[635] There is a copy in the Library of the University, Cambridge

(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.

The Sovereignty of the Sea An Historical Account of the Claims of England to the Dominion of the British Seas, and of the Evolution of the Territorial Waters · 第 21 / 22 章