(Aldis, _A List of Books printed in Scotland before 1700_; Dickson and
Edmond, _Annals of Scottish Printing_, 415), and I have found a MS.
copy among the State Papers, entitled “The Sea Law of Scotland, shortly
gathered and plainly dressed for the ready use of all seafaring men.
Dedicated to James VI. of Scotland by William Welvod. At Edinborough,
A^o 1590, by Robert Walgrave.” (_State Papers, Dom._, Jas. I., ccviii.
No. xvi.) It was printed at Edinburgh by Waldegrave in 1590. There
are fifteen chapters dealing with the freighting of ships, the powers
and duties of the master, the relations between the master and the
merchants, &c. In his preface to the _Abridgement_, Welwood refers to
this earlier work as follows: “It pleased your M. some yeeres past most
graciously to accept of this birth, in the great weaknes and infancie
thereof. Therefore it is, that now being strong, and by all warrants
inarmed, it most thankefully returnes, offring seruice to your M. euen
for all the coasts of your Highnes dominions, vpon hope to merit your
former grace.” His last work is dated 1622. It is probable that, like
so many of his countrymen, he followed King James to London, where all
his later works were published. He was of an ingenious mind, and, while
teaching mathematics at St Andrews, obtained a patent for a new mode of
raising water from wells, &c., on the principle of the syphon. M’Crie,
_op. cit._
[636] _An Abridgement of all Sea-Lawes, gathered forth of all Writings
and Monuments, which are to be found among any people or Nation upon
the coasts of the greate Ocean and Mediterranean Sea: And specially
ordered and disposed for the use and benefit of all benevolent
Sea-farers, within his Maiesties Dominions of Great Britanne,
Ireland, and the adiacent Isles thereof._ London, 1613. Tit. xxvii.
deals with the “community” of seas. He refers to the work of Grotius as
“a verie learned, but a subtle Treatise (_incerto authore_) intituled
_Mare Liberum_.” Welwood’s _Abridgement_ was republished in 1636,
without alteration; also in the edition of 1686 of Malyne’s _Consuetudo
vel Lex Mercatoria_, but without his name.
[637] _De Dominio Maris Ivribvsque ad Dominivm praecipve spectantibvs
Assertio brevis et methodica._ Cosmopoli, 16th January 1615. It was
republished at The Hague in 1653, and replied to by Graswinckel. See p.
412.
[638] In Roman law a distinction was made between the sea and rivers
in regard to propriety. The sea is “_communis omnium naturali jure_,”
but the rivers are “_publicæ res, quarum proprietas est populi vel
reipublicæ_.”
[639] Welwood’s _De Dominio Maris_ is not mentioned by Grotius, whose
tract appears to have been written before it was published.
[640] _Jus Feudale, Tribus Libris Comprehensum_, lib. i., Diegesis 13,
p. 103. Edinburgh, 1603 and 1655. The treatise was dedicated to King
James. Craig was born in 1538 and died in 1608.
[641] “Quod ad mare attinet, licet adhuc ita omnium commune sit,
ut in eo navigari possit. Proprietas tamen ejus ad eos pertinere
hodie creditur, ad quos proximus continens adeo ut mare Gallicum id
dicatur quod littus Galliæ alluit, aut ei propius est, quam ulli alii
continenti. Sic Anglicum, Scoticum, et Hybernicum, quod propius Angliæ,
Scotiæ, et Hyberniæ est. Ita ut reges inter se, quasi maria omnia
diviserint, et quasi ex mutua partitione alterius id mare censeatur,
quod alteri propinquius et commodius est; in quo si delictum aliquod
commisum fuerit, ejus sit, jurisdictio qui proximum continentem
possideat. Isque suum illud mare vocat.... Piscationes vero quæ in
proximo mari fiunt, proculdubio eorum sunt qui proximum continentem
possident. Itaque non sine summa injuria nostra Belgæ circa nostras
insulas piscantur. Nam licet piscationes in mari non prohibeantur,
tamen et hæ præscribuntur, et traduntur permissæ aut prohibitæ secundum
consuetudinem.”
[642] _The Maintenance of Free Trade_, p. 42 _et seq. Consuetudo
vel Lex Mercatoria._ The latter contains chapters on Navigation and
Community of Seas, and The Distinct Dominions of the Seas. Many
editions were published.
[643] Wheaton, _Hist._, 51, 153; Phillimore, _Commentaries_, I. xxxix.
[644] _Alberici Gentilis Juriscons. Hispanicæ Advocationis_, Libri
Duo, Hanoviæ, 1613. Gentilis was born in 1551 and died, like Craig,
in 1608. His most important works were _De Jure Belli_ (1588) and _De
Legationibus_. Professor Holland has given an account of his life and
works in _An Inaugural Lecture on Albericus Gentilis_, delivered at All
Souls College, 1874. See also Alessandro de Giorgi, _Della Vita e delle
opere di Alberico Gentili_, Parma, 1876.
[645] In a letter from the Earl of Salisbury to Sir Thomas Lake in
1606, referring to a dispute between the Dutch and Spanish ambassadors
about prizes taken in the Narrow Sea, it is said that the king, in
putting in force his proclamation about the recall of subjects in
foreign service (p. 119), dealt as follows: if a prize had been taken
and brought into the English limits (chambers), and Englishmen were
aboard the taker, he dealt with them as having offended against his
proclamation, and also released the ship as not being good prize.
Even more, proceeds the Earl, “although there be no English but all
Flemings, the king takes all from them and restores it [the ship]
wherein, tho’ in effect it undoes the end of the States warr by sea,
because they have no way to come home but by the narrow seas, where
the least wind that can blow them can hardly keepe themself from the
English coasts, and so a partiall jugement of ½ a mile more or less
in a wyde sea looseth or winneth their right.” _State Papers, Dom._,
xviii. 22.
[646] In 1604, between King James and Philip III. and the Archdukes.
Dumont _Corps Diplomatique_, V. ii. 34.
[647] “Etiam non nocet, quod objicitur et longe antehac longo usu
servatos in hujusmodi quæstionibus hos esse fines qui expressi nunc
sunt Edicto,” p. 30.
[648] Gryphiander, _De Insulis Tractatus_, Frankfort, 1623, cap. 14, s.
46.
[649] Moore, _A History of the Foreshore and the Law relating thereto_,
1888.
[650] “Arguments prooving the Queenes Ma^{ties} propertye in the Sea
Landes, and salt shores thereof, and that no subiect cann lawfully
hould eny parte thereof but by the Kinges especiall graunte.” It is
printed by Moore (_op. cit._, 185) from _Lansdowne MSS._, No. 100.
Various copies exist; one in _Lansd. MSS._, No. 105, belonged to Lord
Burghley, and is endorsed by him “Mr Digges. The Case of Lands left by
ye Seas.” A copy is in _State Papers, Dom._, cccxxxix. 1.
[651] It may be said that this claim to “royal fish,” made also by
Bracton, was not peculiar to the English crown. It was made on the
Continent from an early period, as is shown by the ancient laws of
Jutland and of Scania, and the practice in many parts of France and
among the Normans. It may have been introduced into England by William
the Conqueror, who granted Dengey Marsh to Battle Abbey, with the right
to wreck and royal fish.
[652] _The Reading of the famous and learned Robert Callis, Esqr., upon
the Statute of Sewers_, 23 Hen. VIII., c. 5, as it was delivered by him
at Gray’s Inn in August 1622. 4th ed., 1824.
[653] Such as “A Collection of divers particulars touching the King’s
Dominion and Soveraignty in the Fishings, as well in Scotland as in
the British Ocean,” by Captain John Mason. (_State Papers, Dom._,
1590. _Admiralty_, Eliz., Jac. I., Car. I., No. 37, fol. 131.) A
superior compilation, dealing with the opinions of the Civilians,
as well as with the Dutch and native fisheries, and founded largely
on Dee, Hitchcock, Gentleman, and Keymer, is entitled “The King’s
Interest in the Sea and the Commodities thereof” (_ibid._, ccv. 92).
Another treatise, also dealing with the opinions of the Civilians, the
jurisdiction of the Admiral, and the rights of the crown of England to
the dominion of the narrow seas, is in _State Papers, Dom._, ccviii.,
No. x., fol. 402.
[654] The original Latin copy bearing the date 1633 (confirmed by
internal evidence) is in the British Museum (_Harleian MSS._, 4314). It
is entitled _Dominium Maris Britannici assertum ex Archiuis Historiis
et Municipalibus Regni Legibus_, per D. Johannem de Burgo, 1633; it
is dedicated to the king. Other MS. copies in the British Museum are
_Harl._, 1323; _Lansdowne_, 806, f. 40; _Sloane_, 1696; and _Harl._,
4626, the latter being very imperfect. There is also a fine copy in
English among the State Papers, dated 1637, with this addition to the
title: “Also a Perticuler Relation concerning the Inastimable Riches
and Commodities of the British Seas” (_State Papers, Dom._, ccclxxvi.
68). It was republished in the third edition of Malyne’s _Consuetudo
vel Lex Mercatoria_, in 1686.
[655] _Mare Clausum_, in dedication to King Charles, “Divi parentis
tui jussu tentata olim adumbrataque, inter schedas sive neglectas sive
disjectas per annos amplius sedecim mecum latuit; ut imperfecta nimis
sic etiam ceu intermortua.”
[656] _Vindiciæ Maris Clausi_, p. 25. This was the explanation
which Selden gave when, in 1652, he was taunted by a Dutch writer,
Graswinckel, with having written his work to get out of prison. It is
surprising that James, who was loquacious and fond of displaying his
knowledge, never lectured the Dutch ambassadors on the themes in _Mare
Clausum_--as from the rolls of the Edwards; nor was any use made of its
facts and arguments throughout the protracted negotiations in his reign.
[657] A Proclamation concerning a book intituled _Mare Clausum_, 15th
April 1636. _Fœdera_, xx. 12.
[658] _State Papers, Dom._, cclxxiii. 30; cclxxvi. 58.
[659] Gardiner, _Hist._, vii. 330. Poor Prynne, who lost both his ears
on this occasion, and had his books burned under him in the pillory,
became later an ardent defender of the king’s dominion in the seas in
the reign of Charles II., when he held the office of Keeper of the
Records.
[660] _State Papers, Dom._, cclxxvi. 58; cclxxxiii. 96-98.
[661] _Brit. Mus. Add. MSS._, 17,677, O, fol. 367. Joachimi to the
States-General, 5/15 Aug. 1635. “Het boeck Seldeni getituleert, soo ich
hoore, _mare clausum_, is onder den druck deur ordre van den Coningh.”
[662] Joannis Seldeni Mare Clausum seu de Dominio Maris, Libri Duo.
_Primo_, Mare, ex _Jure Naturæ seu Gentium_, omnium hominum non esse
Commune, sed Dominii privata seu Proprietatis capax, pariter ac
Tellurem, esse demonstratur. _Secundo_, Serenissimum Magnæ Britanniæ
Regem Maris circumflui, ut individuæ atque perpetuæ Imperii Britannici
appendicis, Dominum esse, asseritur. Pontus quoque Serviet Illi.
Londini, excudebat Will. Stanesbeius, pro Richardo Meighen, MDCXXXV.
The Preface is dated at the Temple, 4th November 1635.
[663] _Vindiciæ_, “proceres apud regem præpollentes.”
[664] Proclamation, 15th April 1636.
[665] Rushworth, _Historical Collections_, ii. 320. Frankland,
_The Annals of King James and King Charles the First_, 476. In the
Exchequer Order Book, under date 5th May, the following entry occurs:
“Whereas S^r William Beecher, K^t, one of the clerks of his Ma^{ts}
most honorable pryvy councill, did this daye deliver in Court to the
Lord Treasurer, Chauncillor, and Barons of the Courte, a booke lately
published by John Selden, Esqr., entituled _Mare Clausum seu de dominio
maris_, to be kept in this Courte as a faithfull and stronge evidence
for the undoubted right of the Crowne of England to the Dominion of
the Bryttishe seas, which saide booke the said Clerke of the Councill
did deliver according to an order in that behalfe made by the King’s
most excellent Ma^{tie} and the Lords of His Highness privy councell at
Whitehall, the third of Aprill last past, a coppie of which said order
is alsoe delivered with the said booke: It is, therefore, nowe ordered
by the said Lord Treasurer, Chauncillor, and Barons that the said booke
bee receaved by his Ma^{ties} Remembrancer of this Courte, and by
him kypt of record amonge the Records of the Courte as his Ma^{ties}
evidence. And as well the said order of the third of Aprill before
mentioned as this present order to bee inrolled upon Record.” _Charles
I. Decrees and Orders_, Series iii., No. 19, fol. 3_b_.
[666] Besides the Romans and the Carthaginians, he mentions as
among these the Cretans, Lydians, Thracians, Phœnicians, Egyptians,
Lacedemonians, and a great many more; but in most cases the evidence
adduced shows merely that naval power was exercised.
[667] Lib. i. cap. xvii.
[668] Lib. i. cap. xx. “Quod ad genus primum attinet (commerce,
travelling, navigation); humanitatis quidem officia exigunt, ut
hospitio excipiantur peregrini etiam ut innoxius non negetur transitus.”
[669] Lib. i. cap. xxii. “Sed vero ex aliorum piscatione, navigatione,
commerciis ipsum mare deterius Domino cæterisque ejus jure gaudentibus
fieri non raro videmus. Scilicet minui, quod alias inde percipi posset,
commodum. Quod manifestius cernitur in marium usu, quorum fructus
sunt uniones, corallium, id genus cætera. Etiam minuitur in horas
marium hujusmodi abundantia, non aliter ac sive metalli fodinarum ac
lapicidinarum, sive hortorum, quando fructus eorum auferuntur.... Et
similis sane ratio qualiscunque piscationis.”
[670] Lib. ii. cap. xiii.
[671] (1) _Ioannis Seldeni Mare Clavsvm sev de Dominio Maris Libris
Dvo. Quorum argumentum paginâ versâ._ Juxta exemplar Londinense.
Will. Stanesbeii pro Richardo Meighen, CIƆ IƆc xxxvi. (12^o); (2) with
the same title and the following addition: _Accedunt Marci Zverii
Boxhornii Apologia pro navigationibus Hollandorum adversus Pontvm
Hevtervm et Tractatvs Mvtvi commercii et navigationis inter Henricvm
VII. Regem Angliæ et Philippvm Archidvcem Austriæ_. Londini, juxta
exemplar Will. Stanesbeii pro Richardo Meighen, MDCxxxvi. (8^o); (3)
with the title as in the original London edition, and Lvgdvni Batavorvm
apud Joannem et Theodorvm Maire, 1636 (4^o). The original London
edition was a small folio. In all the Dutch editions the plates are
badly copied. No. 1 is sometimes referred to by English writers as
the original edition. No. 2 is the one alluded to by Charles in his
proclamation of 15th April 1636.
[672] _Resol. Holl._, 11/21 Dec. 1635. Quoted by Arendt, _Algemeene
Geschiedenis des Vaderlands_, iii., stuck 5, p. 8.
[673] _Resol. Holl._, (31 March)/(10 April) 1636. Muller, _Mare
Clausum_, 283.
[674] “Ego, cum Suecia,” he wrote to his brother on January 14,
1636, “multum teneat oræ maritimæ, quid aliud præstare possum quam
silentium?” Grotii, _Epistolæ_, 864.
[675] Digby to Lord Conway, January 21/31, 1636. _State Papers, Dom._,
cccxliv. 58.
[676] The treatise was entitled, _Th. Graswinckelii, Jurisc. Delph.
Maris Liberi Vindiciæ adv. virum clarissimum Johannem Seldenum_.
Arendt, _loc. cit._; Muller, _loc. cit._ Goffe, writing from Holland to
Archbishop Laud on 2nd February 1637, stated that the book in answer
to Selden’s _Mare Clausum_ was “ready to come forth, and the author is
neither so modest nor discreet that the Elector should trust him with
any written assurance in that kind,”--that Charles would not interrupt
the Dutch fishery that year (_State Papers, Dom._, cccxlvi. 23). We
shall again find Graswinckel in the thick of the controversy during the
first Dutch war, p. 411.
[677] _Joh. Isacii Pontani Discvssionvm Historicarvm Libri Duo, quibus
præcipuè quatenus et quodnam mare liberum vel non liberum clausumque
accipiendum dispicitur expenditurque, &c._, Harderwick, 1637.
[678] _Jacobi Gothofredi De Imperio Maris_, in Hagemeier, _De Imperio
Maris Variorum Dissertationes_.
[679] _Mare Balticum_ (anon.), 1638; _Ante-Mare Balticum, scilicet, an
ad Reges Daniæ, an ad Reges Poloniæ, pertineat_ (anon.), 1639; Azuni,
_Systema dei Principii del Diritto Maritimo_.
[680] The Case of Ship-Money briefly discussed, according to the
Grounds of Law, Policy, and Conscience. Presented to the Parliament,
November 3, 1640. Stubbe, _A Further Justification of the Present War
against the United Netherlands_, 76.
[681] Gardiner, _Hist. Engl._, x. 208. Clarendon, iii. 113.
[682] Rushworth, _Collections_, v. 312.
[683] Penn, _Memorials of the Professional Life and Times of Sir
William Penn, Knt., from 1640 to 1670_, i. 224.
[684] _State Papers, Dom._, dxv. i. 37, 38, 39. There is also in one of
the collections a quotation from Selden’s _Mare Clausum_, that it was
treason not to acknowledge the King of England’s dominion in his own
seas by striking sails.
[685] Instructions given by the Committee of Lords and Commons for the
Admiralty and Cinque Ports, to be observed by all captains, officers,
and common men respectively in this fleet, provided to the glory of
God, the honour and service of the Parliament, and the safety of the
three Kingdoms, March 30, 1647. _Ibid._, dxv. 40.
[686] Rushworth’s _Collections_; Penn, _op. cit._, i. 242.
[687] Loccenius, _De Jure Maritimo_, x. s. 10.
[688] _State Papers, Dom._, 27th Feb. 1649.
[689] 17th January 1650. _A Collection of the State Papers of John
Thurloe_, i. 134.
[690] Penn, _Memorials_, i. 365, 379.
[691] Geddes, _History of the Administration of John de Witt_, i. 102,
106, 150-157. Gardiner, _History of the Commonwealth and Protectorate_,
i. 353, 356.
[692] Geddes, _op. cit._, 157, 159, 165. Gardiner, _op. cit._, 359.
_The Nicholas Papers_, i. 230.
[693] “Wee doe tender the ffriendshipp of the Com̃onwealth of England
unto the High and Mighty Lords the States Generall of the Vnited
Provinces, and doe propound that the Amitye, and good Correspondency
which hath aunciently beene betweene the English Nation and the Vnited
Provinces, be not only renewed, and preserved inviolably, But that a
more strict, and intimate Allyance, and Vnion, be entred into by them,
whereby there may be a more intrinsicall, and mutuall interest of each
in other then hath hitherto beene for the good of both.” Submitted 25
March/6 April. “A briefe Narrative of the Treatie at the Hague betweene
the hono^{ble} Oliver St John, Lord Chiefe Justice of the Court of
Com̃on Pleas, and Walter Strickland, Esq., Embassado^{rs} extraordinary
of the Parliament of the Com̃onwealth of England, to the great Assembly
of the States Generall of the Vnited Provinces begun upon the 20th of
March 1651 and continued vntill the 20th of June 1651 and then broke of
_re infectâ_.” _State Papers, Foreign, Treaty Papers (Holland)_, No.
46, 1651.
[694] “We propound, That the two Com̄onwealths may be confederated
friends, ioyned, and allyed togeather for the defence and Preservation
of the Libertyes, and ffredomes of the people of each, against all
whomsoever that shall attempt the disturbance of either State, by Sea
or Land, or be declared enemyes to the freedome and Libertie of the
people liveing under either of the said Governments.” Submitted, 17th
April. _Ibid._, p. 7.
[695] _Narrative of the Ambassadors_ (ibid.) Geddes, _op. cit._, 157,
159, 165, 171. Gardiner, _op. cit._, 359, 362, 363. Tideman, _De Zee
Betwist: Geschiedenis der Onderhandelingen over de Zeeheerschappij
tusschen de Engelsche Republiek en de Vereenigde Provinciën vóór den
ersten Zee-Oorlog_, 39-47. Thurloe’s _Collections_, i. 176, 179,
181-186, 188, 193. Aitzema, _Saken van Staet en Oorlogh_, 657-660.
[696] See Appendix K. _Narrative of the Ambassadors_, p. 23. Aitzema,
_op. cit._, iii. 698-700. MS. of Duke of Portland in _Hist. MSS. Com.
Thirteenth Report, App. I._, 605. Tideman, _op. cit._, 47, 48, 49.
Geddes _op. cit._ 178.
[697] Articles 17-33, _Narrative of the Ambassadors_. These articles
are given in Appendix K. Tideman, _op. cit._, 50. Aitzema, _op. cit._,
iii. 695.
[698] “Over het strijken van vlaggen ende andere Ceremonieën daeruyt
meenichmael differentien in zee coomen te ontstaen.” _Resol. der Groote
Vergadering_, 15/25 May 1651. Tideman, _op. cit._, 52.
[699] St John and Strickland left The Hague on 20th June, and the
Act was recommended to the Parliament by the Council of State on 5th
August, and passed on 9th October (Gardiner, _op. cit._, ii. 82). The
essence of the Act was to prohibit the importation of extra-European
commodities into any territory of the Commonwealth except in English
vessels, or from Europe unless in English vessels or vessels belonging
to the country in which the commodities were manufactured or produced.
The importation of salt-fish or fish-oil, and the exportation of salted
fish, were to be permitted only in English vessels, but the importation
of fresh fish was not forbidden. Early in the next year two Dutch
doggers, driven into Yarmouth by contrary winds, exposed their cod and
haddocks for sale and were seized by the bailiffs; their release was
ordered by the Council of State.
[700] Geddes, _op. cit._, 192, 193. Tideman, _op. cit._, 89, 96.
Gardiner, _op. cit._, ii. 108. Gardiner, _Letters and Papers relating
to the First Dutch War, 1653-1654_, Navy Records Society. In the third
volume (1906) of this valuable work the papers are brought down to 10th
February 1653.
[701] Tideman, _op. cit._, 96. Aitzema, _op. cit._, iii. 696.
[702] They were Whitelocke, John Lisle, Bond, Scott, Viscount Lisle,
and Purefoy.
[703] Cats’ _Verbael_. Tideman, 94-108. Geddes, 198.
[704] The conferences on the articles were on 3rd, 5th, 6th, 10th, and
13th May. The incorporation and union of Scotland with England was
proclaimed at Edinburgh on the 21st of the preceding month.
[705] Cats’ _Verbael_, _App._, 21. Tideman, _op. cit._, 117.
[706] “De dispuyte over ’t recht hetwelck de Engelsche pretenderen
privative over eenigh ghedeelte van de Zee te hebben, ende in allen
ghevalle aan deselve geen soodanigh recht in eenigher wijse toe te
staen, ende alleen te handelen over de vryheijdt ende seeckerheijdt van
wederzijts visscherije.” Tideman, _op. cit._, 119. Aitzema, _op. cit._,
iii. 708.
[707] Cats’ _Verbael_. Tideman, 118.
[708] Aitzema, iii. 713. Tideman, 124, 130, 132. The draft instructions
were dated (April 30)/(May 10), and were approved on May 6/16. A
translation of the 7th Article is as follows :“The superior officers
and captains either already in command of the aforesaid squadrons
or hereafter appointed, are to be charged to free the ships of this
country from all search by any one whatever, and to defend them against
all who try to do them injury, and to release them to the uttermost of
their power from every one who may have captured them, and further to
do whatever their ordinary instructions in their commission requires
in a sailor-like fashion for the service of the country.” By the 5th
Article, fifteen men-of-war were to be sent for the protection of the
“great” (herring) fishery, “which is of so great importance to the
State,” along with the ordinary national convoy-ships, and the ships
which the towns of Enkhuizen, Delft, Rotterdam, and Schiedam were
accustomed to add. Gardiner, _Letters and Papers_, i. 155.
[709] Tromp’s memorandum was dated (28 Feb.)/(9 March), 1651. The
original is apparently lost (Tideman, _De Zee Betwist_, 68); but an
account of it is given by his contemporary, Aitzema (iii. 731), and
is printed in Appendix L. Tromp, in his _Rescript_ of 14/24 October
1652, justifying and explaining his conduct with regard to the meeting
with Blake, refers to a memorandum on the subject of the flag which
he presented to a committee of the States on “Jan. 6/16, 1650/1651,”
and which they considered in arranging his instructions of “(Feb.
21)/(March 3), 1650/1651” (Gardiner, _Letters and Papers_, i. 422). The
dates here are those given by Tideman.
[710] “Sonderlinge de swackste sijnde.”
[711] Tideman, _op. cit._, 68. _Resol. Holl._, 1/11 March 1651.
[712] _Hollantsche Mercurius_, April 1651, p. 49: “Seer jalours, omdat
hij niet terstond gereedt was voor haar te strijcken.”
[713] _Resol. St. Gen._, 7/17, 12/22 Oct. 1651. Aitzema, iii. 731.
Tideman, 68, 92.
[714] _Add. MSS. Brit. Mus._, 11,684, fol. 30.
[715] Bourne’s letter in _The Answer of the Parliament of the
Commonwealth of England to three Papers delivered to the Council of
State by the Lords Ambassadors Extraordinary of the States-General of
the United Provinces_: and also a _Narrative of the Late Engagement_,
&c., _Brit. Mus._, (517, k, 15)/(36), p. 12.
[716] Letter to States-General, May 30. _Hollantsche Mercurius_, May
1652. _The Answer of the Parliament._ Geddes, 209. Tideman, 130.
[717] Blake’s letter, _The Answer of the Parliament_, p. 8.
[718] Tideman, 128, 129. Geddes, 210, 211.
[719] Young’s despatch, 14th May 1652, in _The Answer of the
Parliament_, p. 20. Penn’s _Memorials_, i. 419. Tideman, 197. Gardiner,
_Letters and Papers relating to the First Dutch War_, i. 178. _The
French Occurrences_, &c., _Brit. Mus._, E, 665, 6. It may be noted that
Tromp, in his _Rescript_ to the States-General (see note, p. 398),
mentioned that Huyrluyt and van der Saen had received instructions to
strike only to royal squadrons.
[720] In the Dutch writings the place was described as “Fairle,”
“Fayrleigh,” “Virly,” “Vierly,” &c. Its position is shown, as Fairlee,
in the reproduction of the chart from Selden in this book (Fig. 3, p.
121).
[721] _The Answer of the Parliament._ Gibson, Collections of Naval
Affairs, _Add. MSS._, 11,684, fol. 5_b_. Geddes, _op. cit._, 212.
Gardiner, _op. cit._, ii. 118; _Letters and Papers_, i. 172. Tideman,
_op. cit._, 135. The Dutch accounts, which vary in certain particulars
from the English and from one another, are unanimous in saying that the
first broadside came from Blake’s ship, the _James_, which would have
been according to custom, since Tromp did not lower his flag after the
third shot.
[722] See his memorandum, p. 398. Tromp wrote to Blake from Calais
four days afterwards ((23 May)/(2 June)), saying he had intended to
salute him, and asking for the restoration of a ship taken. In reply
Blake accused him of having sought out the English fleet, and “instead
of performing those usual respects which of right belong unto them,
and which yourself have often done,” had attacked him. In _The Answer
of the Parliament_, p. 11, it is said that one of the Dutch captains
who had been taken prisoner stated that when he struck to some English
men-of-war at Calais a few weeks before, Tromp asked him “why he did
strike sail to them,” saying, “Were you not as strong as they? And
being so, why were you afraid?” As the above-mentioned letter from
Tromp to Blake is given by Gardiner (_Letters and Papers_, i. 216) only
as “translated from a Dutch translation of the French original,” an
authenticated copy of the French original is given in Appendix M, from
Tideman (_De Zee Betwist_, App. C, p. 202). It is from the archives at
The Hague (_Lias Engeland_, 1652 (_Copie_), and is endorsed by Job.
Corñ. Rhees, and again by N. Ruysch, as identical with the authentic
copy. The original of Blake’s reply is also given. It is printed by
Gardiner as “retranslated from the Dutch translation” (_ibid._, i.
257), and differs in some points from the original.
[723] _The Answer of the Parliament_, p. 4.
[724] _Resol. St.-Gen._, (25 May)/(4 June), 3/13 June 1652. Tideman,
_De Zee Betwist_, 164. Articulen van Vreede ende Confederatie,
&c. _Brit. Mus._, 8122, ee. 12--“Dat hij aengaeñ het voeren ofte
strijcken van vlagge in de Rencontre mette Engelsche Vlooten of
Schepen hem bij provisie respectivelijck sal hebben te gedragen en te
reguleren in sulcker voegen als bij tijden van voorgaende Coningen van
Groot-Britaignen is gedaan ende gepractiseert geweest.”
[725] Tideman, 171.
[726] _State Papers, Dom._, xxiv. 15.
[727] Cats, Schaep, and van de Perre to the States-General, 27th June
1652. _Add. MSS._, 17,677, U, fol. 162. Pauw was officially informed
by the Council of State that the fleet had put to sea “to execute its
designs.” Geddes, _op. cit._, 223. Gardiner, _Letters and Papers_, i.
301. The number of Blake’s fleet was variously stated as 60, 64, 66,
68, 72 vessels: 60 were counted passing Dunbar.
[728] Letter from Leyden, 4/14 August 1652. _Mercurius Politicus_,
_Brit. Mus._, E, 673, 1. The accounts vary somewhat. _Severall
Proceedings in Parliament_, _Brit. Mus._, E, 796, 11. _A Perfect
Diurnall_, E, 796, 14. _French Occurrences_, E, 669, 6. _Onstelde-Zee_,
p. 34, (8122, ee. 6)/(11). _Hollantsche Mercurius_, 1652, p. 70.
Gibson in his narrative (_supra_) says he was on board one of the
ships (the _Assurance_) that attacked the busses, and that they found
them “northwards of the Dogger Bank”; but there is no doubt that the
locality was far north of the Dogger, off Buchan Ness, _Brit. Mus. Add.
MSS._ 11,684.
[729] _Memoirs of Edward Ludlow_, 420.
[730] _Proc. Council of State_, 20th July 1652.
[731] _Resol. Holl._, 1652, pp. 343, 364, 387. _Hollantsche
Mercurius_, 1652, p. 86. Beaujon, _Hist. Dutch Fisheries_, 363. _Groot
Placaet-Boeck_, ii. 506. Aitzema, _Saken van Staet_, iii. 810. Penn’s
_Memorials_, i. 526, 527. _State Papers, Dom._, xxv. 25; xxxii. 15;
xxxvi. 15, 29, 55; xxxviii. 116; xxxix. 73; xli.
[732] The Declaration and Speech of the Lord Admiral Vantrump, and
his setting up a great Standard of Broom for the States of Holland,
for the Cleering of the Narrow Seas of all Englishmen: New Broom
sweepes clean, p. 4. _Brit. Mus._, E, 689, 13. A Perfect Account of
the Daily Intelligencer, _Brit. Mus._, E, 689, 14. Gardiner, _Hist. of
Commonwealth_, ii. 151. Geddes, _op. cit._, 270, 319.
[733] _Journals of the House of Commons_, vii. 145.
[734] _State Papers, Dom._, _Interregnum_, xxix. 42-47.
[735] This collection is in a treatise in the British Museum (_Harleian
MSS._, 4314), entitled “The Sovereignty of the English seas vindicated
and proved by some few Records (amongst many others of that kynd)
remayning in the Tower of London,” Collected by William Ryley, senior.
Among the State Papers (_Dom._, xxxv. 35) is a copy of the ordinance
of John, in Latin, French, and English, endorsed by Bradshaw, “A
transcript of a record in the time of King John touching the striking
of sail; brought in by Mr Ryley, Keeper of the Records in the Tower,
by order of the Council of State.” It contains the following note by
Ryley, referring, presumably, to the _Black Book of the Admiralty_:
“The French is in a very ancient and fair MS. book amongst the rest of
the maritime laws, and undoubtedly was a record of the Admiralty Court,
then in the possession of the registrar of that Court, the names of the
Lord Admiral and registrar being written at the beginning of the book,
which is now remaining with Mr Selden, and is of no less authority than
antiquity.”
[736] _State Papers, Dom._, _Interregnum_, xxix. 48.
[737] Masson, _Life of Milton_, iv. 149, 226.
[738] _Of the Dominion or Ownership of the Sea, written at first in
Latin and entituled_ Mare Clausum seu De Dominio Maris _by John Selden,
Esqr: translated into English and set forth with some Additional
Evidences and Discourses_ by Marchamont Needham. Published by special
Command, London, 1652. Another edition, by “J. H. Gent,” was published
in 1663, “perfected and restored.” It is, however, so far as Selden’s
text is concerned, merely Needham’s translation, careful inspection
showing that it was printed from the same type.
[739] _State Papers, Dom._, _Interregnum_, xxxiv. 31-49; vol. 33, No.
14. The copy belonging to Cromwell, and bearing his autograph, was sold
in 1908.
[740] In some dedicatory verses Neptune thus addresses the Great
Commonwealth of England:--
“Go on (great State!) and make it known
Thou never wilt forsake thine own,
Nor from thy purpose start:
But that thou wilt thy power dilate,
Since Narrow Seas are found too straight
For thy capacious heart.
So shall thy rule, and mine, have large extent:
Yet not so large, as just, and permanent.”
The work appeared when Tromp was lord of the narrow seas; the preface
is dated 19th November, the day before Blake’s defeat.
[741] _De Dominio Serenissimæ Genvensis Reipublicæ in Mari Ligustico._
Rome, 1641.
[742] _Maris Liberi vindiciæ adversus Petrum, Baptistam Burgum
Ligustici Maritimi Dominii Assertorem._ Hagæ Comitum, 1652.
[743] Cap. vi. p. 118. See _supra_, p. 367.
[744] _Joannis Seldeni vindiciæ secundum integritatem existimationis
suæ, per convitium de Scriptione Maris Clausi, petulantissimum
mendacissimumque insolentius læsæ in Vindiciis Maris Liberi adversus
Petrum Baptistam Burgum, Ligustici Maritimi Dominii assertorem. Hagæ
Comitum jam nunc emissis._ London, 1653.
[745] _Maris Liberi Vindiciæ adversus Gulielmum Welwodum Britannici
Maritimi Dominii assertorem._ Hagæ Comitum, 1653. Other works were
Mord. von der Reck, _Disputatio juridica de Piscatione_, 1652; Martin
Schook, _Imperium Maritimum_, Amsterdam, 1653; Stephen S. Burman, _Mare
Belli Anglicani injustissimè Belgis illata_, Helena, 1652. The latter
contains a pretty full account of the old “Burgundy” treaties, and of
others concluded by England with various countries in the seventeenth
century, in which, as the author points out, no claim was made to the
sovereignty of the seas.
[746] For example, Robinson, _Briefe Considerations concerning the
Advancement of Trade and Navigation_, 1649.
[747] Stubbe, _A Further Justification_, 91.
[748] Geddes, i. 282, 289, 292. Gardiner, ii. 128, 183, 329. Aitzema,
iii. 804.
[749] Geddes, i. 315. Gardiner, ii. 340. _Verbael gehouden door de
Heeren H. van Beverningk, W. Nieuport, J. van de Perre, en A. P.
Jongestal, als Gedeputeerden en Extraordinaris Ambassadeurs van de
Heeren Staeten Generael der Vereenigde Nederlanden, aen de Republyck
van Engelandt_, i. 7, 12.
[750] Clarendon, _The History of the Rebellion and Civil Wars_, vi.
607. Gardiner, _op. cit._, ii. 111.
[751] _Verbael of the Ambassadors_, 10, 21, 35.
[752] _Ibid._, 84. Thurloe’s _State Papers_, i. 394.
[753] 21st July 1653. _Verbael_, 53.
[754] 25th July, _Verbael_, 56, 59, 62. Geddes, i. 341. Thurloe, i. 382.
[755] The Deputies to the Council, (27 July)/(6 August); reply of the
Council, 1/11 August. _Verbael_, 64, 66, 70.
[756] _Verbael_, 75, 142, 143, 150. Thurloe, i. 370, 417, 418. Geddes,
i. 362. Gardiner, ii. 350,
[757] _Verbael_, 155. “7. Dat alle schepen onder het ressort van
haer Ho. Mog. t’ huys behoorende, in alle rencontres in de Zee, aen
Oorloghschepen van de Republyck van Engelandt sullen draegen het
selvige respect, ende deselve eere doen, als sy ooit voor desen syn
gewoon geweest te doen.”
[758] Stubbe, _A Further Justification_, 92. Stubbe says he had
an account of part of the proceedings from one of the English
commissioners; he had also the use of official manuscripts.
[759] _Verbael_, 189. “Syn Excellencie ... gesyt ... dat sy daerom
voor af meenden, dat moeste vaststellen haer Reght ende Dominie in de
naeuwe Zee, ende het stuck van haere Visscherye, ende ... eyndelyck
besluytende dat die pointen van de Zee ende Visscherye geadjusteert
synde, het vordere werck seer souden faciliteren.”
[760] _Verbael_, 189, 190, 196, 198, 214.
[761] Art. xviii. _Verbael_, 203.
[762] Stubbe, _A Further Justification_, 62.
[763] Art. xv.
[764] Gardiner, _Letters and Papers_, i. 49, 170.
[765] Art. xvi. _Verbael_, 203.
[766] Art. xiv. “That the inhabitants and subjects of the United
Provinces may, with their ships and vessels, furnished as merchantmen,
freely use their navigation, sail, pass and repass in the seas of Great
Britain and Ireland, and the Isles within the same, (commonly called
the British Seas) without any wrong or injury to be offered to them, by
the ships or people of this Commonwealth, but on the contrary shall be
treated with all love and friendly offices; And may likewise with their
men of war not exceeding such a number as shall be agreed upon in this
treaty, sail, pass and repass through the said seas, to and from the
countries and parts beyond them: but in case the States-General shall
have occasion to pass the said seas with a greater number of ships of
war, they shall give three months before notice of their intentions to
the said Commonwealth, and obtain their consent for the passing of such
fleet, before they put them forth upon these seas, for preventing all
jealousies and misunderstandings between the States by means thereof.”
_Verbael_, 202.
[767] Sir H. Vane, who was the chief director of the war, is reported
to have said that the interests of the two countries “were as
irreconcilable as those of rivals, trade being to both nations what a
mistress is unto lovers; that there never could intervene any durable
peace, except both nations did unite by coalition, or the English
subjugate the others and reduce them into a province, or by strict
conditions and contrivances ensure themselves against the growth and
future puissance of the Dutch.” Stubbe, _op. cit._, 119.
[768] The Ambassadors to the States-General, 18/28 November. _Verbael_,
215. Geddes, i. 372.
[769] _Verbael_, 216, 219.
[770] _Verbael_, 229, 230, 236.
[771] See pp. 78-81.
[772] Art. xviii. “Antiqui intercursus et commercii tractatus,
provisionaliter pristinam vim et auctoritatem obtineant.”
[773] Beukelsz, who invented the modern method of pickling herrings, is
said by some to have died in 1347, by others in 1397, and by a few in
1401. Stubbe says the deputies assigned the year 1414 to the discovery,
but no year is mentioned in their report.
[774] _Verbael_, 237, 238, 240-243. Stubbe, _op. cit._, 64.
[775] The statement referred to the licenses for fishing on the Zowe.
See p. 65.
[776] Whitelock to Thurloe, 10th March 1654. Thurloe’s _Collection_,
ii. 158.
[777] Council of State Order Book, 6th Aug. 1653. _State Papers, Dom.,
Interregnum._
[778] Dumont, _Corps Diplomatique_, VI. ii. 125. “X. Subditis
Serenissimi Regis Sueciæ liberum erit, per Maria atque Littora, quæ in
Ditione hujus Reipublicæ sunt, piscari, atque Haleces, aliosque Pisces
capere; dummodo mille Navium numerum piscantes non excedant. Neque
inter piscantes ullum iis impedimentum, aut, molestia asseratur Neque
à Navibus præsidiariis hujus Reipublicæ, neque ab iis quibus Diplomate
permissum est, res suas privatim suo marte repetere, nec a piscantibus
in Boreali plagâ Britanniæ, piscationis nomine onera aliqua exigantur,
immo omnes humaniter atque amice tractentur, usque retia in Littore
siccare, quemque opus est commeatum ab eorum Locorum Incolis, justo
pretio comparare sibi licebit.”
[779] Stubbe, _op. cit._, 68. Robinson, _England’s Safety in Trades
Encrease_, 1641. Ibid., _Considerations Concerning the Advancement of
Trade and Navigation_, 1649.
[780] The Deputies to the States-General, 7/17 December 1653.
_Verbael_, 246.
[781] It may be noted that Philip Meadows now became Latin Secretary
to the Council in place of Milton. He was afterwards an extremely able
opponent of the English claims to the sovereignty of the sea, and wrote
the best book against them. See p. 524.
[782] _Verbael_, 260, 261. MS. Commentary, Stubbe, _op. cit._, 60.
[783] “Ende dat sy alleenlyck spraecken van de naeuwe Zee.”
[784] _Verbael_, 231.
[785] _Verbael_, 272.
[786] Stubbe, _op. cit._ Geddes has shown that Beverning, acting
secretly with De Witt, had clandestine communications with Cromwell as
early as 8th December, clearly with reference to the exclusion of the
Prince of Orange. _Op. cit._, i. 385.
[787] _Verbael_, 273.
[788] Ad. 15. ut ad angustum mare (quod Britannicum vocant) ibique ad
certas regulas cum distinctione locorum et littorum ita restringatur,
ut idem ille honor eademque dignitas, quæ vexilli supremi et veli
dimissione unquam delati aut observati fuerunt, in posterum adhuc
deferantur, et observentur. _Verbael_, 275.
[789] “Ende met eenen voortgaende tot het 15 Artikel raekende het
stryken van de Vlagge, &c., syn wederom gerepeteert alle de argumenten
ende redenen, die in voorige Conferentien syn geallegeert geweest,
ende wierdt ten uytersten by den Heer Generael daer in gepersisteert,
alleenlyck, dat hy die explicatie byvoeghde op haere laetste antwoorde,
daer sonder eenige distinctie van de rencontres in zee gesprooken
wordt, dat sy dat verstonden van de naeuwe Zeën die de Britannische
Zeën genoemt worden.” _Verbael_, 278, 27 December 1653/4 January 1654.
[790] _Secrete Resol. St. Generael_, 9/19 Feb. 1654. _Verbael_, 300.
[791] “Met seer scherpe woorden, ende hatelycke illatien tegensprack.”
_Ibid._, 307.
[792] _Ibid._, 320. “Angustum mare, quod vulgo Britannicum mare
appellatur.”
[793] “Tot de naeuwe Zee expresselyck gerestringeert.” _Ibid._, 288.
[794] _Verbael_, 283, 285, 289.
[795] Geddes, _op. cit._, i. 380.
[796] _Ibid._, 290, 293, 311, 319. Geddes, i. 378-393. Gardiner, _op.
cit._, ii. 368, 369.
[797] “Gelyk sy in ’t 14 van de 27 Artikelen haere Brittannische Zën
selver gedefinieert hadden.” _Verbael_, 396.
[798] “Daer op syne Hoogheyt in colere seyde, dat sonder de versoghte
elucidatie ende interpretatie, hy de Ratificatie niet konde
uytwisselen.” _Ibid._, 397.
[799] Next day Cromwell entertained the Dutch ambassadors and their
wives to a sumptuous banquet, and after dinner he passed them a paper
with the remark, “We have hitherto exchanged many papers, but in my
opinion this is the best.” It was the first verse of Psalm cxxxiii.,
which they all then sang together solemnly--
“Behold, how good a thing it is,
And how becoming well,
Together such as brethren are
In unity to dwell.”
_Verbael_, 419. Aitzema, iii. 927. Geddes, i. 422.
[800] Dumont, _Corps Diplomatique_, VI. ii. 75. _Verbael of the
Ambassadors_, 356.
[801] XIII. Item, quod naves et navigia dictarum Fœderatarum
Provinciarum, tam bellica et ad hostium vim propulsandam instructa,
quam alia, quæ alicui e navibus bellicis hujus Reipublicæ in maribus
Britannicis obviam dederint, vexillum suum e mali vertice detrahent,
et supremum velum demittent, eo modo, quo ullis retro temporibus, sub
quocunque anteriori regimine, unquam observatam fuit.
[802] Lawson, from the _Fairfax_, at Aberdeen, to the Admiralty
Committee, 13th May 1654. Same to Blackburn, 13th May. _State Papers,
Dom._, lxxi. 78, 79.
[803] Cockraine to the Admiralty Committee, 11th Aug. 1654. _Ibid._,
lxxiv. 39.
[804] Heaton to the Admiralty Committee, 15th Aug. 1654. _State Papers,
Dom._, lxxiv. 61, 62.
[805] The Skagerreef or Scaw, the north point of Jutland, Denmark.
The ships were going to the north in connection with the war between
Denmark and Sweden.
[806] Richard Cromwell, the Protector, to General Montague, 18th March
1659. Thurloe’s _Collections_, vii. 633.
[807] The Information of William Gunnell, and others, of Great
Yarmouth, 25th September 1654. _Verbael of the Ambassadors_, 600, 601.
[808] _Ibid._, 612, 614, 646, 689, 711. From the sworn depositions made
before the Burgomasters of Enkhuisen, it appears that that town had at
least 246 busses at the Yarmouth fishing in 1654.
[809] _Brit. Mus. MSS. Stowe_, 152, fol. 135.
[810] Proc. Council of State, 9th June 1654. Vice-Admiral Lawson, in
transmitting to the Admiralty the request from the Governor of Calais,
said it had been the practice for the French and Spanish men-of-war to
suffer the fishermen of each nation to fish freely, although the war
between these Powers had lasted so long. _State Papers, Dom._, xcviii.
13.
[811] Bills to repeal it were introduced into the Commons in 1656,
1657, and 1658. _Commons’ Journals_, vii. 451, &c.
[812] _An Act for the Encouraging and Increasing of Shipping and
Navigation_, 12 Car. II., c. 18, cl. v. 1660.
[813] _An Act for the Encouragement of Trade_, 15 Car. II., c. 7, ss.
xiii., xiv. 1663.
[814] _An Act against importing Cattle from Ireland and other parts
beyond the Seas, and Fish taken by Foreigners_, 18 & 19 Car. II., c.
2, s. ii. Any ling, herring, cod, pilchard, fresh or salted, dried or
bloated, or any salmon, eels, or conger, taken by aliens and brought
into the realm, were liable to be seized by any person for his own
benefit and the benefit of the poor of the parish. The prohibition to
import stockfish and live eels was withdrawn by 32 Car. II., c. 2, 1680.
[815] “To the High and Mighty Monarch Charles ye Second, &c., the
humble petition of Simon Smith, late agent for the Royall Fishing,” MS.
prefixed in a copy of _The Herring-Bvsse Trade_, and _A True Narration
of the Royall Fishings of Great Brittaine and Ireland_, bound together
in vellum, elaborately ornamented in gold, and bearing the royal arms
and the letters C. R. on both sides.
[816] Sir Edward Nicholas to the Lord Mayor, 23rd July 1660.
_Remembrancia_, p. 143. There is an undated copy among the State Papers
(_Domestic_) erroneously calendared under September 1662 (vol. lix.
6: compare vol. xli. 19, under date September 1661). The original is
in the Guildhall. Simon Smith was employed in the preliminary work
connected with the Society, and in 1662 rendered an account of his
disbursements, amounting to £456, including £150 “for setting the poor
to work so as to breed up teachers for making nets, &c.” _State Papers,
Dom._, liv. 77.
[817] _Commons’ Journals_, viii. 179. _State Papers, Dom._, Charles
II., xxi. 27.
[818] _Commons’ Journals_, viii. 203, 215, 222, 228. _Lords’ Journals_,
xi. 228_b_. According to the Dutch ambassador, the Bill was not passed
without much debate and opposition (De Witt’s _Brieven_, iv. 68), no
doubt principally owing to the provisions concerning fish-days. An
amendment was carried limiting Wednesday to be a fish-day in all inns,
taverns, and victualling houses.
[819] _Lords’ Journals_, xi. 239. De Witt’s _Brieven_, iv. 66. The
preamble was of the usual kind: that the honour and greatness of the
king and the power and wealth of the kingdom depended upon shipping and
commerce, the fisheries being one of the greatest means thereto; and
it proceeded to say that the kingdom was specially suited for fishery
by reason of the number of harbours, and the sea from which foreign
nations took such great wealth, set their people on work, and made
their towns populous and prosperous. The foreigners were not content
with a temperate and moderate exercise of the liberty of fishing on
our coasts, which was permitted to them by favour of the king, but
fished with illegal instruments which served to destroy the brood of
fish in some places, causing the greatest poverty; and in other places
they came with whole fleets among the nets and boats of subjects, to
the great damage and hindrance of their lawful business. The king was
therefore most humbly beseeched to establish completely and vigorously
and maintain the rights of his crown over the seas, and to give such
orders and instructions to the admirals and commanders at sea as might
be necessary to this effect. The first clause prohibited trawling,
whether by subjects or foreigners, within eight miles of the coast of
Sussex and the coast to the westwards, and other clauses prohibited the
use of set-nets or other nets with small meshes on the coast “or within
half seas over,” or the use of seines by foreigners within ten miles of
any part of the coast to the hindering of subjects in their fishing.
Offenders were to be brought in as prize. These provisions were in part
aimed against the French.
[820] _Act for the Fishings and Erecting of Companies for promoting the
same_, 12th June 1661. _Acta Parl. Scot._, vii. 259.
[821] _Records Convent. Roy. Burghs_, iii. 523, 15th September 1660.
The commissioners, taking into consideration how advantageous it would
be to the increase of trade and the common weal of the whole burghs
and kingdom “that the fisching tread be erected within the samyn, and
wnderstanding by thair registeris and wther paperis in thair clarkis
handis that the said tread hes bein endevoured in former tymes but not
takin full effect,” instructed that the records be searched, and the
matter represented to Parliament.
[822] _Rec. Conv. Roy. Burghs_, iii. 626. _Acta Parl. Scot._, vii. 64,
103, 195, &c. _Ibid._, William and Mary, c. 103.
[823] _State Papers, Dom._, xli. 20.
[824] ΙΧΘΨΟΘΗΡΑ, _or the Royal Trade of Fishing, Discovering the
inestimable Profit the Hollanders have made thereof, with the vast
Emoluments and Advantages that will redound to his Sacred Majesty and
his three Kingdoms by the Improvement of it. Now seasonably published
by Command for the Benefit of the Nation._ London, 1662.
[825] _State Papers, Dom._, 1663, lxxiii. 56; lxxxvi. 104, 105, 106;
xci. 53; ciii. 130; cix. 2. “But Lord!” says Pepys, “to see how
superficially things are done in the business of the Lottery, which
will be the disgrace of the Fishery, and without profit.” _Diary_, iv.
369 (ed. 1893).
[826] _Commons’ Journals_, viii. 378, 383. 14 Car. II., c. 28.
[827] Lord Southampton to the Masters of the Trinity House, 31st
July 1662. The Masters to the Lord Treasurer, 23rd August. The Lord
Treasurer to the king, 2nd Sept. _State Papers, Dom._, lix. 7; _Entry
Book_, vii. 258. Pepys’ _Diary_, ii. 403, 404.
[828] _Commons’ Journals_, viii. 497, &c. _Lords’ Journals_, xi.
555, &c. 15 Car. II., c. 16. All herrings, white or red, were to be
“justly and truly packed, and of one time of taking, salting, saving,
or drying, and equally well packed in the midst and every part of the
barrel.” This was to be done by a sworn packer, and the barrel branded
after the Dutch method.
[829] John Collins, _Salt and Fishery_, 2. 1682.
[830] _State Papers, Dom._, ciii. 130.
[831] _Diary_, vol. iv. 177, 192, 233, 263, &c.
[832] The ambassadors were Van Beverwaert (Louis of Nassau), Simon van
Hoorn, the burgomaster of Amsterdam, Michael van Gogh, and Joachim
Ripperda. Pontalis, _John de Witt_, i. 263. _Brieven, geschreven
ende gewisselt tusschen de Heer Johan de Witt, Raedt-Pensionaris
en Groot-Segelbewaerder van Hollandt en West-Vrieslandt, ende de
Gevolmaghtigden van den Staedt der Vereenigde Nederlanden_, &c., iv. 1,
46.
[833] De Witt’s _Brieven_, iv. 109, 119. Clarendon’s _Memoirs_, iii.
434. There are numerous papers referring to these negotiations and
the subsequent treaty, including “the articles which the States’
Ambassadors Extraordinary are to procure from his Majesty of Great
Britain,” among _State Papers, Foreign Treaty Papers (Holland)_,
1651-1665, Bdl. 46.
[834] _Res. Holl._, 13th Sept. 1659, 261. _Ibid._, 1660, p. 749; 1661,
p. 181.
[835] _Hollantsche Mercurius_, 1661, pp. 9, 10. De Witt’s _Brieven_,
iv. 48, 61, 68, &c.
[836] De Witt to Van Beuningen, 27 December 1660/6 January 1661; the
same to Van Beverwaert and Van Hoorn, 4/14 Jan. 1661; Van Beverwaert
to De Witt, 3/13, 4/14 Jan. 1661. _Brieven_, i. 344; iv. 65, 66, 68.
Pontalis, _John De Witt_, i. 267.
[837] “Dutch Amb^{rs} Memoriall desiring the Act of Parliament
about fishing may not pass,” 17th Dec. 1660. Copy in _S. P., Dom._
Collection, Chas. II., vol. 339, p. 581. It is to the effect that
the extraordinary ambassadors were informed that a Bill had been
introduced into the Lower Chamber regarding the herring fishery, in
which foreigners were to be prohibited from fishing within eight or
ten “leagues” (“huiet ou dix lieuës”) from the coast, and praying the
king to prevent the said Bill from becoming an Act of Parliament.
It contains the usual arguments as to immemorial possession, treaty
rights, &c.
[838] _Brieven_, i. 344; iv. 66, 69, 81, 87, 89, 105, 109.
[839] Boreel to De Witt, (25 Nov.)/(5 Dec.) 1653. _Ibid._, i. 54.
[840] Letters from Van Beuningen to De Witt, 1/11 Feb. 1661 to (20
Feb.)/(2 March) 1662; from De Witt to Van Beuningen, 3/13 Oct. 1661 to
12/22 March 1662. _Brieven_, i. 432-514. _Secreete Resolutiën van de
Staaten van Holland en West-Vriesland_, ii. 246. Pontalis, _John de
Witt_, i. 276. Pontalis scarcely grasps the question of the fishery
when he says: “The free right of fishing still more directly concerned
the States-General; they could not prevail in England to allow them
the enjoyment of it, _so long as it had not been accorded to them by
France_, and they therefore made it a condition of their treaty with
Louis XIV.”
[841] Dumont, _Corps Diplomatique_, VI. ii. 412. Aitzema, _Saken
van Staet en Oorlogh_, x. 305. The article was as follows: “IV.
L’obligation reciproque de s’entr’aider et deffendre, s’entend aussi
pour estre Sa Majesté et lesdits Seigneurs Estats Generaux, leurs Pays
et Sujets, conservez et maintenus en tous leurs Droits, Possessions,
Immunitez et Libertez, tant de Navigation, que de Commerce et Pêche,
et autres quelconques par Mer et par Terre, qui se trouveront leur
appartenir par le Droit commun, ou estre acquis par des Traitez faits
ou à faire, en la maniere susdite, envers et contre tous Roys, Princes,
Republiques, ou autres Estats Souverains,” &c.
[842] “Herr Downingh de voorsz. antwoorde begonde te justificeren,
door de gepretendeerde Souverainiteyt van de Engelschen op de Zee,
... ende hebbe ick rondt uyt verklaert, dat eer wy die imaginaire
Souverainiteyt souden erkennen, ofte by maniere van concessie van de
Engelschen ontfangen, die vryheydt tot het bevaeren ende bevisschen van
de Zee, die ons van de nature, ende nae ’t Volckeren-reght competeerde,
wy alle den laetsten druppel bloedt daer by souden laeten.” De Witt to
Van Beverwaert and Van Hoorn, 14/24 June 1661 (_Brieven_, iv. 144); the
same to Van Beuningen, 4/14 Dec. 1661 (_ibid._, i. 471).
[843] Dumont, _op. cit._, VI. ii. 424. “X. Item, quod naves et navigia
dictarum Fœderatarum Provinciarum, tam bellica et ad hostium vim
propulsandam instructa, quam alia, quæ alicui e navibus bellicis dicti
Domini Regis Magnæ Britanniæ in maribus Britannicis obviam dederint,
vexillum suum e mali vertice detrahent, et supremum velum demittent, eo
modo quo ullis retro temporibus, unquam observatam fuit.”
[844] _State Papers, Dom._, lv. 14.
[845] _State Papers, Dom._, xliv. 64. Pepys’ _Diary_, ii. 135, 151.
According to Rugge (_Brit. Mus. Add. MSS._, 10, 116), quoted by Lord
Braybrooke, Holmes insisted upon the Swede’s lowering his flag, and
had even fired a shot to enforce the observance; but the ambassador
sent a message to the English frigate to assure the captain, on the
word of honour of an ambassador, that the king by a verbal order had
given him leave and a dispensation, and upon this false representation
he was allowed to proceed. The Swedes, it may be added, were always
disinclined to strike to English ships.
[846] Pepys’ _Diary_, ii. 145, 146, 148, &c.
[847] Pontalis, _op. cit._, i. 313. It would appear that on a previous
occasion Lawson had returned the salute with the flag, for in the
controversy with France on the striking of the flag a few years later,
the Dutch stated, as an instance of the custom with England, that
Lawson had shown this courtesy to De Ruyter off Tangiers. De Witt’s
_Brieven_, ii. 474.
[848] _Commons’ Journals_, viii. 548, 553; _Lords’ Journals_, xi. 599,
614; _Parlt. Hist._, iv. 291, 308; Clarendon’s _Memoirs_, ii. 235-237,
288; Hume, _Hist. of England_, lxiv.; Pepys’ _Diary_, iv. 31, 42, &c.;
Pontalis, _John de Witt_, i. 309.
[849] _The Dutch Drawn to the Life_, 1664. “Never was anything so
unanimously applauded by men of all persuasions and interest as a Dutch
Warre, which is the universal Wish of the people.”
[850] 16 & 17 Car. II.
[851] The king to the Duke of York, 22nd March 1665. _State Papers,
Dom._, cxv. 76.
[852] The author of _The Dutch Drawn to the Life_ expatiated on
the inestimable benefit the Dutch derived from the British seas
by encroaching on our fisheries, and asserted that the only way
to keep them under was “by commanding the narrow sea, their coast
and ours,”--the narrow sea, according to this writer’s view, or at
least the “right and dominion of England,” extending as far as the
Mediterranean (p. 75).
[853] See Mahan, _The Influence of Sea Power upon History_; Colomb,
_Naval Warfare_; Pontalis, _op. cit._; Clarendon’s _Memoirs_, ii. 111.
[854] _Groot Placaet-Boeck, inhoudende de Placaten ende Ordonnantien
van de H. M. Heeren Staten Generael der Vereenighde Nederlanden_, iii.
291-293. _Resol. Holl._, 1665, 24, 59, 78, 210, 383. _State Papers,
Dom._, cxiv. 104. _Ibid._, _Warrant Book_, 18, p. 213; 23, pp. 283,
475. _Ibid._, clxxviii. 172.
[855] _S. P., Dom._ Collection, Chas. II., vol. 339, p. 591. It is a
copy in English. The petition was from the “Burgomasters, Eschevins,
Counsellors, and the rest of the body of Citizens.”
[856] “Warrant to ye Lord Chancellor for affixing ye great seale to an
instrument containing a grant of fishinge in these seas for a certain
number of boates belonging to ye City of Bruges, yearely,” July 17,
1666. _State Papers, Warrant Book_, 23, p. 27. “Patent in favour of the
Citie of Bruges in fflanders for a libertie of fishing in the British
Seas with 50 saill of ships,” 29th August 1666. _Advoc. MSS._, 25.
3. 4. The draft or copy of the Royal Letter which followed upon the
Warrant is given in Appendix N.
[857] See p. 617.
[858] _Resol. Holl._, 11/21 Jan. 1665, p. 54. _Hollantsche Mercurius_,
15th Oct. 1665, p. 143. _State Papers, Dom._, 4th Nov. 1665, cxxxvi. 35.
[859] _Groot Placaet-Boeck_, iii. 295, 296.
[860] _State Papers, Dom._, clxvi. 8, 46, 77, 100; clxvii. 148; clxxv.
146; clxxxi. 113.
[861] _Ibid._, clxxi. 30; clxxii. 7, 41. At the Yarmouth fishing this
year (1666) “the sea was fuller of herrings than was ever known”; no
sooner were the nets in the water than they were full of fish, and many
herrings had to be thrown overboard, so that it was locally rhymed,
“twelve herrings a penny fills many a hungry belly.” The exceptional
abundance was attributed by the fishermen to the war having practically
put a stop to the Dutch fishing off our coast, so that the shoals
came to the inshore grounds in a body and not broken up. The herring
fishing was also unusually successful during the third Dutch war. In
1666, however, the herring fishing in Ireland was likewise uncommonly
productive. _Ibid._, clxxiv. 52, 100, 129, 156; clxxv. 49.
[862] _Resol. Holl._, 21 June/1 July 1667, p. 210. _State Papers,
Dom._, ccxvi. 143; ccxvii. 77.
[863] De Witt to Van Beuningen, 12/22 July 1666 to 18/28 July 1667;
Van Beuningen to De Witt, (21 June)/(1 July) 1666 to 12/22 July 1667.
“Raisons par lesquelles il paroît, que le contre-salut du Pavillon,
aux rencontres des Flotes de Sa Majesté Très-Chrétienne et des États
Généraux, est d’une justice toute évident.” De Witt’s _Brieven_, ii.
473, &c. Pontalis, _op. cit._, i. 353.
[864] _Articles touching Navigation and Commerce, concluded at Breda_,
21/31 July 1667.
[865] “Dat de scheepen van oorlois (_sic_) van den Coninck van Groot
Brittannien door die van desen staet met het strijcken van de vlagge
gesalveert werdende, van haere sijde vervolgens met het strijcken van
haere vlagge contra salueren sullen.” Extract from _Secret Resolution,
States-General_, 11th May 1667, Instructions to Ambassadors. _Treaty
Papers (Breda)_, 1667, Bdl. 73.
[866] Art. xix. See p. 455. Van Beuningen to De Witt, 5/15 April 1667.
De Witt to Van Beuningen, 18/28 April, 20/30 June, (27 June)/(1 July)
1667. _Brieven_, ii. 483, 487, 528, 533.
[867] _Treaty of Breda_, Art. vii. It may have been in connection with
the interpretation of this clause that the High Court of Admiralty
asked the Trinity House their opinion as to the end of the English
Channel westwards, and got the following answer: “We shall not
presume,” said the Masters, on 2nd January 1668, “to determine matters
that have for some ages past been controverted, and for anything that
we at present know have not had a full resolution or any precedent
for deciding questions relating thereunto;” but the opinion of “the
past and present age,” with which they concurred, was that when
any commander brought Scilly N.N.W. he had entered “the Channel of
England.” _Brit. Mus. Add. MSS._, 30,221.
[868] _Treaty of Peace and Alliance between Charles I. and Louis XIV.,
concluded at Breda_, 21/31 July 1667. Article xvii.
[869] _Treaty of Peace and Alliance between Charles II. and Frederick
III., concluded at Breda_, 21/31 July 1667. Art. ii.
[870] In the negotiation of subsequent treaties, controversy was
usually occasioned about the wording of these articles relating to
the date of cessation of hostilities on the sea, the United Provinces
or France pointing to the treaty of Breda as a precedent, while the
English took their stand on Cromwell’s treaty of 1654. In the treaty
of Ryswick in 1697, between the United Provinces and France, the term
“British Channel” was employed in conjunction with the Baltic and North
Sea (Art. ii.); and in the treaty between William III. and Louis,
signed at Ryswick on the same day, the words were “in the British and
North Seas, as far as the Cape St Vincent” (Art. x.) In the negotiation
with France in 1712 for a suspension of hostilities, the French
insisted on the words, “the seas which surround the British Isles,”
citing the treaty of Breda, while the British were equally obstinate
to have the term _in maribus Britannicis_ inserted, as in the treaty
of 1654, arguing that the “error” of Breda had been rectified in the
later treaty of Ryswick; the result being that in one article “the
Channel, the British Sea, and the North Sea” were specified, and in
another the phrase was “in the Channel and North Sea.” Dumont, _Corps
Diplomatique_, VIII. i. 306. Burchett, _A Complete History of the Most
Remarkable Transactions at Sea, &c._, p. 38.
[871] See p. 474.
[872] This was the farthing known later as the “Lucas farthing,” from
the gibes of Lord Lucas in his attack on the king’s policy made in the
debate on the Subsidy Bill in the House of Lords in 1670. Speaking
of the scarcity of money in the kingdom, he said: “What supply is
preparing for it, my Lords? I hear of none, unless it be of copper
farthings; and this is the metal that is to indicate, according to the
inscription on it, ‘The Dominion of the Four Seas.’” _Parl. Hist._, iv.
473.
[873] “Omtrent het point van de Vlagge, saegen wy alhier seer gaerne
iets seeckers gedetermineert, ten minsten dat wy moghten weten waer
mede men buyten nieuwe feytelyckheydt ende Oorloge konde verblyven; dat
een Fregatje ofte een Kitsje een gantsche Oorloghs-Vloote soude doen
strycken, is notoirlyck intolerabel.” De Witt to Meerman, 12/22 June
1668. The same to the same, (29 Feb.)/(9 March), 3/13, 7/17 April, (24
April)/(4 May), (22 May)/(1 June) 1668. De Witt to Meerman and Boreel,
17/27 March, (29 May)/(8 June) 1668. Meerman to De Witt, (28 March)/(7
April), 6/16 June 1668. De Witt’s _Brieven_, iv. Sir William Temple to
Lord Arlington, 2/12 Feb., 6/16 March 1668; the same to the Lord-Keeper
Bridgeman, (25 Oct.)/(4 Nov.) 1668. _Works_, iii. 134, 199, 348.
_State Papers, Dom._, 1668, ccxxxv. 49, 62; _ibid._, 1665, cxxiii. 67.
Aitzema, _Saken van Staet en Oorlogh_, v. 390.
[874] The king to the Duke of York, 31st Oct. 1669. _State Papers,
Entry Book_, 31, fol. 37.
[875] Pepys’ _Diary_, 20th Dec. 1668, viii. 184.
[876] Pontalis, _op. cit._, ii. 24.
[877] The king to the Duke of York, 26th June 1669. _State Papers,
Entry Book_, 31, fol. 29. Instructions by the Duke of York to Sir
Thomas Allin, 6th July 1669. _Ibid._, cclxii. 120. A marginal
memorandum on the latter document says, “This rule was adjusted with
Colbert, the French Ambassador here, _but nothing passed in writing but
this_.”
[878] _State Papers, Dom._, 1669, cclxi. 82-87.
[879] _State Papers, Dom._, 1668, ccli. 191; 1670, cclxxiv. 157;
cclxxv. 43; cclxxvi. 206; cclxxxi. 15; 1671, ccxc. 5, &c. Temple’s
_Memoirs_, iii. 433. Justice, _Dominion and Laws of the Sea_, 298.
[880] Bynkershoek, _De Dominio Maris_, cap. ii. iv. As elsewhere
explained (p. 557), it was this custom which helped to prepare the way
for the acceptance of the principle that now determines the extent of
the territorial sea on an open coast--viz., the range of guns.
[881] Hume, _Hist, of England_, c. lxv. Temple’s _Memoirs and Letters_.
Pontalis, _John de Witt_. Macaulay, _Hist._, i. c. ii.
[882] _Parl. Hist._, iv. 456. Hume, _op. cit._
[883] De Witt’s _Brieven_, iv. 837. Pontalis, _op. cit._, ii. 122.
[884] Sir Leoline Jenkins to Sir Thomas Allin, Admiral of the Blue
Flag, 8th Oct. 1670. _Life of Sir Leoline Jenkins_, ii. 699.
[885] _Brit. Mus. Add. MSS._, 30,221, ff. 46_b_, 48_b_.
[886] _Brit. Mus. Add. MSS._, 30,221, fol. 47_b_. The affidavits of
three English sailors who witnessed the meeting of the _Merlin_ and
the two Dutch convoyers off Flamborough. The sailors swore “that they
exchanged guns but did not strike their flags, but went away with their
flags abroad.” This evidence was obtained to magnify the offence; the
position assigned, “off the Flamborough,” makes its value doubtful.
[887] “A Draft made by Sir Leoline Jenkins about the King’s Sovereignty
in the British Seas.” _Brit. Mus. Add. MSS._, 30,221, fol. 46_b_.
Undated, but probably referring to this case.
[888] Sir William Temple to Sir John Temple, 14th Sept. 1671. _Works_,
iii. 501. Pontalis, _John de Witt_, 126, 127. Hume, _Hist. of England_,
cap. lxv. _State Papers, Dom._, 1671, ccxcii. 45, 77, 78, 81, 215.
Evelyn’s _Diary_ (ed. 1850), ii. 69. _Brit. Mus. Add. MSS._, 30,221.
[889] Pontalis, _op. cit._, ii. 130, 134. Hume, _op. cit._, cap. xlv.
Sir William Temple to his brother, 23rd May 1672. _Works_, iii. 505.
Clarendon’s _Memoirs_, ii. 289. _England’s Appeal_, p. 22. _State
Papers, Entry Book_, 24, fol. 54. _Ibid._, _Dom._, 1671, ccxciv. 127;
1672, cccii. 55, 112, 233; ccciii. 206. _Entry Book_, 34, f. 147.
It was in connection with the offers of the Dutch on this occasion
or a little later in the year that Sir Leoline Jenkins made the
following pronouncement as to the king’s rights to the dominion of
the seas. He was asked by Secretary Coventry “what his Majesty, his
heirs and successors, Kings of England, may reasonably pretend to
be signified by these words, _en la pleine et entiere joüissance du
droit de pavillon_”? Jenkins replied (1) that the King of England for
the time being was Lord of these seas, where he had the right of his
flag acknowledged, and that these seas were, as much as that watery
element is capable of being so in its nature, no less a domain of the
Crown than the Honour of Greenwich or the Manor of Eltham; (2) that
the _droits souveraines_ of the king in his seas against strangers had
all the legal requisites of a prescription beyond the memory of man,
and did not consist in one individual point, as for instance in having
the flag struck to, or in having the liberty of fishing acknowledged
by yearly sums of money; but in all the several rights, honours, and
perquisites that a sovereignty is capable of producing, and have been
enjoyed by former kings of England, with this difference from all
_seigneuries_ that move from a _mesne_ Lord, or Lord Paramount, that
our kings hold this as they do their crown, from God alone, and by
their sword. _Life_, ii. 697.
[890] The account was brought to Court by Lieutenant Churchill,
afterwards the great Duke of Marlborough, who was serving under Lord
Ossory.
[891] Pontalis, _op. cit._, ii. 239. Hume, _loc. cit. State Papers,
Dom._, _Entry Book_, 24, f. 57; _ibid._, 34, f. 164; cccii. 130;
ccciii. 26, 72, 211-218; ccciv. 9, 11, 20, 21, 25, 36; cccvii. 169;
_Foreign Entry Book_, 21, ff. 1, 9.
[892] Hume, _loc. cit._ Pontalis, _loc. cit._ Temple’s _Works_, i. 175;
iii. 505. _Parl. Hist._, iv. 512. _Hollantsche Mercurius_, 1672, p. 50.
Dumont, _Corps Diplomatique_, VII. i. 163. _State Papers, Dom._, cccii.
210; ccciv. 21, 22; cccvi. 27; _Entry Book_, 31, f. 90. _Ibid._, 34, f.
157.
[893] Mahan, _op. cit._ Colomb, _op. cit._
[894] 9/19 March, 5/15 Sept. 1672. _Groot Placaet-Boeck_, iii. 292,
298. The embargo was renewed in the next year.
[895] _State Papers, Dom._, cccxv. 108, &c.; cccxvi. 43.
[896] Dumont, _Corps Diplomatique_, VII. i. 206. Hume, _op. cit._,
c. lxv. In _State Papers, Foreign, Treaty Papers_ (_Breda_), 1667,
Bdl. 73 (as at present arranged), are a number of papers belonging to
these negotiations and the later ones at Cologne in 1673, consisting
mostly of draft articles, with copious notes by the plenipotentiaries.
In one, marked “1st project as framed,” Art. xiv. refers to the flag
as follows, the words in brackets being inserted here from a second
copy: “That the ships and vessells of the United Provinces, as well
men-of-war as others, be they single ships or in Fleets how great
soever, meeting in any part within ye Brittish seas, with any one of ye
ships of war (yachts) or other vessells w’soever of ye said K. of Gr.
Brittain, or in his service and wearing his flagg, colours (or Jack)
shall strike their flaggs and lower their Topsailes untill they be
passed by, as a Ancient and undoubted Right belonging to the said K.,
and which hath been payd and performed to his R^{ll} progenitors in all
times.” The fishery article (xxiv.) was as follows, the words within
brackets being taken from another copy, to fill up a blank: “And the
said States acknowledging his said Maj^{ts} ancient and undoubted Right
in the Brittish Seas, as they do hereby own and acknowledge ye same,
Doe further promise and agree, that they and their successors will from
henceforth pay to his said Maj. his Heirs and successors, for euer,
at the Receipt of his Exchequer, a yearly sum̄ of ... (10^{mte}--as
likewise ye yearly summe of 2^{mt} sterling by ye yeare at ye Receipt
of his Ma^{tys} Treasury of his Kingdom of Scotland) ... sterling by
the year, in consideration of his Maj^{ts} license and permission to
them and their subj^{ts} to fish in the said seas and upon his Ma^{tys}
coasts.” Another article (xxv.) provided for the payment of £1,000,000
for the charges of the war, £400,000 in the following October, and the
remainder later.
[897] Hume, _loc. cit._ Temple’s _Memoirs_, i. 166. _State Papers,
Dom._, cccxi. 75, 82, 206; cccxiii. 233. _Commons’ Journals_, ix. 246.
Dumont, _op. cit._, VII. i. 206. _Hollantsche Mercurius_, 1672, p. 265.
[898] _Brief Animadversions on, Amendments of, and Additional
Explanatory Records to the Fourth Part of the Institutes of the Lawes
of England, concerning the Jurisdiction of Courts, compiled by the late
famous Lawyer, Sir Edward Coke, Knight, &c._, 1669.
[899] England’s _Improvement Reviv’d: Digested into Six Books_, 1670.
[900] Roger Coke, _A Discourse of Trade_, 1670.
[901] William de Britaine, _The Dutch Usurpation, or a Brief View of
the Behaviour of the States-General of the United Provinces towards the
King of England_, 1672.
[902] _State Papers, Dom._, cccviii. 143.
[903] _A Justification of the Present War against the United
Netherlands, wherein the Declaration of his Majesty is vindicated, and
the War proved to be Just, Honourable, and Necessary; the Dominion of
the Sea explained, and his Majesty’s Rights thereunto asserted; the
Obligations of the Dutch to England, and their continual Ingratitude:
Illustrated with Sculptures. In Answer to a Dutch Treatise entitled,
Considerations upon the Present State of the United Netherlands._ By an
English Man, 1672.
[904] 8th July 1872. _State Papers, Dom._, cccxii. 166.
[905] Benson to Williamson, 28th June, 9th July 1672. Stubbe to
Williamson, 8th July. _State Papers, Dom._, cccxii. 45, 166, 184. The
warrant was to Mr Thurloe and Mr Bish of Lincoln’s Inn. Stubbe made
considerable use of the book, citing it as “MSS. Commentary of the
Treaty and Articles betwixt the English and the Dutch in 1653.”
[906] _A Further Justification of the Present War against the
United Netherlands, illustrated with several Sculptures._ By Henry
Stubbe, a lover of the Honour and Welfare of Old England, &c., 1673.
Unfortunately for Stubbe, he tried his hand on another line, and was
arrested and imprisoned in the same year for denouncing, in his “Paris
Gazette,” the Duke of York’s marriage with Princess Mary of Modena.
[907] _Life of Sir Leoline Jenkins_, i. 3. For the use of the
plenipotentiaries a volume of transcripts of documents, mostly State
Papers, and chiefly in the handwriting of Williamson’s clerks, was
prepared, dealing with the claims to the sovereignty of the sea in its
various phases. It comprised 613 folio pages, and forms volume 339
of the Domestic series of Charles II. There is a long memorandum in
regard to the striking of the flag, consisting for the most part of
brief paragraphs reciting precedents (and many of them are omitted),
and arranged under the following heads: (1) Strikeing in Generall; (2)
Whole Fleets to Single Ships and a Greater Number to a Lesser; (3) Till
they be passed by to keepe downe their Flag in sight of ye English;
(4) Within the Brittish Seas, What the Brittish Seas are, &c., where
done, &c. What Places esteemed according to this Practice to be within
ye Brittish Seas; (5) This done as a Duty and Right and not only as a
Civillity. Some of the papers have notes on them, apparently penned by
the ambassadors at Cologne.
[908] In one of the papers in the volume provided for the use of the
ambassadors, containing a copy of the fishery article put forward by
Cromwell in 1653 and afterwards withdrawn, is the following, with
a sidenote referring to the “king’s instructions to the special
ambassadors”: “Lastly, that y^e subiects of y^e States generall shall
for y^e future abstayne from fisheing vpon y^e Countreys and shores of
any of his Ma^{tyes} Dominions w^{thout} leaue and Passeports first
obtayned. One thing more I must obserue to you relating to those six
propositions particularly that of y^e fishery. In his Ma^{tyes} former
Instructions to you vpon that Point you were bid to consent to y^e
leauing out that Article in case y^e Dutch should be obstinate vpon
it. But his Ma^{ty} by progress of tyme finding that his Subiects seem
fonder thereof, bids me now to direct you to insist vpon that, as vpon
y^e rest and to frame it as neare as you can according to y^e Words set
down in y^e Reply.” Then after Cromwell’s article is the following: “Ye
Art. of the Fishery as contained in y^e Project, 1673.” It is the same
as that given in the previous year (note, p. 491),--the part referring
to the contribution of £2000 for Scotland being interpolated,--except
that it concludes with this sentence, “In w^{ch} fisheing y^e said
States shall oblidge themselues that their Subiects shall not come
w^{th}in one league of y^e shoares of England and Scotland,” which is
the first mention of a three-mile limit that has been discovered. Sir
Arnold Braems suggested to Arlington, in August 1673, that the king
should insist in the treaty for an annual payment of £10,000 or £12,000
for their free fishing on his coasts, and that £3000 of this should
be devoted to the bringing over of Dutch families and fishing-busses
to England, a project which was then being tried by more or less
surreptitious methods. _State Papers, Dom._, vol. 336, No. 295.
[909] See p. 461.
[910] The ambassadors to the Earl of Arlington, 8/18 Aug., (26 Aug.)/(5
Sept.), 13/23 Sept., (23 Sept.)/(3 Oct.), 3/13 Oct. 1673. _Life of Sir
Leoline Jenkins_, i. 68, 86, 87, 109, 126, 133.
[911] Penn was in error in supposing that “Finisterre” in the
subsequent treaty was _finis terræ_, and meant the Land’s End in
England (Granville Penn, _Memorials of the Professional Life and Times
of Sir William Penn_, ii. 255). It was described as “Finisterre, in
Galicia,” by the Dutch ambassadors in 1668. See p. 469.
[912] The ambassadors to Arlington, (29 Aug.)/(8 Sept.), 2/12, 13/23
Sept., (23 Sept.)/(3 Oct.), 3/13 Oct. 1673. _Life of Sir Leoline
Jenkins_, i. 91, 95, 109, 117, 120, 125, 133.
[913] The same to the same, (24 Oct.)/(3 Nov.), 11/21, 14/24 Nov. 1673,
(23 Dec. 1673)/(2 Jan. 1674), 2/12 Jan., 3/13 Feb. 1674. _Ibid._, i.
151, 170, 171, 223, 235, 237, 279.
[914] The same to the same, 10/20 Oct. 1673 to 3/13 Feb. 1674. _Ibid._,
i. 139, &c. _State Papers, Foreign, Treaty Papers_ (_Breda_, sic),
Bdle. 73. There were prolonged discussions as to the extent of the
British seas both in regard to the article on the flag and that on the
cessation of hostilities on the sea, as shown by the very numerous
notes on the draft articles. The ambassadors were of opinion with
regard to the latter article that St George’s Channel and the sea
between England, Ireland, and Scotland were comprehended in the term
“the Channel,” a point which was left for the opinion of the king.
[915] _Commons’ Journals_, ix. 282. _Lords’ Journals_, xii. 588.
[916] P. 513.
[917] Hume, _loc. cit. Commons’ Journals_, ix. 299. Temple’s
_Memoirs_, i. 167-169. Temple to the Prince of Orange, Feb. 1674. The
same to the Duke of Florence, 11th Feb. 1674. _Works_, iv. 13, 16.
[918] “Prædicti Ordines Generales Unitarum Provinciarum debite, ex
parte sua agnoscentes jus supramemorati Serenissimi Domini Magnæ
Britanniæ Regis, ut vexillo suo in maribus infra nominandis honos
habeatur, declarabunt et declarant, concordabunt et concordant, quod
quæcunque naves et navigia ad præfatas Unitas Provincias spectantia,
sive naves bellicæ, sive aliæ, eæque vel singulæ vel in classibus
junctæ, in aliis maribus a Promontorio _Finis Terræ_ dicto usque ad
medium punctum terræ _van Staten_ dictæ in Norwegia, quibuslibet
navibus aut navigiis ad Serenissimum Dominum Magnæ Britanniæ Regem
spectantibus, obviam dederint, sive illæ naves singulæ sint, vel in
numero majori, si majestatis Britannicæ sive aplustrum, sive vexillum
_Jack_ appelatum gerant, prædictæ Unitarum Provinciarum naves aut
navigia vexillum suum e mali vertice detrahent et supremum velum
demittent, eodem modo parique honoris testimonio, quo ullo unquam
tempore aut in alio loco antehac usitatum fuit, versus ullas Majestatis
suæ Britannicæ aut antecessorum suorum naves ab ullis Ordinum
Generalium suorumque antecessorum navibus.” Art. iv. Dumont, _op.
cit._, VII. i. 253. The land _van Staten_ (which is a Dutch expression)
is the peninsula of Stadtland in N. Berghus, in 62° 5´ N. latitude. It
is probable that the English Ministers took the advice of the Trinity
House (p. 478) to consult the authors who had written on the northern
boundary of the British seas, and that the substitution of _van Staten_
for the North Cape, first made at the congress of Cologne (see p. 506),
was based upon Selden’s plate showing the British seas (_Mare Clausum_,
lib. ii., cap. i., p. 122), and which is reproduced in the frontispiece
of this book. Selden’s plate was much less liberal to the British seas
than was his text. The Dutch appellation may have been extracted from a
Dutch map.
[919] _Memoirs_, i. 170. Temple added: “Nothing, I confess, had ever
given me a greater pleasure, in the greatest public affairs I had run
through, than this success; as having been a point I ever had at heart,
and in my endeavours to gain, upon my first negotiations in Holland,
but found Monsieur De Witt ever inflexible, though he agreed with me
it would be a rock upon which our firmest alliances would be in danger
to strike, and to split, whenever other circumstances fell in to make
either of the parties content to alter the measures we had entered into
upon the triple alliance.”
[920] _Brit. Mus. Add. MSS._, 30,221, fol. 59. Some writers on
international law erroneously describe the boundaries mentioned in the
article as the boundaries of the British seas.
[921] Temple to the Duke of Ormonde, Oct. 1673. The same to the Duke of
Florence, 11th Feb. 1674. _Works_, ii. 91; iv. 19.
[922] _Life of Sir Leoline Jenkins_, ii. 697.
[923] _State Papers, Dom._, vol. ccclxxvi. 46.
[924] _State Papers, Dom._, ccclxx. 238, 245, 252.
[925] _State Papers, Dom._, ccclxxvi. 92; ccclxxix. 9. The incident
occurred on 11th November 1675, between 46 and 47 degrees latitude.
The Spanish ship “required him to strike for the King of Spaine,
and the said Cap^n Harris haueing seuerell times refused to doe it,
and required the said Ostender to strike for his Ma^{ty} of Greate
Brittain; yet neuerthelesse he, Cap^t Jos. Harris, in the time of their
convention (_sic_) about this matter, did order the Topsaile of the
said Ketch to be Lowered, w^{ch} was accordingly done, and is proued
by the depositions vpon Oath taken in Court,” &c. The court found that
by lowering his top-sails he struck to a foreigner in his Majesty’s
seas, “a great derogac͠on from his Ma^{ties} Honour, contrary to the
32th Article of the General Instrucc͠ons and punishable by the Eleventh
Article of War.”
[926] _H. O. Warrant Book_, i. 126, 144.
[927] 8th Oct. 1674. Tanner, _Catalogue of Naval MSS. in Pepysian
Library_, No. 1838.
[928] _Life_, ii. 716. Various other indictments are referred to in
_Brit. Mus. Add. MSS._, 30,221, fol. 62_b_.
[929] _Navigation and Commerce; their Original and Progress_, 1674.
[930] Evelyn’s _Diary and Correspondence_, ii. 90, 91 (ed. 1850).
[931] Evelyn to Pepys, 19th Sept. 1682. “To speake plaine truth,” he
says, “when I writ that Treatise, rather as a _philological_ exercise,
and to gratifie the present circumstances, I could not clearly satisfie
myself in sundry of those particulars, nor find realy that euer the
Dutch did pay toll or tooke license to fish in Scotland after the
contest (with Spain) from any solid proofs.... I think they neuer payd
a peny for it ... nor did I find that any rent (wheroff in my 108 page
I calculate the arrears) for permission to fish, was euer fixed by both
parties.”
[932] _De Jure Maritimo et Navali, or a Treatise of Affaires Maritime
and of Commerce_, London, 1676. Editions were published in 1682, 1690,
1744, 1769, &c. It is still quoted by writers on international law.
Molloy was the author of a work attacking the Dutch during the second
Dutch war--_Holland’s Ingratitude, or a Serious Expostulation with the
Dutch, &c._, 1666.
[933] _A View of the Admiral Jurisdiction, &c._, London, 1661; 2nd
edition, 1685.
[934] _The Jurisdiction of the Admiralty of England Asserted_, London,
1686.
[935] _England’s Great Interest_, 38. _State Papers, Dom._, cccxi. 86;
cccxv. 196 ; cccxxxvi. 295.
[936] _State Papers, Dom._, ccclxix. 263. It is endorsed by Williamson,
“Herring Fishery: Given me by ye King to keepe. Sunday, 24 Ap. 75,”
and is unsigned. Each buss was to be of 70 tons, with a master, mate,
pilot, and 12 seamen, to be all paid partly by results. The whole
charge for the first year was put at £58,537, and the earnings at
£90,000, on the assumption that each buss would catch 100 lasts of
herrings, 15,000 cod, and 10,000 ling.
[937] _State Papers, Dom._, _ibid._, 264, 265.
[938] _Memoires relating to the State of the Royal Navy of England for
Ten Years, determin’d December 1688._ London, 1690.
[939] Dumont, _Corps Diplomatique_, VII. ii. 236. Wagenaar,
_Vaderlandsche Historie_, c. lxi.
[940] Valin, _Nouveau Commentaire sur l’Ordonnance de la Marine, &c._,
ii. 689.
[941] Dumont, _op. cit._, VII. ii. 230.
[942] “Upon your meeting with any ship or ships within his Majestie’s
Seas, (which for your better guidance herein, you are to take notice
that they extend to Cape Finisterre) belonging to any foreign Prince or
State, you are to expect them in their passage by you, to strike their
topsail and take in their flag, in acknowledgment of his Majestie’s
Sovereignty in these Seas; and if any shall refuse, or offer to resist,
you are to use your utmost endeavour to compel them therto, and in no
wise to suffer any dishonour to be done to his Majesty; and in case any
of his Majestie’s subjects shall be so far forgetful of their duty,
as to omit striking their topsail as they pass by you, when it may be
done without the loss of the voyage, you are to bring them to the Flag
to answer their contempt, or otherwise to return the name of the ship
and of the master to the Secretary of the Admiralty, or the Lord High
Admiral of England, or the Commissioners for executing the office of
Lord High Admiral for the time being, as also the place whence and the
port to which he shall be bound. And you are to make the master of
such ship pay the charge of what shot you shall make at her. And you
are further to take notice that in his Majestie’s Seas his Majestie’s
ships are in no wise to strike to any; and that in other parts no ship
of his Majestie’s is to strike her flag or topsail to any foreigner,
unless such foreign ship shall have first struck, or at the same time
strike, her flag or topsail to his Majestie’s ship, except in the
harbour of some foreign Prince, or in the road within shot of cannon of
some fort or castle, where you are to send on shore to inform yourself
what return they will make to your salute. And in case you have good
assurance you shall be answered gun for gun, you are then to salute
the port as is usual; but if you shall not be well assured that you
shall have an equal number of guns returned you, you are in no wise to
salute that place. And in case the ship in which you now command shall
at the same time carry his Majestie’s flag, you are, before you salute
the place, carefully to inform yourself how flags of the same quality
with that you carry, of other Princes, have been saluted there, and you
are to insist on it being saluted with as great respect and advantage
as any flag of the same quality with yours, of any other Prince, hath
been saluted in that place, from which you are in no wise to depart.”
Art. xxxv. 1691. _State Papers, Dom._, _H. O. Admiralty_, 1, No. 14.
Justice, _A General Treatise of the Dominion and Laws of the Sea_, 595.
[943] _Regulations and Instructions relating to His Majesty’s Service
at Sea. Established by His Majesty in Council._ 2nd edition, 1734, Art.
xi. _Ibid._, 10th edition, 1766. _Ibid._, 13th edition, 1790.
[944] _State Papers, Dom., H. O. Admiralty_, 5, 1108, October 19.
[945] _State Papers, Dom., Petition Entry Book_, 3, 90.
[946] Justice, _op. cit._, 193.
[947] _State Papers, Dom., Naval_, 1769, 45. Copies of the various
papers sent from the Admiralty to the Under-Secretary of State.
Professor Laughton states that Lieutenant Smith was reinstated to a
higher rank next day. _Fortnightly Review_, Aug. 1866, p. 721.
[948] _A Complete History of the Most Remarkable Transactions at Sea,
&c._ By Josiah Burchett, Secretary to the Admiralty, 1720. Burchett’s
account and definitions were adopted by later writers, as Lediard, _The
Naval History of England_, 1735; Colliber, _Columna Rostrata; or a
History of the English Sea Affairs_, 1727; Entick, _A New Naval History
or Compleat View of the British Marine, &c._, 1757; Campbell, _Lives
of the Admirals and other Eminent British Seamen_, 1742-44. Entick
claimed for the crown the right to all the fisheries in the British
seas, the right to impose tribute on all merchant ships navigating
them, the execution of justice for all crimes committed within them,
the permitting or denial of free passage through them to foreign ships
of war, and the striking of the flag.
[949] In both it was as follows: “Art. ii. À l’égard des honneurs
du pavillon, et du salut en mer, par les vaisseaux de la République
vis-à-vis de ceux de Sa Maj. Britannique, il en sera usé respectivement
de la même manière qui a été pratiquée avant le commencement de la
guerre qui vient de finir.” Martens, _Recueil de Traités_, iii. 514,
561.
[950] Mahan, _The Influence of Sea Power upon History_, 209, 225, 510,
&c.
[951] _The Life of Richard, Earl Howe_, 200 (1838).
[952] In the _Regulations and Instructions_ issued in 1808, the article
is as follows: “XXIV. Within his Majesty’s seas his ships are not on
any account to strike their topsails, nor take in their flags; nor in
any way to salute any foreign ship whatever; nor are they, in any other
seas, to strike their topsails, or take in their flags, to any foreign
ships, unless such foreign ships shall have first struck, or shall at
the same time strike, their flags and topsails to his Majesty’s ships.”
[953] _Observations concerning the Dominion and Sovereignty of the
Seas: being an Abstract of the Marine Affairs of England._ In his
preface the author says the work was presented in manuscript to Charles
II., “and well accepted by him.” In a letter from W. Bridgeman to Sir
J. Williamson, dated from Whitehall, 13th May 1673, there was enclosed
“a paper drawne up as I remember about the beginning of this Warre by
S^r Philip Meadowes, which I find amongst other papers, and showing
it to My Lord he directed mee to send it to you.” The enclosure is
endorsed, “Soveraignity and Fishery by S^r Phil. Meadowes, 1674,” the
proper date being probably 1672. It is evidently a draft of the later
work, essentially the same in substance and tone. (_State Papers,
Dom._, Chas. II., vol. 335, Part II., No. 168.) Later he sent a copy to
Pepys, dated January 2, 1686. _Brit. Mus. Add. MSS._, 30,221, ff. 13-43.
[954] _Op. cit._, pp. 44-46. The draft article was as follows: “To
maintain a due distinction betwixt natives and foreigners fishing
upon the coasts of their respective sovereigns; and to prevent the
manifold inconveniences which occasionally arise by a promiscuous
and unlimited fishing; ’Tis mutually covenanted, concluded, and
agreed, That the people and subjects of the United Netherlands shall
henceforth abstain from fishing within any the rivers, fryths, havens,
or bays of Great Britain and Ireland, or within a distance of ...
leagues from any point of land thereof, or of any the isles thereto
belonging; under a penalty and forfeiture of all the fish that shall
be found aboard any vessel doing to the contrary, and of all the nets,
utensils and other instruments of fishing. The like distances, and
under the same penalties, to be kept and preserved by the subjects
of His Majesty of Great Britain and Ireland, from any of the coasts
belonging to the United Netherlands. But beyond these precincts and
limits, that the people and subjects on both sides be at freedom to
use and exercise fishing, where they please, without asking or taking
licenses or safe-conducts for so doing, and without the let, hindrance,
or molestation one of another. Saving always the ancient rights of the
crown of England, and that nothing herein contained be interpreted
or extended to any diminution or impeachment thereof, But that they
remain in the same force and vertue, as before this agreement.” Meadows
does not suggest the number of leagues within which fishing should be
reserved, but he quotes with approval the proposal of James, in 1618,
to fix a limit of fourteen miles--that is, one “land-kenning” of the
Scotch.
[955] “Reflections upon a Passage in S^r William Temple’s Memoirs,
printed 1692, relating to the Right of Dominion on the British Seas.”
_Brit. Mus. Add. MSS._, 30,221, fol. 55. It is dated 1693.
[956] _A Treaty of Peace, Good Correspondence and Neutrality in
America, &c._, 16th November 1686, Art. v. By Article xvi. French
subjects were to be at liberty to fish for turtles in the islands of
Cayman.
[957] Rayneval, _Institutions du Droit de la Nature et des Gens_, i. c.
x.
[958] _Resol. van de Staten-Generael_, April, May, June 1616. _Resol.
d. Stat. van Holl._, March, April 1616. _Ibid._, 15th Dec. 1623; March,
May 1635; 19th May 1637; Dec. 1639, _Res. St.-Gen._, 18th June 1639.
_Res. Holl._, 13th April 1691. Lindemann, _Die Arktische Fischerei der
Deutschen Seestädte_, p. 8. _Groot Placaet-Boeck_, iv. 235, 237. Auber,
_Annuaire de l’Institut de Droit International_, xi. 144.
[959] _Resol. St.-Gen._, Nov., Dec. 1698, 1740, 1741. _Resol. Holl._,
July 1699; Jan., March, April, Sept., Dec. 1739; Jan., March, May 1740,
1741; Oct. 1757; Jan. 1758; Aug. 1761; April 1762. Martens, _Causes
Célèbres_, i. 359-398; ii. 122-131. Beaujon, _Hist. Dutch Fisheries_,
479. A full account of the proceedings in 1738-40 is said by Beaujon
to be contained in the memorials of Mauricius, who was the Dutch
ambassador at Hamburg at the time, and was closely connected with the
negotiations; they are contained in the Koninklijke Bibliotheek at The
Hague.
[960] Art. xii. “D’exercer la pêche dans lesd. mers, bayes, et autres
endroits à trente lieues près des costes de la nouvelle Ecosse au
sudest, en commençant depuis l’isle appellée vulgairement de _Sable_,”
&c. Dumont, _Corps Diplomatique_, VIII. i. 341.
[961] Treaty of Paris, 10th February 1763, Art. v. Hertslet,
_Collection_, i. 274. Martens, _Recueil_, i. 109.
[962] Treaty of Versailles, 3rd Sept. 1783, Arts. v., vi., and
Declaration attached. Hertslet, i. 246. Martens, iii. 522.
[963] _Parl. Hist._, xv. 1063, 1261-1263. In the negotiations for peace
in 1761, Pitt, who was then in office, most wisely insisted on an
exclusive fishery.
[964] _Treaty of Peace between Great Britain and the United States
of America, signed at Paris_, 3rd Sept. 1783, Art. viii. Martens,
_Recueil_, iii. 556.
[965] Gander, _A Vindication of a National Fishery, wherein is asserted
that the Glory, Wealth, Strength, Safety, and Happiness of this Kingdom
... doth depend (under God) upon a National Fishery ... to which is
added the Sovereignty of the British Seas_, 1699. Puckle, _England’s
Way to Wealth and Honour_, 1699. _A Discourse concerning the Fishery_,
1695. _The British Fishery recommended to Parliament_, 1734. _The
Wealth of Great Britain in the Ocean Exemplified_, 1749, &c., &c.
[966] 23 Geo. II., c. 24, 1750. _An Act for the Encouragement of the
British White Herring Fishery._
[967] Gifford, _Historical Description of the Zetland Isles_;
Edmondston, _A View of the Ancient and Present State of the Shetland
Isles_; _Europische Mercurius_, 1703, ii. 107.
[968] Maine, _International Law_, 77.
[969] _Tyberiadis, D. Bartoli de Saxoferrato, Jurisconsultorum omnium
facile principis, Tractatus de Fluminibus, &c._, Bononiæ, 1576, p.
55. “Jurisdictionem habens in territorio mari cohærenti habet etiam
jurisdictionem in mari usque ad centum milliaria, ... sicut præses
provinciæ debet purgare provinciam malis hominibus per terram, ita
etiam per aquam.... Constat autem quòd centum miliaria per mare minus
est duabus dietis.”
[970] _Commentaria ad Institutiones, Pandectas et Codicem_, iii. 79.
Venice, 1577.
[971] Bodinus, _De Republica_, lib. i. c. x. § 170, Frankfort, 1591;
Pacius, _De Dominio Maris Hadriatici Disceptatio_, c. i., Leyden, 1619;
Welwood, _De Dominio Maris_, c. i. p. 5, 1615; Dee, _General and Rare
Memorials_, p. 21, 1577; Gryphiander, _De Insulis Tractatus_, c. xiv.,
1623; Gentilis, _Advocatio Hispanica_, c. viii. de marina territorio
tuendo, 1613; Gothofredus, _De Imperio Maris_, 1637.
[972] “Mare dicitur esse de territorio illius civitatis cui magis
appropinquat et ideo Veneti quia domini sunt maris Adriatici possunt
imponere navigantibus vectigalia, et adversus contra facientus pœnam
adjicere.”
[973] _Loc. cit._
[974] “Et dicunt doctores, quod domini Veneti, et Genuenses, et alii
habentes portum, dicuntur habere jurisdictionem, et imperium in toto
mari sibi propinquo per centum miliaria, vel etiam ultra, si non
propinquant alteri provinciæ.” _Loc. cit._
[975] Azuni, _Systema Universale dei Principii del Diritto Maritimo
dell’ Europa_, i. 58, 1798. Jurisdiction was conferred within certain
boundaries on land, “et intus mare centum milliaria.”
[976] _Parl. Papers, U.S., No. 1._, 1893. _Behring Sea Arbitration,
British Case_, 37, 133.
[977] In the definitions of the boundaries of lands and fisheries in
Anglo-Saxon charters such descriptions occur as “up midne streame,”
“ūt on Temese oð midne streām,” “up midne streame by halfen streame,”
&c. Birch, _Cartulariurm Saxonicum_.
[978] “Quicquid etiam ex hac parte medietatis maris inventum et dilatum
ad Sandwic fuerit sive sit vestimentum sive rete arma ferrum aurum
argentum, medietas monachorum erit, alia pars remanebit inventoribus.”
Kemble, _Codex Diplomaticus Ævi Saxonici_, iv. 21.
[979] _Le Mirroir des Justices_, c. iii., “la sovereine seignurie de
tote la terre jeqes el miluieu fil de la meer environ la terre.”
[980] See p. 102.
[981] _Brit. Mus. Hargraves MSS._, No. 98; printed by Moore, _Hist. of
the Foreshore_, 362.
[982] _A Treatise relating to the Maritime Law of England_, 10.
[983] See p. 35.
[984] _Brit. Mus. Add. MSS._, 30,221, fol. 50. The opinion of the
Trinity House was given in November 1686. In 1677 the Privy Council,
on a petition of the fishermen of Hastings complaining of the French
fishing on the coast, sent to the Cinque Ports for an account “of the
old limitations used to be put upon the French and others in their
proceedings in that fishing,” and also ordered two ships to be sent “to
forbid the French to fish on the coast as having no license thereto,
and to drive them away from thence” (_ibid._) On the other hand,
Jeakes, in his _Charters of the Cinque Ports_, written in 1678, states
with reference to the powers “by land and sea” conferred on the Ports
by various charters, that _per mare_ did not mean _altum mare_, the
high sea, where the Admiral had jurisdiction, but only the “havens,
creeks, and arms of the sea, so far as can be judged in a county, where
the land is on both sides,” p. 69.
[985] See p. 547.
[986] 31st Oct. 1563, tit. i. par. 27, “Ne qua in mari vis fierit vel
suis subditis, vel sociis, vel peregrinis, sive belli, sive alterius
rei causa intra conspectum a terra vel portu.” Bynkershoek, _Quæstiones
Juris Publici_, lib. i. cap. viii. _De Domini Maris_, c. ii.
[987] _Mare Liberum_, c. v. See p. 347.
[988] Foreigners were not to fish “nerer the land nor nor yai mycht see
the shoir out of yair main toppis.”
[989] Stair, _The Institutions of the Law of Scotland_, bk. ii. tit.
i. 5 (1681). “The vast ocean is common to all mankind as to navigation
and fishing, which are the only uses therof, because it is not capable
of bounds; but where the sea is enclosed, in bays, creeks, or otherwise
is capable of any bounds or meiths, as within the points of such lands,
or within the view of such shores, there it may become proper, but with
the reservation of passage for commerce, as in the land. So fishing
without these bounds is common to all, and within them also, except as
to certain kinds of fish, such as herrings, &c.” The qualification and
the “etcetera” are peculiar.
[990] See p. 528.
[991] Captain George St Lo, _England’s Safety, or a Bridle to the
French King_, 1693. “During the time I was convoy to our fishing there,
as aforesaid (1685-6), my business was to see that no foreigner should
fish in sight of the shore, because the fish draw thither to spawn; the
best draughts are there.”
[992] Azuni, _Sistema universale dei Principj del Diritto marittimo_,
i. 78.
[993] _Dominio del Mar’ Adriatico e sue Raggione per il Jus Belli della
Serenissima Repvblica di Venetia_, Venezia, 1686.
[994] Hale, _A Treatise relating to the Maritime Law of England_, c.
iv. Coke’s _Fourth Institute_, c. xxii. p. 140 (ed. 1797). Blackstone,
_Commentaries_, i. 110. Hale, _Pleas of the Crown_, ii. 54. An early
authority is in Fitzherbert’s _La Grande Abridgment_ (1565), Corone
et Plees de Corone, fol. 259, placit 399, “Nota p. Stanton justic q̃
ceo nest pas sa͠nce demere ou hoe puit veier ceo q̃’est fait del ou
part del ewe et del aut, coe a rier de lun terr tanq̃ a laut q̃ le
cozon viendr’ en ceo cas et fra son offic auri coe auent a vyent en vu
brau del mer la ou home puit vier de lun parte tanque a lauter del auer
que en cel lieu auient puyt paiis auer conisans.” There are some words
in this passage difficult to translate, but the following has been
given as its rendering: “Nota per Stanton Justice, that that is not
sance [which Lord Coke translates ‘part’] of the sea where a man can
see what is done from one part of the water and the other, so as to see
from one land to the other; that the coroner shall come in such case
and perform his office, as well as coming and going in an arm of the
sea, there where a man can see from one part to the other of the [word
undeciphered], that in such a place the country can have conusance.”
[995] See p. 119.
[996] Lib. ii. cap. iii. s. xiii. 2, “Ratione territorii, quatenus ex
terra cogi possunt qui in proxima maris parte versantur, nec minus quam
si in ipsa terra reperirentur.” See p. 349.
[997] _Discussiones Historicæ de Mari Libero_, 1637.
[998] _De Dominio Seren. Genuensis Reipub. in Mari Ligustico_, 1641.
[999] _Imperium Maritimum_, 1654.
[1000] _Dissertatio de Imperio Maris_, 1676.
[1001] _De Imperio Maris._
[1002] _Jus Maritimum_, 1652.
[1003] _Maris Liberi Vind. adv. P. B. Burgum_, 1652; _Maris Liberi
Vind. adv. G. Welwodum_, 1633.
[1004] _De Jure Maritime et Navali_, lib. i. c. iv. Ed. 1652.
[1005] _De Jure Naturæ et Gentium_, 1672.
[1006] Lib. iv. c. v. s. vii.
[1007] 7th March, 1689, Art iv.
[1008] _State Papers, Dom._, Chas. II., ccxxxiv. 112, 113, 8th Feb.
1667/8. _Brit. Mus. Add. MSS._, 30,221, fol. 64, 12th March 1683.
[1009] Wynne, _Life of Sir Leoline Jenkins_, ii. 727, 732, 755, 780,
783. In reporting to the king in one case, in which he found the
capture was made in the Channel beyond the limits of a chamber, Jenkins
says: “However the truth be as to the chamber, ’tis certain the seizure
was made in your Majesty’s seas: but so it is, that notwithstanding
your Majesty’s undoubted right of dominion and protection in these
seas, strangers do hold themselves, if not permitted, yet excused for
such hostilities, when they are acted at a due distance from your
Majesty’s ports, harbours, and chambers; grounding themselves upon
what was done and observed in that long war between Spain and the
Netherlands.” The preamble of the proclamation of 12th March 1683 was
as follows: “Whereas the safeguard and protection we owe to such of our
own subjects, and to all others in league and amity with us, as pass
and repass the seas belonging to these our kingdoms, has been always
a principal part of our royal care and concern, and we, finding that
the freedom and security of our navigation and commerce to and from
our ports in time of hostility between our neighbouring princes has
been much disturbed, nay, the reverence due to our ports, harbours, and
other places under our immediate protection has been violated by the
partial practices, depredations, and insolencies of private men-of-war
and others pretending commissions for the present hostilities: We have
thought fit, by the advice of our Privy Council, after an exact view
first taken of the rules, ordinances, and provisions made on the like
occasions by our royal progenitors and ourself, to revive, establish,
ratify and publish to all the world these rules and ordinances
following.” The rules are similar to those in the regulations of 1633
and 1668; but it is noteworthy that the “King’s Chambers” are not
specifically mentioned, nor is any reference made to a “platt,” and the
claim to the dominion of the seas, so prominent in 1633, is omitted.
[1010] _De Dominio Maris Dissertatio._ Hagæ-Batavorum, 1703.
[1011] _Quæstiones Juris Publici._ Lugduni-Batavorum, 1737.
[1012] “Unde dominium maris proximi non ultra concedimus, quam e terra
illi imperari potest, et tamen eo usque; nulla siquidem sit ratio,
cur mare, quod in alicujus imperio est et potestate, minus ejusdem
esse dicamus, quam fossam in ejus territorio.... Quare omnino videtur
rectius, eo potestatem terræ extendi, quousque tormenta exploduntur,
eatenus quippe cum imperare, tum possidere videmur. Loquor autem de his
temporibus, quibus illis machinis utimur: alioquin generaliter dicendum
esset, potestatem terræ finiri, ubi finitur armorum vis; etenim hæc,
ut diximus, possessionem tuetur.” _De Dom. Maris_, cap. ii. In the
_Quæstiones_ the phrase is “imperium terræ finitur, ubi finitur armorum
potestas,” and “terræ dominium finitur ubi finitur armorum vis.”
[1013] _Ibid._, cap. ii.
[1014] See p. 381.
[1015] _De Jure Maritimo_, p. 150.
[1016] _Discursus Legales de Commercio_, Venice, 1740, D, 136. 174,
211, tom. 2. An earlier edition was published at Florence in 1719.
[1017] “Naves exteræ dicuntur esse sub protectione illius principis,
cujus mare navigant, quando reperiuntur intra portus illius, aut in
mari, ita vicino, ut illuc tormenta, bellica adigi possent. Et si
deprædentur ab inimicis, de jure restituendæ sunt.”
[1018] _Tratado jurídico-politico, sobre pressas de mar, y calidades,
que deben concurrir para hacerse legitimamente el Corso_, Part I. c. v.
Cadiz, 1746.
[1019] “No podrá con razon pretender mas extension de sus Costas, que
las dos leguas.”
[1020] “Y circunda en el espacio á lo menos de cien millas en recto: lo
qual es una infalible, y conforme tradicion de los Letrados de todas
las Naciones.”
[1021] _Jus Gentium_, Halæ Magdeburgicæ, 1749, cap. i. ss. 120-132, pp.
99-107. “Partes maris a gentibus, quæ idem accolunt, occupari possunt,
quousque dominium in iisdem tueri possunt.”
[1022] _Le Droit des Gens_, Liv. i. c. xxiii. 5, 279-295, 1758.
[1023] _De la Saisie des Bâtimens Neutres_, La Haye, 1759, tom. i. Part
I. c. iii. s. 5, p. 57.
[1024] _Nouveau Commentaire sur l’Ordonnance de la Marine du mois
d’Août 1681_, Rochelle, 1766, t. ii. Liv. v. tit. i. pp. 687, 688.
“Jusqu’à la distance de deux lieues, et avec cette restriction encore,
la mer est donc du domaine du souverain de la côte voisine; et cela
que l’on puisse y prendre fond avec la sonde, ou non. Il est juste au
reste d’user de cette méthode en faveur des États dont les côtes sont
si escarpées, que dès le bord on ne peut trouver le fond; mais cela
n’empêche pas que le domaine de la mer, quant à la jurisdiction et à
la pêche, ne puisse s’étendre au delà; soit en vertu des traités de
navigation et de commerce, soit par la règle ci-dessus établie qui
continue le domaine jusq’où la sonde peut prendre fond, ou jusqu’à
la portée du canon, ce qui est aujourd’hui la règle universellement
reconnue.” Lawrence, in his annotated edition of Wheaton’s _Elements
of International Law_, Part II. c. iv. s. 6 (1864), makes a curious
blunder in regard to the limit proposed by Valin, who, he says,
“proposed to fix it according to the _sound of a cannon_, or as far as
the ball would reach.” The authority Valin gives for the statement that
the rule was universally recognised is _Journal de Commerce_, Mai 1759,
p. 40.
[1025] _Versuch des Neuesten Europäischen Völkerrechts in Friedens-und
Kriegs-zeiten_, Bd. v. 486, Frankfort, 1778. “Das an die Küsten
eines Landes stossende Meer stehet nach dem Völkerrecht unter der
Oberherrschaft des angränzenden Landes unstreitig, so weit es mit
Canonen von dem festen Land bestrichen werden kan.”
[1026] _Juris Publici Universalis, sive Juris Naturæ et Gentium,
Theoremata_, ii. 7, 65. “Nobis visum est singulas gentes eam partem
circa littus suum occupare posse, cujus usus necessarius, quamque
tuendis littoribus et territorio necessarium arbitrantur.”
[1027] _De’ Doveri de’ principi neutrali verso i principi
guerreggianti, e di questi verso i neutrali._ Naples, 1782.
[1028] “Mi parrebbe peraltro ragionevole, che senza attendere a
vedere se in atto tenga il Sovrano del territorio construtta taluna
torre o batteria, e di qual calibro di cannoni la tenga montata, si
determinasse fissamente, e da per tutto la distanza di tre miglia dalla
terra, come quella, che sicuramente è la maggiore ove colla forza della
polvere finora conosciuta si possa spingere una palla, o una bomba,” p.
432.
[1029] _Précis du Droit des Gens moderne de l’Europe, fondé sur les
Traités et l´Usage_, Göttingen, 1789, Liv. iv. c. iv. In an earlier
work, _Primæ Lineæ Juris Gentium Europæarum_, published at Göttingen
in 1785, the three-league limit is omitted. After speaking of ports,
bays, and straits, he says, “Neque minus in genere eæ maris partes, quæ
territorio proximæ sunt (mare proximum vocant) et tormentorum in limite
terræ constitutorum ictui subsunt, censentur esse in dominio gentis
terræ dominæ, et pro parte territorii habentur.”
[1030] “Sur la mer voisine en général jusqu’à la portée du canon placé
sur le rivage; c. a. d. jusqu’à trois lieues du rivage,” p. 189. He
also speaks elsewhere of the range of guns being equivalent to three
leagues; but it would appear that the terms “miles” and “leagues” were
sometimes used indifferently and carelessly (see Bluntschli, p. 682),
and three leagues was far beyond the range of guns in Von Marten’s time.
[1031] _Sistema universale dei Principj del Diritto marittimo dell’
Europa._ Florence, 1795-96. The work was translated into French
in 1801--_Système Universel de Principes du Droit Maritime de
l’Europe_--and revised, enlarged, and republished in 1805.
[1032] See p. 574.
[1033] “Giacchè essa sola è, secondo me, il giusto ed unico mezzo, che
potrebbe servire di norma per fissare una volta il mare territoriale
sempre combattuto, e non ancora deciso, o almeno non stabilito come si
dovrebbe in un pubblico Trattato tra le Potenze marittime,” i. 75.
[1034] “La distanza di tre miglia dalla Terra come quella, che senza
dubbio è la maggiore, dove colla forza della polvere a fuoco finora
cognita si possa spingere una palla o una bomba,” p. 76.
[1035] _Répertoire de Jurisprudence._
[1036] See p. 571.
[1037] Daru, _Histoire de la République de Venise_, i. 445; Smedley,
_Sketches of Venetian History_, i. 72. See p. 4. When Venice was
conquered, the _Bucentaur_ was stripped of her gilding and finery, and,
under the name of _Hydra_, became a prosaic guard-ship, stationed at
the mouth of the Lido until 1824, when she was destroyed.
[1038] _Rescripter, Resolutioner og Collegial-Breve for Kongeriget
Norge, i Tidsrummet fra 1660-1813_, i. 315, 18th June 1745. “Rescr.
(til Stiftsbefalingsmændene i Norge) ang. det ikke skal være nogen
fremmed Caper tilladt at opbringe noget Skib een Miil nœr de Norske
Kyster og de der udenfor beliggende Grunde og Skjær,” &c. The league in
the Scandinavian ordinances measures fifteen to one degree of latitude,
or one German mile, equal to about 7420 metres. The marine league,
or three-mile limit ordinarily adopted, is of twenty to a degree of
latitude, or about 5565 metres, or 3.4517 English statute miles.
[1039] _Ibid._, i. 423, 439, 602.
[1040] 14th Sept. 1807, s. 5; 28th March 1810, s. 7. In the last the
privateers were forbidden to capture ships in the Sound within such
distance of the Swedish coast as was within the range of guns. Auber,
_Ann. de l’Institut de Droit Internat._, xi. 145.
[1041] Kleen, _Neutralitetens Lagar_, ii. 865.
[1042] Boeck, _Oversigt over Litteratur, Love, Forordninger Rescripter,
m.m. vedrørende de Norske Fiskerier_, p. 12.
[1043] Real Cédula, 17th December 1760; Real Órden, 1st May 1775;
Real Decreto, 3rd May 1830; Real Decreto, 20th June 1852. Riquelme,
_Elementos de Derecho Público Internacional, con esplicacion de todas
las reglas que, segun los Tratados, &c., constituyen el Derecho
Internacional Español_, i. 211, App., 187, 197, 200; Madrid, 1849.
Negrín, _Tratado de Derecho internacional maritimo_, Madrid, 1883, p.
66.
[1044] Martens, _Recueil_, i. 479.
[1045] 21st Nov. 1777; 9th May 1778. Martens, _Recueil_, iii. 16, 18.
In Kent’s _Commentaries on American Law_, i. 118 (ed. 1884), it is said
(apparently on the authority of Sparks’ _Diplomatic Correspondence_,
ii. 110) that the Commissioners, in their circular letter of 1777
to the commanders of American armed vessels, “carried very far the
extension of neutral protection when they applied it indiscriminately
to all captures within sight of a neutral coast.” There is nothing of
this in the document given by Martens.
[1046] 19th Sept. 1778. _Op. cit._, i. 47.