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.