liberty of

fishing conferred by the treaty was no doubt chiefly valuable to them

with respect to their fishery off the Irish coast, the south-west coast

of England, and along the coasts of Aquitaine and Brittany for sardines

and mackerel. Two years later a similar treaty was concluded between

Edward and the towns of Portugal and Algarve, in which liberty of

fishing was stipulated in precisely the same terms,[118] and no doubt

related to the same waters.

Early in the next century we find what seems to be the first of the

numerous agreements as to the liberty of fishing for herrings in the

narrow seas, quite a number of which were made in the comparatively

short and troubled reign of Henry IV. In a truce concluded in 1403

between Henry and the King of France, it was provided that merchants,

mariners, and fishermen should be free to pass to and through either

kingdom without requiring letters of safe-conduct. Henry, therefore,

issued a mandate to his admirals and other officers concerned,

enjoining that during the current herring season the fishermen of both

countries should freely fish for herrings and all other fish, from

Gravelines and the Isle of Thanet down to the mouth of the Seine and

Southampton, without hindrance or molestation, and that if they were

chased by pirates or met with contrary winds they were to be allowed

to take refuge in the ports within the area defined, and were to be

well treated.[119] As the king’s missive is dated 26th October, it

appears that there was then, as there is now, a considerable winter

herring fishing in the Channel. Three years later, on 5th October

1406, Henry took all the fishermen of France, Flanders, and Brittany,

with their ships and boats, under his protection until 2nd February

in the following year,--that is to say, during the winter herring

fishery,--for which time they were to be allowed to fish freely and

without molestation, and to carry away their fish, provided they did

nothing to prejudice him or his kingdom.[120] Considering the weak

condition of the English navy at the time--the security of the sea had

been committed to the merchants on the east coast, a system which in

this month of October was known to have failed--and the prevalence of

pirates, it is unlikely that the protection of the king was of much

avail.

In November of the same year, with reference to his treaty with France,

Henry published another proclamation stating that, on the supplication

of the burgesses and people of Flanders, it had been agreed that the

fishermen of England and Flanders, and generally of all the realm of

France, should, during the continuance of the treaty, go in safety to

fish in the sea. To the end that the fishermen who travelled on the sea

at great peril to gain their living might fish in greater security, and

obtain sea fish for the sustenance of the people, it was ordained that

for a year from the publication of the proclamation all the fishermen

of England, of Calais, and of other towns and places belonging to

the King of England, as well as the fishermen of Flanders, Picardy,

Normandy, and Brittany, and other parts of France, might go in peace

over the whole sea to fish and gain their living, without any restraint

or hindrance; provided no fraud was committed, and that English

fishermen had the same privileges from Flanders, Picardy, Normandy,

Brittany, and other parts of France. If the fishermen were driven into

port by the violence of the wind, or other cause, they were to be

received freely and treated reasonably, paying the dues and customs

as of old, and be at liberty to return to their own ports. The king,

therefore, commanded his admirals, captains, bailiffs, the commanders

of castles and ports, and others concerned, to see that the provisions

of the treaty were carried out.[121]

In the following year was concluded the first of the great series

of Burgundy treaties, about which so much was to be heard in the

diplomatic negotiations with the Dutch in the seventeenth century.

Flanders was then part of the dominions of the Duke of Burgundy, who

held it as a fief of France, and freedom of commerce and fishery was of

the highest importance to his Flemish subjects. A treaty or convention

was therefore drawn up between Henry’s ambassadors and the Duke of

Burgundy, dealing chiefly with commercial intercourse, in which the

above-mentioned provisions for mutual liberty of fishing were embodied,

in practically the same language, and comprising likewise the whole of

France.[122] In 1408 the mutual freedom of fishing in the sea was twice

confirmed,--in the prorogation of the truce with the Duke of Burgundy,

and in the ratification by the King of France of the treaty between

Henry and the Duke;[123] and it was again confirmed at Amiens by John,

Duke of Burgundy, in 1417, in the reign of Henry V.[124]

The various fishery truces and conventions of Henry IV., which

were made at a time when great insecurity prevailed on the sea and

depredations were committed on all hands, reflect credit on that able

monarch, and notwithstanding the naval weakness in the early part of

his reign, they must have had a favourable influence in fostering the

sea fisheries. The sort of treatment that fishermen in those times had

frequently to undergo is indicated in a complaint made to the king in

1410 that, notwithstanding the fishery truce with France, the men of

Harfleur had seized an English fishing vessel of twenty-four tons, _Le

Cogge Johan de Briggewauter_, and had thrown the master and fourteen of

the crew into prison, without food and water, and held them to ransom

for a hundred pounds.[125] Such occurrences were by no means uncommon,

and it was customary for fishing vessels to go to sea armed,[126]--a

provision which also enabled them on occasion to do a little piracy on

their own account. It was sometimes difficult for the authorities to

decide whether a vessel provided with fishing-lines and armed, as some

were, with “minions, falcons, and falconettes,” and having a good store

of powder and bullets, had been equipped to catch fish or prey upon

other vessels.

It does not appear that any treaty concerning liberty of fishing was

made in the warlike reign of Henry V. (1413-1422); but, as stated

above, this king confirmed the Burgundy treaty in 1417. In the

succeeding reign of Henry VI., in 1439, a treaty was concluded for

three years with Isabel of Portugal, as representing her husband,

Philip, Duke of Burgundy, which provided for liberty in fishing in

much the same language as in the treaty of Henry IV. It was stipulated

that all the fishermen of England, Ireland, or Calais, as well as

of Brabant and Flanders, should be free to go all over the sea for

fishing, without any hindrance or molestation on either side, and that

they should have free access to the ports of either, under the usual

conditions. Although the Duke of Burgundy was also Count of Holland

and Zealand, these states were not specifically included in this

treaty, which was renewed in 1442 for other five years, and again, at

Calais, in 1446, for a term of twelve years, in precisely the same

terms, and the commonalties of Ghent, Bruges, Ypres, and of the French

dominions promised to observe it.[127] In the renewal of the treaty

of intercourse at Brussels, in 1468, by Edward IV. and the Duchess of

Burgundy on behalf of her husband, Duke Charles, in addition to the

mention of Brabant, Flanders, and Mechlin, words were added[128] which

brought Holland and Zealand into the treaty, and thus formally gave

them that liberty of fishing on the British, or at least the English,

coast which they struggled so hard and so successfully to retain in

the seventeenth century. The article on the fishery also declared that

the fishermen should be at liberty to fish without being required to

obtain any license, permission, or safe-conduct,[129] which appears to

indicate that the practice of obtaining such letters for their security

had been previously in vogue. In 1468, in the treaty of peace, at

Péronne, between Louis XI. of France and Charles, Duke of Burgundy, a

similar clause was inserted providing for the freedom of the herring

fishery;[130] and in the ten years’ truce agreed upon in 1471 between

Edward IV. and the King of France mutual liberty of commerce and

fishing was stipulated during the continuance of the truce.[131] The

treaty of 1467, above referred to, which included Holland and Zealand,

was to last for thirty years, but by the death of Charles the Bold,

and the marriage of Mary of Burgundy to Maximilian of Austria, it was

deemed necessary to renew it with the new Duke; and this was done, and

the compact declared to be perpetual, in 1478, the clause providing for

the liberty of fishing remaining unaltered.[132]

It is thus clear from those numerous treaties that in the fifteenth

century the liberty of fishing in the sea was so generally recognised

by England that the principle might be regarded as having become a part

of her international policy and custom. Towards the end of the century

the Burgundy treaties were superseded by the great treaty of peace and

commercial intercourse which was concluded in 1496 between Henry VII.,

the first of the Tudor sovereigns, and Philip, Archduke of Austria

and Duke of Burgundy. This treaty, which became so well known later

as the Great Intercourse (Intercursus Magnus, le Traité d’Entrecours,

’t Groot Commercie-Tractaat), was the sheet-anchor of Dutch policy in

relation to England in the seventeenth century, and was constantly

appealed to by them in their diplomatic struggles with the Stuarts and

with Cromwell. It was the price paid by Henry for the expulsion of

Perkin Warbeck from Flanders, the provisions in regard to whom, when

slightly modified by St John in 1651 to apply to the “rebels” of the

Commonwealth, so startled the Dutch Government (see p. 387). The treaty

was to be perpetual, and it actually endured for a century and a half.

The article dealing with the liberty of fishing was couched in almost

the same language as in the preceding treaties. The fishermen of both

nations were to be at liberty to go in security to fish anywhere on

the sea, without requiring any license or safe-conduct, and to have

free use of one another’s ports under stress of misfortune, weather

or enemies, on paying the ordinary dues.[133] As conservators for

this treaty of peace and commerce, which was received with much

rejoicing in the Low Countries, Henry appointed, among others, the

mayors and aldermen of London and of a large number of towns, including

Southampton, Sandwich, Dover, Winchelsea, Boston, Yarmouth, and

Berwick; and the Archduke, on his side, appointed the burgomasters of

Ghent, Bruges, Dunkirk, Antwerp, Dort, Delft, Leyden, Amsterdam, Briel,

and others.

Several supplementary treaties dealing with commercial subjects were

concluded between Henry VII. and Henry VIII. on the one side, and the

Archduke of Burgundy on the other--viz., in 1499, 1506, 1515, and

1520.[134] While they confirmed in general terms the previous treaty,

the clause referring to the freedom of fishery was not specifically

mentioned, a circumstance which, considering the nature of the matters

dealt with--the staple at Calais, the cloth trade, the Zealand

tolls,--was not surprising. Nevertheless, the fact that treaties

of commerce had been made with the Low Countries subsequent to the

Intercursus Magnus, without containing a clause expressly renewing the

liberty of fishing, was used later by English statesmen, as by Lord

Bacon, as an argument that the provision of that treaty had thereby

been rendered inoperative. But the policy of Henry VIII., and indeed

of all the Tudor sovereigns, proved the contrary; liberty of fishing

on the English coast was not called in question till James came to the

throne.

We have already seen that Margaret of Savoy appealed to Henry VIII. in

1512 to protect the herring fishermen of the Low Countries from the

attacks of the Hanseatic towns, and apparently with success. The same

regard for the herring fishery was shown in a marked manner in 1521

in the negotiations between the Emperor Charles V. and King Francis

I. of France. Cardinal Wolsey, who was the “mediator” between them,

strongly urged the need of allowing the herring fishery to be free,

safe, and unmolested. He made this stipulation one of the chief points

of the proposed treaty. It is stated in a despatch which was sent

to Charles V. by his ambassadors at Calais, where the negotiations

were being conducted, that the Cardinal declared his intention to

propose, among other things, security for the fishermen and cessation

of hostility on the sea between England and Flanders, and that either

party should be free from attack by the other in English ports. There

was no difficulty about the fisheries, the ambassadors said, as they

knew the Emperor wished it, and that his subjects would more willingly

go to sea in that event than they then did under the protection of

ships charged to defend them.[135] The French ambassadors also informed

Francis that Wolsey pressed the point on them, and that they had

ultimately agreed in order “to conciliate him, considering it can be

revoked at pleasure, and will be profitable to those living on the

coast of Normandy and Picardy, and without it they will not be able

to pay their taxes.”[136] It is clear from the political events that

followed, that the great Cardinal, in stipulating for the security of

the fishermen, had principally in view the interests of the Emperor,

to whom the Netherlands belonged; but it was in perfect accord with

established English policy. The agreement for the security of the

herring fishery was embodied as a leading article in the formal treaty

concluded between the two potentates in October of the same year, it

being provided that until the end of the following January, even though

the war should continue between the two countries, the fishermen of

both parties should be allowed to fish unmolested and to go home in

safety.[137] In the war which ensued, the French admirals did not push

the advantage they had on the sea to extremes, but sold safe-conducts

to the fishermen of the Netherlands, and allowed them to pursue their

fishing. In several treaties and truces made in the next few years

between the Powers named, it was provided that the herring fishery

should be carried on freely and in security on both sides, even during

the existence of hostilities. One of these, to last for eight months,

was concluded in 1528 between Charles V., Francis I., Henry VIII., and

Margaret of Austria, who represented Holland, Zealand, and Friesland,

as well as Flanders.[138] It may perhaps be surmised that in the common

concern about the winter herring fishery the influence of the Church

was not without effect, so that the fish for Lent might not be wanting.

From the foregoing it is apparent that the kings of England, so far

from claiming an exclusive right to the sea fisheries along the English

coast, entered into a series of treaties with their neighbours,

extending over a period of nearly two hundred years, by which freedom

of fishing was mutually recognised and guaranteed. Throughout the

reigns of the Plantagenet and Lancastrian kings, as well as under

the Yorkists and Tudors, foreign fishermen were at liberty to fish

freely in the English seas without requiring any license or paying

any tribute. Not only so, but up to the middle of the sixteenth

century, and especially in the time of the Plantagenet kings, they were

encouraged to take part in the fisheries off our coasts, and to bring

into the realm and freely trade in fish, both fresh and cured; and, in

point of fact, a large proportion of the fish consumed in England was

caught and sold by foreigners. It was not until after the Reformation,

when the English fisheries began to decay, that protective measures

were adopted in favour of the native fishermen; and it was not until

the reign of James I. that any attempt was made to place restrictions

on the liberty of fishing immemorially enjoyed by foreigners along the

English coasts.

But when we turn to Scotland we find there was not only in that country

an absence of the toleration which was extended in England to foreign

fishermen, but that restrictive measures were in force from an early

period. The claim made by the Scottish kings in the twelfth century

for the exclusive fishing in the sea around the Isle of May on behalf

of the monks of the priory there, strikes the keynote of their policy

in later times. This difference between the policy in England and

Scotland might to some extent be due to the nature of the fishings. In

the northern kingdom the herring fishery was confined almost entirely

to the firths and lochs “within land”: the native fishermen did not

compete with the foreign vessels which carried on the fishery at a

greater or lesser distance from the coast from the neighbourhood of the

Shetlands to the Thames. The encroachments of the foreign fishermen,

which sometimes occurred from the vagaries of the shoals, were thus

resented. On the English coast the native fishery was carried on

for the most part alongside the foreign fishermen, and the English

fishermen were thus accustomed to the presence of the foreigners. In

Scotland, moreover, the sea fisheries, and in particular the herring

fishery, were of greater relative importance to the people than was

the case in England, which possessed rich pastures and was essentially

agricultural. Fishing was much more of a national pursuit, and besides

supplying what was required for home consumption, Scotland was able

to export large quantities of fish to other lands: in the fifteenth

century the title “Piscinata Scotia” was referred to as an “old

proverb.” The fisheries, besides forming a not unimportant source of

revenue to the crown, supplied a chief staple of the trade and commerce

of the “royal burghs,” which were always extremely jealous of their

rights and privileges, and possessed great power. Hence the Acts of

the Scottish Parliaments which dealt with sea fisheries--and they are

numerous--breathe a much more exclusive spirit than those of England.

Hence also the treaties and conventions between Scotland and the

Netherlands did not extend to foreign fishermen the generous treatment

which was so evident in the south. The earliest of those commercial

agreements seems to have been made in 1291; others were concluded in

1321 and 1323, in the reign of Robert the Bruce, by which free ingress

and egress were given to merchants to pass with their merchandise to

any parts of the kingdom, “with their ships and goods”; and similar

freedom of commercial intercourse was stipulated in 1371, 1401, 1407,

1412, 1416, and on numerous occasions subsequently.[139] These early

agreements contain no provision about the fisheries, and nothing to

indicate a desire on the part of the Scottish king or people to allow

fishermen from the Low Countries to fish in the adjacent waters. The

feeling of the coast population towards the foreigners was usually

jealous and aggressive; attacks by the one and reprisal by the other

were of frequent occurrence, especially in the fifteenth and sixteenth

centuries. The Earl of Holland complained in 1410 that the Scots had

attacked the fishermen of that province “when they went to sea to

catch herrings in their fishing vessels and to gain their living like

honest men”; and by way of reprisal he gave permission to the people of

Brouershaven to attack and injure their “enemies,” the Scots, wherever

they could find them, on sea or land.[140] There is much testimony to

show that in those times the Scottish fishermen were of a fierce and

forceful disposition, and little inclined to tolerate the intrusion

of foreign fishermen within what they claimed as their “reserved

waters,”--that is, the firths and bays and a distance along the coast

described as “a land kenning,” which extended to fourteen miles or to

twenty-eight miles from the shore. An indication of their treatment of

those who intruded is afforded by a story told in one of the English

State Papers on the authority “of the old Bishop of Ross, who came in

with King James to England.” He said that in the time of King James V.

(A.D. 1513-1542) the Hollanders, who had only a verbal license to fish

at twenty-eight miles off, came near the shore within the mouth of the

Firth of Forth, “and there fished in despite of the king’s command.”

James thereupon set out men-of-war and took so many of them that “he

sent a baril ful of their heads into Holland, with their names fixed

to their foreheads on cards,” as a warning to their fellows.[141] This

tale of savagery, probably apocryphal, no doubt originated in the

conflicts and reprisals between the Dutch and the Scots which are known

to have occurred in the reign of James V., and led to the treaty of

1541, in which, for the first time, there is a stipulation concerning

the fisheries. For some years previously the relations of the Emperor

Charles V. (in whose dominions the Low Countries were included) and the

King of Scotland had been strained, owing to the renewal of the old

alliance between Scotland and France. A number of armed vessels, under

the command of Robert Foggo of Leith, cruised about and captured many

Dutch herring-busses, especially those belonging to Schiedam and Briel.

The States of Holland retaliated by seizing Scottish goods in Holland,

and then James V. threatened that he would put an entire stop to their

herring fishing on the coast of Scotland.[142] Owing to the war with

France and the depredations of privateers, the Netherlands at that time

had much difficulty in protecting their herring-busses, and the threat

of the Scottish king speedily brought about negotiations. The States

of Holland petitioned the Emperor to interfere,[143] alleging that

the prohibition of their herring fishing by the King of Scotland was

inconsistent with the freedom of navigation, and even with the treaties

subsisting between them--which, however, as has been said, did not

include the question of fishing. In the treaty which followed between

James V. and the Emperor,[144] it was, amongst other things, agreed

that means should be devised for reparation of the damages done on

both sides “to merchants, fishers, and other traders or subjects,” or

to their ships and goods, in time of peace; and that mutual protection

should be afforded to the fishermen against pirates. It contained no

fishery clause like those in the English treaties, and not a word about

the liberty of fishing. It can scarcely be doubted that the omission

was deliberate, and that those conducting the negotiations on behalf

of the Dutch wished to have a guarantee of the kind. We learn from

the treaty that the last article in the instructions of the Scots

ambassador contained some proposal about the fishery. Its nature

does not appear; but from the fact that it was not agreed to, and was

reserved for further consideration on the part of the Emperor, it is

not unlikely that it referred to the fixing of a limit within which the

Dutch were not to fish.[145] The Scottish lawyer, Welwood, early in the

next century referred to the “notorious covenant” which had been made

with the Dutch, that they should not fish within eighty miles of the

coast of Scotland, a statement that may have been a reminiscence of

this proposal.

The peace was not of long duration. The Scots again attacked the Dutch

fishermen on the coast of Scotland; the goods of Scotch merchants were

in turn seized in the Netherlands, and their ships and seamen arrested,

and arrangements were made by the Dutch to convoy their herring-busses

with many ships of war.[146] On the representations of Rotterdam and

Schiedam--towns which had a great stake in the herring fishery on the

Scottish coast--a request was made to the Emperor, in the name of the

States of Holland, asking him to arrange in his negotiations with the

Scots for the restitution of the goods taken by them from the Hollander

fishermen; and early in 1545 he was petitioned to conclude a truce

with them on account of the herring and dogger (cod) fishing.[147]

It was not until 1550 that another treaty was signed between the

two countries,--also at Binche, on 15th December, on behalf of the

Emperor Charles V. and Mary Stuart, Queen of Scotland. It confirmed

all previous treaties, and contained provisions for mutual freedom

of commerce and navigation without the need of any safe-conduct or

license, general or special, and with liberty to make use of one

another’s ports, and also mutually to protect one another’s subjects,

including fishermen, from the attacks of pirates. The part referring

to the fishery did not, however, differ from that in the previous

treaty, which it merely confirmed. “With regard to the fishery and

the free use of the sea,” it said, “that which was made, concluded,

and agreed upon by the foresaid treaty made at Binche on the 19th

February 1541, between the Most Serene Queen Mary (of Hungary and

Bohemia) and the aforesaid ambassador of the King of Scotland, shall

be truly and sincerely observed.”[148] This treaty, which was called

in the Netherlands “celebre fœdus,” may be regarded as the Scottish

counterpart of the Intercursus Magnus, concluded with England in 1496.

The older Dutch writers, as Wagenaar and Plegher, professed to regard

it as having guaranteed freedom of fishery on the coasts of Scotland

in the same way; and it was cited by the Dutch ambassadors in the

negotiations concerning the fishery in the seventeenth century in this

sense. But in the English treaty freedom of fishing all over the sea

was expressly covenanted in the most plain and explicit language, while

the treaty with Scotland in 1550 merely confirmed a previous treaty

which certainly did not confer liberty of fishing, though the phrase

“the free use of the sea,” now introduced in the preamble, might at

first sight imply the contrary. Nothing more appears to have been heard

of the proposal of the Scottish ambassador in 1541, which had been

deferred for further deliberation.[149]

A treaty which took a still more important place in the subsequent

disputes and negotiations respecting _mare clausum_ and unlicensed

fishing, and upon which the Dutch relied even more, at least in the

reign of James, than they did on the Intercursus Magnus, was concluded

with King James VI. in 1594, fifteen years before he issued, as king

of England as well as of Scotland, his famous proclamation forbidding

promiscuous and unlicensed fishing. On the occasion of the baptism of

his son, Prince Henry, which took place at Stirling on 30th August

1594, the States-General despatched two ambassadors, Walraven van

Brederode and Jacob Valck, laden with costly gifts, to take part in

the ceremony, and also to do a little business with the king. The

two previous treaties between Scotland and the Netherlands had been

concluded at a time when the whole of that country had been under the

rule of Charles V. In the interval it had passed into the possession of

Philip of Spain, and then the northern provinces had revolted, thrown

off the Spanish yoke, and formed the famous federal commonwealth of

the seven United Provinces of Holland, Zealand, Utrecht, Gelderland,

Over-Yssel, Friesland, and Groningen. It was thought to be desirable

by the prudent Dutchmen to renew if possible on their own behalf the

treaties with Scotland, especially as it was then recognised that James

would succeed to the English throne. The ambassadors therefore brought

with them a long draft treaty, in which the previous treaty of 1541

was recited and that of 1550 was given in full. James agreed to the

confirmation of the previous treaties, and the ratification was signed

at Edinburgh on 14th September 1594. In his declaration he stated that

he had “seen, read, and examined” the treaty of peace and alliance

made at Binche in 1550 between Charles V., Emperor of the Romans,

in the capacity of sovereign of the Low Countries, and Queen Mary,

“his honoured dame and mother,” and having found it very desirable,

good, and beneficial for him and his country, it was to be observed

inviolably for the good of the traffic and commerce of the subjects of

the two nations; and he sincerely promised to observe the treaty and

every clause and article in it. Then the easy-going monarch appears

to have forgotten all about it. The document itself was lost, and

when it was urgently wanted for the negotiations in the next century

it could not be found, and nobody in this country seemed to know what

it contained; it was even regarded by some--as the English ambassador

at The Hague--as apocryphal. Although the Dutch relied much on this

treaty, it contained no stipulation regarding liberty of fishing. The

treaty of 1550 was confirmed, by which it was provided that commerce

and navigation were to be free; merchants were to be at liberty to

pass safely and freely with their goods by land and sea, and to buy

and sell; pirates were to be chased from the sea, and the subjects

of either state, including fishermen, were to be mutually protected

from their attacks; but the fishery clause was precisely the same as

before.[150]

It is thus evident that there was a great difference between the

English and the Scottish treaties with the Netherlands respecting the

right of fishery. The former contained a separate clause, conceived

in a broad and liberal spirit and again and again renewed, providing

for mutual freedom of fishing everywhere on the seas, while no such

agreement or anything like it was made on the part of Scotland. The

Dutch fishing on the coast of Scotland was more important to them than

their fishing on the English coast, and there is no doubt they strove

to obtain the same privileges for it as they received in England.

The omission of a corresponding clause in the Scottish treaties was

in accordance with the long-settled policy of the Scottish kings and

Parliaments, and it was that policy that James carried with him to

England when he attempted to reverse the established practice with

regard to the fisheries, and opened up the claims to _mare clausum_.

There is, unfortunately, little contemporary evidence as to the precise

extent of the claim to the fisheries which was anciently put forward in

Scotland. The Acts of the Scottish Parliaments do not help us very far,

although they reveal the jealous and conservative spirit previously

referred to. Many statutes were made prohibiting strangers from buying

fish except such as were salted and barrelled, and then only at free

burghs; concerning the “assize-herring,” of which so much was to be

heard; and the payment of customs by foreigners exporting fish. The

language of some of the Acts implied a certain control over foreign

fishermen on the sea,[151] and all that we know of the practice and

customs in Scotland makes it highly probable that these enactments were

in point of fact enforced against foreign fishermen as far as they

could be. The Scots were always particularly jealous about the fishings

in the firths and lochs “within land.” An important herring fishery of

this kind was carried on in the lochs on the west coast, especially in

Loch Broom and Loch Fyne, in autumn and winter, by fishermen from the

Clyde, the Ayrshire coast, and Fifeshire, who built timber houses on

shore where they cured the herrings; and this fishing was attended by

Frenchmen, “Flemings,” and English, who purchased the cured herrings

or bought the fish and cured them themselves.[152] Wishing to catch

the herrings for themselves, these “divers strangers” most earnestly

petitioned Queen Mary in 1566 for “license to fish in the said lochs.”

But the Council, to whom the petition was referred, after consultation

with the burghs, refused the request, and ordained that “no stranger

of whatever nation they be come in the said lochs, nor use the

commodity of the said fishing in any time to come, but the same to be

reserved for the born subjects and natives of the realm,” under pain

of confiscation of ships and goods.[153] Some of the old Scots Acts,

of the reign of James III. (1460-1488) and later, refer to previous

statutes, which seem to be lost, respecting the herring fishery in

the western seas; and they indicate that “letters” had sometimes been

granted by the king favouring foreigners in some way, but whether by

allowing them to fish there is unknown.

On the east coast, where the Dutch carried on their great

herring-fishing from busses, there is evidence that a limit was early

fixed within which they were not allowed to fish, but no contemporary

records relating to it appear to have been preserved. It is probable

that an arrangement was come to between them and the Scottish

fishermen, possibly in the reign of James V. or even earlier, by which

they were not to fish within sight of land. At the beginning of the

seventeenth century, when the question of unrestricted fishing was

raised in an acute form, there was a remarkable unanimity of opinion

in Scotland that the ancient and established custom was that foreigners

were not allowed to carry on their operations within a “land-kenning”

of the coast,--that is, not nearer than where they could discern the

land from the top of their masts. This distance was usually placed at

fourteen miles, but sometimes a double land-kenning, of twenty-eight

miles, was claimed; and we shall see that the former distance was

embodied in the Draft Treaty of Union with England in 1604, as well

as proposed to the States-General as a provisional limit in 1619 (see

p. 192), and declared by Parliament and the Privy Council of Scotland

to be the bounds of the “reserved waters” belonging to Scotland.

Welwood, a Scottish lawyer who wrote at the end of the sixteenth and

the beginning of the seventeenth centuries, states that before his

time, after “bloody quarrels” about sea affairs between the Scots and

the Hollanders, the disputes were arranged on the understanding that

in future the Hollanders were to keep at least eighty miles from the

coast of Scotland, which, he says, they did for a long time. If they

were driven nearer by stress of weather they paid a tax or tribute

at the port of Aberdeen, where a castle was built for this and other

reasons. This tax, he adds, was paid until by frequent dissensions at

home and the audacity of the Hollanders the right was lost.[154] There

is no very satisfactory evidence to show in how far the statements of

Welwood were in accordance with the facts. In the records of the Privy

Council a case is mentioned which might be interpreted in another

way. In 1587 two English ships belonging to Shields, coming from the

“easter seas” laden with fresh fish and bound for England, were seized

and brought into port by one Thomas Davidson of Crail, apparently on

the plea that they had been fishing too near the shore. The owners

contended that the fish had been caught “upon the main sea, outwith his

Majesty’s dominions, where not only they but the subjects of all other

princes had had a continual trade and fishing in all times bygone past

the memory of man.” But even, it was argued on their behalf, if the

fish had been caught within his Majesty’s waters, still, in respect of

the “continual trade” which strangers had had there in all time past,

“there being no inhibition made or published to the contrary as yet,”

no such treatment should have been meted out to them.[155] This was in

the reign of James VI.; and the most likely explanation, in the absence

of information as to the decision taken by the Council, is that while

no official proclamation forbidding fishing by foreigners had been

promulgated, and no recent measures carried out to prevent them from

doing so, it was believed that a certain part of the sea was reserved

for the use of the Scottish fishermen, apart from the waters of firths

and lochs.

The difference in the national policy of England and Scotland

concerning foreigners fishing along our coasts prevailed until

the Union of the crowns, when James introduced the Scottish ideas

into England and soon endeavoured to transform them into practice.

Meanwhile, under the Tudors, certain changes were slowly and silently

taking place which paved the way for the new policy, and that too

although, very shortly before, the freedom of the seas had been

proclaimed and vindicated by Queen Elizabeth.

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